A man who shared objectionable videos of child sex abuse, bestiality, and the Christchurch mosque shootings has offered to pay a charity $10,000 if he is granted a discharge without conviction.
Taj Karan Sandhu, 21, a manager at a food outlet, appeared last week in Gisborne District Court, having pleaded guilty to representative charges of possessing objectionable publications — five images and 30 videos — and knowingly redistributing seven of them.
Sandhu applied for a discharge without conviction and offered to pay a charity $10,000 if it was granted.
Appearing with senior counsel, lawyer Daniel Berry's submissions centred on Sandhu's youth — 18 at the time of the offending — and the high likelihood of him being deported.
The offered payment was not an attempt to buy "cheque book justice", but akin to a fine, defence counsel said. It would go some way to marking the court's condemnation of the offending and would be the punitive aspect missing if the discharge was granted.
Sandhu initially offered to pay $500 but defence counsel encouraged him to up that figure to $10,000, which was not insignificant for someone of Sandhu's income level. The money was already in the legal firm's holding account, ready to be paid.
For police, Crown counsel Brenna McKenzie said the offending needed to be met by a custodial sentence.
The Crown wanted to avoid the perception that a financial contribution could influence the judicial process.
Both parties agreed the offending was serious and warranted a sentence starting point of between two-and-a-half to three years. A pre-sentence report recommended imprisonment or home detention.
Defence counsel said this was not premeditated offending.
Sandhu did not actively seek out the material. He received it over the course of a year through a group on WhatsApp.
Images and videos received by someone in WhatsApp automatically uploaded to the gallery on the person's phone. However, it was accepted Sandhu did not delete the material.
His offending came to light when a single child sex abuse video he sent to a Gisborne associate was found by police in a search of that person's phone for an unrelated matter.
Sandhu was foolish to comply with requests from others to on-share videos — two of child sex abuse, two of bestiality and three of the Christchurch mosque shootings.
Sandhu claimed he shared the mosque shootings videos to a cousin overseas who wanted to know what happened in Christchurch.
There did not seem to be any hatred involved in the offending, defence counsel said.
Sandhu came to New Zealand from India when he was 15. He owned a house here with relatives who relied on his contribution to their mortgage and could not continue the payments if he was deported.
Sandhu and his family would be isolated from each other if he was returned to India.
If this application failed, Sandhu would have to go before the Immigration and Protection Tribunal, to establish a higher threshold of exceptional circumstances of a humanitarian nature to oppose deportation, defence counsel said.
It was not known whether Sandhu must disclose to Immigration New Zealand that he had been subject to court proceedings or whether that authority could access police records of proceedings.
Defence counsel believed that out of fairness, police would only divulge proceedings where there was a conviction.
Sandhu was genuinely remorseful. He spoke to police before instructing counsel, expressing sorrow even then for the victims, defence counsel said.
He had no criminal history, was hard working, helped look after his mother and was described as honest and helpful.
A cultural report detailed the hardship Sandhu faced in India, his minimal education and the absence of a father figure, which could explain his lack of moral compass in this offending, defence counsel said.
McKenzie said a discharge without conviction in relation to immigration and travel issues was not impossible, but was not warranted for Sandhu.
Although police acknowledged deportation was a possible consequence for Sandhu, it was not (as per the legal test) out of all proportion to the gravity of his offending, which police viewed as moderately serious.
The seriousness of such offences was evident in the maximum penalties available, McKenzie said.
The distribution charge is punishable by up to 14 years' imprisonment. The possession charge carries a maximum 10-year prison term or a fine of up to $50,000.
The mosque shootings were considered by courts to be at the high end of extreme violence and cruelty, McKenzie said.
The court should not pre-empt, intervene or deny the immigration authority the discretion to consider itself whether Sandhu should be liable for deportation. This offending was long-term — not a one-off incident in which Sandhu simply received a video and clicked on it. Sandhu made no effort to remove himself from the WhatsApp group.
His distribution of the material elevated the offending. Although he said he shared the mosque shooting and child sex abuse videos at the request of others, that was no justification for serious crimes — crimes that involved many victims.
McKenzie said police accepted youth was a relevant factor, but it did not warrant a discharge without conviction for Sandhu, and could be reflected in a discount provided and the type of sentence he received.
The Crown accepted home detention might be appropriate but that should not have a bearing on the issue of conviction, McKenzie said.
Judge Turitea Bolstad reserved her decision.