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Patel v R

Patel v R

Case [2017] NZCA 234 6 June 2017

Criminal Liability

Mens Rea & Intention

Sentencing

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA527/2016
[2017] NZCA 234

BETWEEN	IMRAN PATEL Appellant
AND	THE QUEEN Respondent

Hearing:	11 April 2017
Court:	Harrison, Winkelmann and Asher JJ
Counsel:	A J Holland for Appellant B J Horsley and H G Max for Respondent
Judgment:	6 June 2017 at 10.30 am

JUDGMENT OF THE COURT

ALeave to appeal is granted.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Mr Patel downloaded from the internet, and distributed to others, material containing images and film footage of torture and the infliction of extreme violence and cruelty. Some of the material promoted a group which has been designated a terrorist entity by the New Zealand Government under the Terrorism Suppression Act 2002. Mr Patel pleaded guilty to four charges under the Films, Videos, and Publications Classification Act 1993 (the Act) of making, possessing and distributing objectionable material. In the District Court, Judge Collins sentenced him to three years and nine months’ imprisonment.[1] That sentence was upheld by Lang J on appeal to the High Court, although the path he followed to arrive at that end point was different to the sentencing Judge.[2]
[1]R v Patel [2016] NZDC 11454 at [25].
[2]Patel v Police [2016] NZHC 2260 at [52].
Mr Patel now seeks leave to bring a second appeal against sentence, arguing that the starting point adopted by Lang J was too high, an uplift for previous convictions too great and the resulting sentence manifestly excessive. The Crown accepts that this appeal involves issues of some general or public importance[3] because Mr Patel’s sentencing was the first conducted under the offence provisions of the Act relating to publications depicting “acts of torture or the infliction of extreme violence or extreme cruelty”.[4] We are satisfied that leave for a second appeal should be granted.

Detail of offending

Distribution of an objectionable publication

[3]Criminal Procedure Act 2011, s 253(3)(a).

[4]Publications depicting such things are deemed objectionable under s 3(2)(f) of the Films, Videos, and Publications Classification Act 1993. As we come to, in New Zealand to date, only prosecutions involving child pornography under s 3(2)(a) have been pursued.

It is an offence under s 124(1) of the Act to distribute an objectionable publication knowing or having reasonable cause to believe that the publication is objectionable. This offence is punishable by up to 14 years’ imprisonment.[5] Mr Patel was convicted of two distribution charges under s 124.[6]
[5]Films, Videos, and Publications Classification Act, s 124(2)(a).
[6]As we come to, one charge was representative and related to the sending of two text messages. The other was not representative and related to Mr Patel giving a USB stick to an associate.
Section 3 of the Act defines objectionable for the purposes of the Act and provides in relevant part:
3 Meaning of objectionable
(1)For the purposes of this Act, a publication is objectionable if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty,…

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 R

Details

AGLC: Patel v R [2017] NZCA 234
Case: [2017] NZCA 234
Decision Date: 6 June 2017 at 10.30 am

CaseChat Overview and Summary

Imran Patel appeals against the sentence imposed on him following his conviction in the District Court for making, possessing and distributing objectionable material under the Films, Videos, and Publications Classification Act 1993. The objectionable material depicted acts of torture and extreme violence and cruelty, including the execution of men by a bullet to the back of the head, and the beheading of people with knives. The Court of Appeal grants leave to appeal but dismisses the appeal against sentence. The offending was serious. The objectionable material was at the extreme end of the scale, depicting the taking of human life in a brutal and cruel fashion. Added to this was the connection of some of the material to a terrorist organisation, which increased the seriousness with which it was to be viewed. The material was made, possessed and distributed in considerable volume. It was distributed for the purpose of endorsing the commission of terrorist acts, and encouraging others to endorse those acts as well. The material distributed would have caused emotional distress to many of the recipients. Especially troubling was that the distribution might have created support for an organisation that promotes and encourages criminal acts or acts of terrorism. The nature of the offending called for a deterrent response. The Court of Appeal considered that a starting point of five years was well within the available range. The appeal against sentence is dismissed because the sentence imposed by the High Court was not manifestly excessive.

Orders