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Five Notepad docs [2020] NZFLBR 2 (29 May 2020)

Last Updated: 23 January 2021

INTRODUCTION

1. The following members of the Board met by Zoom meeting under COVID-19 Alert 4 lockdown on 27 March 2020 to consider this application for review:
   

Ms R. Schmidt-McCleave (President) Mr N. Dunlop (Vice-President)

Dr T. Brown Ms S. Gill Dr G. Schott Ms S. Rowe

2. The publications which are the subject of the review consist of five documents that were found by Police on the owner’s computer. The publications are titled:
   
   1. JANUARY 20191
   2. Things i want to do before WRATH DAY
   100. Dreams
   4. things I hate
   5. FINAL PLAN
      
3. Each of the publications will be described in more detail below when each is considered. To summarise, the publications consisted of five separate “Notepad” text files, reportedly found by the Applicant on the computer belonging to a New Zealander teenager (the Owner), in the course of the Applicant executing a search warrant for other matters. The Owner has also been confirmed as the creator of the publications. As a whole, the publications detail the Owner’s thoughts on various groups he hates, and describe plans for both a sexual assault and murder of a young girl at a nature reserve, as well as an attack in the form of a mass shooting at the Owner’s school.
   

1 The full name of the 1st publication contains reference to the name of a camping ground which might identify the Owner of the publications (who, it is noted, has District Court name suppression orders in place). The Board has therefore acceded to the Owner’s request to have that publication referred to only by the title “January 2019”.

4. Specified persons dissatisfied with any decision of the Classification Office with respect to the classification of any publication are entitled, on application, to have the publication reviewed by the Board.2 The five publications were submitted to the Classification Office on behalf of the Commissioner of Police under Section 13 (1) (ab) of the Films, Videos, and Publications Classification Act 1993 (The Act). The Classification Office received the publications on 16 October 2019 and classified them as objectionable on 12 December 2019. The Police initially submitted 74 text files as part of the application but subsequently made it clear that they only wanted 5 files classified relating to charges the Owner was facing. The additional material was disregarded by the Classification Office and has not been seen by this Board.
   
5. The Board was required to conduct a review as soon as possible, to examine the publications, and to determine their classification.3 There are three possible classifications:
   
   1. Unrestricted
   2. Objectionable, or
   100. Objectionable except in one or more specified circumstances.4
        
6. The question of whether a publication is objectionable is a matter for the expert judgement of the Board and evidence as to, or proof of any of the matters the Board is required to consider is not essential in its determination.5
   
7. The Police as the Applicant have a right to make submissions to the Board.6 Submissions were received from the Police through their counsel. The Board also has the power to invite submissions.7 It invited submissions from the Classification Office and from the Owner of the publications. Submissions were
   

2 Sections 47(1) and 52(3)

3 Section 52

4 Sections 23(2) and 55(a)

5 Section 4

6 Section 53(1)

7 Section 54(1)

received from the Classification Office and counsel for the Owner. Counsel for both the Applicant and the Owner also provided supplemental submissions. All submissions provided were considered carefully by the Board.

8. The Board did not consider it necessary to seek or invite other submissions, or to hold an oral hearing, obtain information, consult with others, or make inquiries. The Board was readily able to classify the publications by reading them and discussing them.
   

KEY LEGAL CONSIDERATIONS

9. Key legislative provisions referred to in this decision are set out in the Schedule hereto.
   
10. The Board is first required to consider, in terms of section 3(1) of the Act, whether the publication describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty or violence. If the consideration results in a negative answer, then the Board must then classify the publication as unrestricted.8
    
11. If the section 3(1) consideration just referred to results in an affirmative answer, then the next consideration is whether the publication is likely to be injurious to the public good.9
    
12. This then requires the Board to consider whether the publication ought to be deemed objectionable under section 3(2). This provision has been interpreted by the Court of Appeal,10 which emphasised the high threshold to be overcome for
    

8 Section 3(1). In Living Word Distributors The Human Rights Action Group (Wellington) [2000] NZCA 179; [2000] 3 NZLR 570, the Court of Appeal described section 3(1) of the Act as a “subject matter gateway” to being found to be objectional, in that if a publication does not describe, depict, express, or otherwise deal with matters such as sex, horror, crime, cruelty or violence it cannot be classified as objectionable. Once a publication makes it through the subject matter gateway then the Board must consider whether the subject matter is dealt with in such a manner that the availability of the publication is likely to be injurious to the public good.

9 Ibid.

10 The relevant decisions of the Court of Appeal are Moonen v The Film and Literature Review [1999] NZCA 329; [2000] 2 NZLR 9 (Moonen 1) and Moonen v Film and Literature Board of Review [2002] NZCA 69; [2002] 2 NZLR 754 (Moonen 2). In both Moonen decisions, the Court of Appeal espoused the importance of the New Zealand Bill of Rights Act 1990 (BORA) and the fact that the Board must be mindful that, in applying the Act, it must act consistently with BORA. Section 14 of BORA states that everyone has “the right to freedom of

the provision to apply, citing the importance of freedom of expression. The Court of Appeal emphasised that description and depiction of a prohibited activity do not of themselves necessarily amount to the promotion of or support of that activity.

13. If the Board decides that it must deem the publication to be objectionable for the purposes of the Act, then it need not consider any further. It must classify the publication as objectionable.
    
14. If the Board decides that the publication is not deemed by the Act to be objectionable, then it must determine whether the publication is objectionable or should be given one of the other two possible classifications (unrestricted, or objectionable except in the specified circumstances).
    
15. When making a determination as to whether the publication is objectionable, the Board must give particular weight to the matters set out in section 3(3) and must consider the matters set out in section 3(4).
    

SUBMISSIONS

16. The submissions of each party as they relate to the individual publications themselves are discussed as required in the analysis section below. Summarised here are the submissions of each party on the overall task the Board is required to undertake on this review.
    

expression, including the freedom to seek, receive, and impart information and opinions of any kind and any form.” Under section 5 BORA this freedom is subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Further, Section 6 of BORA provides that “[wherever]an enactment can be given a meaning that is consistent with the rights and freedoms contained [in BORA], that meaning shall be referred to any other meanings”. In Moonen 1 the Court of Appeal made the following statement which the Board recognises is key to its consideration of the section 3(2) “deeming” provision for objectionability [at 29]:

“The concepts of promotion and support are concerned with the effect of the publication, not with the purpose or the intent of the person who creates or possesses it. The concepts denote an effect which advocates or encourages the prohibited activity, to borrow the words of Rowles J of the British Columbia Court of Appeal in an allied context in R v Sharpe (1999) 136 CCC 3d 97 at para 184. Description and depiction (being the words used in s 3(3)(a) of the Act) of a prohibited activity do not of themselves necessarily amount to promotion of or support for that activity.

There must be something about the way the prohibited activity is described, depicted or otherwise dealt with, which can fairly be said to have the effect of promoting or supporting that activity.”

Police (Applicant) submissions

17. The Applicant began by submitting that, given the way in which counsel for the Owner had previously urged the Classification Office to approach the publications as private diaries, musings, and fantasies and the likelihood that the Board would be urged to view them in the same way, it was necessary to set out some background to the review request. The Applicant advised that, having received information from members of the public about disturbing postings made by the Owner on social media sites, the Police obtained and executed a search warrant at the Owner’s address on 22 January 2019 when the Owner was aged 17.
    
18. There the Police found homemade explosive devices, a Cult AR15 military style semi-automatic rifle and a shotgun which had been modified with a pistol grip. They also found a variety of other military style equipment. On seizing the Owner’s computer, they found a folder entitled WRATH, containing 74 text file documents, including the five publications the subject of this review. The Owner was then charged with a number of offences. The Applicant also provided the Board with the sentencing indication on the Owner from the District Court Judge, the Police Summary of Facts, and an additional document created by the Owner titled ‘Note to Investigator’. This extraneous material was not made available to the Classification Office when it classified the publications.
    
19. Counsel for the Owner in his submissions objected to the Board being provided with this extraneous material. While the Board did have regard to the extraneous material (as it is entitled to do under section 4(2) of the Act), the Board confirms that it considered the publications on their face, and with the knowledge of the circumstances in which they were found, and the extraneous material provided did not change in any way the decision of the Board (as will be seen in the Board’s analysis below).
    
20. In summary, in relation to the task the Board must undertake, the Applicant submitted that:

1. Even if the publications were to be viewed as being purely for the Owner’s own reference, that does not render them exempt from being objectionable.
   
   2. The Court of Appeal in Moonen 1 made it clear that the censorship of a publication recording a person’s thoughts or opinions does not amount to censorship of thought. The Act is concerned with publications which are not thoughts in themselves, but rather their tangible manifestation.
      
   100. A publication can be objectionable, even if it is never to be disseminated beyond its creator (e.g. Moonen 1, R v Spark11).
        
   4. Defining objectionability in terms of the author’s intention to disseminate the material or not could be problematic. An author who records his or her thoughts, opinions or musings, for the time being for his or her own reference, could at any point have a change of heart and decide to disseminate them.
      
   5. In relation to publications which are not deemed objectionable under section 3(2), the Act does not even ascribe particular importance under section 3(3) to the persons to whom the publication is intended or likely to be made available. As a consideration that is one of the matters which is given lesser importance under section 3(4).
      
   6. In any event, it is not accepted by the Applicant that the publications under consideration are simply musings or fantasies written for the creator’s own reference and not intended to be available to anybody. It was anticipated by the Owner that the publications would be found by investigators and the publications amount to a record of the Owner’s reasons and motivations for his actions, which include his hatred of particular groups as well as individual people. In that context, they cannot be seen as mere musings recorded for his own reference.
      

11 R v Spark [2009] NZCA 345

7. In terms of section 23 of the Act, there is no need to make the submissions available to mental health professionals dealing with the Owner’s assessment or treatment. (The Classifications Office submitted this would be reasonable and demonstrably justified). He has been extensively assessed over a lengthy period by a series of professionals who have had access to the publications prior to the classification decision. He is subject to ongoing treatment as part of his sentence of intensive supervision. The Owner has already incurred a number of criminal convictions as a result of the Police search of his room, so a classification of objectionable will not operate to unduly criminalise a teenager who would otherwise be free of convictions.
   

21. In supplemental submissions filed after the Applicant had received the Owner’s submissions, and those of the Classification Office, the Applicant said (in summary and relevantly, given the Board’s indication that it has considered but not taken into account the sentencing notes and other extraneous material filed by the Applicant):
    
    1. The Canadian case of R v Sharpe12 relied upon by the Owner is not only not binding in New Zealand, it is also inconsistent with New Zealand authority. In Moonen 1 the Court of Appeal explained the distinction between thoughts and publications. Publications are not thoughts in themselves, but rather their tangible manifestation. A publication may be objectionable even if it is available only to its creator. The Court did not hold that a “private diary” exception exists at New Zealand law.
       
    2. The Owner’s position is also inconsistent with the Court of Appeal’s comments in Spark that the fact that a publication may be intended for private use does not prevent it from being injurious to the public good. The publication need only be something likely to be injurious to the public good, rather than a publication that has in fact been introduced to
       

12 R v Sharpe 2001 SCC2

the general public and caused harm. The elements of the offence do not require distribution, that being an entirely separate offence.

100. Acceptance of the Owner’s argument would mean that a publication is not objectionable unless there is evidence of actual or intended dissemination. Further, a publication could commence existence as a non-objectionable private diary or story but then become objectionable if the author decides to disseminate it, or perhaps even considers disseminating it.
     

4. Classification as objectionable will not necessarily mean that those treating the Owner as a result of his sentence will be denied access to the publications.
   

Owner Submissions

22. Counsel for the Owner submitted that:13
    
    1. The case of Spark referred to by the Applicant is irrelevant to the Board’s task. Although the Court of Appeal traversed the topic of classification in that decision, their observations were simply a repeat of the statutory reality that it is for the Classification Office and the Board to determine such matters.
       
    2. Because “publication” has a special meaning under the Act and covers everything tangible except thoughts, even if purely electronic, the safety valve is in the definition of “objectionable.” Section 23 provides a limited use exception that where something on its facts may meet the concept of objectionable, if its dissemination can be limited to a certain group, it can nevertheless not be objectionable if dissemination can be confined in
       

13 The “suppression” point in the Owner’s submissions, as well as that relating to provision by the Applicant of certain extra material, is dealt with in the Board’s decision above and is not specifically addressed again here.

that way. That section is a valuable tool for the Board in the whole process.

100. Accepting that the description in the Owner’s writing does deal with sex, horror, crime, cruelty or violence, the founding of the objectionable classification must be that the availability of the publications is likely to be injurious to the public good. That immediately raises the question of musings written for one’s own consumption and not intended to be available to anybody. If they are not “available”, the question is how they can be injurious to the public good.
     

4. The Supreme Court of Canada in the Sharpe case (ibid), a persuasive authority in New Zealand, recognised that to ban the possession of private musings falls “perilously close to criminalising the mere articulation of thought.”14 The Supreme Court, while upholding the power of Parliament and the Courts to criminalise pornography, carved out two exceptions for self-created expressive material intended for one’s own use and private recordings of lawful sexual activity.
   
5. Adolescents reach their sexual and other identities via a variety of means some of which are gross and offensive to adults but are entirely likely, in the vast majority of cases, to self-correct by self-reflection, growing up, scrapes with authority figures, lectures, or admonition. What is not intended is that the crazy musings, however disgusting, of a 17 year old boy typing into his own computer and kept as a private diary could meet the meaning of “objectionable” because they are not going to be available to the public and are therefore not likely to be injurious to the public good. This is consistent with section 3(3)(d) which requires a promotion or encouragement of criminal acts. There are many demonstrably criminal acts imagined but none have been promoted or encouraged to others.
   

14 R v Sharpe 2001 SCC2 at 108.

23. In supplementary submissions, Counsel for the Owner added further reference to points already discussed above.
    

Classification Office Submissions

24. The Classification Office submitted that:
    
    1. The matters under consideration with regards to section 3(1) are sex, violence, crime and cruelty. The issue of whether the subject matter of a publication can be injurious to the public good if its availability is limited to the creator is not a consideration under section 3(1). Matters such as the intent of the creator, the current and potential availability of the publication, and the intended (or likely) audience are all considerations under section 3(4). The publications therefore pass through the “subject matter gateway” and must be considered further.
       
    2. The relevant matters in section 3(2) are those contained in section 3(2)(a) and section 3(2)(f). The deeming provision of section 3(2)(a)should apply to three of the publications, JANUARY 2019, Things i want to do before Wrath Day and dreams.
       
    100. The Classification Office does not agree with the Applicant that all five publications ought to be deemed objectionable under section 3(2)(f) regardless of whether or not they go beyond the private musings or fantasies of a troubled teenager as the Applicant claims. The threshold for that provision is intentionally high and even The Great Replacement did not meet the threshold under section 3(2)(f).15 The criminal violence associated with ‘Wrath Day’ described in things i hate and FINAL PLAN is more appropriately dealt with in section 3(3)(d).
         

15 The Great Replacement (OFLC Ref: 1900149) is the 74-page document reportedly created by the individual responsible for the Christchurch mosque attacks. This document was released on the internet just prior to the attacks taking place on 15 March 2019. The publication was classified objectionable under s 3(3)(d) by the Classification Office on 23 March 2019. This decision was appealed by The Kiwi Party. The Board classified the publication objectionable under s 3(3)(d) on 12 August 2019 following its review.

4. In terms of section 3(3), the matters relevant to the publications are found in section 3(3)(d) and section 3(3)(e). While there is no promotion or encouragement of criminal acts to others (unlike, for example, The Great Replacement), the significant injury to the public good lies in the disturbing and threatening nature of the content contained in things i hate and FINAL PLAN. School shootings are a very real and tragic occurrence in certain countries. Regardless of whether the publications represent an actual threat or simply the fantasies of a troubled teenage mind, staff, students, parents and the wider community of the school are likely to be disturbed by the details especially in light of the events that took place in Christchurch on 15 March 2019. The staff and students named in things i hate will undoubtedly feel threatened and distressed.
   
5. In terms of the matters in section 3(4):
   
   1. Section 3(4)(a), (d) and (e): It is uncertain whether the Owner expects the publications to be made available to a wider audience. While it could be argued that making private diary and journal entries subject to the Act is tantamount to classifying private thought, the Classification Office agrees with the Applicant that this is not a consideration for publications deemed objectionable. The Classification Office and the Board are still required to carefully consider matters such as the intended audience and the intended purpose for publications that are not deemed objectionable under section 3(2).
      

2. Section 3(4)(b): The publications are in the form of short digital text files that can easily be copied and shared.
   
3. Section 3(4)(c): The publications have no merit, value or importance with regards to the matters listed above but may well be of personal value in relation to the treatment of the Owner. Mental health professionals could well find the publications of

value in their assessment of him. The publications are likely to be of limited or no value to the wider public.

6. The right to freedom of expression can be limited where it is reasonable and demonstrably justified to do so. The Classification Office is well aware of the wide variety of dark and disturbing thoughts an individual may privately harbour. This is particularly true of teenagers who may well be in the midst of major psychological, physiological and social transitions in their lives. Documenting these thoughts could well lead to the creation of objectionable publications. In navigating this complex landscape, the Classification Office and the Board must find the right balance between the protected rights of the individual and protecting the public from potentially harmful material.
   
7. JANUARY 2019, Things i want to do before Wrath Day and dreams are objectionable as they, at the very least, tend to promote and support the exploitation of children for sexual purposes (section 3(2)(a)). FINAL PLAN and things i hate are likely to cause significant injury to the public good and that injury cannot be mitigated with age restriction. It is reasonable and demonstrably justifiable to classify the publications as objectionable except if their availability is restricted to mental health professionals for the purpose of the assessment and treatment of the creator.
   

ANALYSIS

25. At the outset, the Board confirms it has considered carefully the arguments for the Owner that these publications are the private and fantastical (albeit lurid and disturbing) musings and fantasies of a teenage boy and they were never intended for general publication, such that their availability could ever be injurious to the public good. The Board has equally reflected on the Applicant’s submissions that extraneous context and circumstance demonstrate that the entries were intended to be found, possibly even disseminated.

26. The Board’s position on this issue of “availability” under the Act has always been to look at every publication that comes before it on its merits, and from a perspective of “notional availability”, i.e. the possibility a publication may be “available”, rather than with evidence of its actual availability. The Board considers this position to be supported by the Court of Appeal decision in Moonen 1. While the Act is not concerned with criminalising a person’s private thoughts and musings, once those thoughts are written down, the prospect they may become “available”, such that the Act may apply to them, becomes a possibility depending on the circumstances. The Board, therefore, has for each of the publications before it, examined each publication on its merits, applying the factors set out in section 3, in order to determine whether each publication is objectionable such that their notional availability is likely to be injurious to the public good.
    

Do the publications describe, depict, express or otherwise deal with matters such as sex, horror, crime, cruelty or violence?

27. This is the initial “gateway” issue for the Board to consider under section 3(1) and does not required at this stage a consideration of whether the availability of each publication is likely to be injurious to the public good.
    
28. The Board agrees with the Classification Office that the gateway test is met for each of the publications:
    
    1. JANUARY 2019 consists of entries made chronologically under date order from August 2018, and describes the author’s cogitations on a plan to abduct, rape, and murder a little girl at a popular camping reserve in the vicinity of the Owner’s town. The entries vary between the author’s memory of attempting a similar act on a previous occasion and being interrupted by adults intervening, and his thoughts on the next time he tries the same act. The author speaks of having “fucked up” the previous time, and his plans to avoid being detected this time. The excitement the author is feeling when making the entries is readily apparent. The entries

are explicit and graphic as to what he intends to do to the little girl and expresses excitement at the thought of the girl’s parents “finding their daughter naked and dead with blood on her pussy”. The entries describe the clothes the author imagines himself wearing to commit the crime, and sets out the plan for the attack. The publication ends with an entry dated 6 December 2018, in which the author expresses his wish to “confess to everything that will happen in January of 2019 at [the camping ground] any girl that was molested or raped there, it was me. I’m confessing to this ahead of time because i will be dead in two months now.”

There is no doubt that this publication describes, depicts, expresses or otherwise deals with sex, horror, crime, cruelty and violence.

2. Things i will do before Wrath Day is a two page document setting out, expressly “not in order”, what the author would like to do before the stated “Wrath Day.” The entries are again in the form of cogitations and include to “rape a pretty girl” (and murder her, with admiration expressed for the serial killer Jeffrey Dahmer and his methods), “fuck someone up” (by attacking them with a crowbar, including a named younger student), “run a bunch of fuckers over” (expressly, a large crowd of protestors), “do a hit and run” (on a pedestrian or cyclist), “smoke pot”, “vandalise the school”, “vandalise a political billboard”, and “fuck with [a named person’s] house”.
   

Again, there is no doubt this publication describes, depicts, expresses or otherwise deals with sex, horror, crime, cruelty and violence.

100. In dreams, the author has two entries listed. The first, dated 28/11/2018, sets out a graphic description of a sexual crime perpetrated against a named Instagram user who a Google search reveals is a young girl who is a gymnast. The second entry, dated 12/16/2018, explains the author had dreamed that the forest at the camping ground had been chopped down to his intense dismay.

The Board is satisfied this publication describes, depicts, expresses or otherwise deals with sex, horror, crime, cruelty and violence.

4. In things i hate, the author launches into a long rant about those he despises, which include “the kiwi, cyclists, jay walkers, freedom campers, faggots, trannies, DOC, vegans, cripples, retards, old people, feminists, animal rights fuckwits” amongst others (including a named person from the Owner’s school). After explicitly recounting exactly why he hates these groups and what he thinks should happen to them (including by reference to murder, torture, and the Nazis), the Owner then sets out a “Hit List” of named persons he hates at school and who he will target on “Wrath Day”.
   

The Board is satisfied this publication describes, depicts, expresses or otherwise deals with horror, crime, cruelty and violence.

5. Finally, FINAL PLAN sets out the author’s schedule for his planned “Wrath Day” on 6 February 2019. The document references times throughout the day from 3.00 am until 1.00 pm (“It’s Time”) and sets out what the author intends to do at his school that day, including exterminating teachers and students, smashing windows, and burning everything with napalm and gasoline.
   

The Board is satisfied this publication describes, depicts, expresses or otherwise deals with horror, crime, cruelty and violence.

Should the publications be deemed objectionable?

29. As referred above, in the light of the affirmative answer to the previous question in respect of all five publications, the next practical issue for the Board to consider is whether any or all of the publications should be deemed objectionable pursuant to section 3(2). If the deeming provision applies, there is no need for

the Board to consider the factors in section 3(3) and section 3(4), which inform the Board in its consideration of whether the availability of a publication is likely to be injurious to the public good. If the high threshold of section 3(2) is met, by virtue of it being met, a publication is deemed to be objectionable because it depicts one of the offensive themes from section 3(1) in such a manner that the availability of the publication is likely to be injurious to the public good.

30. The Board considers:
    
    1. JANUARY 2019 is an express and horrific depiction of the rape and murder of a young girl. The publication sets out explicit plans for how this will occur (for example, “I’ll come prepared; i’ll bring marshmallows with crushed up sleeping pills inserted into them. I’ll give it to a little girl at night while I’m eating one that isn’t spiked. Hopefully she will take it and fall asleep in seconds. And then, in the darkness, i can do what i have dreamed of for years, and have some fun with her. FUCK i can’t wait!!!!). The author’s excitement is palpable throughout the publication. He mentions specific people and specific plans and ends with a confession written in a way that suggests he expects the publication to be found after his death. He laments the fact his mother or another parent may come with him to the camping reserve, with the implication this will interfere with his plans.
       

As such, the Board is satisfied that the publication promotes or supports, or tends to promote or support, the exploitation of children or young persons for sexual purposes (section 3(2)(a)), the use of violence or coercion to compel a person to submit to sexual conduct (section 3(2)(b) and the infliction of extreme violence or cruelty (section 3(2)(f)). The publication is therefore deemed objectionable under section 3(2).

In reaching this conclusion, the Board is cognisant of the high threshold for the deeming provision, articulated by the Court of Appeal in Moonen

1. The Board is also aware of the impact of the Bill of Rights protected

right to freedom of expression and has weighted that right in its analysis. Nonetheless, the Board is of the view that while the material may describe a scenario which presents as lurid and graphic sexual fantasy, it still contains references which support the exploitation of an innocent young girl for sexual purposes and promotes and supports the infliction of extreme violence on her for the purposes of her submission to a shocking, and planned, rape and murder.

2. Things i want to do before Wrath Day contains a list of actions the author would like to take before the planned “Wrath Day”. The first entry refers to the “rape a pretty girl” and cross-references to the document already discussed (“You just read what i typed just seconds ago”). It expands upon the plan in JANUARY 2019, to include chatting to a girl online “so i can meet up with her and knock her out”. The author describes his frustration at not being able to act on his sexual urges before now.
   

Again, as a result of the above paragraphs, the Board is satisfied that the publication promotes or supports, or tends to promote or support, the exploitation of children or young persons for sexual purposes (section 3(2)(a)), the use of violence or coercion to compel a person to submit to sexual conduct (section 3(2)(b) and the infliction of extreme violence or cruelty (section 3(2)(f)). The Board notes that, while the remainder of the entries in this publication do not necessarily meet the high threshold for deeming, the Board’s role is to consider the publication as a whole and not in parts. The publication is therefore deemed objectionable under section 3(2).

100. The first entry in dreams contains a detailed description of the author’s dream of being alone “with a pretty little girl who i follow on Instagram”16 and what sexual acts he would like to perform on her. There is an inference that the acts are non-consensual (“She was facing away from me, so she didn’t notice me take my dick out and start stroking”)
     

16 A google search of the name shows the girl to be a young gymnast.

and that the girl is young (“pretty little girl”, “smooth young skin”). The author goes on to recount raping three other little girls in his dream, “4 in total” and refers to the dream as being possibly a “subconscious prophecy” of what will happen at the camping ground in January 2019. Again, as a result of the above paragraphs, the Board is satisfied that the publication promotes or supports, or tends to promote or support, the exploitation of children or young persons for sexual purposes (section 3(2)(a)), the use of violence or coercion to compel a person to submit to sexual conduct (section 3(2)(b) and the infliction of extreme violence or cruelty (section 3(2)(f)). The Board notes once more that, while the other entry in this note does not meet the high threshold for deeming, the Board’s role is to consider the publication as a whole and not in parts. The publication is therefore deemed objectionable under section 3(2).

4. The Board does not consider things i hate meets the high threshold for the application of section 3(2), the deeming provision. While it is undoubtedly a hate-filled and atrocious rant against various groups in society, and violence is described in the rants, the Board does not consider the publication contains the extra required “promotion or support” of such violence and cruelty to overcome the high threshold for a section 3(2) finding. This publication can be dealt with by consideration of the other factors in section 3(3) and section 3(4).
   
5. In a similar vein, the Board declines to find that FINAL PLAN is deemed objectionable under section 3(2). While it undoubtedly contains explicit descriptions of extreme violence, cruelty and carnage to be inflicted, it does so expressly as a plan for the author and not in a way which promotes or supports the extreme violence in the manner confirmed by the Court of Appeal to be needed for a section 3(2) classification. Again, the Board considers this publication is more appropriately dealt with by consideration of the other factors in section 3(3) and section 3(4).

31. In terms of section 3(1) the availability of the three publications deemed objectionable are likely to be injurious to the public good, because they encourage the exploitation of young girls sexually in a way likely to excite those who have an interest in the sexual exploitation of children, should they become publicly available.
    

Determination Under Section 3 (3) and (4)

32. Because the Board has declined to deem things i hate and FINAL PLAN objectionable, it must now turn to sections 3(3) and 3(4) to determine whether those two remaining publications are objectionable.
33. Dealing with things i hate first. The publication, as described above, is a detailed rant about all the groups of people in society who the author despises, the reasons he despises them, and violent descriptions of what he would like to do to each group. In terms of section 3(3), the Board has considered the extent and degree to which, and the manner in which, things i hate promotes or encourages criminal acts or acts of terrorism (section 3(3)(d)). The publication contains descriptions of many criminal acts: running cyclists over, running old people over, seeing homosexuals “burn and scream in pain”, torturing and shooting transsexuals, shooting employees of the Department of Conservation, shooting vegans, killing “retards”, shooting feminists, shooting a named fellow student, and torturing animal rights activists. It ends with a detailed “hit list” of named students and teachers and the author’s reasons for wanting to kill or maim each. The publication is pure hate speech, is extremely threatening and is written in a manner which suggests the author expects people to read it (for example, “I’m going to tell you a little story”) and that he is writing for an audience. The way in which the author sets out reasons for wanting to hurt each particular group in the Board’s view is promotion or encouragement of the criminal acts described.
34. Applying the factors in section 3(4):
    
    1. The dominant effect of the publication as a whole is to read as a tirade against groups the author hates, and to inspire fear and disgust for what

the author wishes to do to some, and plans to do to others (particularly the named students and teachers).

2. The impact of the medium in which the publication is presented is a digital notepad text file, easily able to be copied, shared and disseminated (by emailing or by printing a hard copy).

100. The publication has no character in terms of section 3(4)(c).
     

4. Because the publication reads as if the author has an audience to whom he is preaching his views, and has indications that he intends it to be found and read (“I’m going to tell you a little story”, “I’ll tell you what”, “Did I ever mention...”) the Board considers that the publication is intended by its author not only to be an outlet for his internal hateful views and thoughts, but also to be found after the planned “Wrath Day” (which is referenced several times). The Board considers that the persons to whom the publication is likely to be made available include those investigating criminal actions by the Owner after his planned Wrath Day, and the purpose of the publication is in part to enlighten those investigators, and others to whom the publication many be disseminated (which could include friends who, in turn, could potentially disseminate the publication wider). That such is the intention is shown in the Board’s view by the direct manner in which the author addresses his audience (shown by the quotations above). Although the Board does not have direct knowledge of the intention of the author, if the publications got into the public arena control over them would be lost, and most likely the audience would be young and would be disturbed by the content.

35. The Board therefore determines that things i hate is objectionable.
    
36. FINAL PLAN, as described above, is exactly what it says it is: a detailed schedule of events to take place on 6 February 2019, when the Owner intends to undertake a mass shooting at his school, targeting certain specified students and teachers, setting fire to classrooms and throwing gasoline bombs.
37. In terms of section 3(3), the Board has considered the extent and degree to which, and the manner in which, FINAL PLAN promotes or encourages criminal acts or

acts of terrorism (section 3(3)(d)). The Board is satisfied the publication contains detailed and graphic descriptions of criminal acts that the Owner intends to undertake. The publication is no more or on less than what it purports to be: a manual for the plan he intends to carry out. As such, the Board considers FINAL PLAN promotes and encourages the criminal acts it describes.

38. Applying the factors in section 3(4):
    
    1. The dominant effect of the publication as a whole is to serve as an outline, with times inserted, of the steps the Owner will take to commit a school massacre.
    2. The impact of the medium in which the publication is presented is a digital notepad text file, easily able to be copied, shared and disseminated (by emailing or by printing a hard copy).
    100. The publication has no character in terms of section 3(4)(c).
         
    4. The Board is unable to determine from the document on its face whether the Owner intended the publication to serve any greater purpose than to plan his day. There is no indication that the Owner intended it to be read by anyone else, and the Board therefore has placed no weight on section 3(4)(d) and 3(4)(e) beyond acknowledging the purpose of the publication appears to be to assist the Owner to commit his planned crimes.
    5. In terms of section 3(4)(f), it is common ground amongst those who have provided submissions to the Board, that the publication was located on the Owner’s computer by the Police when a search was carried out of his bedroom, and that weapons were also located in that search. Beyond that, the Board has not seen a need to consider the additional material provided by the Applicant, and has made its determination of FINAL PLAN from the document itself.
39. The Board therefore determines that FINAL PLAN is objectionable.
    
40. In terms of section 3(1) the availability of both things i hate and FINAL PLAN is likely to be injurious to the public good, the first because it incites hatred and violence towards specified groups in society which may appeal to those with

similar thoughts and views, particularly vulnerable young people, and the second because it is a step by step manual of how to conduct a school massacre. Both documents refer to specified persons, things i hate expressly by name, and FINAL PLAN by reference to position (the “headmaster”). The availability of either of these publications to the public, and particularly to those at the Owner’s school, will be distressing and injurious to the public good.

41. Further, for completeness, despite deciding that the three publications JANUARY 2019, things i want to do before Wrath Day and dreams must be deemed objectionable, the Board considered whether, had it not done so, it would have determined the publications objectionable under section 3(3) and (4).
42. The Board considers, for the same reasons as outlined above, that the three publications deemed objectionable also:
    1. Describe, depict, or otherwise deal with sexual violence or sexual coercion, or violence or coercion in association with sexual conduct (section 3(3)(a)(ii), other sexual or physical conduct of a degrading or dehumanising or demeaning nature (section 3(3)(a)(iii), sexual conduct with or by children, or young persons or both (section 3(3)(a)(iv)) – all three publications;
    2. Degrades or dehumanises or demeans any person (section 3(3)(c)) – all three publications;
    100. Promotes or encourages criminal acts or acts of terrorism (section 3(3)(d)) – all three publications;
43. Regarding the section 3(4) matters, the Board refers to the points made above for things i hate and FINAL PLAN and considers that the same points apply to the three publications deemed objectionable.

CONCLUSION

44. To conclude then, the Board:
    
    1. Deems the publications JANUARY 2019, things i want to do before Wrath Day and dreams objectionable under section 3(2) of the Act.

2. Determines the publications things i hate and FINAL PLAN objectionable under section 3(3) and section 3(4) of the Act.

45. In terms of section 23 classification, the Board considers that the publications ought to be available to clinicians treating the Owner. It therefore classifies all five publications under section 23(2)(c)(ii) as objectionable except if the availability of the publications is restricted to psychiatrists, psychologists and other clinical therapists working with the Owner in a therapeutic way to assist him to deal with mental and emotional health issues.
46. The Board hereby directs the Classification Office pursuant to section 55 (1) e of the Act to enter the Board’s decision in the register.
    

Dated at Wellington this 29th day of May 2020.

Rachael Schmidt-McCleave

President

SCHEDULE: STATUTORY PROVISIONS

FILMS, VIDEOS, AND PUBLICATIONS CLASSIFICATION ACT 1993

3Meaning 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.

(1A) Without limiting subsection (1), a publication deals with a matter such as sex for the purposes of that subsection if –

(a) the publication is or contains 1 or more visual images of 1 or more children or young persons who are nude or partially nude; and
(b) those 1 or more visual images are, alone, or together with any other contents of the publication, reasonably capable of being regarded as sexual in nature.

(1B) Subsection (1A) is for the avoidance of doubt.

(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, -
(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.
(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:
• (ii) sexual violence or sexual coercion, or violence or coercion in association with sexual conduct:
• (iii) other sexual or physical conduct of a degrading or dehumanising or demeaning nature:

• (iv) sexual conduct with or by children, or young persons, or both:
  • (v) physical conduct in which sexual satisfaction is derived from inflicting or suffering cruelty or pain:

(b) exploits the nudity of children, or young persons, or both:

• (c) degrades or dehumanises or demeans any person:

(d) promotes or encourages criminal acts or acts of terrorism:
(e) represents (whether directly or by implication) that members of any particular class of the public are inherently inferior to other members of the public by reason of any characteristic of members of that class, being a characteristic that is a prohibited ground of discrimination specified in section 21(1) of the Human Rights Act 1993.
(4) 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, the following matters shall also be considered:
(a) the dominant effect of the publication as a whole:
(b) the impact of the medium in which the publication is presented:
(c) the character of the publication, including any merit, value, or importance that the publication has in relation to literary, artistic, social, cultural, educational, scientific, or other matters:
(d) the persons, classes of persons, or age groups of the persons to whom the publication is intended or is likely to be made available:
(e) the purpose for which the publication is intended to be used:
(f) any other relevant circumstances relating to the intended or likely use of the publication.

FILM AND LITERATURE BOARD OF REVIEW SUMMARY DECISION

1. This was an application to the Board under section 47(2)(a) of the Films, Videos and Publications Classification Act 1993 (the Act) by the Applicant, the New Zealand Police, for a review of the decision of the Office of Film and Literature Classification (the Classification Office) dated 12 December 2019.
   
2. The publications consisted of five separate “Notepad” text files, reportedly found by the Applicant on the computer belonging to a New Zealander teenager (the Owner), in the course of the Applicant executing a search warrant for other matters. The Owner has also been confirmed as the creator of the publications. As a whole, the publications detail the Owner’s thoughts on various groups he hates, and describe plans for both a sexual assault and murder of a young girl at a nature reserve, as well as an attack in the form of a mass shooting at the Owner’s school..
   
3. In its decision, the Board classified the publications as objectionable under the Act except if the availability of the publications is restricted to psychiatrists, psychologists and other clinical therapists working with the Owner in a therapeutic way to assist him to deal with mental and emotional health issues. It held that three of the publications must be deemed objectionable in terms of section 3(2)(a) of the Act because they promote or support, or tend to promote or support, the exploitation of children for sexual purposes.
4. The Board also held that even had it not decided that the publications be deemed objectionable, it would have determined them to be objectionable under section 3(3)(c) and (d) because they degraded, dehumanised and demeaned children or young persons, and promoted or encouraged criminal acts of acts of terrorism.
   
5. The remaining two publications were determined by the Board to be objectionable under section 3(3)(d) because they promote or encourage criminal acts or acts of terrorism.

6. The Board rejected the submission of the Owner that the publications were the private diary musings of a teenager and that to find them objectionable would be tantamount to censoring private thoughts. The Board is required to consider whether the availability of the publications is likely to be injurious to the public good. In making a finding of objectionableness, the Board is not required to find that the publications would actually be made available to any members of the public. The Board is required to consider whether there would be injury to the public good if the publications were made available to members of the public. Issues such as who might the publications be made available to, and the likelihood of this occurring, are nonetheless pertinent.