Patel v Police [2016] NZHC 2260 (26 September 2016)

Last Updated: 28 September 2016

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 18 and 20 October 2015, Mr Patel sent text messages to 52 associates. The two text messages contained links to internet sites portraying violent acts. This led to the representative charge of distributing objectionable material.

[8] On 14 December 2015, Mr Patel provided an associate with a Lexar USB memory stick onto which he had downloaded 61 videos and the six copies of the magazine. This led to the second charge of distributing objectionable material.

The Judge’s decision

[9] In fixing the starting point, the Judge gained assistance from cases involving the possession and distribution of child pornography. He acknowledged, however, that direct comparison with those cases was not possible. He then said:²

[16]...However because violence or cruelty must be extreme to be objectionable, an attempt to create a spectrum of extreme violence is no part of this sentence. The reason I say that is that in child pornography cases, the courts have created a spectrum because the nature of the pornography does not have to be extreme to become objectionable. Any sort of pornography involving children is objectionable from the outset. But in terms of violence, extreme is extreme and I am not embarking on any further definition or categorisation of degrees of extreme.

[17] However I do accept the broad thrust of the prosecution’s submission that where we are dealing with the callous execution of people and extreme cruelty to real people, in a real situation and where the makers of the publication want people to believe that what is happening is real, meaningful guidance can be taken from the gravest end of child pornography cases. Possession of publications where those publications celebrate the torture and execution of victims who are powerless to resist, which celebrates what makes them objectionable and celebrates the fear such publications are designed to engender, then offending in relation to such publications must be met with deterrent sentences. And your text message of

18 October is capable of no other interpretation than the celebration of revenge where the revenge takes the form of execution.

[10] The Judge considered that the distribution of the video link by way of text message to 52 people on 18 October 2015 was a significant aggravating factor. Mr Patel’s culpability was aggravated further by the fact that he sent a second text message to the same persons providing another video link two days later. He did so notwithstanding the fact that his service provider had contacted him on 19 October to advise him of its concern about the text message he had sent to his associates the previous day.

[11] The Judge took a starting point of four years imprisonment on the charges of making objectionable images and distributing them to an associate. He applied an uplift of one year to reflect the charge of being in possession of objectionable material and distributing a video link on two occasions by way of the text messages sent to his associates.

[12] The Judge then applied a discount of 25 per cent to recognise Mr Patel’s early guilty plea. This produced the end sentence of three years nine months imprisonment.

[13] The Crown had sought the imposition of a minimum period of imprisonment, but the Judge declined to make that order. He said that any risk that Mr Patel presents to the community would need to be assessed by the Parole Board in due course.

Grounds of appeal

[14] On Mr Patel’s behalf, Mr Holland advances several grounds of appeal. First, he submits that the Judge erred by fixing an overall starting point that was too high. He contends that the Judge was led into error by having regard to starting points selected in relation to charges involving the possession and distribution of child pornography. Mr Holland submits that recent amendments to the Act demonstrate that Parliament intends cases involving child pornography to be viewed more seriously than offending of the type to which Mr Patel pleaded guilty. Secondly, Mr Holland submits that the Judge erred in failing to properly analyse the cases relating to child pornography.

[15] Mr Holland submits that had the Judge not erred in these ways, he would have selected a starting point in the region of two years six months to two years nine months imprisonment. Applying a 25 per cent discount to reflect guilty pleas, the appropriate end sentence would be less than the two year threshold required to allow the Judge to consider a sentence of home detention. Mr Holland submits that the Court should quash the sentence of imprisonment and impose a sentence of home detention in its place.

Was the starting point too high?

A hierarchy of offences?

[16] Section 3(2) of the Act deems a publication to be objectionable for the purposes of the Act if it promotes or supports, or tends to promote or support:

(a) The exploitation of children, or young persons, or both, for sexual purposes; or

(b) The use of violence or coercion to compel any person to participate in, or submit to, sexual conduct; or

(c) Sexual conduct with or upon the body of a dead person; or

(d) The use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct; or

(e) Bestiality; or

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

[17] Mr Patel’s offending was exclusively in respect of publications deemed objectionable under s 3(2)(f). Mr Holland’s first submission is that such offending is inherently less serious than that in respect of publications deemed objectionable under s 3(a). He relies largely for this submission on the fact that recent amendments to the Act have been driven by concern about offending involving child pornography.

[18] In 2005 Parliament amended the Act by inserting s 132A, which required the courts to take into account as an aggravating factor the extent to which any objectionable publication supported or promoted the exploitation of children for

sexual purposes. The description or depiction of sexual conduct with or by children and young persons was likewise an aggravating factor, as was the exploitation of the nudity of children and young persons.

[19] Parliament then amended s 124(2) of the Act in 2015 by increasing the maximum penalty for importing, making and distributing an objectionable publication from 10 years imprisonment to 14 years imprisonment. At the same time, Parliament amended the Act by inserting s 132B. The new s 132B created a statutory presumption of imprisonment in cases involving repeat offending involving images that are objectionable because they relate to sexual conduct or exploitative nudity involving children.

[20] The Parliamentary debates in respect of the proposed amendment demonstrate that the increase in maximum penalty was driven principally, if not wholly, by Parliament’s concern about offending that involved child pornography. This was no doubt caused by the number of cases that had come before the courts involving child pornography. Mr Holland submits that the courts should now share Parliament’s concern and treat offending involving child pornography more seriously than offending involving objectionable publications other than child pornography.

[21] I consider this argument is met by the fact that Parliament had the opportunity to single out offending involving child pornography in 2015. It would have been a simple matter for Parliament to have increased the maximum penalty for that type of offending but maintained the existing penalty for offending involving the remaining activities listed in the subsection. Had it done so, there could be no doubt that Parliament intended offending involving child pornography to be viewed more seriously than offending involving publications depicting other activities. By increasing the maximum penalty across the board, however, Parliament has in my view confirmed there is to be no hierarchy of offending within the section.

To what extent are the starting points taken in child pornography cases of assistance in the present case?

[22] Although the Judge accepted that the offending in the present case was not directly comparable with offending involving child pornography, he nevertheless

drew guidance from the starting points selected in child pornography cases at the most serious end of the scale. Mr Holland contends the Judge adopted that approach without properly analysing the cases on which he purported to rely.

[23] I consider there are some inherent difficulties in attempting to draw meaningful comparisons between cases involving publications that depict extreme violence and cases involving child pornography. Many of the existing authorities have drawn on the United Kingdom Sentencing Council Guidelines. These fix starting points having regard to different characteristics of sexual offending. The exercise is therefore influenced significantly by the extent to which the publications in question are objectionable, a factor that is likely to be of far less significance in cases necessarily involving violence at the top end of the scale.

[24] On the other hand, child pornography involves human beings inflicting serious harm on other human beings. The present case also has that feature because it involves images of human beings torturing and killing other human beings, often in extremely brutal ways. The public depiction of child pornography and extreme violence also causes immense distress to all those associated with the victims. The two forms of offending therefore have some similarities, and the starting points adopted in cases involving child pornography may provide some guidance in relation to offending involving the depiction of extreme violence.

[25] The authorities relating to child pornography that were cited by counsel in the present case show that in serious cases a starting point of between 18 months and three years six months imprisonment has been selected.³ However, those cases were all decided prior to the 2015 amendment, and future cases in that field will need to take the increased maximum penalty into account. A useful body of jurisprudence may evolve over time showing the sentencing trends in child pornography cases

decided after the 2015 amendment. At present, however, the authorities in that field

_{are of limited assistance.}

³ Stewart v Department of Internal Affairs [2014] NZHC 2209; Barnes v Police [2013] NZHC

3510; S v R [2011] NZCA 324; Williams v Police [2015] NZHC 70; NN v Police [2014] NZHC

2355.

[26] Several factors will be relevant to this issue in cases involving publications depicting extreme violence. They include the nature of the objectionable material, the manner and extent to which Mr Patel made and kept copies of the material found on the internet and the circumstances in which he distributed it to others.

The nature of the objectionable material

[27] Mr Patel’s guilty plea constitutes an acknowledgement that the images he downloaded from the internet depicted extreme violence. The summary of facts records that the files seek to provide propaganda and support for ISIS by depicting scenes containing “graphic violence and cruelty”. They show numerous persons being shot, beheaded, maimed, run over by tanks and burned alive. Some of the clips depict mass executions in which up to 14 persons are shot and killed one after the other whilst kneeling on the ground. There are also images of persons having their limbs amputated under Sharia law by way of punishment for offences they have committed. In addition, the summary records the video clips show graphic scenes of war violence showing dismembered and mutilated bodies.

[28] Although this factor is not likely to be of significant weight given the fact that an objectionable publication must by definition depict extreme violence, I consider the overall nature of the publications falls within the mid-range of publications of its type.

The manner and extent to which Mr Patel downloaded and copied material from the internet

[29] The possession charges are based on the fact that Mr Patel downloaded 72 objectionable video clips from the internet as well as the six magazines. In doing so he did not have any involvement in creating the images and he did not subject them to any form of editing. Rather, he downloaded the images and retained them on his computer in an unaltered state. As the Judge observed, Mr Patel cannot say in answer to the charge that anybody could access these images on the internet. The overall culpability of his actions is, however, significantly reduced by the fact that he gained them from a publicly accessible source, and did not seek to edit or alter them in any way for his own purposes.

[30] Although the culpability of the offending is obviously increased by the fact that Mr Patel stored a total of 78 objectionable publications on his computer, I would nevertheless assess his overall culpability on the possession charge as being towards the lower end of the scale. Standing alone, and given that it has a lesser maximum sentence of ten years imprisonment, conviction on that charge might result in a sentence of community work or home detention for an offender with no previous convictions. Mr Patel does not fall into that category because of his relevant previous convictions

[31] The representative charge of making copies of the objectionable publications is more serious because it occurred on several different occasions. Mr Patel downloaded 17 video files and the six copies of the magazine from his computer to a DVD disc and a Strontium USB. He also downloaded 61 video files and six copies of the magazine onto two further USB devices. In addition, he downloaded seven video files to another laser USB device. Finally, he downloaded 19 video files to an iPod device.

[32] The increased culpability in relation to this aspect of the offending arises out of the fact that by making copies Mr Patel placed himself in a position to distribute the objectionable material to others in a manner that made it difficult for his actions to be detected. As a result, he appreciably increased the risk that the objectionable publications would be more widely distributed.

[33] Mr Patel’s explanation for this aspect of his offending is that he created copies of the files because he did not want to run the risk of losing them through some malfunction in his computer. I find that to be an inadequate explanation given the number of copies that Mr Patel made on different electronic devices.

[34] Given the number of publications transferred to six different storage devices I would assess this aspect of Mr Patel’s offending as being moderate. On its own, and putting aside Mr Patel’s previous convictions, it would probably justify a starting point of around two years imprisonment.

Distribution of objectionable material to others

[35] Had the distribution of the USB device to his associate been a single or “one- off” incident, the culpability of this aspect of Mr Patel’s offending would have been towards the lower end of the scale. This is notwithstanding the fact that Mr Patel showed a degree of persistence in his dealings with his associate. Mr Patel first provided him with a series of video clips that he had downloaded from his laptop computer to a DVD disc. The disc was apparently not compatible with his associate’s computer, and Mr Patel then gave his associate a USB device onto which he had transferred the objectionable files.

[36] The distributions that Mr Patel made by means of the two text messages increase his culpability considerably. The summary of facts describes what occurred in relation to the first text message as follows:

On 18 October 2015 between 6:09pm and 6:15pm the defendant Patel sent a two part text message from his cellular phone, number 021 1561043 to the users of 52 separate cellular phone numbers.

The message read:

‘Allahuakbar how times change check ot this video showing how the

Amerikan invaders and shiah forces treated our brave muhjahideen

many years ago in Falluj.’ The second part of the message read: ‘ah now how we return the favour Qisas is sweet www.liveleak.com/view?i=f6d 1393004956’

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

The second part of the message contained a direct link to the video sharing internet website “Liveleak” which contains videos that depict extreme violence and torture.

The file path forwarded by the defendant (www.liveleak.com/view?i=f6d 1393004956) specifically led to a webpage which opens with a warning screen that reads:

‘Warning – Item Islamist execute Iraqi army soldiers: Al Fallujah might contain content that is not suitable for all ages.’ The warning screen went on to say: ‘by clicking on CONTINUE you confirm that you are 18 years and over.’

By clicking on the CONTINUE word a 5 minute and 34 second video is loaded. There is a “Liveleak” logo watermarked into the top left of the screen. A computer generated ISIS flag appears underneath the “LiveLeak” logo.

The video commences by showing prisoners in military uniform being driven around in utility vehicles. There are Arabic “nasheeds” (chants) playing in the background.

Prisoners are then pictured being spoken to in what appears to be Arabic, the content of what is said is not known. The video then cuts away to show 14 men in military uniform kneeling with their hands bound behind their backs. They are facing away from the camera. At least two men then proceed down the line shooting each man in the back of the head with a pistol and rifle. Each man slumps forward to the ground after being shot.

The video cuts away to show another scene, this time three different men are kneeling with their hands bound behind their backs. They are facing away from the camera. They are then shot in the back of the head.

The video cuts away again to show another scene, this time two different men are kneeling with their hands bound behind their backs. They are facing away from the camera. They are then shot in the back of the head.

After being shot, each person appears lifeless. In some cases after being shot, each person appears lifeless. In some cases blood is pooled on the ground around their heads. The video ends with the screen filled with the ISIS flag.

[37] There are three aggravating factors about this aspect of Mr Patel’s offending. The first and second are that Mr Patel sent the text message to a large number of recipients on an unsolicited basis. Thirdly, the English translation of the words “Qisas is sweet” is to the effect of “Revenge is sweet”. By using those words Mr Patel made it clear that he fully endorsed the acts depicted in the video clip.

[38] In mitigation, however, the text message was not distributed to the world at large as would be the case if the video clip was re-posted on the internet. In addition, recipients of the text message did not automatically view the objectionable publication. Rather, they had to decide for themselves whether to access the link. Furthermore, the warning that accompanied the video clip provided recipients with advice regarding the nature of the acts shown in the video clip. This enabled them to make their decisions on an informed basis. In addition, the comment that Mr Patel made could not realistically be interpreted as an attempt to recruit the recipients of the text message to active support for the cause of ISIS or to strike fear into the hearts of persons who did not support the cause espoused by that group.

[39] On 19 October 2015 Vodafone New Zealand Ltd sent Mr Patel a text message warning him about the content of the text message he had sent to his associates the previous day.

[40] Mr Patel ignored the warning. On the next day he sent a further text message to the same persons. The summary of facts describes this in the following way:

The message that was sent contained a link to a different website also containing videos that depict extreme violence and torture. The message read:

‘Latest release from the province of Barqah, libya https://archive.org/details/HadNew and the province of Khayr, Syria https://archive.org/details/MAQKHAY’

The file path (https://archive.org/details/HadNew) forwarded in this message led specifically to a video in which no warning screen appears.

The page opens to a four minute and four second video. A montage of video images initially plays which depicts several people lying face down in the process of being beheaded by men using knives.

The main part of the video then plays. It shows a blindfolded male victim wearing an orange jumpsuit kneeling in a desert scene.

A computer generated ISIS flag appears in the top right of the screen. Standing next to the victim is a masked male clad in black. The masked male beheads the victim using a knife.

The video continues with a second male victim wearing an orange jumpsuit being brought out to the scene of the beheading by a masked male wearing military fatigues. The first victim’s body is still present. The masked male then shoots the second victim in the head. From the graphic images depicted in the video it is clear both victims have been murdered.

[41] This aspect of Mr Patel’s offending was again aggravated by the fact that the text message was sent to a large number of persons on an unsolicited basis. It also occurred after he had received the warning the previous day from his service provider. That should have alerted Mr Patel to the fact that the text message he had sent on 18 October was not regarded as acceptable. Mr Patel did not, however, make any comment in the text message to suggest that he endorsed what was shown on the second video clip.

[42] The same mitigating factors apply to the second text message other than the fact that the second video clip did not contain a warning or explanation as to what

the video clip depicted. Given the content of the video clip that had accompanied the first text message on 18 October, however, it is likely that recipients of the second text message would have had a reasonable idea of what to expect if they elected to access the link.

[43] One of the most important factors in assessing Mr Patel’s culpability in relation to the distribution charges is the purpose for which Mr Patel distributed the material. The only realistic conclusion can be that Mr Patel sought to make a considerable number of his associates aware not only of the existence of the two video clips but also of the fact that he supported the acts depicted in them. Mr Patel’s act can also be viewed as an attempt to persuade the recipients of the material that they should join him in showing support for the activities of a group that this country has deemed to be a terrorist organisation. Whether or not Mr Patel achieved his aim is obviously unknown, but that must have been his underlying purpose.

[44] This factor would have placed Mr Patel’s offending in a serious category but for the fact that it only involved two video clips and was not designed to persuade recipients to provide active and/or violent support for the group in whose name the acts were carried out. I therefore assess this aspect of his conduct as being moderate.

Overall assessment

[45] In summary, I have assessed the objectionable nature of the publications as being in the mid-range. I have assessed Mr Patel’s culpability in relation to being in possession of the material as being at the lower end of the scale, in relation to making of copies of the publications as being moderate and in relation to distributing the images as also being moderate. I now need to consider whether the Judge’s starting point of five years imprisonment was within the available range having regard to those conclusions and in light of the maximum available sentence.

[46] Had Mr Patel been charged with possession alone, the penalty may have been a sentence of community work or home detention. This would have reflected the fact that the offending did not indicate Mr Patel was seeking to distribute the material further. The fact that he made copies of some of the material aggravated the offending significantly because it created the risk, and indeed in my view the

likelihood, that he would also distribute it. That in turn creates the risk that others will be influenced by it in a manner adverse to the interests of the community. As a result, the likely starting point would be a sentence of imprisonment of around two years. The issue, therefore, is the extent to which the fact that Mr Patel distributed some of the material to his associate and to the text message recipients should increase the sentence of imprisonment selected as a starting point.

[47] The fact that Mr Patel wished to provide and create support for activities of the type shown in the images meant that the need to provide a deterrent response was to the forefront. I do not consider, however, that Mr Patel’s overall conduct was sufficiently serious to justify the five year starting point selected by the Judge. Overall, I consider it warranted an overall starting point of no more than four years imprisonment. A starting point at that level is approximately double the starting point appropriate for the charge of making objectionable publications. It is also approximately 25 per cent of the available maximum sentence. I consider this reflects the overall culpability of Mr Patel’s offending as I have assessed it to be but without taking into account aggravating and mitigating factors personal to Mr Patel.

Was the sentence manifestly excessive?

[48] My conclusion regarding the starting point does not mean that the end sentence was manifestly excessive. The Judge did not refer to Mr Patel’s previous convictions but I consider them to be a significant aggravating factor. Mr Patel has previous convictions for intimidating behaviour, threatening to kill and assault with a weapon. Those offences were all committed in 2014 and 2015, and the charges of threatening to kill and assault with a weapon resulted in him receiving a sentence of

ten months imprisonment.⁴ The latter charge is particularly concerning, because it

involved Mr Patel holding a large knife to the throat of another person whilst yelling an Islamic remark. Mr Patel also threatened to kill the victim. This offending appears to have occurred as part of a “road rage” incident in which Mr Patel became

_{angry at the actions of the victim.}

⁴ New Zealand Police v Patel [2015] NZDC 11244.

[49] The present offending is rendered significantly more serious by the fact that Mr Patel has acted in a violent way very recently, and has already served a sentence of imprisonment for that offending. It demonstrates that Mr Patel has not taken heed of the sentences imposed upon him, and suggests he still considers the use of violence against fellow human beings to be acceptable. This is echoed in the pre- sentence report, which assessed Mr Patel as being at high risk of re-offending given his current beliefs. This is notwithstanding the fact that he completed a counselling course with a psychotherapist as part of his release conditions following his previous prison sentence. He was considered at that time to remain “stuck in his thinking”.

[50] Another matter of concern is that Mr Patel seems to have little insight into his offending. The pre-sentence report states that he views depictions of beheadings as “a way of causing terror to the enemy”, and describes the video clips he downloaded as being “a medium of knowledge” that he likes to share with others because he does not believe American foreign policy to be just.

[51] These factors persuade me that the starting point of four years imprisonment needed to be increased to reflect his previous convictions and to further reinforce the sentencing principles of deterrence, denunciation and the need to hold Mr Patel accountable for his actions. An uplift of one year to reflect those factors would be appropriate. I therefore conclude the sentence of five years imprisonment before taking into account mitigating factors was within the available range.

Result

_{[52] The appeal against sentence is dismissed.}

Lang J

Solicitors:

Crown Solicitor, Auckland