R v Ellis HC Auckland CRI-2010-044-004912 [2011] NZHC 1863 (7 December 2011)

Last Updated: 25 January 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2010-044-004912}

THE QUEEN

v

STEVEN PAUL ELLIS

Appearances: S N Haszard and R E Savage for Crown

J R F Anderson for Prisoner

Judgment: 7 December 2011 at 9:00 AM

_{SENTENCING NOTES OF COURTNEY J}

Solicitors: Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – S Haszard

Counsel: J R F Anderson, P O Box 155012 Wellesley Street, Auckland 1141

_{Fax: [phone] – Email:} [e-mail]

R V ELLIS HC AK CRI-2010-044-004912 7 December 2011

[1] Steven Paul Ellis, you appear for sentence today for the rape and murder of Jacqueline Blackbourn and the arson of her house. You admitted the arson before trial but denied the rape and murder and were found guilty of those charges at trial.

[2] The facts behind these dreadful crimes are these. You and Ms Blackbourn had been in a relationship and lived together during 2009. In early 2010 the two of you separated. The trigger seems to have been a fight that turned physical between you. She obtained a trespass order against you. After you moved out there continued to be a level of contact between you, including occasional intimate contact, but there was never any indication from Ms Blackbourn that you were welcome again in her home. Although you maintain otherwise, the evidence strongly indicated that she required you to comply with the trespass order and that you did so. After the separation you became obsessive about Ms Blackbourn, even attempting suicide as a means, by your own account, of getting her attention. Ms Blackbourn, however, was a fragile and vulnerable woman and the last thing she needed in her life was a man like you, a fact that she eventually recognised. The evidence was clear that Ms Blackbourn had started a new relationship in the few weeks before her death.

[3] You were not prepared to accept that the relationship was over but on the day before you killed Ms Blackbourn, a mutual friend, whom you had been using as a go-between, told you that Ms Blackbourn wanted to move on with her life and that you needed to do the same. That news, delivered late in the evening of 25 June

2010, seems to have been the last straw for you. In the early evening of the following day you sent Ms Blackbourn two texts to which she did not reply. You then drove to Glenfield where she lived, parked in another street, walked to her address and down the long driveway that led to her house. The Crown case was that you took a knife with you. You do not accept that but I am completely satisfied on the evidence that you did. By the time you got to her front door you were in breach of the trespass order. It seems, however, that Ms Blackbourn may have let you in voluntarily. There was no sign of a struggle in the lounge. The forensic evidence, however, tells its own story as to what happened next. Ms Blackbourn had substantial bruising on her neck consistent with being strangled. She had had sexual intercourse which, in the circumstances, the jury found to have been non-consensual.

She had a deep stab wound to her chest that had penetrated the sternum. She had a stab wound to her neck that had severed her carotid artery.

[4] The Crown case, which the jury accepted, was that you had got Ms Blackbourn into the bedroom, strangled her, raped her and stabbed her twice. You then set fire to the bedroom. Ms Blackbourn’s body was burnt beyond recognition and a good part of the house seriously damaged.

[5] The account that you gave at trial as to what happened that night was utterly implausible. Indeed, to those in court who had listened to the Crown evidence it was a repellent account. The particularly disturbing aspect was not that it was ludicrous but that it used personal difficulties in Ms Blackbourn’s own life to paint her death as an unfortunate accident with her as the aggressor and you as the innocent victim. Your evidence displayed a shocking arrogance and complete refusal to take responsibility for you actions.

[6] The consequences of Ms Blackbourn’s murder are evident from the victim impact statements and from some of the evidence at trial. Ms Blackbourn was an English woman who had lived here for many years. She was a vivacious, well-liked and courageous woman. But she suffered the ongoing effects of childhood trauma and life continued to be a struggle for her in many ways. Her mother and brother in England have written of their devastation at her death and the grief caused by the terrible circumstances in which she died. Ms Blackbourn was a loved and valued friend and the victim impact statements show just how important she was in the lives of her friends.

[7] For a judge sentencing in a case such as this the main objective is holding the offender accountable for the harm he has done, promote a sense of responsibility and acknowledgement of that harm, denounce and deter the conduct, protect society, provide for the interests of the victims, provide reparation for harm done and to any extent possible provide for rehabilitation and reintegration of the offender. I am required to apply certain principles in sentencing. Relevantly in this case I need to take into account the gravity of the offending, the seriousness of the type of offences and the desirability for consistency in sentencing.

[8] Although I need to impose separate sentences in respect of each of the offences they will be served concurrently and the sentence ultimately imposed must reflect the totality of your offending. The sentence you serve for the murder charge will, of course, be the longest sentence and I start with that.

[9] It is clear that the sentence must be one of life imprisonment. The real issue today is the minimum period of imprisonment that you must serve. It must be at least ten years.[1] Whether it is greater than that depends on the circumstances that are described as aggravating factors, that is, things that made the crime worse. Depending on those factors the minimum period of imprisonment may be increased if I consider it necessary to do so to hold you accountable, denounce and deter your conduct and protect the community from you. However, s 104 of the Sentencing Act also requires me to impose a minimum term of imprisonment of at least 17 years if certain specified factors exist unless it would be manifestly unjust to do so.[2] The Crown says in this case that such circumstances do exist. Your lawyer has submitted that they do not and Mr Anderson has made in his written and oral submissions every argument that could possibly have been made on your behalf.

[10] The first question is whether this murder involved calculated or lengthy planning, which would trigger the higher minimum period of imprisonment.[3] I find that there was an element of premeditation in this murder but I could not say it was calculated or the subject of lengthy planning. You accepted that the knife was yours and your account of how it came to be in Ms Blackbourn’s house was implausible. I find that you took it knife from your house and brought it with you. You did so in

the knowledge that you were not permitted to go to her house and that she did not wish to reconcile with you. You knew that Ms Blackbourn was a petite woman whom feared for her physical safety. There was no innocent explanation for taking the knife. The only rational explanation was to inflict injury and, with a knife, that must carry the risk of fatal injury. But, nevertheless, the circumstances suggest that

_{this was a rather impulsive plan and the element of premeditation lay only in taking}

the knife and parking away from Ms Blackbourn’s house to avoid detection rather than a more calculated plan.

[11] The second question is whether, as the Crown invites me to find, you were unlawfully in Ms Blackbourn’s house when you killed her. That is significant because murder that involves unlawful entry into or unlawful presence in a dwelling is one of the factors that will trigger the higher minimum period of imprisonment under s 104. Although the Crown invites me to find that you used force on entering the house and unlawfully entered it I cannot be sure of that; it is possible that Ms Blackbourn consented to you coming in, in which case you would not have entered unlawfully, notwithstanding the trespass notice. However, I am in no doubt that such consent was revoked by the time you embarked on the rape. That necessarily occurred before you killed Ms Blackbourn and as I have said today in discussion with your counsel, you could have stopped there. You did not need to go on and kill her. I therefore treat the murder as one committed while you were unlawfully in Ms Blackbourn’s house.

[12] The third factor that would trigger the higher minimum period of imprisonment under s 104 is if there were exceptional circumstances. The Crown in this case says there were and I agree with them. There is no question that Ms Blackbourn died a violent and awful death, having been raped and strangled before being fatally stabbed. As is often observed, murder is, by its very nature, brutal and cruel. The higher minimum period of imprisonment is reserved for the most serious cases and, in the absence of any other factors, a fatal stabbing involving two stab wounds would be unlikely to attract the higher period. However, the circumstances of the murder are to be considered in their entirety, which includes the

murderer’s conduct before and after.[4] I consider that the circumstances in this case

are exceptional for the following reasons.

[13] The murder was preceded by your strangling and raping Ms Blackbourn. She was a vulnerable woman with a history of sexual abuse for whom rape would have been particularly terrifying, as you well knew. She was also a very petite woman

_{who stood no chance at all against a man with a knife.}

[14] After you had killed Ms Blackbourn you set fire to her bedroom, burning her body almost completely. The photographs of her remains that the jury were required to consider were distressing. This indignity compounded the dreadful way she died and caused unimaginable grief to her family and friends. Your lawyer has told me that you stand by the claim you made at trial that you set fire to the bedroom solely for the purpose of committing suicide. Having heard all the evidence, I am satisfied that this explanation is not plausible. The Crown case was that, having set the fire to destroy the evidence, including your blood-stained clothes, you belatedly realised that your car-keys were still in your pocket and went back to get them. This was consistent with your injuries, which were limited to burns on your hands and arms. At trial you could not offer any explanation at all as to how you came by those injuries. More significantly, the statements you made to those attending the fire in the minutes after you left the house did not in any way suggest that you had set the fire for this reason. Completely to the contrary, you offered the explanation about the fire having been caused accidentally by candles. I consider your explanation regarding the fire to be as false as the rest of your account of that night.

[15] For these reasons, I am satisfied that I must impose a minimum period of imprisonment of at least 17 years unless it would be manifestly unjust to do so. Although there is nothing in the circumstances of the offending that would make it so, your lawyer has raised aspects of your personal circumstances that could make such a sentence manifestly unjust. You are a 30 year old man and your pre-sentence report shows you to be a troubled and insecure man with a deep-seated fear of being alone and a long-standing drug and alcohol problem. You were depressed at the time of the offending. Mr Anderson has described your crime as one of passion, brought about by a pathological reaction to Ms Blackbourn’s rejection of you and your obsession with her. However, there is no medical evidence of any psychological or medical condition. Nor was this a situation where you were taken by surprise and acted without thinking. There was clearly an element of premeditation. The legal consequences of this crime are not unjust simply because you were obsessed.

[16] Mr Anderson has also referred to a previous head injury but without medical evidence to suggest that it was a contributing factor I cannot place significance on it.

[17] This leaves me with the question of the appropriate minimum period of imprisonment. I have considered carefully the similarities between this case and the Weatherston case. Both counsel agree that it is obvious that the actual violence in Weatherston was much worse than the two stab wounds you inflicted but there are other similarities.[5] In that case the appropriate minimum period was regarded as nineteen years and the Judge reduced that by one year for mitigating features.

[18] For the reasons I have outlined, yours was a truly appalling crime committed against an unusually vulnerable woman. There are no mitigating features I can take into account and although, in looking at the comparison between this case and Weatherston, the actual violence was worse than Weatherston that is amply made up for by the shocking conduct of the rape before the murder and the burning of Ms Blackbourn’s body afterwards. So looking at it in the round I consider that Weatherston is a fair comparison for this purpose. I therefore conclude that the appropriate minimum period of imprisonment is 19 years.

[19] I must also impose separate sentences in respect of the rape and arson, though they will be served concurrently with the term imposed for murder and should not be uplifted for their various aggravating features, given their role in bringing the murder into s 104. I impose a term of eight years for the rape. For the arson, taking account of the guilty plea entered at the beginning of the trial, I impose a term of four-and-a- half years.

[20] The crimes of murder and rape are serious violent offences for the purposes of the Sentencing and Parole Reform Act 2010. Upon your conviction at the end of the trial I omitted to warn you of the consequences of being convicted of any further serious violent offences and I therefore do so now.[6] If you are convicted and sentenced to imprisonment for any violent offending other than murder after this warning, you will serve that sentence without parole or early release. If you are convicted for murder committed after this warning, you will be sentenced to life

imprisonment and will serve that sentence without the possibility of parole unless

_{that would be manifestly unjust.}

[21] The final matter is the question of reparation. Despite the appalling crimes against Ms Blackbourn, there was one other victim and that was the owner of this house which Ms Blackbourn rented and that owner has suffered, as has his insurance company, the cost of rectifying the damage that you did. That damage came to

$73,529.57 and notwithstanding your currently impecunious circumstances I make

_{an order for reparation of that amount. Stand down.}

P Courtney J

---

[1] _{Sentencing Act 2003, s 103.}
[2] _{S 104.}
[3] S 104(b).

[4] R v Reekers [2011] NZCA 383.

[5] _{R v Weatherston HC Christchurch CRI 2008 -012-137, 15 September 2009.}

[6] s 372 Crimes Act 1961.