UNSWORTH v NEW ZEALAND POLICE [2022] NZHC 1159

UNSWORTH v NEW ZEALAND POLICE [2022] NZHC 1159 [25 May 2022]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2022-441-000006[2022] NZHC 1159BETWEEN DEAN NICHOLAS UNSWORTHAppellantAND NEW ZEALAND POLICERespondentHearing: 24 May 2022Counsel: S B W Yee for AppellantB L McKenzie for RespondentJudgment: 25 May 2022JUDGMENT OF SIMON FRANCE J[1] Mr Unsworth appeals a sentence of 12 months' imprisonment imposed foroffences of breach of a protection order and possession of a knife in public.1 Thesentence structure was a 12 months' starting point for the breach of protection ordercharge, 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 alertedto his knife possession by members of the public who had seen him openly carryingit. Mr Unsworth has previous convictions for carrying a knife (2009) and possessionof 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 since2008. After a period of little offending generally and none for a breach such as this,1 New Zealand Police v Unsworth [2022] NZDC 4468.Mr Unsworth was convicted in 2021 for offences committed on the same day inSeptember 2001. They were possession of methamphetamine, and the utensils, beingunlawfully in a building and contravening the protection order. The total sentence wasthree months' imprisonment.[4] On 2 January 2022 Mr Unsworth had gone to his mother's address in breachof the order. Police had been called and Mr Unsworth was removed. He was warnednot to return. The following day he again entered the house through a window. Hewas located hiding in the corner of the front bedroom. He told the arresting officer hehad gone there to have a sleep. These two events occurred not long after his releaseon the three month sentence.[5] On Mr Unsworth's behalf, Mr Yee submits a 12 month starting point is too highfor a non-violent breach of a protection order. Reliance is placed on Prince v Policewhere Cooke J identified a general starting point of four months, but recognising thatcould increase depending on the circumstances.2[6] While I accept that statement appears in Prince, two of the three cases thencited in that judgment have a higher starting point, with one, Morris-Stewart v Policehaving a 12 month starting point where the breach was by way of abusive texts. Inthat case, in a passage cited in Prince, Wylie J observed there was no tariff3 andcontinued:[15] The Court of Appeal has stated that the Courts should uphold theintegrity of protection orders and respond sternly to those who flout their forceand effect. Orders are intended to ensure that the recipient of the protectionorder is secure and inviolate. Repeated breaches of protection orders call fora condign sentencing response. Where there has been repeat offending over abrief 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 withthe Prince comments, although again it can be noted the actual starting point in thatcase was nine months. By contrast the Crown refer to Crean v Police and Carlyon vPolice, both non-violence albeit the latter has yelling and abuse, where starting points2 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 ofpast breaches was considered significant.[8] The material presented on this appeal does not in my view support a broadproposition of a general four months starting point for non-violent breaches. Theconsistent absence of a tariff reflects the variety of circumstances that arise with thesecases. This is not only as regards the offender's record of past breaches, but also thecircumstances of the particular offence. In Green, for example the complainant anddefendant were happily drinking together but the defendant refused to leave. That isvery different from here where the appellant broke into the home of the protectedperson.[9] I accept here the underlying context of wanting to sleep is comparativelyinnocuous but care is needed as the protection order exists for a reason and there is ahistory of contact that can make the apparently innocuous nevertheless quite traumaticfor the complainant. Here Mr Unsworth had breached the previous day but been dealtwith by a warning, and had breached four months earlier for which he had beenimprisoned. The present breach was effected by way of breaking into thecomplainant's home. That is a serious aggravating factor. It occurred not long afterrelease from a prison term imposed for the previous breach. I am not satisfied thestarting point is excessive.[10] Concerning the possession of knife uplift, Mr Yee submits the sentencing Courterred in identifying three previous convictions for possession of a knife. There is onlyone, albeit four other convictions for possession of an offensive weapon. It can benoted these were committed in 2002, 2007, 2008 and 2013, so all are dated. TheCrown has provided a summary of facts to confirm the 2013 offending concerned aknife.[11] In these contexts of small uplifts, it is difficult to say two months is excessivebut one month was not. The differences are small, but I accept the uplift is reasonablystern 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 forthis 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 nodoubt had an appearance that day. He pleaded guilty at the next scheduled Courtappearance 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 Judgeconsidered this and rejected there was remorse. There was a clear basis for theconclusion and no basis to disturb it on appeal.Conclusion[14] I consider a full guilty plea discount should have been given. That would havebeen three and a half months. I also have the view that the knife uplift was towardsthe top of the range. These two factors lead me to the view that the sentence shouldbe adjusted, albeit it will be a comparatively small change.[15] The pre-sentence report recommended intensive supervision. The Judgeconsidered it not a viable sentence given Mr Unsworth's lack of suitable address. Iaccept Mr Yee's submission that the Court might have explored the option with theDepartment given it would have been aware of Mr Unsworth's homelessness whenmaking 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 onappeal does not seem the correct approach.[16] The appeal is allowed. The sentence of one year's imprisonment for breach ofthe 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 JSolicitors:Crown Solicitor, Napier for Respondent4 Hessell v R [2010] NZSC 135 at [72].