Brewster v The the Queen
[2022] NZCA 147
•28 April 2022 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA667/2021 [2022] NZCA 147 |
| BETWEEN | MICHAEL JOHN BREWSTER |
| AND | THE QUEEN |
| Hearing: | 24 March 2022 |
Court: | Goddard, Simon France and Hinton JJ |
Counsel: | E J Forster for Appellant |
Judgment: | 28 April 2022 at 11.30 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Mr Brewster was convicted following a jury trial of burglary and breach of a trespass warning. The premises in question were the home of his former partner. The incident occurred not long after separation. Mr Brewster entered at night through a window and showed himself to her in her bedroom. The jury was directed it had to be sure that when Mr Brewster entered the house:
… he intended to threaten the occupant by intimidating or annoying her.
A conviction appeal was filed but was subsequently abandoned. The sentence imposed by Judge Krebs of seven months’ home detention is the subject of appeal.[1]
Facts
[1]R v Brewster [2021] NZDC 20203.
The following extract from the sentencing notes adequately captures the facts:
[2] [Mr Brewster] and the victim had been in a relationship but have separated. There are ongoing and protracted Family Court disputes. A trespass notice has been served by the victim on the defendant. That was breached by the defendant on the night in question. He gained entry through a window at the back of the victim’s property. The victim was in bed at the time and was disturbed by the sound of the defendant coming into her property. He moved around between rooms and eventually was in a position where she was able to see him. He did not do anything in particular other than to stare at her while she remained in bed.
The Judge drew the inference that Mr Brewster was intent on demonstrating his ability and willingness to disregard the trespass warning. It is noted that the victim was traumatised by the event.
The appellant
Mr Brewster was 46 years old at the time of sentencing. He has minor convictions dating back to his youth. At the time of sentencing he maintained his denials of the offending, the defence having been that he did not enter the house on the night.
Mr Brewster has a medical condition which at the time of sentencing required him to be in a wheelchair. He is in a new relationship and is engaged to his partner. As the sentence being appealed indicates, he proffered a suitable address and was himself assessed as suitable for an electronically monitored sentence if that was an option.
Sentencing
The Judge identified the aggravating features as being that it was a residential burglary carried out at night. The fact that it was in breach of a trespass notice, and designed to intimidate were also aggravating factors, requiring a starting point for both offences of 20 months’ imprisonment. There were no uplifts applied.[2]
[2]At [18]–[19].
Concerning discounts the Court deducted four months in recognition of restrictive bail conditions, and two months for good character. That left an end sentence of 14 months’ imprisonment which was converted to seven months’ home detention. Had that change in the type of sentence not occurred, the Judge indicated the length of any actual term would have been further reduced to reflect the difficulty Mr Brewster would confront if serving time in prison.[3]
Submissions
[3]At [21]–[22].
The focus of the appellant’s submissions is the starting point, it being contended that the figure should have been around 12 months rather than the 20 months adopted. The key proposition underpinning this is that the offending should not be aligned with normal burglary cases. Mr Forster, counsel for Mr Brewster, submitted that intimidation at this level was less serious than other burglaries typically involving theft or property damage. Further, although there was intimidation, there was no actual violence nor threats of that. Mr Brewster left quickly and it was one‑off offending.
Mr Forster identified three cases involving what was submitted to be more serious conduct where the starting point was comparatively less stern.[4] Of these we note Sila v Police as best supporting his position. The facts have a degree of similarity to the present case.
[4]Mitchell v New Zealand Police [2019] NZHC 3264, [2019] NZFLR 532; Sila v Police [2012] NZHC 1982; and Millar v Police [2016] NZHC 991.
In Sila v Police, Mr Sila entered his former partner’s house at night through an unlocked door. He stood over her while she slept, then woke her. He was holding a knife. Mr Sila checked who was in the bed with her (a female friend), said she was lucky and that if he saw a guy he would kill both of them.[5] This led to charges of burglary and threatening to kill to which he pleaded guilty.[6] The High Court considered a starting point of 22 months’ imprisonment to be appropriate, suggesting 18 months would have been imposed for the burglary standing alone.[7]
[5]Sila v Police, above n 4, at [2]–[4].
[6]At [6].
[7]At [18]–[19].
Ms King, who argued this appeal for the Crown, submitted the context of intimidation did not make it less serious than property burglaries, and the starting point was well within the range applicable to burglaries of residential homes with these aggravating features.
Arising from discussion at the hearing, counsel were provided the opportunity to file submissions focusing on whether a breach of protection order involving unauthorised entry into a residence but no burglary charge might be differently sentenced. As it happens, counsel did not locate any case exactly of that type. However, Thompson v Police involved the defendant walking through a front door having been told not to.[8] The particular charge was breach of a protection order, the conduct being engaging without reasonable excuse in behaviour which amounted to psychological abuse of a protected person. The starting point identified by the High Court on appeal was nine months’ imprisonment.[9]
[8]Thompson v Police [2020] NZHC 20.
[9]At [22].
Mr Forster identified some cases where there were charges of both breach of a protection order and burglary. His submission is that the starting points in those cases should be higher than the present because of the additional factor of the protection order breach. That they were not higher suggests, in his submission, that the present starting point is too high.
Noted were Behan-Kitto v Police,[10] Gibb v R[11] and Mitchell v R,[12] the latter two being decisions of this Court. In Gibb v R, Mr Gibb went to his ex-partner’s house, entered the address and stole various items worth $1,800. The offending also breached the terms of a protection order. The case does not assist the appellant. This Court noted that a starting point of “at least 18 months’ imprisonment” was required for the burglary, the issue being what extra should be added for the breach of the protection order.[13]
[10]Behan-Kitto v Police [2017] NZHC 2101.
[11]Gibb v R [2017] NZCA 532.
[12]Mitchell v R [2013] NZCA 583, (2013) 29 FRNZ 498.
[13]Gibb v R, above n 11, at [8].
Mitchell v R is one of a number of decisions concerning the same defendant who has harassed a couple for more than a decade. There have been numerous convictions, and a significant history of incarceration. It is a series of decisions that reflect the somewhat unusual circumstances. In the particular case the charges were breach of a protection order and intentional damage.[14] It is not a decision that assists the present analysis. Finally, we regard Behan-Kitto as a decision on its own facts and not one particularly relevant to determining whether the present starting point is within range. Generally, it has not been shown that the present offending should be sentenced outside the context created by the charges and facts.
Decision
[14]Mitchell v R, above n 12, at [2].
As with Behan-Kitto, we also regard Sila as a decision on its own facts and not in any sense a tariff judgment. Nevertheless in our view it tends more to support the current sentence than challenge it. The difference between the 18 months taken there for the burglary and the 20 months taken here reflects the reality of sentencing ranges, and the particular matters that can influence location within that range. Ms King relied on Arahanga v R where this Court identified that minor end burglaries of a domestic residence will attract starting points of 18 months’ through to 30 months’ imprisonment.[15]
[15]Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
While we accept that the motive for a burglary can influence its seriousness, as will other factors such as what actually happens and how entry is achieved, we reject the submission that the domestic context and the desire to intimidate rather than steal property necessarily renders a burglary less serious or of a different type. That particular context, which involves characteristics of oppression and dominance so prevalent in domestic offending, does not diminish culpability. We accept that the lack of any actual threats, and the relatively brief nature of the incursion, keep this offence towards the lower end of the spectrum. Based on the authorities we have considered, 20 months’ imprisonment is towards the top of the range for a burglary of this type but we could not say it was a manifestly excessive starting point. There was no challenge to the discounts. It follows that the end sentence was within range, and has not been shown to be wrong.
Result
The appeal against sentence is therefore dismissed.
Solicitors:
Crown Law, Wellington for Respondent
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