Nottingham v The Queen - [2020] NZSC 74

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NOTE: HIGH COURT ORDER IN [2014] NZHC 550 PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF DEFENDANTS IN [2014] NZHC 550 AND [2014] NZHC 1848 REMAINS IN FORCE.

NOTE: DISTRICT COURT ORDER IN [2018] NZDC 15368 PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF T, C, H, B AND M REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 83/2019
[2020] NZSC 74

BETWEEN	DERMOT GREGORY NOTTINGHAM Appellant
AND	THE QUEEN Respondent

Hearing: Further submissions:	28 May 2020 6 July 2020
Court:	William Young, Glazebrook, O’Regan, Ellen France and Williams JJ
Counsel:	Appellant in person C A Brook for Respondent
Judgment:	31 July 2020

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed. The sentence of 12 months’ home detention imposed by the Court of Appeal is varied by replacing that sentence with a sentence of eight and a half months’ home detention with a start date of 30 July 2019.

B Having served more than 12 months’ home detention, Mr Nottingham has served that part of his sentence. The standard and special post-detention conditions imposed by the Court of Appeal remain in place for the remainder of the 12‑month and six‑month post‑detention periods respectively.

CThe remaining period of community work to be served by Mr Nottingham is remitted.

____________________________________________________________________

REASONS
(Given by Ellen France J)

Table of Contents

Para No
Introduction	[1]
Background	[4]
The case on appeal	[17]
The statutory scheme	[23]
Our assessment	[34]
Result	[52]

Introduction

Mr Nottingham was convicted after a jury trial of two charges of publishing information in breach of suppression orders[1] and five charges of criminal harassment.[2] He was sentenced by the trial Judge, Judge Down, to a term of 12 months’ home detention and 100 hours of community work.[3] Mr Nottingham appealed against conviction and sentence to the Court of Appeal. The Solicitor-General appealed against sentence.
[1]Criminal Procedure Act 2011, s 211(1).
[2]Harassment Act 1997, s 8(1).
[3]R v Nottingham [2018] NZDC 15373 [Sentencing remarks]. The sentence of community work was applied to the breach of name suppression which occurred first in time.
By the time the appeal to the Court of Appeal was heard, Mr Nottingham had served three and a half months of his sentence of home detention.[4] His appeal was unsuccessful but the Court of Appeal allowed the Solicitor-General’s appeal against sentence.[5] The Court quashed the part served sentence of home detention and imposed a sentence of 12 months’ home detention together with 100 hours of community work.
[4]The Court of Appeal granted Mr Nottingham bail and his home detention was suspended on 9 November 2018, pending determination of his appeal to that Court.
[5]Nottingham v R [2019] NZCA 344 (Wild, Thomas and Muir JJ) [CA judgment].
The issue on appeal is whether the Court erred in imposing a term of home detention on Mr Nottingham which would mean that, in total, he would serve 15 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nottingham v The Queen

Details

AGLC: Nottingham v The Queen [2020] NZSC 74
Case: [2020] NZSC 74
Decision Date: 31 July 2020

CaseChat Overview and Summary

Dermot Gregory Nottingham appealed against his sentence, arguing that the Court of Appeal's imposition of a 12-month home detention term, following his prior service of three and a half months on home detention, exceeded the statutory limit of 12 months. The Court of Appeal had concluded that home detention was the least restrictive sentence appropriate for Nottingham given his health issues, and the maximum penalty for the offence was 24 months' imprisonment. The Crown contended that the Court of Appeal had jurisdiction to impose the 12-month sentence, as it was a new sentence that commenced on the date of imposition, and that the 12-month maximum applied to the total period of home detention, not necessarily a continuous period. The Supreme Court found that the statutory limit of 12 months for home detention was a true maximum and that the Court of Appeal did not have jurisdiction to impose a sentence exceeding this limit. The Court varied Nottingham's sentence to eight and a half months' home detention, with a start date of 30 July 2019, and remitted the remaining community work. The standard and special post-detention conditions imposed by the Court of Appeal remained in place for the remainder of their respective periods.

Orders