New South Wales Court of Criminal Appeal CITATION : Regina v Heptonstall [1999] NSWCCA 54 revised - 25/03/99 FILE NUMBER(S) : CCA 60336/98 HEARING DATE(S) : 10 March; 1999 JUDGMENT DATE : 10 March 1999 PARTIES : REGINA v Murray HEPTONSTALL JUDGMENT OF : Simpson J; Smart AJ LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Downs DCJ COUNSEL : R Burgess for the Appellant L M B Lamprati for the Crown SOLICITORS : T A Murphy for the Appellant S E O'Connor for the Crown CATCHWORDS : Severity of Sentences. Indecent assault. Sexual intercourse; without consent with a child. s61D(1) of the Crimes Act (now repealed) ACTS CITED : S61E(1) of the Crimes Act (now repealed) s5 of the Sentencing Act. DECISION : Leave to appeal granted. Confirm the concurrent fixed term sentence of 3 years on each of counts 1,6,7,8 and 9 and the fixed term sentence of 3 years on each of counts 10 and 11. The sentences on counts 10 and 11 are to be concurrent but cumulative on the sentences on counts 1,6,7,8 and 9. Appeals against the sentences on counts 1,6,7,8,9,10 and 11 (indecent assault on a child under 16) dismissed. In lieu of the sentences imposed on counts 2,3,4 and 5 (sexual intercourse without consent with a child under 16) the applicant is sentenced to a minimum term of penal servitude on each count of 4 years and 3 months commencing 15 December 2000 and ending 15 March 2005 with an additional term of 2 years and 5 months commencing 16 March 2005 and expiring 13 August 2007. The applicant is eligible for release on parole on 16 March 2005. IN THE COURT OF CRIMINAL APPEAL 60336/98 SIMPSON J SMART AJ Wednesday, 10 March, 1999 REGINA v Murray HEPTONSTALL - 10 - JUDGMENT 1 SIMPSON J I agree. The orders will be as proposed by Smart AJ. 2 SMART AJ John Murray Heptonstall seeks leave to appeal against the severity of a series of sentences which resulted in total minimum terms of eight years and an additional term of one year eight months. The sentences were imposed in respect of seven counts of indecent assault upon a child under sixteen years and four counts of sexual intercourse without consent with a child under sixteen. These four counts involved the one child and occurred in the period August 1985 to January 1986. 3 The sentencing judge has summarised the facts relating to each charge. It is unnecessary to set out all the sordid details. The offences were committed against four different girls when they were aged between ten and fourteen years. Some of the offences were committed between 1981 and 1983, with the remainder being committed in 1985 and 1986. 4 The offences took place in the applicant's flat at Harbord. He was a bachelor and lived alone. He knew the families of at least three of the girls and was trusted by the parents of all the girls. He was able to offer the children a day or weekend or a week by the sea. At least some of the girls' parents had stayed at the one-bedroom flat. There was a convertible bed in the living room. 5 The applicant took the girls on interesting outings and gave them nice presents. He was generous to them. The indecent assaults took the form of him touching the girls on the vagina and in that area. He was keen on showering with the girls and soaping them and powdering them. He had them touch his penis and powder it. On occasions he gave the girls tablets which caused them to fall asleep. When they awoke they found themselves lying beside him with their pants lowered. He hired lewd videos and had the girls watch them with him. The applicant told Insp Thomas that he could not help himself. 6 Although there was some penile vaginal penetration that was minor as was the digital penetration. None of the girls was physically harmed. Only one of the girls was prepared to, and did, submit a victim's impact statement. That girl was apprehensive about meeting the applicant again and was experiencing some discomfort with her sex life with her present partner. It could not be suggested that the girls were not affected by the applicant's conduct. 7 In 1986, after about a week's holiday with the applicant, one of the girls complained to her mother about the applicant's conduct. Statements were taken from each of the girls. 8 On 20 May 1986 the prisoner was arrested. At that time he admitted to police that he showered with the girls, touched them on the vagina and caused them to touch his penis. 9 On occasions, the applicant took photographs of the girls and some of these have been relied upon to support some of the charges. He assisted the police by marking photographs taken from his unit and agreed that bodies or parts of bodies depicted belonged either to the victims or himself. The photos are distasteful. He also kept notebooks recording a number of offences. The notebooks reveal the applicant's planning and calculation, although this is not uncommon. The notebooks also show a continuation of his aberrant conduct in 1984. 10 On 10 April 1987 the applicant was committed for sentence. In March 1988 he failed to appear as required in the District Court for his sentence hearing. He was apprehended in Queensland in December 1997 and extradited to New South Wales. Pleas of guilty were entered in respect of all matters. 11 The applicant was born on 3 May 1944. He had no prior convictions. His father was absent in the army in India during much of his childhood and was a stern but not cruel disciplinarian. His mother was over-protective. The family migrated from England to New Zealand when the applicant was about seventeen and he came to Australia when he was about twenty-one. He has been a hard worker all his life. Eventually, he gravitated to the construction industry and became a supervisor. He undertook a number of courses so he could act in a wide variety of capacities. He was rightly proud of his achievements. 12 He was less successful on the personal front. His first marriage lasted but a few years. He had a number of relationships during the 1970s and from 1986 onwards. After he went to Queensland in 1988 he purchased a business. About 1990 he became involved with a lady, whom he employed, and her children. After a period they lived together. The applicant and this lady had a daughter who has meant much to the applicant. When this lady and the applicant married the marriage lasted about six months. In all, however, they had had a relationship of about seven years. 13 The comprehensive report of Ms J Devlin, consultant psychologist, records that the applicant expressed remorse and shame and his parents have also stated this. He explained to Ms Devlin that he had difficulty in forming relationships with adults and that the offences occurred when he was feeling lonely. His shame had deepened since the birth of his daughter and he now better understood the trauma experienced by a child who had been sexually assaulted. 14 Ms Devlin records that the applicant felt anxious and threatened, being aware of his high risk status within the prison setting. Ms Devlin administered a series of tests and concluded that they: "...suggested an overall personality given to feelings of persecution and grandiosity and indicated a high level of borderline personality traits, particularly pertaining to capacity to form and maintain relationships". 15 Her concluding remarks included: "...John demonstrates some tendency to minimise his responsibility and to search for some justification for same (eg high libido; failure of a relationship; loneliness). However, while the tendency to attribute unwanted behaviour to such factors is consistent with John's basic personality and they may, indeed, have played some contributory role in initiating and maintaining the sexual offending, reliance on same also indicates incomplete insight into the nature of the behaviour. At face value the absence of previous or subsequent activity of this nature suggests a good prognosis with respect to counselling, but the deficits in insight and distorted perceptions reflected in some of his comments highlight the need to consolidate his personal control, particularly when he is faced with what appear to be the triggering factors of loneliness, poor self- worth etc. Counselling which serves to enhance coping skills under stress would be helpful in this regard, but also needs to focus on identifying trigger factors and on relapse prevention." 16 These comments point to the need for extensive counselling in prison and counselling, supervision and support upon release. Given the nature of the applicant's problems and his personality and the loneliness that he will probably feel upon his release he will need extensive support, counselling and supervision for a considerable period, as he adjusts to life outside prison on his release. Such support, counselling and supervision will not only be in his interests but in the interests of the community. 17 As Ms Devlin points out, there is some room for hope, that with the support, et cetera, mentioned, relapse prevention will be able to be achieved. He has had normal periods in the past despite his difficulties in relationships with adults. This applies particularly to the period from 1988 to 1997. 18 Complaint was made that while the judge acknowledged that the applicant may well spend long periods in protective custody he made no allowance for this fact in his sentences. I would not be prepared to draw the conclusion suggested. 19 In her written submissions the applicant's counsel took the various sentences and endeavoured to show that each was at the top of the range or above the top of the range of sentences for the offences in question. 20 The correct approach with multiple offences is to assess the total criminality. The sentence imposed on each count should also be correct in the context. There were four counts of sexual assault without consent of a child under sixteen and eleven counts of indecent assault involving three girls under sixteen. There were serious breaches of trust. These were not isolated incidents. The offences took place over a total period of five years. 21 The judge imposed concurrent fixed terms of three years on counts 1, 6, 7, 8 and 9, which dealt with the indecent assaults on two of the girls in the period 1981 to 1983 and concurrent cumulative fixed terms of three years on counts 10 and 11, which dealt with one indecent assault on each of two girls in 1985 and an additional term of twenty months. He imposed concurrent minimum terms of five years on counts 2, 3, 4 and 5, which dealt with sexual intercourse without consent of a child under sixteen involving one girl in 1985/1986 and an additional term of twenty months. The sentences on counts 10 and 11 and 2, 3, 4 and 5 were to be served concurrently. The sentences imposed in respect of each of the three groups of offences were not excessive. 22 The total sentences do not fall within the range of a sound exercise of the sentencing discretion. I have indicated earlier why the matters were so serious and there was a multiplicity of them. 23 However, there were special circumstances. These included the aggregation of the sentences resulting in total sentences of nine years eight months, a minimum term of eight years and an additional term of twenty months. This meant that the normal relationship of 3 to 1 did not apply. Secondly, this was the first time the applicant has been in gaol. Thirdly, there is, as earlier mentioned, a need for extensive supervision, counselling and support of the applicant upon his release from prison. 24 Given the deep-seated nature of the applicant's problems, a period of twenty months is inadequate. 25 While there are special circumstances, this is a case in which the normal ratio of 3 to 1 should apply and as a result of that there would be a minimum term of seven years three months and an additional term of two years five months. That additional term should be long enough. 26 Leave to appeal should be granted. I would confirm the concurrent fixed term sentence of three years on each of counts 1, 6, 7, 8 and 9 and the fixed term sentence of three years on each of counts 10 and 11 sentences. The sentences on counts 10 and 11 are to be concurrent but cumulative on the sentences on counts 1,6,7,8 and 9. The appeals against the sentences on counts 1,6,7,8,9,10 and 11 (indecent assault on a child under 16) should be dismissed. 27 In lieu of the sentences imposed on counts 2, 3, 4 and 5 (sexual intercourse without consent with a child under 16) the applicant should be sentenced to a minimum term of penal servitude on each count of four years and three months commencing on 15 December 2000 and ending on 15 March 2005 with an additional term of two years and five months commencing on 16 March 2005 and expiring on 13 August 2007. 28 The applicant is eligible for release on parole on 16 March, 2005. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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