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Ellis v The Queen

Ellis v The Queen

Case [2020] NZHC 1969 6 August 2020

Appeal

Jurisdiction

Sentencing

Special Release Conditions

Victim Impact

Electronic Monitoring

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-458-70

CRI-2019-458-71 [2020] NZHC 1969

AARON PATRICK JOHN ELLIS

v

THE QUEEN

Hearing: 4 August 2020

Appearances:

S J Fraser for the Appellant

G J Burston for the Respondent

Judgment:

6 August 2020

JUDGMENT OF COOKE J

[1] The appellant, Mr Ellis, was sentenced on 11 October last year to a range of charges.1 The sentence under appeal is 17 months’ imprisonment imposed for two charges of breach of protection order.2 Seven special release conditions were imposed, to be in place for six months after the sentence expiry date.

[2] Mr Ellis appeals his sentence on the grounds the sentence did not fairly reflect the sentence indication he accepted and which he entered guilty pleas to, and that the release conditions had no proper basis for being imposed. He invites the Court to cancel the special release conditions, or alternatively, to change the end date of the

1 R v Ellis [2019] NZDC 20881.
2 Family Violence Act 2018, s 112, maximum penalty three years’ imprisonment.

ELLIS v R [2020] NZHC 1969 [6 August 2020]

special conditions so they terminate at the end of the sentence rather than six months’ after the sentence expires.

Factual background

[3] Mr Ellis pleaded guilty to two representative charges of breach of protection order occurring over a 14 month period between May 2018 and July 2019. The charges relate to a number of occasions where Mr Ellis breached the order by contacting the victim via voicemail, text, and letters.

[4] The victim is Mr Ellis’ former partner. The two were in a relationship for 12 months and have two young children together. They separated in March 2018. There have been eight previous family harm incidents between them. On Friday 23 March 2018 a temporary protection order was issued from the Levin District Court. The order named the victim as the protected person and Mr Ellis as the defendant.

[5] Between Sunday 13 May 2018 and Wednesday 16 May 2018 Mr Ellis called and texted the victim multiple times. On Wednesday 16 May at 11.15 am the victim sent Mr Ellis a text saying “don’t contact me ever again or come to my house Aaron aka Matama you have been warned”.

[6] Over the following nine days Mr Ellis sent the victim 139 text messages and called her 40 times. The victim did not reply to any of those text messages or return his calls.

[7] On Friday 25 May 2018 the victim sent Mr Ellis a text saying “the love I had for you is long gone so just leave me alone”. Mr Ellis continued to text and call the victim. The messages ranged from “I miss you and love you” to “you’re not fit to be a mother” and threatening to adopt their child out.

[8] On Friday 1 June 2018 the victim was at her home address caring for her children. Mr Ellis phoned…

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 The Queen

Details

AGLC: Ellis v The Queen [2020] NZHC 1969
Case: [2020] NZHC 1969
Decision Date: 6 August 2020

CaseChat Overview and Summary

Aaron Patrick John Ellis appeals his sentence imposed for two charges of breach of a protection order. The sentence under appeal is 17 months' imprisonment, imposed for two charges of breach of protection order, as well as seven special release conditions to be in place for six months after the sentence expiry date. The appellant argues that the sentence did not fairly reflect the sentence indication he accepted and that the release conditions had no proper basis for being imposed. The court considered the appeal under s 244 of the Criminal Procedure Act 2011, and whether there was an error in the sentence imposed and a different sentence should be imposed. The court found that there had been an error in the sentencing process as the sentence imposed differed from the sentence indication and the appellant was not given an opportunity to vacate his guilty plea. However, having considered the sentence as a consequence, and in particular the special release conditions imposed by the District Court, the court was satisfied that they were appropriate, and dismissed the appeal.

Orders