Rudd v R [2015] NZHC 2399 (2 October 2015)

Last Updated: 6 October 2015

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2015-470-000007 [2015] NZHC 2399

BETWEEN	PHILLIP HUGH RUDD Appellant
AND	THE QUEEN Respondent

Hearing:	23 September 2015
Counsel:	CJ Tuck for Appellant AJ Pollett for Respondent
Judgment:	2 October 2015

_{JUDGMENT OF ASHER J}

This judgment was delivered by me on Friday, 2 October 2015 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: CG Tuck, Tauranga.

_{Crown Solicitor, Tauranga.}

RUDD v R [2015] NZHC 2399 [2 October 2015]

Introduction

[1] Earlier this year Phillip Hugh Rudd amidst a considerable media furore, pleaded guilty to charges of threatening to kill, possession of a Class A controlled drug, methamphetamine, and possession of a Class C controlled drug, cannabis. He is a longstanding member of the band AC/DC.

[2] On 9 July 2015 he was sentenced by Judge T R Ingram to eight months’ home detention, together with six months’ post-release conditions, and ordered to pay $120,000 by way of reparation.¹ Mr Rudd appeals against his conviction submitting that he should have been discharged without conviction. He also appeals against his sentence of eight months’ home detention on the basis that this sentence was in all the circumstances manifestly excessive.

Facts

[3] The victim was a contractor who worked for Mr Rudd. I will not go into details of his employment as his name is suppressed, or give other details that will lead to his identification.

[4] By September 2014 Mr Rudd had become angry with the victim and had terminated his services. On the evening of Thursday, 25 September 2014 he called an associate who was holidaying in Australia. He said he wanted the victim “taken out”. When asked what he meant by that he said he wanted a person or persons “taken care of” because they were a “bunch of fuckers and cunts”.

[5] In another call while the associate was still in Australia, Mr Rudd offered him

$200,000, a motorbike and one of his cars or a house. The associate took this to be a payment for carrying out his earlier request.

[6] On Friday, 26 September 2014 Mr Rudd called the victim in the morning. He

_{asked the victim if he “was on” today. The victim responded “yes” he was.}

1. R v Rudd [2015] NZDC 13210. The quantum of reparation is in an addendum to the judgment added when the judgment was recalled.

Mr Rudd then said “I’m going to come over and kill you”. He then repeated “I’m

going to come over and kill you, you fucken cunt”.

[7] On Sunday, 28 September 2014 in the late afternoon Mr Rudd tried to call the victim again. As soon as the victim realised it was Mr Rudd on the telephone he terminated the call. On Monday, 29 September 2014 in the late afternoon Mr Rudd again called the victim, who again when he realised who it was terminated the call.

[8] As a result of the threats made by Mr Rudd the victim became genuinely very fearful about his safety. The summary does not clearly disclose the details of how and when the victim went to the Police. However, on 6 November 2014 the Police executed a search warrant on Mr Rudd’s home. He was in the lounge area and when the Police arrived he reached out to move a container containing cannabis crumbs from the coffee table and to place it on the floor out of sight. He then pulled out a plastic snaplock bag containing cannabis from the edge of the couch cushion. The Police found in Mr Rudd’s jeans a small snaplock bag containing 0.273 grams of methamphetamine. There was a search of Mr Rudd’s property and further seizures were made of 0.205 grams of methamphetamine, together with two further quantities of cannabis.

[9] The total amount of cannabis found in the home was 91 grams (3.2 ounces), and 0.478 grams of methamphetamine. Although the amount of cannabis found was over three times the presumption for supply, the Police accepted Mr Rudd’s explanation that the cannabis was for personal use.

[10] There is a victim impact statement. There is also a restorative justice conference report. It is clear from these documents that although there has now been a rapprochement between Mr Rudd and the victim, the victim at the time of the threats genuinely thought that he was in danger, and for quite a long period. The victim, given the close contract relationship he had with Mr Rudd, felt vulnerable and became fearful.

[11] Initially Mr Rudd was charged with an additional charge of threatening to kill. Following a plea agreement that charge was dropped. Mr Rudd pleaded guilty to the other remaining charges.

District Court decision

[12] Judge Ingram’s decision of 9 July 2015 is detailed. He first dealt with the discharge without conviction, and then having determined that a discharge was not appropriate, turned to the appropriate sentence. He fixed a starting point of

18 months’ imprisonment for the threatening to kill charge, and uplifted it by three months for the drugs charges, bringing the total starting point to 21 months’ imprisonment. He then accepted that a small discount would be appropriate for the plea of guilty, being a two month deduction off the imprisonment sentence.

[13] He then considered Mr Rudd’s genuine remorse, attendance at a lengthy restorative justice process and the substantial reparation which had “been paid, not promised”.² The Judge assessed all those matters as warranting a further deduction of six months’ off the term of imprisonment, coupled with a further month for his good record, a total of seven months. Thus, the total deduction was nine months from a 21 month starting point, leaving an end sentence of 12 months’ imprisonment.

[14] The Judge turned his attention then to the least restrictive sentence that was appropriate. He determined that to be home detention, coupled with the imposition of rehabilitative requirements. Mr Rudd’s home was a suitable home and he was a suitable candidate. The Judge refused to approach home detention on a formulaic basis halving the proposed sentence of imprisonment, and determined that “no lesser period than eight months’ home detention is required to cover the seriousness of this

situation”.³ He imposed post-detention conditions for six months, including non-

possession, consumption or use of any alcohol or drugs, and the attendance at an appropriate alcohol and drug rehabilitation programme together with counselling.

² _{At [76].}

³ At [80].

The appeal against sentence

[15] Contrary to the approach of the District Court Judge, I consider it more convenient at least on appeal to approach the issues before me on the basis of determining what the appropriate sentence would be, before turning to discharge. This is because the R v Taueki⁴ methodology provides a useful framework in which to assess the culpability of the offending and the personal culpability of Mr Rudd, which are essential factors to be taken into account in considering a discharge.

The culpability of Mr Rudd’s offending

[16] Mr Tuck for Mr Rudd argued that the Judge overstated Mr Rudd’s culpability. He submitted that the offending involved “an angry phone call and no more”. The appellant was doing no more than “nutting off” on the telephone.

[17] Like Judge Ingram I disagree with this assessment. Indeed, I view it as far off the mark. Mr Rudd’s threat was not a spontaneous outburst; it was a manifestation of a serious intention to intimidate and at least cause grave fear to the victim. The whole period of pursuing the threat to kill set out in the summary of facts lasted for five days.

[18] Mr Tuck’s submission ignored the two telephone calls made prior to

26 September 2014, where Mr Rudd was taking steps to contact an associate to have the victim “taken out”. This was not just loose talk. There was actually a significant sum of money and chattels offered as a reward.

[19] The threat itself was not therefore a sudden spontaneous outburst. Moreover, it was the result of a deliberate telephone call. Mr Rudd, having made his earlier calls about arranging for the victim to be taken out, chose to lift up the telephone, wait until the victim answered, utter his threat and then repeat it. Mr Rudd then on two subsequent days chose to go to the telephone, ring the victim, and then wait for

_{him to answer, although on those occasions the victim terminated the call.}

⁴ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA).

[20] The maximum penalty for threatening to kill is seven years’ imprisonment. There is no guideline judgment or tariff for this offence.⁵ Starting points of up to three years’ imprisonment have been applied where weapons have been used and where threats have been extreme and causative of great fear.⁶ They go to as low as four months’ imprisonment for a defendant making an isolated and indirect threat to kill to a police officer,⁷ and for sending two text messages to a Child Youth and Family officer threatening to kill her former partner.⁸

[21] I do not propose traversing the large number of cases in between those extremes where persons have been sentenced for threatening to kill. These were very helpfully analysed by White J in Allan v Police, and also by Gendall J in Warren v Police.⁹ In Allan v Police, White J identified a number of factors of importance in assessing the seriousness of threatening to kill offending. There is no need for me to repeat all those matters, as a number are irrelevant to this appeal, but the following matters can be noted in relation to this appeal:

(a) This was a premeditated threat in the sense that Mr Rudd’s call was not an impulsive reaction, but something that was the result of thought and action over a number of days.

(b) It was a threat that was deliberately followed up in that the two calls were made to the victim over the next two days.

(c) The threat was made directly to the victim.

(d) The victim believed the threat was genuine and together with his family actually became fearful. He knew Mr Rudd well and knew his resources. He took steps to secure his house. In all the circumstances

_{it can be seen that his fear was both a genuine and a rational fear.}

⁵ _{Burchell v R [2010] NZCA 314 at [25].}

⁶ _{Burton v R [2014] NZCA 221, Simon v R [2014] NZCA 207 and Fahey v R [2014] NZCA 465.}

⁷ _{Burchell v R, above n 5.}

⁸ _{McCleary v Police [2014] NZHC 1581.}

⁹ Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011 at [28]–[30], and Warren v

Police [2015] NZHC 136.

[22] I recognise, of course, that some potentially aggravating factors are not present. There was no weapon involved in the threat, and the victim did not hold any form of public office. But there are a number of particular features of Mr Rudd’s offending which takes it far from being in the least culpable category. In addition to the premeditation the victim was a former contractor and being a close associate of Mr Rudd’s he can be seen as more vulnerable than many, given the difficulty that a person in that position can have in going to seek help from the Police. Also, while not threatened by a weapon the victim knew, as I have observed, that Mr Rudd had the financial ability to employ persons to carry out his wishes.

[23] In my assessment Judge Ingram was accurate when he summed up the position in relation to the gravity of the offending in this way:¹⁰

Given the other cases that I have been involved in, in recent times, and the nature of the threat that was uttered by you, it seems to me that it is a pretty serious offence. I have seen worse but I have seen many, many which I would regard as being somewhat less serious threats, mostly uttered by people who are not in a position to carry threats out.

[24] While this is far from the least serious of threats, it was also not in the most serious category. I consider that the starting point chosen by the Judge of 18 months’ imprisonment was sound.

[25] In relation to the methamphetamine and cannabis charges, the maximum sentences applicable were six months and three months respectively. I accept Mr Tuck’s submission that if those charges had been heard on their own it was unlikely that any sentence other than a fine would have been seriously contemplated by a Judge. However, Judge Ingram was bound to assess the culpability for this separate offending, and he adopted the approach without demure from Mr Tuck that the appropriate way of dealing with the sentencing on the drugs charges was to add a period of imprisonment.

[26] The methamphetamine amounted to approximately four hits. The cannabis, however, was three times over the presumptive limit that applies to the supply of

_{cannabis and it sounds as if there was enough cannabis for up to 30 cannabis}

¹⁰ R v Rudd, above n 1, at [54].

cigarettes. The Crown had proposed a two to three month uplift for the drug offending. In my view the end uplift that the Judge chose of three months’ imprisonment was severe, given that it was accepted that the drugs were for Mr Rudd’s personal use. I consider that an uplift of one and a half to two months would have been more appropriate. I will turn to that issue when I consider the mitigating factors.

[27] I put to one side Mr Tuck’s frequent references to Mr Rudd being heavily under the influence of drugs at the time he offended. I accept that he was in a dark place at the time and I will be referring later to his efforts to rehabilitate himself, and how this offending may be seen as, save for two prior instances, being out of character for him. However, the fact that he was heavily under the influence of drugs is not a mitigating factor. Section 9(3) of the Sentencing Act provides that a Court must not take into account by way of mitigation the fact that the offender was at the time of committing the offence affected by the voluntary consumption of drugs. It seems to me that this section applies directly to Mr Rudd’s condition at the time of the offending.

Mitigating factors

[28] In assessing mitigating factors the Court has the benefit of a pre-sentence report, a restorative justice conference report and a number of affidavits and statements supportive of Mr Rudd.

[29] Mr Rudd has limited prior convictions of refusing a request for blood alcohol and driving a motor vehicle in a dangerous manner. It is, however, accepted that he has been discharged without conviction on two occasions after having been charged with the following offences:

(a) In 2007 he was charged with common assault. This was in a domestic context and involved threatening behaviour to somebody who was close to him and vulnerable.

(b) In 2011 he was charged with possession of cannabis. He was convicted by a Community Magistrate, but discharged following an appeal to the District Court.

[30] Thus in terms of past record alone Mr Rudd would not be entitled to claim good character under s 9(2)(g) of the Sentencing Act. However, Mr Rudd can claim good work in the community as a mitigating factor. There is sufficient material in the form of affidavits and statements before the Court to satisfy me that Mr Rudd has done some good work within the community and is a significant employer. However, this can only go so far. It has not been shown that Mr Rudd is a serious philanthropist, or that he has sacrificed significant portions of his wealth or time.

[31] Of more importance in assessing personal mitigating factors is his participation in a restorative justice conference. There is a detailed report about this on the file. The conference went for over two days in June 2015. Mr Rudd appears to have been repentant and apologetic. His apologies appear to have been sincere. A Court is always cautious about assessing post-conviction expressions of remorse by defendants, but in this case his remorse appears to be genuine and this appears to have been the view of Judge Ingram.

[32] The Judge also took into account the “substantial reparation which has been paid” of $120,000.¹¹ It seems now that the information that the Judge accepted was incorrect. In fact only $50,000 of the $120,000 has been paid, and I was informed that the balance awaits the sale of an asset. However, while the Judge may as a consequence of not being given the correct information placed too much weight on reparation, it was undoubtedly appropriate to place some weight on it given the significant sum that had in fact been paid.

[33] The culmination of Mr Rudd’s remorse, his participation in the restorative justice process, the reparation that he paid and his good work in the community led the Judge to deduct six months, plus one month for the prior good record, being a total of seven months off the 21 month starting point, a discount of one-third of the

_sentence.

¹¹ R v Rudd, above n 1, at [76].

[34] He also deducted two months, or approximately 10 per cent off the sentence for the guilty plea.

[35] Mr Tuck submitted to me that the discounts could have been more generous. I do not agree. The total of a one-third credit for the reparation, remorse and “good character” was generous. Less than half the reparation that the Judge assumed had been paid, has in fact been paid. It could not be said, as Ms Pollett pointed out, that Mr Rudd had established that he was completely rehabilitated. He does appear to be in a much better place now, and it is very much to be hoped that things will continue to improve. However, I have no evidence for instance that he is entirely free from drug use and is permanently reformed in that area. The previous discharges without conviction on similar charges featuring similar wrongdoing, which I refer to later, in themselves make the “good character” discount allowed by the Judge generous.

[36] As to the two month discount for the guilty plea, the guilty plea was at the very last minute. The Crown had to prepare fully for trial and be ready to go on the morning in question. It is true, as Mr Tuck has pointed out, that the week before there had been an indication that guilty pleas would be entered, and that it was agreed that one of the threatening to kill charges would be withdrawn. On the other hand, the Crown felt that it had to remain on full alert and ready to go until guilty pleas were actually entered on the day set down for the trial, and it is my assessment that the approach that the Crown took was reasonable. I also think there was force in Judge Ingram’s point that any allowance for the guilty pleas has to be tempered by the fact that the Crown case was very strong.

[37] Thus, it seems to me that the discount of two months, or approximately

10 per cent, given by the Judge was within the range.

[38] The Judge having deducted the seven months and the two months, a total of nine months, was left with a sentence of 12 months’ imprisonment before he turned to home detention. I consider that his conclusion on the starting point was reached in accordance with established sentencing principles and was within the range. The three months add-on for the drug charges may have been severe, but the discount for remorse, reparation and good character was generous.

[39] A final point to be determined is whether in the circumstances there was any other penalty available other than home detention. Judge Ingram was firmly of the view that other options, such as community detention, would not be appropriate. Mr Tuck in his submissions suggested that a sentence of supervision would have been adequate.

[40] Given that this was a relatively serious threat to kill charge, there was a real need to denounce Mr Rudd’s actions and deter him and others from re-offending. I agree with Judge Ingram’s assessment; a penalty that involved imprisonment or the nearest sentencing alternative was the required sentencing response to such serious offending. Anything less would not have adequately reflected the culpability of Mr Rudd’s act, even taking into account his particular circumstances. Judge Ingram could have chosen a lesser period of home detention, perhaps as low as six months in all the circumstances. However, there is no linear relationship between the notional appropriate sentence of imprisonment and an end sentence of home detention. The sentence of imprisonment is not just divided by two.

[41] I consider that the sentence of eight months’ home detention was at the severe end of the available range, but not out of it. It is in the end a sentencing response to a serious crime that was open to the Judge to impose. I would not therefore allow the appeal against sentence. However, that was not all that was at issue in this case. Having carried out this exercise it is necessary to put to one side any presumption that any form of sentence is appropriate, and consider whether there should have been a discharge without conviction.

Discharge without conviction

Approach

[42] The approach on appeal to a discharge without conviction is by way of a re- hearing with the Court hearing the appeal and making a new assessment in

_{accordance with its own opinion.}¹²

¹² R v Hughes [2008] NZCA 546 at [11].

[43] Section 106 of the Sentencing Act grants the Court a discretion to discharge an offender without conviction. This discretion is subject to the test set out in s 107. The approach to be followed in applying the s 107 test was set out by the Court of Appeal in Z v R where Arnold J held:¹³

...when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge ...

The gravity of the offence

[44] I have already considered the gravity of this offending. I have also considered the mitigating factors relating to the offending and the offender. I will return to these when I consider the final balancing process.

The direct and indirect consequences of conviction

[45] This was a matter considered in detail by Judge Ingram. He accepted that one consequence of his conviction would be that it would be unlikely that Mr Rudd would be able to travel to at least Japan and Canada. There could also be difficulties in him travelling to the United States of America. The Judge had the benefit of an affidavit from an Auckland barrister, Mr Hirschfeld, who has practiced in a number of jurisdictions and has made a particular investigation of the likely impact of convictions in Mr Rudd’s case. He has previously provided affidavits in other cases on similar issues.

[46] The Judge, however, was not satisfied that even accepting these restrictions on travel in the short term, that this would have an immediate impact on Mr Rudd. This was because it was by no means clear that he was a current member of a band

_{and in demand to travel. He summed up the position this way:}¹⁴

¹³ _{Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].}

¹⁴ R v Rudd, above n 1, at [57]–[58].

That will result in you losing any place that you might have in the future in AC/DC as a touring band. That will cost you a substantial amount of future income.

As against that the Crown are right to point out there is no signed contract. There is no offer of a place in the band. You have previously been excluded from the band for periods for behaviour which has not been acceptable and that was prior to these events. Accordingly, I accept the Crown position that the claim that you will lose tens of millions of dollars is not quite as real as it is for someone who has a signed contract as I often see ...

[47] Mr Tuck spent much of his submissions emphasising Mr Rudd’s singular talents as a drummer, his important role in AC/DC, and the great loss to him financially of not being able to tour. In the end, however, having considered his submissions and examined all the material before the sentencing Judge, I draw the same conclusion as he does.

[48] There is a potential for Mr Rudd to lose significant income because of the conviction. For that to arise two things would have to happen. First, the band would have to want him to play with them. Second, the convictions would have to operate as a barrier to him travelling with them on tour. Neither are certain. It is far from clear that at the time when the offending took place there was any place in the band available to Mr Rudd, given his drug addiction and state of mind. Should he turn his life around so that the band wanted him to be part of it, it is by no means clear that the convictions would pose an insuperable barrier to him being a part of that band. It is only in certain countries that there is a certain problem arising from the convictions, and there is nothing to indicate that if Mr Rudd was a greatly wanted band member that his inability to travel to those countries would mean that he could not be employed in other countries.

[49] Moreover, it is not established on the evidence before me that once there is a conviction a person is permanently banned from a country. If that person is of a high profile and can satisfy the authorities that there has been complete reform and a turn- around of lifestyle, it is possible that there could be some discretionary leeway exercised, certainly in the United States.

[50] While it is a point in favour of a discharge that Mr Rudd’s ability to travel with the band is significantly prejudiced by convictions, the weight given to that

must be tempered by the uncertainty of his position, and the fact that by his own actions irrespective of the convictions, he has limited his prospects of employment with the band.

Balancing

[51] So it is necessary to turn to the question of whether the consequences of a conviction are out of all proportion to the gravity of the offence.

[52] In my view they are not. Even with the convictions, Mr Rudd may practice as a musician in session work and in concerts in New Zealand and in other countries. His ability to be a member of AC/DC is affected by the convictions, but it has not been shown that the convictions are fatal to his ability to rejoin the band. His drug addictions and state of mind appear to be the greater problem. The detriment that he does suffer from the fact of having convictions does not outweigh the gravity of his offending. This was serious offending, aggravated by the matters that I have set out. There are mitigating factors and Mr Rudd was given credit for those in a sentencing process. However, the fact remains that the offending was grave and the disadvantage that Mr Rudd will suffer as a consequence of convictions is not out of all proportion.

[53] It is also relevant in the balancing to consider the prior discharges without conviction. Mr Rudd has previously been given two chances using the s 106 jurisdiction, both of which featured similar wrongdoing to the present: bullying behaviour and drug use. Despite the chances he was given on those occasions, and the fact that he must have been aware in the clearest possible way of the consequences of further offending, he proceeded to offend again. This is a factor which can be brought into a balancing process as relevant to the gravity of his offending. Further, if the s 107 balancing process had come out in Mr Rudd’s favour, it might well have been determinative on its own in persuading a Court in its discretion that it should not grant a discharge.

[54] Thus, I conclude that Judge Ingram was right in concluding that there should be no discharge without conviction. That would be a misuse of the s 106 process.

Result

[55] For the reasons that I have set out, I consider that the end sentence was within the available range, and that the application for a discharge without conviction was correctly dismissed.

[56] The appeal is dismissed.

...................................

Asher J