Barlow v R - [2019] NZHC 650

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 650

BETWEEN
TALISHA BARLOW

Appellant

AND

THE QUEEN

Respondent

Hearing: 26 March 2019

Counsel:

R Vigor-Brown for Appellant M Jenkins for Crown

Judgment:

1 April 2019

JUDGMENT OF WHATA J

This judgment was delivered by me on 1 April 2019 at 4.00 pm,

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

Solicitors: Crown Solicitors, Rotorua

BARLOW v R [2019] NZHC 650 [1 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. Ms Barlow is a mother of three young children.1 She was pregnant with the third at the time of sentencing. She has no prior convictions for violence. She was convicted on one charge of causing grievous bodily harm (GBH) with reckless disregard and sentenced to three years six months’ imprisonment. Ms Barlow claims the sentence is manifestly excessive.

[2]This appeal raises four key issues:

(a)What is an appropriate starting point;

(b)Was Ms Barlow provoked and, if so, what is the significance of this;

(c)What is an appropriate discount for her personal circumstances; and

(d)What was the significance of counsel advice to reject a sentencing indication and to plead guilty.

Background

[3]The following summary of facts was agreed.

[4] Ms Barlow and the victim had known each other since high school. Ms Barlow has harassed the victim continually over the last five years because the victim was in a relationship with her ex-partner. On Friday, 16 February 2018, the victim and two associates were having lunch. The victim’s children were with her. Ms Barlow noticed the victim having lunch and later saw the victim and her associates standing on the street having a smoke. She stopped the car she was driving in, leaned out the window and began to yell at the victim. The victim yelled back. The victim and her associates got into their cars and left. The victim started to drive home. The appellant saw the victim approaching and pulled out in front of her. The victim slowed down to avoid any further conflict as she had children in the car. Ms Barlow slowed down to match the victim’s speed. At an intersection, Ms Barlow stopped and gave the fingers

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

to the victim. The victim responded by giving the fingers to Ms Barlow. The victim then drove on and saw Ms Barlow pull a U-turn further up the road and proceed to drive back towards her. The victim was sick of the harassment and she drove across the road and parked on the road outside of Ms Barlow’s address. She got out of her car as she intended to fight Ms Barlow.

[5] Ms Barlow drove her car at speed at the complainant before stopping in front of the complainant’s car directly outside Ms Barlow’s driveway. The cars were facing…

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 650
Case: [2019] NZHC 650
Decision Date: 1 April 2019

CaseChat Overview and Summary

The appeal was brought by Talisha Barlow against the decision of the Crown to impose a sentence of three years and six months’ imprisonment for causing grievous bodily harm with reckless disregard. The Court was required to determine if the sentence was manifestly excessive, whether the starting point was too high, if there should have been a discount for provocation, if the discount for personal circumstances was too low, and whether Ms Barlow was properly advised regarding the consequences of rejecting a sentencing indication and pleading guilty. The Court found that the sentence was manifestly excessive for two reasons: the starting point was too high and the discount for personal circumstances was too low. The Court concluded that the offending was provoked and spontaneous and out of character, and that Ms Barlow was reacting to the victim’s confrontation. The Court further found that the discount for personal circumstances was insufficient, and that a more substantial discount was required. Finally, the Court found that the failure to advise Ms Barlow about the potential consequences of rejecting a sentencing indication and pleading guilty did not provide grounds for miscarriage, but was a complex issue that could only be explored after thorough examination of the facts. The appeal was allowed, and the sentence was set aside. If the Crown opposed, the Court would substitute the sentence with two years’ imprisonment with leave granted to Ms Barlow to apply for home detention. The period of home detention would be nine months from the date of this judgment, factoring in time served.

Orders