Ellis v The Queen - [2019] NZHC 2887

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2019-458-000070

CRI-2019-458-000071 [2019] NZHC 2887

BETWEEN
AARON PATRICK JOHN ELLIS

Applicant

AND

THE QUEEN

Respondent

On the Papers

Judgment:

6 November 2019

JUDGMENT OF DOOGUE J

[On application to suspend post-release conditions pending appeal]

Introduction

[1] On 11 October 2019, the applicant in this matter, Aaron Ellis, was sentenced by Judge Davidson in the District Court at Wellington to 17 months’ imprisonment for three separate batches of charges.1 These charges can be broken down as follows:

(a)The first batch, being driving charges relating to an incident on 15 October 2018. These were charges of driving while disqualified, dangerous driving, reckless driving and failing to stop (First Batch).

(b)The second batch, being a standalone charge of driving while disqualified, which occurred on 20 January 2019 (Second Batch).

1 R v Ellis [2019] NZDC 20881.

ELLIS v R [2019] NZHC 2887 [6 November 2019]

(c)The third batch, being two representative charges of breaching a protection order by way of contact via voicemail, text and letters over a 14-month period between May 2018 and July 2019 (Third Batch).

[2] Judge Davidson took the Third Batch of charges as the lead offences and imposed a sentence of 17 months’ imprisonment for both breaches, having already given a sentence indication the week prior. He also imposed concurrent sentences for the other offences, though those sentences are immaterial for present purposes.

[3] Judge Davidson also imposed the following release conditions (the Release Conditions):

...

(b)there are standard and special release conditions to expire 6 months after the sentence expiry date. The special conditions are those described in the probation officer’s report; they are as follows:

(i)that you do not associate with or have contact with the complainant directly or indirectly without the prior written approval of your probation officer;

(ii)that you submit to electronic monitoring in the form of global positioning system technology as directed by your probation officer in order to monitor your compliance with any condition relating to your whereabouts;

(iii)that you are not to enter Patea as defined by a probation officer unless you have the prior written approval of the probation officer;

(iv)that you live at such address approved by your probation officer and not move to any new residential address without the prior written approval of the probation officer;

(v)that you attend for a psychological assessment with a departmental psychologist as directed by your probation officer and complete any treatment and counselling as recommended and directed by the probation officer to the probation officer’s satisfaction;

(vi)that you undertake such drug and alcohol assessment, treatment and counselling as your probation officer may direct;

(vii)that you undertake assessment for and completion of such non-violence programme as your probation officer may direct;

[4] At the time of sentencing, Mr Ellis was in custody for the above offences and had been so for some eight months. Therefore, despite being sentenced to 17 months’ imprisonment, he had served…

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 [2019] NZHC 2887
Case: [2019] NZHC 2887
Decision Date: 6 November 2019

CaseChat Overview and Summary

Aaron Ellis, the applicant, appealed against the post-release conditions imposed on him by Judge Davidson in the Wellington District Court, which included restrictions on contact with the protected person, electronic monitoring, and other specific requirements. The Crown opposed this application, arguing that the release conditions were crucial for the protection of the protected person and to aid in Ellis' rehabilitation. The applicant also sought the appointment of standby counsel for his substantive appeal, which the Crown supported. The court had to decide whether the post-release conditions should be suspended pending the determination of the substantive appeal and whether standby counsel should be appointed for the appeal hearing.

The court found that the post-release conditions were necessary to protect the protected person and to help Ellis move on from the issues that led to these proceedings. The court adopted the factors outlined in Power v Auckland Society for the Prevention of Cruelty to Animals for determining whether a sentence should be suspended pending appeal, adapting them to the context of post-release conditions. The court considered the strength of the grounds of appeal, the length of time the Release Conditions would be in place, the length of time before the substantive appeal hearing, and Ellis' personal circumstances, including his history of offending and the reasons for which Judge Davidson imposed the Release Conditions. The court concluded that the Release Conditions should not be suspended pending determination of the substantive appeal. The court also appointed Mr Marty Robinson as standby counsel for the substantive appeal, considering the length of time Ellis had spent in the court system and the emotionally-charged nature of his grievances.

The court declined Ellis' application to suspend the Release Conditions pending determination of the substantive appeal against their imposition and appointed Mr Marty Robinson as standby counsel for the substantive appeal hearing on the specified terms.

Orders