Nottingham conviction and sentence appeal – judgment

The Court of Appeal judgment of Dermot Nottingham’s unsuccessful appeals against conviction and sentence (and the successful Crown appeal calling for a harsher sentence) is now online – NOTTINGHAM v R [2019] NZCA 344 [30 July 2019].

The judgment found that there was strong evidence linking Nottingham with harassing and defamatory posts on the Lauda Finem website – I will cover this in more detail in another post.

Nottingham’s argument in his defence were in part self-defeating. He claimed:

  • Posts on an overseas based blog (Lauda Finem) were not covered by New Zealand law.
  • There was no evidence that he was responsible for the posts.
  • The posts were truthful so could not be deemed to be harassment or breaches of suppression.
  • The five people he was found guilty of harassing “started it” and deserved to be attacked.

The trial jury, the trial judge and the three Court of Appeal judges disagreed with him on all these claims.

His sentence was increased to 31 months in prison, but as he had already served three and a half months home detention this still qualified him for a home detention sentence. While the offences were judged to be serious he was largely spared time in prison due to serious health problems. He was re-sentenced to a further 12 months home detention (including a ban on using the internet), 100 hours commununity service, plus a further six month ban on using the internet after home detention finishes.

He was originally charged in 2015 and went to trial last year after a number of delays.

Following a five-week jury trial before Judge Down, Mr Nottingham was convicted in May 2018 of five charges of criminal harassment and two charges of publishing information in breach of a suppression order. He was subsequently
sentenced by the Judge to 12 months’ home detention and 100 hours of community work. He appeals both his conviction and sentence. The Solicitor-General also appeals the sentence, on the grounds of manifest inadequacy and error in principle.

The suppression charges:

In his summing-up, Judge Down directed that publication of the brothers’ names had occurred in New Zealand in breach of the suppression order. The key issues for the jury were, therefore, whether Mr Nottingham was the publisher or a party to the publication, and whether he had done so knowingly or recklessly in breach of the suppression order

The criminal harassment charges:

In the course of investigating the breaches of name suppression, the police identified a number of LF articles which they considered amounted to criminal harassment. Charges were laid in respect of five complainants, all of whom have been granted permanent name suppression and who we will refer to as T, C, H, B and M. The common denominator between them all was that they had at some stage crossed Mr Nottingham’s path in circumstances he took issue with.

In respect of each complainant, articles appeared on the LF website containing material the Crown alleged was “offensive” in terms of the Harassment Act 1997.

The articles included names, photographs and other personal details indicating extensive background research on each of the targets. It was alleged that some of the photographs had been obtained by Mr Nottingham or by one of his associates at Mr Nottingham’s direction. It was common for Mr Nottingham to ensure that articles were drawn to his complainants’ attention by providing them with the electronic links. The Crown also alleged various other acts of harassment — including “following” and in one case initiating a private prosecution.

At the same time he was being prosecuted for those offences Nottingham and associates continued act in a similar manner, as the many ongoing attack posts on LF show. He also unsuccessfully attempted four other private prosecutions, including one against myself. Two of these went to trial and were dismissed and described as vexatious.

As he attempted several times in my case he applied to adduce new evidence, usually a last minute stunt (the morning of hearings and in two cases during a hearing).

Mr Nottingham filed four affidavits, including one of 333 paragraphs by his brother, P R Nottingham. We assume the premise to be that they represent fresh or relevant new evidence.

We do not regard any of this material as meeting the test for admission in Lundy v R. It is neither fresh, nor (in most cases) relevant.

That sounds very familiar.

The breach of suppression order charges:

Mr Nottingham pursues two arguments:

(a) LF is overseas domiciled and “you cannot be a party to a crime that never occurred in an overseas jurisdiction”.

In his summing-up, the Judge directed that, as a matter of law, publication occurs where material is comprehended and downloaded and that accordingly there was publication in New Zealand irrespective of LF’s domicile. He said that this was a function of “Judge-made” law and that it was also a feature of s 7 of the Crimes Act 1961.

We identify no error in that direction. It did not involve any assumption of extra-territorial jurisdiction. It stated what we regard as a now uncontentious proposition: that a blog available to New Zealand internet users is regarded as published in New Zealand.

They make it clear that using an overseas based website (like WordPress) does not exempt you from New Zealand law if  it is directed at a New Zealand audience.

Physical location of the LF server was, in that context, irrelevant. What was required was proof either of direct publication (that Mr Nottingham was LF), indirect publication (that Mr Nottingham was a co-principal with LF, working directly with it to effect publication in New Zealand) or that he was a party to LF’s publication. That is exactly as the trial Judge put it to the jury, supported by an accurate description of the “party” requirements. Mr Krebs is correct that the question of whether Mr Nottingham “caused” the publication (in any of the legal senses relevant) was a matter of fact for the jury. No error of law was made by the trial Judge.

(b) The Crown failed to establish to the criminal standard that he was either the publisher of the material or a party to its publication.

The Crown advanced a circumstantial case. As Mr Nottingham reminded us, there was no “smoking gun” in the sense of an email attaching a final draft of the articles sent to LF. Nor was there any “electronic footprint” on any of the computers searched by the police which demonstrated that the article, as published, had originated from Mr Nottingham.

…Turning then to the circumstantial evidence relied on by the Crown to establish publication, we agree with Ms Brook that it was very strong, if not overwhelming.

I will cover this more detail in the next post,

We are not therefore satisfied that the verdicts on the breach of suppression charges were unreasonable or that the convictions resulted from a miscarriage of justice.

In Nottingham’s hapless attempt at prosecuting me (and three others) he claimed that we had in some convoluted way enabled people to find their way to suppression breach posts on LF – posts that he has been found guilty of posting.

Conviction appeal — the criminal harassment charges

Again, both the Crown and Mr Krebs submit that the appropriate approach is to treat Mr Nottingham’s appeal as essentially a challenge to the reasonableness of the jury verdicts. We agree, although noting that the main focus of Mr Nottingham’s second set of written submissions (filed on the morning of the appeal hearing), and of his oral submissions, was on the proposition that he ought not to have been convicted because the statements made in the articles (whether by him or not) were true or, alternatively, opinions based in truth.

…Identity (in the sense of responsibility for the acts either as principal or party) was therefore in issue on all charges. Again, Mr Nottingham’s position (both at trial and on appeal) was that there was no evidence of information being communicated from computers under his control to the LF website. And again, the Crown case was (and is) the evidence identifying him as the “driving force” behind the harassment was, if not overwhelming, certainly very strong. We start with that issue, because of its relevance also to the breach of suppression convictions.

We do not consider it necessary to set out all of the circumstantial evidence relied on by the Crown to establish identity in respect of each of the harassment charges. We agree that the jury’s conclusion on the facts was one reasonably available to it. Indeed, we consider it almost inevitable.

In the case of T, Mr Nottingham sent her a link to the first article immediately after it was published and a draft, created two days before publication, was found on a computer to which he had access. In addition, images appearing in the other articles were found on the same computer.

In the case of C, word versions of all three articles were found on a computer to which Mr Nottingham had access together with images from the articles. Likewise, drafts of other unpublished articles were also found.

In the case of B, although no draft of the principal article (published on 24 April 2013) was identified, the draft of another “unpublished” article (prepared approximately a year later) was found, and this contained very similar references to the 2013 publication. For example, the published article interposed the description “belted” between the complainant’s first and last names, and the draft contained the phrase “Beat Me”. The published article described her as “a stupid troll”, the draft as a “dumb cow” and “complete fuckwit”.

In the case of H, a word version of the first article was found on one of the computers, together with photographic images which were included in the articles and a screen shot of H’s Facebook profile. Likewise, screenshots of images in the third article were identified, as was the draft of another unpublished article in a similar vein.

And in respect of M, a word version of the first article was found on a computer to which Mr Nottingham had access together with the image of H which appeared in the same article.

In addition to this specific evidence, there was also a body of general evidence establishing either that Mr Nottingham was LF, a co-principal of LF or was, at a minimum, a party to the publications.

Although much was made of the fact that others had access to the computers at Mr Nottingham’s Hillsborough residence, particularly his brothers Anthony and Phillip, there was ample evidence that Mr Nottingham had overall responsibility and control. For example, there was an email in which Anthony told Mr Nottingham to stop treating him “like one of your fucking employees”.

Funny. While the Nottinghams, and other associatess like Earle McKinney, Marc Spring and Cameron Slater, where all involved in various ways in various campaigns of attack and harassment, they didn’t always get along with each other. very well.

By a wide margin we conclude that on the issue of “identity”, Mr Nottingham fails to satisfy us that the jury’s verdict was unreasonable.

Nottingham has tried to claim or imply it wasn’t him, but if it was it didn’t matter anyway.

Mr Nottingham cast the prosecution as an attack on his unalienable rights of free speech and as having a “chilling effect” on his “legitimate exercise of natural and legal rights”. He said that truth is a complete answer to any allegation that material given to any person or placed on electronic media was offensive within the terms of the Harassment Act.

Except that as is made clear later while posts at LF may have been based on skerricks of truth they were substantially embellished and bolstered by false claims.

The trial judge is quoted:

It has been pointed out already that given the highly inflammatory and abusive language used to impart the truth in some of these Lauda Finem articles, the Crown says that claim of truth is something of a red herring. It is also fair to say that even truthful allegations can be made and repeated in ways that are intended to and do in fact harass.

You might remember [C] in cross-examination saying effectively that these things are not true (was her response) but, even if they were, it does not mean that they can be repeated and presented in this way, in a way that makes me feel harassed and frightened.

The Court of Appeal:

We do not consider the trial Judge to have erred in his approach to this issue. The jury was legitimately entitled to take into account truth or falsity in its assessment of offensiveness, but it was only one part of a composite of considerations relevant in that respect.

Much of what was published could at best be described as virulent opinion with only a tangential connection to anything arguably true. And in respect of many of the comments, we regard even that description as excessively generous.

As the Crown said in closing, the posts were littered with “hate-filled [invective]” and were strongly misogynistic.
T was, for example, described as a “useless fucktard” and “scum of scum of scum and then some scum”. It was said that she wanted an identified person dead and was operating “in a similar fashion to the manner in which the [Nazis] singled out the Jewish community”. In respect of C, her surname was predicated by the sobriquet “cumsac”. And it was said she needed to be “brought to justice before she commits very serious offending such as murder”.

M was described as a “bent ex-cop” with the suggestion he was “on the take” (allegations vehemently denied and never established).

I have seen Nottingham claim many things (in court documents) as truth and evidence that has not been backed up with any actual evidence.

Anyone who has read through posts on LF will recognise this style of attack that bears very little semblance to “truth”.

It was not unreasonable for the jury to identify such material as offensive.

Now the bit where Nottingham claims he was justified in doing what he also tried to claim he didn’t do.

We also note that the “lawful purpose” which Mr Nottingham asserted at trial was his ability to respond to actions by the complainants which he considered to be unlawful or unjust.

(H was alleged to have been complicit in her husband’s operation of a website Mr Nottingham considered to be fraudulent; M was alleged to havemisconducted himself in office in a way which resulted in financial loss to
Mr Nottingham; C had made a police complaint about an associate of Mr Nottingham’s he alleged to be false; T had made accusations he considered baseless and B had assisted H’s husband).

A similar point appears in his written submissions on appeal, where he refers to “the issue as to whether the complainants had contributed to their problems”, albeit in a paragraph which combines submissions in relation to both conviction and sentencing. In oral submissions he further urged on us the fact that “they started it”.

We note the inconsistency of that argument with his underlying proposition that there was inadequate proof he was either the publisher of the LF articles or a party thereto.

However, that aside, the proposition that “they deserved it” was self-evidently not a defence to the charges Mr Nottingham faced.

We are also satisfied that the jury’s verdict was not unreasonable in its implicit acceptance that the intention/knowledge requirements in s 8 of the Harassment Act were proven.

The Crown case was that anyone who discovered they were a target of LF would reasonably fear for, among other things, their mental wellbeing and that this was plainly intended by Mr Nottingham, or at least he knew that it was a likely result.

As previously stated, attacks along similar lines continued on LF at the same time that Nottingham was being prosecuted – and he was protected from public exposure with name suppression.

T’s concerns included to her physical wellbeing. This was because of photographs posted to the site from someone who had clearly been tracking her movements and because the phrase “two head shots to be sure”, had been inserted  between her first and last names in the 29 April 2013 article. Her fears were compounded by the fact that the article was forwarded to her with a link to a scene from the Quentin Tarantino film “Pulp Fiction” which showed a person being shot in the head.

Although Mr Nottingham suggested that this was a reference to T’s treatment of certain people, we agree with the Judge that “it is not unreasonable and should have been foreseeable that those statements would be read as a threat towards [T]”.

I had implied death threats directed at myself on LF and Twitter, but I suspect it more likely to be via associates.

Nottingham submitted that the trial judge:

… did not fairly sum up the competing evidence, effectively casting aside the evidence that established that [the complainants] were not telling the truth, when the prosecution was alleging defamation.

But:

In this case, we regard as compelling the following exchange between the Judge and Mr Nottingham which occurred in chambers immediately after the summing-up:

The Court: All right, now any matters arising?

Mr Nottingham: Sir, may I comment that that was a very fair summing up.

The Court: Thank you. I tried very hard to ensure that it was.

Mr Nottingham: It was.

A number of other complaints were dissected and overruled.

Accordingly, Mr Nottingham’s appeal against conviction is dismissed.

The sentence appeals

The sentence was premised on the following findings of fact which we agree were consistent with the jury’s verdicts:

(a) Mr Nottingham either was LF (in other words the leading mind of that blog) or he was so intimately related to it that it was proper to conclude that he provided information and draft articles to that blog knowing and intending that they would be published.

(b) Publication and other intimidating and harassing conduct was either carried out by Mr Nottingham himself or at his direction and he knew his conduct was likely to cause the individuals involved to fear for their safety or that of family members.

(c) Although Mr Nottingham may, at least initially, have reasonably believed he had legitimate grievances in respect of the complainants, he elected to pursue these, not by lawful and reasonable means, but by personal attacks on an “anything goes” basis.

The trial judge on the harassment charges…

…it went “without saying” that all of the offences were sufficiently serious to justify a starting point of imprisonment.

CoA:

In respect of the breach of non-publication orders, the Judge noted the Crown submission that the maximum penalty of six months’ imprisonment be adopted as the start point. The Judge categorised these breaches as blatant and contemptuous and noted Mr Nottingham showed no remorse.

In respect of the combined total starting point of two years and four months’ imprisonment, he then gave a four-month discount to reflect what he described as Mr Nottingham’s “multi-faceted and complex” health problems, which in the Judge’s view meant that a sentence of imprisonment would be much harder for him than for an average middle-aged man in reasonable health. He identified this as the only mitigating factor resulting in a provisional end sentence of two years’ imprisonment. That required that the Judge give consideration to home detention which, consistent with authority, he recognised as having a general and specific deterrence value.

He said he regarded home detention as an appropriate and sufficient response.

The indicated months’ home detention sentence was then apportioned in the way we have previously indicated. Special conditions were imposed including that Mr Nottingham attend counselling or treatment programmes as directed by a probation officer and that he not use any electronic device capable of accessing the internet without prior approval from
a probation officer.

Again Nottingham seems to be speaking on behalf of whoever posted at LF:

Mr Nottingham said that the sentences should be commuted to time served (three and a half months home detention) and without the requirement for community work on the primary ground that the LF articles on which the harassment charges were based were “not designed to make anyone fear for their safety”.

How would he know what the design of the posts was if he wasn’t involved?

By contrast, the Crown submitted the sentence was manifestly inadequate and that nothing less than a custodial sentence is sufficient to capture the level of denunciation and deterrence required for what it says was an egregious breach of non-publication orders and malicious and misogynistic attacks on members of the public.

Ms Brook submitted that manifest inadequacy arises primarily from the wayin which the sentences were structured, and in particular, what she says was an excessive discount for totality. She submitted that the final sentence should have been in the region of three years five months’ imprisonment, made up of cumulative sentences, save that the sentences for the two breaches of the suppression order were properly imposed concurrently with each other and cumulatively on the sentences for criminal harassment.

…Ms Brook therefore submitted that the Judge’s sentence should be quashed and a new sentence imposed in the region of two years and 10 months’ imprisonment.

We accept Ms Brook’s submission that the offending against C and T justified a 12-month starting point for each.
The language used was particularly demeaning and offensive and the fact that a photograph was taken of T without her knowledge and subsequently published must have been calculated to add to her insecurity.

The offending against B, H and M was not as serious, although there were strongly misogynistic elements in the articles about B and H and the implication that M was corrupt was clearly a very damaging one given the nature of his employment.

We consider cumulative sentences of six months (in relation to the offending against B), five months (in relation to the offending against H) and five months (in relation to the offending against M) appropriate.

In respect of the breach of suppression offences, we agree with the Judge that they were sufficiently interconnected and similar in kind to attract concurrent.

Discount for poor health

In respect of the Judge’s four-month discount for ill health, we consider that he was particularly well placed to make the necessary assessment.

We agree with the Judge that Mr Nottingham presented with a complex combination of physical and mental health problems. Several reports identify him as suffering from Post Traumatic Stress Disorder (PTSD) attributable to childhood
trauma and although Dr Skipworth says this diagnosis “is controversial in cases of life-long trauma such as Mr Nottingham describes”, nevertheless he accepts it is one way clinicians choose to diagnose and understand “long-term personality dysfunction, interpersonal relational difficulties, cognitive impairment and mood dysregulation in presentations such as Mr Nottingham’s”.

We also note a diagnosis of a traumatic brain injury sustained in a high-speed motorcycle accident in 1996 and a further serious motorcycle accident in 2016 which Dr Walls was concerned had “significantly aggravated the old traumatic brain injury”.

Likewise, Mr Nottingham suffers from a significant number of physical impairments, principal among them recurrent and serious atrial fibrillation. This condition in turn compounds the congestive heart failure from which he also suffers. Multiple hospital admissions have resulted.

Overall, we are not persuaded that the Judge was wrong to make the allowance he did.

There’s not doubt there are serious health issues (and more than what is stated here), and that prison would impose more hardship than normal.

With such a dire health report I wonder that there would be far better and more important things to do than harass people and get bogged down in lengthy court procedures.

Combining the totality and health discounts, we therefore arrive at a sentence of 31 months’ imprisonment which is approximately 30 per cent higher than the Judge’s end point.

In re-sentencing Mr Nottingham we are, however, obliged to take into account the three and a half months of home detention he has already served. Allowing a seven-month discount in this respect again brings Mr Nottingham’s sentence to a level where the Court is obliged to consider home detention. We consider that to be an appropriate sentence, particularly having regard to:

(a) Mr Nottingham’s physical and mental health, which we consider would make the consequences of imprisonment disproportionately severe;

(b) the opportunity to direct participation in rehabilitative programmes, as recognised by the Judge; and

(c) the ability to protect the interests of the complainants and the community by the imposition of restrictive conditions of internet access, again as recognised and directed by the Judge.

I hope the complainants and other victims are adequately protected.

With no sign of acceptance of responsibility nor remorse I have doubts about the prospects of rehabilitative programmes having much impact.

Our approach is therefore to impose concurrent sentences, as follows:

(a) in respect of the offending against C, 12 months’ home detention, concurrent with all other sentences;

(b) in respect of the offending against T, 12 months’ home detention, concurrent with all other sentences;

(c) in respect of the offending against B, eight months’ home detention, concurrent with all other sentences;

(d) in respect of the offending against H, six months’ home detention, concurrent with all other sentences;

(e) in respect of the offending against M, six months’ home detention, concurrent with all other sentences; and

(f) in respect of each breach of suppression, five months’ home detention concurrent with all other sentences.

The existing (part-served) sentence of home detention is quashed.

A new sentence of 12 months’ home detention (with identified concurrent home detention sentences) plus 100 hours’ community work is imposed, subject to the same conditions as imposed by the District Court.

That’s additional to the three and a half months home detention already served.

I’m aware there are some people who claim to have been badly affected by attacks by Nottingham and his cronies think that prison is deserved, but (and I haven’t been as severely affected) I don’t have a problem with the end sentence, despite him continuing with attacks and harassment while facing the charges this sentence applies to.

However if Nottingham offends again he would deserve what Court should then deal him.

I note that Nottingham tried to get a judge to put me “in prison by Christmas” in 2015 – for (allegedly and incorrectly) enabling people to find his posts at LF. But as with his double standards on name suppression – abusing and breaching it for others but claiming it for himself (as did Cameron Slater), what he wanted to inflict on others was something he tried to weasel out of for himself.

Full judgment: NOTTINGHAM v R [2019] NZCA 344 [30 July 2019]

Leave a comment

3 Comments

  1. Alan Wilkinson

     /  2nd September 2019

    Good to see another good judgement from the appeal court. They seem to be improving at long last.

    Reply
    • I hope that Mark Lundy is disappointed with his attempt.

      Reply
      • Duker

         /  3rd September 2019

        Lundy won on the facts at the court of Appeal…. But as is it’s style (in spite of the Privy Council overturning them on other significant cases AND Lundy’s) they continue to refuse to overturn the conviction itself.
        I remember their decision on Dotcoms appeal , the recent one, where previous CA precedent favoured KDC in a similar case of extradition application for racketeering , faced with this conundrum the court overruled their previous precedent seemly to spite KDC, or in their words “because we can”

        Reply

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