Kupec v The the Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA586/2017
[2022] NZCA 410

BETWEEN	JIRI KUPEC Applicant
AND	THE QUEEN Respondent

Court:	Brown, Clifford and Williams JJ
Counsel:	H G de Groot for Applicant M L Wong for Respondent
Judgment: (On the papers)	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

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Jiri Kupec for the recall of the Court's decision declining his appeal against his sentence. Kupec had been convicted of importing methamphetamine into New Zealand and was sentenced to 17 years in prison with a minimum period of imprisonment (MPI) of eight and a half years. His previous appeals against both conviction and sentence were dismissed, as was his application for leave to appeal against conviction to the Supreme Court. Kupec now seeks to challenge the imposition of the MPI, a ground that was not advanced during his initial appeal. The Crown opposed the application, arguing that the circumstances did not meet the threshold for recall as set out by the Supreme Court in Uhrle v R.

The legal issues before the Court were whether the circumstances justified the recall of the Court’s earlier decision declining Kupec's appeal against sentence. The Court noted that the general rule is that a judgment stands for better or worse, subject to appeal, and that recall will only be made in exceptional circumstances, such as when a procedural or substantive error results in a miscarriage of justice. Kupec argued that he did not understand the limitations of his initial appeal and would have instructed his counsel to challenge the MPI if given the opportunity. However, the Court observed that there was no waiver of privilege to support his claim of error by his senior counsel. Kupec further contended that the MPI was imposed mechanistically and was not warranted by the personal and impersonal facts of his case.

The Court examined the sentencing judge’s reasoning and found that it was not mechanistic but rather focused on factors such as deterrence, denunciation, and accountability, which are pertinent in drug cases involving MPIs. Given that Kupec imported a significant quantity of methamphetamine in a manner designed to evade detection, the Court concluded that the imposition of an MPI was justified. The failure of Kupec's counsel to challenge the MPI during the initial appeal did not constitute a "very special reason" for which justice required a recall of the Court's judgment on appeal. The Court also noted that Kupec remained free to make a second application to the Supreme Court for leave to appeal in respect of his sentence.

The Court declined the application for recall, reaffirming that such decisions are made only in exceptional circumstances. The Court noted that Kupec had the opportunity to address the MPI issue in a subsequent application to the Supreme Court for leave to appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established