R v Ellery

[2013] NZHC 2609

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-019-601 [2013] NZHC 2609

THE QUEEN

v

MATHEW SHANE ELLERY

Hearing:	8 October 2013
Appearances:	RG Douch for Crown B Hesketh for Prisoner
Sentence:	8 October 2013

SENTENCING NOTES OF TOOGOOD J

[1]      Mathew Shane Ellery: you appear for sentence having pleaded guilty to the murder of a six month-old child, Serenity Scott, in April 2011.   Serenity was the daughter of your former partner and was in your care at the time you caused her fatal injuries by throwing her head-first onto the floor and then smothering her with a cloth nappy until she stopped breathing.

[2]      Murder carries a maximum penalty of life imprisonment and there is a presumption that such a sentence will be imposed.1    It has not been suggested that such a life sentence is inappropriate and accordingly that is the sentence you will receive.  But I am required also to determine the minimum period you will spend in prison and, in particular, whether that should be a period of at least 17 years.2

Factual background

[3]      Members of Serenity’s family are present this morning.  It is clear to me that they are suffering and will continue to suffer deep grief at the tragic death of this child.  I acknowledge their presence and extend to them the deepest sympathy of the Court.

[4]      While I recognise that Mr Douch has read the summary of facts and that it will be painful for the family members to be reminded yet again of these events, it is necessary for me to explain the circumstances of Serenity’s death and your involvement in it.

[5]      In around February 2011, Mr Ellery, you met Serenity’s mother, Ms Scott, and you soon began living together along with Serenity; Ms Scott’s four year-old son;  and  her 17  year-old  brother,  Drew.    Shortly afterwards  you  and  Ms  Scott became engaged.

[6]      On 26 April 2011, you were in the lounge with Ms Scott and other members of the household playing cards, watching television and playing video games. Serenity spent much of the day in her cot in the bedroom.   She was occasionally

brought into the lounge to be fed or to have her nappies changed.

1      Sentencing Act 2002, s 102.

2      Ibid, s 104.

[7]      At around 3 pm that day, you became angry with Serenity because you could hear her crying.  You went into her bedroom where you picked her up and held her upside down with her head towards the floor.  You then threw her head first onto the floor; Serenity cried even louder. You picked her up and returned her to her cot. You then picked up a cloth nappy from nearby and placed it over the baby’s face and smothered her until she stopped crying.  You knew she had also stopped breathing. You discarded the nappy and, instead of telling anyone about Serenity’s condition, you left the house and went to a nearby dairy.  A short time later you returned to the address and smoked a cigarette.

[8]      At about 4:30 pm you went back into Serenity’s bedroom where you saw her lying in her cot with her eyes rolling back in her head. At that stage, you alerted Ms Scott to Serenity’s condition and she ran to the bedroom to check on the baby before calling an ambulance.  Emergency services arrived shortly before 5 pm and Serenity was rushed to Waikato Hospital before being transferred by helicopter to Starship Children’s Hospital in Auckland.  Despite Serenity receiving expert medical treatment at Starship Hospital, she died two days later on 28 April 2011.

[9]      The cause of death was severe blunt force to the head which caused swelling of the brain from which, in the opinion of the medical experts, she could not have survived.  Serenity was also found to have a number of bruises both on her face and on her abdomen; but it is not clear who caused those injuries or when.

[10]     Initially,  and  for  eight  months  afterwards,  you  denied  any  part  in  the offending. Instead, you pointed the finger at Ms Scott’s brother, Drew, and others believed him to be responsible for your crime.

Victim impact statements

[11]     I  have  had  the  benefit  of  reading  and  hearing  the  two  victim  impact statements in this matter. The first is from Serenity’s mother. She says that as a result of this offending her world has been ripped out from under her and that she would not wish this situation on even her worst enemy.  She has had her other children removed from her care by CYFS and she is only allowed minimal contact with them.

She says that your actions have ruined her life and the relationship she has with her children and that she will never be the same again.  She describes you as a monster.

[12]     The second victim impact statement is from Drew Scott.  He talks about how difficult it was for him to be blamed for this offending because everyone seemed to side  with  you  and  not  him.  He  was  threatened  and  on  two  occasions  he  was physically attacked.  He has suffered depression and recurring nightmares since your offending.  Drew says the offending makes him shake with anger, and that the pain and hurt he went through as a result of your false allegations is not fair.  He is happy however that Serenity is finally getting justice.

Personal circumstances

[13]     You are now 23 years old but at the time of the offending you had only just turned 21.  You have two young children, one of whom you had with Ms Scott. Your formal education ceased at the age of 15 and since then you have had intermittent employment on dairy farms.  As a result of an accident when you were younger, you had amputations on one of your feet which have had an impact on your ability to work.  Consequently you spent much of your time around the house sharing in the responsibilities of caring for Serenity and her brother.

Previous convictions

[14]     Your eighteen previous convictions are mostly for dishonesty or driving- related offences and I put them aside for present purposes.  However, you were convicted in 2010 for assaulting a former partner with intent to injure her.  You received a lenient sentence of community work and intensive supervision.   In conjunction with that sentence you attended counselling for violence, but it is clear you did not learn much from that experience and a great deal of work needs to be done by you and others to deal with your violent tendencies.

[15]     The writer of the pre-sentence report I have received assesses you has having a harmful pattern of drug and alcohol abuse.  You reported binge drinking on a weekly basis and the daily use of cannabis.  Despite pleading guilty to murder, you minimised a number of your actions on the day you attacked Serenity and claimed you were emotionally heightened due to being under the influence of cannabis.   I note that you still make that claim in the letter you have written to the Court.

[16]     The report writer says you have a propensity to use violence when you have been drinking alcohol or using drugs, but it notes that this offending in this case was reactive and impulsive rather than premeditated.  Despite having received treatment for violence previously, you are assessed as posing a high risk of reoffending given that much of your behaviour and beliefs are entrenched.  The report writer believes that, unless  you respond favourably to the treatment that  you need  and will be offered, it is unlikely that your risk level will decrease.   That means that you can expect to remain in prison until you no longer pose a threat to the community.

Medical reports

[17]     I have also read a number of reports from medical experts.  The conclusions they reach are broadly very similar. The experts note that your childhood and adolescent years were marked by emotional distance and detachment.  You were diagnosed with ADHD at a young age.   You have a number of vulnerable psychological traits including low self-esteem, a lack of assertiveness, and poor self- confidence.  The experts have variously described you as immature; as having low to average neuro-cognitive functioning; and as being seriously impaired in your personality functioning.   The experts note your past problems with anger, alcohol and drugs.  One of the psychiatrists has suggested that you have, in the past, suffered from post traumatic stress disorder.  However, all of the experts have stopped short of saying that you suffer from any psychiatric illness.  Had you not pleaded guilty, you would have been fit to stand trial.

[18]     The law requires that a person convicted of murder must be sentenced to life imprisonment unless the circumstances of the offending or the offender’s circumstances make that manifestly unjust.3   Mr Hesketh properly concedes that this presumptive sentence has to be applied in this case, so that means you will remain in prison throughout your life unless and until the Parole Board determines that it is safe to release you into the community on parole.  If you are granted parole, you may

remain in the community only for so long as you comply with your parole conditions and  do  not  reoffend,  otherwise  you  could  be  recalled  to  prison  at  any time  to complete your life sentence.

Minimum period of imprisonment

[19]     The   law   also   requires   me   to   determine   what   minimum   period   of imprisonment you must serve before you are eligible to apply for parole.     That cannot be less than 10 years’ imprisonment and it needs to be the minimum term that I  consider  necessary  to  take  proper  account  of  the  purposes  and  principles  of

sentencing set out in the Sentencing Act.4

[20]     The relevant purposes I have particularly taken into account are holding you accountable for the harm done to Serenity, her mother, Drew Scott and the community,  and  promoting  in  you  a  sense  of  responsibility  for,  and acknowledgement of, that harm.  That means, in effect, that you must be punished for what you did.  I also need to recognise that your conduct must be denounced; that you and others should be deterred from such offending; and that the community must, at the moment at least, be protected from you.  While this was very serious offending, I have to be aware that I should not impose a sentence that is crushing and that as far as possible the Court is required to  assist in  your rehabilitation and

eventual re-integration.

3      Sentencing Act 2002, s 102(1).

4      Ibid, ss 7 and 8.

[21]     The law also provides that the minimum period of imprisonment must be at least 17 years if the murder was committed with a high level of cruelty or callousness,5  or the victim was particularly vulnerable because of his or her age.6

Even if those factors are present, however, this presumption would not apply if it would be manifestly unjust to impose a minimum period of 17 years.7

Submissions

Crown submissions

[22]     The Crown says that, because of the circumstances, the starting point must be a minimum period of 17  years,  but looking at  the second step in the  process,8

Mr Douch concedes that  you are entitled to  have your  youth and psychological problems taken into account; that you should be given some credit for your guilty plea and remorse; and that a failure to recognise these factors would be manifestly unjust. On that basis, Mr Douch submits that the minimum period of imprisonment should be 14 years’ as appropriate for this offending in these circumstances.

Defence submissions

[23]     On your behalf, Mr Hesketh is in broad agreement with the Crown’s position but he differs from the Crown Solicitor about the amount of discount which should be  given  for  your  eventual  guilty  plea.    He  submits  that  there  were  delays  in receiving disclosure of relevant information and that there was a need for further research in light of the medical experts’ reports and the way in which the Crown had gone about preparing its case.  Mr Hesketh says that the appropriate minimum period

is 13 years’ imprisonment.

5      Sentencing Act 2002, s 104(1)(e).

6      Ibid, s 104(1)(g).

7      Ibid, s 104 (1).

8      R v Williams [2005] 2 NZLR 506 (CA).

Minimum period of imprisonment

Starting point

[24]     In  coming  to  my  views  on  these  matters,  I  have  been  assisted  by  the submissions of experienced counsel appearing for the Crown and you, and I have taken into account the need for consistency in sentencing and what was done in comparable cases.9

[25]     I agree with counsel that I am required to fix a minimum period of 17 years’ imprisonment  as  the  starting  point  in  this  case.    Serenity  was  an  extremely vulnerable  victim;  an  innocent  and  defenceless  six  month-old  infant  who  was entirely dependent on you and the other adults in the house to care for and look after her.   That alone is sufficient to require a minimum of 17 years’ imprisonment, as Mr Hesketh acknowledges, and there is some force in Mr Douch’s submission also that throwing Serenity head first to the floor, smothering her, and then abandoning her without alerting others, despite knowing she was not breathing, was extremely callous.

Other considerations

[26]     In considering whether a 17-year minimum period of imprisonment would be manifestly unjust, I look first at the other aggravating features of your offending.

[27]    The case involved a substantial breach of trust.  Although you were not Serenity’s  biological  father,  you  were  seen  as  something  of  a  father  figure  by Ms Scott’s young son and by Ms Scott herself.  You occupied a position of trust in the household; to such an extent that when you tried to shift blame for Serenity’s

death away from yourself, you were believed by other members of the family.

9      R  v  Paul  CA496/05, 1 August  2006;  R  v  Kapea  HC Auckland  CRI-2007-092-16885, 25

November 2008; Mahomed v R [2010] NZCA 419; Ngatai-Check v R [2011] NZCA 543; R v
Hemana [2012] NZHC 376; R v Loffley [2013] NZHC 201; R v Pickering HC Rotorua CRI-
2008-055-001273, 30 July 2010; and R v Reid HC Auckland CRI-2008-090-2203, 4 February
2011.

[28]     A major government report issued a few months ago provided evidence that family  violence,  including  violence  against  children  causing  death,  is  far  too prevalent in New Zealand.  Children have a right to be kept safe from harm, and parents and others involved in the parenting of babies and young children must be held accountable for their failure to meet the high degree of trust which attaches to the role. The community as a whole suffers when children are treated in this way.

[29]    I have already mentioned that because you denied being responsible for Serenity’s death, and were believed initially, the attention of the authorities turned on Ms Scott and other family members.  Ms Scott’s other children were taken from her and her brother Drew, who you suggested was responsible, was condemned and ostracised by those who believed your lies, and was appallingly mistreated.  He suffered a grave injustice.

[30]     Taking those matters into account, a minimum period of imprisonment of

17 years  would  be  entirely  justified  and  in  a  case  such  as  this  the  personal circumstances of the offender would not usually count for much.

Justice requires discount to minimum term

[31]     However, I agree with both counsel that the interests of justice require that your youth at the time of this offending, your psychological background, including the way you were treated during your upbringing, have to be taken into account.  I have read the letter you wrote to the Court and I accept that you now deeply regret Serenity’s death and that your request for forgiveness is genuinely motivated.  That is a start on the path to your rehabilitation.  Taking those matters into account, I consider a discount of two years’ imprisonment should be applied to the minimum period, that is on account of your youth, the psychological issues, and your expressions of remorse.

[32]     So far as your guilty plea is concerned, and particularly the timing of it, I accept  Mr  Hesketh’s  point  that  part  of  the  delay  was  caused  by  a  proper consideration of your mental condition by medical specialists and of legal matters by counsel, but the delay was initially and primarily due to your refusal to acknowledge

your responsibility for what happened and your shifting blame onto others.  Your manipulative behaviour accusing Drew means that the eventual guilty plea carries less weight than it might otherwise have done.  I am prepared to allow a further discount on the basis of your late plea which has, after all, spared Ms Scott and members of the family the strain of a trial; it means that the medical experts are not required to give evidence and it means that the prosecution and the justice system will also not have the burden of trying you.   I am prepared to allow a further discount of 18 months on account of your plea.

[33]     How much longer than the minimum period you actually will serve will be for the Parole Board to decide in light of whether you continue to pose a threat to the safety of the community.

Result

[34]     Mr Ellery, would you please stand.

[35]   On the count of murdering Serenity Jay Scott, I sentence you to life imprisonment and I order that you shall serve a minimum period of 13 years six months’ imprisonment.

[36]     Please stand down.

...............................................

Toogood J