Brewster v The the Queen - [2022] NZCA 147

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA667/2021
[2022] NZCA 147

BETWEEN	MICHAEL JOHN BREWSTER Appellant
AND	THE QUEEN Respondent

Hearing:	24 March 2022
Court:	Goddard, Simon France and Hinton JJ
Counsel:	E J Forster for Appellant R K Thomson and R E King for Respondent
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…

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 Brewster v The the Queen

Details

AGLC: Brewster v The the Queen [2022] NZCA 147
Case: [2022] NZCA 147
Decision Date: 28 April 2022 at 11.30 am

CaseChat Overview and Summary

Michael John Brewster appealed against his sentence for burglary and breach of a trespass warning, imposed by Judge Krebs, after he entered the home of his former partner at night, causing her distress. The appeal against the sentence of seven months’ home detention was dismissed by the Court of Appeal of New Zealand. The legal issues the court was required to decide were whether the starting point for the sentence was appropriately set at 20 months' imprisonment, and if the sentence was within the appropriate range. The Court of Appeal considered the submissions made by the appellant and the Crown, and whether the domestic context and the desire to intimidate rather than steal property necessarily rendered the burglary less serious or of a different type. The Court found that the starting point was within the range applicable to burglaries of residential homes with these aggravating features and that the sentence was not manifestly excessive. Therefore, the appeal against sentence was dismissed.

Orders