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New Zealand: Two Men Sentenced for Possession of ISIS Material

(June 24, 2016) On June 23, 2016, in two separate cases, New Zealand’s Auckland District Court sentenced two men for offenses that included possession of videos produced by the Islamic State of Iraq and the Levant (ISIL, also referred to as ISIS).  The cases were the first of this kind in the country.  The charges against the men included offenses under the Films, Videos and Publications Classification Act 1993, which are often used to prosecute people in relation to child pornography.  (Kelly Dennett, Men Sentenced for Islamic State Propaganda, STUFF.CO.NZ (June 23, 2016); Men Sentenced for Islamic State Material, RNZ (June 23, 2016).)

Under the Act, it is an offense to possess an “objectionable” publication.  If a person is found to know or have reasonable cause to believe that the publication is objectionable, he or she may be sentenced to up to ten years of imprisonment or be ordered to pay a fine of up to NZ$50,000 (about US$35,750).  (Films, Videos and Publications Classification Act 1993, s 131A, New Zealand Legislation website.)  A publication is considered 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.”  (Id. s 3(1).)  In determining whether or not a publication is objectionable, the court must give particular weight to certain factors, including whether the publication depicts “acts of torture, the infliction of serious physical harm, or acts of significant cruelty” or “promotes or encourages criminal acts or acts of terrorism.”  (Id. s 3(3)(a)(i) & 3(3)(d).)

The Act also contains offenses related to making, copying, and distributing objectionable publications.  (Id. ss 122-124.)

Imran Patel

In one of the cases, Imran Patel, a 26-year-old Auckland man, was sentenced to three years and nine months in prison after pleading guilty to making, distributing, and possessing videos depicting violence perpetuated by ISIS.

In October 2015, Patel sent text messages containing links to an ISIS beheading video to 52 people.  His network provider sent him a text message cautioning him about the content, but he proceeded to send a second message with a similar video to the same people.  The network provider subsequently barred his number from sending further messages.  (Dennett, supra.)  In December 2015, Patel’s home was searched, and “police discovered a laptop containing 62 objectionable videos showing extreme violence or cruelty.”  (Id.)  The videos, along with copies of an ISIS-endorsed magazine, had been copied to various other devices, and some had been shared with a friend using a USB flash drive.  (Id.)

The judge in the case found that the copying of the material showed Patel had plans to distribute it.  The judge said ”[t]he violence depicted in these videos and images may be in places some distance from New Zealand but as one of many District Court judges . . . we deal on a daily basis with the huge harm that violence causes in the lives of New Zealanders,” and therefore that “[t]he glorification and celebration of violence at such a grotesque level is a matter of serious concern for the courts and must rightly be the subject of deterrence.”  (Man Sentenced over “Terrorist Material, NZ HERALD (June 23, 2016).)  The judge also said that he said he “wasn’t sentencing Patel based on any religious or political beliefs he may have or any likelihood that he would carry out extreme violence.”  (Dennett, supra.)  The prosecutor argued for a sentence of five years of imprisonment, while Patel’s defense counsel asked for two or three years of imprisonment.  (Id.)

Niroshan Nawarajan

In the second case, Niroshan Nawarajan, a 26-year-old man, was sentenced by the same judge to five months of home detention for offenses that included possession of objectionable material, aggravated assault, resisting arrest, being found in an enclosed yard, and possession of offensive weapons.  The charges related to three separate incidents in Auckland and Christchurch.  (Id.)

In 2015, Nawarajan was “caught on an industrial site in Christchurch without permission, claiming he was looking for his cat.”  (Id.)  He was also later apprehended with two knives and a hatchet.  Then, in January 2016, while on bail for the Christchurch offenses, Nawarajan entered the United States Consulate building in Auckland and asked if the building was bomb proof.  The building went into lockdown, and he resisted arrest, attempting to punch and kick officers, and used “racist terms.”  (Id.)  Nawarajan was wearing an ISIS T-shirt and while being searched at the police station he was found to be in possession of a hard drive containing “numerous videos showing people being executed or having their limbs cut off.”  (Id.)

Nawarajan has been held in custody since being arrested in January.  Under New Zealand sentencing law, people sentenced to less than two years of imprisonment can be eligible for home detention.  (Id.)  In addition to the five months of home detention, Nawarajan was ordered by the judge to undergo counseling for drug and alcohol abuse.  (Men Sentenced for Islamic State Material, supra.)