Tarrant to be sentenced today

Victim impact statements continued yesterday in court in Christchurch as part of the sentencing process of mosque murderer Brenton Tarrant.

Tarrant was referred to as a coward, scum and a piece of shit. This seems extreme for a court but if people are to be alowed to say what they think these emotions are understandable. Tarrant committed the worst criminal acts in New Zealand, so the worst of descriptions are appropriate.

Tarant has already pleaded guilty to  51 counts of murder, 40 of attempted murder and one charge under the Terrorism Suppression Act.

Late yesterday the court was advised the gunman has instructed standby counsel Pip Hall QC to speak on his behalf and will not speak today.

A submission will also be made by Crown counsel.

The judge has been asked by a number of victims to impose the longest possible sentence in New Zealand, life without parole. This sentence has never been imposed before, but a crime this bad has never been committed before.

RNZ: Life without parole

In a small number of cases, the Crown has argued for life to mean life – in which a prisoner remains in jail until they die.

In a case last month, Paul Wilson was sentenced to life in jail with a minimum non-parole period of 28 years.

The longest sentence imposed by a New Zealand court is life imprisonment with a non-parole period of 30 years for the triple killings at an Auckland RSA in 2001.

New Zealand’s longest serving prisoner is Alfred Thomas Vincent, who has been in jail since 1968 for indecently assaulting five boys.

Being given a non-parole period does not mean a prisoner with a life sentence will be given parole. And if they are given parole they can be recalled to prison if the breach life long conditions of parole.

I think that for Tarrant life without parole is justified. It’s hard to imagine what would justify this maximum sentence if Tarrant isn’t given it. It would have to be at least longer than the current highest non-parole period of 30 years.

Tarrant will have to serve his whole prison sentence in New Zealand. There is currently no legal means of transferring him to Australia.


Reports of victim statements:

RNZ: Family of 3yo killed in mosque attacks confront gunman: ‘True justice is waiting for you in the next life’

The small child was clinging to his father’s leg among a group of worshippers – some dead or badly injured – in the north-eastern corner of the mosque’s main prayer room.

The young boy’s age and stature made no difference to the terrorist.

He took deliberate aim at the little boy and fired two shots.

Mucaad’s family this morning confronted his killer.

The family emigrated from Somalia in 1995 as refugees.

They were all New Zealand citizens and little Mucaad was born here.

“You killed my son, but to me it is as if you have killed the whole of New Zealand,” his father, Aden Diriye, said.

“He was adored by all and loved by any who gazed upon him.

“He used to engage in play with the police. At home he used to run around the house and pretend to be a cop and wear the police uniform. We thought one day he would become a cop.”

He could not understand the killer’s callous hatred, Mr Diriye said.

“I don’t know you. I never hurt you, your mother, your father or any of your friends. Rather I’m the kind of person who would help you with anything,” he said.

He told the terrorist he had united the country in grief.

Also from RNZ:

‘I saw the fear in his eyes,’ says man who chased killer

The contrast cannot be more stark. The bravery of a 15-year-old girl, and the cowardice of a 29-year-old terrorist.

A 15-year-old girl, who cannot be named, this afternoon confronted the terrorist directly during her victim impact statement.

“Why did you kill my dad? Why did you take the most important person away?” she asked him.

“He will always be in my heart and the hearts of those who love him. But you, you will be alone in prison.

“The only one who lost everything was you. Congratulations Mr Terrorist, you have failed.”

The terrorist’s cowardice was often pointed out during this afternoon’s session.

Sehan El Wakil told the terrorist he was a coward.

“If you were a real man you would have faced them [the victims], face-to-face, not with a gun behind their backs,” she said.

Abdul Aziz Wahabzadah, who chased Tarrant from Linwood Islamic Centre using an eftpos machine, told the terrorist he should thank Allah he did not catch him on 15 March 2019.

“He acts very tough but, to be honest with you, he’s nothing,” Wahabzadah said.

“You are a terrorist. You are a racist. You are a cold-blooded murderer who hides behind his weapons,” Feroz Ditta told Tarrant.

“Your time will come – that I can assure you, mate.

“For the rest of your life you won’t be able to embrace your parents and your family, and be part of their lives.

“You will no longer be able to hug your mother. They are at a loss because they have lost their son for the rest of their lives.”

And: Christchurch mosque attacks: ‘We defy your actions of hatred’ 

“I don’t go to the mosque so much now because I’m too scared to go there. It’s just too hard for me now because of the gun shooting that day and my best friend being shot dead there in front of me. This has changed everything in my life. I miss my best friend Matiullah – he was like a brother to me.”

– Taj Kamran, who was shot on 15 March 2019

“Burying one dead friend is heartbreaking but imagine burying a one of a kind. A one of a kind that is my son Ata and 49 beloved brothers and sisters in one go. No words can describe what my heart experienced at that time and is still experiencing.”

– Mohammad Alayyan, whose son Ata Elayyan was killed on 15 March 2019

“You took away not just the most amazing son, but the best father, husband, brother, friend, relative, neighbour, employer, team member, motivational speaker and a pious Muslim.”

– Maysoon Salama, whose son Ata Elayyan was killed on 15 March 2019

“Eternal happiness only exists in the hereafter in the highest heavens where one day my daughter and I will be reunited with our beloved Ata. Until then I will carry the heavy weight of our dreams and daydream about the uncompleted trips and plan the goals I wanted to achieve with my love. Our daughter will live in the shadows of her beloved father. She will know him through her eyes, as she has his, through our love and the love everyone has for him. His legacy will live forever.”

– Farah Kamal, whose husband Ata Elayyan was killed on 15 March 2019

“The first shots I heard made me turn and see the gunman enter. I witnessed fellow peaceful worshippers innocently gunned down. The gunman and I looked into each other’s eyes. I saw the moment when I was the target of his gun. I was shot nine times.”

– Temel Atacocugu, who was shot on 15 March 2019

“Syed left behind myself and three children, all under five years of age.”

Amna Ali, whose husband Syed Jahandad Ali was killed on 15 March 2019

“We always celebrated our birthdays together, which are one day apart. I’ll never be able to wake up to his cheeky gifts or contagious smiles again. My best friend was executed in cold-blooded murder out of hatred.”

– Aya Al Umari, whose brother Hussein Al-Umari was killed on 15 March 2019

“It was extremely painful to feel so helpless while watching your soulmate breathe his last breathe.”

– Saira Patel, whose husband Musa Patel was killed on 15 March 2019

“The day of the shocking mosque shooting at Linwood Mosque was like living a nightmare with everything coming to a stop and life revolving just around that one phone call I received and those messages from my mum saying ‘We are about to die and love you all’.”

– Irfan Patel, whose father Musa Patel was killed on 15 March 2019

“When I first got the news of the events of 15th March 2019 I was in Jeddah, Saudi Arabia. We were heartbroken and clueless as we did not have any information on him. Once on the news we even saw a picture of someone on a stretcher wearing the same jacket as the one Ozair had. Those moments were the most difficult ones in our lives.”

– Kadir Habib, whose son Ozair Kadir was killed on 15 March 2019

“My parents and brother were the source of all emotional support, happiness and comfort for me. I used to visit my parents and stay with them in Pakistan regularly. The sudden death of all of them has really jolted me.”

– Mariam Gul, whose parents, Karam Bibi and Ghulam Hussain, and brother Muhammad Zeshan Raza were killed on 15 March 2019

“You killed 51 people and injured so many who were there to attend Friday prayers. We have grieved as a community. We have cried along with those families that have lost loved ones and yes we are stronger and defy your actions of hatred. We still find New Zealand to be one of safest countries to live.”

– Mohammad Siddiqui, who was shot on 15 March 2019

“I have spent a lot of time thinking about what transpired and what took place was unjust, unfair and there was no right for anyone to interfere in our place in our peaceful prayer time. My brother’s three children now yearn for their father and continue life without their daddy.”

– Zahid Ismail, whose brother Junaid Ismail was killed on 15 March 2019

“After the events of 15th March 2019 I don’t feel I have to hide my faith at work anymore. This has been a positive outcome for me. I have been more open in practicing my faith in the workplace . . . which was supported and respected by my colleagues.”

– Raesha Ismail, whose brother Junaid Ismail was killed on 15 March 2019

“The shot went through my right underarm and fortunately back out again. I was screaming to Ibrahim and Mostafa to get out, as they were at the front of the mosque. I remember seeing the defendant spray his bullets at the men sitting on the seats at the rear of the prayer room and as you can imagine this was so traumatic for me.”

– Salwa El Shazley, who was shot on 15 March 2019

“When the shooting started I remember I tried to get through a doorway into another room. It was then that I felt something, like a shudder, in my leg. I reached down and I saw and I felt the blood and the hole, and I knew I had been shot. I fell down. Someone else fell down near me and I saw people falling and being shot. I heard people calling for help.”

– Motasim Hafiz Uddin, who was shot on 15 March 2019

“My son now leaves this temporary world as a martyr. That’s a blessing that connects me more to God and helps me through life as I’m missing my son. I too was present in the mosque when so many lives left this temporary world by your hands. My survival comes as a great blessing and when I reflect on that day I’ve decided that I will live my life doing great things for our people and our community.”

– Noraini Milne, whose son Sayyad Milne was killed on 15 March 2019

“As a parent no matter how old your children are they will still be your babies forever. Our children bring out the best and worse in us. Two days later I went with my wife Rosemary to the mortuary to view Tariq’s body and to identify him. It was the hardest thing I have ever done in my life. Tariq was lying on the table lifeless. I couldn’t hold back my tears even though I was trying so hard to be strong for my wife. The tragic sudden loss of my son Tariq has taken a huge toll on me. I couldn’t function properly for a long time.”

– Rashid Omar, whose son Tariq Omar was killed on 15 March 2019

“I’m so proud to have him as my son. It’s good to remember the positives in Tariq’s life and not his tragic death and the circumstances surrounding that. But at times it’s very difficult to see any positives and even have the will to live.”

– Rosemary Omar, whose son Tariq Omar was killed on 15 March 2019

“He was three or four metres from me when he went and shot at me, missing my head by one inch and it went into my shoulder. I didn’t move, I didn’t make any noise. It took all my strength to continue to play dead even though I had been injured. The shooter seemed to think I was dead and left me alone.”

– Hazem Mohamed, who was shot on 15 March 2019

“My 71-year-old dad would have broke you in half if you challenged him to a fight, but you are weak. A sheep with a wolf’s jacket on.”

– Ahad Nabi, whose father Haji Daoud Nabi was killed on 15 March 2019

“You will be remembered as a scared killer and nothing more. And, yes, without even your name. Just an insignificant killer who’s lonely, scared and left behind to suffer for eternity.”

– Mustafa Boztas, who was shot on 15 March 2019

“As a family our lives have changed because now my wife has to do everything. Everyone relies on her and she is also worried about our financial situation because we don’t know how long ACC can cover me financially.”

– Rahimi Ahmad, who was shot on 15 March 2019

“I no longer feel safe in my own home, in my own country and I was always carry this heavy stone in my heart for a tragedy that was one tragedy too many. Though that aside with the aroha the beautiful people of Aotearoa have given us I can find pockets of hope and temporary freedom from this terror, this nightmare that we aren’t awakening from and I will always return to the reality that my beautiful father, Abdelfattah, is someone I can no longer speak to, hear or hug. All a daughter ever wants is her dad.”

– Sara Qasem, whose father Abdelfattah Qasem was killed on 15 March 2019

“I have forgiven you Brenton. Even though you murdered my 14-year-old son Sayyad. Not a single bullet hit me. I wasn’t even there, but there was a huge hole in my heart which will only heal when I meet Sayyad again in heaven. I hope to see you there too Brenton and if you get the chance I would love you to say sorry to Sayyad. I’m sure he’s forgiven you too.”

– John Milne, whose son Sayyad Milne was killed on 15 March 2019

“I want you to know you have not broken our society. You have made us even more visible as a Muslim community. You have made us even more visible globally on the map. You have shown New Zealand how important multiculturalism is. We are not broken because of your actions.”

– Jibran Safi, whose father Matiullah Safi was killed on 15 March 2019

“You put bullets into my husband and he fought death for 48 days, 18 surgeries until his last breathe. My eldest son has only five years’ worth of memories with his father. My wee one much less, not enough.”

– Hamimah Tuyan, whose husband Zekeriya Tuyan was killed on 15 March 2019

Dermot Nottingham leave to appeal to Supreme Court dismissed

Dermot Nottingham failed in a bid to be granted leave to appeal to the Supreme Court against conviction and sentence. A judgment today said that “No question of general or public importance accordingly arises” and nothing “raised by Mr Nottingham give rise to the appearance of a miscarriage of justice arising from the Court’s assessment”.

This isn’t a surprise.

Mr Nottingham was convicted following a jury trial of two charges of  publishing information in breach of suppression orders and five charges of criminal harassment.

The prosecution had said they were the worst of many examples they found, but that’s debatable.

He was sentenced by the trial Judge, Judge Down, to a term of 12 months home detention and 100 hours of community work. His appeal to the Court of Appeal against conviction and sentence was dismissed. The Court allowed the Solicitor-General’s appeal against sentence.

Both the prosecution and the Solicitor-General had suggested that a multi-year jail term was warranted. While jail was considered it was replaced with home detention.

The Court quashed the part-served sentence of home detention and imposed a new sentence of 12 months home detention together with 100 hours of community work.

Mr Nottingham seeks leave to appeal essentially on the basis a miscarriage of justice has occurred.

The Court of Appeal said first that there was no error in the way the Judge directed the jury as to the relevance of truth. The Court considered that 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”.

Second, the Court noted that, in any event, on the particular facts the “truth or falsity analysis” on which Mr Nottingham’s submission was based was “academic”. In this respect the Court said:

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.

The Court went on, after discussing various examples of the type of language and descriptions used, to say:

It was not unreasonable for the jury to identify such material as offensive. The assessment was one appropriately informed by the composite of community values which it represented. It is one that an appellate court would be more than usually reluctant to interfere with. And to the extent truth or falsity did impact on the analysis (as the Judge recognised it had the potential to do, at least at the margins), assessment of the honesty and reliability of witnesses was again a classic jury function.

As is apparent from these excerpts, the observations about the question of truth very much reflected the particular factual context and were limited to those facts. No question of general or public importance accordingly arises. Against that factual background, nor does anything raised by Mr Nottingham give rise to the appearance of a miscarriage of justice arising from the Court’s assessment.

The other proposed questions can be dealt with shortly.

The Court, having set out the relevant evidence, accepted the Crown submission the circumstantial evidence provided a
“very strong, if not overwhelming” Crown case. Nothing raised by Mr Nottingham gives rise to the appearance of a miscarriage of justice as a result of this assessment.

Nor does anything advanced by Mr Nottingham give rise to any appearance of a miscarriage of justice arising in respect to the other two proposed grounds of appeal we have set out.

So a total fail for Nottingham on this appeal, an outcome he must be familiar with. he has had a dismal record in many court proceedings over the last five years (disclosure – including  failed attempt to privately prosecute myself and a number of others, incurring hundreds of thousands of dollars in costs that resulted in him being declared bankrupt).

And the Supreme Court must be the end of the legal road for Nottingham in this case.

Full decision:  Dermot Gregory Nottingham v The Queen

The criminal harassment charges also related to publications on Lauda Finem.

Nottingham was found to have been largely responsible for many publications at Lauda Finem (along with a number of accomplices), some of which seem to be still published online. That may leave him vulnerable to further legal action. I’m surprised courts haven’t dealt with them by now.

The @LaudaFinem twitter account was finally suspended about a month ago.

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]

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.

Julian Assange sentenced to 50 weeks imprisonment

Julian Assange has been sentenced  to 50 weeks imprisonment in the UK on charges of skipping bail, which he did by holing up in the Ecuadorian Embassy in London to avoid extradition to Sweden. So he has moved from a virtual prison into a real prison.

Reuters: Julian Assange sentenced to 50 weeks in British jail for skipping bail

WikiLeaks founder Julian Assange was sentenced to 50 weeks in prison by a British court on Wednesday for skipping bail when he holed up in Ecuador’s London embassy for seven years until police dragged him out last month.

The case in Britain arose after Australian-born Assange, 47, was accused by two Swedish women of sexual assault and rape in 2010. Assange fought through the courts to get an extradition order and the preliminary investigation dropped.

Assange sought refuge in the embassy in June 2012 to avoid an extradition order to Sweden.

His lawyer argued it was an act of desperation to avoid being passed to the United States to face action over the release of thousands of secret U.S. diplomatic cables.

But handing down what was nearly the maximum possible sentence, Judge Deborah Taylor told Assange he had exploited his privileged position to flout the law and express his disdain for British justice.

“Whilst you may have had fears as to what may happen to you, nonetheless you had a choice,” Taylor told Assange, dressed in a black jacket and gray sweatshirt, at Southwark Crown Court.

“It is difficult to envisage a more serious example of this offence.”

And Assange still faces the possibility he will be extradited to the US.

Reuters: U.S. extradition request for Julian Assange to be heard on Thursday

A request by the United States to extradite WikiLeaks founder Julian Assange for one of the biggest ever leaks of classified information will be heard by a London court on Thursday.

“Julian Assange will be sentenced at Southwark Crown Court at 1030 tomorrow for ‘violating his bail conditions’ whilst seeking & obtaining political asylum,” WikiLeaks said.

“On Thursday at 10AM there will be a hearing in Westminster Magistrate Court on the US extradition request,” it said.

The U.S. Justice Department said Assange was charged with conspiring with former Army intelligence analyst Chelsea Manning to gain access to a government computer as part of a 2010 leak by WikiLeaks of hundreds of thousands of U.S. military reports about the wars in Afghanistan and Iraq and American diplomatic communications.

With the defence support he is likely to have this could be a lengthy process.

 

 

 

The first Manafort sentencing

Paul Manafort was sentenced on eight counts including tax and bank fraud in the US yesterday. He received a much lighter sentence than prosecutors had asked for, which was seen by some as some sort of victory, or a defeat for the Mueller inquiry, but it was still substantial. It included:

  • 47 months imprisonment
  • $50,000 fine
  • Must pay $25 million in restitution
  • 3 years of supervised release after his prison term

The Monetary penalties may not be a big deal if Manafort can afford to pay them, but I think the prison sentence is actually substantial and onerous. Especially for someone who has never been in trouble with the law before, nearly four years in prison is a very big deal.

Prison sentence numbers get thrown around these days as if years don’t matter. For someone who has never been there before months in prison would be a big deal, let alone years.

CBS News: Manafort sentenced to under 4 years in prison, far less than prosecutors sought

U.S. District Judge T.S. Ellis handed down the sentence in federal court in Virginia Thursday afternoon. He said Manafort committed “undeniably serious” crimes and expressed surprise that he did not “express regret for engaging in wrongful conduct.”

But Ellis also said the government’s recommendation of 19.5 to 24 years behind bars was “unwarranted” and “excessive,” adding that Manafort has “lived an otherwise blameless life.”

Perhaps ‘an otherwise uncaught life’ would be closer to the mark.

An attorney from special counsel Robert Mueller’s office told the court Manafort “failed to accept responsibility and is not remorseful.” In recent weeks Manafort’s legal team had requested a “significantly” lower sentence than the length recommended by prosecutors.

Before learning his fate, Manafort addressed the court, telling Ellis his life is in “shambles” and asking for leniency.

“The last two years have been the most difficult of my lif. To say I am humiliated and ashamed would be a gross understatement.”

After his conviction in Virginia, Manafort struck a plea deal to avoid a second trial on conspiracy charges in Washington, D.C. A federal judge determined in Februaryhe had breached his plea agreement by lying to the government.

Judge T.S. Ellis said Manafort committed “undeniably serious” crimes and expressed surprise that Manafort did not “express regret for engaging in wrongful conduct.”

“You should have remorse for that,” Ellis said.

Some seem to think that celebrations are in order for a relatively light sentence, but while I think Manafort may be relieved, he won’t have much to celebrate about for quite a while. Time already in custody will come off the time left to serve, but it will still be a tough time ahead for him.

Bill Cosby sentenced to prison, counselling for life

After being found guilt of drugging and sexually assaulting a victim Bill Cosby has been sentenced to prison and lifetime counselling. The victim is just one of many woman who have claimed that Cosby assaulted them.

RNZ:  Bill Cosby sentenced to prison for sex assault

Cosby, 81, has also been categorised as a sexually violent predator, meaning he must undergo counselling for life and be listed on the sex offender registry.

At a retrial in April, Cosby was found guilty of three counts of sexual assault for drugging and molesting Andrea Constand in 2004.

Ahead of the sentence, Judge Steven O’Neill designated Cosby a sexually violent predator, despite the defence’s argument that Cosby’s age and blindness mean he is not a threat.

Tuesday’s classification means he will need to register with state police and notify any community he lives in of his sex offender status, as well as undergo mandatory counselling for life.

The actor’s defence team had argued the state’s sex offender law was too severe given Cosby’s age and the fact that he is legally blind.

The comedian was arrested in 2015 and a deadlocked jury resulted in a mistrial in June 2017.

This year’s retrial occurred amid the #MeToo movement that has seen people worldwide come forward to share stories of sexual harassment and assault.

Justice has been served to some extent on an alleged long term serial offender.

Lack of evidence longer sentences deter crime

Do longer prison sentences deter people from committing crimes? Any evidence is lacking.

NZH – The High Court judge’s challenge: Show me the evidence long sentences put people off committing crime

Justice Matthew Palmer told lawyers ahead of sentencing he wanted them to come to court with evidence longer sentences actually had the deterrent effect the law told him to consider.

Days later, defence lawyers came with research showing it didn’t work.

The Crown turned up with nothing.

The sentencing notes of Justice Palmer reflect concern around the lack of evidence in an area which the Sentencing Act 2002 says should be considered when judges consider how long to send people to jail.

It follows research by the Office of the Prime Minister’s Chief Science Adviser this year which studied tough-on-crime laws and found “there is no evidence of the supposed ‘deterrent’ effect of harsher sentences”.

“On the contrary, these political decisions appear to drive up the prison population and put further costs on the taxpayer.”

Annabel Maxwell-Scott, Chevonne Wellington’s lawyer, cited studies show “long sentences are not effective in deterring others or the offenders themselves”.

She produced research showing there was a higher likelihood of repeat offending for drug crimes when someone was sentenced to prison rather than non-prison sentences.

People using drugs are driven by their addictions, so the possibility of being sentenced is unlikely to deter them.

Victoria University criminologist Dr Liam Martin said the theory of deterrence argued along two strands – that the wider community was put off committing crime because of long sentences and that the individual sent to prison did not commit further crime because of the length of sentence.

He said the idea the broader community was dissuaded from criminal offending was impossible to measure.

However, he said there was a large body of evidence showing individuals were not deterred by long sentences and some studies showed those people went on to commit more crime.

However there are obviously non-drug related offences, and also other factors when considering sentences. For example if people are in prison they can’t commit crimes.

First ‘third strike’ maximum sentence

A man has been sentenced to a maximum term (for the charge) of seven years in prison with no parole, for stabbing someone in the leg. If it hadn’t been a third strike offence it would have qualified for a prison sentence in the 2-3 year range.

It is the first time the ‘manifestly unjust’ out clause has not been invoked.

Two previous third strike sentences were not applied because the third convictions were both low end indecent assaults that would not on their own have justified prison sentences (indecent assaults can range in severity a lot).

This explanation of the sentencing gives an idea of the procedure judges go through to arrive at an appropriate sentence. This also shows how the judge has considered the intent of Parliament for three strikes.


Summary of offending

[3] On 4 January 2018, you were drinking alcohol with several associates at the Marton Hotel, where you were living while on bail. There is evidence you had been drinking for seven to eight hours. An argument broke out between you and the victim,
who believed you had stolen his phone. The victim was sitting next to you on a couch. You produced a knife with a retractable blade and stabbed the victim in the leg about 20 cm below his knee. This happened without any warning and produced a wound
approximately 2 cm in length, and 0.5 cm deep, into the victim’s calf muscle, which required medical attention including three sutures.

You were described by police who arrived at the scene as being belligerent, aggressive and intoxicated.

Appropriate sentence but for s 86D

[9] I begin by addressing the sentence I would have given you, if this were not your third-strike offence.

[10] The Court of Appeal’s decision in R v Nuku is the leading sentencing guideline judgment for offences such as wounding with intent to injure. Your offending falls on the cusp of sentencing bands two and three, which means that a starting point between two and three years’ imprisonment is warranted for your offending.

[13] Mr Mallalieu, for the Crown, and Mr Crowley, your counsel, agree that a starting point of around two and a half years’ imprisonment would have been warranted. I am also satisfied that a starting point of two years and six months’ imprisonment would have been appropriate.

[14] You have several previous convictions for violent offending. Most seriously, you were given a sentence of home detention for another instance of wounding with intent to injure in 2012. However, your violent offending has continued, and earlier this year you were sentenced to imprisonment for assault. Mr Crowley accepts that an uplift would have been necessary to reflect your previous convictions. You were also on bail at the time of your offending. I would have considered an uplift of six months appropriate in the circumstances.

[19] As you pleaded guilty, I would have been willing to give you the full 25 per cent discount for entering an early guilty plea.

[20] This would have resulted in an end sentence of two years and three months’ imprisonment. This means that you would have been sentenced to a term of imprisonment, regardless of the three strikes regime.

[21] I will now consider whether it would be manifestly unjust to order that you serve your sentence without parole. I am not convinced that it would be grossly disproportionate to make such an order in your circumstances. Your offending sits in the mid-range of wounding with intent to injure. This is not a case where your offending is insignificant compared to a maximum sentence that was designed to cover a wide variety of behaviour, as was the case in R v Campbell and R v Fitzgerald, both of which concerned indecent assaults that otherwise would not have attracted sentences of imprisonment at all. As I have already noted, absent the three strikes regime, you would have been sentenced to a term of imprisonment in excess of two years.

[22] I acknowledge that your sentence will be much harsher than I would otherwise have imposed, however, that will invariably be the case for a third-strike offence. Parliament deliberately designed a harsh response to offenders who persistently commit serious offences despite clear warnings. I have not been presented with any evidence that would suggest you were incapable of understanding the two warning previous given to you in 2012 and 2014.

[23] The Court of Appeal has emphasised that the manifestly unjust exception will only be engaged in clear and convincing cases.
While such cases might not be rare, as many offences encompass a wide variety of behaviour, it would be contrary to Parliament’s intent for the courts to routinely invoke the exception as a matter of course. Some regard must be given to the fact that Parliament anticipated that some degree of disproportion would inevitably be involved in a regime such as this.

[25] I have reached the conclusion that this is not a clear and convincing case to depart from the full effects of the three strikes regime. This conclusion is based in part because I consider that you are at a high-risk of reoffending and there is a need for
community protection. Your previous three strike offences, and the pattern of behaviour they demonstrate, are very telling.

(1) Your first-strike offence was for the same charge as the present offence. You jointly assaulted a victim, along with your father, by repeatedly punching his head and body with closed fists. The victim was also kicked in the face. You also used pieces of wood to strike the victim. The victim suffered a fractured nose, lacerations to his forehead, scalp and one of his fingers, and a fracture to that finger. The victim experienced on-going problems relating to his nose and finger. The
pre-sentence reports for this offence described you as having little insight into the implications of your offending. The sentencing Judge described them as disturbing to read.

(2) Your second-strike offence, while for a different kind of offending, was more serious than your first-strike offence. You followed a 17-year-old girl as she was walking home. She either tripped or was pushed to the ground. You indecently assaulted her and forcibly pulled down her underwear while telling her to calm down. You then forcefully penetrated her genitalia with your finger. She screamed and yelled for help, begging you not to hurt her further. You also threw her cell phone away during the attack. You attempted to remove your pants with one hand while holding her with the other. At this stage, the victim managed to bite your forearm and fortunately, she managed to escape. Your offending had major negative emotional impacts on the victim. The pre-sentence report for this offence described you as reluctant to even discuss the incident. It also concluded there was no evidence of remorse and that you displayed no emotion.

[26] While your previous three strike offences were for different charges, they both share a common feature with your present offending; that is the fact that in every case you instigated the offending without warning. It is equally disturbing that the presentence reports for both of your previous “strike” offences record your lack of remorse and insight into your actions. Thankfully, you now appear to be beginning to understand that you have a problem. Nevertheless, your continued resort to violence while in custody demonstrates that you have not yet fully come to grips with your violent tendencies.

[27] All three of these offences occurred within a period of approximately six and half years. You continued to offend on each occasion shortly after the end of your previous sentence. You did this even after you were warned about the consequences.

[28] In those circumstances, it is fair to say you are at a high-risk of re-offending, which is confirmed by the assessment in the pre-sentence report. There is a clear need to protect the community from you; one of the central purposes of the three strikes regime. For that reason, I do not consider that it would be manifestly unjust to order that you serve your sentence without parole.

[30] I am sentencing you to seven years’ imprisonment.

[31] That sentence will be served without parole.

R v Waitokia 
21 August 2018
[2018] NZHC 2146

ACT: reduced prison sentence for education

Policy announcement: Rewarding self improvement in prisons

“Prisoners should be able to earn a reduction in their overall sentence by successfully completing literacy, numeracy, and driver licensing courses. This would provide an incentive for prisoners to upskill and ready themselves for a normal, non-criminal life outside of prison.”

Stuff: ACT to reward prisoners with reduced sentences for learning to read in prison

Offenders who study basic numeracy and literacy courses in prison should be rewarded with time shaved off their sentences, ACT leader David Seymour says.

Prisoners who entered prison with a higher level of education should also be eligible for incentives if they act as mentors to other prisoners and help them learn.

Seymour announced the policy at the party’s annual conference at Auckland’s Orakei Bay on Saturday, where he told a packed room of about 120 of the party’s rank and file, prisoners needed “positive incentives” to better themselves.

The ACT policy would see prisoners rewarded with a sentence-reduction of up to six weeks per year, for attaining literacy and numeracy skills in line with National standards, as well as driver licensing courses.

So a prisoner on a three-year sentence could earn up to a capped rate of 18 weeks off their time in prison, if they completed courses of sufficient value.

The policy would not apply to the worst violent or sexual offenders, and it would not help white-collar criminals to study diplomas or degrees. ACT was also proposing to cut red tape to make it easier for some volunteers to gain approval to carry out work in prisons.

According to Seymour, 48 per cent of prisoners had been returned to prison in the past four years. Of all prisoners, about 70 per cent had low levels of literacy and numeracy, and of the more-than 10,000 people in prison, 3240 participated in a programme in 2016.

There was no incentive for prisoners to take responsibility for their own success, said Seymour.

And guest speaker at the conference, Mike Williams supports it.

The Howard League for Penal Reform chief executive Mike Williams said it was a welcome policy, that would make a difference.

The league is an organisation that works for a more “humane” prison system, and already runs literacy courses in prisons.

Williams – a former Labour Party president – spoke to the conference about the work of the league and the cases it deals with.

“Our course is 12 weeks [to teach someone to read]. In 90 per cent of cases that works – we have had occasions where it’s taken a lot longer, and once we’ve had to teach the alphabet.”

The league carries out its work with the help of volunteers, and Williams said it could be done relatively cheaply. The chance of a reduced sentence, combined with force of their peers learning to read and work with numbers would “inspire” many prisoners.

“Illiteracy is particularly important to them, but what we know is that every one of them wants to get out of jail. It’s not a motel, they don’t want to be there.

“So the possibility of a shorter sentence is a very strong incentive to improve yourself, and I understand that it’s been tried and proven in California.”

Positive incentives make sense. More education = shorter sentences seems a good idea.

See in brief: ACT will reward self-improvement in prisons