Kupec v The the Queen
[2022] NZCA 410
•29 August 2022 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA586/2017 [2022] NZCA 410 |
| BETWEEN | JIRI KUPEC |
| AND | THE QUEEN |
| Court: | Brown, Clifford and Williams JJ |
Counsel: | H G de Groot for Applicant |
Judgment: | 29 August 2022 at 9.30 am |
JUDGMENT OF THE COURT
(Recall)
The application for recall is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
Mr Kupec was convicted of one charge of importing into New Zealand a class A controlled drug, namely methamphetamine, and sentenced to 17 years’ imprisonment with a minimum period of imprisonment (MPI) of eight and a half years.[1] His appeal against conviction and sentence was dismissed.[2] His application to the Supreme Court for leave to appeal against conviction was dismissed.[3]
[1]R v Kupec [2017] NZDC 22632 [Sentencing decision].
[2]Kupec v R [2018] NZCA 377.
[3]Kupec v R [2018] NZSC 113.
He now applies for a recall of this Court’s decision declining his appeal against sentence. He wishes to challenge the imposition of an MPI, a ground which was not advanced at his first appeal. The Crown opposes the application contending that the circumstances do not satisfy the threshold for recall stated by the Supreme Court in Uhrle v R.[4]
[4]Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286.
As the Supreme Court recently stated in S (SC39/2017) v R,[5] the general rule is that a judgment, once delivered, must stand for better or worse, subject to appeal. A decision to recall will only be made in exceptional circumstances. It will be appropriate where some procedural or substantive error has occurred which would result in a miscarriage of justice.[6]
[5]S (SC39/2017) v R [2022] NZSC 7.
[6]At [3].
Mr Kupec states that he did not understand that his appeal against sentence was limited to a challenge to the starting point. He claims that had his instructions been sought he would have instructed his counsel to also challenge the MPI. As the Crown observes, there has been no provision of a waiver of privilege in respect of the assertion that there was an error by senior counsel representing him on his appeal.
Mr Kupec contends that there are strong grounds to argue that the order for an MPI should be quashed: in particular that the MPI was imposed mechanistically (by mere recitation of s 86 of the Sentencing Act 2002); the “personal and impersonal facts” of his offending did not call for an MPI; and that he has been and will be required to serve a very significant sentence of imprisonment in isolation.
While in Zhang v R, which was decided subsequent to Mr Kupec’s trial and appeals, this Court warned against the mechanistic imposition of MPIs, the Court also noted that it is the factors of deterrence, denunciation and accountability that are likely to be at the forefront of decisions in drug cases involving the imposition of an MPI.[7]
[7]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [169]–[171].
Mr Kupec imported 20 kilograms of methamphetamine in suitcases cleverly constructed to avoid any concerns on casual scrutiny.[8] 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.[9] The Judge’s consideration of the imposition of an MPI was not mechanistic.[10]
[8]Sentencing decision, above n 1, at [6].
[9]At [14].
[10]At [29], [30] and [36].
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 reason [for which] justice requires” recall of our judgment on appeal.[11] It is of course open to Mr Kupec to make a second application to the Supreme Court for leave to appeal in respect of his sentence.
Result
[11]Uhrle v R, above n 4, at [29].
The application for recall is declined.
Solicitors:
Crown Law Office, Wellington for Respondent