Unsworth v Police

[2022] NZHC 1159

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2022-441-000006

[2022] NZHC 1159

BETWEEN

DEAN NICHOLAS UNSWORTH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

24 May 2022

Counsel:

S B W Yee for Appellant

B L McKenzie for Respondent

Judgment:

25 May 2022

JUDGMENT OF SIMON FRANCE J

[1]    Mr Unsworth appeals a sentence of 12 months’ imprisonment imposed for offences of breach of a protection order and possession of a knife in public.1 The sentence structure was a 12 months’ starting point for the breach of protection order charge, a two months’ uplift for the knife offence and a two month (14 per cent) discount for early guilty pleas.

[2]    Mr Unsworth was homeless at the time of the offending. Police were alerted to his knife possession by members of the public who had seen him openly carrying it. Mr Unsworth has previous convictions for carrying a knife (2009) and possession of an offensive weapon (2013). He said he was carrying the knife for protection.

[3]    The protection order is in favour of his mother and has been in place since 2008.   After a period of little offending generally and none for a breach such as this,

1      New Zealand Police v Unsworth [2022] NZDC 4468.

UNSWORTH v NEW ZEALAND POLICE [2022] NZHC 1159 [25 May 2022]

Mr Unsworth was convicted in 2021 for offences committed on the same day in September 2001. They were possession of methamphetamine, and the utensils, being unlawfully in a building and contravening the protection order. The total sentence was three months’ imprisonment.

[4]    On 2 January 2022 Mr Unsworth had gone to his mother’s address in breach of the order. Police had been called and Mr Unsworth was removed. He was warned not to return. The following day he again entered the house through a window. He was located hiding in the corner of the front bedroom. He told the arresting officer he had gone there to have a sleep. These two events occurred not long after his release on the three month sentence.

[5]    On Mr Unsworth’s behalf, Mr Yee submits a 12 month starting point is too high for a non-violent breach of a protection order. Reliance is placed on Prince v Police where Cooke J identified a general starting point of four months, but recognising that could increase depending on the circumstances.2

[6]    While I accept that statement appears in Prince, two of the three cases then cited in that judgment have a higher starting point, with one, Morris-Stewart v Police having a 12 month starting point where the breach was by way of abusive texts. In that case, in a passage cited in Prince, Wylie J observed there was no tariff3 and continued:

[15] The Court of Appeal has stated that the Courts should uphold the integrity of protection orders and respond sternly to those who flout their force and effect. Orders are intended to ensure that the recipient of the protection order is secure and inviolate. Repeated breaches of protection orders call for a condign sentencing response. Where there has been repeat offending over a brief period of time, a short term of imprisonment is the proper response.

[7]    Also relevant is Thompson v Police where it is submitted Cull J agreed with the Prince comments, although again it can be noted the actual starting point in that case was nine months. By contrast the Crown refer to Crean v Police and Carlyon v Police, both non-violence albeit the latter has yelling and abuse, where starting points

2      Prince v Police [2019] NZHC 1742.

3      Morris-Stewart v Police [2015] NZHC 1030 at [14]–[15]. Footnotes omitted.

of 15 and 18 months respectively were upheld. In both those cases the existence of past breaches was considered significant.

[8]    The material presented on this appeal does not in my view support a broad proposition of a general four months starting point for non-violent breaches. The consistent absence of a tariff reflects the variety of circumstances that arise with these cases. This is not only as regards the offender’s record of past breaches, but also the circumstances of the particular offence. In Green, for example the complainant and defendant were happily drinking together but the defendant refused to leave. That is very different from here where the appellant broke into the home of the protected person.

[9]    I accept here the underlying context of wanting to sleep is comparatively innocuous but care is needed as the protection order exists for a reason and there is a history of contact that can make the apparently innocuous nevertheless quite traumatic for the complainant. Here Mr Unsworth had breached the previous day but been dealt with by a warning, and had breached four months earlier for which he had been imprisoned. The present breach was effected by way of breaking into the complainant’s home. That is a serious aggravating factor. It occurred not long after release from a prison term imposed for the previous breach. I am not satisfied the starting point is excessive.

[10]   Concerning the possession of knife uplift, Mr Yee submits the sentencing Court erred in identifying three previous convictions for possession of a knife. There is only one, albeit four other convictions for possession of an offensive weapon. It can be noted these were committed in 2002, 2007, 2008 and 2013, so all are dated. The Crown has provided a summary of facts to confirm the 2013 offending concerned a knife.

[11]   In these contexts of small uplifts, it is difficult to say two months is excessive but one month was not. The differences are small, but I accept the uplift is reasonably stern given the offending was possession simpliciter.

[12]   The other primary ground of appeal is the size of the discount for a guilty plea. The Judge noted Mr Unsworth had no defence, and the reduced size of a discount for

this reason is supported by comments in Hessell v R.4 However, as the Crown accepts, Mr Unsworth’s plea was particularly prompt. He was arrested on 4 January and no doubt had an appearance that day. He pleaded guilty at the next scheduled Court appearance on 26 January. It was in my view a clear case for the full discount.

[13]   Mr Yee submits there could have been credit for remorse. The Judge considered this and rejected there was remorse. There was a clear basis for the conclusion and no basis to disturb it on appeal.

Conclusion

[14]   I consider a full guilty plea discount should have been given. That would have been three and a half months. I also have the view that the knife uplift was towards the top of the range. These two factors lead me to the view that the sentence should be adjusted, albeit it will be a comparatively small change.

[15]   The pre-sentence report recommended intensive supervision. The Judge considered it not a viable sentence given Mr Unsworth’s lack of suitable address. I accept Mr Yee’s submission that the Court might have explored the option with the Department given it would have been aware of Mr Unsworth’s homelessness when making the recommendation. However, given the amount of time now already served, and the impact of the adjustment now to be made, substituting a different sentence on appeal does not seem the correct approach.

[16]   The appeal is allowed. The sentence of one year’s imprisonment for breach of the protection order is quashed and a sentence of 10 months’ imprisonment substituted. The concurrent sentence, and the orders concerning release conditions are unchanged.

Simon France J

Solicitors:

Crown Solicitor, Napier for Respondent

4      Hessell v R [2010] NZSC 135 at [72].