R v S - [2021] NZHC 1669

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-7098

[2021] NZHC 1669

THE QUEEN

v

S

Defendant

Hearing: 6 July 2021

Appearances:

HDL Steele for the Crown K Raftery for the Defendant

Sentenced:

6 July 2021

SENTENCING NOTES OF FITZGERALD J

R v S [2021] NZHC 1669 [6 July 2021]

Introduction

[1] Mr S, you may remain seated until I ask you to stand. These sentencing remarks, as I have just noted, will be transcribed and a copy of them will be made available to your lawyers later today.

[2] You appear for sentence this morning having been found guilty by a jury on two charges of possessing an objectionable publication with reasonable cause to believe that it was objectionable,1 and one charge of failing to assist a Police officer exercise a search power.2 The jury found you not guilty of a third charge of possession of objectionable material and of a charge of possessing a knife in a public place without reasonable excuse.

Facts

[3] I will now briefly summarise the facts behind your offending; and these will of course be well known to you and to the lawyers here in court today, but sentencing is a public process and it is important the public are aware of the factual basis upon which I am sentencing you today.

[4] The two publications in relation to which the jury found you guilty are two nasheeds, or what might broadly be described as religious hymns. They had been reviewed by the Office of Film and Literature Classification (which I will refer to for ease of reference as the Censor) and both classified as objectionable. The first nasheed, titled “What a victory for he who got shahada” features a still image of a man wearing a black balaclava and black clothing, holding a large machine gun and standing in a field of flowers. Behind him is a flag of ISIL or ISIS, a designated terrorist organisation under the New Zealand Terrorism Suppression Act 2002. The nasheed is sung in Arabic but with large English subtitles also displayed. The lyrics of this nasheed speak of obtaining martyrdom on the battlefield and being killed in Allah’s cause.

1 Films, Videos, and Publications Classification Act 1993, s 131A. Maximum penalty 10 years’ imprisonment or a $50,000 fine.
2 Search and Surveillance Act 2012, s 130(1). Maximum penalty three months’ imprisonment.

[5] The Censor concluded that the combination of the lyrics and imagery in this nasheed promotes and encourages acts of violence and terrorism. The jury’s verdict meant that it was…

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 R v S

Details

AGLC: R v S [2021] NZHC 1669
Case: [2021] NZHC 1669
Decision Date: 6 July 2021

CaseChat Overview and Summary

The defendant, Mr S, was sentenced by the High Court of New Zealand in Auckland for possession of objectionable publications and failing to assist a Police officer exercising a search power. The defendant was found guilty of possessing two nasheeds that promoted and encouraged acts of violence and terrorism. The court considered the purposes and principles of sentencing, including accountability, deterrence, denunciation, and community protection. The court established a starting point of six months for the possession charges and a one-month uplift for the charge of failing to assist a Police officer exercising a search power. The defendant was sentenced to one year of supervision on each charge, with the sentences to run concurrently. The court imposed several special conditions on the defendant, including restrictions on internet access, disclosure of social media accounts, surrender of electronic devices, and participation in a rehabilitative assessment and any recommended treatment or programme.

The defendant, Mr S, was found guilty of possessing two nasheeds promoting and encouraging acts of violence and terrorism, and failing to assist a Police officer exercising a search power. The court considered the purposes and principles of sentencing, including accountability, deterrence, denunciation, and community protection. The court determined an appropriate starting point of six months for the possession charges and a one-month uplift for the charge of failing to assist a Police officer exercising a search power. The defendant was sentenced to one year of supervision on each charge, with the sentences to run concurrently. The court imposed several special conditions on the defendant, such as restrictions on internet access, disclosure of social media accounts, surrender of electronic devices, and participation in a rehabilitative assessment and any recommended treatment or programme.

Orders