Barlow v R
[2019] NZHC 650
•1 April 2019
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 nose-to-nose. The victim walked between the two cars towards the Ms Barlow and Ms Barlow drove forward. The victim jumped to the left, towards the centre of the road, to avoid being struck. Ms Barlow turned right towards the victim and continued to drive towards her. The victim backed away putting her hands on Ms Barlow’s bonnet to keep her balance. Ms Barlow continued to drive forward. As a result, the victim lost her balance and fell over the front of Ms Barlow’s car. Ms Barlow then deliberately drove over the victim with her right front tyre before speeding up and driving over the victim with her back right tyre. Ms Barlow then put her car in reverse and drove back over the victim with both front and back tyres. This was witnessed by Ms Barlow’s two children who were in her car when this occurred and by the victim’s two children and the two children of the victim’s associate. The victim managed to stand up and get into an associate’s car and she was taken to hospital.
[6] The victim suffered a punctured lung, broken collar bone, eight broken ribs and a broken pelvis in two places. She was placed in a high dependency unit for five days and had to remain in hospital for eight weeks.
PAC advice
[7] The PAC report records the following. Ms Barlow said she feared the victim and she felt threatened by the victim. She said she was just trying to exit the situation. She said she felt remorse for the incident and felt sorry for the victim. Ms Barlow has two daughters aged one and two years at the time of her interview in her care and was pregnant at the time of the interview. She also has two sons who live with their father. She had recently moved back to Tokoroa to be with her family and she was in the process of completing a certificate in early childhood education and hoped to open her
own playcentre eventually. The report identifies her at a low risk of reoffending of the present kind and recommends home detention.
Other personal circumstances
[8] Ms Barlow is Māori. Since sentencing, she has given birth while in prison. She has no prior convictions for violent offending. She has written letters expressing deep remorse for the harm she has caused.
Victim impact statement
[9] The victim provided a detailed, balanced and empathetic victim impact statement. She refers to the serious implications for her family, including her young children, of the offending. She also acknowledges the impact of the offending on the appellant’s children. She reports mixed emotions about the sentencing process and the balance between retribution, accountability and rehabilitation, both for her and for the appellant. She emphasises the need to grow and heal and for assurance of safety for herself and her children. She does not seek retribution. Rather, she seeks assurance and reassurance of help for both her and the appellant and of healing and support.
[10] There is also an earlier victim impact statement by the victim, which refers only to her injuries and her fear and the fear of her children. That statement has clearly been supplanted by the subsequent statement.
An amended charge, a sentence indication and a guilty plea
[11] Ms Barlow was initially charged with injuring with intent to cause grievous bodily harm. This was amended to the present charge and a sentence indication was sought. Judge Snell adopted a start point of four years. Judge Snell also referred to the potential for further mitigation for personal circumstances and remorse. On the advice of her then counsel, Mr Mills, Ms Barlow did not accept this indication, but pleaded guilty.
The sentence
[12] Judge Hollister-Jones identified the following aggravating factors of the offending:
(a)The use of a heavy SUV vehicle, around two tonnes, as a weapon;
(b)Extreme violence; this was intentional and involved repeated running over;
(c)A vulnerable victim – once she lost her balance and was on the ground, she was vulnerable;
(d)The presence of her children and the appellant’s children; and
(e)The serious injury that resulted.
[13] The Judge assessed the recklessness in the situation as extreme. He noted there was a lack of comparable sentencing decisions for injuring with reckless disregard. He referred to R v Sang-Yum.2 He said that involved less serious running down, in that it was a car and not a big SUV. He accepted that the originating facts were different but there were greater consequences because the victim had his leg amputated below the knee.
[14]The Judge then observed:3
[20] Because there is a lack of sentencing authority in respect of this level of offending for this charge, as I said basically because it is not laid in situations when the causative conduct was intentional, I am required to consider general principle. I have had regard to s 8(d) Sentencing Act 2002 which requires that I must impose the penalty near to the maximum if the offending is near to the most serious of cases for which the penalty is prescribed.
[15]And further:
2 R v Sang-Yum [2016] NZHC 2329.
3 R v Barlow [2018] NZDC 27107 at [20].
[22] However, standing back, it is the extreme recklessness that is perhaps the aggravating feature that sets this case apart, and incorporated into that is the weight of the vehicle, the multiple running overs and the serious but not permanent injury. If this had involved permanent injury, it would be in the most serious offending of its type. Standing back, I adopt a start point of five years imprisonment.
[16] The Judge did not apply a discount for the conduct of the victim. The Judge said that while the victim’s conduct contributed to a confrontation between them, the appellant’s response was wholly disproportionate, especially after the victim fell to the ground.4 The Judge also refused a discount for remorse. He noted the appellant was sorry for the injuries, but he detected an element of the appellant being sorry for herself about the situation and blaming the victim for that.
[17] The Judge applied a discount of four months for Ms Barlow’s personal circumstances, including her minimal criminal history and the fact that she is the mother of two young children with another due in February. Referring to the guilty plea, he said that she had little option but to plead guilty and applied a ten-month discount for that plea. The Judge also noted that the appellant was under a 24-hour curfew since February but that there had been two breaches, though not involving further offending. He allowed a four-month discount for a 24-hour curfew over the last ten months. The Judge then imposed a sentence of three years and six months’ imprisonment.
Jurisdiction
[18] An appeal will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or because of additional material submitted on the appeal which vitiates the sentencing decision of the Court below. 5 Unless there is a material error in sentence, for example, that it is manifestly excessive, manifestly inadequate, or wrong in principle, an appellate court will not intervene.
Argument
[19]Mr Vigor-Brown submits:
4 R v Barlow, above n 3, at [24].
5 Tutakangahau v R [2014] NZCA 279 at [29]-[31].
(a)The start point of five years is manifestly excessive – he says a start point of four years, as adopted by Judge Snell, was about right;
(b)There should have been a modest discount for provocation of four months; and
(c)The discount for personal circumstances of four months was within range, as was the discount for EM bail restrictions.
[20] Mr Vigor-Brown further submits the advice to Ms Barlow to reject the sentencing indication and to plead guilty without clearly noting that the sentence imposed might be higher than the sentencing indication, meant that Ms Barlow made the guilty plea on a misinformed basis. This, he says, further justifies a starting point of four years, being the starting point on the sentencing indication.
[21] Mr Jenkins responds that the starting point was within range, having regard to the seriousness of the offending and the only High Court authority on point, namely Sang-Yum. A six-year starting point for injuring with reckless disregard was adopted in that case. I refer to the facts in that case below at [29]. He also submits that a discount of four months for personal circumstances, while small, was also available to the Judge.
[22] Mr Jenkins expressed concern about whether Ms Barlow was properly advised and the unusual strategy of not accepting the sentencing indication while pleading guilty. He submitted it was important that persons pleading guilty are fully and properly advised of the potential consequences for them, including in the present context, that the starting point for the sentence might be higher than the starting point used in the sentencing indication.
Assessment
[23] This was a serious case. It is very fortunate the victim’s injuries were not more serious. But I consider the end sentence to be manifestly excessive for two key reasons:
(a)The starting point was too high; and
(b)The discount for personal circumstances was too low.
[24] Dealing first with starting point: Judge Hollister-Jones, with respect, understandably used the only High Court sentencing counsel could find directly on point, Sang-Yum, as a reference point - a decision also involving the use of a vehicle to cause GBH with reckless disregard with a starting point of six years. The Judge’s start point of five years is not therefore obviously unreasonable. But, for reasons I will explain shortly, there are significant differences between the present facts and the facts in Sang-Yum which made reliance on that case inapt.
[25] For my part, a preferable course is to apply Taueki by analogy, accounting however for the fact that this is a case of recklessness not intentional harm and the maximum sentence is seven not 14 years’ imprisonment.6 As with all sentencing, this is not a matter of rote application of the bands or precedent. Nor is there a simple pro- rate reduction to account for the absence of intentional harm. Culpability will vary according to the nature, length and degree of recklessness. For example, offending with a high degree of recklessness over a lengthy period will demand a sterner sentence than a spontaneous reckless act, even though the injury causing actions are similar.7 Overall, it is about deploying the bands to secure the principle of consistency.
[26]The primary aggravating features are three-fold:
(a)The use of a large car to run over the victim twice;
(b)The vulnerability of the victim to harm; and
(c)The serious injuries caused.
[27] These features place the offending in the mid-range of violent offending, equivalent to Taueki Band 2,8 which carries starting points in the range of five to ten
6 R v Taueki [2005] 3 NZLR 372.
7 See discussion in Forbes v Police HC Whangarei CRI-2006-419-10, 26 July 2005 from [19].
8 R v Wilson [2015] NZHC 900, discussed below at [31].
years. Adjusting this to reflect this is a lesser charge of GBH with reckless disregard, a starting point in the range of three to five years might be expected. But I would not put the present offending at the top of this range. Rather, unlike the Judge, I consider Ms Barlow was provoked, and reacted spontaneously and out of character. This substantially mitigates the level of her culpability. In this regard, the victim drove to Ms Barlow’s address and parked at her driveway. She exited her car to fight Ms Barlow. This does not, by itself, mitigate the gravity of the offending and it is not about attributing culpability to the victim. However, it is reasonable to infer that Ms Barlow was reacting to the victim’s confrontation at the time of the offending. Furthermore, given the immediacy and extreme nature of her actions, she was acting spontaneously. Ms Barlow also has no prior convictions for violent offending. Her actions in driving over the victim were therefore out of character.
[28] Plainly Ms Barlow overreacted. Her actions are to be deplored. But per Taueki, it is clear to me that the victim’s overt act of confrontation provoked Ms Barlow’s response and that provocation was operative throughout the events that immediately followed.
[29] I acknowledge there are some features of the present offending which mirror the offending in the Sang-Yum case cited by the Judge and by Mr Jenkins. But the aggravating features of the offending in Sang-Yum are markedly more serious than the offending in this case. It involved vehicular pursuit of the victim, concerted escalating violence by two men against a single victim, including repeated attacks to the head with a tyre iron, culminating in one of those men ramming a car at speed into the fleeing victim. There was no provocation. It was not impulsive. The resultant injuries included amputation of the victim’s right leg below the knee. Equivalent intentional GBH offending of this kind would plainly sit well within Band 3 of Taueki with a starting point between nine and 14 years.
[30] Exemplifying the nature and severity of the violence in Sang-Yum, the driver, Martin Sang-Yum, faced eight charges, including causing grievous bodily harm with reckless disregard, assault with a weapon and common assault. While the starting point for the GBH with reckless disregard was fixed separately at six years, the broader violent context formed part of the background and set the frame for it. As the Judge
noted, the victim had become particularly vulnerable by the time Mr Sang-Yum drove the car.9 Notably Woolford J applied a relatively modest uplift of one year for all other offending. This resulted in a cumulative start point of seven years. This reflects, in my view, that the Judge was careful not to double-count the aggravating features of the offending in reaching a final totality sentence.
[31] I have also taken the opportunity to review three cases cited in Sang Yum: Forbes, Heremaia and Wilson. In Forbes, a five and half year starting point was adopted for GBH with reckless disregard for the safety of others.10 That case involved a very lengthy period of drunken, reckless driving by Mr Forbes before he crashed into a truck causing it to roll. The driver of the truck was seriously injured, suffering a broken back and permanent disablement. In Heremaia, a starting point of six years six months was adopted for one charge grievous bodily harm with intent to cause grievous bodily harm.11 Mr Heremaia had been in a confrontation with another man, Mr Nepe, at a party. Mr Heremaia left. His partner followed in their car. As she passed Mr Nepe, he smashed the window. Mr Heremaia returned to the party in the car. He spoke to someone about running over the party-goers. He then reversed back onto the road before accelerating towards them. He knocked one of them, Mr Chapman, to the ground. He reversed and drove forward again this time over the top of Mr Chapman, who was then trapped under the car. Mr Chapman suffered life threatening injuries.
[32] In Wilson, Mr Wilson was charged with, among other things, wounding with intent to injure.12 After a dispute about white-baiting, Mr Wilson drove his car down a boat ramp, striking and then pinning the victim between the vehicle and the boat ramp retaining wall. He then stepped out of the car and beat the victim about the head with a closed fist. The victim was seriously injured, and at the time of sentencing, at risk of losing his leg. Heath J located the offending at Band 2 of Taueki and adopted a totality starting point of six years, on a maximum sentence of 14 years.
9 At [18].
10 Above n 7.
11 R v Heremaia [2012] NZHC 3361.
12 Above n 8.
[33] As can be seen, the offending in these cases are markedly more serious; two of the cases attracted more serious charges with a 14-year maximum sentence of imprisonment. They reinforce my view that Taueki Band 2 by analogy is appropriate and that a start point of five years in this case was too high.
[34] Any fixing of the starting point must, however, be tempered by the fact Ms Barlow ran over the victim twice and in the presence of the children. This was an extremely reckless act of violence with lasting effects for two families. I would therefore fix the start point at four years (as Judge Snell did in his sentencing indication).
[35] From this I would deduct 10 months or 20 per cent for personal circumstances, including: remorse (5 per cent), rehabilitation (10 per cent), and to acknowledge the very significant impact of a lengthy sentence of imprisonment on a mother of three very young children, one born in prison (5 per cent).13 Ms Barlow was pregnant at the time of the sentencing. This was a case for mercy. I am further fortified in this view because, as the victim so fairly put it, focus needs to be on the healing and support of two young families. Plainly, I would not have afforded this level of discount had this not been Ms Barlow’s first offense of the present kind. But it was, and as the PAC report observes, Ms Barlow presents a low risk of re-offending of this kind.
[36] The four-month discount for time spent on EM Bail allowed by the Judge was appropriate, as was the 10-month discount for guilty plea. It was not made at the first opportunity, but it soon followed an agreed summary of facts. In the result, if I were to impose a sentence of imprisonment, it would be in the order of two years. An end sentence of three years six months was manifestly excessive.
The significance of advice
[37] An additional issue raised by the appeal is the significance, if any, of counsel’s failure to advise Ms Barlow about the potential consequences of rejecting a sentencing indication and pleading guilty. Initially I invited an affidavit as to the advice provided
13 For a summary of available discounts see Solicitor General v Heta [2018] NZHC 2453 at [64] and [65].
on the issue of plea. However, given where I have got to, I did not think that was necessary. Failure to advise of the likelihood of a higher sentence may have provided grounds for miscarriage, but it is a complex issue and one that could only be explored after thorough examination of the facts.
Outcome
[38] The appeal is allowed. I acknowledge Judge Hollister-Jones applied the only High Court authority counsel could find directly on point – a case also involving the use of a vehicle to cause GBH with reckless disregard with a starting point of six years. But on closer re-examination of the facts, I have come to a very different view of the comparability of those two cases. I also consider that a more substantial discount for personal circumstances is required. This combination of factors means that the sentence handed down was, in my view, manifestly excessive.
[39] In the result, the sentence of three years six months is to be set aside. If I were to sentence Ms Barlow to imprisonment, I would sentence her to two years’ imprisonment. I have not heard submissions on home detention. Ms Barlow is a mother of three young children. She has no history of prior violent offending. She has family support. Intuitively she is a suitable candidate for home detention.
[40] I therefore propose the following outcome, unless the Crown seeks a sentence of imprisonment, I will substitute the sentence of three years six months with a sentence of two years’ imprisonment with leave granted to Ms Barlow to apply for home detention. The period of home detention will be nine months from the date of this judgment. This factors into account time served. The Crown will have five working days to advise the Court of its position. If the Crown opposes, submissions must be filed at the same time (by 8 April 2019). Ms Barlow will have five working days to respond (by 15 April 2019). I will decide on the papers, unless I consider it necessary to hear from counsel.
[41]Orders accordingly.
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