LIPCHIN, Sharon v R

Court of Criminal Appeal (NSW)|2013-02-19|Before: Bathurst CJ, Hidden J, Button J

Judgment 1BATHURST CJ: I agree with Hidden J. 2HIDDEN J: This is an unusual case. The applicant, Sharon Lipchin, a mature woman in her forties, was tried in the District Court for a number of counts of sexual assault, arising out of the same incident, upon a 15 year old boy. They were as follows:

Count 1: indecent assault upon a person under 16 years of age, an offence under s 61M(2) of the Crimes Act 1900, carrying a maximum sentence of imprisonment for 10 years and a standard non-parole period of 8 years;
Count 2: aggravated sexual intercourse without consent (complainant under the age of 16 years), an offence under s 61J(1) of the Crimes Act, carrying a maximum sentence of 20 years imprisonment;
Count 3 (alternative to count 2): sexual intercourse with a person aged between 14 and 16 years: an offence under s 66C(3) of the Act, carrying a maximum sentence of 10 years imprisonment;
Count 4: attempted sexual intercourse with a person aged between 10 and 16 years, an offence under s 66D of the Act, also carrying a maximum sentence of 10 years imprisonment;
Count 5: a further count of indecent assault upon a person under the age of 16 years. 3The applicant was found guilty of counts 1, 3, 4 & 5. For count 3, sexual intercourse with a person between the ages of 14 and 16 years, which the trial judge saw as the most serious of the offences, she was sentenced to imprisonment for 5 years with a non-parole period of 2 ½ years, commencing on 16 June 2011, the date on which sentence was passed. For the remaining counts she was sentenced to terms of imprisonment which were concurrent with that sentence. For the two counts of indecent assault (counts 1 and 5), she was sentenced to a fixed term of 1 year and 2 years respectively, each to commence on 16 June 2011. For the count of attempted sexual intercourse (count 4) she was sentenced to imprisonment for 3 years with a non-parole period of 18 months, to date from 16 June 2012. 4Thus, the sentence of 5 years with a non-parole period of 2 ½ years for count 3 was also the overall sentence. The applicant seeks leave to appeal against those sentences. The application is out of time, for reasons explained in an affidavit of the applicant. An extension of time was not opposed by the Crown prosecutor and should be granted.

Facts 5The offences occurred on 27 February 2010 at the applicant's home, where she lived with her husband and her son. The male victim, then aged 15 years, was a friend of her son. The applicant was 41 at the time. She was drinking wine and she persuaded the victim to join her. He was of the Jewish faith, and he did so although he told her that he did not usually drink wine except at the Friday prayer session traditionally observed by members of that faith. As the trial judge put it in his remarks on sentence, she "plied him with wine and then commenced a process of sexual activity." 6She kissed him (the indecent assault the subject of count 1), and then took him to another room. There she removed his pants and rubbed the area of his crotch through his underpants (indecent assault - count 5). She then fellated him (sexual intercourse with a person aged between 14 and 16 years - count 3). After that she attempted to place his penis into her vagina, without success (attempted sexual intercourse - count 4). 7As she was attempting to achieve penile penetration she heard a noise, which apparently was her husband coming home. She told the victim to get dressed, and asked him to come back the following week when they would "repeat the session." The victim left in a state of confusion. The following day he spoke to a friend, and asked him if it was possible to make a woman pregnant by slight penile penetration of her vagina. He became very concerned about that matter, and ultimately told his father what had happened. His father took him to the police and the applicant was later charged. 8His Honour noted in his remarks that it was "clear from a victim impact statement that he was considerably upset by this, was left in a state of confusion and for a while was quite concerned that somehow or other he might have got Mrs Lipchin pregnant." His Honour described her as "a predator", noting that "she went after him, she tried to induce him or she persuaded him to have sexual contact with her, she forced herself on him and she sought to see if this arrangement could continue at a later point."

Subjective case 9The applicant had no prior convictions. She and her family were also members of the Jewish community, having come from South Africa to this country after living for some time in New Zealand. Her son, also in his early teens at the time, had suffered from an early age from autism, attention deficit hyperactivity disorder, and a pervasive developmental disorder. His intellectual functioning is within the average range, but he was assessed by an autism service as having moderately low communication skills, living skills, socialisation skills and adaptive behaviour. His adaptive skills were found to be lower than 96% of other young men of his own age. 10At the time of sentence the applicant had been the only provider for the family, as her husband had not worked for some months. Her son had a much closer relationship with her than he did with his father. As his Honour put it, the autism service set out her son's situation "in fairly bleak terms" and, while it did not go so far as to say that he could not survive in the community without her, it was obvious that he would have "great difficulties" in doing so. 11His Honour had regard to these sad circumstances in determining sentence. On the other hand, he noted that the applicant's case at trial was that she had not had any sexual contact with the victim and that she continued to maintain her innocence, leading to a finding that she had shown no remorse for her offending behaviour. That said, he also noted that she acknowledged having a problem with alcohol and had stopped drinking, and that a well qualified forensic psychologist, who prepared a report, was of the opinion that she was unlikely to commit offences of this kind again. His Honour found that she was unlikely to re-offend in the light of that opinion, and having regard to the fact that she was not in a relationship with the victim and the offences occurred on one occasion only. As is apparent from the proportion of the non-parole period to the sentence in respect of count 3, he also found special circumstances.

The application 12Counsel for the applicant, Mr Gartelmann, argued the application on two bases: that his Honour erred in failing to set a non-parole period for the counts of indecent assault, for which a standard non-parole period was prescribed, and that the sentences are manifestly excessive (as that ground expressed it, "unreasonable and plainly unjust.")

Indecent assault counts 13It is common ground that his Honour fell into error in failing to specify non-parole periods for the indecent assault charges (counts 1 and 5). As I have said, both these counts were laid under s 61M(2) of the Crimes Act, carrying a maximum sentence of 10 years imprisonment and a standard non-parole period of 8 years. His Honour commented in his remarks upon the obvious incongruity of a standard non-parole period which is such a high proportion of the maximum sentence, but that is not a matter which needs to be considered for present purposes. A court cannot decline to set a non-parole period for an offence to which a standard non-parole period applies: s 45(1) of the Crimes (Sentencing Procedure) Act 1999. 14The argument on this ground was confined to whether his Honour assessed the fixed terms for those offences by reference to the non-parole periods he would have set if he had not imposed fixed terms, or whether he considered them to be the appropriate sentence in each case. His Honour found that both offences were of "much less than mid-range seriousness", noting that they could have been dealt with by a magistrate if they had been the only charges. Of the two, he saw the touching of the victim's crotch area the subject of count 5 as the more serious. As set out above, for that offence he imposed a sentence of 2 years, whereas the sentence for count 1, the kissing, was 12 months. When passing both of those sentences he noted that each was "much less than the standard non-parole period." 15The Crown prosecutor in this court submitted that what his Honour said should be interpreted as an intention to impose what would have been non-parole periods for each offence. Mr Gartelmann argued the contrary, relying on his Honour's assessment of the objective gravity of each offence as low and his observation that, standing alone, they could have been dealt with summarily. 16There is a considerable line of authority in this court, both under the current sentencing legislation and its predecessor, the Sentencing Act 1989, equating fixed terms with non-parole periods. In particular, that has been the court's approach in a number of cases in which a sentencing judge had passed a fixed term in respect of an offence carrying a standard non-parole period. In those cases the court has treated the fixed term as equivalent to the appropriate non-parole period and has intervened by increasing the length of the overall sentence. However, that has not always been the approach, and in other cases the court has treated the fixed term as the head sentence and fixed a non-parole period in respect of it. 17This emerges from the judgment of R A Hulme J in Collier v R [2012] NSWCCA 213, at [52] ff. His Honour noted at [52] that it was not necessary in that case to resolve the question "whether this Court can or should increase the overall term of a sentence where at first instance there has been an error in failing to set a non-parole period." He examined twenty-six cases in this court in which the nature of a fixed term was in issue, not all of them involving standard non-parole period offences, and noted that in none of them was there any reference to the terms of the relevant legislation: [58]. He observed that "the discretion provided in s 45 of the current legislation is to decline to set a non-parole period." Speaking of that section and its predecessor (s 6 of the Sentencing Act 1989) he added that neither of them "provided, in terms, for a discretion to reduce a sentence by not including within it an additional term, or parole period." (The expression "fixed term" derives from the 1989 Act and, although it continues to be used, it is not to be found in the current Act.) 18His Honour concluded at [62]: "Whether a sentencing court has the power within the terms of s 45 of the Crimes (Sentencing Procedure) Act to reduce what would otherwise be the appropriate sentence by setting a fixed term of imprisonment is a question best left for resolution in an appropriate case in the future. Resolution of that question will also bear upon whether, in an appeal against the severity of a sentence, this Court can or should increase the sentence where a fixed term has been erroneously imposed." 19The issue does not need to be resolved in this case either. In any event, as the Chief Justice observed during argument, a question arises whether it is necessary to resolve it in cases such as this given that, error having been identified, this court is free to re-sentence in the exercise of its own discretion. 20Without denying the seriousness of any offence under s 61M(2) of the Crimes Act, reflected in the maximum sentence and the fact that the offence carries a standard non-parole period, it must be said that the two offences here are very low in the range of objective gravity. In my view, the fixed terms of imprisonment which his Honour imposed were adequate sentences for each of them. Non-parole periods in respect of each of them should have been set. No purpose would now be served by correcting the sentence for the first count, which has expired. However, the sentence for the fifth count continues to run and a non-parole period must be specified, although the period I propose will have expired. 21In respect of that sentence I would specify a non-parole period of 50%, consistent with the proportion which his Honour determined to be appropriate in respect of the overall sentence. Accordingly, for that count I would fix a non-parole period of 12 months, commencing on 16 June 2011.

Manifestly excessive? 22The ground of manifest excess is directed to all the sentences but, as one would expect, the focus of the argument was the sentence of 5 years with a non-parole period of 2 ½ years on count 3. 23An important question in determining the appropriate sentence for offences of this kind was expressed by Badgery-Parker J, with whom Gleeson CJ and Wood J agreed, in R v Sea (CCA, unreported, 13 August 1990). At p 4 of the judgment, after referring to English authority dealing with the wide range of circumstances of offences of carnal knowledge, his Honour said: "If one tries to draw a line through all of the cases it seems to me that one of the most significant matters and, indeed, probably the most significant of the matters which determine where a particular offence is to be placed in the spectrum of offences of this kind must be expressed in terms of the degree to which the offender is seen to have exploited the youth of the girl." 24That passage has been cited with approval more recently by Latham J, with whom Brownie AJA and Buddin J agreed, in R v KNL [2005] NSWCCA 260, 154 A Crim R 268, at [41]. Of course, that passage is pertinent whether the victim be male or female and, obviously, the age of the victim is an important factor going to the gravity of an offence of this kind. As Latham J observed in KNL at [42], "in terms of the position occupied by a given offence on the spectrum of offences of this kind, the younger the child, the more serious the offence ... ." 25Mr Gartelmann noted that the victim in the present case was close to 16 years old, the upper limit of the age range for the offence, being almost 15 years and 11 months. Otherwise, as to the objective gravity of the offence, he relied upon the fact that it was an isolated, brief and apparently unplanned incident, without any force, threat or coercion to procure the victim's submission or to persuade him to make no complaint. All that is true, although the fact remains that the episode was to a significant degree exploitative of the victim's youth. I have referred to his Honour's characterisation of it as predatory, the applicant having initiated the sexual activity after persuading the victim to consume an amount of alcohol to which he was clearly not accustomed. 26Mr Gartelmann relied upon Judicial Commission statistics of sentence for the offence under s 66C(3) of the Crimes Act, together with seven decisions of this court in which sentences for that offence were considered. In chronological order those cases were:

R v Romano [2004] NSWCCA 380,
Boulad v R [2005] NSWCCA 289,
R v Katon [2008] NSWCCA 228,
Salvatore v R [2009] NSWCCA 104,
Kenny v R [2010] NSWCCA 6,
Mokhaiber v R [2011] NSWCCA 10,
R v Chishimba & Ors [2011] NSWCCA 212 (focusing on the case of one of the co-appellants, Makasa). 27All of these cases involved a victim who was 15 years old, or very close to it. As one would expect, they display a wide variety of circumstances and a very wide range of sentence for the offence in question: from a fixed term of 10 months to a sentence of 6 years with a non-parole period of 3 years. In all but one of them the offender had pleaded guilty. In four of them (Romano, Katon, Salvatore and Makasa) the offences under s 66C(3) were accompanied by other related offences, and the sentences for them were part of a structure of sentences designed to embrace the whole of the criminality involved. 28In oral argument, Mr Gartelmann acknowledged that it was difficult to draw a line through these cases so as to discern a pattern of sentence. That said, two cases involving very lenient sentences should be mentioned. In Kenny an appeal against sentence was (unsurprisingly) dismissed, the offender having been sentenced for two offences under s 66C(3) to a term of 2 years with a non-parole period of 1 year and 3 months for one of them and a good behaviour bond for the other. Suffice to say that in that case the circumstances of the offences were unusual and the offender made out an exceptional subjective case. 29Makasa (Chishimba & Ors) was an appeal against conviction, in which the Crown cross-appealed against sentence. In Makasa's case, concurrent sentences of 2 years with a non-parole period of 1 year for three offences under s 66C(3) were confirmed, although they were described as "lenient." It must be understood, however, that those sentences were themselves concurrent with a much longer sentence which had been passed at first instance in respect of a related offence under s 61J of the Crimes Act. The conviction for that offence was quashed on appeal, by which time Makasa had been in custody for longer than the period of the sentence for the remaining offences. 30The statistics for the s 66C(3) offence for the period from October 2004 to September 2011 (which embraces the present case) show that of the ninety-two cases recorded, fifty-four (59%) were dealt with by prison terms. Of those, only five resulted in sentences of 5 years or more. It is apparent, however, that the great majority of those cases were pleas of guilty. Statistics provided by the Crown prosecutor for the period from April 2005 to March 2012 reveal only five cases of sentence after a plea of not guilty. Of those, two were for terms of 5 years (this case, presumably, being one of them). Of course, these figures should be approached with the caution this court has so often counselled. 31The Crown prosecutor submitted that the sentence for count 3 was appropriate, given his Honour's assessment of its objective gravity and the fact that the applicant could not claim leniency for a plea of guilty. She added that his Honour's finding of special circumstances had led to a generous reduction of the non-parole period from the statutory proportion. These are undoubtedly significant matters but, after careful reflection, I have come to the conclusion that the sentence is more than was called for in all the circumstances. In arriving at that conclusion I have not been materially assisted by the cases to which Mr Gartelmann has referred or the statistics (although I acknowledge that information of that kind, properly approached, can often be of value in determining whether a sentence is appropriate). 32True it is that the sexual episode was exploitative in the manner which his Honour found. Nevertheless, the features of the episode identified by Mr Gartelmann, particularly the victim's age, place the offence in the lower range of culpability of offences of its kind. That being so, and having regard to the applicant's favourable prospects of rehabilitation, I am of the view that a sentence of 5 years, against a maximum of 10 years, is excessive. Of course, the sentences for the other offences are all subsumed within it but, given that the four offences were component parts of a single brief episode, it was entirely appropriate that the other sentences be concurrent with it. 33In my view, the appropriate sentence for count 3 is 4 years with a non-parole period of 2 years and, in the circumstances, I consider that term sufficient to reflect the whole of her criminality. That sentence would make her eligible for release on parole on 15 June 2013. The sentence for count 4, 3 years with a non-parole period of 18 months, was not the subject of argument and I would not disturb it. However, its accumulation upon the other sentences by 12 months would delay the applicant's eligibility for parole until 15 December 2013. It is proper, in my view, to direct that that sentence commence 6 months earlier, that is, on 16 December 2011. 34Accordingly, I would grant leave to appeal and allow the appeal. I would quash the sentences passed in the District Court for the third, fourth and fifth counts, and re-sentence the applicant as follows: Count 3: a non-parole period of 2 years, commencing on 16 June 2011 and expiring on 15 June 2013, and a balance of term of 2 years, commencing on 16 June 2013 and expiring on 15 June 2015. Count 4: a non-parole period of 18 months, commencing on 16 December 2011 and expiring on 15 June 2013, and a balance of term of 18 months, commencing on 16 June 2013 and expiring on 15 December 2014. Count 5: a non-parole period of 12 months, commencing on 16 June 2011 and expiring on 15 June 2012, and a balance of term of 12 months, commencing on 16 June 2012 and expiring on 15 June 2013. Thus, the applicant would be eligible for release on parole on 15 June 2013, and the sentences would expire in their totality on 15 June 2015. 35BUTTON J: I agree with Hidden J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 April 2013

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