Rudd v R - [2015] NZHC 2399

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…

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 Rudd v R

Details

AGLC: Rudd v R [2015] NZHC 2399
Case: [2015] NZHC 2399
Decision Date: 2 October 2015

CaseChat Overview and Summary

Phillip Hugh Rudd, a longstanding member of the band AC/DC, appealed his conviction and sentence for threatening to kill, possession of a Class A controlled drug (methamphetamine), and possession of a Class C controlled drug (cannabis). Rudd contended that he should have been discharged without conviction and that his eight-month home detention sentence was manifestly excessive. The court first examined the culpability of Rudd's offending, agreeing with the District Court Judge that the threat was premeditated and serious, warranting an 18-month imprisonment starting point. The court then considered mitigating factors, including Rudd's remorse, participation in restorative justice, and reparation paid, which led to a significant discount. The District Court Judge opted for home detention, which the court found to be an appropriate alternative to imprisonment. Regarding the discharge without conviction, the court concluded that the consequences of conviction were not disproportionate to the gravity of the offence, and Rudd's previous discharges without conviction for similar wrongdoing weighed against granting another discharge. The appeal was dismissed.

Orders