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Ellis v R

Ellis v R

Case [2012] NZCA 513 6 November 2012

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA467/2012
[2012] NZCA 513

BETWEEN JAMIE AARON ELLIS
Appellant

AND THE QUEEN
Respondent

Hearing: 1 November 2012

Court: Harrison, Chisholm and Ronald Young JJ

Counsel: N P Chisnall for Appellant
M J Lillico for Respondent

Judgment: 6 November 2012 at 2.30 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

On 1 February 2011 there was a burglary of a property in Grey Lynn. Approximately $5,000 worth of property was stolen. A few hours after the burglary Mr Ellis was found with the property stolen in the burglary. Subsequently Mr Ellis pleaded guilty to receiving. He was sentenced in the District Court by Judge David Harvey to two years and one month imprisonment.[1] Mr Ellis says the sentence was manifestly excessive. He makes application for an extension of time for the filing of his notice of appeal.
[1] R v Ellis DC Auckland CRI-2011-004-8612, 11 May 2012.
Mr Ellis was sentenced on 11 May 2012 but did not file his appeal until 29 June 2012. The Crown does not oppose the application for an extension of time. We grant the application given the delay is modest and there is no prejudice to the Crown.

District Court Sentencing

The Judge in the District Court said it was an aggravating feature that the receiving was close in time to the burglary. He considered that there were two potential inferences from that connection in time. Either the burglar knew that Mr Ellis was amenable to receiving stolen property and so the property was given to Mr Ellis quickly after the burglary or that Mr Ellis was waiting as receiver and could even have arranged for the burglary to take place. The Judge said that the value of the property was significant and there were sentimental items taken in the burglary.
The Judge considered the proper starting point for the offending was 18 months’ imprisonment. He then took into account Mr Ellis’s extensive list of previous convictions for dishonesty. He uplifted the start sentence by 12 months to give a sentence of two and a half years’ imprisonment. He gave a discount of 15 per cent for Mr Ellis’s guilty plea reducing the sentence to two years and one month’ imprisonment.
The Judge said, but did not increase this sentence for this reason, that Mr Ellis had been on parole from prison when he committed this offending. He noted that, however, Mr Ellis had been recalled to serve the remaining portion of his sentence for this previous offending.

Appeal

Mr Ellis reduced the four grounds of appeal in his notice of appeal to two grounds in submissions filed before this hearing. They were:
(a) that the starting point was too high taking account of the gravity of the offending; and
(b) there was too great an uplift for the two…

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 Ellis v R

Details

AGLC: Ellis v R [2012] NZCA 513
Case: [2012] NZCA 513
Decision Date: 6 November 2012

CaseChat Overview and Summary

In the case of Ellis v R, the appellant, Jamie Aaron Ellis, appealed against his sentence for receiving stolen goods. The Crown did not oppose the application for an extension of time for filing the notice of appeal, which was granted. The appeal against the sentence was dismissed. The court found that the sentence of two years and one month imprisonment was within the range available to the Judge and was not manifestly excessive.

The legal issues in the case centred around the appropriateness of the starting point and the uplift for the aggravating features of the case. The appellant argued that the starting point of 18 months' imprisonment was too high and that the 12-month uplift for previous convictions and the fact that he offended while on parole was excessive. The court considered the arguments and found that the starting point was appropriate, given the proximity between the burglary and the receiving, the value of the property taken, and the appellant's previous convictions for dishonesty. The court also found that the 12-month uplift for the aggravating features was within the range available to the Judge.

The Court of Appeal held that the District Court Judge was entitled to take into account the proximity between the burglary and the receiving, as well as the appellant's previous convictions for dishonesty. The court also found that the fact that the appellant offended while on parole for serious property offences was a serious aggravating feature, which justified an uplift. The court concluded that the final sentence of two years and one month imprisonment was within the range available to the Judge and was not manifestly excessive.

The final orders of the court were that the application for an extension of time to appeal was granted, and the appeal against sentence was dismissed. The appellant's sentence of two years and one month imprisonment was upheld.

Orders