THE QUEEN v RICHIE STUART CLUTTERBUCK [1999] NZCA 267 (17 November 1999)

IN THE court of appeal of new zealand

ca 372/99

THE QUEEN

V

RICHIE STUART CLUTTERBUCK

Hearing:	17 November 1999
Coram:	Thomas J, Doogue J, Goddard J
Appearances:	G A Hay for the Appellant S P France for the Crown
Judgment:	17 November 1999

judgment of the court DELIVERED BY GODDARD J

[1] The appellant was convicted by a jury of wilfully attempting to pervert the course of justice by making a threat to his former partner to compel her to withdraw her application for a protection order.He was sentenced to 12 months imprisonment.He now appeals against that sentence, both in principle and in relation to the length of the term of imprisonment imposed.

[2] Three grounds are advanced in support of the appeal.First, the impact of the offence on the course of justice, which is said to be limited.Secondly, that the sentence does not reflect changes the appellant has made to his life since the offence was committed.Thirdly, that the sentence "although within range, is excessive in all the circumstances".

The Background Facts

[3] The complainant and the appellant had been in a troubled relationship for a period of about 2½ years.Both were intravenous drug users and on the methadone programme.Their relationship ended in about February 1998 when the complainant went to live with her father.Her evidence was that the appellant had been violent towards her during the relationship.In about May that year she took legal advice and made application for a temporary protection order. The order was made ex parte and the documentation, including her supporting affidavit, was served on the appellant.The appellant took exception to matters deposed to in the complainant's affidavit and responded by sending a letter to the complainant at her father's address, in which he threatened to play to the Police a tape recording of a conversation in which, he alleged, the complainant had made incriminating statements.The complainant's father immediately took the letter to the Police.

The Appellant's Personal Circumstances

[4] The appellant is a 36 year old man who has amassed an unenviable criminal record, commencing when he was some 15 years old and continuing for a period spanning almost 20 years until his mid 30s.In the main, his offending has comprised dishonesty and driving offences but has also included burglary and some offences of assault.The most serious are a conviction for manslaughter and another for wounding with intent in 1987, for which he received an effective total sentence of five years imprisonment.Those convictions arose out of a fight with two men in the Square in Christchurch and involved the use of a knife.

[5] The appellant's life has been plagued by past alcohol abuse and drug dependency.However, since being released from prison in 1997 (after serving sentences for burglary, theft, using documents and possession of an offensive weapon) he has made enormous strides in turning his life around and achieving positive changes.In this regard he has taken a number of initiatives, which include attendance at a small business enterprise course resulting in the formulation of a business plan and establishment of a recycled furniture business styled, "Modern Antiques".The development of this business has led to the appellant successfully obtaining a loan of $14,000 from Work and Income New Zealand and until his imprisonment for this offending, in August this year, the business appeared to be prospering.

[6] Counsellors who have been involved with the appellant on the Christchurch Methadone Programme, the Family Help Trust and the Community Probation Service have also reported positively on the significant progress made by him in the past 12 months.These counsellors advised the Probation officer who compiled the pre-sentence report "that imprisonment would be a retrograde step in this progress".

[7] The appellant has also been taking responsibility in sharing custody of his four year old son with a previous partner since his release from prison in 1997 and thereby has enabled her to pursue studies at Polytechnic.This previous partner wrote a letter of support for the appellant to the sentencing Judge. In the letter she speaks eloquently of the changes he has made in his life and which have led to his being able to live independently of a Government income and have kept him occupied and out of trouble.She also refers to the quality time which he has spent with their son over recent months and which has helped her immensely.She concludes the letter by saying:

I feel that at this time in Richie's life that if he has to serve a term of imprisonment that it will set him back years and I have seen that with his business undertaking it has helped in breaking his cycle of finding himself in trouble which has eventually led to his imprisonment.

[8] The above excerpt echoes the conclusion in the pre-sentence report, which is as follows:

Richard Clutterbuck since imprisonment, [has] proven to be an able father, a self-employed businessman and been able to comply with the Methadone Programme. Mr Clutterbuck impresses as a person struggling with his past offending.

Sentencing Judgment

[9] The sentencing Judge had the benefit of all the above material when considering the appropriate sentence to impose.He identified the relevant competing interests as being the public interest in the administration of justice, the right of women to apply to the courts for protection without being subject to threat, and the rehabilitative interests of offenders.He listed those competing interests in that order of priority, in cases of this type.

[10] The Judge then paid due regard to the fact that 15 months had elapsed since the offence was committed and acknowledged the different lifestyle that the appellant was now leading and the positive changes he had wrought.Taking those mitigating factors into account, but paying regard to the serious nature of the crime and its effect on the administration of justice, he halved the sentence that he determined would otherwise have been appropriate and which he identified as two years imprisonment.Thus he arrived at a sentence of 12 months imprisonment which he declined to suspend notwithstanding the real prospects of continuing rehabilitation for the appellant.

The Issues

[11] The first issue is whether the sentence imposed was correct in principle and within an appropriate range. The sentencing Judge referred to "a number of precedents that suggest a sentence of imprisonment in cases such as this is maybe of the order of two years imprisonment".He did not cite any particular authorities but a perusal of relevant authorities for such offending establishes that the sentence is both correct in principle and clearly within range.

[12] In terms of principle, this Court in R v Gemmell, CA 257/96, 2 October 1996 observed:

In our opinion the Judge was correct in regarding the presence of the charge of attempting to pervert the course of justice as a significant factor.The heading covers a wide range of conduct and although it is always a serious offence we accept that in many instances, a sentence short of imprisonment is in fact thought appropriate.However, as has often been said attempts to influence the course of a case by suborning witnesses, attempting to persuade them from giving evidence or the like, strike at the fundamentals of the administration of justice and cannot be tolerated; see R v Hillman, CA 14/92, 14 May 1992 and the cases reviewed in that judgment.General deterrence is an important issue in such cases.In the typical instance such conduct merits a custodial sentence and the present was no exception.Whatever options might possibly have been open otherwise, the addition of a serious attempt to interfere with the course of justice precluded any real chance of non-custodial approach."

[13] In terms of the appropriate length of sentence to be imposed, the decision in Hillman clearly establishes a benchmark of three years imprisonment for relatively serious cases and a sentence in the range of 18 months to 2 years for a case such as this.

[14] The second issue is whether the otherwise appropriate sentence imposed should be suspended or reduced.In support of suspension or reduction, counsel for the appellant emphasised the positive changes the appellant had initiated in his life between the date of his release from imprisonment in 1997 and the imposition of this sentence.He further submitted that the sentencing Judge had not given adequate weight to the positive initiatives taken by the appellant to turn his life around; the fact there was no application of any physical violence towards the victim nor any threat of physical violence to her; and the fact that the appellant has not offended in any significant manner since his release from prison (driving whilst disqualified only).In particular he emphasised that the term of imprisonment currently imposed will result in cessation of the appellant's successful participation in the methadone programme (a condition of his release from prison in 1997).

[15] The appellant's successful efforts to turn his life around in every respect, including taking on a responsible role in caring for his son, are to be strongly commended.However, the imposition of an appropriate sentence for a crime of this serious nature and the need to deter others from similar actions must be at the forefront of judicial thinking.The serious aspect of this case is the context of domestic protection and the special nature of protection orders.It negates the whole purpose of that legislation if women in need of protection are to be deterred from seeking that protection by threats from the very person from whom they require protection.

[16] The District Court Judge was right to give priority to the interests of the community in terms of the administration of justice, rather than in terms of the community's interests in the appellant's ongoing and future rehabilitation.As the Judge asked:

...are women not entitled to know that if they apply for a protection order that, for so many of them is their one lifeline, they can expect to be free from immediately being subject to threats?

[17] We are satisfied that the Judge achieved the correct sentencing balance in this case and took all relevant factors into account.It is to be hoped however that the responsible authority, which we understand is the Community Drug and Alcohol Service, ensures that every priority is given to re-induction of the appellant into the methadone programme immediately upon his release, if that should be desirable and necessary.It would be a pity indeed, if having made such strides prior to his incarceration, he were not assisted and encouraged to continue with his rehabilitative efforts after paying his due penalty.

[18] The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington

G A Hay, Christchurch