THE QUEEN v JORDAYNE EVAN THOMAS MADAMS

Young girls love this shit, as does the leader of al-Qaeda in NZ (aka Aotearoa Maori Muslim Association, Islamic State of NZ) who also replies below.

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN
[SQUARE BRACKETS].
R v JORDAYNE EVAN THOMAS MADAMS [2018] NZDC 8046 [23 April 2018]
SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011: SEE PARAGRAPH [35]. http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360354.html

IN THE DISTRICT COURT
AT PALMERSTON NORTH
CRI-2017-054-003373
[2018] NZDC 8046

THE QUEEN
v
JORDAYNE EVAN THOMAS MADAMS

Hearing: 23 April 2018
Appearances: B Vanderkolk for the Crown M Ryan for the Defendant
Judgment: 23 April 2018

NOTES OF JUDGE S B EDWARDS ON SENTENCING

[1] Jordayne Evan Thomas Madams, you appear for sentence on seven charges of knowingly possessing objectionable material. Five of those charges relate to objectionable material promoting and supporting extreme violence (the ISIS charges), while the remaining two charges relate to material which is objectionable because it promotes and supports child exploitation.

[2] You converted to Islam in 2015. Around the beginning of 2017 you began operating a Facebook account under the name Abdullah al-Hami Muhammed. On 25 January 2017, you posted a video to YouTube called, Hell Awaits the Tyrants. The video showed you encouraging viewers to wage jihad against the tyrants for the sake of Allah and Islam. Tyrants were those who you considered were massacring innocent men, women and children in Islamic states. You encouraged viewers to, “Get up and find anything, anything at all and go out there and find and kill the tyrants wherever
they may be.” You used the phrases, “Hunt these tyrants, their supporters and those
who aid them down and slaughter them for the sake of Allah, the community and the
religion of Mohammed.”

[3] On 30 January, you posted another video on YouTube called, Quebec City
Masjid and Victoria Masjid Attack. This was a reference to a mass shooting that
occurred at the Islamic cultural centre in Quebec City the day before and an arson at
an Islamic cultural centre in Victoria, Texas, two days earlier. You talked of retaliating
for these attacks and the Muslim lives lost. You said that “if these non-Muslims want
to kill our brothers and sisters and burn our mosques we must do the same to them.”
You also stated during the video that the Islamic state must be established in America.

[4] Police executed a search warrant at your home on 1 November 2017. On your
computer and devices they located approximately 68 images or videos showing
imagery and logos linked to ISIS. Around 10 of the videos depicted war footage,
terrorist propaganda or executions of prisoners.

[5] The publications which are the subject of the four other ISIS related charges
you face are first, an ISIS propaganda video 19 minutes long entitled The Shield of the
Cross, endorsing ISIS and showing the execution of Turkish soldiers by burning them
alive.

[6] Second, a video in Arabic approximately 27 minutes long, endorsing ISIS and
terrorism. It contains war footage including the aftermath of battle and a montage of
prisoners having their throats cut. It also contains footage of a male being led to a
wooded area before being executed by multiple rounds of machine gun fire.

[7] Third, a video around 21 minutes long, again in Arabic, showing the execution
of four prisoners, two by gunshots and two by having their throats cut. It also shows
several prisoners being herded into a room where two are hung upside down and have
their throats cut while the third is forced to watch before also being executed.

[8] The last charge involves a 78 page document called The Terrorist Handbook,
a publication that has already been classified as objectionable. It contains instructions
on how to make a variety of explosive devices out of household objects and products.

[9] The police also found 219 objectionable images and videos showing child
exploitation on your computer. The images that are the subject of the two charges you
are for sentence on are first, a 36 second video depicting a boy approximately 13 to
15 years of age performing oral sex on a young girl approximately seven to nine years
of age and second, an image of a girl approximately 12 to 13 years of age, naked in a
bedroom, bending over while exposing her genitalia. There were seven additional
images of the same victim in various poses also found.

[10] Mr Madams, the purposes and principles of sentencing I must take into account
in sentencing you today are the need to hold you accountable for the harm such
offending does in the community, to promote in you a sense of responsibility and to
denounce your conduct. Importantly, I must impose a sentence which acts to deter
you and others from possessing this type of material. I must also, however, take into
account what can be done to assist in your rehabilitation and impose the least
restrictive outcome that is appropriate in all the circumstances and taking into account
similar cases.

[11] The starting point is imprisonment. I reach the same overall starting point as
the prosecution, albeit by a slightly different route. Mr Ryan does not dispute the
overall starting point of 21 months’ imprisonment proposed by the Crown.

[12] There is no guideline judgment for the possession of objectionable material
that depicts extreme violence. The closest comparable case the police have cited in
terms of starting point is that of R v Nawarajan,1 where an 18 month starting point
was taken for possession of numerous videos, magazines and documents relating to
ISIS and terrorism, some of an extremely violent nature.

[13] The main aggravating feature in your case is that you were not only in
possession of this material but you produced two videos yourself and posted them to
YouTube. As your counsel acknowledges, a lenient approach has been taken in not
charging you with distributing the material. There is no doubt that around 10 of the
videos found in your possession depict extreme violence. Your sharing of the videos
1 R v Nawarajan [2016] NZDC 11469.
you produced was done on YouTube and links via Facebook, which are both platforms
which allow for widespread dissemination.

[14] While the police submit that your intent to encourage and incite extreme
violence is clearly an aggravating feature, to an extent that is what makes the material
objectionable, so it is part and parcel of the charge itself. Also, given you have been
diagnosed with Asperger’s there is the question of how that condition affects your
intent. So I do not place that much weight on intent as aggravating your offending.

[15] However, I agree with the police and your lawyer that an 18 month starting
point is appropriate for the ISIS material.

[16] There is much more available to the Court by way of guidance for the child
exploitation material. In particular, as set out in the police submissions, we in
New Zealand use UK sentencing guidelines which divide this type of material into
three categories. The video showing two young people engaging in oral sex is in the
highest category or Category A. The other, an image depicting the naked 12 to 13 year
old posing, is at the other end in Category C.

[17] Based on a number of cases referred to, the police submit that the appropriate
starting point for this material would be nine to 10 months. I consider it should be a
little lower than that at eight months but in the end a factor we call totality must be
taken into account, so the same overall end-point is reached.

[18] Totality comes into play, Mr Madams, because this was offending of a similar
kind although it involved two very different types of objectionable material and it was
committed over a similar time period. In the end, while my overall starting point was
26 months or around two years and two months’ imprisonment, I agree with the police
that on a totality basis the appropriate overall starting point should be 21 months.

[19] I turn now to mitigating features and there are a number of those that affect
sentence in your case. The first is that you have no previous convictions whatsoever.
The second is your age; you are 19 years old, 18 at the time of some of this offending.
The Court of Appeal has made it clear that significant discounts may be available to
youthful first offenders.

[20] There are three reasons for this, the first is that there are age related
neurological differences between young people and adults including that young people
may be more vulnerable or susceptible to negative influences and outside pressures
and maybe more impulsive than adults. The second reason is the effect of
imprisonment on young people including the fact that it may be a crushing sentence
on a young person. The third and related reason and one I think is important in your
case, is that young people have a greater capacity for rehabilitation given that the
character of a young person is not yet fully formed.2

[21] The next reason relates to your mental health and in particular the diagnosis
contained in the two very helpful reports of Dr Justin Barry-Walsh that you have
Asperger’s Syndrome. In his opinion, there is a nexus between your substantial
psychological difficulties and vulnerabilities, which he believes reflect an underlying
Asperger’s Syndrome, and your offending.

[22] There is much in Dr Barry-Walsh’s second report to indicate that psychological
counselling focused both on your Asperger’s condition and other issues from your past
which have contributed towards your problems with personality functioning, may be
successful in reducing any further risk that you pose both in terms of radicalisation
and of viewing or possessing child exploitation material.

[23] What is also apparent from that s 38 report and your lengthy interviews with
Dr Barry-Walsh is your remorse. He considers it is genuine and I accept that. Part of
the Asperger’s condition is a fixation over a particular way of thinking or a subject and
it is apparent this is something that has occurred with you since a young age. You now
are adamant that you no longer have the fixation you had with ISIS. I note that it
started with your conversion to Islam but you have been interested in a number of
other religions in the past.
2 Churchward v R [2011] NZCA 531 (CA) at [77]; 2011 25 CRNZ 446.

[24] In terms of the possession of the child exploitation material you provided the
psychiatrist with an explanation and you are open to, and willing to, address those
issues in counselling and treatment.

[25] All of those factors point, Mr Madams, to a significant discount at sentence.
From the overall starting point of 21 months’ imprisonment I propose to allow seven
months, which is in the region of 35 percent, for your mental health issues, your youth,
the fact you have no previous convictions and your genuine remorse.

[26] That reduces the sentence to around 14 months’ imprisonment. Allowing you
the full available discount for your guilty pleas, which is appropriate, reduces that
further to around 10 and a half months’ imprisonment.

[27] That would equate to around five months’ home detention, which is a sentence
that is not opposed by the police. However, as you will have heard from the
discussions in Court today the material before me, in particular the s 38 reports,
persuades me that the focus should be on a rehabilitative sentence and one that lasts
for as long as possible, given the complex issues that need to be addressed.

[28] For that reason, and I note this approach is not opposed by the police, I intend
to convert the end sentence of around five months’ home detention to the maximum
of community detention, which is six months, and to impose intensive supervision for
the maximum period available which is two years. I am imposing that sentence on
each of the seven charges you face.

[29] The community detention for the period of six months is to the address set out
in the pre-sentence report. The detention period is 7.00 pm to 7.00 am and that is
seven days a week.

[30] The special conditions of the sentence of intensive supervision are set out in
the pre-sentence report. I will not outline all of the conditions relating to psychological
assessment and counselling but the other conditions are that:
(a) You are not to associate or have contact with any person under the age
of 16 years, unless in the presence of and under the supervision of an
approved adult.
(b) You are not to purchase or possess firearms or restricted weapons.
(c) You are not to possess or distribute any material that promotes the
destruction of or hatred for any religious or ethnic group.
(d) You are not to possess or use any electronic device capable of accessing
the Internet or capturing, storing, accessing or distributing images
including without limitation any personal computer or cellphones
without the prior written approval from your supervising probation
officer, and any access must be under the supervision of an approved,
informed adult.
(e) You must immediately inform your probation officer or the agent of any
electronic device that comes into your possession or control and
surrender it if required.

[31] What those conditions add up to for you, Mr Madams, is that your supervising
probation officer is going to play a very important role in your life for the next two
years. That person will be working with the other agencies who are interested in
ensuring that any risk that you pose is reduced and any issues that you have are
addressed, so as to ensure there is no repeat of this type of offending.

[32] I wish to play some role in ensuring both that the intensive help you need is
provided to you and also that you comply with the conditions of what is a restrictive
sentence and so for that purpose I am ordering judicial monitoring of you. What that
means, Mr Madams, is I will be provided with reports at intervals of every three
months or so to let me know about your progress. If I have any concerns, or perhaps
if those reports are pleasing, I may have you back in Court so we can talk about that.

[33] The other issues I need to address are first, there is now no application for your
discretionary inclusion on the Child Sex Offenders Register. The issue does arise with
these charges but in my view, and now also in the view of the police, you do not meet
the threshold requirements for a registration order.

[34] Next, I am making a direction that the two s 38 reports be released to the
agencies who will be involved in the administration of this sentence and this is with
your consent, Mr Madams. They can be released to Probation, to [location deleted]
Community Mental Health Services and copies also to [Detective Inspector 1] and
[Detective Sergeant 1].

[35] And last, I make an order suppressing any details of the town where
Mr Madams is now living and where he will be serving his community-based
sentences. This is done to ensure that publicity does not impact on his rehabilitation.

S B Edwards
District Court Judge

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