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Barlao v Police

Barlao v Police

Case [2021] NZHC 1828 19 July 2021

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-0294

[2021] NZHC 1828

BETWEEN
MARCOS JR GAMATA BARLAO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 July 2021

Appearances:

S Tait and O S Burton for the appellant C E Best for the respondent

Judgment:

19 July 2021

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
S Tait, Barrister, Auckland Kayes Fletcher Walker, Manukau

BARLAO v NEW ZEALAND POLICE [2021] NZHC 1828 [19 July 2021]

[1] Marcos Barlao appeals his sentence of nine months’ imprisonment, imposed by Judge D J McNaughton in the District Court at Papakura on 17 June 2021,1 on Mr Barlao’s guilty plea for assault on a person in a family relationship.2 The Judge convicted and discharged Mr Barlao on his guilty plea also to a charge of threatening behaviour.3

Background

[2] Mr Barlao was in a family relationship with the victim, with whom he has a child. They lived together in Auckland’s Takanini. On 28 March 2019, Mr Barlao was convicted and sentenced to nine months’ supervision on another charge of assault on a person in a family relationship against the same victim. Police record seven previous family harm incidents since 2019. On returning home in the afternoon of 1 April 2021, Mr Barlao was verbally abusive to the victim. After dinner that night he yelled and swore at her, spitting in her face and calling her a “whore”. She responded by hitting him on the shoulder. The following morning, Mr Barlao continued to abuse her, causing her to cry. He held her tightly by each arm and shook her, telling her to stop crying. She sustained a small bruise on each forearm.

Decision under appeal

[3] Judge McNaughton considered victim impact statements contending for Mr Barlao’s controlling character and the victim’s concerns for her and their son’s safety. The Judge also considered Corrections’ pre-sentence report, indicating Mr Barlao blamed the victim for keeping him in their relationship, seemingly for financial support of their child. The Judge found the police summary of facts “disturbing reading”. He took a starting point of ten months’ imprisonment, uplifted by two months for the prior conviction, and discounted by 25 per cent for Mr Barlao’s guilty plea to the end sentence of nine months’ imprisonment.4

[4] For Mr Barlao, Shane Tait argues the Judge erred in taking too high a starting point, and placing too much weight on Mr Barlao’s prior conviction, each being

1      R v Barlao [2021] NZDC 12045.
2      Crimes Act 1961, s 194A (maximum penalty: two years’ imprisonment).
3      Summary Offences Act 1981, s 21(1)(a) (maximum penalty: three months’ imprisonment).
4      R v Barlao, above n 1, at [12]–[13].

“manifestly excessive”. With reference to other assault cases,5 Mr Tait says the appropriate starting point would have been five, uplifted by one, months’ imprisonment, for application of the 25 per cent discount.

Approach to appeals against sentence

[5] I must allow the appeal only if I am satisfied both…

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 Barlao v Police

Details

AGLC: Barlao v Police [2021] NZHC 1828
Case: [2021] NZHC 1828
Decision Date: 19 July 2021

CaseChat Overview and Summary

Marcos Barlao appeals his sentence of nine months’ imprisonment for assaulting a person in a family relationship and threatening behaviour, imposed by Judge McNaughton in the District Court at Papakura on 17 June 2021. The appeal raises the question of whether the District Court Judge erred in his assessment of the appropriate starting point for the sentence and in the weight he placed on Barlao’s prior conviction. Barlao argues that the starting point should have been five months’ imprisonment, uplifted by one month, and discounted by 25 per cent for his guilty plea.

The Court examined the sentencing principles applicable to appeals, noting that the measure of error is whether the sentence is manifestly excessive. The Court emphasised the importance of addressing family violence, which is recognised as a pattern rather than isolated incidents. Given Barlao’s prior conviction for the same offence against the same victim and the police report of continuing family violence incidents, the Court found that a stern sentence was justified. The Court concluded that the District Court Judge’s starting point of ten months’ imprisonment, uplifted by two months, and discounted by 25 per cent, was within the proper range for this type of offence.

The Court dismissed the appeal, finding that the sentence imposed by the District Court was not manifestly excessive. The Court upheld the nine-month sentence, noting that it served the purposes of deterrence and denunciation in the context of family violence.

Orders