R v Ellery - [2013] NZHC 2603

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…

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 R v Ellery

Details

AGLC: R v Ellery [2013] NZHC 2603
Case: [2013] NZHC 2603
Decision Date: 8 October 2013

CaseChat Overview and Summary

Mathew Shane Ellery appeared before the High Court for sentencing after pleading guilty to the murder of six-month-old Serenity Scott. Ellery had caused Serenity's death by throwing her head-first onto the floor and smothering her with a cloth nappy. The court needed to determine the minimum period of imprisonment Ellery would serve before becoming eligible for parole. The legal issues included whether the circumstances warranted a minimum of 17 years' imprisonment and, if not, what discount should be applied to this period.

The court concluded that the starting point for the minimum term should be 17 years due to the extreme vulnerability of the victim and the callousness of the act. However, considering Ellery's youth at the time of the offence, his psychological background, and his expressions of remorse, the court applied a discount of two years. Additionally, the court allowed a further discount of 18 months for Ellery's late guilty plea, which, while it spared the family a trial, was significantly delayed by Ellery's initial denial of responsibility and attempts to shift blame. The court ultimately sentenced Ellery to life imprisonment with a minimum term of 13 years and six months before he could apply for parole.

Orders