Unsworth v The King

[2023] NZHC 755

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2022-419-86

[2023] NZHC 755

IN THE MATTER

of an appeal against sentence

BETWEEN

JARRED UNSWORTH

Appellant

AND

THE KING

Respondent

Hearing:	30 March 2023
Appearances:	T Sutcliffe for the Appellant P Noorland for the Crown
Judgment:	5 April 2023

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 5 April 2023 at 12:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Hamilton Legal (Office of the Crown Solicitor), Hamilton Counsel:        T Sutcliffe, Barrister, Hamilton

UNSWORTH v R [2023] NZHC 755 [5 April 2023]

Introduction

[1]    On 1 November 2022, Jarred Unsworth was sentenced to three years and  nine months’ imprisonment at the District Court in Hamilton, having pleaded guilty to charges of aggravated burglary, wounding with intent to cause grievous bodily harm, injuring with intent to injure and common assault (x 2).1

[2]    Mr Unsworth appeals his sentence on the grounds that the discounts applied for the following factors were insufficient:

(a)remorse, engagement in restorative justice and the payment of emotional harm reparation; and

(b)youth

[3]Mr Unsworth does not appeal against the starting point adopted by the Judge.

Background

[4]    On 23 July 2021, Mr Unsworth’s girlfriend, Ms A W, had been socialising in town with a girlfriend before meeting up with the complainant, Mr A S, and his friend. Ms A W subsequently made serious allegations against Mr A S’s friend. Mr Unsworth learnt of the allegations and sought to retaliate.

[5]    On 26 July 2021, Mr A S arranged to return Ms A W’s phone to her. When Mr A S arrived to return the phone, Mr Unsworth confronted Mr A S and chased him with a tyre iron. Mr Unsworth messaged Mr A S from Ms A W’s phone saying:

I was going to smash your head in on the side of the road just before but I seen your friend drive forward a little to get away. If any of yous had the balls you would of smashed me just before. So keep talking and making me angry. Just means you’ll be spending a long time in hospital.

[6]    On 30 July 2021, Mr Unsworth travelled in a motor vehicle to various locations to pick up his co-defendants, Ms A W’s brother and two other men. Together, they drove to the complainant’s address, arriving at about 11:45 pm. Mr Unsworth’s

1      R v Unsworth [2022] NZDC 21440.

associates were armed with homemade weapons including a skill saw blade attached to a wooden handle, a knife attached to a wooden handle that was approximately one metre in length, and an axe.

[7]    The four complainants, Mr A S (16), his aunt (28), his grandmother (54) and his grandfather (54) were in bed when they heard loud banging on the front door by Ms A W’s brother who stated it was the Police. Mr A S checked the door. He saw people wearing hoods over their heads and masks over their faces. He phoned 111. Mr Unsworth and his associates continued banging on the front door. Meanwhile, the complainants barricaded themselves in a bedroom.

[8]    Mr Unsworth began video recording on his cell phone while his three co- defendants forced entry into the address by smashing the glass window next to the front door and breaking the front door. The co-defendants broke through the hallway door and started smashing a hole in the bedroom door where the family were barricaded by kicking and hitting it with their weapons. The knife went through the door and narrowly missed Mr A S’s aunt. One of the co-defendants then reached through the hole and pulled Mr A S’s aunt to her feet by her hair.

[9]    The co-defendants gained entry into the bedroom through the hole they had made in the door. They began to attack Mr A S with the weapons, hitting him multiple times across his head and legs. Mr Unsworth remained in the doorway recording the attack.

[10]   Mr A S was seriously injured. He was knocked unconscious, received multiple skull fractures, a brain bleed and suffered a 10 cm by three cm transverse laceration to his calf muscle. He required transportation to Waikato Hospital for surgery and ongoing monitoring for a brain bleed and fractures. Mr A S’s grandmother was punched and kicked when she tried to defend her grandson. She suffered bruising and swelling. Mr A S’s aunt was kicked in her back and stomach by one of the co- defendants. Mr A S’s grandfather remained in the bed throughout the attack as he was unable to stand unaided. One of the defendants started yelling at him and grabbed him by his hand and tried to pull him out of the bed. Mr A S’s aunt and grandfather did not receive any visible injuries.

[11]   Mr Unsworth showed the video of the attack to his partner, Ms A W, and sent it via Facebook messenger to Ms A W’s brother.

District Court sentencing

[12]   The sentencing Judge, Judge N D Cocurullo, took the charges of aggravated burglary and grievous bodily harm as the lead charges. In accordance with his sentencing indication, he adopted a starting point of nine years and six months’ imprisonment with a discount for guilty pleas of 25 per cent. This starting point is not challenged on appeal.

[13]   Noting the pre-sentence report and the s 27 cultural report, the Judge considered the appropriate discount for Mr Unsworth’s personal circumstances. The Judge noted Mr Unsworth’s youth, but also recognised the profound impact that    Mr Unsworth’s offending had  on  the  complainants  and  their  family.  Although Mr Unsworth was not the one who inflicted the violence, he was an active participant in the offending by encouraging and videoing the significant assaults. The judge considered that a discount of 15 per cent was appropriate for the matters raised in the s 27 report.

[14]   The Judge noted Mr Unsworth’s payment of $5,000 for the emotional harm caused to the victims, his participation in restorative justice conferences and his remorse. For these factors, the Judge allowed a discount of 10 per cent.

[15]   Mr Unsworth had previous driving offences, however the Judge considered that Mr Unsworth, on balance, had good character. This warranted  a discount of  five per cent. The Judge granted a further discount of five per cent for Mr Unsworth’s youth.

[16]   The Judge noted that combined, these discounts amounted to discounts totalling 60 per cent. Applying these to the starting point of 114 months, the final sentence imposed was one of 45 months’ or three years and nine months’ imprisonment.

Approach on appeal

[17]   This appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. Section 250(2) of the Criminal Procedure Act requires that this court must dismiss the appeal unless it is satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed.

[18]   Section 250 makes no reference to a requirement for the sentence imposed to have been “manifestly excessive”. However, it is well established that whether a sentence is manifestly excessive is relevant to the determination of a sentence appeal.2 The Court of Appeal has observed that sentence appeals will almost always turn on a consideration of whether the final sentence is manifestly excessive.3 Relevantly for this appeal, even if particular discounts were insufficient, the end sentence may not be manifestly excessive if other discounts were overly generous.

[19]   Hall’s Sentencing provides the following summary on this approach to sentencing appeals: 4

In simple terms, the issue of whether a sentence is manifestly excessive is to be determined with regard to the sentence actually passed rather than the precise process by which it is reached.

[20]   For Mr Unsworth to succeed in this appeal, he must demonstrate that there was a material error in the sentence imposed by Judge Cocurullo that has resulted in a manifestly excessive sentence.5

Appellant’s submissions

[21]   Mr Sutcliffe, for Mr Unsworth, submits that the end sentence is manifestly excessive. He submits that the Judge gave insufficient discounts for:

(a)remorse, engagement in restorative justice and the payment of emotional harm reparation; and

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].

3      Ripia v R [2011] NZCA 101 at [15].

4      Geoff Hall (ed) Hall’s Sentencing (NZ) (online ed, LexisNexis) at [APPII.5.1(b)].

5      Tutakangahau v R, above n 2, at [32]–[35].

(b)youth.

[22]   As for (a), Mr Sutcliffe referred the Court to the Supreme Court decision in Hessell v R.6 There the Court determined that the Court of Appeal had erred in bundling a guilty plea discount with remorse, which should be treated as a distinct mitigating factor.7 Discounts for remorse will, in general, be around 10 per cent.8 Counsel also notes, however, that discounts for remorse may be higher in recognition of “utmost efforts to participate in restorative justice, and for … remorse”.9

[23]   Mr Sutcliffe submits that Mr Unsworth’s remorse is genuine, exceptional, and demonstrated in a practical and material way. He submits that a discount of at least 10 per cent was appropriate for remorse alone. Mr Sutcliffe further submits that s 10 of the Sentencing Act 2002 (the Act) requires separate recognition for the $5,000 emotional harm payment. He submits that a discount of at least 15 per cent, but up to 20 per cent for Mr Unsworth’s remorse, participation in restorative justice and the payment of emotional harm reparation is appropriate.

[24]   For youth, Mr Sutcliffe notes that discounts for youth commonly range from 10 to 35 per cent. Mr Sutcliffe submits that a five per cent discount for youth was too modest and that a discount of at least 15 per cent is appropriate. Mr Sutcliffe referred to the Court of Appeal decision of Rolleston v R10 and suggested that a discount of  17 per cent would have been appropriate. In Rolleston, Mr Rolleston was convicted of serious sexual offences. He was sentenced to 11 years and two months’ imprisonment. Mr Rolleston appealed his sentence partially on the ground that the discount for youth applied by the District Court Judge was inadequate. At sentencing, Mr Rolleston received a ten-month reduction for youth (approximately seven per cent).11 The Court of Appeal considered that this discount was insufficient and determined that a discount of 17 per cent was appropriate because of the relatively young age of the appellant at the time of offending (age 19).12

6      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

7 At [64].

8      Gould v R [2012] NZCA 284 at [5].

9      A v R [2018] NZHC 543 at [22] and [56], where remorse warranted a discount of 15.62 per cent.

10     Rolleston v R [2018] NZCA 611, [2019] NZAR 79.

11 At [29].

12 At [42].

Respondent’s submissions

[25]   Counsel for the respondent submits that the sentencing discounts applied by Judge Cocurullo were appropriate and within range. In the round, the Crown submits that the sentence cannot be said to be manifestly excessive. The Crown submits that any appeal needs to consider the extent of the discounts on a totality basis and weighed against the gravity of the offending and purposes and principles of sentencing.

[26]   The Crown submits that the discount provided for Mr Unsworth’s remorse needed to be considered alongside the other discounts provided and the seriousness of the offending. The Crown referred to the Supreme Court’s decision of Hessell whereby the Court observed that remorse would generate an approximate discount of eight per cent. Counsel note that Mr Unsworth was afforded a discount of

11.4 months’, or 10 per cent. Counsel referred the court to the Court of Appeal decision in Solicitor-General v Milne where the Court held that a combined discount of no more than 20 percent would be appropriate for youth, rehabilitative prospects and $10,000 in emotional harm.13 Counsel submits that the discount provided was appropriate.

[27]   As for youth, counsel notes that Mr Unsworth received a discount of five per cent. Counsel submits that although age can be a mitigating factor under s 9(2)(a) of the Sentencing Act, there is no automatic presumption in favour of a youth discount. An assessment must be made in the specific circumstances of the case. Counsel referred the court to several cases, including Churchward,14 Mako15 and Pouwhare16 for authority that any discount for youth will depend on the seriousness of the offending, other aggravating factors, and the safety of the community. Counsel submits that Mr Unsworth’s offending was a planned, serious attack and a discount of five per cent for youth was therefore appropriate.

13     Solicitor-General v Milne [2020] NZCA 134.

14     Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

15     R v Mako [2000] 2 NZLR 170 (CA).

16     Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868.

Discussion

[28]   Although this Court must focus on whether the sentence in its totality was manifestly excessive, I will address each of the discounts appealed individually before assessing the sentence in its entirety.

Remorse

[29]   Section 9(2)(f) of the Act requires the Court to consider Mr Unsworth’s remorse as a mitigating factor. “Remorse need not be extraordinary to earn a discount, but it does require something more than the bare acceptance of responsibility inherent in the [guilty] plea.”17 Participation in restorative justice processes and payment of emotional harm reparation can be evidence of genuine remorse.

[30]   There is no dispute that Mr Unsworth’s remorse is genuine. Mr Unsworth has engaged in the restorative justice process and has contributed $5,000 as an emotional harm payment. While remorse and making amends are discrete factors, remorse is often demonstrated by an offer to pay reparation, and, in these circumstances, a discount of five to 10 per cent is not uncommon.18 At face value, the discount of 10 per cent granted by the Judge falls within this range.

[31]   Counsel for Mr Unsworth referred the court to A v R.19 In that case, a discount of 7.5 months was applied to a four-year starting point.20 This amounts to a discount of approximately 15.6 per cent. A v R, however, did not involve weapons or serious violence. In R v Buttar the Court of Appeal stated:21

[27] While recognising the benefits associated with the restorative justice process, the Sentencing Act requires a firm response from the Court to incidents of serious violence, particularly those involving the use of weapons. In such circumstances, as the Judge recognised, the Court cannot lose sight of the significance of the statutory purposes of denunciation and deterrence.

[32]   Thus, while discounts for remorse, participation in restorative justice and emotional harm payments can be higher than the 10 per cent granted here, this was a

17     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].

18     Hall, above n 4, at [I.7.1].

19     A v R, above n 9.

20 At [22].

21     R v Buttar [2008] NZCA 28.

violent attack involving weapons. And serious injuries were inflicted on multiple victims. Although Mr Unsworth was a party and did not inflict the injuries himself, the principles of denunciation and deterrence must be considered when determining the appropriate discount. The positive outcomes of the restorative justice conference must be balanced against other sentencing principles.22

[33]In my view, the discount of 10 per cent granted by the Judge was appropriate.

Youth

[34]   Section 9(2)(a) of the Act requires the Court to take into account the age of the offender during sentencing. The recent Court of Appeal decision in Dickey v R provides a summary of research on adolescent brain development that justifies discounts for youth:23

(a)Adolescent behaviour reflects the slow pace of the development of those parts of the brain that control higher-order executive functioning, such as impulse control, risk assessment and planning ability. Young people behave and react differently from adults due to biological rather than behavioural or personality factors. As Ms Brook for the Crown said, “[a]ll young people suffer from these cognitive deficits; and all will eventually develop fully to overcome them (assuming no cognitive impairment exists)”.

(b)Neurological development may not be complete until the age of 25.

(c)Young persons who commit serious offences frequently exhibit other characteristics which also tend to mitigate culpability, notably intellectual deficits, mental illness and experiences of abuse or other childhood trauma.

(d)Young people are more receptive to treatment and therefore have better prospects of rehabilitation than adult offenders, who find it more difficult to alter entrenched behaviours.

[35]   Although it is difficult to extract a range of appropriate discounts for youth when each discount is determined with reference to other personal mitigating factors such as mental health, intellectual functioning, and willingness to engage in rehabilitative treatment,24 generally, discounts of 10 to 30 per cent are common.25

22     R v Shirley [2009] NZCA 216 at [24].

23     Dickey v R [2023] NZCA 2 at [86].

24     Rolleston, above n 10, at [33].

25     Pouwhare v R, above n 16, at [98].

[36]   For serious offending, however, the availability of a discount for youth may be greatly circumscribed.26 “This is because the very factors that may lead young people to offend may cause concerns about future public safety.”27 At the same time, discounts applied for youth can have a radical impact on sentence, even if the offending was serious.28 The discretion to reduce a sentence based on the offender’s age is dependent on a range of factors including the nature and circumstances of the particular offending and the actual age and circumstances of the offender.29 Where offenders are young with rehabilitative prospects, the purpose of public safety must ordinarily give way to the need to assist in the offender’s rehabilitation.30 This may be true even when prospects of rehabilitation are bleak.31

[37]   Mr Unsworth was 23 at the time of the offending. The Judge granted him a discount of five per cent for this factor. In my view, this discount was within range. Mr Unsworth’s offending did not possess many of the features commonly associated with youth offending, such as peer pressure or impulsivity. Mr Unsworth’s co- defendants were aged 20, 17 and 17. Mr Unsworth was the eldest by a margin of two years and three months. He was not being led by older offenders. The offending was also clearly premeditated. Four days previously, Mr Unsworth had threatened Mr A S with “spending a long time in hospital”, which turned out to be the quite prescient.

[38]   I consider a discount of 10 per cent is appropriate to recognise youth and good character— that is five per cent for youth and five per cent for good character (as already allowed by the Judge). This discount appropriately balances the interests of public safety whilst also recognising Mr Unsworth’s youth and general good character (notwithstanding his driving related offences).

Totality

[39]   Keeping the Judge’s other figures, Mr Unsworth received a discount of 60 per cent from what would otherwise have been an appropriate sentence. The end sentence

26     Churchward v R, above n 14, at [84], citing R v Rapira [2003] 3 NZLR 794 (CA) at [122].

27     Churchward, above n 14, at [84].

28     Pouwhare v R, above n 16, at [96].

29     R v Hall [2012] NZCA 518 at [24].

30     Woodmass v Police [2019] NZHC 2503 at [39].

31 At [41].

of three years and eight months’ imprisonment is not manifestly excessive for such a terrifying home invasion and the infliction of grievous wounds on the target of the attack.

[40]The appeal is dismissed.

Woolford J