Citation: Regina v Heptonstall [1999] NSWCCA 54 revised - 25/03/99
Court: NSW Court of Criminal Appeal
Date: 10 March 1999
Judges: Simpson J; Smart AJ
Background
The appellant had pleaded guilty in the District Court to eleven counts arising from sexual offending against four girls aged between ten and fourteen years. The offending included seven counts of indecent assault on a child under sixteen and four counts of sexual intercourse without consent with a child under sixteen. The offences were committed between 1981 and 1986 at the appellant's flat at Harbord, where he had cultivated trust with the families of the victims.
The appellant had been committed for sentence in April 1987 but failed to appear for his sentencing hearing in March 1988. He was apprehended in Queensland in December 1997, extradited to New South Wales, and ultimately sentenced in the District Court. He sought leave to appeal against the severity of the sentences imposed, which produced total minimum terms of eight years and an additional term of one year and eight months.
Legal Issues
- Whether the total sentences imposed fell within the sound exercise of the sentencing discretion
- Whether special circumstances existed justifying a departure from the standard three-to-one ratio of minimum to additional term under the Sentencing Act
- Whether the additional term was adequate given the appellant's need for supervision, counselling, and support upon release
Decision
The Court of Criminal Appeal accepted that the individual groupings of sentences were not themselves excessive. However, the total sentence structure, viewed as a whole, did not reflect a sound exercise of the sentencing discretion given the multiplicity and seriousness of the offences.
The Court identified special circumstances, including the aggregation of sentences producing a lengthy total custodial period, the fact that this was the appellant's first time in gaol, and the significant need for post-release supervision and counselling identified by the consulting psychologist. The psychological report noted that the appellant's personality and ongoing deficits in insight, combined with the likelihood of loneliness upon release, created a genuine risk that warranted extended supervisory arrangements in the community's interests as much as the appellant's.
Despite finding special circumstances, the Court concluded that the standard three-to-one ratio of minimum to additional term should nonetheless apply here. The original additional term of twenty months was found to be inadequate given the depth of the appellant's identified problems. Applying the standard ratio produced a minimum term of seven years and three months with an additional term of two years and five months, which the Court regarded as appropriate.
The sentences on counts 1, 6, 7, 8, and 9 (indecent assault) were confirmed as concurrent fixed terms of three years. The sentences on counts 10 and 11 were confirmed as concurrent with each other but cumulative on the first group. The sentences on counts 2, 3, 4, and 5 were restructured, with a minimum term of four years and three months commencing 15 December 2000 and an additional term of two years and five months.
Orders Made
- Leave to appeal granted
- Concurrent fixed term sentences of three years on each of counts 1, 6, 7, 8, and 9 confirmed
- Fixed term sentences of three years on each of counts 10 and 11 confirmed; those sentences to run concurrent with each other but cumulative on counts 1, 6, 7, 8, and 9
- Appeals against sentences on counts 1, 6, 7, 8, 9, 10, and 11 dismissed
- Sentences on counts 2, 3, 4, and 5 varied: minimum term of penal servitude of four years and three months on each count commencing 15 December 2000 and ending 15 March 2005, with an additional term of two years and five months commencing 16 March 2005 and expiring 13 August 2007
- Applicant eligible for release on parole on 16 March 2005
Key Takeaways
- The Court of Criminal Appeal confirmed that individual sentences forming part of a larger series may each be within range, yet the total sentencing structure can still fall outside the sound exercise of the sentencing discretion when viewed in aggregate.
- Special circumstances capable of justifying a departure from the standard three-to-one minimum-to-additional term ratio included the cumulative effect of aggregated sentences, first-time imprisonment, and a well-evidenced need for extended post-release supervision and counselling.
- Despite finding special circumstances, the Court declined to extend the additional term beyond what the standard ratio produced, holding instead that the standard ratio itself generated an additional term long enough to serve the identified supervisory needs.
- A consulting psychologist's assessment of personality deficits, incomplete insight, and ongoing risk factors was treated as directly relevant both to the sentencing discretion and to the length of the additional term, reflecting the community interest in adequate post-release oversight.
- Fleeing the jurisdiction for approximately ten years between committal and sentence did not prevent the Court from identifying and acting upon mitigating factors, but those factors were weighed against the multiplicity and gravity of the offending.
Legislation and Cases Referenced
Legislation:
- Section 61D(1) of the Crimes Act (now repealed)
- Section 61E(1) of the Crimes Act (now repealed)
- Section 5 of the Sentencing Act
Cases: No cases were cited in the provided text.