Ellis v R
[2012] NZCA 513
•6 November 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA467/2012 [2012] NZCA 513 |
| BETWEEN JAMIE AARON ELLIS |
| AND THE QUEEN |
| Hearing: 1 November 2012 |
| Court: Harrison, Chisholm and Ronald Young JJ |
| Counsel: N P Chisnall for Appellant |
| 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.
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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 aggravating features, Mr Ellis’ previous convictions and the fact that he was subject to a sentence when he committed the offence.
In support of these submissions, Mr Chisnall submitted that the Judge had no evidence that Mr Ellis must either have known about the burglary beforehand or in some way arranged for the burglar to steal on demand. He submitted by reference to authorities in this Court and the High Court that the correct starting point for such a receiving was between eight and 12 months’ imprisonment. That took into account the value and nature of the items taken as well as the proximity between the burglary and the receiving.
Further, Mr Chisnall submits that the uplift of 12 months for Mr Ellis’s previous convictions and the fact that he offended while subject to a sentence, was excessive.
Discussion
We are satisfied that the 18 month starting sentence was within the range available to the Judge although stern. The Judge was entitled to take into account that Mr Ellis had come into possession of the stolen goods very shortly after the burglary within hours if not minutes. This obviously suggested some connection between the burglar and the receiver. This inference is reinforced by Mr Ellis’s previous convictions for dishonesty. The value of the property taken was not minor but nor was it a major receiving. A start sentence, therefore, in the 12 to 18 month range was appropriate.
A significant uplift for Mr Ellis’s past offending[2] and the fact that he committed this offence while on parole for other dishonesty[3] is appropriate. Mr Ellis who is now 39 years of age began offending in 1991. He has over 40 convictions for dishonesty. In 2009 he was sentenced to three years’ imprisonment for burglary offences. In considering the appropriate amount of the uplift, it is proper to take into account that an uplift for previous offending is not intended to further punish an offender for offending already the subject of a sentence. To do so would involve a form of double punishment. However, to continue to offend in similar ways is an aggravating feature which justifies an uplift. However, a 12 month uplift, two thirds of the start sentence is in the particular circumstances of this case, we consider, too high for previous offending alone.
[2] Sentencing Act 2002, s 9(1)(j).
[3] Sentencing Act, s 9(1)(c).
The fact that Mr Ellis offended while on parole for serious property offences was itself a serious aggravating feature. As noted, the Judge did not take this factor into specific account but it was a circumstance that required clear and discrete denunciation and deterrence. Once it is taken into specific account we are satisfied that, while a 12 month uplift for a combination of these factors was at the top end of what could properly be given, it was not outside of the range available to the Judge.
Result
The final sentence of two years and one month imprisonment, as we have said, is, while stern, within the range available. The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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