R v Ellis
[1998] VSCA 132
•1 December 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted No. 149 of 1998 No. 150 of 1998
THE QUEEN
v
WILLIAM JAMES ELLIS AND
MICHAEL IVOR ELLIS
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JUDGES: TADGELL, BATT and BUCHANAN, JJ.A. WHERE HELD: MELBOURNE DATE OF HEARING: 1 December 1998 DATE OF JUDGMENT: 1 December 1998 MEDIA NEUTRAL CITATION: [1998] VSCA 132 ---
CRIMINAL LAW - Aggravated burglary - Intentionally causing injury - Attack by four men in victim's home - Different roles of offenders in the attack - Parity - No manifest excess.
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APPEARANCES: Counsel Solicitors For the Crown Mr R.M. Read P.C. Wood, Solicitor
for Public ProsecutionsFor the Applicant Mr B. McCormick McCormicks Solicitors (solicitor) TADGELL, J.A.:
I will invite Buchanan, J.A. to deliver the first judgment.
BUCHANAN, J.A.:
On 3 June 1998 the applicants and a co-accused pleaded guilty in the County Court at Ballarat to charges of aggravated burglary and intentionally causing injury. The maximum penalties for the offences were respectively 25 years and 10 years. On 5 June 1998 Michael Ellis was sentenced to two years and six months' imprisonment on the charge of aggravated burglary and to 18 months' imprisonment on the charge of intentionally causing injury. The sentences were to be served concurrently. A minimum term of 14 months was set. William Ellis received a sentence of one year and nine months' imprisonment for aggravated burglary and 18 months' imprisonment for intentionally causing injury. Again the sentences were concurrent. The sentencing judge fixed a period of 10 months before the applicant was to be eligible for parole.
The offences arose from an invasion by the applicants and two supporters of a flat in Ballarat occupied by Thomas Torpy and his brother Sebastian. Thomas Torpy knew Michael Ellis's wife. Michael Ellis had been married for some three years. On 3 February 1998 Michael Ellis came home after work and was told that Torpy had been seen kissing Michael Ellis's wife. Michael Ellis was angry. He decided to see Torpy and warn him to stay away from his wife. He recruited his brother and two of his friends. The gang was armed with a length of wood and an iron bar. Late that night they knocked on the door of Torpy's flat, barged into the flat and confronted Torpy. Michael Ellis accused Torpy of playing around with his wife. Torpy was struck on the side of the head with the iron bar. As he was falling forward he was also struck on the back and around the head. His injuries consisted of bruises to the head, shoulders, arms and back. It is not clear who struck the blows. Torpy and his brother were not sure. In their records of interview the applicants said Michael took the iron bar to the flat and William used it. At the making of the plea it was common ground that it was a joint enterprise and the applicants were to be treated as acting in concert.
The applicants have the same mother but different fathers. Michael Ellis is 43 years of age; William Ellis is 35 years old. Michael Ellis's father died when he was four and he was brought up by his mother and William Ellis's father. The applicants were born in England and came to Australia in 1971. Both applicants left school at an early age and have had a variety of jobs in various parts of Australia, working in timber mills, factories and on prawn trawlers. William Ellis is an alcoholic whose health has been affected by drink so as to prevent him from working since 1986.
Both applicants have a long list of prior convictions, or at least a number of prior convictions were alleged. It is not altogether clear from the application papers which prior convictions were admitted by the applicants. Oddly, they have taken it in turns to break the law. Michael Ellis was alleged to have some 20 prior convictions from 13 court appearances between 1973 and 17 September 1982, including convictions for breaking, entering and stealing and unlawful wounding. His last conviction was as a co-accused with his brother, and that was the first of the convictions recorded against William Ellis. William Ellis has other convictions alleged against him, including breaking and entering with intent to steal and a large number of offences of dishonesty.
The grounds upon which the applicants seek to appeal against their sentences are the same in each case. They are that the sentences were manifestly excessive, lacked parity with those of their co-accused and did not give sufficient weight to the roles of the applicants.
The two assailants apart from the applicants were Andre Redshaw and Michael Paget. Paget has absconded and is yet to be tried. Redshaw pleaded guilty at the same time as the applicants and was released upon a community-based order for twelve months upon condition that he submit to drug and alcohol testing and perform 170 hours of unpaid community work.
In my opinion the sentences did not offend the principle of parity and accorded proper weight to the role of each of the applicants in the crimes. Redshaw was aged 20 years at the time of the offences. He was recruited by the applicants and played a lesser role. Michael Ellis was the oldest offender. The enterprise was his idea and he was described by the victim Torpy as the ringleader. In my view William Ellis can be accurately described as his brother's second-in-command. I consider that the sentences imposed upon them accurately reflect their roles in the commission of the offences.
The attack upon Torpy was premeditated and carried out with overwhelming force. It was not a fair fight but a cowardly attack upon a defenceless man who, late at night, was confronted by armed invaders in his home.
In his careful and helpful submissions on behalf of Michael Ellis, Mr McCormick said that his last prior conviction was recorded in 1982 and his only conviction for an offence of violence was in 1975, when he was 20 years old. The learned sentencing judge recognised that fact. In my view it did not render the sentence imposed upon the applicant inappropriate or take it outside the range open to the sentencing judge.
Having regard to the circumstances of the crimes and the history of the applicants, I am of the opinion that immediate custodial sentences were warranted and that the length of the sentences, and in particular the minimum sentences, were not manifestly excessive.
I would dismiss the applications.
TADGELL, J.A.:
I agree.
BATT, J.A.:
I also agree.
TADGELL, J.A.:
Each of the applications is dismissed.
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