Kumaran v The the Queen

[2022] NZHC 2149

INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT UNTIL MIDNIGHT ON 21 SEPTEMBER 2022 PURSUANT TO S 200 CRIMINAL

PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-155

[2022] NZHC 2149

BETWEEN

MUNISHAL KUMARAN

Appellant

AND

THE QUEEN

Respondent

Hearing:

22 August 2022

Appearances:

J Munro and M Rollason for Appellant

S McMullan and L Dalton for Respondent

Judgment:

29 August 2022

JUDGMENT 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 Registrar Date……………

Solicitors:

Crown Solicitor, Auckland

J D Munro, Barrister, Auckland

KUMARAN v R [2022] NZHC 2149 [29 August 2022]

[1]                 Ms Kumaran pleaded guilty to a charge laid under s 307A of the Crimes Act 1961. This makes it an offence to threaten to do an act likely to cause significant disruption to the activities of the civilian population of New Zealand. The particulars relied on by the Crown were a series of threats by Ms Kumaran to carry out an attack using firearms and explosives at graduation ceremonies to be held by the University of Otago (the University) in December 2020.

[2]                 In a decision delivered on 12 May 2022 Judge C M Ryan dismissed an application by Ms Kumaran to be discharged under s 106 of the Sentencing Act 2002.1 The Judge then sentenced Ms Kumaran to five months community detention during which she is to observe a curfew at her home address between the hours of 10 pm and 6 am each day. The Judge also imposed a sentence of supervision for a period of nine months. Finally, the Judge declined an application by Ms Kumaran for permanent name suppression.

[3]                 Ms Kumaran does not appeal against the Judge’s decision declining to discharge her without conviction. However, she appeals against the sentence and the Judge’s refusal to grant name suppression.

Background

[4]                 Approximately 2,300 students were scheduled to graduate at ceremonies to be held by the University between 9 and 19 December 2020. At or around the same time approximately 700 students were to graduate from the Otago Polytechnic (the Polytech). Students returned to Dunedin from all over New Zealand to attend the ceremonies. 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 the University threatening to carry out an attack at the graduation ceremonies using firearms and explosives. After informing the police of the threats it had received the University 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, not only to those who had gone to the expense of travelling to Dunedin but also to the University and local businesses who were reliant on the ceremonies to provide a substantial amount of income.

[7]                 The police were able to establish that Ms Kumaran had sent the threatening emails. She had done so by using email accounts she believed could not be traced back to her. Her motivation for sending the emails was to cause the graduation ceremonies to be cancelled. She took that step because she had been deceiving her parents 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 the case.

[8]                 Ms Kumaran had failed her papers in both her first and second years and was suspended as a result. She then enrolled in a foundation course at the Polytech in her third year. At the end of 2020 her parents believed she had completed the Bachelor of Health Science degree. She was too frightened to tell them the truth. Her parents therefore arranged to travel with her to Dunedin so they could be present at her graduation ceremony on 9 December 2020. Ms Kumaran decided to take steps to have the graduation ceremony cancelled so her parents would not discover she had not completed the degree.

[9]                 When approached by police, Ms Kumaran readily acknowledged her guilt. She also entered a guilty plea at an early stage.

The appeal against sentence

The sentence

[10]              Having analysed the aggravating features of the offending, the Judge selected a starting point of 24 months imprisonment. The Judge then applied a discount of   25 per cent to reflect the early guilty plea and ten per cent to reflect mental health issues from which Ms Kumaran suffers. She also applied a discount of five per cent for youth and a further five per cent for previous good character and steps taken by

Ms Kumaran to “right the wrong”. This resulted in a total discount of 11 months. The Judge then reduced the sentence by two further months to reflect the time Ms Kumaran had spent subject to restrictive bail conditions. The Judge converted the resulting sentence of 11 months imprisonment to one of five months community detention together with nine months supervision.

The argument on appeal

[11]              On Ms Kumaran’s behalf Mr Munro argues that the Judge erred in imposing a sentence of community detention. He submits that the Judge ought to have imposed  a therapeutic sentence rather than a sentence of community detention. He argues that any need for a punitive sentence has been met by the fact that Ms Kumaran voluntarily carried 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 to reflect the mental health issues from which Ms Kumaran was suffering during the period leading up to the sentence. In addition, he contends the Judge ought to have given Ms Kumaran a discount of at least ten per cent for matters pertaining to her personal background and 15 per cent to reflect previous good character.

Decision

[13]              I  begin  first  by  considering  the  discounts  the  Judge  gave  to  reflect    Ms Kumaran’s mental health issues and her personal background, including previous good character. In total, the Judge gave 20 per cent for these whereas Mr Munro contends discounts totalling at least 35 per cent were appropriate.

[14]              The difficulty with the submission in  relation  to  good  character  is  that  Ms Kumaran was just 22 years of age at the time of the offending. While a discount for previous good character is not reserved for older offenders,2 Ms Kumaran was unable to claim the level of credit that may have been available to a first offender of more advanced years. She did however receive a separate five per cent discount to reflect 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 character to be unduly low.

[15]              The discount to be given for other personal circumstances is very much a matter of sentencing discretion. In the present case I am satisfied that an overall discount of 45% per cent was sufficient to recognise the issues the Judge identified as mitigating factors.

[16]              More importantly, I consider any argument relating to the level of discounts the Judge applied is largely rendered moot by two factors. These relate to the starting point the Judge adopted and the fact that she ultimately converted the sentence to one of five months community detention.

[17]              In selecting the starting point the Judge noted that the offending had several aggravating factors. The first, and most important, was the effect of the offending on a very large number of people. The Judge referred in some detail to the numerous victim impact statements filed prior to sentencing. She noted that approximately 10,000 people had been scheduled to attend the graduation ceremonies. Many had travelled considerable distances to be there. They were naturally frustrated to discover the 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 degree certificates on campus, but this was no real substitute for the major ceremonies that had been cancelled. University staff were also obliged to expend significant effort in organising a replacement event in March 2021.

[18]              University staff who became aware of the threats at the time they were made were also fearful for their own safety and that of attendees at the ceremonies. They could not know that the maker of the threats did not intend to carry them out and had no means of doing so.

[19]              Furthermore, some of the ceremonies had been organised to replace earlier ceremonies that were cancelled on up to three occasions due to the onset of the COVID-19 pandemic. Many graduates and their supporters would have viewed the

graduation ceremonies as signalling the return to a state of normality but this was not to be.

[20]              As I have already observed, the business community in Dunedin suffered considerable financial loss as a result of the ceremonies being cancelled. The University also estimates it suffered a financial loss of approximately $1.3 million.

[21]              Furthermore, the offending occurred less than two years after the mosque attacks in Christchurch. The sudden appearance of another apparent terrorist threat caused considerable harm not only to the social fabric of the Dunedin community but to that of the community at large. Many people began to wonder if New Zealand was entering a phase in which terrorist attacks were to be a continuing threat.

[22]              The offending was also persistent and determined in nature. Ms Kumaran sent her first email to the University on 4 December 2020 using an email account she created for that purpose. In order to authenticate the account, Ms Kumaran provided the 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 email from 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 second email had not sent, she created an additional email account from which she sent a third email at 4.54 pm. Once again it was returned to her, but also received by the University administration. Thinking the threats had not been received, she sent yet another email at 4.56 pm. Yet again this was automatically returned to her but received by the administration. At this point the police became involved.

[23]              Ms Kumaran was scheduled to travel to Dunedin with her parents the following day. She remained concerned that her previous emails had not been received so she established a further email account under the name of a convicted New Zealand terrorist. Shortly before her flight departed to Dunedin she sent an email to the graduation office at the University. This read as follows:

Dear University of Otago, since you cunts have suspended me, I am going to ruin your graduation ceremonies with some firearms and a little touch of

explosives. The town hall will make quite a boom, don’t you think so? I will make the Christchurch mosque attack look like child’s play. You should have the ceremonies at the risk of all your staff, students and guests. Are you going to take the gamble?

[24]              A threat to use firearms and explosives to attack a large gathering of people is obviously calculated to cause maximum fear. This is so regardless of whether the maker of the threat has the means and the intention of carrying it out. The express reference to the Christchurch mosque attack was an added aggravating factor.

[25]              The number of communications Ms Kumaran sent to the University is explicable 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 considerable degree of premeditation.

[26]              Taking these factors into account I consider the Judge could easily have adopted a starting point higher than two years imprisonment. The Crown had suggested a starting point of two to two and a half years imprisonment. The Judge could not have been criticised for selecting a starting point at the upper end of the Crown’s suggested range. This means the possibility that another Judge may have given Ms Kumaran a greater discount to reflect mitigating factors takes the appeal no further. Another Judge may also have selected a significantly higher starting point. I do not consider the resulting sentence of 11 months imprisonment can realistically be regarded as manifestly excessive.

[27]              The Crown accepted at sentencing that an electronically monitored sentence was likely to be appropriate. A sentence of 11 months imprisonment would often be converted to home detention rather than community detention. In the present case the aggravating features of the offending are such that I consider Ms Kumaran was fortunate to receive a sentence of community detention rather than home detention.

[28]              The Judge did not explain why she decided a sentence of community detention was appropriate. It may have been because Ms Kumaran had already undertaken the voluntary work upon which Mr Munro now relies. However, it would have been open to the Judge to conclude that the sentencing principles of deterrence, denunciation and

the need to hold Ms Kumaran accountable for her actions required a more punitive response than community detention.

[29]              Taking those factors into account I cannot say the end sentence of five months community detention coupled with nine months supervision was manifestly excessive. The appeal against sentence is accordingly dismissed.

The appeal against name suppression

The law

[30]              It is now well established that an application for suppression must be determined on a two-stage basis.3 First, the Court must determine whether any of the threshold requirements set out in s 200(2) of the Criminal Procedure Act 2011 have been made out. If that is the case, the Court must go on to consider how it should exercise its discretion by balancing the identified threshold interests against the need for 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 is satisfied that publication would be likely to—

(a)   cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or

(b)   cast suspicion on another person that may cause undue hardship to 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 is suppressed by order or by law; or

3      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 would suffer extreme hardship in terms of s 200(2)(a) if her name was published because it would severely exacerbate her existing depressive disorder, and this would lead to the risk  she  may  commit  suicide.    He  also  contended  Ms  Kumaran  could  satisfy  s 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 with these arguments. After setting out the legal test she referred to decisions in which applicants for name suppression asserted extreme hardship based on the risk of suicide.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 would expose her and her family to stigma, humiliation, ignominy and trauma. The Judge noted, 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 the offending at the time it occurred and that it remained a high-profile case. As such, the sentencing was likely to attract considerable publicity. The Judge also observed that she had received a psychological report which, whilst largely based on self-reporting, recorded that Ms Kumaran had been diagnosed with severe depression in January 2021 and had been prescribed medication for this. She also noted that numerous other health professionals 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 the proceeding 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 was concerned about the  inability  of  the  psychiatric  team  to  manage  you,  Ms Kumaran. I no longer have those concerns. You are [in] my view, well managed.

[277]     I accept that you have fears and concerns but you have a loving family who now know your diagnosis. They are supported by professionals and therapists in what they can do for you and they are able to monitor you. You have friends who know what has happened, one of whom has filed an affidavit and who supports you. You have your priest, who knows what has happened and is also very supportive. I agree with Mr McCoubrey’s submission that there is a great deal of support wrap-around for you now.

[278]     You know whom you can approach. You have at least one counsellor who submits you need no more treatment. Dr Loshni Rogers refers to your self-reporting but does express some concerns, to which I return. You had concerns about your parents’ expectations and took extreme steps to deal with that. You are being counselled and supported now not to respond so extremely to life’s challenges.

[279]     I find that the engagement and compliance with the mental health professionals means that the risks have dissipated and can be managed. I turn to s 200(2)(e) which, as his Honour Brewer J observed in Shailer v R, carries a lesser threshold.⁶ I accept the contents of the professional’s reports. I find that there is a risk between feared publication and the mental health deterioration 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 a level  of  support  that  precludes  her  from  establishing  extreme  hardship  under    s 200(2)(a). The Judge was, however, satisfied Ms Kumaran had established grounds for name suppression under s 200(2)(e). This meant there was an appreciable risk that publication may endanger Ms Kumaran’s safety by virtue of the deterioration she would suffer in her mental health. The Judge amplified her acceptance of this ground in later paragraphs of her decision.7

[37]              The passage set out above did not, however, end the Judge’s consideration of whether Ms Kumaran could establish extreme hardship under s 200(2)(a). She returned to that issue later after discussing X v R, in which the Court of Appeal referred

6      Shailer v R [2015] NZHC 2607.

7      At [288]-[289].

to the difficult issues that social media commentary can raise in the present context.8 The Judge then observed:

[286]     You were offline as the result of bail conditions. That will not be permanent, especially if you return to study. Your family, especially your younger brother, are not offline. Since the advent of COVID-19 and various lockdowns, employment and academic communication is increasingly online. It is common for young people to communicate online using various platforms. It is somewhat short-sighted to assume that such people who are engaging in online platforms will not see any harmful statements made by those on social media.

[287]     The [Court of Appeal] in X saw this as extreme hardship. I accept that. So while I do not accept that suicidal ideation in this case now has been made out, given the wrap-around services available, I do accept that there is extreme hardship in the nature of social media reporting, given the reporting that has previously been shown and the reporting is likely to burst out once if the press report on today’s proceedings[,] the press release what has happened today. So in my view the test of extreme hardship is met by the risk of that publication.

[38]              It is therefore clear that the Judge found Ms Kumaran could establish extreme hardship under s 200(2)(a) because of the likely effect of social media commentary if her name was published.

[39]              Having found that jurisdiction existed to make an order, the Judge went on to consider whether she should exercise her discretion in favour of suppression. This required her to weigh the factors Ms Kumaran had established under s 200(2) against the principle that there should be open reporting of court proceedings. The Judge decided not to grant suppression for the following reasons:

[300]     I accept that first, you are a young offender who faces a serious charge and that publication will expose you to stigma, humiliation, ignominy and trauma 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 media reports and social media postings, which seemed to be by those upset at the cancellation 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-noise recently. We are creeping closer to two years ago and in my view things have calmed down. There is nothing, in my view, extraordinary in people’s desires to know.

[301]     I accept now that you are being managed better than you were. I accept 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 high threshold is required. Self-reported symptoms and claims of suicidal ideation do not usually meet it. I accept in this case there is an independent diagnosis, but there is also continued engagement with professionals, medication and treatment.

[303]     The professionals have come to grips with the requisite treatment and are aware and concerned about your risk, I am able to say, as much as I am ever 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 public interest and the presumption of reporting. Accordingly, I decline the application for name suppression.

The issue

[40]                 The Crown does not challenge the Judge’s conclusion that Ms Kumaran had established jurisdiction under both s 200(2)(a) and (e). This means the only challenge to the Judge’s decision relates to the manner in which she exercised her discretion at the second stage of the process. Unlike a general appeal, an appeal against the exercise of a discretion does not permit an appellate court to substitute its own decision for that of the Court below. Rather, it is necessary for the appellant to show the decision maker erred 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 a true discretion, where a range of answers may be available and different results may reasonably be reached by different judges. Divergence in the case of discretion is not indicative of error. A degree of appellate deference applies. The discretionary decision must be wrong, fundamentally, in one or more of these four respects: the Judge made an error of law or principle, failed to take into account some relevant matter, took into account an irrelevant matter, or was plainly wrong. If not, the first instance decision should stand and appellate courts ought not to interfere with it. The Criminal Procedure Act does not invite a revisiting of the merits of a suppression application, as if ab initio, on and up the appellate trail.

The argument

[41]              Mr Munro submits the Judge failed to give adequate weight to Ms Kumaran’s youth and the fact that she was a first offender. He also contends the Judge erred in her assessment of the degree of publicity the case was likely to receive and in her conclusion 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 from Dr Russell Wyness, a psychiatrist who interviewed Ms Kumaran in the presence of her parents after she had been sentenced. Dr Wyness says Ms Kumaran remains deeply depressed about the offending and its aftermath. She is experiencing a great burden of guilt for having brought disgrace upon her family. She also feels guilty about the emotional distress and financial burden she has caused for her parents. She believes their plight will be magnified if her offending becomes known to the wider community and 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 Ms Kumaran had had a recurrence of panic symptoms including experiencing panic attacks and nightmares. She was also describing and experiencing sufficient symptoms of depression for her to be diagnosed as having depression. These symptoms included hopelessness about the future, having no motivation to get out of bed in the morning, low mood, catastrophic beliefs about her future and her fear of the lifting of name suppression. She was not experiencing any pleasure in daily activities, had lost her appetite, lost her energy and had recurrent suicidal thoughts.

At that time I continued the medication treatment for Ms Kumaran on the two anti-depressant and anti-anxiety medications she was already taking. It was my impression that she had been able to make good progress on these medicines and while she had hope of re-establishing a path of study to a future career. I was concerned at the extent of regression of Ms Kumaran’s mental state 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 nothing way. Her parents were already ensuring that she was closely observed to minimise the risk of self-harm. I believe her tendency to having black-or- white thinking my result from her youth, relative emotional immaturity and limited life experience. Of concern to me is that I believe such thinking led to her initial offending (i.e. seeing no other way to cope with her situation). I have concerns that if name suppression is lifted her feelings of hopelessness for the future, shame and guilt could lead to her seeing no way forward for herself 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 on her mental health. Those issues are all referred to in the passage of her remarks set

out above.10 The weight to be given to relevant factors is a matter for the decision maker unless it results in an outcome that is plainly wrong.

[45]              I do not consider that the information contained in Dr Wyness’s report takes matters a great deal further because it is largely consistent with that contained in earlier reports. Nor do I find it surprising that Ms Kumaran remained in a depressed state following sentencing. She was not discharged without conviction and she remained at  risk  of  having  her  name  published.   Dr  Wyness   expresses  a  concern  that Ms Kumaran may act on suicidal ideation but he also notes that her parents are alert to this risk and are taking active steps to address it. I consider this reinforces the Judge’s conclusion about the effectiveness of Ms Kumaran’s current support network.

[46]              Mr  Munro  also  argues  there  was   no   compelling   reason   to   publish Ms Kumaran’s name. He accepts that the facts giving rise to the offending are a matter of public interest but submits the identity of the offender is not. I accept this submission but the same can be said of many forms of offending. The identity of the offender is only likely to be a matter of public interest where there is a risk of further similar offending in the future. In that situation it becomes important for the community 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 have been established under s 200(2) the applicant must still demonstrate that the need for suppression 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 no public interest in the identity of the offender.

[48]              The only issue that has exercised my mind is whether the Judge was plainly wrong to decline suppression after having concluded there was an appreciable risk that publication 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 in  s 200(2) is determinative. By way of example, the need to protect fair trial rights under

10 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 not necessarily the case with many of the other grounds, however, because the risks they present may be capable of mitigation.

[49]              Having reflected on the issue I do not consider the Judge’s decision was plainly wrong.   The only basis on which she found extreme hardship was the fact that     Ms Kumaran was likely to be subject to adverse comment on social media. I consider this outcome can be mitigated to a large degree by the support network the Judge was satisfied is now in place. The risk of danger to her safety can also be met by that protective factor. There is therefore no basis on which this court in its appellate jurisdiction 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 the fact that her name will now be published. I therefore direct that the existing interim orders  for  suppression  of  her  name  shall  remain  in  effect  until  midnight  on  21 September 2022.

Lang J