Heppleston v R [2019] NZHC 3297 (13 December 2019)

Last Updated: 19 December 2019

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 an aggravating factor, that the material involves the sexual exploitation of children or young persons.

was not suitable due to its proximity to a children’s playground. The judge agreed, saying he was not prepared to put the appellant on home detention at the address proposed. It was adjacent to a park specifically set up for children to play who are in the age range of the images in the appellant’s possession. The Judge granted leave to apply for home detention if the appellant was able to find a suitable address.

Principles on appeal

[8] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.³ As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.⁴ It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.⁵

The appeal

The appellant’s submissions

[9] For a court to sentence an offender to home detention the proposed residence must be suitable.⁶ The appellant submits that the address proposed in the District Court was suitable for home detention.

[10] The appellant notes the lack of statutory definition as to when an address is “suitable”, and cites Alsop v R where this Court set out how to assess whether an address is suitable:⁷

[22] A sentence of home detention may only be imposed if the residence is suitable (s 80A(2)(a)(i) of the Sentencing Act 2002). The question of

³ Criminal Procedure Act 2011, ss 250(2) and 250(3).

⁴ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

⁵ Ripia v R [2011] NZCA 101 at [15].

⁶ Sentencing Act 2002, s 80A(2)(a)(i).

⁷ Alsop v R [2019] NZHC 697

suitability forms part of the overall assessment to be made by the sentence Judge in light of the principles and purposes in ss 7 and 8.

... The decision whether home detention will meet the objectives articulated in the Act is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

[11] The appellant points so ss 7 and 8 of the Sentencing Act and says the issues are:

(a) Whether the proposed address will deter the offender from further offending;

(b) Whether the proposed address will assist with rehabilitation and reintegration into the community; and

(c) Whether the address will protect the community from the offender.

[12] To that extent, the appellant says the judge erred in deciding the appellant’s address was unsuitable. The appellant said the proposed address would deter him from offending. He had already boarded up windows on that side that overlooked the park so as not to be able to see the children.

[13] He submits the Judge did not have sufficient regard for the fact he would be subject to more severe restrictions to his liberty than he had been while on bail awaiting sentencing at the same address and he points out that there had been no issues at all with him living there for over a year. Given there was no suggestion that he was luring young people from the park to his house while on bail, he has already demonstrated that he is not a risk to the users of the park.

[14] Furthermore, while on a sentence of home detention, he will not even be able to enter the park and will also be subjected to regular visits by his probation officer. While he acknowledges that he breached his conditions of bail by associating with a young person who was family friend he paid to walk a dog, he points out the breaches were minor and did not result in any charges being laid against him. The circumstances of the breach were very different from meeting a young person at the park and beginning to engage in a relationship with them.
[15] Mr Nolan points to the observation in Alsop where it was said:⁸

The fact that the address is near several parks and schools might not by itself be a significant factor, as the conditions of home detention should address any risk of reoffending that might be associated with those areas. But this factor may be indirectly relevant in considering other factors such as denunciation and accountability. They can involve an assessment of reasonable community expectations in light of the harm done to the community, as well as the victims (s 7(1)(a)). The Judge indicated that this was a factor that would not have prevented home detention in itself, and I conclude that it was permissibly taken into account as part of the broader assessment of the factors.

[16] Mr Nolan sought to distinguish Alsop as involving more serious predatory offending. He says that the risk that the appellant poses and the type of offending he has committed is managed by him not able to leave the house and having limited or no access to the internet. With those conditions he submits the address is suitable.

[17] Finally, he notes that if the appellant was sentenced to home detention then he would be able to be assessed for an intensive 12 month long rehabilitation course, whereas in prison he would only be eligible for the short intervention programme for sex offenders. He submits, therefore, that the sentencing principle of rehabilitation and reintegration of him into the community would be better met by granting him home detention.

Respondent’s submissions

[18] The respondent says there was no error in Judge Gilbert’s finding that address was unsuitable. That view was consistent with the pre-sentence report; defence counsel’s actions in seeking an adjournment of sentencing in order for the appellant to find another address; and another judge’s expressed concern at the address when granting an adjournment for the appellant to find another address.

[19] The appellant had failed to find an alternative address by sentencing. Judge Gilbert said the appellant could be suitable for home detention but the address was not suitable. The respondent pointed to Khan v Department of Corrections which held:⁹

⁸ At [26].

⁹ Khan v Department of Corrections [2018] NZHC 2897 at [17].

The requirements of s 80A(2) include the Court being satisfied that the proposed home detention residence is suitable. Suitability is not limited to technical suitability in the sense that electronic monitoring can take place effectively if an offender is resident at the particular address. For example, commonly, an address may not be suitable because of the characteristics of its occupants, or its proximity to victims.

[20] This was serious offending involving the viewing of disturbing images and videos of children being violently abused. The principles of deterrence, denunciation, accountability, promoting a sense of responsibility and providing for the interests of the victim and the protection of the community must be given proper emphasis. The community would be justifiably concerned if an offender such as the appellant was granted home detention to an address proximate to a park where children play, potentially unsupervised.

Analysis

[21] Section 8(g) of the Sentencing Act says that the court must impose the least restrictive outcome that is appropriate in the circumstances and I accept that Judge Gilbert reached the point where he considered that home detention was an appropriate option. However, he did not consider, in light of the type of offending that the appellant was convicted of, that he should serve a sentence of home detention at an address situated alongside a park which was specifically set up for children to play who are in the age range of the images that he was viewing.

[22] While I accept that there is no evidence that Mr Heppleston engaged in offending while he was on bail simplicitor at this address, that is only one factor for the Court to take into account. In my view, the proposed address is unsuitable. The appellant is assessed as being of moderate risk of sexual offending against children. He has historic convictions for indecent acts, peering into a dwelling and indecent assault on a female under 12. While this means he has not engaged in direct offending for a long time, it cannot be ruled out. The risk that the appellant may attempt to interact with children at the park may, in fact, be enhanced by the fact that he is now confined to the house on home detention and will be deprived of access to the internet because of his conditions of home detention.
[23] I do not accept that boarding his windows up is an effective measure to stop the risk of him approaching or grooming children and, indeed it seems a somewhat inappropriate response to the risks arising as a consequence of being adjacent to a children’s playpark. I also note that even though there would be an alert to Corrections staff if he moved into the park, it does not stop him inviting children home, or engaging in grooming behaviour.

[24] I have had regard to the longer treatment programme that may be able to be provided in the home detention setting. However, I consider this must come second to the needs of the community. In any event, if the appellant can find a suitable address he may still be able to be granted home detention. I also note that the appellant failed to complete a STOP programme in the past, and it may actually assist his rehabilitation to undergo a short programme in prison where he is more likely to engage with the programme.

[25] In my view, the Judge reached a correct view on the suitability of the proposed address. He acknowledged that Mr Helppleston posed, at the very least, a moderate risk to children. The fact that he was importing a child sex doll did not give him, or me, confidence that the deviant behaviour was contained as Mr Heppleston suggested. For those reasons, I consider he was correct to reserve the option of home detention for an address that is not just technically suitable, but located in a suitable environment, away from the direct possibility of contact with children.

[26] For these reasons, the appeal is dismissed.

Solicitors:

Crown Solicitor, Timaru

C G Nolan, Barrister, Christchurch