Chris McKeen/Stuff
Billy Te Kahika protesting on the first day of the second Level 4 lockdown.
Conspiracy theorist Billy Te Kahika has avoided being sent to jail after successfully winning an appeal for his sentence after organising a protest on the first day of the Covid-19 lockdown in 2021.
Te Kahika and Vinny Eastwood were found guilty of intentionally failing to comply with the Covid-19 Public Health Response Act by organising and attending the protest.
The pair were handed short jail sentences in March by Judge Peter Winter, but their lawyers immediately asked for the men to be granted bail, pending an appeal being heard in the High Court.
On Friday, Justice Neil Campbell released that decision allowing the sentence appeal but refused to grant the pair a discharge without conviction.
But Te Kahika was back in court this week, this time he was sentenced to 200 hours community work and ordered to pay fines totalling $14,000 for failing to declare political donations and keeping records.
The protest took place outside the TVNZ building in central Auckland on the first day of the level 4 lockdown on August 18, 2021.
At the District Court sentencing, Judge Winter said he was satisfied Te Kahika was the orchestrator and organiser of the protest whereas Eastwood’s actions were in a supporting role and he even tried to calm the crowd at one point.
“[Te Kahika] had the most to gain in notoriety from the breach,” Judge Winter said.
“I find that he has exhibited no remorse to the offending other than remorse for himself.”
Judge Winter said the defendants were both aware that they would be intentionally failing to comply with the Covid-19 lockdown order.
The legislation was there “for the protection of all New Zealanders” at a time when the re-emergence of the virus posed a “significant threat” to Kiwis.
In the High Court appeal decision, seen by Stuff, he rejected all the grounds of appeal.
“There was no miscarriage of justice.”
However, Justice Campbell granted the sentence appeals.
Te Kahika’s lawyer, Paul Borich KC, submitted Judge Winter set a starting point that was too high and gave insufficient weight to Te Kahika’s personal mitigating factors.
An electronically monitored community-based sentence was also not considered.
Stuff Circuit
Watch the full, unedited video of Billy Te Kahika’s interview with Stuff Circuit’s Paula Penfold.
Justice Campbell accepted this was not the most serious of such cases. He said the gathering was relatively modest and Te Kahika had told police about it in advance.
“He took some steps to control the gathering (albeit not to ensure that two-metre distancing was followed).
“Mr Te Kahika did not attend for simple pleasure. He attended because of sincerely held beliefs about the existence and effect of COVID-19, about the public health response to the virus, and about freedom of expression and assembly. His beliefs about the virus and the public health response were misguided and to some extent fuelled by delusional conspiracy theories. But that is irrelevant to sentencing. Mr Te Kahika is not to be sentenced for his beliefs.”
Justice Campbell concluded the offending was “well short of the most serious of its kind”
“At most, a starting point of a very short period of imprisonment, in the region of 14 days, would have been appropriate for each of Mr Te Kahika and Mr Eastwood.”
Justice Campbell also considered Te Kahika was entitled to several allowances given he had no prior convictions.
“More significantly, he has spent much of his life making significant and varied contributions to his community. These factors warranted credit of at least 20 per cent against the starting point.”
The judge also considered discounts were warranted for the time Te Kahika spent on restrictive bail conditions.
“I consider Judge Winter erred in not considering home detention or some other community-based sentence.”