Heppell v The Queen - [2017] NZHC 64

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2016-443-000040

CRI-2016-443-000041 [2017] NZHC 64

BETWEEN
ERICA BETH HEPPELL AND

TERRANCE PETER HEPPELL Appellants

AND

THE QUEEN Respondent

Hearing:
2 February 2017

(Heard at Auckland)

Appearances:

M S Boyd for Appellants
S J Simpkin for Respondent

Judgment:

2 February 2017

JUDGMENT OF GILBERT J

This judgment is delivered by me on 2 February 2016 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Counsel/Solicitors:
M S Boyd, Barrister, New Plymouth
C & M Legal, New Plymouth

HEPPELL AND HEPPELL v THE QUEEN [2017] NZHC 64 [2 February 2017]

Introduction

[1] Erica and Terrence Heppell pleaded guilty at an early stage to one charge under s 195 of the Crimes Act 1961 of ill-treatment or neglect of a vulnerable adult, Mr Heppell’s 91-year-old mother (Mrs Heppell Snr). The maximum penalty for this offence is 10 years’ imprisonment. They appeal against the sentence imposed by Judge Sygrove in the New Plymouth District Court of two years, nine months’
imprisonment.1

[2] The Judge arrived at this sentence by adopting a starting point of four years’ imprisonment, allowing a discount of four months for remorse and previous good character and applying a further discount of 25 per cent for the early guilty pleas. In fixing the starting point, the Judge identified four aggravating factors, three of which are not challenged: the extent of the harm caused; the abuse of their position of trust; and the vulnerability of the victim. The Judge described the fourth aggravating
factor in these terms:2

… there must have been premeditation of an extremely high level of neglect, particularly over the last few weeks or even months.

[3] Mr and Mrs Heppell advance their appeal against sentence on two grounds: (a) the Judge was wrong in his assessment of “premeditation”; and
(b) the starting point of four years’ imprisonment was too high.

The facts

[4] Mrs Heppell Snr lived on her own for many years after she was widowed. In

2009, when she was aged 86, she dislocated and broke her elbow in a fall. Mr and Mrs Heppell then moved permanently into Mrs Heppell Snr’s home to look after her, taking joint responsibility for her health and general welfare.

[5] After Mrs Heppell Snr was seen by her general practitioner on 28 March

2014, arrangements were made for an occupational therapist to visit her home. The

1 R v Heppell [2016] NZDC 21743.
2 At [26].

occupational therapist who made this visit on 30 May 2014 noticed signs that Mrs Heppell Snr may have been unwell and recommended that Mr and Mrs Heppell take her to see her general practitioner or to the emergency department at the hospital as soon as possible. Mr and Mrs Heppell disputed these facts but the Judge found them proved following a disputed facts hearing. Nevertheless, the Judge said that he would not attach any weight to this evidence. This arguably generous approach was adopted because…

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 Heppell v The Queen

Details

AGLC: Heppell v The Queen [2017] NZHC 64
Case: [2017] NZHC 64
Decision Date: 2 February 2017

CaseChat Overview and Summary

Erica and Terrence Heppell pleaded guilty to charges of ill-treatment or neglect of a vulnerable adult under section 195 of the Crimes Act 1961, involving their 91-year-old mother, Mrs Heppell Snr. They appealed against the two years, nine months’ imprisonment sentence imposed by the New Plymouth District Court. The court had to determine whether the sentence was appropriate and if the Judge's assessment of premeditation and the starting point for the sentence were correct. The court held that the Judge did not err in his assessment of premeditation and that the starting point of four years’ imprisonment was within the Judge’s discretion. The appeal was dismissed, and the original sentence was upheld.

The legal issues in this case involved whether the District Court erred in assessing the premeditation and the starting point of the sentence. The Heppells argued that the Judge incorrectly assessed premeditation and that the starting point of four years’ imprisonment was too high. The court considered the evidence presented and the reasoning behind the Judge’s decision. The Judge identified premeditation as an aggravating factor based on the extreme neglect over an extended period, which the court found to be a correct assessment. Regarding the starting point, the court noted the increase in the maximum penalty for the offence, which justified a higher starting point in this case compared to previous cases. The court concluded that the starting point was appropriate given the severity of the neglect and the vulnerable state of the victim.

Orders