“You know coronavirus in the common cold. Disgusting,” another woman said as she left.
The yelling continued outside the courtroom.
A short time later, with only the men’s partners allowed to remain in the gallery, Judge Winter allowed the men to remain on bail while their convictions and sentences are appealed. As a condition of their bail, they aren’t allowed to use the internet to detail their appeals.
The duo spent three days in court in August for a judge-alone trial during which they both testified. Judge Winter found them guilty in December, following a lengthy adjournment so both sides could submit written legal arguments that focused in part on whether the New Zealand Bill of Rights Act allowing freedom of assembly to protest should have superseded the lockdown order.
A senior police officer testified during the trial that Te Kahika called him on the first morning of the lockdown to let law enforcement know he was planning a protest of 200 to 300 people outside TVNZ headquarters in central Auckland that day.
“He was advised it was against the health order and he was liable to be arrested,” the officer testified. “He told me it was his right to protest.”
Te Kahika then posted a series of live videos on Facebook in which he encouraged people to show up to the protest. In one social media post, the judge noted, Te Kahika “advanced various theories now commonly accepted to be conspiracy theories as his reason for being present in contravention of the level 4 lockdown regulations”.
Despite warnings from police, Te Kahika testified he was surprised by his arrest because he believed freedom of speech and assembly should have taken precedence over lockdown orders.
Eastwood, an online broadcaster who had been travelling with Te Kahika when the lockdown was announced, also posted on social media encouraging people to turn out for the protest.
“No retreat and no surrender,” Eastwood said in one of the videos, which he later dismissed as theatrics to garner more attention on social media. “That is Spartan law. And by Spartan law, we will stand ... and fight.”
Video footage played repeatedly during the evidence phase of the trial showed him yelling through a megaphone with an increasingly desperate-sounding tone for fellow protesters to surround him and “protect” him as police approached in an effort to hand him a letter advising him the gathering was illegal.
But he also took steps to calm the crowd after Te Kahika’s arrest, the judge noted today.
Eastwood testified that he was terrified of police, describing his arrest that day and the panic attacks that followed as “the most traumatic experience I have ever suffered in my entire life”. The duo spent 28 hours in jail before they were released on bail the next day to await trial.
Violating the Covid-19 Public Health Response Act by attending an illegal gathering carries a maximum punishment of six months’ jail and a $4000 fine, while organising such a gathering is punishable only by a fine.
During his sentencing remarks today, Judge Winter noted that both men were assessed as having a low risk of re-offending. But he also noted that neither man appeared repentant.
He described Te Kahika’s involvement as “at the upper end if not the most serious end ... of this type of offending”.
“I find that he has exhibited no remorse other than remorse for himself,” the judge added. “Nor does it seem he’s given any consideration to the sacrifices of other law-abiding citizens [to stop the Delta variant’s spread].”
Lawyers for the two defendants had asked today that the men be judged through the lens of 2023, in which Covid-19 infections and deaths are now a standard weekly occurrence, rather than through the fears of 2021.
“We live with Covid now,” said Te Kahika’s lawyer, Paul Borich, KC. “It was not the disaster they said it was going to be.”
The judge asked if that wasn’t because New Zealand pursued a vaccination plan during the lockdown that ended up seeing the nation regarded as one of the 10 best in the world for its Covid-19 mitigation.
Lawyer Nathan Batts, who represents Eastwood, said his client had a “selfless-type motivation” and believed he was helping to stand up for people’s rights.
Both lawyers sought a conviction with no further sentence or with only a fine. The arrest and court appearances have already served as a strong deterrent, Batts argued.
But police prosecutor Catherine Finegan said a strong message of deterrence was needed for their “intentional and egregious flouting of the rules”.
“They placed themselves, the people they invited to attend and the community at risk,” she said.
Judge Winter agreed to give both men a slightly lesser sentence for the time they have already spent on house arrest and for their previous good character. He recited a long list of Te Kahika’s involvement in the community, from his service as a volunteer firefighter, to his ministry, to his involvement in an anti-smoking campaign.
But he also agreed with the prosecution that a sentence of imprisonment was warranted.
“You have no jurisdiction!” a person yelled as the hearing concluded.
“Illegal, judge, illegal!” another person yelled.
The judge ignored the comments.
