Brewer v Police HC Dunedin CRI-2011-412-000025
[2011] NZHC 1530
•28 September 2011
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2011-412-000025
PAUL EDWARD BREWER
v
POLICE
Appearances: D McCaskill for Appellant
R Smith for Respondent
Judgment: 28 September 2011
ORAL JUDGMENT OF HON JUSTICE FRENCH
Introduction
[1] Following pleas of guilty, Mr Brewer, the appellant, was convicted in the
District Court of two charges:
(i) Threatening to kill.
(ii) Possession of an offensive weapon.
[2] He was sentenced to a term of imprisonment of two years and two months. He now appeals that sentence.
Facts of the offending
[3] On the morning of 10 May 2011 Mr Brewer was at the reception area at the
Prisoner Aid and Rehabilitation Office in Dunedin, having gone there to get help.
BREWER V POLICE HC DUN CRI-2011-412-000025 28 September 2011
He told a staff member that he was going to travel to Invercargill, obtain a firearm and then use it to blow away the victim. He held his hands in front of his face and gestured as if he was firing a rifle. He then pulled a hunting knife from a bag in his possession, and extended the blade. He showed the blade to another client.
[4] The victim is a 35 year old woman with whom Mr Brewer used to board. When interviewed by the police about the incident, he said he was angry with her over the loss of some of his property. He also admitted to police that he had thoughts of killing her, and that he had bought the hunting knife to do just that. He also said he was glad he had been apprehended.
Sentencing in the District Court
[5] The victim impact report says that the victim was terrified when she learnt of the threat, as was her teenage daughter.
[6] The pre-sentence report told the Judge that Mr Brewer is 48 years of age, unemployed and with a significant criminal history. He has some 42 previous convictions. Significantly, 23 of these involve violence, including convictions for intimidating, threatening behaviour, threatening to kill, kidnapping, possession of an offensive weapon, assault with stab/cutting instrument and aggravated robbery.
[7] 14 of these previous convictions have resulted in terms of imprisonment.
[8] The report noted a lack of remorse, stating that Mr Brewer minimised his offending. In the assessment of the report writer, Mr Brewer poses a significant risk to the community. Factors identified as contributing to his offending were propensity to violence, unhelpful lifestyle balance and self-acknowledged mental health difficulties.
[9] The report also noted that the offending had occurred while Mr Brewer was on parole, having been released from prison the week before. He had been sent to prison for the offence of assault with stab/cutting instrument.
[10] In his sentencing notes, the Judge said that his primary concern was to hold Mr Brewer accountable and at least protect the community for a time. He noted he was not sure that imprisonment had any deterrent effect because of Mr Brewer’s continuing offending.
[11] The Judge took as his starting point a term of imprisonment of two years, taking into account “the serious of the offence, the gravity of the offending, your culpability and the totality of the offending”. The Judge then increased that starting point by an uplift of eight months on account of Mr Brewer’s previous convictions for violence. That provisional sentence of two years and eight months was then reduced by six months on account of the guilty pleas. The percentage involved is approximately a 19 per cent discount.
[12] The Judge then sentenced Mr Brewer to a term of imprisonment of two years and two months on the charge of threatening to kill. On the charge of possession of the knife he sentenced Mr Brewer to 18 months’ imprisonment concurrent.
Grounds of appeal
[13] On appeal, counsel Mr McCaskill submits that the length of the prison sentence was manifestly excessive.
m
[14]
argu
In support ents:
(i)
of that submission Mr McCaskill advanced the following
The starting point was too high having regard to the fact that
the victim was not present and in no immediate danger. (ii)
The starting point was too high having regard to sentences imposed when actual violence occurs.
(iii)
The Judge should have taken into account the fact that Mr
Brewer is an intelligent man, now able to recognise he has
problems and motivated to deal with them. His thoughts of
killing the victim had evaporated almost as soon as he left the shop where he purchased the knife.
[15] Mr McCaskill accepted that because of the previous convictions a prison sentence was inevitable, but submitted that two years, two months was too long. In his submission, the appropriate starting point should have been in the vicinity of six to 12 months.
[16] I am unable to accept those submissions. In my view, comparator cases show that the starting point of two years was clearly within range, and that although the victim was not present when the threat was made, that of itself does not mean a custodial sentence is not warranted.[1] I refer in particular to the decision of Edmonds, where Wild J undertakes a survey of the relevant authorities.
[1] Police v Edmonds HC Napier AP24/01, 29 June 2001; R v McVeagh CA140/94, 4 August 1994;
R v Cherri CA230/89, 6 September 1989; Russell v Police AP78/93, 16 September 1993.
[17] I am also satisfied that the uplift on account of previous convictions was fully justified. That is particularly so when one has regard to the further aggravating personal factor, namely that this offending occurred while Mr Brewer was on parole. The record is alarming, and the interests of protecting members of the public was certainly something the Judge was entitled to emphasise in the circumstances of the case.
[18] In short, as Mr Smith put it, having regard to the circumstances of the offending and the circumstances of this particular offender, a term of imprisonment of this length was warranted.
[19] I can see no basis for interfering with the decision, and the appeal is accordingly dismissed.
Solicitors:
D McCaskill, Dunedin
Crown Solicitor’s Office, Dunedin
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