R v Ellis
[2025] NZHC 1197
•14 May 2025
NOTE: PUBLICATION OF NAME, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-092-9916
[2025] NZHC 1197
THE KING v
JOHN LINDSAY ELLIS
Hearing: 14 May 2025 Appearances:
K Karpik and P Puertollano for Crown R L Thomson for defendant
Sentence:
14 May 2025
SENTENCING REMARKS OF JOHNSTONE J
(redacted version suitable for publication)
Solicitors:
Kayes Fletcher Walker, Auckland
R v ELLIS [2025] NZHC 1197 [14 May 2025]
[1] John Lindsay Ellis, I will sentence you now on two offences involving indecent behaviour, committed in late 2023.
[2] As you know, you are being sentenced in this Court because the District Court at Manukau had reason to believe a sentence of preventive detention should be considered.1 For the Crown, Ms Karpik submits that, in your case, preventive detention is available, and should be imposed. But if I was minded instead to impose a determinate sentence, it should be one of around three to three and a half years' imprisonment. Your lawyer (Ms Thomson) accepts that the statutory threshold, which must be met before this Court has jurisdiction to impose preventive detention, is met. But, Ms Thompson submits, because of the way the necessary considerations operate in this case, I should not impose preventive detention. Instead, she says I should impose a determinate sentence similar to that identified by the Crown. Ms Thomson submits that such a sentence would provide society with adequate protection.
[3] I will come back to that issue once I have worked through the things that have brought you to this point. I note that much of it is the subject of non-publication orders made in previous proceedings. For that reason, I will issue a redacted written version of these remarks, suitable for publication. In the meantime, this oral version of my remarks may not be published.
Background
[Redacted].
[4]This brings me to the offending for which you are being sentenced today.
Offending for sentence
[5] In October and November 2023, you were living in supported accommodation at a motel.
1 Sentencing Act 2002, ss 87(3) and 90(2).
[6] One day in October, an adult motel employee went to inspect your unit. In your kitchen, you indecently assaulted him2 by approaching and hugging him with one hand, using the other to touch his back and then grasp his testicles (over clothing). He pushed you away and left. You had hugged him on previous occasions, making him feel uncomfortable.
[7] In November, a four-year-old visitor to the motel was playing with his younger sister on a grass playground. You led them to your room, giving them your cell phone to play with. You indecently assaulted the boy3 as he lay on your bed: you pulled down his pants, touched his penis, kissed his buttocks, and did what you later described as “giv[ing] him oral on his behind”. A visitor to your unit found you with the children and removed them. Later, you told another adult that you had abused a young boy and been “caught”. They told you to call the police, which you did. When the police arrived, you told them you had done the same thing to the boy on a previous occasion.
[8] The boy’s mother has reported how unhappy she is about what happened to him, and that it has affected their family significantly.
Appropriate determinate sentence
[9] In my view the appropriate sentence, if not one of preventive detention, would be a sentence of three years and nine months’ imprisonment. That is because:
(a)The boy became vulnerable as you coaxed him into your unit, the indecent acts you performed on him were intrusive, and they had, and seem likely in future to continue to have, considerable victim impact. These are aggravating features.4 Reference to comparable cases indicates that this offending would have required a starting point of two and a half years’ imprisonment, had it stood alone.5
2 Crimes Act 1961, s 135. Maximum penalty: seven years’ imprisonment.
3 Crimes Act 1961, s 132(5). Maximum penalty: 10 years’ imprisonment.
4 Sentencing Act, s 9A. R v Thorpe [2012] NZHC 229 at [48]–[50].
5 O (CA643/2009) v R [2010] NZCA 609, Faaosofia v R [2022] NZCA 320, and R v Lochlore [2018] NZHC 2963.
(b)A starting point of around 15 months’ imprisonment for your indecent assault upon the motel employee would have been appropriate, had it stood alone.6
(c)The appropriate adjusted starting point for both offences is one of three and a half years’ imprisonment.
(d)From that adjusted starting point, a reduction of 20 per cent should be applied, to recognise the guilty pleas you entered at trial callover on 22 August 2024, charges having been filed in November 2023.
(e)But your personal circumstances already outlined above, and discussed further below, require an uplift of 12 months’ imprisonment. They are such that, amongst the relevant sentencing purposes which require consideration,7 the dominant purpose is that of protecting the community from you. Your own childhood history as a victim of sexual abuse and your current mental health issues do not justify a lower uplift. And in cases such as yours, there is some room for the purposes of public protection to justify going beyond what would otherwise be the upper level of a sentence.8
[10] The question, then, is whether instead of a sentence of three years and nine months’ imprisonment, I should impose one of preventive detention?
Preventive detention – threshold and assessment
[11] I accept that the statutory threshold to impose preventive detention is met in your case:9
(a)you have been convicted of the qualifying sexual offence of doing an indecent act on a child;
6 Carline v R [2016] NZCA 451.
7 Sentencing Act, ss 7(1)(a), (b), (e), (f) and (g).
8 R v Leitch [1998] 1 NZLR 420 (CA) at 430.
9 Sentencing Act, s 87(2).
(b)you were over 18 years of age at the time of that offence; and
(c)you are likely to commit, in the sense of there being a real and appreciable risk of you committing, another qualifying sexual offence if released at the sentence expiry date of a sentence of three years and nine months’ imprisonment.
[12] With the threshold met, and in moving to consider whether to impose preventive detention, I must then take into account:10
(a)any pattern of serious offending disclosed by your history;
(b)the seriousness of the harm to the community caused by the offending;
(c)information indicating a tendency to commit serious offences in future;
(d)the absence of, or failure of, efforts by you to address the cause or causes of the offending; and
(e)the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[13][Redacted].
[14]The harm caused by your offending has of course been serious.
Information indicating a tendency to commit serious offences in future
[15] This Court requested, and I have received, two reports about the likelihood of you committing a further qualifying sexual offence, respectively written by John Jacques (a consultant forensic psychiatrist) and by Moon Lee (a registered psychologist). I also received a report by Karl Jansen (a consultant psychiatrist). I am grateful for them.
10 Section 87(4).
[16] Dr Jacques assessed you as posing a “high risk” of future sexual offending, “especially if [you] were to reside in accommodation where [you] would have access to children or not have strict and close supervision”. Dr Jacques noted this risk would “eventually decline” with age and diminishing health. You have a history of serious chronic medical problems. You appear now to be experiencing significant cognitive decline.
[17] Mr Lee reported results of testing using actuarial risk-assessment tools which indicate both “above average” and “well above average” risk. He concluded that if you are left unsupervised, you are at a “very high risk” of further sexual offending.
[18] Dr Jansen similarly reported “high risk” as the result of testing using the Stable-2000 and Static-99 tools, and “medium risk” using the Acute-2007 tool which is based on current circumstances such as your lack of access to children while in custody.
Absence, or failure of, efforts to address cause(s) of offending
[19] Between 2008 and 2018, you engaged in multiple sessions of individual treatment by [redacted] psychologists.
[20] Despite these efforts, Mr Lee considers you to show little insight into risk mitigation and management. I agree. Your distorted thinking, involving elements of self-justification and victim blaming, and your deviant sexual interests towards children appear entrenched.
[21]Your rehabilitative efforts, such as they have been, appear to have failed.
Principle that a lengthy determinate sentence is preferable if this provides adequate protection for society
[22] On the issue whether a lengthy determinate sentence would adequately protect society, Dr Jacques thought this possible assuming you will only be released when well into your 80s, and then carefully supervised at stable, safe, and appropriate accommodation.
[23] I should observe that a sentence of three years and nine months’ imprisonment would expire in July 2027, a few months after your eighty-first birthday. So, not “well into your 80s”. And you would be eligible for release earlier.
[24] An initial question arises as to whether a three-year, nine-month prison sentence might be described as lengthy. But even if the statutory requirement to consider the protection provided by a “lengthy sentence” is not directly applicable in your case, the Court of Appeal has made the broader observation that “there has to be significant, ongoing risk of serious harm before somebody is incarcerated indefinitely, particularly for lower-level offences”.11 And in other cases, that Court has been uncomfortable with the notion that a person presenting a degree of risk of reoffending, following a modest period of imprisonment, should be sentenced to preventive detention, while another person presenting the same risk profile following a longer sentence might avoid preventive detention.12 Thus, it seems appropriate to consider whether any determinate sentence, whether lengthy or not, will provide adequate protection for society.13
[25] [Redacted]. Dr Jansen reports you telling him, candidly, that the only way to stop your offending (in the community) involves you “being watched”. That may be an unfortunate admission for you to have made, Mr Ellis, but nonetheless it is a realistic one, at least insofar as I take you to be referring to sexual offending.
[26] As part of the assessment whether a determinate sentence provides adequate protection, I should consider the prospect of an ESO being made at around the time of your release.14 Your counsel responsibly accepts, as does the Crown, that an ESO application made then would likely be granted. Its term could be as long as 10 years. Standard conditions would apply, and further special conditions might be imposed.15
11 R v Parahi [2005] 3 NZLR 356 (CA) at [85].
12 Moore v R [2023] NZCA 286 at [93], Brown v R [2023] NZCA 487 at [97].
13 See Moore at [79], and Brown at [89], where the Court of Appeal considered whether a “finite sentence” with an ESO would adequately protect the community.
14 Grant v R [2017] NZCA 614 at [50]–[53]; R v Bond [2016] NZHC 2561 at [74]; R v Mist [2005]
2 NZLR 791 (CA) at [101]; and Bell v R [2017] NZCA 90 at [20].
15 Parole Act, ss 107I, 107IAC, 107J, 107JA, 107K. It may be doubted that residential and intensive monitoring special conditions amounting to “detention” would be imposed, given the Supreme Court’s judgment in Attorney-General v Chisnall [2024] NZSC 178, [2024] 1 NZLR 768.
In this vein I note that, if I sentence you to a term of imprisonment, you will automatically be registered under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.
[27] In my view, the substantial prospect of an ESO being made at around the time of your mandatory release by no later than mid-2027, together with your diminishing physical capacities at that point, mean that adequate protection for society will be available. [Redacted].
[28] [Redacted]. I have likewise resolved not to impose a sentence of preventive detention upon you.
Minimum period
[29] Returning then to the three-year, nine-month determinate sentence of imprisonment I have identified, I consider that you should serve a minimum of two-thirds of that duration. My decision relating to the adequacy of societal protection depends, to some degree, upon your diminishing physical capacities as you age. A minimum period of imprisonment of two years and six months, running as it will from the date of your arrest in November 2023, is necessary primarily for the relevant purpose of community protection.16
Sentencing
[30] Mr Ellis, for each of your offences of indecent assault and doing an indecent act on a child, you are sentenced to serve three years and nine months’ imprisonment. You are ordered to serve a minimum period of two-thirds of those sentences.
[31]You can be taken down.
Johnstone J
16 Sentencing Act, s 86(2).
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