Nottingham v The Queen - [2020] NZSC 39

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 39

BETWEEN	DERMOT GREGORY NOTTINGHAM Appellant
AND	THE QUEEN Respondent

SC 23/2020
BETWEEN	DERMOT GREGORY NOTTINGHAM Applicant
AND	DEPARTMENT OF CORRECTIONS Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	Applicant in person C A Brook for Respondents
Judgment:	24 April 2020

JUDGMENT OF THE COURT

APending the hearing of the appeal against sentence (SC 83/2019) in this Court, the appellant is granted bail on the conditions set out in [14] below.

B The application for leave to appeal against the decision declining habeas corpus (Nottingham v Department of Corrections [2020] NZHC 332) is dismissed.

____________________________________________________________________

REASONS

Introduction

The Court has granted Mr Nottingham leave to appeal against a sentence of home detention of 12 months imposed following a successful Solicitor‑General appeal to the Court of Appeal against sentence.[1] On appeal the Court will consider the correctness of the decision to impose “the maximum period of home detention [12 months] in circumstances where the offender had already served a period of home detention in relation to the offending”.[2]
[1]Nottingham v R [2020] NZSC 23.
[2]At [3].
The appeal is to be heard on 14 May 2020.
Mr Nottingham now seeks bail. He has also filed an application for leave to appeal directly to this Court against the decision of van Bohemen J declining to grant habeas corpus.[3] After setting out the background, these applications are dealt with in turn.

Background

[3]Nottingham v Department of Corrections [2020] NZHC 332 [habeas corpus decision].

Mr Nottingham was convicted of publishing information in breach of suppression orders and of criminal harassment. He was sentenced by the trial Judge, Judge Down, to a term of 12 months’ home detention and 100 hours of community work.[4] In allowing the Solicitor‑General’s appeal against sentence, the Court of Appeal 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.[5]
[4]R v Nottingham [2018] NZDC 15373.
[5]Nottingham v R [2019] NZCA 344 at [120].
Because Mr Nottingham had served a period of three and a half months’ home detention prior to the Court of Appeal decision, he will have served 15 and a half months’ home detention by the sentence expiry date of 29 July 2020. Mr Nottingham’s calculation is that he had served 12 months’ home detention by 9 April 2020.

The application for bail

Against this background, bail is sought on a number of grounds. Those grounds include the strength of the appeal and the need to protect Mr Nottingham from what he says is arbitrary detention.

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 39
Case: [2020] NZSC 39
Decision Date: 24 April 2020

CaseChat Overview and Summary

Dermot Gregory Nottingham has appealed against his sentence of 12 months' home detention, imposed following a successful Solicitor-General appeal to the Court of Appeal against sentence. The Court of Appeal had 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. Nottingham has also filed an application for leave to appeal directly to this Court against the decision of van Bohemen J declining to grant habeas corpus. The Court accepted that the application for bail should be treated as an application for bail pending determination of the sentence appeal and decided that bail is in the interests of justice because there is a risk that Nottingham's sentence appeal would otherwise be rendered nugatory. The Court was satisfied that there are no exceptional circumstances to justify a direct appeal to this Court against the decision declining habeas corpus because the question Nottingham would have the Court consider is "classically a question for appeal" and Nottingham will have that on 14 May 2020. The Court granted bail on the conditions set out in [14] below and dismissed the application for leave to appeal against the decision declining habeas corpus.

Orders