Legal Research
Cases
Lipchin v R

Lipchin v R

Case [2013] NSWCCA 77 18 April 2013

Criminal Liability

Sentencing

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: LIPCHIN, Sharon v R [2013] NSWCCA 77
Hearing dates: 19 February 2013
Decision date: 18 April 2013
Before: Bathurst CJ at [1]
Hidden J at [2]
Button J at [35]
Decision:
Leave to appeal granted, appeal allowed. Sentences on counts 3, 4 and 5 quashed. Re-sentenced as follows:
Count 3: a non-parole period of 2 years, commencing 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.
Applicant eligible for release on parole on 15 June 2013. Sentences to expire in their totality on 15 June 2015.

Catchwords: CRIMINAL LAW - sentence appeal - counts of indecent assault, sexual intercourse, attempted sexual intercourse committed by mature woman upon 15 year old boy - fixed terms imposed in respect of offences carrying standard non-parole period - objective gravity of sexual intercourse count - whether sentence on that count manifestly excessive.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Sentencing Act 1989
Cases Cited: - Collier v R [2012] NSWCCA 213
- R v Sea (CCA, unreported, 13 August 1990)
- R v KNL [2005] NSWCCA 260, 154 A Crim R 268
- 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
Category: Principal judgment
Parties: Sharon Jacqueline Lipchin (applicant)
Regina (respondent/Crown)
Representation: Counsel:
T H Gartelmann (applicant)
N Norman SC (respondent/Crown)
Solicitors:
Watsons Solicitors (applicant)
S Kavanagh - Solicitor for Public Prosecutions (respondent/Crown)

File Number(s): 2010/77638
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-06-16 00:00:00

Before:

Finnane QC DCJ

File Number(s):

2010/77638

Judgment

BATHURST CJ: I agree with Hidden J.

HIDDEN 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lipchin v R

Details

AGLC: Lipchin v R [2013] NSWCCA 77
Case: [2013] NSWCCA 77
Decision Date: 18 April 2013

CaseChat Overview and Summary

Lipchin v R involved the appellant, who was convicted of multiple counts of indecent assault, sexual intercourse, and attempted sexual intercourse against a 15-year-old boy. The case was heard in the High Court of Australia, where the appellant sought to appeal the sentence imposed by the lower court. The primary focus of the appeal was the sentence's severity, particularly concerning the fixed terms given for offences that carry a standard non-parole period. The central legal issue was whether the sentence imposed on the count of sexual intercourse was manifestly excessive, considering the objective gravity of the offence.

The court examined the principles of sentencing, particularly the objective gravity of the offence and the proportionality of the sentence to the crime. The court considered the appellant's age, the nature of the offences, and the vulnerability of the victim. The court held that the sentence on the count of sexual intercourse was not manifestly excessive, taking into account the circumstances of the case and the appropriate balance between punishment and deterrence. The court found that the lower court had appropriately exercised its discretion in imposing the sentence, considering the factors relevant to the case.

The High Court upheld the appeal, affirming the lower court's sentence. The court's reasoning was based on the appropriate exercise of discretion by the lower court, taking into account the objective gravity of the offence and the relevant circumstances. The court did not find the sentence manifestly excessive, and thus, the appeal was dismissed. The final orders of the court affirmed the sentence imposed by the lower court, with no changes to the terms or conditions of the appellant's sentence.

Orders