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NWI High Court / Records / Publications / P-008: Sentencing Order

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THE HIGH COURT OF THE NEW WEST INDIES

HOMELAWSPROCEDURESRECORDSHELPCONTACT

Publication No. P-008
Sentencing Order

Date Issued

Case No.

Subject(s):

17 Jan. 2020

20-01

The patriotism states
Achipel
Karteria


The Court issues this Sentencing Order with respect to Case No. 20-01: New West Indies v. The Patriotism States.

INTRODUCTION:
On 8 January 2020, the Region’s Attorney Celestiam, on behalf of the Region and a Co-Accuser, The Honourable President Reno sheriffs department, filed criminal charges for a single count of Felony Abusing Freedom of Expression against The patriotism states. This offense was alleged to have occurred that same day, and four posts were summarily suppressed by the Right Honourable Secretary-General Karteria. On 10 January 2020, the Court found the Accused guilty of the aforementioned charge following their entry of a guilty plea.

COUNT ONE:
The sole count, Felony Abusing Freedom of Expression, is a serious offense in the eyes of both the Region and this Court. Thus, a careful analysis of the facts and factors will follow.

The Accused has provided no words in their defense, pleading guilty and providing no meaningful argument with regards to Sentencing. Given they are uncontested, the facts set forth by the Region’s Attorney are accepted.

At the Preliminary Hearing, the Region’s Attorney cited a series of posts made by the Accused on the #general channel of the New West Indies Discord Server. These posts are listed below as their content is crucially relevant to this discussion, and they occurred within a timespan of approximately ten minutes:

  1. I do hate refugees killing and raping women

  2. We gotta protect the West from refugees

  3. erasing our cultures and traditions

  4. Sharia Law, refugees come in and rape and kill. Look at Berlin, even the women are protesting against foreigners.

  5. Race mixing is a net negative

Only Posts 2, 3, 4, and 5 were alleged and found to be illegal. Do note that the second and third post were intended to form a single sentence, but was interrupted by a post by the Accuser the Honourable President Reno sheriffs department. Posts 2, 3, 4, and 5 were suppressed shortly thereafter.

By pleading guilty, the Accused has acknowledged that these facts are true and correct.

These posts very clearly violate the Law. The relevant statute here, GAR#22 (“Criminal Code of the New West Indies”), Section I, Subsection T, sets forth a very specific and clear definition:
“Publishes malicious, discriminatory, or defamatory content related to any person's religion, sexual orientation, political beliefs, gender identity, age, nationality, ethnicity, skin tone, or any other factor of differentiation outside the control of the victim;”
The Accused’s posts unfortunately fit this definition well. These posts were targeted defamatory content regarding race, religion, and possibly also gender.

The Region’s Attorney and the Honourable Accuser argued in the Sentencing hearing for the imposition of “a harsher sentence” and “the maximum penalty”, respectfully. Both argue that the Accused’s beliefs and conduct fly in the face of our region’s values, culture, and identity. The Court agrees with this notion.

The strength of this Region’s stance against hateful speech is difficult to underestimate. Not only did the General Assembly pass the Criminal Code outlawing this behavior, but in fact, prior to this it passed GAR#14 (“Defining Freedom of Expression”), amending §8 of the Constitution to prohibit hateful speech such as that of the Accused. Nearly 90% of voters approved of this measure, testament to the NWI’s resolve on this issue. As a consequence, not only did the Accused violate the Criminal Statute, but they in fact violated the Constitution, the document most fundamental to our Region. The Court does not take this lightly. It is also worth noting that prior to the establishment of this Court, the most frequent reason for punishments issued by the Executive were for Freedom of Expression violations, further highlighting the high-profile anti-hate speech stance this Region has held.

The Accuser additionally noted the NWI’s diversity, which adds to the character and richness of our community. The Court acknowledges this, and submits that this in fact renders the Accused’s conduct even more damaging. Our region is home to Muslims, to non-Europeans, and to those of non-European ethnic or racial backgrounds. These nations must not be made to feel attacked or unwelcomed on account of their factors of difference.

The Region’s Attorney makes a strong claim that the Accused is a remorseless “nationalist and fascist”, undeserving of mercy. The Accused did not even attempt to deny or downplay these assertions. The Court cannot dismiss this.

Thus, the Region’s Attorney formally requested a sentence of a concurrent 4-month Full Ban, 7-month Offsite Ban for the Discord Platform, and a 9 month Citizenship Suspension. The Accused has agreed to this proposal.

While the Court agrees with the Region and the Honourable Co-Accuser that the Accused’s conduct are severe, we do not agree with the proposed sentence.

The Region’s Attorney acknowledged in their arguments that this case regards only one count against an Accuser with no prior criminal record in the NWI. The Court considers these factors to be more significant than the Region has argued.

Additionally, just as the historical American jurist John Marshall often referenced the British colonial status quo, this Court also looks to the past actions of the Secretariat in dealing with these cases. While these are certainly not precedential, the Court views them as informative.

The three most recent Executive-issued sentences for offenses equivalent to what we would now consider Felony Abusing Freedom of Expression have consisted solely of Offsite Bans of 7 days or less. The Right Honourable Secretary-General has acknowledged in the past that they have been lenient on sentences due to concerns about exerting judicial authority, and this Court also notes that while we maintain records of the sentence, we know nothing about the circumstances of these cases. Despite this, these recent cases do not come near the Region’s request, which is for a total term of 9 months, approximately 38 times longer than these recent sentences.

Moreover, the Region’s request, if accepted, would Constitute the longest Freedom of Expression ban in NWI judicial records. Currently, the longest such sentence on record is a 3-month Full Ban. (The Accused was Electorate, and it is worth noting that a few days later, the Executive discovered other instances of wrongdoing and applied an additional consecutive Full Ban of 1 month.)

The Court now sees itself in the difficult position of selecting the appropriate sentence to fit the Crime. The Criminal Code authorizes the following for this Offense:

  • A Full Ban for a duration no shorter than 14 days and no longer than eight months.

  • A Region Ban for a duration no shorter than 14 days and no longer than eight months.

  • An Offsite Ban for a duration no shorter than 14 days and no longer than eight months.

  • Citizenship suspension for a duration no shorter than 14 days and no longer than fourteen months.

  • Ineligibility for a duration no shorter than 14 days and no longer than eighteen.

  • A Mute for a duration no shorter than 14 days and no longer than 90 days.

  • Post Suppression/deletion

The Court begins with the obvious, by upholding the 4 Post Suppressions. We order that the suppressed posts shall be deleted permanently.

With regards to the bulk of the sentence, we agree with the Region that a full ban is appropriate. Thus, we issue a Full Ban of three (3) Months. Additionally, this Court does not appreciate that Discord is often seen as a place where the rules are relaxed and where discriminatory or malicious speech is seen as just “edgy”. The Court is not confident that a three-month ban is sufficient to teach the Accused to use their Discord privilege responsibly. There must be a period of time in which their communication is confined to the RMB and subject to the stricter rules and scrutiny of the NationStates Moderators. Thus we issue an Offsite ban for the NWI Discord Server for a term of one-hundred eleven (111) days (three months and three weeks) concurrent with the Full Ban. Finally, the Accused’s Citizenship is hereby suspended for the term of one-hundred twenty-seven (127) days (four months and one week), again to be served concurrently, and after which they must reapply. The purpose of this staggered sentence is to allow for a gradual re-integration, with residency rights being restored after 90 days, then Discord rights being restored 3 weeks later, and then finally Citizenship being made again available just over 2 weeks later. It is this Court’s hope that this method will ease the Accused’s rehabilitation and reintegration.

Before we continue to the next discussion, the Court wishes to address a point regarding the nature of the posts in question in this Case. The Court rejects any notion that this is a persecution of a particular political belief. This is wholly false. There are numerous acceptable ways in which the Accused can discuss refugee policy without alienating or attacking entire races or religions. Open political discourse is a tenet of this region, however, this is not a license to post hateful or discriminatory messages on the basis of protected factors of difference. This is a concept that the Accused will need to take to heart during their absence if they wish it to be followed by successful reintegration. The Court may not be so merciful on the second offense.

ENHANCEMENTS AND MITIGATIONS:
The Court will not apply any sentencing mitigation, including the one for remorse. The Region’s Attorney makes a compelling point: the Accused has made no effort to apologize for their actions and ask for forgiveness, and just wants to get it over with. As we affirmed in the Sentencing Order for Case No 19-02 New West Indies v. Frellor, a guilty plea alone does not warrant a sentencing reduction. We do hope the Accused, at some point, will seek to make amends for their actions, or at least accept that they were indeed wrong. Perhaps they will make use of the short period before their sentence begins to do so.

The Court wishes to address the Region’s Attorney’s argument regarding the Accused’s disrespect of the Court and the Judicial Process. While the Court was frustrated by the Accused’s initial noncompliance and rude communications, the Court sees this as a naive act by a nation unfamiliar with our system and its procedures. The Court wishes they would have enlisted the assistance of counsel instead of rashly messaging the Court to speed things up because “I got places I need to go, Chief.”

However, the Court does not see these messages as malicious. Contrast the noncompliance in this case to that of Case No. 19-01 New West Indies v. The Greater Iran, a case in this Court currently suspended. There the Accused was extremely rude to the Court, and actively took action to evade and ignore Judicial Proceedings. The Patriotism States’ conduct does not come near. While improper, we do not believe it was sufficiently improper to warrant the imposition of a sentencing enhancement or other sanctions.

Since the Full Ban applied is less than six months, the Accused shall not be eligible to petition for Probation.

IN CONCLUSION:
The Court hereby orders that either the Esteemed Founder Achipel or the Right Honourable Secretary-General Karteria administer the following sentences against the Accused, The patriotism states:

  1. A 3-month Full Ban, to begin 19 January 2020 00:00 UTC and continuing through 17 April 2020 23:59 UTC

  2. A 111-day Offsite Ban for the NWI Discord Server, to begin 19 January 2020 00:00 UTC and continuing through 8 May 2020 23:59 UTC.

  3. A 127-day Citizenship Suspension, to begin 19 January 2020 00:00 UTC and continuing through 24 May 2020 23:59 UTC.

  4. Permanent deletion of the summarily suppressed posts.

It is so ordered.



Property of the High Court of the New West Indies
Maintained by the Chief Justice
Date of Publication: 18 January 2020
Last Updated: 18 January 2020


Nwi chief justice

Edited:

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