Ellery v Police - [2015] NZHC 480

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000443 [2015] NZHC 480

BETWEEN
KEITH ELLERY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 9 March 2015

Appearances:

M J Kidd for Appellant
R Gibson for Respondent

Judgment:

13 March 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 13 March 2015 at 4.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

ELLERY v NZ POLICE [2015] NZHC 480 [13 March 2015]

Introduction

[1] In January 2013 one of Keith Ellery’s flatmates contacted the Police with the assertion that Mr Ellery was in possession of child pornography. A search warrant was executed and child pornographic images and videos were located on CD-rom disks and on the hard-drive of Mr Ellery’s personal computer. These images, numbering in their thousands, included depictions of graphic sexual acts with toddlers and babies. Mr Ellery admitted to searching for and downloading the material. He told the Police that he had done so because he was bored and wanted to see how long it would take the Police to catch him. He anticipated going to trial; he said that he would find it interesting to see what a trial was like.

[2] On 3 March 2014 Mr Ellery pleaded guilty to 13 charges of possessing objectionable material knowing it to be objectionable.1 He was sentenced to 14 months’ imprisonment with post-release conditions for six months.2 Mr Ellery appeals the sentence on the ground that it is manifestly excessive as a result of the Judge’s failure to properly recognise the effects of his significant mental impairment, low intellectual functioning and probable Asperger’s Syndrome. He also says that
the Judge failed to properly consider the possibility of home detention.

Mr Ellery’s mental impairment

[3] Several reports were obtained for the purposes of sentencing. There were four pre-sentence reports, reports from two psychologists and one from a consultant psychiatrist. The overall effect of the reports was that Mr Ellery is not suffering from any mental illness. However, his cognitive functioning is low, possibly affected by a brain injury several years ago. In addition, there is a real possibility that Mr Ellery sits somewhere on the autism spectrum, though no firm diagnosis has been made.

[4] The first pre-sentence report is notable for recording an explanation given by

Mr Ellery that is different to that contained in the summary of facts:

1 Films Videos and Publications Classification Act 1993, s 131A(1).
2 Police v Ellery DC Waitakere CRI-2013-090-5689, 27 November 2014.

He stated that he did not intentionally download material and reported that the files were downloaded with other legitimate files. However, he stated that he watched some of the material and stated that he felt annoyed and irritated that these files were affecting his download capacity. He reported that he did not delete them but decided to hide the files in his computer so that other people would not find them.

[5] The second pre-sentence report assessed Mr Ellery…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ellery v Police

Details

AGLC: Ellery v Police [2015] NZHC 480
Case: [2015] NZHC 480
Decision Date: 13 March 2015

CaseChat Overview and Summary

The High Court of New Zealand was called upon to review the sentence of Keith Ellery, who was convicted of possessing objectionable material knowing it to be objectionable. Ellery had downloaded thousands of child pornographic images and videos, and admitted to doing so out of boredom and a desire to experience a trial. He was sentenced to 14 months imprisonment with post-release conditions for six months. Ellery appealed the sentence, arguing that it was manifestly excessive due to the sentencing judge's failure to properly recognise the effects of his significant mental impairment, low intellectual functioning, and probable Asperger's Syndrome. He also claimed that the judge failed to properly consider the possibility of home detention.

The court examined the various reports obtained for sentencing, which indicated that Ellery's cognitive functioning was low, possibly affected by a brain injury. There was also a possibility that Ellery sits somewhere on the autism spectrum, though no firm diagnosis had been made. The sentencing judge had allowed a 10% discount for mental impairment and lack of prior convictions, but the court found that a higher discount was warranted, considering the available reports. The court concluded that a 20% discount for mental impairment and a five per cent discount for lack of previous convictions would have been appropriate, along with the 25% discount for Ellery's guilty plea. This would have resulted in a sentence of 12 months rather than 14 months.

Furthermore, the court found that the sentencing judge had erred by attaching too much significance to Ellery's lack of remorse in determining whether imprisonment was the appropriate sentence. The court also concluded that the judge had made an error in refusing to consider home detention as an appropriate alternative to imprisonment. While the court could not quash the sentence and impose a sentence of home detention due to the lack of a suitable address, it granted leave under s 80I of the Sentencing Act 2002 to allow Ellery to apply for a substitution of the sentence of imprisonment if a suitable address becomes available.

In conclusion, the appeal was allowed with the result that the sentence of 14 months' imprisonment was quashed and substituted with a sentence of 12 months' imprisonment. Ellery was granted leave to apply to the District Court for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if he finds a suitable address.

Orders