Patel v Police - [2016] NZHC 2260

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-228 [2016] NZHC 2260

BETWEEN IMRAN PATEL Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 6 September 2016

Appearances:

A Holland for Appellant
H Steele for Respondent

Judgment:

26 September 2016

JUDGMENT OF LANG J [on appeal against sentence]

This judgment was delivered by me on 26 September 2016 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

PATEL v NEW ZEALAND POLICE [2016] NZHC 2260 [26 September 2016]

INDEX

The charges ...........................................................................................................[3] The Judge’s decision ............................................................................................[9] Grounds of appeal ..............................................................................................[14] Was the starting point too high? .......................................................................[16] A hierarchy of offences?     [16]
To what extent are the starting points taken in child pornography cases of assistance in the present case?  [22] The nature of the objectionable material  [26] The manner and extent to which Mr Patel downloaded and copied material
from the internet  [29] Distribution of objectionable material to others  [35] Overall assessment  [45] Was the sentence manifestly excessive?............................................................[48] Result ...................................................................................................................[51]

[1] Mr Patel pleaded guilty in the District Court to four representative charges laid under the Films, Videos and Publications Classifications Act 1993 (the Act). On
23 June 2016, Judge Collins sentenced Mr Patel to three years nine months imprisonment.1

[2] Mr Patel appeals against sentence on the basis that the starting point the Judge selected was too high. He submits that this resulted in the Judge imposing an end sentence that was manifestly excessive.

The charges

[3] Mr Patel pleaded guilty to one charge of being in possession of objectionable material, one representative charge of making objectionable material and two charges, one of which was representative, of distributing objectionable material.

[4] All of the charges related to video files, still photographs and magazines that Mr Patel had downloaded from the sites on the internet. He downloaded a total of 72 video files, ten still photographs and six digital copies of a magazine and stored these on his laptop computer. The magazine was entitled “Dabiq”, and is used by ISIS for propaganda purposes and for recruitment. This led to the representative charge of being in possession of objectionable material.

[5] Much of the material contained graphic images of people being tortured and killed by persons purporting to represent or support the Islamic State, better known as ISIS or the Islamic State of Iraq and Syria. The summary of facts records that ISIS is “a jihadist terrorist group and self-proclaimed caliphate and Islamic state led by Sunni Muslims from Iraq and Syria”. It operates not only in Iraq and Syria but in many other areas of the world as well. Since 18 October 2004 ISIS has been designated a terrorist entity by the New Zealand Government under the Terrorism Suppression Act 2002.

[6] Having stored the objectionable video files on his computer, Mr Patel subsequently copied several of them onto a DVD disc, an iPod device and four USB devices. These acts led to the representative charge of making an objectionable publication.

[7] On…

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 Patel v Police

Details

AGLC: Patel v Police [2016] NZHC 2260
Case: [2016] NZHC 2260
Decision Date: 26 September 2016

CaseChat Overview and Summary

Imran Patel pleaded guilty to several charges under the Films, Videos and Publications Classifications Act 1993 in relation to his possession, making, and distribution of objectionable material. The objectionable material depicted extreme violence, including images of torture and murder committed by persons purporting to represent or support ISIS. Patel downloaded a large number of video files, still photographs, and magazines from the internet and stored them on his computer. Patel also sent text messages containing links to internet sites portraying violent acts to 52 associates. Patel appealed against the sentence of three years and nine months imprisonment imposed on him by the District Court Judge. The appeal was based on the argument that the starting point selected by the Judge was too high and that this resulted in an end sentence that was manifestly excessive.

The legal issues in this case were whether the starting point selected by the Judge was too high and whether the end sentence was manifestly excessive. The court had to consider the nature of the objectionable material, the manner and extent to which Patel downloaded and copied material from the internet, the circumstances in which he distributed it to others, and Patel's previous convictions. The court also had to consider whether the Judge properly analysed the cases on which he purported to rely.

The court found that the starting point selected by the Judge was too high, but that the end sentence was not manifestly excessive. The court found that Patel's overall culpability warranted an overall starting point of no more than four years imprisonment, which reflected the overall culpability of Patel's offending as assessed by the court. However, the court found that the starting point needed to be increased to reflect Patel's previous convictions and to further reinforce the sentencing principles of deterrence, denunciation, and the need to hold Patel accountable for his actions. An uplift of one year to reflect those factors would be appropriate. The court therefore concluded that the sentence of five years imprisonment before taking into account mitigating factors was within the available range.

The appeal against sentence was dismissed.

Orders