KUMARAN v R [2022] NZHC 2149

KUMARAN v R [2022] NZHC 2149 [29 August 2022]INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT UNTILMIDNIGHT ON 21 SEPTEMBER 2022 PURSUANT TO S 200 CRIMINALPROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-155[2022] NZHC 2149BETWEEN MUNISHAL KUMARANAppellantAND THE QUEENRespondentHearing: 22 August 2022Appearances: J Munro and M Rollason for AppellantS McMullan and L Dalton for RespondentJudgment: 29 August 2022JUDGMENT OF LANG J[on appeal against sentence and refusal to grant name suppression]This judgment was delivered by me on29 August 2022 at 3.30 pm.Registrar/Deputy RegistrarDateSolicitors:Crown Solicitor, AucklandJ D Munro, Barrister, Auckland[1] Ms Kumaran pleaded guilty to a charge laid under s 307A of the Crimes Act1961. This makes it an offence to threaten to do an act likely to cause significantdisruption to the activities of the civilian population of New Zealand. The particularsrelied on by the Crown were a series of threats by Ms Kumaran to carry out an attackusing firearms and explosives at graduation ceremonies to be held by the Universityof Otago (the University) in December 2020.[2] In a decision delivered on 12 May 2022 Judge C M Ryan dismissed anapplication by Ms Kumaran to be discharged under s 106 of the Sentencing Act 2002.1The Judge then sentenced Ms Kumaran to five months community detention duringwhich she is to observe a curfew at her home address between the hours of 10 pm and6 am each day. The Judge also imposed a sentence of supervision for a period of ninemonths. Finally, the Judge declined an application by Ms Kumaran for permanentname suppression.[3] Ms Kumaran does not appeal against the Judge's decision declining todischarge her without conviction. However, she appeals against the sentence and theJudge's refusal to grant name suppression.Background[4] Approximately 2,300 students were scheduled to graduate at ceremonies to beheld by the University between 9 and 19 December 2020. At or around the same timeapproximately 700 students were to graduate from the Otago Polytechnic (thePolytech). Students returned to Dunedin from all over New Zealand to attend theceremonies. Many were accompanied by members of their family and friends.[5] Between 4 and 8 December 2020 Ms Kumaran sent a series of emails to theUniversity threatening to carry out an attack at the graduation ceremonies usingfirearms and explosives. After informing the police of the threats it had received theUniversity cancelled all graduation ceremonies. The Polytech followed suit.1 R v Kumaran [2022] NZDC 8620.[6] Unsurprisingly, cancellation of the ceremonies caused widespread anger,frustration and distress to all involved. It also caused significant financial loss, notonly to those who had gone to the expense of travelling to Dunedin but also to theUniversity and local businesses who were reliant on the ceremonies to provide asubstantial amount of income.[7] The police were able to establish that Ms Kumaran had sent the threateningemails. She had done so by using email accounts she believed could not be tracedback to her. Her motivation for sending the emails was to cause the graduationceremonies to be cancelled. She took that step because she had been deceiving herparents for the past three years regarding her academic progress at the University.They believed she had completed a Bachelor of Health Science when that was not thecase.[8] Ms Kumaran had failed her papers in both her first and second years and wassuspended as a result. She then enrolled in a foundation course at the Polytech in herthird year. At the end of 2020 her parents believed she had completed the Bachelor ofHealth Science degree. She was too frightened to tell them the truth. Her parentstherefore arranged to travel with her to Dunedin so they could be present at hergraduation ceremony on 9 December 2020. Ms Kumaran decided to take steps to havethe graduation ceremony cancelled so her parents would not discover she had notcompleted the degree.[9] When approached by police, Ms Kumaran readily acknowledged her guilt. Shealso entered a guilty plea at an early stage.The appeal against sentenceThe sentence[10] Having analysed the aggravating features of the offending, the Judge selecteda starting point of 24 months imprisonment. The Judge then applied a discount of25 per cent to reflect the early guilty plea and ten per cent to reflect mental healthissues from which Ms Kumaran suffers. She also applied a discount of five per centfor youth and a further five per cent for previous good character and steps taken byMs Kumaran to "right the wrong". This resulted in a total discount of 11 months. TheJudge then reduced the sentence by two further months to reflect the time Ms Kumaranhad spent subject to restrictive bail conditions. The Judge converted the resultingsentence of 11 months imprisonment to one of five months community detentiontogether with nine months supervision.The argument on appeal[11] On Ms Kumaran's behalf Mr Munro argues that the Judge erred in imposing asentence of community detention. He submits that the Judge ought to have imposeda therapeutic sentence rather than a sentence of community detention. He argues thatany need for a punitive sentence has been met by the fact that Ms Kumaran voluntarilycarried out more than 400 hours of community work before she was sentenced.[12] Mr Munro also argues that the Judge ought to have given a greater discount toreflect the mental health issues from which Ms Kumaran was suffering during theperiod leading up to the sentence. In addition, he contends the Judge ought to havegiven Ms Kumaran a discount of at least ten per cent for matters pertaining to herpersonal background and 15 per cent to reflect previous good character.Decision[13] I begin first by considering the discounts the Judge gave to reflectMs Kumaran's mental health issues and her personal background, including previousgood character. In total, the Judge gave 20 per cent for these whereas Mr Munrocontends discounts totalling at least 35 per cent were appropriate.[14] The difficulty with the submission in relation to good character is thatMs Kumaran was just 22 years of age at the time of the offending. While a discountfor previous good character is not reserved for older offenders,2 Ms Kumaran wasunable to claim the level of credit that may have been available to a first offender ofmore advanced years. She did however receive a separate five per cent discount toreflect the fact that she was at the upper end of what can be deemed youth.2 Fangupo v R [2022] NZCA 484 at [55].Nevertheless, I do not consider a discount of five per cent for previous good characterto be unduly low.[15] The discount to be given for other personal circumstances is very much amatter of sentencing discretion. In the present case I am satisfied that an overalldiscount of 45% per cent was sufficient to recognise the issues the Judge identified asmitigating factors.[16] More importantly, I consider any argument relating to the level of discountsthe Judge applied is largely rendered moot by two factors. These relate to the startingpoint the Judge adopted and the fact that she ultimately converted the sentence to oneof five months community detention.[17] In selecting the starting point the Judge noted that the offending had severalaggravating factors. The first, and most important, was the effect of the offending ona very large number of people. The Judge referred in some detail to the numerousvictim impact statements filed prior to sentencing. She noted that approximately10,000 people had been scheduled to attend the graduation ceremonies. Many hadtravelled considerable distances to be there. They were naturally frustrated to discoverthe effort and expense they had incurred to attend the ceremonies was to be in vain.The University immediately arranged for graduates to be presented with their degreecertificates on campus, but this was no real substitute for the major ceremonies thathad been cancelled. University staff were also obliged to expend significant effort inorganising a replacement event in March 2021.[18] University staff who became aware of the threats at the time they were madewere also fearful for their own safety and that of attendees at the ceremonies. Theycould not know that the maker of the threats did not intend to carry them out and hadno means of doing so.[19] Furthermore, some of the ceremonies had been organised to replace earlierceremonies that were cancelled on up to three occasions due to the onset of theCOVID-19 pandemic. Many graduates and their supporters would have viewed thegraduation ceremonies as signalling the return to a state of normality but this was notto be.[20] As I have already observed, the business community in Dunedin sufferedconsiderable financial loss as a result of the ceremonies being cancelled. TheUniversity also estimates it suffered a financial loss of approximately $1.3 million.[21] Furthermore, the offending occurred less than two years after the mosqueattacks in Christchurch. The sudden appearance of another apparent terrorist threatcaused considerable harm not only to the social fabric of the Dunedin community butto that of the community at large. Many people began to wonder if New Zealand wasentering a phase in which terrorist attacks were to be a continuing threat.[22] The offending was also persistent and determined in nature. Ms Kumaran senther first email to the University on 4 December 2020 using an email account shecreated for that purpose. In order to authenticate the account, Ms Kumaran providedthe email address of a friend with whom she had studied at the University in 2017.She did this without her friend's knowledge or consent. She then sent a further emailfrom the account at 4.30 pm on 7 December 2020. This failed to connect, so she re-forwarded the message to the University at 4.49 pm. This email was returned to her,but it was also received by the administration at the University. Believing the secondemail had not sent, she created an additional email account from which she sent a thirdemail at 4.54 pm. Once again it was returned to her, but also received by the Universityadministration. Thinking the threats had not been received, she sent yet another emailat 4.56 pm. Yet again this was automatically returned to her but received by theadministration. At this point the police became involved.[23] Ms Kumaran was scheduled to travel to Dunedin with her parents the followingday. She remained concerned that her previous emails had not been received so sheestablished a further email account under the name of a convicted New Zealandterrorist. Shortly before her flight departed to Dunedin she sent an email to thegraduation office at the University. This read as follows:Dear University of Otago, since you cunts have suspended me, I am going toruin your graduation ceremonies with some firearms and a little touch ofexplosives. The town hall will make quite a boom, don't you think so? I willmake the Christchurch mosque attack look like child's play. You should havethe ceremonies at the risk of all your staff, students and guests. Are you goingto take the gamble?[24] A threat to use firearms and explosives to attack a large gathering of people isobviously calculated to cause maximum fear. This is so regardless of whether themaker of the threat has the means and the intention of carrying it out. The expressreference to the Christchurch mosque attack was an added aggravating factor.[25] The number of communications Ms Kumaran sent to the University isexplicable on the basis that she was not sure the University was receiving her emails.However, the different methods she used to accomplish her goal suggest a considerabledegree of premeditation.[26] Taking these factors into account I consider the Judge could easily haveadopted a starting point higher than two years imprisonment. The Crown hadsuggested a starting point of two to two and a half years imprisonment. The Judgecould not have been criticised for selecting a starting point at the upper end of theCrown's suggested range. This means the possibility that another Judge may havegiven Ms Kumaran a greater discount to reflect mitigating factors takes the appeal nofurther. Another Judge may also have selected a significantly higher starting point. Ido not consider the resulting sentence of 11 months imprisonment can realistically beregarded as manifestly excessive.[27] The Crown accepted at sentencing that an electronically monitored sentencewas likely to be appropriate. A sentence of 11 months imprisonment would often beconverted to home detention rather than community detention. In the present case theaggravating features of the offending are such that I consider Ms Kumaran wasfortunate to receive a sentence of community detention rather than home detention.[28] The Judge did not explain why she decided a sentence of community detentionwas appropriate. It may have been because Ms Kumaran had already undertaken thevoluntary work upon which Mr Munro now relies. However, it would have been opento the Judge to conclude that the sentencing principles of deterrence, denunciation andthe need to hold Ms Kumaran accountable for her actions required a more punitiveresponse than community detention.[29] Taking those factors into account I cannot say the end sentence of five monthscommunity detention coupled with nine months supervision was manifestly excessive.The appeal against sentence is accordingly dismissed.The appeal against name suppressionThe law[30] It is now well established that an application for suppression must bedetermined on a two-stage basis.3 First, the Court must determine whether any of thethreshold requirements set out in s 200(2) of the Criminal Procedure Act 2011 havebeen made out. If that is the case, the Court must go on to consider how it shouldexercise its discretion by balancing the identified threshold interests against the needfor transparency in criminal proceedings.4[31] Section 200(2) provides as follows:200 Court may suppress identity of defendant(2) The court may make an order under subsection (1) only if the court issatisfied that publication would be likely to—(a) cause extreme hardship to the person charged with, or convictedof, or acquitted of the offence, or any person connected with thatperson; or(b) cast suspicion on another person that may cause undue hardshipto that person; or(c) cause undue hardship to any victim of the offence; or(d) create a real risk of prejudice to a fair trial; or(e) endanger the safety of any person; or(f) lead to the identification of another person whose name issuppressed by order or by law; or3 Fagan v Serious Fraud Office [2013] NZCA 367 at [9].4 R v Liddell [1995] 1 NZLR 538 (CA) at 546.(g) prejudice the maintenance of the law, including the prevention,investigation, and detection of offences; or(h) prejudice the security or defence of New Zealand.[32] At sentencing Mr Munro contended on Ms Kumaran's behalf that she wouldsuffer extreme hardship in terms of s 200(2)(a) if her name was published because itwould severely exacerbate her existing depressive disorder, and this would lead to therisk she may commit suicide. He also contended Ms Kumaran could satisfys 200(2)(e) because publication would endanger her safety.The Judge's decision[33] It is not particularly easy to ascertain the basis on which the Judge dealt withthese arguments. After setting out the legal test she referred to decisions in whichapplicants for name suppression asserted extreme hardship based on the risk ofsuicide.5 The Judge then referred to the fact that Ms Kumaran, at just 22 years old,was a first-time offender facing a very serious charge. Publication of her name wouldexpose her and her family to stigma, humiliation, ignominy and trauma. The Judgenoted, however, that this was true for all first-time offenders facing a serious charge.[34] The Judge also noted there had been a high level of public interest in theoffending at the time it occurred and that it remained a high-profile case. As such, thesentencing was likely to attract considerable publicity. The Judge also observed thatshe had received a psychological report which, whilst largely based on self-reporting,recorded that Ms Kumaran had been diagnosed with severe depression in January 2021and had been prescribed medication for this. She also noted that numerous other healthprofessionals had prepared reports relating to Ms Kumaran during 2020 and 2021.The risk of suicide underpinned a decision by the Judge at an earlier stage of theproceeding to grant Ms Kumaran interim name suppression.5 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614; R v Locke [2021] NZHC 618;Santos v R [2019] NZCA 252; M v R [2016] NZCA 54.[35] The Judge then observed:[276] In other words, at the time I granted interim name suppression, I wasconcerned about the inability of the psychiatric team to manage you,Ms Kumaran. I no longer have those concerns. You are [in] my view, wellmanaged.[277] I accept that you have fears and concerns but you have a loving familywho now know your diagnosis. They are supported by professionals andtherapists in what they can do for you and they are able to monitor you. Youhave friends who know what has happened, one of whom has filed an affidavitand who supports you. You have your priest, who knows what has happenedand is also very supportive. I agree with Mr McCoubrey's submission thatthere is a great deal of support wrap-around for you now.[278] You know whom you can approach. You have at least one counsellorwho submits you need no more treatment. Dr Loshni Rogers refers to yourself-reporting but does express some concerns, to which I return. You hadconcerns about your parents' expectations and took extreme steps to deal withthat. You are being counselled and supported now not to respond so extremelyto life's challenges.[279] I find that the engagement and compliance with the mental healthprofessionals means that the risks have dissipated and can be managed. I turnto s 200(2)(e) which, as his Honour Brewer J observed in Shailer v R, carriesa lesser threshold.6 I accept the contents of the professional's reports. I findthat there is a risk between feared publication and the mental healthdeterioration of the defendant which will be worsened if there is publication.I am satisfied of that pursuant to s 200(2)(e).[36] This passage suggests the Judge concluded that Ms Kumaran now enjoys alevel of support that precludes her from establishing extreme hardship unders 200(2)(a). The Judge was, however, satisfied Ms Kumaran had established groundsfor name suppression under s 200(2)(e). This meant there was an appreciable risk thatpublication may endanger Ms Kumaran's safety by virtue of the deterioration shewould suffer in her mental health. The Judge amplified her acceptance of this groundin later paragraphs of her decision.7[37] The passage set out above did not, however, end the Judge's consideration ofwhether Ms Kumaran could establish extreme hardship under s 200(2)(a). Shereturned to that issue later after discussing X v R, in which the Court of Appeal referred6 Shailer v R [2015] NZHC 2607.7 At [288]-[289].to the difficult issues that social media commentary can raise in the present context.8The Judge then observed:[286] You were offline as the result of bail conditions. That will not bepermanent, especially if you return to study. Your family, especially youryounger brother, are not offline. Since the advent of COVID-19 and variouslockdowns, employment and academic communication is increasingly online.It is common for young people to communicate online using variousplatforms. It is somewhat short-sighted to assume that such people who areengaging in online platforms will not see any harmful statements made bythose on social media.[287] The [Court of Appeal] in X saw this as extreme hardship. I acceptthat. So while I do not accept that suicidal ideation in this case now has beenmade out, given the wrap-around services available, I do accept that there isextreme hardship in the nature of social media reporting, given the reportingthat has previously been shown and the reporting is likely to burst out once ifthe press report on today's proceedings[,] the press release what has happenedtoday. So in my view the test of extreme hardship is met by the risk of thatpublication.[38] It is therefore clear that the Judge found Ms Kumaran could establish extremehardship under s 200(2)(a) because of the likely effect of social media commentary ifher name was published.[39] Having found that jurisdiction existed to make an order, the Judge went on toconsider whether she should exercise her discretion in favour of suppression. Thisrequired her to weigh the factors Ms Kumaran had established under s 200(2) againstthe principle that there should be open reporting of court proceedings. The Judgedecided not to grant suppression for the following reasons:[300] I accept that first, you are a young offender who faces a serious chargeand that publication will expose you to stigma, humiliation, ignominy andtrauma which is true for all first time offenders facing a serious charge.Secondly, I accept there is a high level of public interest, as shown by mediareports and social media postings, which seemed to be by those upset at thecancellation of the graduation ceremony or concerned at the risk of terrorism.Those were released very close at the time. There is little of that e-noiserecently. We are creeping closer to two years ago and in my view things havecalmed down. There is nothing, in my view, extraordinary in people's desiresto know.[301] I accept now that you are being managed better than you were. Iaccept that you continued to present with high levels of anxiety and depression[but] there are ongoing management plans and you are on regular medication.8 X v R [2020] NZCA 387.[302] Of course, no mental health issues are ever completely managed.Anxiety and depression might be with you for some time. However, a highthreshold is required. Self-reported symptoms and claims of suicidal ideationdo not usually meet it. I accept in this case there is an independent diagnosis,but there is also continued engagement with professionals, medication andtreatment.[303] The professionals have come to grips with the requisite treatment andare aware and concerned about your risk, I am able to say, as much as I amever able to say with humans, that there is a plan in place and it is managed.[304] While your needs are considerable, they are not trumped by the publicinterest and the presumption of reporting. Accordingly, I decline theapplication for name suppression.The issue[40] The Crown does not challenge the Judge's conclusion that Ms Kumaran hadestablished jurisdiction under both s 200(2)(a) and (e). This means the only challengeto the Judge's decision relates to the manner in which she exercised her discretion atthe second stage of the process. Unlike a general appeal, an appeal against the exerciseof a discretion does not permit an appellate court to substitute its own decision for thatof the Court below. Rather, it is necessary for the appellant to show the decision makererred in a particular way. As the Court of Appeal observed in Parker v R:9[30] The discretion whether to suppress in the face of undue hardship is atrue discretion, where a range of answers may be available and different resultsmay reasonably be reached by different judges. Divergence in the case ofdiscretion is not indicative of error. A degree of appellate deference applies.The discretionary decision must be wrong, fundamentally, in one or more ofthese four respects: the Judge made an error of law or principle, failed to takeinto account some relevant matter, took into account an irrelevant matter, orwas plainly wrong. If not, the first instance decision should stand andappellate courts ought not to interfere with it. The Criminal Procedure Actdoes not invite a revisiting of the merits of a suppression application, as if abinitio, on and up the appellate trail.The argument[41] Mr Munro submits the Judge failed to give adequate weight to Ms Kumaran'syouth and the fact that she was a first offender. He also contends the Judge erred inher assessment of the degree of publicity the case was likely to receive and in herconclusion regarding the current state of Ms Kumaran's mental health.9 Parker v R [2020] NZCA 502, (2020) 29 CRNZ 536.[42] I granted Mr Munro leave to provide me with a report he had obtained fromDr Russell Wyness, a psychiatrist who interviewed Ms Kumaran in the presence of herparents after she had been sentenced. Dr Wyness says Ms Kumaran remains deeplydepressed about the offending and its aftermath. She is experiencing a great burdenof guilt for having brought disgrace upon her family. She also feels guilty about theemotional distress and financial burden she has caused for her parents. She believestheir plight will be magnified if her offending becomes known to the wider communityand the Fijian Indian community in particular.[43] Dr Wyness provides the following opinion:My view at the time of my assessment of her on 27/05/2022, was that MsKumaran had had a recurrence of panic symptoms including experiencingpanic attacks and nightmares. She was also describing and experiencingsufficient symptoms of depression for her to be diagnosed as havingdepression. These symptoms included hopelessness about the future, havingno motivation to get out of bed in the morning, low mood, catastrophic beliefsabout her future and her fear of the lifting of name suppression. She was notexperiencing any pleasure in daily activities, had lost her appetite, lost herenergy and had recurrent suicidal thoughts.At that time I continued the medication treatment for Ms Kumaran on the twoanti-depressant and anti-anxiety medications she was already taking. It wasmy impression that she had been able to make good progress on thesemedicines and while she had hope of re-establishing a path of study to a futurecareer. I was concerned at the extent of regression of Ms Kumaran's mentalstate at the time. I felt concerned about her safety with regard to self-harm /suicide particularly because of her tendency to see things in an all or nothingway. Her parents were already ensuring that she was closely observed tominimise the risk of self-harm. I believe her tendency to having black-or-white thinking my result from her youth, relative emotional immaturity andlimited life experience. Of concern to me is that I believe such thinking led toher initial offending (i.e. seeing no other way to cope with her situation). Ihave concerns that if name suppression is lifted her feelings of hopelessnessfor the future, shame and guilt could lead to her seeing no way forward forherself and deciding on a desperate action which could put her life at risk.Decision[44] The Judge self-evidently did not fail to take into account Ms Kumaran's youth,the fact that she was a first offender and the likely effect that publication will have onher mental health. Those issues are all referred to in the passage of her remarks setout above.10 The weight to be given to relevant factors is a matter for the decisionmaker unless it results in an outcome that is plainly wrong.[45] I do not consider that the information contained in Dr Wyness's report takesmatters a great deal further because it is largely consistent with that contained in earlierreports. Nor do I find it surprising that Ms Kumaran remained in a depressed statefollowing sentencing. She was not discharged without conviction and she remainedat risk of having her name published. Dr Wyness expresses a concern thatMs Kumaran may act on suicidal ideation but he also notes that her parents are alertto this risk and are taking active steps to address it. I consider this reinforces theJudge's conclusion about the effectiveness of Ms Kumaran's current support network.[46] Mr Munro also argues there was no compelling reason to publishMs Kumaran's name. He accepts that the facts giving rise to the offending are a matterof public interest but submits the identity of the offender is not. I accept thissubmission but the same can be said of many forms of offending. The identity of theoffender is only likely to be a matter of public interest where there is a risk of furthersimilar offending in the future. In that situation it becomes important for thecommunity to know the identity of the offender. That is obviously not the case here.[47] However, this does not reflect the test for suppression. Once grounds havebeen established under s 200(2) the applicant must still demonstrate that the need forsuppression outweighs the principle that court proceedings should be reported openly.For the Court to exercise its discretion in favour of the applicant, the balance must"clearly favour" suppression.11 It is not sufficient merely to establish that there is nopublic interest in the identity of the offender.[48] The only issue that has exercised my mind is whether the Judge was plainlywrong to decline suppression after having concluded there was an appreciable risk thatpublication will cause Ms Kumaran extreme hardship and may endanger her safety.This is because, in many cases, the existence of one or more of the factors set out ins 200(2) is determinative. By way of example, the need to protect fair trial rights under10 At [39].11 D (CA443/2015) v Police, above n 5, at [12].s 200(2)(d) will invariably displace the principle in favour of open justice. That is notnecessarily the case with many of the other grounds, however, because the risks theypresent may be capable of mitigation.[49] Having reflected on the issue I do not consider the Judge's decision was plainlywrong. The only basis on which she found extreme hardship was the fact thatMs Kumaran was likely to be subject to adverse comment on social media. I considerthis outcome can be mitigated to a large degree by the support network the Judge wassatisfied is now in place. The risk of danger to her safety can also be met by thatprotective factor. There is therefore no basis on which this court in its appellatejurisdiction may intervene.[50] The appeal against refusal to grant name suppression is also dismissed.However, Ms Kumaran and those assisting her should be given time to prepare for thefact that her name will now be published. I therefore direct that the existing interimorders for suppression of her name shall remain in effect until midnight on21 September 2022.Lang J