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[2013] NSWCCA 77
Court of Criminal Appeal (NSW)
2013-02-19
Bathurst CJ, Hidden J, Button J
Original judgment source is linked above.
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:
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:
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LIPCHIN, Sharon
R