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…

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 Barlow v R

Details

AGLC: Barlow v R [2019] NZHC 725
Case: [2019] NZHC 725
Decision Date: 5 April 2019

CaseChat Overview and Summary

In Barlow v R, Talisha Barlow appealed against her sentence of three years and six months imprisonment for causing grievous bodily harm (GBH) with reckless disregard. Barlow had driven over the victim twice after the victim attempted to provoke her by stepping in front of her car. Barlow had no prior convictions for serious violence and was a mother of three young children at the time of sentencing, with two of them in care and her being pregnant with a third child. The court had initially determined that the sentence was manifestly excessive and, after applying certain discounts, the starting point was reduced to four years. Barlow was granted a discount of 10 months for her guilty plea, which resulted in a sentence of 2 years imprisonment. The Crown accepted that Barlow was a suitable candidate for home detention, provided the address was not in Tokoroa.

The legal issues the court had to decide were whether the discount for the guilty plea should be applied accumulatively with the other discounts and if the sentence was appropriate given Barlow's personal circumstances. The Crown argued that the guilty plea discount should be applied to the discounted starting point, resulting in a sentence of 27 ½ months. However, the court held that in cases where a merciful approach is required, the guilty plea discount could be applied accumulatively with the other discounts to ensure the right sentence is imposed. The court accepted that while it is generally orthodox to apply the guilty plea discount to the discounted starting point, there is a discretion to depart from this orthodoxy when necessary to achieve the right sentence.

The court allowed the appeal, set aside the original sentence of three years and six months, and substituted it with a sentence of 2 years imprisonment. The court also granted Barlow leave to apply for home detention, with a period of detention of eight months and three weeks. The court concluded that the relatively infrequent application of this residual discretion may raise issues of consistency in sentencing; however, it was a valid point. The court acknowledged that formulaic consistency must yield to substance in cases that call for a merciful approach.

Orders