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…

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 Unsworth v Police

Details

AGLC: Unsworth v Police [2022] NZHC 1159
Case: [2022] NZHC 1159
Decision Date: 25 May 2022

CaseChat Overview and Summary

In Unsworth v Police, the appellant, Dean Nicholas Unsworth, contested the severity of a 12-month imprisonment sentence imposed for breaching a protection order and possessing a knife in public. The New Zealand Police were alerted to Mr Unsworth's possession of the knife by the public, who observed him openly carrying it. The court noted that Mr Unsworth had a history of carrying knives, with previous convictions in 2009 and 2013. The protection order in question had been in place since 2008, in favor of Mr Unsworth's mother, and he had previously been sentenced to three months' imprisonment for a similar breach in 2021.

The primary legal issue before the court was whether the 12-month starting point for the breach of the protection order was appropriate, given that the breach was non-violent. The court considered various cases to determine an appropriate starting point, ultimately concluding that the circumstances of each case were unique. The court found that while the underlying context of Mr Unsworth's actions was comparatively innocuous, breaking into his mother's home was a serious aggravating factor. Additionally, the court found that the two-month uplift for the knife offence was reasonably stern, and that the three-and-a-half-month discount for Mr Unsworth's guilty plea should have been granted in full.

The court concluded that the appeal should be allowed, with the sentence of one year's imprisonment for breach of the protection order being quashed and a sentence of 10 months' imprisonment being substituted. The court noted that the pre-sentence report had recommended intensive supervision, but found that this was not a viable sentence given Mr Unsworth's lack of a suitable address. The concurrent sentence and the orders concerning release conditions were left unchanged.

In summary, the court found that the sentence imposed on Mr Unsworth was too severe, given the appropriate discount for his guilty plea and the relatively small uplift for the knife offence. The court substituted a sentence of 10 months' imprisonment for the breach of the protection order, while leaving the concurrent sentence and release conditions unchanged.

Orders