R v G
[2023] NZHC 434
•8 March 2023
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF DEFENDANT PENDING DETERMINATION OF APPLICATION FOR PERMANENT SUPPRESSION. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-044-002849
[2023] NZHC 434
THE KING v
G
Hearing: 8 March 2023 Appearances:
H D L Steele and J D Dalton for Crown
A C Cresswell and S J Galler for Defendant
Sentence:
8 March 2023
SENTENCE OF EDWARDS J
[redacted version]
Solicitors/Counsel:
Meredith Connell (Office of the Crown Solicitor), Auckland A C Cresswell, Auckland
S J Galler, Auckland
R v G [2023] NZHC 434 [8 March 2023]
[1]Tenā koe, Mr G, and kia orana. You may remain seated until I ask you to stand.
[2] You are here today to be sentenced for one charge of threatens to kill, two charges of distribution of objectionable publications, and six charges of possessing objectionable publications. You pleaded guilty to those offences on 9 November 2022.
[3] This is a big day for you and your whānau. It is also an important day for the public and our society. There are some things that I have to discuss in sentencing you today. There is a lot of information to take in. I am going to try and make it as simple as possible for you to follow. Let me tell you what is going to happen.
(a)First, I am going to describe your offending, that is, what you did.
(b)Second, I am going to discuss what the law says I have to take into account in deciding on your sentence.
(c)Third, I am going to consider the seriousness of your offending and set what we call a starting point for the sentence.
(d)Fourth, I am going to consider you and your background, and whether I should move that starting point up or down.
(e)Fifth, I will stand back and consider whether you should stay in prison or whether you should serve your sentence outside of prison.
(f)Sixth, when I have decided what the sentence should be, I will ask you to stand, and that is when I will sentence you.
[4] We are going to take a short break half-way through this sentence. I will let you know when that is going to happen.
Offending
[5]So, to the first step, which is to describe what you did.
[6] It all started in 2017, when you were about 16 years old. You began taking an interest in the conflict in the Middle East. By 2018 you had started researching ISIS
on the internet, including watching videos and reading articles about ISIS. You became radicalised towards the extreme views and beliefs of ISIS. That is, you started to believe what they said, and you supported them.
[7] In 2020, you used your Google Cloud account to store numerous documents, photographs, and videos located on the internet. These related to violent extremism. You stored and organised that material in various folders labelled according to the material filed.
[8] In June 2021, the police noticed what you were doing online. You were following several people and groups that shared ISIS supporting material on social media at this time.
[9] Between 13 July and 23 July 2021, you began exchanging messages on Instagram with an individual with the username “Ozarikon”. What you did not know then was that Ozarikon was an uncover police officer.
[10] You shared messages with Ozarikon, and when you found out that he was an ISIS sympathiser you directed him to download a chat application which had advanced security settings to exchange further messages.
Threat to kill
[11] The threatening to kill charge arises out of messages you sent to Ozarikon on 5 August 2021. You told him that if you could not travel overseas, you wanted to carry out an attack on members of the public in Auckland. You discussed various options for such an attack such as using a knife, car, or explosives known as TATP.
[12] You explained that the bombing attack in Manchester in 2017 was fully justified and used TATP. You also sent messages with instructions on how to make TATP and the ingredients required. You went to stores and photographed the items required and sent them to Ozarikon.
[13] Between 5 August and 7 September 2021, you messaged Ozarikon saying you wanted to commit an attack to kill non-Muslims. You stated that you wished to kill
between 20 and 30 non-Muslims. You said you had been researching potential locations and you sent a list of 80 possible locations to Ozarikon. These included religious institutions, shopping malls, restaurants and cafés across Auckland.
[14] You also put together a kit that you wished to use for your attack. This included camouflage clothing, two flip knives, gloves and a baseball cap. You photographed that tactical kit gear and sent it to Ozarikon.
[15] On 3 September 2021, after the terror attack in New Lynn Countdown, you messaged Ozarikon and said that you felt inspired by what had happened and wished to bring your attack forward.
Distribution of an objectionable publication
[16] The two charges of distributing an objectionable publication also arise out of an article and a video which you forwarded to Ozarikon on 5 August 2021.
[17] The article outlined that Muslims were justified in killing non-believers as they were the enemy. The article also showed a step-by-step guide on how to create an explosive device. The article was published in a magazine classified as an objectionable publication. You sent screenshots of the ingredients required to make the TATP explosive device to Ozarikon.
[18] You also sent a video. This showed clips of ISIS terror attacks that had occurred overseas. The video contained a demonstration about how to stab people, the best knives to use, as well as those parts of the body where it was best to inflict the most damage.
[19] The video went on to demonstrate how to carry out a decapitation (a beheading) with a live person. The video also demonstrated how to create an explosive device, and the effectiveness of the device was demonstrated on another living person.
Possessing objectionable publications
[20] On 8 September 2021, police executed a search warrant at your address. They located handwritten diaries which outlined your support of ISIS and the plans you had made for an attack. Police found the attack kit, the clothes you wanted to wear during the attack and two knives. An ingredient to make TATP was located in your bedroom.
[21] Police examined your phone which provided access to your Google Cloud account containing the folders storing 600 videos, 360 of which related to ISIS material.
[22]The six charges of possessing objectionable publications relate to:
(a)A video showing bodycam footage of a terror attack carried out in Germany in 2019;
(b)A video compilation of people being executed by ISIS including children killing prisoners;
(c)A video in which calls are made for attacks on the West and which shows various war scenes and people being killed graphically. The ISIS flag is displayed in the video;
(d)A video showing a man calling for the killing of non-Muslims, and a row of prisoners being executed at short range. The video is produced by ISIS;
(e)A copy of the Christchurch terrorist’s manifesto;
(f)A video showing two children under the approximate age of five years killing two people.
[23] Police also located three videos you made of yourself. In these videos you swear allegiance to ISIS, claim Jihad and retribution against the New Zealand Government, New Zealand society, and in general against the West. You state that you
are ready for martyrdom and will commit a terror attack after you have done more research.
[24] Photos of locations throughout Auckland and diary entries recording your reconnaissance, your scouting out, of potential target locations were also found. In these diary entries you stated your intention to kill multiple people by committing a terror attack in Auckland.
Principles and purposes of sentencing
[25] I now turn to the second step in the sentencing process. This step involves identifying the legal principles and purposes of sentencing that are relevant to your case. These are set out in the Sentencing Act 2002 and I am required to take them into account.
[26] Those that are particularly relevant in your case are the principles of denunciation (which means a public condemnation of what you have done), deterrence (stopping you and others from doing something similar), and the protection of the community from harm.
[27] The sentence must also assist in your rehabilitation and reintegration. That means I must consider how to best help you become someone who will not hurt yourself, or cause harm to others.
[28] The sentence I impose on you must be the least restrictive outcome in the circumstances.
Starting point
[29] I am now at the third step in the sentencing process. This is where I consider the seriousness of your offending and set a starting point.
[30] All the lawyers agree, and so do I, that the most serious offending involves the material you kept and which you sent to Ozarikon. I start with that first.
[31] In a case called Patel v R the Court of Appeal set out factors which I must take into account in assessing the seriousness of your offending.1
[32] The first of these factors is the nature of the publications. The material you kept showed the taking of human life in the most brutal and cruel ways. It involved very young children executing people in front of the camera. The fact that it was connected to a terrorist organisation makes it even worse. The nature of the material was of the worst type.
[33] As to the volume of material, although the distribution charges relate to one article and one video, you were found to be in possession of 600 videos and other documents. Of these, 360 were ISIS related videos. That is a significant volume of material collected, and organised, over a period of time.
[34] You distributed the material to only one person, Ozarikon. Your lawyer put some emphasis on this in her submissions, and I will come back to this shortly.
[35] As for your role, you sent the video and article directly to Ozarikon. You also collected, organised, and stored the objectionable material. You compiled material into clips, and you created videos of yourself in which you swore allegiance to ISIS, claimed retribution against New Zealand and the West generally, and stated you were ready for martyrdom and were prepared to commit a terror attack. I agree with the Crown that this shows active involvement and shows your belief in, and commitment to, the material you were storing.
[36] Although you did not, thank goodness, carry out your plans, that does not mean your offending did not cause harm. The distribution of materials glorifying violence and terrorism causes ruptures in our society. It sows fear and terror, and it risks persuading others to join in attacks. Downloading and storing this material creates demand for the generation of more material like it, and that ensures that the harm is ongoing.
1 Patel v R [2017] NZCA 234 at [35] and [36].
[37] Your purpose in distributing and storing these publications is complex. At a personal level, you were seeking to impress and obtain validation for what you were planning to do. You sought belonging, and also revenge. To achieve that you were pledging allegiance to a terror organisation and stating your clear intention to commit an attack. The materials you collected outlined the practicalities of committing that attack, and it bolstered your commitment to the cause.
[38] I have considered all these factors and compared them to the offending described in the cases referred to me by the Crown and your lawyer.
[39] Your counsel referred me to a District Court case called R v Madams.2 I have taken it into account. But, ultimately, I do not consider it to be as helpful as the Court of Appeal decision in Patel. That is because Madams did not involve any distribution charges, and the number of ISIS related images stored were not as many as yours. Mr Madams also faced charges in relation to child exploitation material, which is not a feature of your case.
[40] Turning then to Patel, your lawyer says that your offending is not as serious as that in Patel. That is because you only sent the material to one person, Ozarikon, whereas in Patel, the material was sent to 52 cellphone numbers. Sixty-one objectionable videos were also sent to another person via a USB stick. Your lawyer also says that it is clear that you were not capable of carrying out an attack, and you were not, in fact, radicalised.
[41] I accept that the distribution charges in Patel were more serious than yours because Mr Patel sent material to 52 cellphones, and a USB stick containing significant material was passed on to another. But, your remaining offending is generally about the same as that in Patel. In some ways it is more serious. You stored more objectionable material than he did, and you were more actively involved in that you made three separate videos of yourself stating your intention to carry out an attack. Mr Steele says you had a more serious purpose than Mr Patel, and I agree with that too. Looked at overall, I consider your offending to be slightly less serious than the offending in Patel.
2 R v Madams [2018] NZDC 8046.
[42] As for your ability to follow through with the attack, the material before the Court is mixed. On the one hand, it is suggested that you cannot manage your financial affairs, use an Eftpos machine, or cook for yourself.
[43] On the other hand, you know about the use of encrypted internet applications; you downloaded and organised extensive volumes of material, including material on how to create an explosive. You also purchased ingredients to make that explosive; and you scouted out potential locations for an attack. You made diary entries which suggest that on three occasions you went out with the intention of carrying out your attack. In the face of that evidence, I cannot conclude that you lacked the necessary capabilities to carry out an attack.
[44] As for radicalisation, or the extent of your belief and commitment to ISIS, I consider there is sufficient evidence to suggest that you were radicalised despite having no knowledge or understanding of the Islamic faith.
[45] When I look at all the features of your offending, and by reference to the decision in Patel, I consider a starting point of four and a half years’ imprisonment for the distribution and possession charges is appropriate.
Threatening to kill
[46] That leaves the threatening to kill charge. In considering this charge, I have taken into account the factors mentioned in another Court of Appeal case, which I will name in the written version of these notes.3
[47] The threats you made in messages to Ozarikon were explicit and detailed. You researched locations for the attack, and where chemicals for making an explosive could be bought. You put together a kit for the attack, and made videos outlining your intentions. You took active steps towards implementing your plan, and you documented those steps in diary notes found on your computer. On the basis of those diary notes, there were at least three occasions when you set out with the intention of committing a terror attack but did not go through with it.
3 R v Faaleaga [2011] NZCA 495.
[48] On one of those occasions, you describe catching the train to see an ice hockey game at Spark Arena. You took a kitchen knife with you and you record that you intended to carry out an attack designed to cause panic, chaos, terror and fear, and to do it in the name of ISIS so it gained more notoriety. But people were nice to you. Someone gave you a free ticket to get in. Other people started to talk to you and were cheering you on when you made comments about the game. You became absorbed in the game and got distracted from what you were there to do. It was the kindness of strangers that stopped you that day. But, if your diary entry is to be believed, you were well down the track of acting on your plan.
[49] The combination of these factors means the threat to kill charge was extremely serious. However, there is an overlap between this charge and the other charges. I must be careful not to count certain factors twice. Both your lawyer and the Crown lawyer suggest that a further year should be added on for this charge. I agree.
[50] Adding a year brings the total starting point to five and a half years’ imprisonment. I am satisfied that this accurately reflects the very serious nature of all your offending.
Personal factors
[51] I am now at the fourth step of the sentencing process. This is where I spend some time speaking about you, and your background, and deciding whether that starting point of five and a half years’ imprisonment should go up or down.
[52] We are going to take a short break at this point. We will come back in 10 minutes and I will continue with your sentencing at this time. Thank you.
[Court adjourns]
Personal circumstances
[53] Thank you, Mr G. I am now at the fourth step of the sentencing process and this is where I spend some time talking about you and your background and deciding
whether that starting point of five and a half year’s imprisonment should go up or down.
[54] You are now 21 years of age. You are of Cook Island and Māori descent, and identify as [redacted]. A report before the Court records that [redacted] has suffered significant loss of land and this has had ongoing effects through the generations.
[55] Mr G, you were born into hardship, neglect, and a life of violence. At 15 months old you were whāngaied to friends of your grandmother. Things were more or less stable from then until you were about nine years of age. This is when your parents separated.
[56] The time that followed was traumatic. There was drug taking, negative associates, and abuse by the relative of one of your parents. During this time, one of your parents was imprisoned for drug related offending and this had a profound effect on you.
[57] You struggled at school and were bullied, eventually leaving at 14 years of age. You did not make friends and were alienated. You felt lonely and abandoned and this gave birth to a deep-seated anger at the world. It was at this point you became absorbed in the online world and radicalised by ISIS.
[58] [Redacted]. [This means] you are easily led, suggestible and vulnerable to negative influences. You also need assistance with daily tasks and require wraparound support.
[59] Although your offending involves support for ISIS, you are not interested in converting to Islam. You met with Dr Mustafa Farouk and showed interest in finding out more about Islamic teachings in an effort to avoid radicalisation. You have also spent some time talking about sins and forgiveness. You have requested to see one of the victims of the Christchurch massacre shooting and have expressed admiration for his bravery.
[60] When you were first put in prison you wrote and drew things in your cells that indicated an ongoing desire to cause harm, both to yourself, and to others. However, there is nothing before the Court that suggests that this has continued in more recent times.
[61] While in prison you have engaged with a community provider4 who is prepared to provide you with a place to stay and a tailored programme to support you. You have also participated in the Dynamics of Whanaungatanga programme, which you have enjoyed. You have regular sessions with a Māori mental health practitioner, and a psychologist is preparing an individualised treatment plan for you in the unit in which you are held.
[62] There appears to be agreement that you present a high risk of reoffending. Everyone also appears to agree that you will need a lot of support in the form of external monitoring and supervision to help you on your release from prison. You will need to be kept away from the internet, and you will also need to make sure you do not get lured back into extremist and violent ways of thinking and behaving.
[63] What I must now consider is whether any of these factors mean the starting point should be moved up or down.
Uplifts
[64] These are your first criminal convictions. There is no reason to increase your starting point. So, the focus is on whether it should be reduced.
[Redacted], background, youth
[65] There is no doubt that there are many factors that have contributed to your offending. These include your [redacted], the negative experiences you had growing up, and your young age.
[66] [Redacted] left you vulnerable to negative influences. It also contributed to your obsessive way of thinking. That explains your fascination with terror events
4 [Redacted].
overseas and the amount of time you spent online. Your childhood experiences left you alienated from society and angry. Your desire to belong and take revenge left you vulnerable to the beliefs of extremists. Making this worse was the fact that all of this was occurring when you were still a teenager. This reduces your responsibility for what you did, and the starting point should be reduced to reflect that.
[67] Usually, [redacted] would mean that prison would be more difficult for you. Dr McGinn says prison is not a place for someone [redacted] and she has expressed very strong views on that topic. But your experience of prison is not a typical one. And, as I will come back to, you have sworn an affidavit, which I have read, which suggests that the time in prison has been a good thing for you and it has helped you get back on the right track. A separate reduction for the difficulties faced in prison is not warranted in your case.
[68] I also take into account that [redacted] contribute to your high risk of further offending. This means the protection of the community from harm is fully engaged. The extent of the discount [redacted] must reflect this factor also, and it means it might not be as high as it otherwise would be.
[69] I have read [redacted], a case referred to me by your lawyer. With reference to that case, I am satisfied that a discount of 35 per cent should be applied for your [redacted], negative experiences growing up and your young age.
Rehabilitation and reintegration
[70] Turning now to your prospects of rehabilitation and reintegration, or the chances of you getting to a point where you no longer pose a risk of harm to yourself and to others.
[71] I start with remorse for what you have done. The pre-sentence report writer says you showed no remorse for your offending. However, Dr McGinn says this needs to be seen in light [redacted]. [Redacted]. I accept what she says.
[72] There is evidence that suggests you have insight into what caused your offending. As I said before, you have sworn an affidavit for the Court. I have read it
and I was impressed by it. You say you were deeply hurt from your time spent at high school and you wanted retaliation for what happened to you there. Your extreme isolation during the COVID lockdowns just made things worse.
[73] You describe feeling extreme self-loathing, and negative feelings towards yourself and in yourself. You had a sense of being left out and lonely from mainstream society. You also describe jealousy, boredom, and thinking that normal people were better than you. When you first engaged with other members of ISIS you described a sense of belonging, and you said it was “like a brotherhood full of likeminded outcasts”. You felt like you had a sense of purpose and your life online was easier. You also describe writing down your thoughts when you were angry and felt violent urges. You describe these as fantasies, and you say that you would not usually act on violent urges.
[74] You say you hope for a normal life in the future, “an average kiwi citizen with a job”. You would like a loving partner, and to have children. You would like to go fishing, make new friends and get a career.
[75] These are all good thoughts and positive goals, Mr G. They show you have some knowledge about what made you offend, and they show a shift away from your negative ways of thinking.
[76] You have also shown an openness in your meetings with Dr Farouk and others, and an admiration for the bravery of a victim of the Christchurch massacre. You have engaged with the programmes offered to you in Court and connected with the principles of tikanga Māori. Despite difficulties in your upbringing, you have the strong support of both parents and other members of your whānau.
[77] What all this tells me is that there is real hope for you, and you are on the right path. There is a long way to go yet, and you will need constant support at each step, but you are heading in the right direction. Rehabilitation and reintegration provide the best form of long-term protection for the community. For these factors, I consider a discount of 10 per cent is warranted.
Guilty plea
[78] That leaves a guilty plea discount. You received a sentence indication on 14 June 2022 in which you were offered a full discount for a guilty plea if you accepted the indication at the time. You did not accept the indication at that time and instead entered guilty pleas on the eve of trial.
[79] There were some delays in the process which were not your fault, and guilty pleas were entered promptly, as soon as it was decided that the evidence against you was not improperly obtained.
[80] Weighing up all these factors, I apply a discount of 10 per cent for the guilty plea.
[81] The total discounts to be applied are therefore 55 per cent. With some adjustments in your favour, that brings the end sentence to one of two years and five months’ imprisonment.
Prison or non-custodial sentence
[82] So now I come to the fifth step in the process. This is where I consider whether you should remain in prison or be allowed to serve a sentence outside of prison.
[83] I can only decide on a sentence outside of prison if the sentence I reach is two years or less. The sentence I have reached is greater than two years. But I have decided to consider whether prison is right for you anyway. That is because the sentence I have reached turns on a judgment call about the starting points and discounts available. A slightly lower starting point, and higher discounts could have ended up at something less than two years. It is also because the law requires me to consider the desirability of keeping you in the community as far as possible.5 As I said at the beginning, I must also impose the least restrictive sentence in the circumstances.
[84] So, I have taken a step back, and considered whether it is right for you to be sentenced to prison.
5 Sentencing Act 2002, s 16.
[85] Your special needs count for and against prison. On the one hand, I have taken into account Dr McGinn’s views that prison is not the right place for you. She says it will increase the risk that you will reoffend because you have nothing to do but think and obsess about being a terrorist.
[86] She is also concerned about the prison unit where you are held, and that is the unit reserved for the most serious offenders. Although you are kept separate from those prisoners, she says you can still hear them, and they might influence you in negative ways. That is really concerning.
[87] But your affidavit paints a different picture. You say that being in prison has given you a chance to self-reflect, and being in solitary confinement with no Wi-Fi or devices means you feel like being yourself, being the true [redacted]. You also say that others around you try to steer you away from extremism, and there are no other violent extremists around you, and you are kept away from them in your prison unit. You are enjoying becoming more engaged with your culture and have worked with a psychologist. It seems as though your experience of prison has been good for you so far.
[88] The other factor is that you are still assessed as posing a high risk of harm. What is clear is that you need a lot of support and supervision if the public is to be kept safe. The community organisation identified by your lawyer may be able to provide the necessary care arrangements once you are released. But at this point in time, I do not have enough information before me to say that the level of support you need to help you keep yourself and all of us safe is there. Safety has to be the priority and for this reason keeping you in prison while you continue to work on getting back on the right track is the best option.
[89] So, even if I could have sentenced you to something other than prison, I would not have done so. I intend to sentence you to two years, and five months in prison.
Sentence
[90] So, to the final stage of the sentencing, Mr G. This is where I am going to ask you now to please stand.
[91] For one charge of threatens to kill, two charges of distributing objectionable publications, and six charges of possessing objectionable publications, I impose an end-sentence of two years, five months’ imprisonment.
[92] I also make an order that the items listed in the schedule attached to the Crown memorandum dated 7 March 2022 be destroyed. I also make that same order in relation to the relevant publications.
[93]Thank you, Mr G. You will now be taken from the Court back to prison.
Edwards J