Barlow v R

[2019] NZHC 725

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-14

[2019] NZHC 725

BETWEEN

TALISHA BARLOW

Appellant

AND

THE QUEEN

Respondent

Hearing:	On the papers
Counsel:	R Vigor-Brown for Appellant M Jenkins for Crown
Judgment:	5 April 2019

JUDGMENT (NO 2) OF WHATA J

This judgment was delivered by me on 5 April 2019 at 4.45 pm.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Crown Solicitors, Rotorua

BARLOW v R [2019] NZHC 725 [5 April 2019]

[1]    The victim drove to Ms Barlow’s house and stepped in front of Ms Barlow’s car, looking for a fight. Ms Barlow drove over the victim, twice. Ms Barlow is a mother of three young children.1 She was caring for two children and pregnant with a third at the time of sentencing in December 2018. She has no prior convictions for serious violence. She was convicted on one charge of causing grievous bodily harm (GBH) with reckless disregard and sentenced to three years six months’ imprisonment. This comprised a starting point of 5 years, a discount of 4 months for personal circumstances, 4 months for time spent subject to 24/hr curfew and 10 months for guilty plea.

[2]    In my first judgment, I concluded the sentence was manifestly excessive.2 Applying Taueki by analogy, I located the offending in the mid-range of violent offending, equivalent to Taueki Band 2. Adjusting the start point to reflect the lesser charge of GBH with reckless disregard, I identified a start point of 4 years. I then discounted the sentence by 10 months for remorse, rehabilitation and the disproportionate effect of a lengthy sentence on Ms Barlow. I also observed that this was a case for mercy. From this I adopted the Judge’s discounts of 4 months for bail restriction3 and 10 months for guilty plea. I settled on a sentence of 2 years’ imprisonment. I then invited submissions on home detention.

[3]    The Crown accepts that Ms Barlow is a suitable candidate for home detention provided the address is not in Tokoroa. Mr Vigor-Brown has taken instructions and is able to indicate that any application will be made for an address in Tauranga. I am satisfied therefore that if the sentence is substituted to 2 years imprisonment, then home detention is available and appropriate.

[4]    It is necessary however to address an issue, properly raised by Mr Jenkins, about my discount for guilty plea. Mr Jenkins identified a potential miscalculation in the sentencing methodology. He said a 10-month discount for guilty plea equated to a 29.4% discount against a start point of 34 months, being the start point after personal circumstances discounts have been considered. He submitted that the Judge’s discount

1      She has two other older children who live with their father.

2      Barlow v R [2019] NZHC 650.

3      I note that I referred to EM bail in the judgment. This was incorrect.

of 10 months was effectively a 19% discount on the start point, so that an equivalent discount on my start point would be 6 ½ months, with an end sentence of 27 ½ months.

[5]    Mr Jenkins’ arithmetic is correct if the discounted starting point is adopted. But, I am content in the circumstances of this case to apply the guilty plea discount accumulatively to the other s 9 discounts and thus effectively apply a 20-21% discount for guilty plea on the starting point of 48 months for the following reasons.

[6]    As I said in my judgment, this is a case calling for mercy. Ms Barlow had the care of two young children and was in the late stages of pregnancy when sentenced in December. She gave birth to a third child while in prison in February. I now understand that her two children are now under separate care while she is incarcerated.

[7]    While it remains orthodoxy to apply the guilty plea discount to the discounted starting point, the Court nevertheless retains a discretion to depart from this orthodoxy when necessary to achieve the right sentence.4 In this regard I adopt, with respect, the observations made by Simon France J in Rewiti which were recently repeated by Jagose J in Kokiri:

[23]      The Sentencing Act does not suggest a reduced impact for the guilty plea credit as opposed to other matters of mitigation. The Supreme Court in Hessell noted the Court of Appeal approach, and recognised its value in terms of consistency and transparency but did not endorse it as mandatory. Rather what matters is a:

call for evaluation by the sentencing judge who, in the end, must stand back and decide whether the outcome of the process followed is the right sentence.

[24]      Consistent with that, I observe here that if the only matter standing in the way of the availability of home detention is whether the guilty plea is applied at the same time as other discounts or afterwards, then the evaluation must be to apply it at the same time to enable “the right sentence” to be imposed.

(footnotes omitted)

4      Per Rewiti v R [2018] NZHC 809 from [23]; see also R v Kokiri [2019] NZHC 501 at [39].

[8]    Mr Jenkins did not seek to challenge this reasoning,5 or the rightness of the result in this case, but he did responsibly submit that the relatively infrequent application of this residual discretion raises issues of consistency in sentencing, with most sentences adopting the orthodox approach. I accept this is a valid point, though it has an ironic twist, because to apply the guilty discount plea on discounted starting points achieves consistency in form not substance. To illustrate, a person who commits an offence with identified aggravating factors, but no mitigating factors will receive a larger guilty plea discount than a person who commits the same offence, with the same aggravating features, but with substantial personal mitigating features.

[9]    In any event, cases like the present, and Rewiti and Kokiri, which so plainly call for a merciful approach are principled exceptions to the orthodoxy. These are not marginal cases of arithmetic engineering to reach eligibility for home detention. Rather these are cases where formulaic consistency must yield to substance.

[10]   Accordingly, I allow the appeal, set aside the sentence of 3 years and six months and substitute it with a sentence of 2 years. I also grant leave to Ms Barlow to apply for home detention. The period of detention will be eight months 3 weeks.

5      He did however submit that the passage cited from Hessell was not made in the context of the stage at which the guilty plea discount is applied. In this regard the statement in Hessell reflects the longstanding approach of the Courts to sentencing generally – see discussion at [26]-[27].