Dermot Nottingham appeals fail, sentence increased

The original 12 month home detention sentence (three and a half of which has been served) and 100 hours community work has been quashed, and replaced with a new sentence of 12 months home detention presumably beginning from the appeal judgment made last week. He has been banned again from using the Internet for 18 months.

After being charged in 2015 and following numerous delays Dermot Nottingham went to trial last year and was found guilty by a jury of five criminal harassment charges and two breaches of court suppression orders.  He was sentenced in July 2018.

Nottingham appealed both the conviction and sentence, and the Crown also appealed the sentence, claiming it was ‘manifestly inadequate’.  Nottingham has lost both of his appeals, and the sentence has been increased, but again by a judicial whisker he has avoided a prison sentence.

NZ Herald: Blogger’s convictions for ‘malicious and misogynistic attacks’ on former MP, business people stick

Auckland’s Crown Solicitor Brian Dickey said at Nottingham’s sentencing the breaches were an “attack on the High Court”.

Judge Jonathan Down also categorised the breaches as “blatant and contemptuous” and noted Nottingham showed no remorse.

In one instance he sent one of his victims a scene from the Quentin Tarantino film Pulp Fiction, which showed a person being shot in the head.

He can be very nasty, and has attacked many people over the last decade. The charges were laid were deemed representative of the worst examples, but that’s debatable, I have heard claims of despicable attacks (disclosure –  Nottingham has attacked me extensively including trying unsuccessfully to prosecute and imprison me, which was part vindictiveness, part an attempt to concoct a defence for the charges he faced).

All of Nottingham’s harassment victims have been granted permanent name suppression.

The Crown also alleged various other acts of harassment, including “following”, and in one case initiating a private prosecution.

I’m ware of private prosecutions against seven people or companies. These all failed, and after hundreds of thousands of dollars of court costs were awarded against him Nottingham with no attempt made to pay them Nottingham was adjudicated bankrupt in September 2018.

Nottingham, who represented himself, had also called former Whale Oil blogger Cameron Slater to give evidence and argued at his trial that his “articles” were covered by freedom of expression rights.

Slater has also been implicated in making use of the notorious attack website that Nottingham was found to have been the main user of. From his sentencing notes last year “Either Dermot Nottingham is Lauda Finem (in other words, the leading mind of that blog) or he is so intimately related to it that it is proper to conclude that he provided information and draft articles to that blog site knowing and intending that they would be published. He makes the concession…that he has never denied that he has supplied information to the website…” – see “Either Dermot Nottingham is Lauda Finem…or he is so intimately related to it…”

Nottingham and Slater have been associated in a number of legal proceedings (including the attempted prosecution of myself and three others), but others have also been involved and aided and abetted, including his brothers Phillip and Antony, Marc Spring and Earle McKinney.

During his appeal, Nottingham argued his convictions should be quashed because the blog site was based overseas.

“You cannot be a party to a crime that never occurred in an overseas jurisdiction,” he said.

So he didn’t deny attacking and defaming people on the website, he just claimed he was immune from new Zealand law.

However, in his summing-up at the trial, Judge Down said: “Even if the main parts of a crime are committed abroad, if you do something to further that crime, and you have done it in New Zealand, that crime, the whole thing can be prosecuted in New Zealand.”

The Court of Appeal judges, Justice John Wild, Justice Susan Thomas and Justice Matthew Muir, agreed.

“We identify no error in that direction,” they said.

Slater’s “unambiguous position” was it was impossible to do anything online which did not leave “footprints everywhere”, the Court of Appeal decision reads.

Despite this, the Court of Appeal sided with the Crown’s position that the circumstantial evidence relied on was “very strong, if not overwhelming”.

It included text messages and internet history showing Nottingham was trying to obtain and research information about the Dudley case, particularly the names of the defendants.

While a police search of computers Nottingham had access to identified several key court documents, including the judge’s sentencing notes, witness statements and a witness list.

Seven hours before publication of the blog, Nottingham also wrote to the police officer heading the inquiry with the subject line: “Report I Am authoring on the Dudley killing”.

The Court of Appeal said much of the harassment material “could at best be described as virulent opinion with only a tangential connection to anything arguably true”.

In other words, Nottingham attacked people making false accusations and assertions, something I have seen a lot of in emails and court documents.

“As the Crown said in closing, the posts were littered with ‘hate-filled [invective]’ and were strongly misogynistic,” the judges said.

In calculating the sentence the Court of Appeal judges arrived at 31 months’ imprisonment – about 30 per cent higher than Judge Down’s end point.

However, in re-sentencing Nottingham, the trio of judges was “obliged” to take into account the three and a half months of home detention he had 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.”

If that had been the original sentence last year Nottingham would have ended up in prison.

The court quashed the existing, part-served, sentence and imposed a new 12 months’ home detention term, plus the 100 hours of community work for the suppression breach.

Nottingham’s special conditions also remained, and include not using any electronic device capable of accessing the internet without prior approval from a probation officer.

I take from this that the new 12 months home detention term begins from last week’s appeal judgment. And I presume there remains a further 6 month Internet ban after that, which would run through to early 2021.

At least this and his bankruptcy (after he took nearly a year to file a statement of affairs he is due to be discharged from bankruptcy on 11 September 2022) should limit his capability to attack and harass people online should also restrict his habit of vexatious litigation.

Nottingham and his gang of online thugs remain unrepentant and a lot of defamatory attack material remains online, but that poses more risks to him than anyone. I think at least one legal proceeding continues against Nottingham for posts done years ago.

Will Nottingham try to appeal this new sentence in the Supreme Court? On past behaviour he may like to try, but the Official Assignee may make that difficult if not impossible. I need to find out, because bizarrely suppression on aspects of the failed case against me continues until his case has reached a final resolution.

When more details are available online in the judgment I will do a post on that.


Many judgments with suppression involved or from the District are not published online, but here is a reference to some of those that are:

Nottingham v Maltese Cat Limited [2019] NZCA 246 (24 June 2019)

That is just back to 2015, Nottingham has a long legal history.

I think in all but one of those Nottingham lost his case.

There is one appeal he won, where a High Court judge supported a District Court judge ruling that Nottingham was in contempt of Court, but due to the judge not following procedures correctly the finding was set aside.

Prisoner numbers reducing & 3000 offenders a year sentenced to home detention

A lot is being said about the escalating prison population over the last decade – but it could have been far worse if home detention hadn’t been introduced in 2007. There are now about 3,000 people a year being sentenced to home detention.

although the numbers have eased back since early this year due to new measures that have been successful particularly in getting people on bail more, and getting them off remand faster (by getting them to trial faster).

David Fisher at The Great Escape – prison crisis eases after Corrections thinks outside the cell

The stressed prison network has had a Great Escape – a string of innovations allowing inmates and those charged with crimes better access to justice services has seen a huge fall in inmate numbers.

Our prisons now have 1000 fewer inmates than official projections and the prison population – around 10,200 – has fallen by 600 people in the past six months.

The changes haven’t involved keeping out of prison any people who should have been locked up.

Instead, it has seen “embarrassingly simple” wrinkles ironed out of the system which appear to have improved people’s access to justice.

A number of smaller projects had been underway for about 18 months but Corrections minister Kelvin Davis signed off on a permanent programme in January 2018.

So projects started under the previous covernment and continued under the current government.

The programme of change has been led by Corrections deputy national commissioner Leigh Marsh.

Marsh said innovations included trying to understand why so many on electronic bail were “failing and clogging up the system”.

When the process was studied, it was found those arrested with literacy issues were being handed complex forms to fill in that they couldn’t understand.

About 70 per cent of those currently in prison have literacy level considered insufficient for modern life.

Others couldn’t supply phone numbers so addresses could be checked as suitable bail addresses because the number was saved on the phone which was removed after they were arrested.

When prisoners were asked how they intended getting the phone numbers to arrange bail, they had reportedly planned writing letters to family.

There were now advisers who were available to talk to those who were freshly remanded to better understand why they had been refused bail – and to help obtain details such as phone numbers.

Corrections was also trialling in Wellington a service aimed at assisting those applying for bail. The bail service would help those charged arrange appropriate bail addresses, and to connect with programmes needed to address offending, such as services to deal with alcohol and drug abuse.

Once in the community, there were others who worked to help those on bail understand their conditions and to connect with support which might be needed.

Other innovations included helping those appearing for sentence find a suitable address for home detention, getting police evidence to those accused to enable faster pleas and ensuring those appearing for parole had taken necessary courses.

He said the biggest difference had been in the remand population. The number of people sent to prison to await trial ballooned after a new 2013 law which made it harder to get bail.

Marsh said the prison population had peaked in around 10,800 in March and had since trended down to around 10,200 now. It was currently around 1000 fewer inmates than Ministry of Justice predictions.

Successful changes.

And prisoner numbers have also been kept lower than they otherwise would have been by using home detention.

Judge Stephen O’Driscoll – Home Detention provides real alternative to prison

Since 2007 the District Court has been able to impose a sentence of home detention. Now about 3000 offenders a year are being sentenced to home detention.

In the sentencing hierarchy home detention sits above community-based sentences but below imprisonment. Home detention is, therefore, a real alternative to imprisonment.

Home detention means an offender has to serve their sentence at a specific residence instead of in prison.

The sentence must be for more than 14 days but no more than 12 months.  It can be imposed as a sentence in its own right or combined with other sentences such as community work.

Home detention should not be seen as a “soft option”.  It is in effect a curfew at an agreed address, and it is monitored electronically.

The offender must not leave the address at any time, except to seek urgent medical or dental treatment, or to avoid or minimise a serious risk of death or injury.

An offender may get approval to leave the address to seek or do paid work, or to attend training or other rehabilitative activities or programmes, or for any other purpose specifically approved by a probation officer.

A special condition that judges often impose with home detention is judicial monitoring.  This means the judge will receive regular progress reports from the probation officer. In 2017, judges monitored 275 cases in this way.

The court cannot impose home detention if the offender does not agree to it or the conditions. Interestingly, a number of offenders do not consent and the court is left with little option but to impose imprisonment.

Someone on home detention will usually wear an electronic anklet that continually emits a signal and triggers an alarm if the offender leaves the designated address without permission. Should that happen, a monitoring centre will send a security officer to investigate and report to the supervising probation officer who would then take any appropriate action.

The anklet is waterproof and is designed to be worn 24 hours a day.  Offenders can also be monitored while at work or while attending rehabilitative programmes.

The court cannot impose home detention if the place the offender proposes to live is not in an area where the Department of Corrections runs a home detention scheme or where an ankle bracelet’s GPS signal cannot be picked up.

Before imposing the sentence, a court must consider a report from a probation officer, which among other things, will advise whether the proposed residence is suitable.

Anyone else living there is required to understand the conditions of the sentence, and will need to consent to the offender serving the sentence there, in keeping with the conditions.  The occupants may withdraw their consent at any time.

Home detention has several advantages.  It can allow defendants to continue in paid work, remain in their accommodation and maintain family relationships.

It is also less costly to supervise than jail and has high compliance rates.

Most offenders know that should they breach the sentence or re-offend while on home detention, then they are highly likely to be sent to jail.

If a judge decides on a sentence of more than 2 years imprisonment they can consider home detention as an alternative. Corrections:

Home detention is an alternative to imprisonment and is intended for offenders who otherwise would have received a short prison sentence (of two years or less) for their offending.

Only sentencing judges can impose home detention. They must take into consideration advice provided by a probation officer who has assessed the offender, and the home address and any people who live there.

Offenders who receive a home detention sentence are subject to standard and special conditions.

Electronic monitoring equipment is installed at the offender’s address and their compliance monitored for the length of the sentence.

People who are on home detention may also be required to:

  • pay a fine
  • pay reparation to their victim/s
  • do community work.

Offenders must apply to their probation officer if they need to be absent from their home detention address. Their probation officer will decide whether to approve the request.

A probation officer may approve an offender’s absence from their detention address so they can go to: work, study, rehabilitation programmes, the doctor, and appointments with other agencies. All absences from the address are monitored by alternative means – such as verification from the offender’s sponsor or checking on appointments.

It seems to be generally working successfully in keeping people out of prison.