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 sufficient time in custody such that now, less than one month later, he has been released.

[5]    Mr Ellis has appealed against the imposition of the Release Conditions (the substantive appeal). That appeal will be heard on 3 December 2019 where Mr Ellis has chosen to be self-represented.

[6]    However, Mr Ellis has also filed an application to suspend the Release Conditions pending determination of the substantive appeal pursuant to s 343 of the Criminal Procedure Act 2011 (CPA). The Crown opposes this application.

[7]    Mr Ellis also seeks the appointment of standby counsel for the substantive appeal. The Crown supports this application.

[8]    I first briefly outline the background to Mr Ellis’ conviction and sentence before dealing with each application in turn.

Background

[9]    It is unnecessary for me to outline the background to each charge for which Mr Ellis was sentenced. Instead, I focus on the Third Batch of charges, that is, the two counts of breaching a protection order.

[10]   In his sentencing indication, Judge Davidson described the background to the Third Batch of charges as follows:

[6]        The 2 representative charges of breaching a protection order stem from a relationship between the defendant and the protected person who had initially been his caregiver. The defendant had been seriously injured in a motor vehicle accident in 2014. Following that, there were significant medical complications. An ACC-approved caregiver arrangement was put in place. His relationship with the protected person seems to have begun in around 2017. It came to an end in early 2018.

[7]        The first protection order was made in March 2018 but was discharged around 4 months later. The defendant has harboured a significant grievance ever since then that the application was made on incorrect information and was more driven by others, that is other than the protected person herself.

However, a further protection order was made a few months later, eventually becoming final earlier this year.

[8]        The 2 charges reflect a period of some 14 months between May 2018 and July 2019. The essence of the charges is ongoing contact. This consists of text messaging, voicemail messages, letters and emails. By my count, which may not be necessarily truly accurate, there was contact something in the order of 250 times. Reading through the essence of the contact, while it is easy to see the grievance that the defendant harboured, they necessarily over time became nasty, abusive and quite distressing.

[9]        More than that, although most were sent to the protected person, a number were sent to third parties including the Ministry of Justice, media outlets, Oranga Tamariki, politicians, the Ombudsman, and the Independent Police Conduct Authority. This, it seems to me, does heighten the stress associated with such offending because it brings the protected person into the glare of others.

[10]      As the Crown observed in their written submissions, essentially the defendant has inundated the complainant with contact over that period.

[11]      There are, however, 2 relatively unusual features of the offending. The first is that, as the Crown acknowledge, the genesis lies in the defendant’s grievance with the making of the orders in the first place; concerns that the protected person has been forced into making the application by others so that she can keep the children; and because of the defendant’s concerns about the adequacy of her parenting; secondly, as the material shows, there has been mutual contact.

[12   In the limited time available to me to assimilate and try and make   some sense of all the information I have seen, I am left with a sense that the genesis of the ongoing contact was borne of the defendant’s grievance, but as time has gone on, it has become more distressing and personalised. In the end, really it is the sheer volume of contact which is the concerning feature of the charges and the period over which it occurred.

[13] I have no victim impact material before me, but it seems self-evident that an inundation of contact of this kind over such a period would be distressing for the complainant; indeed for any person.

Suspension of release conditions

[11]   Section 343 of the CPA outlines how an appeal affects the decision being appealed. Section 343 provides:

343 General effect of appeal on sentence

No sentence may be suspended just because a person files a notice of appeal or notice of an application for leave to appeal under this Part, unless—

(a)the appeal court expressly directs that the sentence be suspended; or

(b)an enactment provides for the sentence to be suspended in that case.

[12]   The CPA gives no guidance as to when an appeal court should direct that a sentence be suspended. Nor have I been able to find any authority on the suspension of post-release conditions. Further, because Mr Ellis has informally requested a suspension of his post-release conditions in his handwritten notice of appeal rather than by way of formal application, and the Crown’s response was by way of email to the Registry, I have not been referred to any applicable authorities.

[13]   Nevertheless, I have found the judgment of Stevens J sitting alone in the Court of Appeal in Power v Auckland Society for the Prevention of Cruelty of Animals to be of assistance.2 That case concerned an application for suspension of sentence pending determination of an application to bring a second appeal against sentence in the animal welfare context. After outlining the vast procedural history of that case, Stevens J noted that the CPA is silent on which factors ought to be considered when determining an application under s 343.3

[14]   However, Stevens J observed that there had been several appellate decisions on suspensions relating to a sentence of home detention.4 A person seeking suspension of their home detention sentence pending appeal of that sentence is required to apply for bail, and thus the application for suspension is treated in a similar way, applying the test relevant to an application for bail.5 Stevens J considered that “similar factors are applicable when deciding whether or not to suspend a sentence in circumstances such as the present”.6 These factors are:7

(a)the strength of the grounds of appeal;

(b)the length of the sentence imposed;

2      Power v Auckland Society for the Prevention of Cruelty of Animals [2016] NZCA 232.

3 At [9].

4      At [10], citing Din v R [2013] NZCA 610, [2014] 2 NZLR 445; Harris v R [2013] NZCA 611; and

Colbert v R [2013] NZCA 681.

5 At [10]. Bail must not be granted unless the court is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.

6 At [10].

7      Bail Act 2000, s 14(3).

(c)the likely length of time that will pass before the appeal is heard;

(d)the personal circumstances of the appellant and their immediate family; and

(e)any other considerations the court considers relevant.

[15]   While these principles are not wholly relevant to the present appeal, I adopt them to the extent they are applicable.

Submissions

[16]   Mr Ellis seeks for his post-release conditions to be suspended pending determination of his substantive appeal against their imposition. He makes this application on the grounds the Probation Officer who interviewed him for the purposes of compiling a pre-sentence report misled the Court, and that the information Mr Ellis provided during the limited time they spoke did not provide a foundation for the imposition of conditions relating to the use of alcohol and drugs as well as GPS monitoring.

[17]   The Crown opposes the present application due to concerns it has for the safety of the protected person under the Protection Order. It says that the release conditions are central to the rehabilitative sentence imposed by Judge Davidson.

Analysis

[18]   As a preliminary matter, I note that Mr Ellis has asserted that s 345 of the CPA also applies to this application. However, that is not the case. That provision only applies to the effect of an appeal against a sentence of community detention, community work, supervision, or intensive supervision. Mr Ellis was sentenced to a term of imprisonment.

[19]   Turning to the factors raised by Stevens J in Power, I first note that because of the nature of this application, I have very little information before me other than Judge Davidson’s sentencing indication and sentencing notes, and Mr Ellis’ handwritten

notice of appeal where he raises a number of issues with the way in which he has been treated in prison. Crucially, I do not have the pre-sentence report with which Mr Ellis takes issue, nor do I have any submissions either in respect of this application or the substantive appeal.

[20]   Accordingly, I am unable to determine, from the material before me, the strength of Mr Ellis’ grounds of appeal. Insofar as an appeal against sentence is an appeal against an exercise of a discretion and therefore an appellant must point to an error in the imposition of the sentence or show that the sentence is manifestly excessive,8 a decision based on erroneous information is able to discharge this onus. Nevertheless, without more information I remain neutral on this factor.

[21]   Because Mr Ellis’ application relates to his Release Conditions, it is the length of time that these conditions will be in place that is relevant and not the length of his sentence as was the case in Power. The post-release conditions will remain in place for six months. I do not have Mr Ellis’ release date before me, but it is unlikely to have been more than a few weeks since his release from prison. Regardless, six months is not a particularly long or particularly onerous period of time to be constrained by supervisory conditions following release from prison.

[22]   The length of time the Release Conditions will be in place must also be balanced against the length of time before Mr Ellis’ substantive appeal hearing. As I have already noted, the substantive appeal  hearing is scheduled to take place on      3 December 2019. The short period between now and then does not support the granting of Mr Ellis’ application.

[23]   In my view, the most pertinent factor relevant to Mr Ellis’ application is his personal circumstances, which must be understood in light of the background to his offending and the reasons for which Judge Davidson imposed the Release Conditions. In his sentencing indication, the Judge accepted that Mr Ellis’ grievances and bitterness were honestly held. However, the Judge also noted that over time, they had become more distressing, personalised and nasty. His contact with the protected person was extensive and amounted to a “14-month campaign”. Further, it appears to

8      Criminal Procedure Act 2011, ss 250(2) and 250(3).

have taken a significant toll on the protected person given the Judge described her victim impact statement as “concerning”.9

[24]   While the Judge’s reasons for imposing the Release Conditions are not expressly stated, I agree with the Crown that there was a rehabilitative aspect to them. This is for two reasons. First, the Judge noted in his sentencing indication that the fact the protected person intermittently responded to Mr Ellis’ communications was regrettable as it may have had the unintended consequence of dragging Mr Ellis into further contact with her, which ultimately turned nasty. This implies that the Judge viewed severance of all communication as necessary to allow Mr Ellis to move on. Second, the Judge encouraged Mr Ellis to realise his plans of re-establishing in the South Island upon his release where he has support.   This, he said, would allow    Mr Ellis to put the proceedings behind him.

[25]   The Release Conditions must also be understood in the context of Mr Ellis’ history of offending. Of particular relevance are his eight convictions for breaching non-molestation and protection orders, many of these committed while on bail. Therefore, some of the Release Conditions such as the those prohibiting Mr Ellis from associating with the protected person, prohibiting him from going to Patea in South Taranaki (presumably where the protected person now resides) and requiring him to be GPS monitored to ensure the Release Conditions are adhered to, are protective in nature.

[26]   Given the nature of Mr Ellis’ offending and his history of breaching non- molestation and protection orders, I am not satisfied that the Release Conditions should be suspended pending determination of the substantive appeal against their imposition. In my view, they are necessary to protect the protected person and to assist Mr Ellis in moving on from the issues which gave rise to these proceedings. Further, if it is shown at the substantive appeal hearing in December that the Release Conditions were in fact not appropriate, I am satisfied that a delay of a month will not disproportionately prejudice Mr Ellis.

9      R v Ellis, above n 1, at [8].

[27]   I therefore decline Mr Ellis’ application to suspend the Release Conditions pending determination of the substantive appeal against their imposition.

Standby counsel

[28]I am able to deal with this application briefly as it is supported by the Crown.

[29]   In Fahey v R, the Court of Appeal described the role and responsibility of standby counsel as follows:10

...counsel appointed by the court to assist a self-represented defendant if and to the extent the defendant is willing to accept it, and to assume the conduct of the defence should the defendant decide to abandon self-representation

[30]   While the Court of Appeal noted that standby counsel appointments should be exceptional given that the right to self-represent should be respected and defendants (and appellants) must be given leeway to exercise it badly,11 the Court equally noted that even in cases where a defendant has made an informed decision to represent him or herself, a miscarriage of justice may occur as a result of this decision.12

[31]   Given the length of time Mr Ellis has spent in the court system and the emotionally-charged nature of his grievances, I consider that it is appropriate to appoint standby counsel. I have been advised that Mr Marty Robinson is available to act if appointed. I also note that Mr Robinson was appointed as standby counsel in the proceedings before Judge Davidson and it is Mr Ellis’ wish that he be appointed again.

[32]   I therefore appoint Mr Robinson as standby counsel for Mr Ellis’ substantive appeal hearing on 3 December 2019.

Result

[33]   Mr Ellis’ application to suspend the Release Conditions pending determination of the substantive appeal against their imposition is declined.

10     Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392 at [64].

11 At [85].

12 At [47].

[34]Mr Robinson is appointed as standby counsel on the following terms:

(a)he is to confer with Mr Ellis prior to his substantive appeal hearing on 3 December 2019 to determine whether any applications to the Court will be required such as an application to adduce fresh evidence and, if so, he is to assist Mr Ellis with the preparation of those applications and any submissions in support of them;

(b)he is to assist Mr Ellis with the preparation of submissions for his substantive appeal on 3 December 2019, if required;

(c)he is to attend the appeal hearing on 3 December 2019; and

(d)he is to assume conduct of Mr Ellis’ appeal, if required.

[35]   I also direct the Registry to ensure that all further correspondence between the parties and the Court is also directed to Mr Robinson.

Doogue J

Solicitors:

Crown Solicitor, Wellington Copy to Mr Robinson, Barrister