Jiri Kupec v The King - [2023] NZSC 43

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 135/2022
[2023] NZSC 43

BETWEEN	JIRI KUPEC Applicant
AND	THE KING Respondent

Court:	Ellen France, Williams and Kós JJ
Counsel:	H G de Groot for Applicant R K Thomson for Respondent
Judgment:	3 May 2023

JUDGMENT OF THE COURT

The application for an extension of time to apply for leave to appeal is dismissed.

____________________________________________________________________

REASONS

In 2017, Mr Kupec was convicted of one charge of importing into New Zealand a class A controlled drug (being 20 kilograms of methamphetamine). Mr Kupec is a citizen of the Czech Republic. He travelled to New Zealand via Bangkok, where he picked up two suitcases from an unknown person in exchange for USD 5,000. The methamphetamine was sewn into the lining of the suitcases.
Mr Kupec pleaded not guilty to the charge. He claimed that he did not know the suitcases contained drugs, but instead believed he was smuggling cash (ultimately into the United States). The jury did not believe him and he was found guilty on the drug importation charge.
Judge McGuire found that Mr Kupec imported the methamphetamine knowingly, as opposed to recklessly.[1] He imposed a sentence of 17 years. He then found a minimum period of imprisonment (MPI) of eight and a half years (or 50 per cent of the sentence) would be appropriate here to “hold the offender accountable for the harm done to the potential victims of this offending, to denounce the conduct of the offender and to deter other people … from committing the same or similar offence”.[2]
[1]R v Kupec [2017] NZDC 22632 at [14].
[2]At [36].
Mr Kupec appealed to the Court of Appeal on both his conviction and sentence.[3] He did not challenge the MPI, however. The Court of Appeal dismissed both the conviction and sentence appeals. He subsequently sought leave to appeal against conviction to this Court, but that application was declined.[4]
[3]Kupec v R [2018] NZCA 377 (Brown, Clifford and Williams JJ).
[4]Kupec v R [2018] NZSC 113 (William Young, O’Regan and Ellen France JJ).
In 2022, Mr Kupec applied for recall of the Court of Appeal judgment, now attempting to challenge the imposition of the MPI.[5] The Court held that the application did not reach the threshold for recall. In so concluding, it said:[6]
[7] Mr Kupec imported 20 kilograms of methamphetamine in suitcases cleverly constructed to avoid any concerns on casual scrutiny. The sentencing Judge concluded that Mr Kupec not only knew he was importing illegal drugs but also “cynically” involved his mother in the enterprise so as to suggest to customs and other officials that he was undertaking legitimate overseas travel. The Judge’s consideration of the imposition of an MPI was not mechanistic.
[8] Given this is the key point in Mr Kupec’s application, the failure of his counsel, if that is what it was, to also mount an appeal against the imposition of an MPI is not a “very special…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jiri Kupec v The King

Details

AGLC: Jiri Kupec v The King [2023] NZSC 43
Case: [2023] NZSC 43
Decision Date: 3 May 2023

CaseChat Overview and Summary

The case of Jiri Kupec v The King involves an appeal by Mr Kupec against the 2018 Court of Appeal judgment that dismissed both his conviction and sentence appeals. Mr Kupec was convicted in 2017 of importing 20 kilograms of methamphetamine into New Zealand. The sentencing judge imposed a minimum period of imprisonment (MPI) of eight and a half years, which was not challenged on appeal. In 2022, Mr Kupec applied for recall of the Court of Appeal judgment, now attempting to challenge the imposition of the MPI. This application was dismissed by the Court of Appeal, and Mr Kupec now seeks an extension of time to apply for leave to appeal against the 2018 Court of Appeal judgment as regards sentence. The central issue before the Court was whether an extension of time should be granted to Mr Kupec to apply for leave to appeal the 2018 judgment. The Court held that an extension of time should not be granted, as the applicant did not provide an adequate explanation for the delay and compelling reasons for extending time. The Court observed that Mr Kupec's role in the drug importation was significant, and his participation was essential to the serious commercial drug offending. The Court also noted that the interests of justice did not favour granting leave or extending time to apply for leave, as there was no risk of a substantial miscarriage of justice if leave was not granted. Therefore, the application for an extension of time to apply for leave to appeal is dismissed.

Orders