BARLAO v NEW ZEALAND POLICE [2021] NZHC 1828

BARLAO v NEW ZEALAND POLICE [2021] NZHC 1828 [19 July 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-0294[2021] NZHC 1828BETWEEN MARCOS JR GAMATA BARLAOAppellantAND NEW ZEALAND POLICERespondentHearing: 19 July 2021Appearances: S Tait and O S Burton for the appellantC E Best for the respondentJudgment: 19 July 2021ORAL JUDGMENT OF JAGOSE JCounsel/Solicitors:S Tait, Barrister, AucklandKayes Fletcher Walker, Manukau[1] Marcos Barlao appeals his sentence of nine months' imprisonment, imposedby Judge D J McNaughton in the District Court at Papakura on 17 June 2021,1 onMr Barlao's guilty plea for assault on a person in a family relationship.2 The Judgeconvicted and discharged Mr Barlao on his guilty plea also to a charge of threateningbehaviour.3Background[2] Mr Barlao was in a family relationship with the victim, with whom he hasa child. They lived together in Auckland's Takanini. On 28 March 2019, Mr Barlaowas convicted and sentenced to nine months' supervision on another charge of assaulton a person in a family relationship against the same victim. Police record sevenprevious family harm incidents since 2019. On returning home in the afternoon of1 April 2021, Mr Barlao was verbally abusive to the victim. After dinner that night heyelled and swore at her, spitting in her face and calling her a "whore". She respondedby hitting him on the shoulder. The following morning, Mr Barlao continued to abuseher, causing her to cry. He held her tightly by each arm and shook her, telling her tostop crying. She sustained a small bruise on each forearm.Decision under appeal[3] Judge McNaughton considered victim impact statements contending forMr Barlao's controlling character and the victim's concerns for her and their son'ssafety. The Judge also considered Corrections' pre-sentence report, indicatingMr Barlao blamed the victim for keeping him in their relationship, seemingly forfinancial support of their child. The Judge found the police summary of facts"disturbing reading". He took a starting point of ten months' imprisonment, upliftedby two months for the prior conviction, and discounted by 25 per cent for Mr Barlao'sguilty 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 startingpoint, and placing too much weight on Mr Barlao's prior conviction, each being1 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 theappropriate 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 theappeal.7 The approach previously taken by courts on sentencing appeals continues toapply;8 the measure of error is the sentence be "manifestly excessive" – the principleis "well-engrained" in this Court's approach to sentencing appeals.9 I will notintervene where the sentence is within a range properly justified by acceptedsentencing principle. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than the process by which it is reached.10Discussion[6] The cases on which Mr Tait relies notably are not of assault of a person ina family relationship, but other varieties of assault. Inserted by s 25 of the FamilyViolence (Amendments) Act 2018, s 194A of the Crimes Act 1961 has a particularfocus in addressing family violence,11 recognising such is a pattern — rather thanisolated incidents — of continued offending.12 That is made out here on bothMr Barlao's prior conviction for the same assault against the same victim, and thepolice report of continuing family violence incidents.[7] Plainly none of those interventions has dissuaded Mr Barlao from initiatingphysical violence against his partner. Given those indications of at least continuing, ifnot escalating, violence, a stern sentence at the lower end of the spectrum is justifiedif it is to have its deterrent and denunciation purposes. The Court of Appeal has5 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]; Everettv 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 inherentvulnerability of the victim and breach of intangible trust.13[8] In the range of circumstances family relationship assaults can arise, identifyingcomparable offending is not straightforward. But it is clear the family relationshipcontext carries a higher starting point than assault simpliciter, even if by male ona female. Yet a nine-month starting point for male assaults female is not out of range.14And 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 ninemonths' imprisonment, uplifted by two months for two previous protection orderbreaches.15 The materiality of a non-injurious assault to the neck is as an assertion ofcontrol, intended to intimidate.16[9] Here Mr Barlao was the initial aggressor. The dispute was maintainedovernight. Mr Barlao's conduct toward the victim reflects a perception he was entitledto her submission, which he reinforced with his assault. The Judge was right to beshocked by Mr Barlao's spitting at and name-calling of the victim, as characteristic offamily violence's foundation intimidation, coercion and control. Again, stern sanctionsat 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 entrenchedfamily violence.17 As appropriately stern, the Judge's ten-month starting point andtwo-month uplift are within the available ranges. The Judge did not err. Hisnine-month end sentence is not manifestly excessive.Result[10] The appeal is dismissed.—Jagose J13 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).