Heppleston v The Queen - [2019] NZHC 3297

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2019-476-000030

[2019] NZHC 3297

BETWEEN
STEPHEN HEPPLESTON

Appellant

AND

THE QUEEN

Respondent

Hearing: 11 December 2019

Appearances:

C G Nolan for Appellant

H V Bennett for Respondent

Judgment:

13 December 2019

JUDGMENT OF DUNNINGHAM J

Introduction

[1] The appellant, Stephen Heppleston, pleaded guilty to a representative charge of knowingly possessing objectionable material and one charge of importing an obscene article. He was sentenced by Judge Gilbert to 18 months’ imprisonment.1 The appellant appeals that sentence on the basis that the sentence should have been converted to home detention.

Facts

[2] On 23 April last year, Customs officers in Auckland intercepted a package addressed to the appellant from China. The package contained a sex doll in the likeness of a pre-pubescent female.

1 R v Heppleston [2019] NZDC 19044.

HEPPLESTON v R [2019] NZHC 3297 [13 December 2019]

[3] A search warrant was then executed at the appellant’s address in Timaru. A USB memory stick was found there, which contained five video files of sex acts involving adults and children. A further examination of the appellant’s computers and associated data storage devices found a total of 28 video files and 135 still files of similar objectionable material.

District Court decision

[4] Judge Gilbert, in setting a starting point, said there was a need to recognise the immense suffering caused by providing a market for images of sexually abused children. The judge said he needed to denounce what the appellant has done and provide a measure of protection to the community. Against that, he recognised the need to impose the least restrictive sentence appropriate in the circumstances.

[5] In terms of aggravating features, the judge pointed to the number and nature of the images in the appellant’s possession. The appellant’s offending was premeditated in that he had obtained these images over time. He also has prior convictions and the offences involved the statutory aggravating features contained in s 132A Films, Videos, and Publications Classification Act 1993.2 Against that, Judge Gilbert acknowledged the appellant’s guilty plea and that that it is not easy for people to admit this type of offending.

[6] The Judge took the possession of child sexual abuse images as the lead offending. For that he set a starting point of 22 months’ imprisonment. He uplifted it by two months for importation of the child sex doll. The judge did not apply an uplift for previous convictions because they were dated, nor did he offer any discount for prior good character. Judge Gilbert gave a full 25 per cent discount for his guilty plea. That left an end sentence of 18 months.

[7] The Judge said he would have considered the appellant for home detention if there was an available address that was appropriate to serve out the appellant’s sentence. A pre-sentence report dated 17 April 2019 had said the appellant’s address

2 Which requires the Court to take into account, as…

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 Heppleston v The Queen

Details

AGLC: Heppleston v The Queen [2019] NZHC 3297
Case: [2019] NZHC 3297
Decision Date: 13 December 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Stephen Heppleston appealed his sentence for possessing objectionable material and importing an obscene article. The central issue was whether the District Court judge erred in determining that the appellant's address was unsuitable for home detention. The High Court considered whether the District Court had correctly applied the principles of suitability for home detention, balancing the principles of deterrence, denunciation, and community protection against the appellant's right to the least restrictive sentence possible.

The High Court found that the District Court judge had correctly assessed the appellant's address as unsuitable for home detention. The judge's decision was based on the appellant's moderate risk of sexual offending against children, his proximity to a children's playground, and the potential for him to interact with children despite being confined to his house. The High Court held that the risk of reoffending, particularly given the nature of the appellant's offending, outweighed the potential benefits of home detention at the proposed address. The Court also noted that the appellant had not demonstrated an effective measure to mitigate the risk of approaching or grooming children, such as boarding up windows. Consequently, the High Court dismissed the appeal and upheld the original sentence of 18 months' imprisonment.

The Court did, however, leave open the possibility for the appellant to apply for home detention if a suitable address could be found. This decision reaffirms the importance of ensuring that the conditions of home detention adequately address the risks posed by the offender while also balancing the need for rehabilitation and reintegration into the community.

Orders