Barlao v Police

[2021] NZHC 1828

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 there is error in the sentence, and a different sentence should be imposed.6 In any other case, I must dismiss the appeal.7 The approach previously taken by courts on sentencing appeals continues to apply;8 the measure of error is the sentence be “manifestly excessive” – the principle is “well-engrained” in this Court’s approach to sentencing appeals.9 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.10

Discussion

[6]                 The cases on which Mr Tait  relies notably are not of assault of a person in     a family relationship, but other varieties of assault. Inserted by s 25 of the Family Violence (Amendments) Act 2018, s 194A of the Crimes Act 1961 has a particular focus in addressing family violence,11 recognising such is a pattern — rather than isolated incidents — of continued  offending.12  That  is  made  out  here  on  both  Mr Barlao’s prior conviction for the same assault against the same victim, and the police report of continuing family violence incidents.

[7]                 Plainly none of those interventions has dissuaded Mr Barlao from initiating physical violence against his partner. Given those indications of at least continuing, if not escalating, violence, a stern sentence at the lower end of the spectrum is justified if it is to have its deterrent and denunciation purposes. The Court of Appeal has

5      Hunter v Police [2012] NZHC 107; R v Reihana CA143/03, Cash v Police [2016] NZHC 2748.

6      Criminal Procedure Act 2011, s 250(2).

7      Section 250(3).

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

9      At [33] and [35].

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

11     Solicitor General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420 (CA) at [26]–[27]; Everett v R [2019] NZCA 68 at [17]–[19]; Vela v R [2020] NZCA 153 at [34].

12     Law Commission Understanding family violence (NZLC R139, 2016) at [14]–[19].

emphasised violence in the home in itself is an aggravating factor due to the inherent vulnerability of the victim and breach of intangible trust.13

[8]                 In the range of circumstances family relationship assaults can arise, identifying comparable offending is not straightforward. But it is clear the family relationship context carries a higher starting point  than assault simpliciter, even if by male on     a female. Yet a nine-month starting point for male assaults female is not out of range.14 And one of the few sentencings for a single family relationship assault — there, “offending that involves no injuries to the victim”, who was the initial aggressor, aggravated by holding her down by her neck — took a starting point on appeal of nine months’ imprisonment, uplifted by two months for two previous protection order breaches.15 The materiality of a non-injurious assault to the neck is as an assertion of control, intended to intimidate.16

[9]                 Here Mr Barlao was the initial aggressor. The dispute was maintained overnight. Mr Barlao’s conduct toward the victim reflects a perception he was entitled to her submission, which he reinforced with his assault. The Judge was right to be shocked by Mr Barlao’s spitting at and name-calling of the victim, as characteristic of family violence’s foundation intimidation, coercion and control. Again, stern sanctions at the outset are justified if they are effectively to prevent family violence continuing. It is too late once multiples of those starting points are to be applied against entrenched family violence.17 As appropriately stern, the Judge’s ten-month starting point and two-month uplift are within the available ranges. The Judge did not err. His nine-month end sentence is not manifestly excessive.

Result

[10]The appeal is dismissed.

—Jagose J

13     Solicitor-General v Hutchison [2018] NZCA 162, [2018] 1 NZLR 420 at [27].

14     Kelly v R [2018] NZCA 347 at [13]; Harting v R [2016] NZCA 296 at [11] and [29].

15     Watene v Police [2020] NZHC 3011 at [2], [4(d)] and [20].

16     Law Commission Strangulation (NZLC R138, 2016) at [2.12]–[2.16], [2.24]–[2.25], and [4.30].

17     R v Kimiora [2015] NZHC 1940 (starting point: 20 months’ imprisonment); Dennis v Police

[2018] NZHC 886 (starting point: 30 months’ imprisonment).