Krishnan v Police

[2023] NZHC 3326

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-260

[2023] NZHC 3326

BETWEEN

YUVARAJ KRISHNAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

13 November 2023

Appearances:

S Tait for Appellant

L Radich for Respondent

Judgment:

22 November 2023

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 22 November 2023 at 3:00 pm.

Registrar/Deputy Registrar

Solicitors:           Kayes Fletcher Walker Ltd (Office of the Crown Solicitor), Manukau Counsel:    S Tait, Manukau City

KRISHNAN v NEW ZEALAND POLICE [2023] NZHC 3326 [22 November 2023]

[1]    On 27 April 2023, Judge N R Dawson sentenced  Yuvaraj  Krishnan  to  three years and seven months’ imprisonment on 14 charges of fraud and dishonesty.1 Mr Krishnan now appeals against sentence on the basis that it is manifestly excessive, and the Judge erred in not giving sufficient credit for matters raised in a psychiatric report and in a cultural report.

Background

[2]    During 2010, Mr Krishnan attended the University of Auckland for the first year of a Bachelor of Science degree. He applied for entry to the medical programme beginning in 2011 but was declined as he did not meet the academic standard.

[3]    During 2011 and 2012, Mr Krishnan attended various lectures, classes and laboratories for the year two and year three medical programme, without being an enrolled student. He acted as though he was a legitimate student to his classmates and went to great lengths to keep up his charade. He was eventually found out and trespassed from the University in October 2012.

[4]    Mr Krishnan then left New Zealand in February 2013 for Australia where he completed a Bachelor of Science (Anatomy and Histology)  before  returning  to New Zealand in November 2014.

[5]    From April 2015 to August 2016, Mr Krishnan worked at the Ministry of Business and Innovation as an Immigration Officer. This position had a medical element in that he was reviewing medical documentation and providing advice to new immigrants, but it did not require any formal qualifications or prior training.

[6]    In 2016, Mr Krishnan left New Zealand to begin the first year of a six-year programme of medicine at the Jagellonian University in Krakow, Poland, to be carried out in a four-year mode. He did not graduate from Jagellonian University and left after his third year of study. He returned to New Zealand in June 2020. Shortly after returning to New Zealand, Mr Krishnan began looking for work in the health industry.

1      R v Krishnan [2023] NZDC 8182.

He did not hold a medical degree and was not registered to practice medicine in  New Zealand.

[7]    The following is a summary of Mr Krishnan’s offending which commenced soon after he returned to New Zealand:

Date	Offence description	Victim
1	17 October 2020	Dishonestly used a false curriculum vitae to obtain a job as COVID-19 Case and Contact team member with Auckland District Health Board (annual salary $65,000).	Auckland District Health Board
2	22 April – 2 August 2021	Forged a letter of support from Clinical Manager, Auckland District Health Board to use in High Court appeal against conviction for careless use of a motor vehicle.	Auckland District Health Board/High Court
3	22 April – 2 August 2021	Forged letter of support from Medical Council of New Zealand to use in High Court appeal against conviction for careless use of a motor vehicle.	Medical Council of New Zealand/High Court
4	2 August 2021	Used forged letter of support from Clinical Manager, Auckland District Health Board in appeal against conviction for careless use of a motor vehicle heard in High Court on 2 August 2021.	Auckland District Health Board/High Court
5	2 August 2021	Used forged letter of support from Medical Council of New Zealand in appeal against conviction for careless use of a motor vehicle heard in High Court on 2 August 2021.	Medical Council of New Zealand/High Court
6	2 August 2021	Committed perjury by falsely stating in an affidavit submitted by him to the High Court that he had passed his medical examinations in order to gain full registration as a doctor in New Zealand (as result of this false information Whata J allowed his appeal against conviction and discharged him without conviction on charge of careless use of a motor vehicle).	High Court

7	26 September 2021	Dishonestly used a forged letter from Medical Council of New Zealand when requesting a position as a Medical Officer Support for his employer, Auckland District Health Board.	Medical Council of New Zealand/Auckland District Health Board
8	20 December 2021 – 3 August 2022	Dishonestly used a false curriculum vitae and a forged letter from Medical Council of New Zealand to obtain a job as Respiratory Research Fellow at Middlemore Hospital (annual salary $104,080) (while employed saw 63 patients in clinic and 18 patients in research capacity).	Medical Council of New Zealand/Counties Manukau Health Board
9	11      February     – 25 February 2022	Forged annual practising certificate from Medical Council of New Zealand to use to confirm eligibility for job at Middlemore Hospital.	Medical Council of New Zealand
10	17      February     – 10 August 2022	Used forged annual practising certificate from Medical Council of New Zealand to confirm eligibility for job at Middlemore Hospital.	Medical Council of New Zealand/Counties- Manukau Health Board
11	11 March – 16 March 2022	Altered   the    annual   practising certificate of the complainant, a qualified doctor with intent to obtain by deception.	The complainant
12	16 March 2022	Used the altered annual practising certificate of the complainant to confirm eligibility for job at Middlemore Hospital.	The          complainant/ Counties-Manukau Health Board
13	3 August 2022	Dishonestly used a false curriculum vitae in application for job as medical officer specialising in Dermatology.	NZ Skin Health
14	7 August 2022	Dishonestly     used     a     false curriculum vitae in application for job as qualified medical officer.	Edison Clinic

Psychiatric report

[8]    In preparation for sentencing, Mr Krishnan obtained a psychiatric report dated 18 April 2023 from Dr Karl Jansen, a consultant psychiatrist practising in Auckland.

[9]    In reaching a diagnosis, Dr Jansen said that his assessment was somewhat confounded by evidence indicating that Mr Krishnan could be an unreliable informant at times. Nonetheless, Dr Jansen was of the opinion that Mr Krishnan’s most recent distress was likely secondary to the difficult position in which he found himself. However, the history provided for his life overall was suggestive of bipolar affective disorder type II, given the description of mostly recurrent depression with mild to moderate elevations, and/or some emotionally unstable personality vulnerabilities. The history provided was also suggestive of a dissociative disorder, perhaps a degree of Dissociative Identity Disorder (DID), although the Dissociative Experiences Scales (DES) score in September 2022 was not high.

[10]   As to a nexus with the offending, Dr Jansen was of the opinion that the history provided suggested that Mr Krishnan may have been recovering from an episode of depression and had started to elevate mildly at the time of falsification of the Annual Practising Certificate. It was possible that without this mood disorder that particular offending may not have occurred. However, this explanation did not cover the entire time period of offending, which was significantly longer. That evidence indicated that conduct issues were also relevant in addition to some health considerations. Dr Jansen was of the opinion there might be a nexus with a dissociative tendency, or actual dissociative identity disorder. He said Mr Krishnan had provided some evidence to that effect.

Cultural report

[11]   Mr Krishnan also obtained a  cultural report dated 25 February 2023 from  Ms Tara Oakley, a Waikato University Masters’ graduate in Social Science.

[12]   In her report, Ms Oakley states that three factors appear to be causative of  Mr Krishnan’s offending – significant mental health issues, cultural and familial pressures and expectations, and the theory of intersectionality.

[13]   As to significant mental health issues, Ms Oakley stated at the outset of her report that Mr Krishnan had recently been diagnosed with bipolar affective disorder and it was likely that this was a key contributing factor to his offending behaviours. It does not, however, appear that Ms Oakley had the benefit of Dr Jansen’s later report

when she completed her report in February 2023. Dr Jansen does not make a firm diagnosis saying that the history provided by Mr Krishnan was “suggestive” of bipolar affective disorder. Ms Oakley goes on to give statistical evidence about the number of prisoners with mood disorder. Ms Oakley then suggests that it is highly plausible that Mr Krishnan has been vulnerable to offending since he was 16 years old, when he began to display the same characteristics identified as symptomatic of his bipolar disorder.

[14]   Ms  Oakley  states  that  there  are  several  cultural  elements   linked  to    Mr Krishnan’s offending, the most relevant being the stigma associated with mental health in Indian culture. That is why no help was sought. Ms Oakley also refers to the immense cultural and familial pressure to succeed scholastically and professionally.

[15]   As to the theory of intersectionality, Ms Oakley states that the significant mental health issues and the cultural and familial pressures and expectations do not appear to stand alone. Ms Oakley states that it is the interaction between them, compounding their impact which is likely at the heart of Mr Krishnan’s offending. She states that intersectionality is a theory often applied to factors of inequality, particularly in feminist theory, but it is also an appropriate tool for interpreting any factors of deprivation or difficulty.

District Court decision

[16]   After reciting the summary of facts, Judge N R Dawson set out the sentencing principles he had to take into account in the sentencing process. The Judge then assessed the gravity of Mr Krishnan’s offending as potentially very high, given the risk that members of the public may have been exposed to him claiming to have qualifications and expertise he simply did not have. The Judge also referred to the threat to the integrity of the justice system in New Zealand and the salary he received from employers based on qualifications he did not have. The Judge noted the many people deceived, Mr Krishnan’s level of premeditation, the long period over which the offending continued and the high level of sophistication.

[17]   The Judge confirmed Mr Krishnan was entitled to a 25 per cent discount for his guilty pleas. The Judge noted Mr Krishnan’s expression of remorse and previous good character, which he said was offset to a large extent by the duration of the offending as well as its planning and sophistication. As to the psychiatric report, the Judge commented that there was possibly some nexus between a dissociative tendency and the offending, but it was a low causal link. Similarly, the Judge thought that the cultural report only showed a low causal link between family expectations and the offending. The Judge commented:2

…Your offending appears to be driven by a distorted sense of self-entitlement and a “Walter Mitty” view of your own life.

[18]   Finally, the Judge acknowledged that Mr Krishnan had taken part in a restorative justice conference and apologised to a representative of the Middlemore Hospital staff.

[19]   The Judge adopted a starting point for the forgery and fraud offending  of  five years’ imprisonment. He then uplifted the starting point by one year for the perjury charge,3 to reach an adjusted starting point of six years’ imprisonment.

[20]The Judge then granted the following discounts on sentence:

(a)25 per cent for guilty pleas;

(b)Five per cent for previous good character;

(c)Five per cent for remorse and restorative justice; and

(d)Five per cent for contributory factors set out in the psychiatric and cultural reports.

2      R v Krishnan, above n 1, at [60].

3      The Judge found that, by itself, the perjury charge would warrant a starting point of two years’ imprisonment but taking the totality principle into account the uplift should only be one year’s imprisonment.

[21]   The total 40 per cent discount brought the adjusted started point of six years’ imprisonment down to a sentence of three years and seven months’ imprisonment, which was the sentence then imposed on all charges to be served concurrently.

Approach on appeal

[22]   Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. An appeal against sentence may only be allowed by the High Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 Where these conditions are not met, the Court retains no discretion and must dismiss the appeal.

[23]   As the Court of Appeal stated in Tutakangahau v R,5 quoting the lower Court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 It is only appropriate for the High Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7 It must be shown that there has been an error by the sentencing Judge.8 The Court will not “tinker” with a sentence imposed if the sentence is one that was available to the first instance Judge and in range.9

Appellant submissions

[24]Counsel submits that the sentencing Judge erred in two respects:

(a)the overall sentence imposed was manifestly excessive; and

(b)the Judge did not give sufficient credit for Mr Krishnan’s psychiatric and cultural reports.

4      Criminal Procedure Act 2011, ss 250(2) and 250(3).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

6      At [36], citing Tutakangahau v R [2014] NZHC 556 at [10].

7      Ripia v R [2011] NZCA 101 at [15].

8      Tutakangahau v R, above n 5, at [30].

9      R v Boyd (2004) 21 CRNZ 169 (CA) at [38].

[25]   Counsel accepts that the major aggravating feature is the threat to the integrity of both the health and justice systems in New Zealand. Additional aggravating features are:

(a)the pecuniary advantage obtained of approximately $135,000;

(b)the duration of the offending being 22 months; and

(c)the nature of the offending was sophisticated, persistent, determined and brazen.

[26]    Additionally, counsels submit that Mr Krishnan was motivated by a deep seated psychological “problem” (or need), rather than for personal gain driven by greed.

[27]   In the present case, counsel submits that the starting point of the forgery and fraud offending should have been four-and-a half years’ imprisonment rather than five years’ imprisonment, as adopted by the Judge. Moreover, a stand-alone sentence of one years’ imprisonment was appropriate for the perjury charge on its own. When totality is taken into account, an uplift of six months’ imprisonment was therefore appropriate to make the adjusted starting point a sentence of five years’ imprisonment rather than six years’ imprisonment.

[28]   Apart from the error as to the starting point, counsel submits that the Judge was wrong to grant a discount of only five per cent for the contributory factors identified in the psychiatric and cultural reports. Counsel submits that Mr Krishnan was not a daydreamer trying to escape reality. He was an unwell man. Rather than a “disturbed sense of self-entitlement” and a “Walter Mitty” view of his own life, it was his mental illness that explains why Mr Krishnan was living in the chaotic circumstances he was and that made the offending more likely. The incredibly high academic expectations placed on Mr Krishnan by his parents were also unbearable for him. Counsel submits that the causative contributions of background factors is not limited to deprivation, historical dispossession, and addiction.

[29]   The statutory purposes and principles of sentencing require judges to dispense individualised justice in the sense that sentencing decisions must reflect a careful evaluation of the circumstances of the offending and offender. Counsel therefore submits that the Judge should have granted a 10 per cent discount for the factors identified in the psychiatric and cultural reports.

[30]   Counsel submits that utilising a starting point of five years’ imprisonment and granting a discount of 10 per cent for the psychiatric and cultural reports, rather than five per cent, would lead to an appropriate sentence of two years and nine months’ imprisonment, rather than the end sentence of three years and seven months’ imprisonment which was imposed.

Discussion

[31]   I am of the view that the overall sentence cannot be seen as manifestly excessive. The end sentence was the sum of a number of component parts, comprising the starting point and the various discounts which were adopted. These parts cannot be viewed in isolation.

[32]   However, as to the starting point, various cases were produced to the sentencing Judge. None were directly comparable. On appeal, the Court’s attention was drawn to the case of R v Siddiqui,10 where a starting point of four-and-a half years’ imprisonment was adopted in the case of a doctor who had presented fraudulent documents to obtain a position as a psychiatrist with the Waikato District Health Board.

[33]   Mr Krishnan’s offending is slightly worse than that of Mr Siddiqui. The duration of Mr Krishnan’s offending was 20 months, rather than six months in the case of Mr Siddiqui. Mr Krishnan had also used many fraudulent documents of different types at various stages as part of his career advancement, whereas Mr Siddiqui had presented fraudulent documents only at the outset to obtain the position. Mr Krishnan did not have any medical qualifications, whereas Mr Siddiqui had qualified as a doctor in the United States. Taking these factors into consideration, the starting point of

10     R v Siddiqui [2017] NZDC 21063.

five years’ imprisonment in Mr Krishnan’s case aligns comfortably with that adopted in Siddiqui.

[34]The aggravating factors of Mr Krishnan’s offending are:

(a)careful planning and a high degree of sophistication. The offending was persistent and determined;

(b)gross breach of trust and vulnerability. Mr Krishnan saw 63 patents in clinic and 18 in a research capacity at Middlemore Hospital. He conducted respiratory-related chest examinations, prescribed medications and made referrals without being medically qualified;

(c)the duration of the offending spanned 22 months; and

(d)as a result of his fraudulent offending, Mr Krishnan received approximately $135,000 in salary from his employers.

[35]Mr Krishnan’s offending was a real threat to the integrity of the health system.

[36]   His offending was also a real threat to the integrity of the justice system. A High Court Judge had allowed his appeal against conviction on a careless driving charge on the basis of false evidence in an affidavit sworn by him. Mr Krishnan secured a perverse judicial outcome through his lies.

[37]   Counsel submits for consideration the cases of Nisbet v R and R v Malasia for the charge of perjury.11 In those cases starting points of one year’s imprisonment, and 18 months’ imprisonment were adopted, respectively. I do not consider those cases on all fours with Mr Krishnan’s offending, however. In Nisbet, the perjurious statement was recanted when the defendant was warned about the importance of being honest under cross-examination. In Malasia, the perjury involved a false affidavit provided to the Court for the purposes of an electronically monitored bail application.

11     Nisbet v R [2017] NZCA 476; and R v Malasia [2020] NZHC 2385.

[38]   Mr Krishnan’s perjury was more concerted and extensive, comprising three forged letters of support in addition to a false affidavit. The perjury was committed in furtherance of Mr Krishnan’s wider purpose to continue fraudulently practising medicine in addition to vacating his conviction for careless driving. Mr Krishnan abused Court processes by appealing a decision of the District Court on the basis of perjury and misleading a High Court Judge. In those circumstances, a standalone starting point of two years’ imprisonment is clearly within range of the caselaw provided. Taken together, the adjusted starting point of six years’ imprisonment was clearly available to the Judge for both the forgery and fraud charges and the perjury charge.

[39]   No issue is taken with the 25 per cent discount for Mr Krishnan’s guilty pleas. As noted earlier, the Judge then granted an additional 15 per cent discount for previous good character, remorse, participation in a restorative justice conference and the psychiatric and cultural reports, taken cumulatively. Again, I am of the view that those discounts were clearly available to the Judge to recognise Mr Krishnan’s personal circumstances.

[40]   Mr Krishnan’s previous good character and remorse are evident in the psychiatric and cultural reports yet have been taken from the reports and given separate discounts. A separate discount for previous good character would not necessarily have been granted by another Judge in light of the duration of the present offending as well as the earlier, sustained deception of the University of Auckland over a period of    18 months in which Mr Krishnan purported to be a legitimately enrolled medical student.

[41]   Cultural reports often refer to a childhood of deprivation. Notwithstanding the family’s pressures to succeed, Mr Krishnan appears to have experienced a stable, loving environment where there was no domestic violence or drug use. He has two brothers who were raised under the same pressure to achieve academically, and had similar ambitions, but did not resort to criminality. While that comparison does not account for Mr Krishnan’s reported difficulties with mental health, it does suggest that his home environment was not a negative influence such that it can explain his conduct. Moreover, the account given of unreasonable pressure being placed on him

to succeed appears to be entirely self-reported. The accounts given by his mother in the cultural report do not appear to support his account.

[42]   Counsel’s submission that Mr Krishnan’s upbringing prevented him from seeking treatment for his mental health difficulties when they first emerged is acknowledged, but is unpersuasive given Mr Krishnan is now 31 years old and has lived apart from his family for long periods during which he was independent. While the psychiatric report did indicate some difficulties with depression and symptoms associated with bipolar affective disorder type II, I note that no formal diagnosis has emerged which would suggest a strong causative link between Mr Krishnan’s offending and mental illness.

[43]   In those circumstances, the discounts totalling 15 per cent, which were in addition to the 25 per cent for guilty pleas, were also clearly available to the Judge. These amounted to a total discount on sentence of 40 per cent. The Judge did not fall into error by not granting further discounts for Mr Krishnan’s personal circumstances.

[44]   Looked at overall, the final sentence of three years and seven months’ imprisonment is not manifestly excessive.

Result

[45]The appeal against sentence is dismissed.

Woolford J