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 as being at medium risk of re-offending, noting particularly that his denial of any sexual arousal from the material indicated a rehabilitative need requiring further assessment and intervention. That report recommended imprisonment with release conditions relating to an appropriate rehabilitation programme.

[6]      A  third  pre-sentence  report  was  provided.     This  report  addressed  the possibility of home detention.   The address being proposed was regarded as unsuitable because, first, the number of transitory occupants made it difficult to effectively monitor those occupants or determine the suitability of the address at any given time and, secondly, the property was located close to a Plunket family centre. The recommendation was imprisonment with release conditions with alternatives of intensive supervision or community work.

[7]      A  fourth  pre-sentence  report  was  provided.    This  report  is  notable  for Mr Ellery’s  explanation  that  he  was  “not  innocent”  and  that  the  reason  for  his offending was “a learning experience … I wanted to see what it was like to go through the court system.”

[8]      I  turn  from  the  pre-sentence  reports  to  consider  the  psychological  and psychiatric reports.   Psychologist Michelle Holt provided a report dated 20 May

2014 which reported on eight counselling sessions she had provided for Mr Ellery. She noted his rather odd and pedantic way of communicating and considered, from her conversations, that Mr Ellery had not deliberately or consciously downloaded the pornography.  She queried whether he would be classified on the autistic spectrum as having Asperger’s Syndrome.

[9]      A neuro-psychological assessment was provided by psychologist Cheryl Broneck.  It was evident from this report that Mr Ellery had likely functioned at the lower  end  of  the  average  ability  range  even  before  his  accident.    The  current

assessment put him in the 21st  percentile in terms of general intellectual ability.  In terms of executive functioning (which reflects, amongst other things, reasoning and planning) Mr Ellery scored in the impaired range.

[10]     I come, finally, to the  report by consultant psychiatrist, Dr Mhairi Duff. Mr Ellery gave Dr Duff a third explanation for the offending which suggested that he had inadvertently downloaded information that included child pornography.   He denied any deviant sexual fantasies or sexual interest in children.

[11]     In  Dr  Duff ’s  opinion  Mr  Ellery’s  presentation  suggested  that  he  lay somewhere on the autism spectrum but that there was no indication of any mental illness.  He was suffering from mild neuro-cognitive disorders due to the traumatic brain injury.  In terms of future risk, Dr Duff considered that:

Mr Ellery is assessed as being at moderately high risk of continuing to access child pornography via the internet due to his lack of insight and comprehension of the damaging nature of this activity … It is recommended that he should be required to undergo a child sex offender treatment programme.  Given his additional history of head injury and his Asperger’s personality and presentation this may be difficult to achieve in a standard group programme.   An adapted programme or one-on-one individualised programme is considered most likely to be beneficial.

[12]     Dr Duff considered that, given Mr Ellery’s age and the length of time since his brain injury, it could not be assumed that the brain injury had any direct relevance to the offending, nor that it significantly increased his risk of offending, but that:

Punishment however may be less likely to be effective in this case given his head injury and his odd personality features and it is noted that Mr Ellery has not previously been offered or engaged with any remediation attempts to address these issues.

As a result of both his brain injury and his personality structure Mr Ellery would be considered to be a vulnerable person within the criminal justice system and it would appear most likely to be beneficial to addressing his risks if he were to be referred instead to a community-based sex offender programme such as offered through the organisation SAFE …

It is recommended therefore that Mr Ellery receives therapeutic intervention to address his offending.   If the Court is considering community-based sentencing then intensive supervision with conditions that he attends a community-based programme such as SAFE would be recommended.

Sentencing in the District Court

[13]     Judge   David   Sharp   began   his   sentencing   by   noting   the   volume   of objectionable files (7,870) and the nature of the material on those files, which he described as being of a “graphic and saddening nature and [involving] some acts which can only be described as sadistic”.   He took a starting point of 22 months. There is no challenge to that starting point. He indicated that no discount for good character would be given because of the length of time over which the offending must have occurred.  He then gave a 10 per cent discount for mental impairment and lack of prior convictions and a 25 per cent discount for Mr Ellery’s guilty plea but no credit for remorse because there was no indication of remorse in the material before him.

[14]     The  Judge  rejected  the  possibility  of  home  detention,  prioritising  the sentencing objectives of denunciation and deterrence.

[15]     The relevant parts of the sentencing notes record the following:

I have considered the Provision of Advice to Courts report.   That report confirms,  as your  counsel has told  me,  that no  electronically monitored address  is  available  even  if  it  were  considered  that  an  electronically monitored sentence could be imposed.

You are not recorded as showing remorse and you deny sexual arousal from the material.  Such a denial may be a barrier to rehabilitation.  You will, if you want to, address the basis for this offending.   You need to be very careful about what it is that caused it.  That may change and it may be that you can get benefit and I do not want to close off the chance that you can recover from what to me is something that is seriously debilitating for you.

There is a report in relation to your mental health.  The report refers to the head injury you had and the effect that that injury has had upon you.   It refers to a lack of insight and high risk for you to continue this offending. You have a history that relates to the traumatic brain injury; that injury being from a head injury some 13 years ago.   You do not have any psychotic illness.  The report points to difficulties for you in coping in prison given the head  injury  and  the  difficulties  that  have  arisen.    You  are  isolated  and perhaps it is these matters that had forced you into that position of isolation.

I have to take into account the fact that your particular condition will make any sentence of imprisonment more harsh than it might to someone who did not carry those characteristics.  The report writer sees the best outcome as therapeutic and for you to be in the community to be treated in a safe way. On a purely therapeutic basis this may be correct but regrettably I have other

duties in respect of sentencing and I cannot place rehabilitation as the sole or most important factor in this sentencing.

I have to really consider in detail what I can do to protect against others becoming involved which means deterrence and denunciation become important considerations.  I do give you personally credit of 10 per cent in relation to the difficulties that have arisen and to the fact that you have no prior convictions.  I take into account in other respects of your life you are maintaining good relations.  Your neighbours have written reports on your behalf and your counsellor says the possibility for you to rehabilitate and speaks in a way that is positive about you.

Those are the reasons that I give you credit for your personal characteristics

… I cannot give you credit for remorse because it does not appear in the

material before me …

As I told your counsel, in this case, even had there been an electronically monitored sentence available, in my view the principles of deterrence, denunciation and the absence of remorse all point to the fact that this is a sentence that in my view must be served.

The discount for mental impairment

[16]     The fact that an offender has, or had at the time the offence was committed, diminished intellectual capacity or understanding is a mitigating factor to be taken into account on sentencing.3    Care is required in considering whether and to what extent a discount should be given in recognition of this factor.  In E (CA689/10) v R the Court of Appeal said:4

[68]      A  mental  disorder  falling  short  of  exculpating  insanity  may  be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons.  The moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend.

[69]     All relevant considerations must, however, be taken into account in the sentencing process.  Mental illness or mental impairment may affect the risk of a repetition of offending.  This in turn may direct attention to issues of personal deterrence or public protection.

[17]     The  Court  went  on  to  refer  to  the  ways  identified  in  R  v  Verdins5   that impaired  mental  functioning,  whether  temporary  or  permanent,  is  relevant  to

sentencing:

3      Sentencing Act 2002, s 9(2)(e).

4      E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411.

5      R v Verdins, Buckley & Vo [2007] VSCA 102, (2007) 16 VR 269 at [32].

(a)       The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility.  Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

(b)       The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

(c)       Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

(d)       Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

(e)      The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

(f)       Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

[18]     In  the  present  case  there  was  no  basis  on  which  the  Judge  could  have concluded that Mr Ellery’s previous brain injury, relatively low-level cognitive functioning or possible Asperger’s Syndrome had any causative link to the offending itself.   I therefore look at cases in which the mental impairment of the defendant justified a discount on the basis that prison would be harder on the particular defendant than would usually be the case.

[19]     In R v M the defendant appealed a lengthy term of imprisonment with an MPI of 10  years.6      He was  described  as  being  “of  a very low,  borderline  deficient, intelligence” but not meeting the criteria for intellectual disability.  He was identified as being extremely vulnerable in a prison environment.   Although the sentencing Judge did not accept that there was a nexus between M’s low intellectual functioning

and the offending, meaning that a discount under s 9(2)(e) was not appropriate; he

6      R v M [2008] NZCA 148.

nevertheless accepted that prison might weigh more heavily on M than others and allowed a discount of two years in recognition of this factor under s 8(h).   That amounted to a discount of 12 per cent for this factor.  The Court of Appeal upheld that decision, commenting that:7

A substantial problem in this case with respect to the appellant’s intellectual deficits is what has been described in Finau and subsequent cases, as a “two- edged sword”.  Public protection is a great concern when a person has innate anti-social personality traits as opposed to a treatable mental illness.

[20]     In  Blackwood  v R  the  defendant  had  sustained  head  injuries  in  a  motor vehicle accident some years prior to the sexual offending for which he had been imprisoned for six years.8    B had ongoing acquired cognitive deficits including a poor ability to self-monitor and self-correct his behaviour.   Experts agreed that B needed further specialist brain injury rehabilitation to help deal with the cognitive, behavioural and functional difficulties.   The sentencing Judge was not able to determine what role the head injury had played in the offending but accepted that the injury was relevant because it would mean that prison would be harder on B than others  and  allowed  a  25  per  cent  discount  for  age,  remorse,  lack  of  previous

convictions and the mental impairment.  However, the Court of Appeal considered this discount to be too low.  It considered that, as well as making prison harder on B, the head injury did play some role in the offending so that the total discount (apart from the guilty plea) should have been in the vicinity of 40 per cent.

[21]     Looking  at  all  of  the  available  reports  and  placing  particular  weight  on Dr Duff ’s report, which is directed specifically towards this issue, there is no basis on which to conclude that Mr Ellery’s mental impairment had any causative link with the offending.  It is true that Ms Holt, and to some extent Ms Broneck, suggest that he may not have fully understood the seriousness of the charges.  On the other hand, he clearly went to some trouble to hide the material on his computer.  Further, the lack of insight into his offending is an example of the “two-edged sword” to which the Court of Appeal referred.   Lack of insight may be indicative of mental

impairment but it is also a risk in itself.

7 At [32].

8      Blackwood v R (2011) NZCA 143.

[22]     Nevertheless, the reports, including Dr Duff’s report, do paint a picture of Mr Ellery as being a somewhat vulnerable person in a prison setting.  He clearly has a very odd presentation and most likely lacks the ability to recognise social cues.  A discount higher than 10 per cent was called for.  It is unclear exactly what discount was given because the Judge referred to the 10 per cent credit being allowed in respect of both mental impairment and lack of prior convictions so that the discount for mental impairment must have been less than 10 per cent.  But even 10 per cent does not adequately recognise the twin challenges of mental impairment and personality disorder.   I consider that a 20 per cent discount would have been appropriate  together  with  a  five  per  cent  discount  for  the  lack  of  previous convictions.

[23]     Together with the 25 per cent discount for Mr Ellery’s guilty plea, this would bring the end sentence to 12 months rather than 14 months.   A relatively small difference such as this would not usually warrant interfering with a sentence.  In this case, however, I am satisfied that Mr Ellery’s circumstances justify that course.

Judge’s treatment of remorse and refusal to consider home detention

[24]     Mr  Kidd  submitted  that  the  sentencing  Judge  had  attached  too  much significance to Mr Ellery’s lack of remorse, treating it as a factor in the decision to imprison.

[25]     At [12] the Judge said that:

In this case, even had there been an electronically monitored sentence available, in my view the principles of deterrence, denunciation and the absence of remorse all point to the fact that this is a sentence that in my view must be served.

[26]     I agree with Mr Kidd that the absence of remorse is not a matter to be taken into account in determining whether prison is the appropriate sentence.  Remorse, if it exists, is to be treated as a mitigating factor, not an aggravating factor.   I think, therefore, that the Judge did make an error by taking this aspect into account in determining the type of sentence to be imposed.

[27]     Mr  Kidd   argued  that   Mr  Ellery’s   lack  of   previous   convictions,   his vulnerability as a result of mental impairment, the fact that he has not received any targeted treatment for his offending and that none would be available in prison9 made imprisonment inappropriate and home detention (assuming a suitable address could be found) more appropriate.   Although home detention in relation to child pornography offences  can  be  problematic  in  terms  of  controlling  the offender’s internet access, there have been cases in which home detention has been granted to such offenders.10

[28]     Dr Duff ’s report makes a compelling case for home detention because, not only does it highlight Mr Ellery’s vulnerabilities in a prison setting, it points out that punishment in the form of imprisonment is less likely to be effective and that the better prospect of rehabilitation would be a community-based sex offender treatment programme.

[29]     Taking all of the information into account I conclude that the Judge did make an error in his refusal to consider home detention as an appropriate alternative to imprisonment.

[30]     Mr Kidd submitted that the Judge was wrong to view the proposed home detention address at 8a Woodford Ave, Henderson as unsuitable because there were Plunket rooms nearby.  However, there appears to be some confusion because that address near the Plunket rooms was not the proposed address at the time of sentencing.  It had been mentioned in a previous pre-sentence report but at the time of sentencing the proposed address was the one discussed in the fourth pre-sentence report, a caravan park in Whangarei.  The Judge could not be criticised for viewing that address as unsuitable.

[31]     Mr Kidd submitted that the Woodford Ave address, which is a half-way house, was currently available, that Mr Ellery had the support of the manager and that it was not unsuitable merely by reason of its proximity to the Plunket rooms.

However, the assessment of that address by the Department of Corrections was that

9      Mr Kidd advised this from the bar.

10     e.g. Kent v Department of Internal Affairs HC Christchurch CRI-2009-409-139, 17 September

2009.

it was inherently unsuitable because it housed several occupants, some of whom were transient so that there was no means of knowing who the occupants would be at any given time and no sensible means of monitoring a condition regarding internet access. That address is unsuitable.

[32]     Because there is presently no suitable address I cannot quash the sentence and impose a sentence of home detention.  However, I can grant leave under s 80I of the Sentencing Act 2002 to allow Mr Ellery to make an application in the event that a suitable address becomes available.

Result

[33]     The appeal is allowed with the result that:

(a)       The sentence of 14 months’ imprisonment is quashed and substituted with a sentence of 12 months’ imprisonment;

(b)Leave  is  granted  to  Mr  Ellery  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.

P Courtney J