Nottingham on bail pending Supreme Court appeal of length of home detention

Dermot Nottingham has had a couple of rare successes in court – The Supreme Court recently granted him leave to appeal the length of his home detention sentence, and he has been granted bail pending that appeal.

But there us some risk with his appeal as there is a possibility that the sentence of home detention would have to be replaced with a sentence of imprisonment. And he failed to get leave to appeal a failed application for habeas corpus.

In 2015 Nottingham was charged on two counts of breach of suppression and five counts of criminal harassment.

After a number of delays he was found guilty by a jury in 2018 and a 24 month prison sentence was calculated. This is the maximum that can be converted to a home detention sentence, so this was changed to 12 months home detention, largely on illness grounds despite the sentence being served in the home from which a lot of the offending had occurred via the Lauda Finem website. This was the maximum length home detention sentence allowed under law.

Nottingham appealed both the conviction and sentence and failed with both appeals.

The Solicitor General also appealed the sentence as inadequate and won, so the original sentence was quashed. A new sentence of 31 months home detention was calculated, but as Nottingham had already served three and a half months home detention before getting bail 7 months was deducted, leaving a 24 month prison sentence. This again was the maximum possible that could be converted to home detention, so a new sentence of 12 months home detention was imposed.

NOTTINGHAM v R [2019] NZCA 344 [30 July 2019]

Nottingham appealed this new sentence at the Supreme Court, claiming that the maximum home detention sentence available was 12 moths and he would effectively serve 15 and a half months home detention.

DERMOT GREGORY NOTTINGHAM v R [2019] NZSC 144 [12 December 2019]

He then went back to the Supreme Court and was granted a recall and leave to appeal.

 DERMOT GREGORY NOTTINGHAM v R [2020] NZSC 23 [20 March 2020]

He went back to the Supreme Court seeking bail. This was heard on 24 April.

Bail is opposed by the Crown on a number of bases. The key submissions can be summarised as follows. First, it is said that the appeal has no merit. This submission relies primarily on the proposition that the previous sentence was of no effect once quashed by the Court of Appeal and also on the fact that the time served was taken into account by that Court. On this basis, the sentence imposed was lawful.

We accept the submission for the Crown that the application for bail should be treated as an application for bail pending determination of the sentence appeal. It is therefore necessary to decide whether a grant of bail is in the interests of justice.

We consider that test is met primarily because there is a risk that Mr Nottingham’s sentence appeal would otherwise be rendered nugatory. The point of Mr Nottingham’s appeal is to establish he could not lawfully be required to serve more than 12 months’ home detention. It is not disputed that Mr Nottingham has now served 12 months’ home detention.

But “rendered nugatory” is just one possibility.

Second, the submission is that there is no risk that the appeal will be rendered nugatory if bail is not granted. This is essentially because, the Crown says, that if Mr Nottingham succeeds on his appeal then the sentence of home detention would have to be replaced with a sentence of imprisonment.

I wonder if Nottingham considered the possibility that if he succeeded with his appeal against sentence the outcome could be prison. But that’s not certain.

The submission for the Crown that the appeal is not otherwise rendered nugatory relies on the proposition that a sentence of imprisonment would inevitably be imposed on Mr Nottingham should his appeal succeed. But that is not necessarily so. The Court would have the usual powers applicable on a sentence appeal.

Nevertheless there is a risk of an own goal (or own gaol).

But bail was granted pending the hearing of the appeal, with some strict conditions:

  • (c) not to associate or have contact, directly or indirectly, with any of the witnesses who gave evidence for the Crown (or whose evidence was read or admitted by consent) in the District Court trial, other than with written consent from Crown counsel;
  • (d) not to associate or have contact, directly or indirectly, with the victims in the District Court trial (T, C, H, B and M);
  • (e) not to access the Lauda Finem website other than for the purpose of preparing material directly relevant to the appeal;
  • (f) not to post information on, or provide information to be posted on, the Lauda Finem website; and
  • (g) not to post information on, or provide information to be posted on, any website relatable directly or indirectly to the victims in the District Court trial (referred to in (d) above).

Getting bail during Covid lockdown is only a partial reprieve.

Interesting to see the explicit ban on using Lauda Finem. In his trial Nottingham was found to be the primary person responsible for many attack posts on Lauda Finem, but the blog was shut down (via another court action) and a mirror site hasn’t had any new posts for three years.

But the ban also includes ‘any website’ relatable to the offences.

Also:  The proposed habeas corpus appeal

The habeas corpus appeal is essentially brought on the same basis, that is, detention beyond the period of 12 months is unlawful.

The habeas corpus application was dismissed by van Bohemen J on two bases. First, the Judge considered that the respondent in that case had established the lawfulness of the detention because Mr Nottingham was subject to detention under a lawful order of the Court. Second, the Judge found that habeas corpus was not an appropriate remedy where Mr Nottingham was using habeas corpus to pursue his sentence appeal.

We are satisfied that there are no exceptional circumstances to justify a direct appeal to this Court. That is because, as van Bohemen J found, the question Mr Nottingham would have the Court consider is “classically a question for appeal” and Mr Nottingham will have that on 14 May 2020. His position in the interim is preserved by the grant of bail.

So  the application for leave to appeal against the decision declining habeas corpus was dismissed.

Dermot Gregory Nottingham v R

From the High Court judgment:

It is apparent that Mr Nottingham is asking the High Court to hold that the Court of Appeal’s decision to impose a sentence of 12 months’ home imprisonment is wrong in law. That is a matter for appeal. It is well beyond the jurisdiction of this Court.

NOTTINGHAM v DEPARTMENT OF CORRECTIONS [2020] NZHC 332 [28 February 2020]

Nottingham was applying for habeas corpus to the High Court for essentially the same purpose as his concurrent Court of Appeal action (now at the Supreme Court).

The Supreme Court will hear Nottingham’s appeal against the length of his home detention sentence on 14 May 2020.

Bail law and remand prisoner numbers

A change to bail laws is credited as a significant reason for a rapidly increasing prison population, but a change in approach by judges has also contributed.

Minister of Justice Andrew Little has indicated he wants to change the bail laws, but this is a tricky political issue. If bail laws are relaxed it’s certain that any significant crime committed by someone on bail will be publicised as a failure.

Longer prison sentences without adequate mental health and addiction treatment also contributes to high levels of recidivism, but examples of that tend to not be publicised so much by those with tough on crime political motives.

RNZ: Relaxing bail laws: How risky is it?

In April, Justice Minister Andrew Little signalled the bail laws might be changed, as increasing remand numbers have seen the prison population balloon.

However, the families of people murdered by someone on bail want the law to remain as it stands.

Almost 1000 more people a year are now remanded in custody than before the bail laws were tightened in 2013, as a result of the murder of Auckland teenager Christie Marceau in 2011.

Her killer, Akshay Chand, was on bail at the time and living just 300 metres from her home, having already been charged with kidnapping and threatening to stab her.

The sad case of Christie Marceau is often used in arguments in favour of being tougher on people charged with crimes (not tryed or convicted).

But some emphasis does need to be put on protecting people who have been threatened or are at risk of violence.

Dr Liz Gordon a social researcher, who is also president of PILLARS, a group helping prisoners’ families, said the average number of murders in New Zealand each year was about 80.

She said when you put that figure alongside the extra 1000 people remanded in custody, it was an emotional over-reaction to suggest Andrew Little would have blood on his hands if he loosened the bail laws.

But emotional over-reactions can be expected from people with political motives. The ‘Sensible Sentencing Trust’ plays on fears of crime.

David Farrar ran a series of posts publicising some of the worse criminals who could potentially receive lighter sentences if the 3 strikes law is scrapped – ‘could’ should be emphasised, as judges usually go to great lengths to apply sentences appropriate to both the convictions they are dealing with and the records of the criminals.

“The mathematics simply doesn’t add up. They’re not going to all get out of the prisons and start murdering like mad and if you find good alternatives for them, perhaps you can actually stop them ever having to go to prison again.”

I don’t think anyone is arguing there should be no bail – I remained ‘at large’ despite a private prosecutor’s demands that I be incarcerated.

We have to have non-imprisonment for many offences and offenders. The difficult trick is where to draw the line.

Dr Gordon agrees Akshay Chand should never have got bail, as what he did was a foreseeable crime, but she said Mr Little needed to take a dispassionate view of what was best before making a final decision on the bail laws.

Chand getting bail was an error of judgment – as things turned out, it’s easy to be wise after the subsequent murder. I’m sure some people who have threatened others haven’t murdered while on bail.

Dr Gordon said there were also other downsides to keeping people on remand in jail, particularly younger offenders, as the remand units are active recruitment centres for youth gangs.

Remanding in custody can set up young first time offenders for further offending.

She is also concerned that, despite it costing more than $100 million a year to keep those 1000 extra people remanded in custody, they received no support while there to improve their lives.

If it costs money to protect the public then money needs to be spent. But…

“Those people are in a very difficult position. They often can’t see their children because visiting days for people on remand is often mid-week and the kids can only visit on the weekend.

“They don’t get access to training courses, drug and alcohol treatment and so on because those things aren’t offered most of the time to people on remand because the argument is [they] … aren’t sentenced and therefore can’t be forced to do programmes [so] … it’s not worth offering them to them.”

More secure medical and treatment facilities may be one way of dealing with this. That means more money in the short term.

Andrew Little was approached for comment, but his office said he would not speak about the bail issue until after a justice summit later this year.

Newshub (16 June 2018): ‘Everything is on the table for justice reform’ – Andrew Little

Justice Minister Andrew Little says “everything” is on the table when it comes to justice reform, including changes to bail, parole and sentencing laws.

Mr Little said that the current model “isn’t good enough” and the 60 percent reoffending rate within two years points to a “failure” in 30 years of punitive criminal justice policy.

“We will have to look at the parole act, the bail act, and the sentencing council – get some cohesion around our sentencing,

“But I think the real game changer is what we can do inside our prisons, and how we can make it systematic across our prison network.”

National’s Mark Mitchell has strongly criticised the Government’s proposed changes, particularly softening bail laws, saying that 98 percent of prisoners are ‘serious criminals’ who would be a danger if released.

The minister rejected that assertion, saying Mr Mitchell “has his figure wrong”.

“Over half the prisoners who enter the prison system in any one year are there for non-violent [offences], what I would characterise as ‘low-level’ offences.”

The minister says that of the criminals remanded in custody (those who are in prison awaiting trial or sentencing) 59 percent get a custodial sentence – but 41 percent do not.

With the number of prisoners on remand getting close to 2,000 this means about 800 of them will end up not being sentenced to prison. That’s a high number.

“The numbers alone tell you, we’ve calibrated our remand decision-making the wrong way. We are remanding too many in custody.”

That’s how it looks – but it can be difficult predicting which people arrested will end up in prison after conviction.

And it doesn’t take many ‘mistakes’ on bail for there to be high profile publicity – one violent assault would be enough to try to clamp down on bail.

Unfortunately bad crime happens despite the best efforts of the police, the justice system and the Minister of Justice and Parliament.

That justice summit could be interesting.

Three strikes to be struck out in two weeks

The three strikes law will be repealed in two weeks, according to Newshub.

This was signalled last November: Justice Minister Andrew Little to repeal three strikes law

“Three strikes – that thing’s gone. You do get this picture of things that are quite cosmetic or things that were big things that can be unpicked pretty much straight away.”

“After eight years of being in effect it hasn’t made a blind bit of difference to serious offending rates which continue to climb,” he says. We have one of the fastest growing prison populations in the Western world. Simply put, it’s not working. We have to find a better way to reduce offending and keep communities safer.”

Today: Govt to repeal three strikes law in two weeks

The three strikes law will be repealed in two weeks, and Justice Minister will also push for sentences shorter than two years to be served as home detention.

The Government is preparing to soften bail, sentencing and parole laws, and Newshub can reveal it’s already discussing how to reassure the public in the event of a high-profile crime.

The Government documents also highlight the extent of the prison overcrowding crisis, saying if big improvements aren’t made in a year, there will be “a failure of the prison system.”

At the next Cabinet meeting in twelve days the Justice Minister will seek approval to repeal three strikes, and push for shorter sentences to be served on home detention.

Andrew Little:

“Repeal of the three strikes, because I think there’s an acceptance now that actually it just doesn’t work.

“If you have a sentence of two years or less you’re at the lower end of the offending, you might have offended before but you’re at the lower end. We can still do something with you. So it’s better that you’re out in the community.

Tova O’Brien:

He’s also planning to revive the last Labour Government’s sentencing council which National scrapped. It provides guidance to judges to prevent tougher sentences.

And people bailed on electronic monitoring will be able to count their bail time as part of their sentence.

Little:

“We’ve had thirty years of this, the only way to deal with crime, get tough on crime, get really hard, lock them up for longer.

Actually it’s not working.

He is also talking about a transition type prison in which prisoners with good records nearing the end of their sentences can live in a flat-like facility where they shop and cook for themselves.

“All it could take though is one person on bail murdering someone to unravel your reforms”. Little:

“Yeah and look, that’s always a possibility. It’s a possibility right now. We know there are people on bail who are offending right now.”

The Government is aware that their changes will need to be seen to be an improvement. They plan on preparing PR strategies for when things go wrong, as they inevitably will with some prisoners or people on bail.

 

 

 

Dotcom to remain on bail

Kim Dotcom has avoided having his bail revoked. This doesn’t surprise me, the case to put him back in jail seemed quite weak. It was claimed that his significant earnings since going on bail put him at greater risk. There was no evidence of any attempt or plan to flee.

An odd thing on his earnings though. Lat week he was claiming he was broke:

Kim Dotcom: ‘I’m officially broke right now’

Internet mogul Kim Dotcom says he is officially broke.

The German entrepreneur and failed politician has revealed this week that his three-year, $10 million legal fight against extradition to the US to face trial on an alleged conspiracy to commit the biggest-ever breach of copyright has seen him run out of cash.

“As of today, I don’t have a single share in Mega – it’s all held in trust by my wife and my five children.”

But today he was skiting about having earned more than Key since his address:

@KimDotcom

Fun Fact: I’ve created more wealth while on bail (restarting from zero in 2012) than John Key during his entire professional career 😉

Must read: Kim Dotcom earned $40m while on bail, court hears
http://www.stuff.co.nz/national/63702162/kim-dotcom-earned-40m-while-on-bail-court-hears

The Stuff report says:

Dotcom told the hearing he had earned $40 million since being on bail, mainly from the sales of shares in two new ventures – Baboom and Mega NZ.

Judge Dawson said Dotcom was candid in not being able to account for all the money but despite having the considerable sums he had not fled the country, even when his bail was sought to be revoked.

Dotcom’s lawyer Ron Mansfield said: “He’s had funds available, he’s still here, and there’s no evidence of any intention to flee our jurisdiction.”

He’s made oodles of dosh and had funds available but he can’t account for all the money and he’s broke.

It’s hard to make sense of that.

Dotcom response and legal speculation

There’s been a lot of discussion and speculation about the reasons behind Kim Dotcom losing his lawyers and soon after having his bail conditions tightened significantly pending a hearing next week that could put him back in prison.

NZ Herald reported in Court places tough limits on Dotcom’s movements:

The new conditions are in place only until next Monday, when Dotcom will appear for a bail hearing in the Auckland District Court.

Before the issue of bail, Judge Dawson gave Dotcom’s former lawyers – Queen’s Counsel Paul Davison and firm Simpson Grierson – leave to withdraw from the case.

The restrictions follow Crown lawyer Christine Gordon yesterday making an allegation that the Herald is not permitted to publish.

Dotcom has tweeted:

I have never breached my bail conditions & my compliance is exemplary. But without lawyers representing me the Govt just couldn’t resist.

He plays the “Government is against me” card, but there could be reasons other than complying with his bail conditions.

David Farrar implies a possible connection in The Dotcom legal team:

We also might get a decision at some stage soon in the John Banks appeal, where allegedly new witnesses have contradicted the evidence given by Dotcom.

A number of lawyers regularly contribute to discussions at Kiwiblog and they and others speculate in response.

David Garrett:

This truly is fascinating (and I have no inside knowledge). The most common reason for lawyers to get leave to withdraw is when the client is refusing – or is unable – to pay his bills. All the more interesting because Davison has no necessary connection with Simpson Grierson – like me Davison is a barrister who must have an instructing solicitor (Simpson Grierson in this case), but that instructing solicitor can be anyone…literally a sole practitioner from West Auckland could instruct Davison – so long as Davison is prepared to act for the client.

I somehow doubt Dotcom is unable to pay…another reason lawyers withdraw is when they find they have unintentionally misled the court because they have been told porkies by the client…as I say, I have no inside knowledge, but the fact that BOTH the instructing solicitors – to whom Dotcom will have paid hundreds of thousands in fees – AND the barrister have withdrawn smells very strongly of rat…even more so if SG have removed all reference to their former client…like any other big firm, Simply Gruesome are usually quite happy to be identified with a high profile (civil) client whose case presents novel and difficult issues…

Dotcom’s is the biggest copyright case this country has ever seen, or probably is ever likely to see…All very odd…

NB: Nothing in my comment should be construed as an allegation of wrongdoing by Dotcom, Simpson Grierson, its partners and staff, or Paul Davison QC

And…

I think the Herald website refers to “an allegation which cannot be published”…as someone above me said, curiouser and curiouser…Lawyers withdraw from cases all the time, but it is very rare for both the barrister and the instructing solicitors to withdraw at the same time…

Logic would suggest that this withdrawal is somehow connected to the tightening of Dotcom’s bail conditions…but as you say, that is just speculation…

Nookin:

One possibility is that the lawyers’ obligations to the court have been severely compromised by some inappropriate or improper action on the part of the client such that it is no longer tenable for them to continue acting. Curious that the issue arose contemporaneously with circumstances necessitating tightening up the bail conditions.

If this has happened and publication might prejudice the outcome of the extradition proceedings, it is appropriately suppressed. I can only surmise here, bearing in mind the fact that the extradition proceedings will be heard by a judge alone. I can understand suppression on these grounds of their was a jury but this is clearly not the case.

alex Masterly:

Nookin, I think that your first sentence is pretty much bang on target.

For the sake of completeness I note the CCC rules at clause 4.2.1 define good cause for termination of a retainer as including
– instructions requiring a lawyer to breach a professional obligation,
– inability of a client to pay a fee
– the client misleading the lawyer in a material respect,
– the client failing to provide instructions in a timely way.

David Garrett:

The rules are pretty clear: lawyers must not mislead the court, and cannot allow a client to do so. …which is one of the reasons lawyers usually never ask “Did you do it?” Because if the answer is “Yes, but my defence is I didn’t”, that limits the options for counsel…for example you cannot then put the client in the witness box knowing he would lie under cross examination.

If the lawyers became aware that a client was about to commit a crime then they are obliged – I think – (cant be bothered looking up the rules) to both withdraw and inform the police..

As I say, to have BOTH the instructing solicitors and the barrister withdrawing is most unusual…A colleague has suggested to me that one reason may be they think his case is hopeless, but I don’t believe that would be a valid reason to withdraw…it will come out…

Certainly some information has been put before the court which led to his bail conditions being considerably tightened…and as I have said, it would seem to be more than a coincidence that at the same time his lawyers both withdraw…

If he has a big enough speedboat he could get to Australia…or even further if he refuelled on some Pacific Island…

Scott1:

What sorts of things are included in “misleading in a material respect”?

David Garrett:

Scott: Oh: Things like “My total net worth is USD10 million” when in fact it’s double that; Claiming “I don’t have an account in Leichenstein” when in fact he does, and it’s got a shit load in it; claiming he wasn’t present at a crucial meeting where an illegal plan was discussed, and then a tape of the meeting comes to light establishing he was there; claiming a document is genuine when in fact it is a forgery…stuff like that.

Chris Diack:

Mr Dotcom is probably not paying his legal bills (and probably not paying many of his other bills either) That will be why SG want out. They continue to pay Paul Davidson QC and do legal work yet have probably received no payment recently. PD will stuggle to find an instructing solicitor that can back him like SG and of course they may well not get paid (so who would do it).

I doubt they were consulted over Mr Dotcom’s political donations ($4million) and so read about it in the newspapers. Would be galling if you are not being paid and being advised by the Client the money is short. More so now that it is clear that the strategy to get Parliamentary leverage did not work and has actually been detrimental to your clients interests. I suspect had SG been asked they probably would have advised against making such donations as counterproductive.

I doubt the Crown wanting to tighten the bail conditions has much to do with SG wanting out. Probably he has been breaking existing bail conditions (like using a copter). The allegation mentioned in the report is probably that the Crown has some evidence (maybe someone Mr Dotcom has spoken to or as a result of warranted surveillance) that he is considering doing a Smith. Wouldn’t be surprised if they produce a affidavit to that effect. That establishes the flight risk.

David Garrett:

Chris D: You reckon SG has been paying Davison’s bills with their own money?! I must say I find that hard to believe…but as instructing solicitors they have the responsibility of seeing that he is paid, so I suppose you might be right…

I am told Davison charges $1000 an hour for cases that he WANTS to do…if it’s something that doesn’t tickle his fancy I believe it is double that…Again, I have no inside knowledge…just scuttlebutt around the robing rooms…

Interesting fellow Davison…

We will find out more about this next Monday.

Dotcom plot thickens

New bail travel restrictions have been placed on Kim Dotcom, with a ban on travelling by helicopter or by boat at sea, and limiting his travel to within 80 kilometres of his Coatesville residence.

If that happened during the election campaign it would have been very controversial with political implications. However now it just raises eyebrows about what is going on behind the scenes.

This follows last week’s news that his longstanding lawyers including Paul Davison QC withdrawing from Dotcom’s case.

Stuff reports: Dotcom banned from choppers

Kim Dotcom will be back in court again next week for a hearing after new restrictions were placed on his bail today.

The temporary restrictions, imposed by Judge Nevin Dawson in the Auckland District Court, include banning the use of helicopters and boat or sea travel.

Dotcom was also banned from travelling more than 80 kilometres from his Coatesville mansion and ordered to report to police daily.

The new issues, which would be dealt with at next week’s court appearance, followed Judge Dawson’s decision to allow the internet mogul’s lawyers to withdraw from his case.

Dotcom, who was in court today, would not say why his long-standing lawyers at Simpson Grierson, including Paul Davison, QC, had decided to step down from his extradition case.

So a major legal representation setback followed by significant travel restrictions. There must be much more to this than has been reported.

And this will impact on Dotcom’s extradition case.

Dotcom’s United States lawyer Ira Rothken said Simpson Grierson’s withdrawal from the case posed a “difficult challenge”.

It was going to take a while to find a replacement law firm and for it to become familiar with the case, he said.

Judge Dawson granted leave to delay Dotcom’s extradition hearing further and the case is now scheduled to be heard in June.

Dotcom followed this with two tweets:

In the news: Travel conditions imposed on Dotcom + daily reporting to the police.

He links to Radio NZ: Travel conditions imposed on Dotcom

Kim Dotcom has been banned from using helicopters ahead of a Crown application to revoke bail.

So they want to revoke bail, which means Dotcom would go back into custody. There must be a reason for this change.

Dotcom also tweeted:

This year was a total disaster. I have taken many punches. But I won’t break. I will keep going through this hell for my kids. Count on it.

Part of the disaster was brought upon himself with his multi-million dollar exercise in political futility.

Dotcom’s US based lawyer also tweeted:

I just did an interview with Radio NZ on retaining new extradition defense counsel in NZ in the case

He links to: Dotcom searches for lawyers after NZ legal team quits