A couple who falsely used the identities of two Māori to make it look like it was them delivering a politically charged message are fighting to keep their names secret.
In a lengthy sentencing today the pair's efforts to seek a discharge without conviction and continued name suppression failed, but they immediately appealed against the suppression order being lifted.
The pair were initially charged last May with obstructing the course of justice and have since admitted an alternative charge each of making available false documents. The charges were linked to flyers the pair made and distributed to Nelson businesses which included threats that people would be "hunted down" for appropriating Māori culture.
The flyers featured the faces of Māori academic Atama Moore (Moa), and television personality and tikanga Māori and kapa haka exponent, known then as Shane Te Hāmua Wilkins-Nikora. They also featured comments taken from the Facebook group Our Culture Is Not Your Pay Check! (sic) which highlighted the "alarming amount of non-Māori, non-Aotearoa businesses abusing and disrespecting things such as haka, kupu Māori, moko, kowhaiwhai, whakairo and tukutuku designs".
But neither of the men featured knew anything about it, nor did they live in Nelson where the material was distributed in November 2020.
The pair responsible for distributing the flyers were caught after police identified their car in CCTV footage. Disguised in wigs and hats, they drove around at night, delivering the flyers to businesses and organisations in central Nelson.
It led to a search of their home where a pile of documents was found, including material relevant to the comments used on the flyer. The woman initially denied responsibility and blamed the two men portrayed, but ultimately admitted what she had done, and that she had "enjoyed" driving around delivering what was thought to be 18-20 flyers, although the exact number was not known.
In the Nelson District Court today their lawyer Michael Vesty argued their actions were in response to threats and intimidation aimed at them, and that their safety was at risk if their names were to be published.
Both the Crown prosecutor, Jeremy Cameron, and Judge Jo Rielly said the pair failed to reach the thresholds for which a discharge without conviction would apply, or the reasons why suppression would continue.
Judge Rielly convicted the pair, but without further penalty to reflect the hardship they had already suffered, including having their homes and a business searched under the auspices of hate speech, facing a criminal charge, and having their relationship fall apart.
Te Hāmua Wilkins-Nikora said by video in a pre-recorded victim impact statement played to the court that he was "rather surprised" to be called a victim when asked to make the statement.
"If I'm the victim I should be the one whose name is suppressed. I don't see why a couple of Pakeha people who admitted doing this are able to keep their names hidden when it was my name used to commit this fraud."
Moore's statement was filed but not read in court.
Vesty said his clients' actions were triggered by threats made against them in their line of work, which drew on Māori culture. He said they had been at the receiving end of abuse and threats, including right up to today's sentencing when comments were being made on social media in anticipation of name suppression being lifted.
"It's a very hot political potato we're dealing with today," he said, adding they were seeking permanent name suppression for their own protection.
Vesty said one post in particular, which said the person's remedy for dealing with "culture thieves" was to "bash the shit out of them", revealed the extent to which his clients might be in danger.
Cameron said the court was essentially dealing with a "basic fraud matter", which had had a high impact on the two principal victims. He considered the offending which was conducted in a "very public manner" was of moderate gravity, while Judge Rielly said it was concerning, and moderately serious.
"You were happy to thrust two men into the limelight and cast suspicion on their role of villain," Judge Rielly said in sentencing.
Cameron said a conviction and discharge was the appropriate response but that permanent name suppression should not be granted.
Judge Rielly, who took off her face mask in preparation of delivering an almost hour-long sentencing against a "unique set of facts", said the offence – which was "bold, yet hidden", carried a maximum penalty of three years in prison.
She also acknowledged that some of what the pair had been exposed to in terms of threats were "extremely concerning and disturbing", but she understood they had not come from the two men featured in the flyers.
Judge Rielly understood the harm the offenders had suffered at the hands of "online bullies", which they argued had led to their actions, but that they had "lost perspective" over the efforts of the police in supporting them.
She agreed the topic of cultural appropriation was a "hot potato", which each had intimately experienced, but their actions in November 2020 were designed to create fear and division. They had also created fear and alarm among those who had received the material, some of whom reported feeling either shocked, scared, targeted, nervous, insulted, offended and sickened.
The couple regretted the harm caused to those who received the flyers.
Judge Rielly said the two men featured in the flyers felt they had been stripped of cultural identity, that their whakapapa had been compromised and that they had been misrepresented.
"They have every right to be upset."
Judge Rielly said while the pair in court had acknowledged wrongdoing, they lacked remorse and insight into the impact of their offending, evidenced by their efforts to be treated leniently by the court.
She said while declining name suppression that the couple had suffered "significant effects" of their actions, including loss of their livelihoods.
Interim name suppression now applied, until the outcome of the appeal process.