R v Heppell [2016] NZDC 21743 (28 October 2016)

Last Updated: 3 March 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT NEW PLYMOUTH

CRI-2016-043-000063 [2016] NZDC 21743

THE QUEEN

v

ERICA BETH HEPPELL TERRENCE PETER HEPPELL

Hearing:	28 October 2016
Appearances:	C Clarke and J Bourke for the Crown J Mooney for the Defendants
Judgment:	28 October 2016

_{NOTES OF JUDGE C D SYGROVE ON SENTENCING}

[1] I will deal with the issue of suppression first. I rely on the doctor’s report of

10 May where the doctor reports that;

The victim in this matter is unable to read and comprehend a newspaper article. Even if she was able to read a newspaper due to her advanced dementia she is not able to retain new information for more than a few seconds.

[2] She says;

In my opinion it is extremely unlikely she will be harmed or that it will cause her distress to see the family name mentioned in the newspapers, given her severely impaired cognitive ability.

[3] Accordingly, there is no possibility of undue hardship to her and her name is to be published as is the relationship between her and the defendants.

R v ERICA BETH HEPPELL [2016] NZDC 21743 [28 October 2016]

[4] The defendants Erica and Terrence Heppell are both jointly charged that between 28 March 2014 and 13 October 2014 they ill treated and neglected a vulnerable adult, namely Beatrice Heppell who is Mr Heppell’s mother and Erica’s mother-in-law.

[5] The facts set out that Beatrice Heppell, is the victim, her husband died approximately 25 years ago and from then until 2009 she lived in her family home, caring for herself. In 2009 she had a fall, dislocated and broke her elbow, which resulted in her needing assistance.

[6] It was at this time that the defendants moved out of their farm cottage, which was a short distance from her home and moved in with her to look after her. They took joint responsibility for her health and on 28 March 2014 she was seen by her GP. A referral was made following that to have an occupational therapist visit the home in regard to wheelchair access. That therapist, although she was not a medical person, was concerned about Beatrice’s welfare and she suggested to the Heppells that they take her to a GP.

[7] At a later stage she contacted the Heppells again and suggested they do so. But as I say, it is important to note that the therapist was not a medical person, but just someone who was concerned because she had been to the address but only in regard to wheelchair access for Beatrice.

[8] It was not until 13 October 2014, some four months later that the defendants called an ambulance and when the ambulance arrived they found Beatrice in her bed, lying on top of a foam ring which had faeces on it and folded newspaper under it. They noted Beatrice’s skin was filthy, her fingernails and toenails were unkempt and filthy looking, her eyes and lashed were covered in dried mucus and she had blue mould under her breasts. Her clothing was filthy and she was wearing and incontinence diaper full of faeces that appeared to have been left on her for a long time.

[9] They noted that there was kitty litter, cat hair and cat faeces on the ground by her bed. The smell in her room was described as horrendous, with one ambulance officer retching on leaving the room.

[10] The main injuries they noted were wounds to both feet which were oozing a blood liquid type fluid, bed sores on her bottom and a weepy cavity in her sacrum which had fluid running out of it. One wound in her foot was covered with a Chux cloth.

[11] On admission to hospital, Beatrice, the victim, showed extensive signs of physical neglect, with multiple pressure wounds. Her condition was described by an experienced long-serving registered nurse who was the surgical case manager of the ward, that her general condition was one of the worst he had come across in his nursing career.

[12] The medical staff who assessed her wounds stated they were at least three to four weeks old at the time of her admission.

[13] A search warrant was executed by the police on the Heppells’ address and the room occupied by Beatrice was described as filthy with flies throughout the bedroom.

[14] They were subsequently interviewed by the police and they said her decline both in general health and wounds had been rapid and any failures on their part had been due to ignorance not neglect. They had stayed up into the early hours of the night to look after her and I note that the victim has not returned to her home and is now resident in a nursing care facility.

[15] I note from Dr Bayden-Horse’s report of 7 July that in her opinion:

The wounds were caused by prolonged immobilisation in bed over a period of weeks to months, most likely she had stopped walking due to advancing dementia, risk factors for the pressure ulcers present in this patient including faecal and urinary incontinence, her age, dementia and mild diabetes. But these are risks and not the actual cause of pressure ulcers, which is prolonged pressure.

[16] Mrs Beatrice Heppell, that is the victim of course, is unable to make a statement because of her current state of health and state of dementia, but I note that her son, Ross has made a victim impact statement on his and her behalf. He set out this after she was admitted to the home. He said:

Our first time glimpse of Mum reduced us to dumbfounded silence. We could not believe that this frail looking shell of a woman had deteriorated so quickly in 18 months. The list of her injuries was absolutely horrific and I believed that Mum was really not far away from death. My wife has always been able to communicate well with my mum, so she spoke to her but with not much success.

[17] He says;

Mum’s pride and joy was her house. It had been allowed to slip back from her standards of being clean and tidy but not excessively so. It was after all, a working farmhouse. For Mum to be trapped inside her home and seeing it deteriorate must have been intolerable. Mum is still with us which says a lot for her strength. Mum can never return home, her condition will not allow it and it is a very sad situation for all of us. Mum should have been allowed to grow old gracefully and with dignity in her own terms in her own house and that was denied her.

[18] I have received pre-sentence reports for Mr and Mrs Heppell, and in those reports it is stated that Mrs Heppell disputed parts of the police summary of facts, she did not agree that she minimised her mother-in-law’s condition, focussing all of the blame on the victim for the injuries she suffered. Justifying this by stating that the victim determined her own care regime.

[19] When asked about any regret concerning her offending she claimed, “I feel ashamed.” However, that shame appeared to be focussed around the embarrassment she would feel if the offending was made public and Mrs Heppell showed little compassion for the injuries her victim suffered and as such it was difficult to gauge the level of remorse she may have felt towards the victim.

[20] She said that she and her husband had tried to do their best to look after her. So far as Mr Heppell’s pre-sentence report is concerned, he also stated that he and his wife had looked after the victim the way she wanted to be looked after and whilst he advised he was remorseful for the offending, very little victim empathy was evidenced at interview. At interview Mr Heppell described himself as annoyed in relation to the charge and disputed that the victim showed signs of neglect, and again he repeated that she had been looked after the way she wanted to be looked after.

[21] I note that both reports recommend imprisonment for both defendants and the other parts of the report indicate that the condition of the house is not really suitable for home detention. They say they:

Have grave concerns due to the filthiness and squalor within the address in regard to the unsanitary conditions at the home and electronically-monitored sentences could not be managed without exposing the staff tasked with monitoring those sentences to unnecessary health risks which would include exposure to toxic substances namely garbage, rotting food as well cat urine and faeces, secondly acute hygiene and health hazards perpetuated by un-emptied cat litter trays, unwashed cat feeding bowls, piles of dirty dishes, overflowing garbage, receptacles in the kitchen as well as mounds of dirty clothing scattered around the kitchen, dining room and bedrooms. Owing to the pervasive presence of disorderliness as well as the sheer volume of chicken droppings, animal urine and faeces that pervade the home, the sentences of home and community detention cannot be monitored without increasing the risk of serious illness to those monitoring the electronically- monitored sentence.

[22] Their later reports indicate that there may have been some improvement but there are still major concerns about that property and its appropriateness for home detention.

[23] The Crown submissions which Ms Clarke has referred me to today have been helpful in setting out the type of background cases that a Judge needs to reflect on as to the appropriate penalty. As she has been the first to concede, most of those cases relate to young children who were abused but they do set out the fact that there are serious penalties involved for people who neglect children, and of course that flows on to elderly persons who are unable to defend themselves. She refers me to the fact that in the case of M v R the Court of Appeal held that:

Parliament has signalled in the clearest possible manner that the Courts are expected to respond to offending of this type by imposing penalties that reflect the seriousness of the offending. Specific provision has been made for offences involving children and vulnerable adults, reflecting a discrete concern that they require protection from ill-treatment and neglect.

[24] That is why, as Ms Clarke says, that the penalty for this type of offending was increased from five years’ imprisonment to 10 years’ imprisonment.

[25] The case of R v Quinn1 is the most relevant case. That is a case very similar to the present case, but was a case where the maximum penalty was seven years’ imprisonment and in that case the sentencing Judge adopted a starting point of three years’ imprisonment. Of course because of the increase in the

_{maximum sentence that was the level of imprisonment the Judge had available to}

1 R v Quinn CRI-2012-041-002610 2 April 2014, Judge JC Down

him at that time. I have a higher maximum penalty and accordingly, the starting point can be higher if I decide that it should be.

[26] The Crown quite rightly point out that the aggravating factors are the extent of harm resulted from the offence, as evident from the victim impact statement and also from Dr Bayden-Horse’s letters which I have read to the Court today. The offenders were abusing a position of trust in relation to the victim, the victim was particularly vulnerable because of her age, health and dementia and there must have been premeditation of an extremely high level of neglect, particularly over the last few weeks or even months.

[27] The mitigating factor they say is the offender’s guilty plea and they suggest a starting point of four years’ imprisonment with full discount for early guilty pleas resulting in a penalty of at least three years’ imprisonment.

[28] Ms Mooney on behalf of the defendants has filed submissions. Her submissions in her usual way cover all of the relevant matters that I need to consider, but she suggests an appropriate starting point is between two years six months and three years’ imprisonment. She says that the defendants are entitled to credit in regard to their previous good character and remorse displayed as evidenced by their continued love and support for the victim.

[29] She refers me to the case of R v Quinn which the Crown have also referred me to. She refers me to the case of R v Hill and she urges me to impose a term of imprisonment that would enable the defendants to qualify for home detention.

[30] She says the aggravating factors are the extent of harm, the abuse of trust and the vulnerability of the victim, but that the important factors are that the defendants are in their 60s, they had cared for the complainant since 2009, they now visit her and contact her at least five times a week. Effectively they have no previous convictions and they entered guilty pleas at the earliest opportunity.

[31] Mr and Mrs Heppell, I am sorry to say that you showed no insight into how your lack of care of this elderly woman impacted on her health. You are both responsible for the appalling condition she was in when she was uplifted from your

care. She was entitled to expect you to properly care for her, as she, unlike some other victims of crime, was entirely unable to protect herself or even call for help. She was entirely at your mercy and you let her down very badly indeed. She was a vulnerable elderly woman who deserved to be treated with respect and dignity.

[32] The aggravating factors relating to the offence are these:

• The extent of harm resulting from the offending.

• That you were abusing a position of trust in relation to her and that she was particularly vulnerable because of her age and her health and;
  
• There was an element of premeditation, there has to have been because of the term during which she had these considerable injuries.
  

[33] Accordingly, I regard the starting point for imprisonment as one of four years.

[34] So far as aggravating factors relating to you specifically are concerned, I find none.

[35] So far as mitigating factors relating to you are concerned, you have shown remorse, albeit of a limited amount, and you have evidence of previous good character and accordingly, I reduce the sentence from 48 months or four years, to

44 months.

[36] You are entitled to a full discount for your early guilty plea and that reduces the penalty from 44 months to 33 months’ imprisonment.

[37] You are both sentenced to 33 months’ imprisonment.

C D Sygrove

District Court Judge