Patel v R [2017] NZCA 234 (6 June 2017)

Last Updated: 15 June 2017

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

1. Leave to appeal is granted.
2. The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

[1] 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]
[2] 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] 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]
[4] 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, or violence in such a manner that the availability of the publication is likely to be injurious to the public good.

...

(2) A publication shall be deemed to be objectionable for the purposes of this Act if the publication promotes or supports, or tends to promote or support,—

...

(f) acts of torture or the infliction of extreme violence or extreme cruelty.

(3) In determining, for the purposes of this Act, whether or not any publication (other than a publication to which subsection (2) applies) is objectionable or should in accordance with section 23(2) be given a classification other than objectionable, particular weight shall be given to the extent and degree to which, and the manner in which, the publication—

(a) describes, depicts, or otherwise deals with—

(i) acts of torture, the infliction of serious physical harm, or acts of significant cruelty:

...

(d) Promotes or encourages criminal acts or acts of terrorism:

...

[5] The facts relating to the first (representative) distribution charge are as follows. On 18 October 2015 Mr Patel sent a two-part text message from his cellphone to users of 52 separate cellphone numbers. The first part of the message read:

Allahuakbar how times change check ot this video showing how the Amerikan invaders and shiah forces treated our brave mujahideen many years ago in Falluj

[6] The second part of the message read:

ah now how we return the favour Qisas is sweet ...

Qisas is an Arabic term meaning retaliation in kind or revenge.

[7] That message concluded with a file path which led to a webpage. The webpage opened with a warning screen that read:

Warning — Item Islamist execute Iraqi army soldiers: Al Fallujah might contain content that is not suitable for all ages. ... by clicking on CONTINUE you confirm that you are 18 years and over.

[8] If the recipient clicked on the word CONTINUE, a video of five minutes and 34 seconds loaded, branded on the top left of the screen with the flag of the terrorist organisation. The video included footage of around 19 men being killed by means of a bullet to the back of the head, in apparently extrajudicial execution.
[9] On 19 October Mr Patel’s network provider sent him a text message cautioning him about the content of messages he had been sending. Nevertheless, on 20 October Mr Patel again sent a message from his cellphone to 52 separate cellphone numbers. This message included a link to a different website also containing videos depicting extreme violence and torture. On this occasion there was no warning screen which appeared before the footage commenced. The footage included horrific scenes of people being beheaded with knives. Again, the footage was branded with the terrorist organisation’s flag in the top right corner of the screen.
[10] On 21 October Mr Patel’s network provider sent a further text cautioning him about the content of messages. On 22 October his provider barred his cellphone number from sending messages because of complaints about the content of messages he had been sending from his phone.
[11] Having obtained a mobile number from another provider, on 23 October Mr Patel sent a text telling his associates:

the Kuffar have taken my number and so in the future this is Imran Patel; for those among u that may have complained to the kuffar telephone network about the messages I have been sending; and therefore got my number disabled; remember that u are a Muslim; so please behave like one. A Muslim never goes to the Kuffar 2 help him go against his fellow Muslim; all u need 2 do is come 2 ur fellow Muslim and resolve the issue under Shariah like real Muslims do ...

[12] Kuffar or Kafir is an Arabic Islamic term for unbeliever or non-believer, and is often used as a derogatory term.

Possession of an objectionable publication

[13] It is an offence under s 131A of the Act to possess an objectionable publication, knowing or having reasonable cause to believe that the publication is objectionable. The maximum penalty for that offence is 10 years’ imprisonment.^[7] Mr Patel was convicted of one possession charge under s 131A. The facts of that offending are as follows.
[14] Police searched Mr Patel’s home on 14 December 2015. The police found 137 video files on Mr Patel’s laptop, of which 62 were objectionable, and also image files containing further objectionable material. The principal themes present in this material were propaganda and support for the terrorist organisation as well as images of graphic violence and cruelty. The latter included people being murdered by being beheaded, immolated, shot in the head or blown up. Other files showed men having limbs amputated under Shariah law and graphic scenes of war violence including dismembered and mutilated bodies.
[15] The police also found on the laptop six electronic copies of an online magazine which is used by the terrorist organisation for propaganda and recruitment.

Made an objectionable publication

[16] It is an offence under s 124 of the Act to make an objectionable publication, knowing or having reasonable cause to believe that the publication is objectionable. The maximum penalty for that offence is 14 years’ imprisonment.^[8] This charge related to the downloading by Mr Patel of various items from the internet onto storage devices.
[17] When they searched Mr Patel’s house the police located a DVD disk which contained 47 video files, 17 of which were assessed as containing objectionable material. Six electronic copies of the propaganda magazine referred to above were also located on the DVD. The objectionable material was a duplicate of material also found on the laptop.
[18] The police also found three separate USB devices. These contained around 200 video files, 85 of which were assessed as objectionable. All but seven of these items were duplicates of material on the laptop.
[19] The police located an iPod device containing a compilation of 131 video files. The police sampled 27 of them, 19 of which were assessed as objectionable.
[20] Finally as to this charge, in October 2015 Mr Patel visited an acquaintance of his. He attempted to load a DVD onto the acquaintance’s personal computer but the DVD would not load. The acquaintance therefore gave him a USB stick, onto which Mr Patel burned and stored 129 video files. Of those 129 video files, 61 were assessed as objectionable. The device also contained six electronic copies of the terrorist magazine.

Second distribution of an objectionable publication

[21] Once the video files were loaded onto the USB stick, Mr Patel then handed the stick to his acquaintance. This constituted the offending captured in the second charge of distribution.

Sentence in the District Court

[22] Mr Patel pleaded guilty to the charges, accepting that the material was objectionable. He was sentenced by Judge Collins in the District Court in June 2016. The Judge took a starting point of four years’ imprisonment for the making charge as well as the (second) related distribution of one of those publications to an associate.^[9] He then applied an uplift of one year for possession of the objectionable materials and the distribution of two objectionable videos by way of text messages to 52 people.^[10] No uplift was given for previous convictions, with the Judge expressly noting that the likelihood of Mr Patel carrying out an act of extreme violence formed no part of the sentence for these offences.^[11] Mr Patel was given a 25-per-cent discount for a guilty plea which reduced his sentence to three years and nine months’ imprisonment.^[12] The Judge declined to impose a minimum period of imprisonment over and above that which applies under the Parole Act 2002.^[13]

First sentence appeal

[23] On appeal to the High Court it was argued that the District Court Judge had erred in fixing the starting point because he had regard to starting points in relation to charges involving the possession and distribution of child pornography, and in any event failed to properly analyse those cases. Section 3(2)(a) of the Act deems publications dealing with the exploitation of children for sexual purposes objectionable. Mr Holland argued for Mr Patel that the legislative history of the provisions demonstrated Parliament’s intention that cases involving child pornography should be viewed more seriously than offending of the type to which Mr Patel pleaded guilty.
[24] Lang J rejected the argument there was a hierarchy of offending within the section.^[14] He accepted that cases involving child pornography might be of assistance in sentencing — both types of offending involve the infliction of serious harm on other human beings and cause immense distress to all those associated with the victim.^[15] Nevertheless, he thought the state of authorities in relation to sentencing for child pornography was such that a useful body of jurisprudence had yet to evolve, and accordingly the authorities were of limited assistance.^[16]
[25] The High Court Judge said that relevant considerations in sentencing for this offending included the nature of the objectionable material, the manner and extent to which Mr Patel made and kept copies of material found on the internet, and the circumstances in which he distributed that material to others including his purpose in so acting.^[17]

Starting point

[26] The Judge assessed the nature of the material as being in the middle range of publications of this type.^[18] The Judge assessed the “making” of the objectionable material as moderately serious, given the number of publications transferred to six different storage devices.^[19] By downloading that material to storage devices, Mr Patel had placed himself in a position to further distribute it. On its own, and putting to one side the other offending, the Judge said this offending would justify a starting point of around two years.^[20]
[27] As to the distribution of material, the Judge treated as aggravating the gravity of the offending that Mr Patel’s acts in distributing the material by text message were attempts to persuade recipients they should join him in supporting the activities of the terrorist organisation.^[21] The text messages went to a large group and on an unsolicited basis, and the second was sent after a warning from the service provider. He said the offending would have been serious but for the fact it only involved two video clips and was not designed to persuade recipients to provide active or violent support for the terrorist group.^[22]
[28] By way of mitigation the Judge took into account that accessing the objectionable material distributed by text required the recipient to click through to it, and with the first text there was a content warning.^[23] The Judge therefore assessed this aspect of the conduct as moderate.^[24]
[29] The Judge accepted the fact that Mr Patel wished to communicate support for activities of the type shown in the images required that deterrence be at the forefront of sentencing.^[25] Nevertheless, Lang J was satisfied that Mr Patel’s overall conduct justified a starting point of four years’ imprisonment, rather than the five years selected by the District Court Judge.^[26]

Previous convictions

[30] The Judge then took into account Mr Patel’s previous convictions for intimidating behaviour, threatening to kill and assault with a weapon — offending which took place in 2014 and 2015. His reoffending shortly after serving a sentence of imprisonment indicated Mr Patel had taken no heed of earlier sentences imposed upon him and “suggests he still considers the use of violence against fellow human beings to be acceptable”.^[27] He said Mr Patel had little insight into his offending.^[28] Those factors persuaded the Judge that the starting point of four years’ imprisonment needed to be increased to reflect Mr Patel’s previous convictions and to further reinforce the sentencing principles of deterrence, denunciation and accountability.^[29] Lang J was therefore satisfied that the sentence of five years’ imprisonment, before taking into account mitigating factors, was within the available range.^[30] He dismissed the appeal.

First ground of appeal: starting point too high

[31] Mr Holland for Mr Patel argues that Lang J adopted too high a starting point because he overstated the seriousness of the offending in relation to the making and distribution charges. As to the making charge, he says it was significant that Mr Patel had a genuine political interest in Middle Eastern affairs. He did not create the material. Nor did he alter it; he merely curated it into a collection of quasiacademic material. Mr Holland emphasises that a lot of the material found in Mr Patel’s possession was not objectionable, and all of it was available in the public domain. In the letter he sent to the District Court Judge, Mr Patel said that he attempted to pull together material to illustrate the current political scene.
[32] As to the distribution charge, Mr Holland argues that too much weight was placed upon the purpose of the distribution. Moreover, Mr Holland argues Lang J was wrong to take the view that Mr Patel was attempting to persuade his friends to join his views in supporting the activities of those in the footage. He was doing nothing more, in Mr Holland’s submission, than sharing information and there was no evidence to suggest he supported all of the acts included in the material, or that he tried to persuade his associates to join him in that support.
[33] Mr Holland argues that a starting point of no more than three years and six months was appropriate to reflect the totality of this offending.

Sentencing principles to be applied

[34] Because of the different approaches to sentencing adopted by the sentencing Judge and Lang J, we have approached the exercise afresh on appeal. In accordance with conventional sentencing principles when fixing a starting point, we have regard to the gravity of the offending — an assessment which entails consideration of the nature of the offending, the offender’s culpability, consideration of the extent of the damage, harm or danger to the community caused by the offender’s conduct and any other aggravating or mitigating factors relevant to culpability.^[31]
[35] Given the nature of the offending, involving possession, making and distribution of material injurious to the public good, the following factors are particularly relevant to an assessment of the gravity of the offending:

• (a) the nature of the publication;
• (b) the volume of the material involved;
• (c) the number of people to whom the material has been distributed;
• (d) the offender’s role in the making or distribution; and
• (e) the harm caused by that offending, which will usually be closely linked to (a), (b) and (c) above.

[36] To these factors we would add, as did Lang J, the purpose of the distribution or making. In offending of this nature we consider any purpose which affects the extent of the harm caused by the objectionable material to also be relevant to the assessment of gravity. For example, if distribution is intended to recruit recipients to a terrorist organisation, that will be a significant aggravating factor. In contrast, if the distribution were intended as a prank, albeit a poorly judged one, that distribution might be viewed less seriously.
[37] It is also relevant, when fixing a starting point, to have regard to the seriousness of the offence as indicated by the maximum penalty, and the principle that (unless circumstances relating to the offender make it inappropriate) the maximum penalty should be imposed for the most serious cases.^[32] Although Mr Holland did not persist with the argument he advanced in the High Court that offending involving child pornography is to be viewed more seriously than other types of material, we record our view there is nothing in the legislation, or the legislative history,^[33] which suggests that Parliament intended there be a hierarchy of objectionable material — possession of child pornography is not, for example, treated as a more serious category of offending than possession of violent material. The sentencing range is the same for each category of material. Quite plainly, and consistent with the general approach to sentencing, each case must be assessed on its own merits. The extent to which the making, possession and distribution of the material is injurious to the public good frames the issues for consideration at sentencing.
[38] Finally we consider that deterrence is an important purpose of sentencing for offending involving objectionable material. Parliament has indicated the seriousness with which it views such offending by increasing the maximum sentence on two occasions in the last 15 years.^[34] It is offending which the Act defines by the injury it does to the public good.^[35]

Application of the approach to this case

Nature of the material

[39] Much of the material is at the extreme end of the scale, depicting the taking of human life in a brutal and cruel fashion. Added to this is the connection of some of the material to the terrorist organisation, which we consider increases the seriousness with which it is to be viewed. It is true that the material is deemed objectionable because it depicts acts of torture, the infliction of extreme violence and extreme cruelty.^[36] But within each category of objectionable material there will be degrees, and we assess this as being of the most serious type of material.
[40] For the Crown, Mr Horsley referred us to sentencing decisions under the Terrorism Act 2006 (UK) for the offence of dissemination of a terrorist publication.^[37] That offence will be committed if the person intends the effect of their conduct to be the provision of assistance in the commission or preparation of terrorist acts, or is reckless as to whether that is the effect of their conduct.
[41] We were not much assisted by these authorities. The elements of the offence are different and, moreover, the cases reveal little more than the application of conventional sentencing principles.
[42] We were also referred to sentencing for offending involving the distribution of objectionable material which describes, depicts or otherwise deals with sexual conduct with children or young persons.^[38] We agree with Lang J that there is little assistance to be gained from the authorities in that area because they are few in number and many pre-date the 2015 amendment to the maximum sentence.^[39] As Lang J said, “a useful body of jurisprudence may evolve over time showing the sentencing trends in child pornography cases decided after the 2015 amendment”,^[40] but at the moment the authorities are of limited assistance.

Volume of material

[43] The totality of the offending involved a considerable volume of material. Although the material distributed comprised only a subset of that, it is clear, as Lang J observed, that the “making” charge involved conduct by which Mr Patel readied himself to distribute further material.^[41]

The offender’s role in the making or distribution

[44] Mr Holland focused in his submissions upon the seriousness of the offending involved in the “making” charge. He said that Lang J erred in treating it as moderately serious offending. He contrasted it to the case of Walsh v R in which Mr Walsh, watching the filming of a sleeping naked child on a live stream, directed a person with the child to move the child’s body for the purpose of Mr Walsh’s sexual gratification. There, a two-year starting point was adopted.^[42] Here, Mr Holland says, Mr Patel has not created the objectionable material or participated in its creation. The Judge should have characterised this offending as being of the least serious kind.
[45] It is true that Mr Patel did not create the objectionable material which was filmed. It was not Mr Patel taking part in the various terrorist acts depicted. If he had, of course, he would be facing more serious charges. However, we accept he was not involved in the filming of the events, or creative work in designing images or graphics associated with the footage or images. While we agree this is not the most serious of the “making” class of offence, we do not accept Mr Holland’s suggestion that it sits at the least serious end of the spectrum for offending of this nature. Mr Patel took considerable time downloading objectionable material to create a compilation which he stored on multiple devices, as Lang J found, for the purpose of future distribution.
[46] As to Mr Holland’s reliance on Walsh v R, we regard the two-year starting point adopted in that case as lenient. We note that Dobson J, who heard an appeal from that sentence, described that starting point as “well within range”.^[43]
[47] In any case we think it artificial to view the “making” charge in isolation, as all of the offending is connected and in particular the making and distribution charges. Because of the nature of the material distributed and the purpose of the distribution, we think that the distribution charges represent the most serious offending and should be treated as the lead offence, although any sentence imposed must of course reflect the totality of the offending.

Number of recipients

[48] As to the number of people exposed to the material, on two occasions Mr Patel distributed it to 52 phone numbers. To this must be added the distribution of material to his associate, as appears from the summary of facts. We also take into account that Mr Patel persisted with the distribution notwithstanding warnings from his telecommunications provider. Mr Patel knew these warnings were generated by complaint suggesting that for some of the recipients, at least, the material was unwelcome.

Purpose of the offending

[49] We accept the Crown’s submission that Mr Patel’s purpose in making and distributing the material was communicating his own support for the terrorist acts depicted, and encouraging that support in others. Although Mr Holland attempted to persuade us otherwise, it is difficult to come to any other conclusion in light of the nature of the material, the extent of its distribution, and the narrative provided by Mr Patel when distributing the two videos by text message, particularly the remark “Qisas is sweet”. We agree with Lang J, however, that there is nothing in the material to suggest Mr Patel was seeking to encourage others to act on that support by carrying out or actively supporting terrorist acts.^[44] The purpose of communicating or encouraging support, even if relatively passive support, nevertheless significantly aggravates that offending.

Harm caused

[50] As to the harm caused by Mr Patel’s offending, we take into account that the material was widely distributed to individuals who did not solicit receipt. Although the first text message linked to a site which did contain a content warning (and which mitigates the offending a little), the second text message did not. This material was distressing and could well have caused emotional harm to those who received it. We also weigh that the distribution of material which appears to glorify terrorist acts is inherently injurious to society. First, it risks, indeed in this case intends, the persuasion of others that such terrorist acts should be supported. Secondly, the distribution of this material risks creating demand for the generation of further material depicting terrorist acts.

Deterrence

[51] We accept Mr Horsley’s submission that the nature of the material, and the purpose of its distribution, calls for a strong deterrent response.

Overall assessment

[52] This then was material at the most serious end of the spectrum in terms of s 3(2)(f) of the Act. It was made, possessed and distributed in considerable volume. It was an aggravating feature of the offending that 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. But especially troubling is that the distribution might have created support for an organisation that promotes and encourages criminal acts or acts of terrorism. Clearly, as Judge Collins and Lang J recognised, the nature of the offending called for a deterrent response.
[53] Although individually each of these offences may not have justified a starting point of five years, when regard is had to the totality of the offending, a starting point of five years was well within the available range. That is less than half of the maximum sentence for making or distributing an objectionable publication. Five years was the starting point settled upon by Judge Collins on the basis of the seriousness of the offending. It was also the sentence imposed by Lang J after uplifting for previous offences (but before considering relevant mitigating factors). We think that it was a starting point properly reached by reference to the offending alone and that the assessment of Judge Collins as to the starting point was correct. This ground of appeal cannot succeed.

Second ground of appeal: did Lang J err in uplifting the sentence starting point by one year in the light of previous offending?

[54] Lang J uplifted his chosen starting point of four years’ imprisonment to reflect Mr Patel’s previous convictions and to reinforce the sentencing principles of deterrence and denunciation, and also to hold him accountable for his actions. It was on that basis that he upheld the sentencing decision of the District Court Judge.
[55] For Mr Patel it was submitted the uplift was too great, when the uplift applied by the Judge was more than the sentence imposed upon Mr Patel for the relevant prior offending.

Mr Patel’s offending history

[56] Mr Patel has previous convictions for intimidating behaviour, threatening to kill and assault with a weapon. These offences were all committed in 2014 and 2015 and the charges of threatening to kill and assault with a weapon resulted in Mr Patel receiving a sentence of 10 months’ imprisonment. He had only recently been released from prison at the time of the offending the subject of the present charges.
[57] Mr Patel’s initial offending (intimidating behaviour) was committed in May 2014. Mr Patel and a group of friends went to an associate’s house and started yelling “Allah Akbar” outside the front door. When the associate answered the door Mr Patel and his friends went on to make further comments, including about Jihad. Mr Patel was sentenced to 60 hours’ community work and ordered to pay $300 emotional harm reparation for this offending.^[45]
[58] We agree with the observation of Lang J that the second set of offending for which Mr Patel received a sentence of 10 months’ imprisonment was particularly troubling. Mr Patel was angered by the victim’s driving. Mr Patel gesticulated at the victim which caused him to pull over. Mr Patel parked on the other side of the road. As he crossed the road he pulled out a Remington Sportsman Series knife. This knife is 11 centimetres long when it is closed and when the blade is opened it is 20 centimetres long. As Mr Patel walked he yelled out “Allahu Akbar” and followed that up by saying “I’m going to kill you, you motherfucker”.
[59] The victim remained in his vehicle with the window up and his driver’s door closed, but not locked. Mr Patel opened the door, holding his knife to the victim’s throat and repeating “Allahu Akbar, I’m going to kill you, you motherfucker”. The victim told Mr Patel he was calling the police, but Mr Patel took his cellphone from him and pulled the victim from the car by his shirt. Fortunately it was at that moment that a patrol car was passing and any further offending was prevented. When sentencing Mr Patel for that offending, Judge Ryan observed the fact no one was hurt because of the police intervention.^[46] She said “you were impulsive, angry and held a knife”.^[47] She was satisfied that in light of his offending record, Mr Patel had a propensity for violence.^[48] She questioned the genuineness of Mr Patel’s apology.^[49] We consider the end sentence of 10 months was lenient given the circumstances of the offending.

Analysis

[60] We agree with Lang J that Mr Patel’s criminal record reinforced the need for the sentence imposed to serve the purposes of deterrence and therefore personal accountability. Mr Patel has previously shown that he will act in a violent manner. Only shortly after release from prison he again reoffended — offending which entailed communicating his support for gross acts of violence committed by others and, in particular, support for acts of terrorism. We are concerned that Mr Patel poses a threat to the community, which underlines the need for personal deterrence and also, in this particular case, a need to protect the community.
[61] However, we accept that an uplift of one year to reflect that earlier offending was too great as it was more than the sentence imposed upon Mr Patel for that offending. Although we do think his prior offending could have easily justified some uplift of up to six months from the five-year starting point to reflect the particular need for personal deterrence, the issue of an increase in sentence was not before us.

Result

[62] To conclude, a starting point of five years’ imprisonment was available for this very serious offending. The sentence imposed after taking into account the guilty plea was not then manifestly excessive. As we have observed, a greater sentence could have been justified, as it would have been available to the sentencing Judge to further uplift the starting point to take into account the need for personal deterrence for Mr Patel and the need for protection of the community given his previous offending.
[63] Leave to appeal is granted but the appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] R v Patel [2016] NZDC 11454 at [25].

^[2] Patel v Police [2016] NZHC 2260 at [52].

^[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.

^[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.

^[7] Section 131A(2)(a).

^[8] Section 124(2)(a).

^[9] R v Patel, above n 1, at [22].

^[10] At [22].

^[11] At [12].

^[12] At [23].

^[13] At [24].

^[14] Patel v Police, above n 2, at [21].

^[15] At [24].

^[16] At [25].

^[17] At [26] and [43].

^[18] At [28].

^[19] At [34].

^[20] At [34].

^[21] At [43].

^[22] At [44].

^[23] At [38].

^[24] At [44].

^[25] At [47].

^[26] At [47].

^[27] At [49].

^[28] At [50].

^[29] At [51].

^[30] At [51].

^[31] See Sentencing Act 2002, ss 8 and 9.

^[32] Sentencing Act, s 8(c).

^[33] For example, when the Films, Videos, and Publications Classification Amendment Act 2005 was passed, the penalties for the offences in the substantive Act were increased. During the legislative process the argument that a higher penalty should be reserved for the most severe offences, namely child pornography, was explicitly considered and rejected: Films, Videos, and Publications Classification Amendment Bill 2003 (91-2) (select committee report) at 8–9.

^[34] See Films, Videos, and Publications Classification Amendment Act 2005; and Films, Videos, and Publications Classification (Objectionable Publications) Amendment Act 2015.

^[35] Films, Videos, and Publications Classification Act, s 3(1).

^[36] Section 3(2).

^[37] Terrorism Act 2006 (UK), s 2. Mr Horsley cited to us R v Gul [2012] EWCA Crim 280, [2012] 1 WLR 3432; R v Khan [2015] EWCA Crim 1341; and R v Rahman [2008] EWCA Crim 1465, [2008] 4 All ER 661.

^[38] See for example Stewart v Department of Internal Affairs [2014] NZHC 2209.

^[39] See Films, Videos, and Publications Classification (Objectionable Publications) Amendment Act 2015.

^[40] Patel v Police, above n 2, at [25].

^[41] At [32].

^[42] Walsh v R [2016] NZHC 2747.

^[43] At [28].

^[44] Patel v Police, above n 2, at [38].

^[45] Police v Patel DC Auckland CRI-2014-004-11455, 16 December 2014 at [9].

^[46] Police v Patel [2015] NZDC 11244 at [7].

^[47] At [31].

^[48] At [20].

^[49] At [21].