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. You reported some issues with the arrival of hypophosphorous acid but expected it to be sent in one to two weeks.

[7]    Later that month, New Zealand Customs intercepted three packages destined for various addresses in Rotorua. Two packages contained approximately 5,000 grams of iodine each and a third package contained 26 litres of hypophosphorous acid. Significantly, two of the packages matched tracking numbers that Mr MacFarlane had been overhead quoting in an audio session.

[8]    On 1 September 2020, you had a further conversation with Mr MacFarlane. Mr MacFarlane told you that methamphetamine was selling for $9,000 an ounce in Rotorua and that they had enough iodine and hypophosphorous acid to manufacture 8–10 kilograms of methamphetamine. You told Mr MacFarlane that five kilograms of ephedrine was arriving from China. You and Mr MacFarlane discussed making profits between $25,000–$30,000 on each kilogram of ephedrine. You were then given

$30,000 in cash to contribute towards the costs you had incurred in the conspiracy to date.

Importation of Ephedrine

[9]    Between 5 September and 8 September 2020, numerous encrypted messages were exchanged via Wickr between Mr MacFarlane, Ms Dennis and Mr McMeeking. In one discussion, Mr MacFarlane confirmed the pending arrival of two kilograms of ephedrine imported by you and various efforts to have it manufactured into

methamphetamine for supply. Mr MacFarlane discussed plans to pay you as soon as possible for the two kilograms so that you could import more.

[10]   On 9 September 2020, you imported the two kilograms of ephedrine. Ms Ward collected  the  package  from  a  courier   depot  in  Rotorua  and  together  with     Mr MacFarlane she delivered it to an address in Paeroa. Mr MacFarlane hoped to get between 920–950 grams of methamphetamine per kilogram of ephedrine.

[11]   On 13 November 2020, Police executed a search warrant at your address. They found $119,653 in cash.

Purposes and principles of sentencing

[12]   I turn briefly to the purposes and principles that will guide my sentencing. These include holding you accountable for harm done to the community caused by your offending, denouncing your conduct, and deterring you and others from offending of this nature.4

[13]   With those purposes in mind, I also take into account the seriousness of your offending, the degree of your culpability, your rehabilitative prospects and that I must impose the least restrictive sentence appropriate in the circumstances.

Methodology of sentencing

[14]   My approach to sentencing will follow the two-step methodology set out in Moses v R.5 The first step requires me to set a starting point for your offending, which may be adjusted according to any aggravating and mitigating features specific to your offending.6

[15]   Setting the starting point for methamphetamine offending requires reference to the sentencing guidelines in Zhang v R.7 In that case, the Court of Appeal emphasised that in deciding a starting point, the quantity of methamphetamine involved remains

4      Sentencing Act 2002, s 7(1).

5      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

6 At [46].

7      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

an important consideration in fixing culpability and is “a reasonable proxy both for the social harm done by the drug and the illicit gains made from importing and selling it”.8 The Court set out five bands of offending, each correlating to a recommended sentence range and each defined by reference to the quantity of methamphetamine involved in the offending. The relevant bands for today’s purposes are:9

(a)Band 4: < 2 kilograms            8–16 years10

(b)Band 5: > 2 kilograms            10 years to life

[16]   In addition to quantity, the role played by an offender must be considered. While the quantity of methamphetamine involved will dictate what band an offender falls in, the role played by an offender will determine where the offender is placed within that band. A full assessment of role may even result in an offender moving between bands.11 The Court divided the roles of offenders into three categories:12

First (and attracting a more substantial scale) there is the “leading role”. This applies where the offender is directing or organising buying and selling on a commercial scale and/or is closely connected to product source and/or has an expectation of substantial financial gain. The second is the “significant role”. That is where the offender has an operational or management function within a chain, has subordinates (who may have been recruited or intimidated by the offender) and/or is motivated by financial or other advantage. The third tier is the “lesser role”. Here the offender will probably have performed a limited function under direction and/or may have been engaged by duress, naivety or other vulnerability.

[17]   That said, you are being sentenced for conspiracy, a matter that was not authoritatively addressed by the Court of Appeal in Zhang. The Crown acknowledges that there are two approaches available in calculating the appropriate reduction in starting point when dealing with conspiracy offences. Defence counsel is neutral to which approach I should adopt.

[18]   One approach is referenced in Zhang, where the Court of Appeal indicated that on the facts of one of the appeals before it, it was appropriate to calculate an uplift for

8 At [10].

9 At [125].

10     In practice 500 grams to 2 kilograms.

11 At [118].

12 At [115].

a conspiracy offence by applying half the uplift appropriate for the offence if the conspiracy had been completed.13

[19]   A second approach involves the Court first determining what the notional starting point would have been if the conspiracy had been completed. That is followed by a reduction of the notional figure according to the maturity of the conspiracy. This approach finds support in both the Court of Appeal14 and Supreme Court.15 The Crown submits that this approach is to be preferred because it is more nuanced; recognising that some conspiracies will be more advanced than others and therefore deserving of a higher starting point. I agree.

[20]   That brings me to the second step of the Moses methodology where I must calculate the composite of any uplifts or discounts arising from aggravating and mitigating factors personal to you, together with any guilty plea discount, as a percentage of the adjusted starting point to be applied to that starting point.16

[21]   Finally, I will need to consider whether to impose a minimum period of imprisonment (MPI).

Setting the starting point

Crown submissions

[22]   Mr Macklin, for the Crown, submits that had the conspiracy come to fruition, and the lowest estimates by the conspirators realised, eight kilograms of methamphetamine would have resulted, a quantity that would place you well within Zhang Band 5 which invites sentences from 10 years to life.

[23]   Mr Macklin acknowledges that it is not possible to establish how much of the 8–10 kilograms would have been “captured” had the conspiracy been concluded but detected part way through. He says that practically speaking the conspiracy must have

13     Zhang v R, above n 7, at [239]. See also Parata v R [2017] NZCA 48.

14     R v Te Rure [2008] 3 NZLR 627 (CA) at [25].

15     R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [11].

16     R v Moses, above n 5, at [46].

represented an intention to operate in a certain way over time, i.e., to proceed in batches rather than a one-off 8–10 kilogram cook.

[24]   In the alternative, Mr Macklin says that even if the starting point was set with reference to the two kilograms of ephedrine that you successfully imported, that quantity of precursor would result in at least 1.8 kilograms of methamphetamine. That quantity would place you in Zhang Band 4, indicating a nominal starting point in the range of 8–16 years. When that is adjusted according to your role, which Mr Macklin submits is to be classified at the upper end of “significant”, he submits that a starting point of 15 years or more would still be justified.

[25]   Essentially, Mr Macklin is saying that whether I define the conspiracy with reference to the intended 8–10 kilogram manufacture, or based on the expected yield of the two kilograms of imported ephedrine, once I adjust for your role in the conspiracy I will essentially land at the same nominal starting point, which he submits should be 15 years, adopting he says a conservative position.

[26]   In addressing the required adjustment for conspiracy, Mr Macklin acknowledges that the evidence does not establish how close to manufacturing the group was. As a result, he acknowledges that the conspirators should be given the benefit of the doubt on this point. He does, however, highlight certain preliminary steps taken by the conspirators which show the conspiracy had advanced from a mere plan. I will address those steps later.

[27]   Mr Macklin submits that a generous finding would be that the conspiracy was at least three quarters advanced towards the manufacture of significant quantities of methamphetamine. He says that would justify a 20–30 per cent reduction in the 15- year nominal starting point, resulting in a starting point in the range of 10.5–12 years’ imprisonment.

Defence submissions

[28]   Mr Holland submits that I should set a nominal starting point based on the expected methamphetamine yield to be derived from the precursors that were actually

available at the time of your arrest. The starting point would be based on the two kilograms of ephedrine that you successfully imported.

[29]   Mr Holland says that setting a starting point based on your purported conspiracy to manufacture 8–10 kilograms of methamphetamine is flawed because the evidence supporting a conspiracy to manufacture 8–10 kilograms is simply too thin. Mr Holland draws attention to three gaps in the evidence that he says support his argument.

[30]   First, he notes that the evidence  consists  of  a  single  comment  made  by Mr MacFarlane on 1 September 2020 — a comment you did not respond to. Secondly, he says that the captured Wickr conversations confirm that right around the time of your importation, Mr MacFarlane and other associates were attempting to source other precursors independently of you. Thirdly, Mr Holland says that the Wickr conversations confirm that other meth “cooks” were being conducted independently of you, making it unfair to adopt Mr MacFarlane’s comments about 8–10 kilograms as an evidential basis for your role in the conspiracy.

[31]   Altogether, Mr Holland says that the only concrete evidence of an importation linked to you is two kilograms of ephedrine. That amount of ephedrine would result in a quantity of approximately 1.8 kilograms of methamphetamine, placing you within Zhang Band 4.

[32]   Mr Holland submits that you played a significantly lesser role than at least four of your co-defendants. While he acknowledges that you were motivated by commercial profit and that you may have had some awareness of the scale of the operation, he says that there is no evidence of direct contact or even awareness of the more  pronounced  roles  played   by   your   fellow   co-defendants,   other   than   Mr MacFarlane. Mr Holland says further that an absence of evidence showing your participation in Wickr communications indicates your role in the conspiracy was limited to the importation of ephedrine performed at the direction of others. Those factors lead Mr Holland to submit a nominal starting point between 12 to 14 years’ imprisonment.

[33]   In regard to the appropriate reduction for conspiracy, Mr Holland disagrees with the Crown that the conspiracy was advanced and submits that any conspiracy to manufacture attributable to you still had significant steps to be completed. In support of this submission, Mr Holland points to the fact that no equipment for the actual manufacture of methamphetamine was ever located by Police. Further, he says that when  the  two  kilograms  of  ephedrine  were  set  to  arrive  in  New  Zealand,     Mr MacFarlane was actively trying to source the remaining precursors.

[34]   Mr Holland contrasts your case to R v Te Rure, where the Court of Appeal considered that only a very small reduction would appropriately reflect the advanced conspiracy in that case.17 That decision was made in light of evidence that premises had been leased and equipped for methamphetamine manufacture and that an actual cook was underway when Police arrived at the scene.18 Mr Holland also emphasises an observation by the Court that where a conspiracy to manufacture methamphetamine has proceeded no further than a theoretical plan, offenders could expect a substantial reduction on the sentencing bands.19

[35]   In sum, Mr Holland submits that a reduction of at least 50 per cent from the starting point of 12 to 14 years appropriately reflects the maturity of the conspiracy.

Analysis

[36]   I commence by setting the starting point. In order to decide what Zhang Band to classify your offending under, I need to determine what starting point would reflect a completed conspiracy. That requires an analysis of the conspiracy itself.

[37]   In R v Te Rure, the Court of Appeal appropriately described the criminality inherent in a conspiracy to manufacture methamphetamine as the making of an agreement to manufacture the drug, whether that agreement proceeds further or not.20 That necessarily reflects the general rule behind all criminal conspiracies in that the

17 R v Te Rure, above n 14, at [28].

18 At [28].

19 At [27]. The Court of Appeal was referring to the Fatu sentencing bands enunciated in R v Fatu [2006] 2 NZLR 72 (CA). Those bands have been superseded by the decision in Zhang v R, above n 6.

20 R v Te Rure, above n 14, at [26].

offence is complete at the moment an agreement to commit a crime is reached; the resulting conspiracy remaining until completion of its purpose, or abandonment.

[38]   In his sentence indication, Harvey J was satisfied that your discussions with Mr MacFarlane, on 1 September 2020, provided direct evidence of a joint intention to manufacture 8–10 kilograms of methamphetamine. Accordingly, His Honour set a nominal starting point in Zhang Band 5. I agree with that categorisation albeit for slightly different reasons.

[39]   While I acknowledge that you did not directly respond to Mr MacFarlane’s comments on a goal to manufacture 8–10 kilograms, I conclude that the conspiracy of which you were part, extended to the manufacture of significantly more methamphetamine than would be produced simply from the two kilograms of ephedrine you imported.

[40]   In particular, I note that during the same discussion with Mr McFarlane you stated that there were five kilograms of ephedrine arriving from China. Whether that was additional to or inclusive of the two kilograms you subsequently imported is not entirely clear. If the former, it would indicate a conspiracy to manufacture something over six kilograms of methamphetamine. If the latter, then approximately 4.5 kilograms. In either case, the yield would have comfortably resulted in a Zhang  Band 5 classification.

[41]   Turning now to your role, while I accept that your motivations were financial, and that you had some awareness of the scale of the operation — factors which would tend to classify your role as “significant” — I am inclined to classify your role at the low to middle end of that classification. The absence of evidence demonstrating any real management or decision-making function has persuaded me on this point, albeit I accept that you had some role in the coordination of the enterprise.

[42]Accordingly, I set the starting point at 15 years’ imprisonment.

[43]   Turning to the maturity of the conspiracy. I accept that the various factors advanced by Mr Macklin illustrate a conspiracy well past the initial planning stage:

(a)the conspirators had defined roles, with Ms Dennis on standby to undertake the manufacturing process;

(b)the necessary precursors were on order, and at least two kilograms of the ephedrine had arrived;

(c)Mr MacFarlane claimed to already have sufficient iodine and hypophosphorous acid to make 8–10 kilograms of methamphetamine;

(d)logistics were arranged, including work on resolving courier issues and identifying addresses for imported precursors to be delivered to; and

(e)money was changing hands.

[44]   In my view, these factors constitute significant steps towards the manufacture of at least 4–6 kilograms of methamphetamine. However, I am not persuaded that the conspiracy had passed its midpoint. I reach that conclusion based on the fact that the ephedrine necessary to manufacture more than approximately 1.8 kilograms of methamphetamine still remained to be successfully imported. In my view, the actual availability of such precursors is an important reference point by which to define the maturity of a conspiracy.

[45]   Accordingly, I reduce the nominal starting point by 50 per cent. That brings me to an adjusted starting point of seven years and six months’ imprisonment.

Importing ephedrine

[46]   I agree with both defence counsel and the Crown that no uplift is warranted for the importation of ephedrine charge. It was integral to the conspiracy to which you have pleaded. That charge will be dealt with by way of a concurrent sentence.

Aggravating and mitigating factors personal to Mr Kupkovich

[47]I now turn to consider the aggravating and mitigating factors personal to you.

Previous offending and time spent on recall

[48]   You have twelve relevant previous convictions, with three “sets” of convictions relating to methamphetamine recorded in 2008, 2009 and 2014. I accept that on each of these occasions, reoffending occurred at an escalating level.

[49]   In 2014, you received a 15-year prison sentence for serious methamphetamine related offending. An MPI of seven-and-a-half years, was imposed. The crimes for which I sentence you today occurred while you were on parole in respect of that earlier offending.

[50]The Crown seeks an uplift of between 6 to 12 months on account of this history.

[51]   In my view, your history not only indicates a real risk of reoffending but illustrates a need for a significant deterrent response. I am persuaded that an uplift of 12 months is appropriate.

[52]   Although it would, in my view, have been possible to recognise as a seriously aggravating factor of your offending that it occurred while you were on parole and to have adjusted the starting point accordingly, I am satisfied that this 12-month uplift adequately captures the overall implications of what has been serial drug offending over an extended period, including while on parole.

[53]   However, I also need to consider, as a related adjustment, time spent in custody on recall from the grant of parole which you received in respect of your 2014 convictions. An interim order was made on 17 November 2020 and a final order on 15 December 2020. So, at this point, you have spent approximately one year eight months on recall.

[54]   In Thomas v R, the Court of Appeal indicated that where an uplift has been imposed for offending on parole, a credit of approximately 66 per cent of the time spent in custody on recall would be appropriate.21 That would indicate a discount in

21     Thomas v R [2020] NZCA 257 at [21].

this  case   of   approximately 13  months.     Mr Macklin accepts that discount is appropriate. I adopt it.

Personal circumstances

[55]   I have carefully considered the  s  27  report  prepared  on  your  behalf  by Mr David Shenkin. I have also read your letter and various other letters provided to me by your family members and supporters.

[56]   You were born and raised in a socially and economically disadvantaged suburb in western Sydney, Australia. You describe your father as controlling, violent and mean in his provision for the family. You identify your mother as having suffered from alcohol and prescription drug addictions and say that you indulged these addictions to keep her happy and to mitigate her suicidal ideation. Mr Shenkin identifies these misguided actions as the beginning of a pattern of meeting others’ needs with drugs and money.

[57]   That said, your parents were both qualified people and this Court is regularly confronted by family backgrounds of significantly greater deprivation.

[58]   After what I accept was a troubled adolescence, which involved some drug running and experimentation with drugs, you moved to Queensland and became involved in a legitimate business. There, you met your now ex-wife. Subsequently you moved to New Zealand.

[59]   You have three boys with your ex-wife. They are now aged 21, 20 and 16.  Mr Shenkin’s report records that the pressure to provide for your family, your ex- wife’s drug needs, and your boys’ private school educations led you to pursue illegitimate business dealings. Mr Shenkin also points to untreated ADHD as a potential driver behind your offending. He says that the fact you are generally drawn to danger and find the risk attached to offending addictive would be consistent with such a diagnosis. However, he is not formally qualified to make it.

[60]   At the point you were paroled in relation to your 2014 offending, you sought to start an online health and wellbeing business. However, you blame a family friend,

who you once described as your “New Zealand Mum”, for leading you back into crime. You say that her friendship and support was conditional on your participation in various criminal pursuits and Mr Shenkin adds that her need for drugs was reminiscent of the co-dependent relationship you shared with your mother.

[61]   That said, you now have the potential for life in a pro-social environment, supported by your new fiancé. In her letter to the Court, she extols the level of care and support you have provided to her and her son. Despite your poor choices, she indicates an intention to stand by you and assist in your rehabilitation. I accept her influence on you as overwhelmingly positive.

[62]   Mr Shenkin says that you show remorse for your offending and acknowledgement of the harm your offending has caused to our communities. You repeat those sentiments in your letter.

[63]   Mr Holland submits that the factors outlined in the s 27 report, combined with your remorse, warrant a 15 to 20 per cent discount. The Crown contends that the report contains no material sufficient to justify any discount.

[64]   When a Court considers personal mitigating factors in methamphetamine offending, there are four considerations that are particularly germane, these include: addiction; mental health; duress or undue influence; and cultural and economic deprivation.22

[65]   The only factor from your s 27 report that I view as potentially relevant is the social and economic deprivation you faced during your childhood. I accept that your childhood contained hardship and that your relationship with your mother and in particular, your role in servicing her prescription drug addiction, may have contributed to the pattern Mr Shenkin identifies. However, I also consider that the nexus between these experiences and your methamphetamine offending is significantly frayed. As indicated in Mr Shenkin’s report, you are highly intelligent, resourceful and well capable of pursuing a legitimate living. You have done so on multiple occasions in the past. You can be a competent and supportive partner and father when you chose

22     Zhang, above n 7, at [137].

to be. However, it appears that the lure of quick and substantial cash (even if, as your relatives say, you are not personally extravagant and typically use it to support your family) is clearly something you find compelling. As your own letter identifies, you knew that what you were doing was wrong but succumbed to the offer of a car (among it seems other benefits) for your assistance in Mr McFarlane’s enterprise. Yet again you have elected to prioritise financial gains over the health and wellbeing of the community. This was not, as is so often the case, a decision which was driven by addiction. It was a calculated financial transaction in respect of which you made your own assessment of risk and reward. In that context, concepts of agency and choice loom large in the calculus.

[66]   Moreover, your early life was not entirely without opportunity. Your parents, for example, enrolled you in private education until you were expelled.

[67]   In those circumstances, I find any discount for social and economic deprivation to be necessarily at the most modest level.

[68]   In terms of your rehabilitative prospects, I note the various self-improvement studies you have undertaken while most recently in custody and your completion of various personal development courses. This is a positive, as is the comparatively recent personal relationship you have established with your fiancé. As I have already indicated, I regard her as a demonstrably pro-social influence in your life. However, that influence was already present at the time of the index offending and necessarily I must temper any optimism I have for your rehabilitation by the fact that your history in this respect is unpromising even with good people around you.

[69]   As to remorse, this is expressed in fulsome terms in your letter which, although suggesting that you were led into the offending by others, does not shy away from the fact that you personally admit to “wrong choices” and having to “live with those choices” every day of your life.

[70]   I have concluded that a cumulative personal discount of five per cent to cover family background, remorse and rehabilitative prospects, is all that can be justified in the circumstances of your case.

Guilty plea discount

[71]   I accept that you signalled a desire to resolve the charges soon after your arrest and that any delay in obtaining a sentence indication was attributable solely to late and on-going disclosure provided by the Crown.

[72]Accordingly, you are entitled to a full 25 per cent discount for your guilty pleas.

[73]   Applying this discount, together with the relevant uplifts and discounts reflecting your personal aggravating and mitigating circumstances, results in a sentence of five years and two months’ imprisonment. That involves my rounding down, Mr Kupkovich, which I usually do.

Totality adjustment

[74]   Mr Holland contends for a totality adjustment on the basis that the sentence you receive in respect of the index offending must necessarily be cumulative on the sentence you received in 2014. Mr Macklin agrees that a cumulative approach is appropriate. Mr Holland invokes s 85 of the Sentencing Act 2002 and submits that the Court should be vigilant to ensure that the total period of the cumulative sentences is not wholly out of proportion to the gravity of the overall offending. His ultimate position is that the overall sentence should be reduced to around five years’ imprisonment which is the position I have reached in my calculation thus far, in any event.

[75]   I do not consider any further deduction appropriate. A combined sentence of 20 years, two months’ imprisonment for the very serious 2014 offending (involving manufacture of approximately two kilograms of methamphetamine) coupled with the index offending is not in my assessment such as to animate the s 85 jurisdiction.

Minimum period of imprisonment

[76]   The only remaining issue is whether I should impose an MPI under s 86 of the Sentencing Act. Under s 86(2) a Court may do so if it is satisfied that the default non- parole period of one-third prescribed by the Parole Act 2002 is insufficient to hold an

offender accountable, to denounce his conduct, to deter him and others from committing the same or a similar offence, or to protect the community

[77]   In Chai v R, the Court of Appeal observed that an MPI may be expected in cases of recidivist or commercial methamphetamine dealing. 23 It emphasised that in respect of such offending it is necessary to:24

… hold the offender accountable, denounce drug dealing of this kind with the grievous social harm it causes the community, protect the community and deter repetition.

[78]   This case, regrettably, exhibits all the classic components justifying an MPI. It involved a significant manufacturing conspiracy, the defendant’s involvement was entirely driven by profit and the offending occurred within five months of release on parole for even more egregious methamphetamine-related offending. The principles of denunciation and deterrence to that extent loom especially large. In other circumstances they may indeed have justified a very significant MPI approaching the statutory maximum. However, I am conscious of already having uplifted the notional sentence by one year to reflect prior criminal history and offending on parole. I intend therefore to adopt a 50 per cent MPI as submitted by the Crown.

Final sentence

[79]Mr Kupkovich, would you please stand at this point, thank you.

[80]   Mr Kupkovich, on the charge of conspiring to manufacture methamphetamine, I sentence you to five years and two months’ imprisonment cumulative on the sentence of 15 years imprisonment imposed by Brewer J on 19 August 2014 and with an MPI of two years and seven months.

[81]   On the charge of importing ephedrine, I sentence you to four years’ imprisonment concurrent with the sentence of five years and two months now imposed.

23     Chai v R [2020] NZCA 202 at [39].

24 At [39].

[82]   Mr Kupkovich, would you please now take a seat. Thank you, that concludes my sentencing.

Muir J