R v Kupkovic - [2022] NZHC 1980

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-063-3188

[2022] NZHC 1980

THE QUEEN

v

ANDREI MIKOYAN KUPKOVIC

Hearing: 11 August 2022

Counsel:

C Macklin and S Smith for Crown A Holland for A Kupkovic

Sentence:

11 August 2022

SENTENCING NOTES OF MUIR J

Solicitors: Gordon & Pilditch, Rotorua

R v KUPKOVIC [2022] NZHC 1980 [11 August 2022]

Introduction

[1] Mr Andrei Kupkovic, you appear before me today for sentencing having pleaded guilty to one charge of conspiring to manufacture methamphetamine1 and one charge of importing ephedrine.2 Each of these charges carries a maximum penalty of 14 years’ imprisonment. The penalties are a reflection of the seriousness of the offending and society’s condemnation of those who manufacture and import drugs that cause harm in our communities. Like both the Crown and the defence, I approach the sentencing on the basis that the lead charge is the conspiracy to manufacture contrary to s 6(2A)(a) of the Misuse of Drugs Act 1975.

[2] On 12 April 2022, Harvey J gave you a sentence indication of a period of imprisonment in the vicinity of seven years, subject to further deductions for your personal circumstances.3 You declined the sentence indication but pleaded guilty immediately thereafter. Accordingly, I am not bound to follow that indication and will proceed with my own analysis.

Facts

[3] You are to be sentenced on the admitted offending in the agreed summary of facts. It is necessary for me to traverse these facts as they form an important part of the sentencing process.

[4] Your offending was uncovered in the course of a Police Operation known as “Schultz”. That Operation concerned a number of individuals forming part of an organised criminal network that sought to import various precursor drugs for the purposes of manufacturing methamphetamine.

[5] The principal offender in the network was Mr MacFarlane. You were an associate of Mr MacFarlane’s and your contribution to the intended manufacture of methamphetamine primarily entailed the importation of ephedrine. The network

1      Misuse of Drugs Act 1975, s 6(2A)(a).
2      Misuse of Drugs Act 1975, s 6(1)(a) and (2)(b).
3      R v Kupkovic [2022] NZHC 768. Harvey J adopted a starting point of nine years. An uplift of six months was applied for previous convictions and offending on parole. A final guilty plea discount of 25 per cent brought the sentence to seven years and one month imprisonment.

involved several other members, including: Mr McMeeking, who played a coordinating role with Mr MacFarlane; Ms Ward, who would track packages and arrange money transfers; and Ms Dennis, who was the “cook”.

Conspiring to manufacture methamphetamine

[6] On 6 August 2020, you had a conversation with Mr MacFarlane in Rotorua. Together, you discussed the particulars of your conspiracy to manufacture methamphetamine using imported precursors including, hypophosphorous acid, iodine and ephedrine. You informed Mr MacFarlane that 25 kilograms of iodine was on its way and that you needed two more addresses for the ephedrine.…

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 R v Kupkovic

Details

AGLC: R v Kupkovic [2022] NZHC 1980
Case: [2022] NZHC 1980
Decision Date: 11 August 2022

CaseChat Overview and Summary

The case of R v Kupkovic was heard in the High Court of New Zealand. The defendant, Andrei Kupkovic, was convicted of conspiring to manufacture methamphetamine and importing ephedrine. The court had to determine the appropriate sentence for these offences, considering various legal principles and factors. The primary legal issues involved setting a starting point for the sentence based on the gravity of the offence, adjusting this starting point according to the specifics of the conspiracy, and applying relevant personal mitigating and aggravating factors.

Muir J, the presiding judge, first established a starting point for the methamphetamine conspiracy charge by considering the potential quantity of the drug that would have been manufactured if the conspiracy had succeeded. The court decided on a nominal starting point of 15 years in prison, acknowledging the significant role Kupkovic played in the conspiracy despite not being the mastermind. The court then assessed the maturity of the conspiracy, determining that it was well advanced but not completed, and reduced the starting point by 50%, resulting in an adjusted starting point of seven years and six months. For the charge of importing ephedrine, the court deemed no additional uplift necessary as it was integral to the conspiracy.

The court then considered personal mitigating and aggravating factors. Kupkovic's history of drug-related convictions, including offences committed while on parole, warranted an uplift of 12 months. However, this was offset by time spent on recall from parole, resulting in a net uplift of 11 months. Personal circumstances, including social and economic deprivation in childhood and demonstrated remorse, warranted a modest discount. A full 25% discount for the guilty pleas was also applied. The final sentence, after applying all adjustments, was five years and two months for the conspiracy charge, to run concurrently with a four-year sentence for the importation charge. An MPI of two years and seven months was also imposed.

In conclusion, the court's detailed analysis led to a comprehensive sentence that balanced the gravity of the offences with personal mitigating factors, ultimately aiming to hold Kupkovic accountable, denounce the offending, and deter future similar crimes.

Orders