HEPPELL AND HEPPELL v THE QUEEN [2017] NZHC 64

HEPPELL AND HEPPELL v THE QUEEN [2017] NZHC 64 [2 February 2017]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYCRI-2016-443-000040CRI-2016-443-000041[2017] NZHC 64BETWEEN ERICA BETH HEPPELL ANDTERRANCE PETER HEPPELLAppellantsAND THE QUEENRespondentHearing: 2 February 2017(Heard at Auckland)Appearances: M S Boyd for AppellantsS J Simpkin for RespondentJudgment: 2 February 2017JUDGMENT OF GILBERT JThis judgment is delivered by me on 2 February 2016 at 4.30 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarCounsel/Solicitors:M S Boyd, Barrister, New PlymouthC & M Legal, New PlymouthIntroduction[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. The1 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 the Judge was not satisfied that the occupational therapist had any form of medical training:[7] It is important to note that there is no evidence before the Court that [the occupational therapist] has any form of medical training, she is not aregistered nurse or a doctor. [26] I also accept [the occupational therapist's] evidence, that she was concerned about Ms Heppell's health and told the Heppells to take her to theEmergency Department, but as I said earlier, she is not a medical person, sheis not a doctor or a nurse. [28] Accordingly, although I find the facts in the fact summary that is disputed as proven, in terms of s 24(2)(a) Sentencing Act 2002, I find that those facts have very little if any weight, particularly as they pre-date considerably the condition Ms Heppell was found in as at 13 October and I am not convinced on the evidence of [the occupational therapist] that Ms Heppell required to be taken to the Emergency Department urgently on 30 May or on 6 June.[6] No medical attention was sought for Mrs Heppell Snr until Mrs Heppell called for an ambulance on 13 October 2014. When the ambulance officers arrived, they found Mrs Heppell Snr lying in her bed on top of a foam ring which had faeces on it and folded newspaper under it. They noticed that her skin was filthy and her fingernails and toenails were also filthy and unkempt. They saw what they described as a blood-liquid-type fluid oozing from wounds on both of her feet. One of thesewounds was covered with a "chux" cloth. Her eyes and eyelashes were covered in dried mucus and she had blue mould under her breasts. Her clothing was filthy and she was wearing an incontinence diaper that was full of faeces and appeared to have been left on her for a long time. They found bed sores on her bottom and a cavity on her sacrum which was weeping. There was kitty litter, cat hair and cat faeces on the floor by her bed. The smell in the room was described as horrendous and caused one ambulance officer to retch on leaving the room.[7] On admission to hospital, Mrs Heppell Snr showed extensive signs of physical neglect, including multiple pressure wounds. Her appalling condition was described by the surgical case manager of the ward to which Mrs Heppell Snr was admitted as one of the worst he had come across in his long career as a registered nurse.[8] Mrs Heppell Snr's injuries were recorded in the summary of facts as follows:Injuries included the following:A complex significant extensive stage 4 cavity pressure ulcer on her sacrum 11cm long and 7-8 cm wide, depth 3-4 cm. The wound was malodourous with slough and necrotic tissue present. The wound was consistent with characteristics of a chronic wound. After the surrounding area had been washed of faeces and dirt new areas of superficial broken skin were identified.Her left lower leg and foot had significant and complex wounds. The left heel had an extensive deep, boggy pressure ulcer with adhered skin tissue.The proximal outer aspect of the sole of the left food revealed a blister wound.The anterior aspect of her left great toe had a small circular wound.A 10cm in length by 1cm in width longitudinal wound on her posterior left mid leg.Dislocated right shoulder.Her right upper outer arm had a superficial skin abrasion which was below her dislocated shoulder.A 2cm x 1cm acute wound on the right heel.Conjunctivitis in her left eye.[9] Medical staff assessed her wounds as being at least three to four weeks old at the time of admission.[10] The day after Mrs Heppell Snr was admitted to hospital, police inspected the bedroom that she had occupied at her home. This was found to be filthy and infested with flies. The bed had two mattresses both of which had disintegrated and had a very deep hollow in the centre. The hollow on the top mattress was lined with newspaper dated between 13 August and 6 October 2014. The covering sheet was wet and smelled of urine. Mould, food crumbs and cat biscuits were found on top of the sheet in the hollow where Mrs Heppell Snr had been lying. There were piles of dirt and mould covered cat faeces up against the wall underneath the head of the bed.Approach on appeal[11] The Court must allow the appeal if it is satisfied that there is an error in the sentence imposed and that a different sentence should be imposed. Otherwise, the appeal must be dismissed.3Premeditation[12] Ms Boyd submits that the District Court appears to have sentenced Mr and Mrs Heppell on the basis that their neglect spanned four months. In making this submission, she relies on the following passages from the Judge's sentencing notes:[8] It was not until 13 October 2014, some four months later that thedefendants called an ambulance [26] there must have been premeditation of an extremely high level ofneglect, particularly over the last few weeks or even months.[32] There was an element of premeditation, there has to have beenbecause of the term during which she had these considerable injuries.[13] Ms Boyd submits that these comments are not consistent with the summary of facts that the wounds were at least three to four weeks old at the time ofadmission, nor are they consistent with the Judge's determination following thedisputed facts hearing that Mrs Heppell Snr did not need to be taken to the emergency department on 30 May or 6 June 2014. Ms Boyd contends that this was a material error which contributed to the starting point being too high.[14] I do not accept this submission. The Judge made it clear in his judgment given on 11 October 2016 following the disputed facts hearing that he attached "little if any weight" to the occupational therapist's evidence and was not satisfied thatMrs Heppell Snr needed urgent medical attention at that time. It is clear from theJudge's sentencing notes dated 28 October 2016 that he proceeded on this basis. He said:[6] That therapist, although she was not a medical person, was concerned about [Mrs Heppell Snr's] welfare and she suggested to theHeppells that they take her to a GP.3 Criminal Procedure Act 2011, s 250(2).[7] At a later stage [the therapist] 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 [Mrs Heppell Snr].[15] It was immediately following these comments that the Judge stated that "itwas not until 13 October 2014, some four months later that the defendants called anambulance". It is an undisputed fact that the ambulance was not called until13 October 2014, which was approximately four months after the occupational therapist recommended that medical attention be sought. However, the Judge did notimpose sentence on the basis that the defendants' neglect extended back toMay 2014, or that Mrs Heppell Snr needed urgent medical attention at that stage. Itis clear from reading the judgment as a whole that when the Judge said "the last few weeks or even months", he was not referring to the four-month period stretching back to May 2014.[16] The Judge did not make any error in identifying and assessing this aggravating factor. If anything, it was generous to Mr and Mrs Heppell. While theexpression "premeditation" may not have been entirely apt, the Judge was correct totake into account that this was a case involving extreme neglect over an extendedperiod. Mr and Mrs Heppell must have been well aware of Mrs Heppell Snr'scomplete helplessness and the appalling condition they chose to leave her in. This was an important factor the Judge was obliged to take into account in assessing overall culpability. This ground of appeal fails.Starting point[17] Judge Sygrove took into account Judge Down's decision in R v Quinn, a caseinvolving a daughter's failure to provide the necessaries of life to her elderlymother.4 The charge in that case was brought under the former s 151(1) of theCrimes Act, for which the maximum penalty was seven years' imprisonment. A starting point of three years' imprisonment was adopted in that case.4 R v Quinn [2014] DCR 225.[18] Ms Boyd submits that the facts in Quinn are significantly more serious than the present because, although the neglect in that case was for a shorter period, two weeks, it involved the victim becoming so severely dehydrated and undernourished that it contributed to her death some weeks later. Ms Boyd argues that the starting point adopted in the present case is inconsistent with the three-year starting point inQuinn and should not be allowed to stand.[19] Quinn was determined under the former provisions of the Crimes Act that applied prior to the significant amendments introduced by the Crimes Amendment Act (No 3) 2011. The maximum penalty under s 195 was increased at that time fromfive to ten years' imprisonment. The Law Commission Report which led to this legislative change explained the reason for this significant increase in maximum penalty:5Maximum penalty raised from 5 to 10 years. The current maximumpenalty for ill treatment and neglect under section 195 is 5 years'imprisonment. We consider that this penalty needs to be considerably higher to reflect the proper relativity between it and other offences. We propose a new maximum prison term of 10 years, since the worst class of case under section 195 will be one just short of death. Furthermore, as the examples of ill treatment and neglect cases above illustrate, the section is invoked in response to what is often extremely unpleasant and grave offending, that may well have occurred over a considerable period. The resulting consequences may well extend beyond physical injury, to long term psychological trauma, and/or developmental issues. The penalty needs to be sufficiently high to address the culpability of such cases.[20] The subsequent increase in the maximum penalty must be taken into account when drawing a comparison with Quinn. Given the serious nature and extent of the injuries caused in this case, the extended period of extreme neglect, the fact that the victim was completely helpless and vulnerable, and the gross breach of trust involved, I am not persuaded that a starting point of four years' imprisonment was outside the range of the Judge's sentencing discretion. This offending was callousand cruel and was properly met with a stern sentencing response. This ground of appeal also fails.5 Law Commission Review of Part 8 of the Crimes Act 1961: Crimes Against the Person (NZLC R111, 2009) at [5.17].Result[21] The appeal is dismissed.________________________M A Gilbert J