R v Kupkovic
[2014] NZHC 1946
•19 August 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-092-005703
CRI-2012-092-011275
CRI-2012-092-005957 [2014] NZHC 1946
THE QUEEN
v
ANDREI MIKOYAN KUPKOVIC TUAN ANH HO
LEIGHTON KENNETH HOE
Charges:
Plea:
Kupkovic: Manufacturing methamphetamine (2); Supplying
methamphetamine; Possession of methamphetamine for supply; Possession of precursor substance; Possession of equipment; Possession of materials
Ho: Manufacturing methamphetamine; Supplying methamphetamine; Receiving stolen property
Hoe: Manufacturing methamphetamine
Guilty
Counsel:
JLS Shaw for Crown MA Edgar for Kupkovic PK Hamlin for Ho
AG Speed for Hoe
Sentenced:
19 August 2014
SENTENCING NOTES OF BREWER J
Solicitors/Counsel: Meredith Connell (Auckland) for Crown Mark Edgar (Auckland) for Kupkovic Philip Hamlin (Auckland) for Ho Andrew Speed (Auckland) for Hoe
R v KUPKOVIC, HO & HOE [2014] NZHC 1946 [19 August 2014]
Introduction
[1] Mr Kupkovic, Mr Tuan Ho and Mr Leighton Hoe, you appear for sentence today having pleaded guilty to drug offending.
[2] Mr Kupkovic, you pleaded guilty to two counts of manufacturing methamphetamine, one being a representative count,1 one representative count of supplying methamphetamine,2 one count of possession of methamphetamine for supply,3 one count of possession of a precursor substance,4 one count of possession of equipment,5 and one count of possession of materials.6
[3] Mr Tuan Ho, you pleaded guilty to one representative count of manufacturing methamphetamine, one representative count of supplying methamphetamine and one count of receiving stolen property.
[4] Mr Leighton Hoe, you pleaded guilty to one representative count of manufacturing methamphetamine.
[5] You all, however, denied offending to the extent alleged by the Crown. I heard evidence in a disputed facts hearing in November of last year, with two days of legal submissions in March of this year. In summary, the Crown alleged 33 separate incidents of manufacturing. In many cases, one or more of you denied either that manufacturing had taken place or, if it had, you were involved. The result was that I had to go carefully through the evidence in order to reach conclusions as to your individual blameworthiness. In the end, I did not make findings at the higher end of the Crown’s allegations, but I made findings considerably higher than the levels of offending you were prepared to accept.
[6] The offending, for all of you, was significant and serious. Particularly, Mr Kupkovic, in relation to you. I set out the factual background in detail in my
judgment on the disputed facts hearing and so I will refer to it now only briefly.
1 An offence against Misuse of Drugs Act 1975, ss 6(1)(b) and 6(2)(a).
2 Sections 6(1)(c) and 6(2)(a).
3 Sections 6(1)(f) and 6(2)(a).
4 Sections 12A(2)(b) and 12A(3)(b).
5 Sections 12A(2)(a) and 12A(3)(b).
6 Sections 12A(2)(a) and 12A(3)(b).
Factual background
[7] Between November 2011 and May 2012, all three of you were involved in the manufacture of methamphetamine, principally at a rural address at Berwyn Avenue in Takanini. The three of you were not always present at the property at the same time. The manufacture of methamphetamine took place in a large farm implement shed with the permission of the owner. There were over 20 instances of manufacture of methamphetamine at Berwyn Avenue and, occasionally, at a property on Wallace Road. On 23 February 2012, at Berwyn Avenue, one of the manufactures resulted in an explosion which injured you, Mr Leighton Hoe. There were two subsequent manufactures at the Berwyn Avenue address, but after that the three of you went your separate ways. In March and April 2012 you, Mr Kupkovic, were involved in six more instances of methamphetamine manufacture at your own address in Roscommon Road. In total, Mr Kupkovic, you were involved in 30 manufactures of methamphetamine. Mr Tuan Ho, you were involved in 23 incidents of manufacturing, and for you, Mr Leighton Hoe, it was nine.
[8] The intercepted communications I had to consider for the disputed facts hearing gave me a very clear picture of your respective roles in the offending. Mr Kupkovic, you were the ringleader of this offending. You instigated most instances of manufacture and would often contact Mr Tuan Ho, asking if he would like to come and “work” with you and asking him to find and bring with him certain precursor materials, particularly iodine and hypo-phosphorous acid. As the leader of the team, you had the skills and equipment to manufacture methamphetamine. I infer you also had the networks necessary to supply the methamphetamine you manufactured. I concluded that you had a ready supply of Contac NT from which to obtain pseudoephedrine, and the limiting factor on your productivity was the availability of the other chemicals you needed, particularly iodine and hypo- phosphorous acid.
[9] Mr Tuan Ho, I consider that you were Mr Kupkovic’s assistant. There was another assistant, Mr Senior, who is not before the Court now, but you played an important role in helping Mr Kupkovic make methamphetamine. You also had an
important role in sourcing material needed to manufacture methamphetamine. You were particularly active in sourcing iodine and hypo-phosphorous acid.
[10] Mr Leighton Hoe, you played a much lesser role in the offending. Your main role seemed to be delivering caustic soda to Mr Kupkovic and Mr Tuan Ho. However, you would often be present for at least part of the manufacturing process, and while you did not always take a physical role in the manufacture, you were certainly there to encourage the process.
[11] Mr Kupkovic, I found that you manufactured at least 2025 grams of methamphetamine. This was against the Crown’s contention that you manufactured approximately 1440-2880 grams. I will not repeat what is in my disputed facts hearing judgment, sufficient to say that I concluded you were using on average at least one-and-a-half sets of Contac NT per manufacture. You were using significant quantities of precursor substances, you went through them quickly and you were on a constant quest for more. When, on 26 April 2012, the Police executed a search warrant at your home address they found you in the process of manufacturing methamphetamine. The quantities of precursor substances, including Contac NT, and equipment found indicated the scale of your operation. The Police also found
$27,000 in cash at your home.
[12] Mr Tuan Ho, I found that you participated in the manufacture of 1552 grams of methamphetamine. The Crown set out to prove that you manufactured between
1080 and 2160 grams. In your case, you gave a detailed account to the Police of your offending, including the subsequent manufacture by you of methamphetamine after you split from Mr Kupkovic. I am not here today to sentence you for that individual manufacturing. You told the Police that in return for your work for Mr Kupkovic, you were supplied with methamphetamine for your personal use and you would receive seven grams, or on occasion 14 grams, of methamphetamine to sell on a commission basis. You might make perhaps $4,000 for yourself. When your property was searched on 1 May 2012, you were found with $2,800 cash, two stolen i-Phones and a stolen i-Pad.
[13] Mr Leighton Hoe, I found you were a party to the manufacture of at least
607 grams of methamphetamine. This was against a Crown allegation of 495-
990 grams. Your motivation was to obtain methamphetamine for your personal use. Sometimes your sole involvement would be the supply of caustic soda for the manufacture. On other occasions, you would stay at the property and assist or encourage the manufacture.
[14] Mr Kupkovic and Mr Tuan Ho, while manufacturing you were also personally supplying methamphetamine on a retail basis. I do not know what method was used to dispose of the majority of the methamphetamine you manufactured but the supply charge relates to agreed quantities. Mr Kupkovic, you supplied 130 grams over seven identified transactions. Mr Tuan Ho, you supplied a total of between 100 and 150 grams. Mr Leighton Hoe, there is no charge against you of supplying methamphetamine.
Personal circumstances
[15] I will now discuss the personal circumstances of each of you in turn and the recommendations contained in your pre-sentence reports.
Mr Kupkovic
[16] Mr Kupkovic, you are 37 years old. You were born and raised in Australia and came to New Zealand in 1998. Your parents and siblings have remained in Australia and you say that you have torn your parents’ heart out with this offending. It has had an even more profound effect on your Vietnamese wife and your three sons aged 14, 11 and nine.
[17] You were a successful café owner who worked and supported your young family before you became involved with methamphetamine. You have previous convictions for methamphetamine offending. In 2008 and 2009, you were sentenced on charges of possessing utensils and manufacturing methamphetamine. The offending took place in 2006 and 2007 and the most serious sentence was one year’s home detention.
[18] I have read your pre-sentence report. It recommends a sentence of imprisonment, as it must. The report writer notes that since your arrest on these matters you have completed private treatment at the Capri hospital. You report that you have gained a lot of insight into the effect methamphetamine and other drugs have on you.
[19] You have come to terms with the enforced separation from your wife and sons and you regret you will not be with your sons in their teenage years. You were given opportunities to learn from your previous methamphetamine convictions but you continued your involvement with the drug. The report writer says you express what appears to be genuine remorse and you are assessed as highly motivated to change and remain offence free. You are assessed as having a medium likelihood of reoffending.
Mr Tuan Ho
[20] Mr Ho, you are a 30 year old man who identifies as Vietnamese. You have two minor convictions for dishonesty offending in 2002 and 2003. I will ignore them and treat you as a first offender.
[21] Your pre-sentence report records that you lived in poverty in Vietnam and moved to New Zealand in 1998. You attempted formal schooling in New Zealand but dropped out after you found the language barrier too difficult. You have been in a relationship for 12 years and you share with your partner an 11 year old son. Prior to your remand you lived a transient lifestyle, staying with friends due to financial hardship. You have an unstable employment history due to your drug taking. You confirm that between 2008 and 2013 drug dealing was your only source of income.
[22] You are assessed as having a very harmful pattern of drug and alcohol abuse. During the entirety of your offending you were under the influence of methamphetamine and cannabis. You used methamphetamine on a daily basis. You deny any affiliation to any gang or anti-social group and say that your partner continues to offer her support despite her disapproval of your criminal offending.
[23] You are identified as having two rehabilitative needs: drug abuse issues and an unhelpful lifestyle balance. You acknowledge a problem with drugs and you agree you would benefit from attending a Drug Treatment Unit prior to your release. The report writer considers that without intensive drug rehabilitation you are likely to continue offending in a similar way. A sentence of imprisonment is recommended.
Mr Leighton Hoe
[24] Mr Hoe, you have 13 previous convictions. They include assault and theft, but primarily your previous convictions relate to your use of cannabis. In 1994,
2001 and 2008 you were sentenced to terms of imprisonment for your cannabis offending.
[25] Your pre-sentence report tells me you are currently renting a flat and living there with your 13 year old son. You have six children from three relationships. In the last two years you have found stable employment as the general manager of a metal fabrication company. I have received very positive testimonials from your employers.
[26] You state that you hung around with your co-offenders in order to support your methamphetamine habit. You say that since this offending you have turned a corner with your new job. You have voluntarily completed a programme and had counselling with community alcohol and drug services. You are said to have insight into your offending and you claim to have been drug free for two years. You are assessed at a low risk of reoffending if you maintain your current frame of mind and pro-social attitude. A sentence of imprisonment is recommended.
Principles and purposes of sentencing
[27] A Judge does not just make up the sentences he imposes. First, he is bound by the Sentencing Act 2002 which sets out the purposes and principles of sentencing. Where serious drug offending is concerned, I have to hold each of you accountable for the harm you have done to the community by your offending. Your manufacture
and supply has brought substantial amounts of methamphetamine into the Auckland region. Of course this has caused harm to the wider community.
[28] Having said that, and within the requirements of the law, I do not set out simply to punish you. I have to look at each of you individually and take into account the need to help you with rehabilitation and reintegration into society once you have served your sentences.
[29] As all of your lawyers have recognised, there have been so many previous cases of sentencing for serious drug offending that sentencing levels overall are well known. This is something I need you to understand and for the people in the public gallery to understand. The task that I have to perform today is not a personal one. I have to do what the law requires me to do. In doing that, it does not matter whether I think you are good people, deluded people or just people who found yourselves in circumstances which you were unable to resist. There have been so many cases involving serious drug offending that my task is to find where your cases fit within the others.
[30] There is a case, in particular, called R v Fatu, which specifies bands of offending and the sentencing levels applicable to each.7 I will rely on it. But, in sentencing you today, I am not going to go through the details of all of the cases to which I have been referred. I will note them in the written record of my sentencing notes, but I am very well aware that all you want to know is the final outcome.8 I will indicate to you the basis on which I reach my sentences but I will not go into the sort of detail which will be of real interest only to the lawyers.
Submissions
Mr Kupkovic
[31] Mr Kupkovic, the Crown submits that a starting point of 16 or 17 years’
imprisonment is appropriate for you. This is largely reflective of the scale of your
7 R v Fatu [2006] 2 NZLR 72 (CA).
8 R v Filer [2012] NZHC 149; Filer v R [2012] NZCA 517; R v Kimura HC Palmerston North
CRI-2005-031-947, 28 November 2005; R v Pulman HC Auckland CRI-2007-057-2736,
27 August 2010; Peters v R [2012] NZCA 252; MacFarlane v R [2012] NZCA 317; Mallett v R
[2014] NZCA 39; Cave v R [2013] NZCA 236.
offending. It shows a large commercial drug operation during which you manufactured at least 2025 grams of methamphetamine. You were the principal offender.
[32] The Crown submits there should be an uplift of six to 12 months on the starting point to take account of your previous offending. The Crown acknowledges that you entered guilty pleas but because of the disputed facts hearing the submission is that your discount should be only 10 per cent. The Crown seeks a minimum period of imprisonment of 50 per cent of your end sentence.
[33] Your lawyer submits that the appropriate starting point is 13 to 15 years’ imprisonment. The major point he makes is that although you were manufacturing large commercial quantities, there was no real evidence of assets or money accumulated. For whatever reason, what you made you spent. I see you had a gambling problem. Your lawyer concedes that a small uplift on the starting point may be appropriate for your previous offending. However, your lawyer submits that you indicated as early as 1 February 2013 that you were prepared to make a deal and accept some responsibility for your offending and so he submits you should have a
20 per cent discount to take into account your remorse and the prospects of rehabilitation which your actions taken after you have been charged show prospects for. Your lawyer accepts that there will probably have to be a minimum period of imprisonment.
[34] Mr Kupkovic, it is quite clear that your offending is deep within band 4 of Fatu. I have looked at the cases which have been referred to me and taking into account that you do not seem to have had a lasting financial benefit from your offending, I will adopt a starting point of 16 years’ imprisonment. The Crown has not requested an uplift for your other offending, but I think that I must impose one. I accept that the counts of possession of precursor substances, equipment and materials are part and parcel of your manufacturing operation. They do, however, indicate that it was an ongoing manufacturing operation, ended only by the intervention of the Police.
[35] The representative count of supplying methamphetamine is more serious. Obviously, any commercial manufacturing operation involves supplying the product. I do not know how you disposed of all the product, but the instances to which you have admitted relate to more than 100 grams of methamphetamine. I will uplift the starting point by one year, making a combined starting point of 17 years’ imprisonment.
[36] I come now to the factors personal to you. You do have previous methamphetamine convictions in 2008 and 2009 for offending which took place in
2006 and 2007. On the manufacturing conviction, you must have teetered on the brink of imprisonment since you received the maximum possible sentence of home detention. You were given an opportunity at that time, and you chose not to take it. I should increase your sentence but I am becoming concerned that where we would end up would not be justified on a totality of offending basis. I do not consider, looking at your offending overall, that you are the sort of hard-hearted commercially motivated career criminal for whom the prospects of rehabilitation and reintegration must be minimal. I will not uplift your sentence.
[37] On the other hand, I cannot give you much of a discount for your plea of guilty. You were prepared to concede you manufactured a total of 349 grams of methamphetamine. There had to be a lengthy and detailed disputed facts hearing before the extent of your offending could be concluded. It was very different to your admission. Your discount will be limited to 10 per cent. I round the total down to
15 years’ imprisonment.
[38] I will also impose a minimum period of imprisonment. I think I am bound to do that when looking at the law. I have to hold you accountable, denounce your conduct and deter others. I direct a minimum period of imprisonment of seven-and- a-half years, which is 50 per cent of your end sentence.
Mr Tuan Ho
[39] Mr Ho, the Crown submits that on the basis that you were involved in the manufacture of 1552 grams of methamphetamine on 23 occasions, you should be placed at the bottom of band 4 of Fatu. That means a starting point of 14 or
15 years’ imprisonment. The Crown considers that you should receive a discount of
10 per cent for your plea of guilty but submits you should receive a minimum period of imprisonment.
[40] The main point made by your lawyer, Mr Ho, is that the decisions in other cases relied on by the Crown do not fairly apply to you. They were focused on the starting points for main offenders. In his submission, your lawyer says a starting point of 11 or 12 years’ imprisonment is justified. He asks me to take into account your long battle with methamphetamine addiction and says that I should emphasise your prospects of rehabilitation and reintegration into the community. He submits that you are entitled to a discount of at least 15 per cent for your guilty plea and a further 10 or 15 per cent for your other personal circumstances. As I calculate it, your lawyer is asking for an end sentence of around eight years’ imprisonment.
[41] Mr Ho, your involvement in the manufacture of at least 1552 grams of methamphetamine on numerous occasions does place you in band 4 of Fatu. I do not consider that your offending is on the same scale as that of Mr Kupkovic. I accept that you were the active assistant rather than the ringleader. However, you were actively seeking and obtaining the necessary precursor substances as well as taking a personal part in the manufacture. I place your offending towards the lower end of band 4 of Fatu.
[42] I am conscious that the Fatu sentencing bands do overlap. The Court of Appeal made it clear that whether an offender fits within any particular band depends not just on the amounts of drugs involved but also the role played by the offender.9 I have decided that I will adopt a 14 years starting point and I will look at the overall sentence I reach against my appreciation of the totality of your offending to see whether there should be any significant reduction.
[43] Like Mr Kupkovic, you also supplied methamphetamine. Indeed, that was your principal motivation for being associated with the manufacturing. You would receive methamphetamine, sell it on a commission basis and keep the commission
for yourself. This was how you made your living and kept your family for some
9 R v Fatu, above n 7, at [31].
years. I increase the starting point by one year to recognise this. This results in a final starting point of 15 years’ imprisonment.
[44] I will not impose a separate uplift for the receiving charge, although in theory I should since it is completely separate offending. I bear in mind the totality principle.
[45] You do not have a record of previous offending that I will count against you. Neither is there anything in your life history which means I can give you a credit for previous good character. Remorse does not have a real role to play in your sentence.
[46] I am prepared to give you a discount of 10 per cent for your guilty plea. Your position, prior to the disputed facts hearing, was that you had participated in the manufacturing of 600 grams of methamphetamine. I found, having heard the evidence, that you were involved to a much greater extent than that.
[47] That would end normally at 13-and-a-half years’ imprisonment. But when I consider the totality of your offending, compared to that of Mr Kupkovic, I think it is too high. You are a pathetic rather than a dangerous character. You are an addict and the other part of your motivation for being involved with this offending was to get methamphetamine for your own use. You have no money, no assets and no extravagant lifestyle to show for your offending. You are making efforts in prison to rehabilitate yourself and you were candid with the Police right from the start, a factor I took into account in not finding that you made methamphetamine with a greater efficiency than Mr Kupkovic.
[48] You are going to have to go to prison for a long time, the law requires that, but I can recognise the matters I have just put to you by reducing your overall sentence to 12-and-a-half years. I will not impose a minimum period of imprisonment; my clear view is that given your personal background it would be better to leave the length of your incarceration to the Parole Board.
Mr Leighton Hoe
[49] Mr Hoe, the Crown submissions are based on my finding that you were party to the manufacture of 607 grams of methamphetamine. The Crown accepts that mostly your role was limited to sourcing caustic soda and that when you were present you either assisted or encouraged the manufacture. The Crown also accepts your primary motivation for your involvement was to support your personal drug habit. Accordingly, the Crown submission is that I should adopt a starting point of
10 or 11 years’ imprisonment. Again, the Crown argues for a discount of 10 per cent for your guilty plea but does not, in your case, seek a minimum period of imprisonment.
[50] Your lawyer submits that the cases put forward by the Crown are not really relevant to you because they relate to people who were either primarily responsible for offending or who were “indispensible parties”. Your lawyer urges me to adopt a starting point of eight years’ imprisonment, being a 30 or 40 per cent reduction on the 13 years’ imprisonment at which band 4 of Fatu begins.
[51] Your lawyer emphasises the efforts you have made to rehabilitate yourself through your employment. These efforts are given real substance by the letters I have received. Your lawyer asks me to give a separate discount of 20 per cent for this factor alone. He submits also that you should have a full 25 per cent discount for your plea of guilty because you originally asked for a sentencing indication which the Crown rejected as it contended you were responsible for generating
1350 grams of methamphetamine.
[52] Mr Hoe, prior to the disputed facts hearing you denied any direct involvement with manufacturing methamphetamine at all. Your plea of guilty was on the basis that on a very few occasions you were party to manufacturing methamphetamine through supplying caustic soda. Your presence at Berwyn Avenue was said to be only because of your need for methamphetamine for your personal use.
[53] I do not consider you to be as blameworthy as either Mr Kupkovic or Mr Tuan Ho. I will assign a starting point in line with Fatu and once I reach the end point I will look at your offending against its total blameworthiness.
[54] I will take a starting point which is within band 3 of Fatu to take account of your more limited participation in the offending. The starting point is 10 years’ imprisonment.
[55] Turning to your personal circumstances, I cannot ignore the previous drugs offending. I will uplift your sentence by six months. Your overall starting point is now 10 years six months.
[56] I consider that the work you have done in your employment is impressive. It shows that you can battle your addiction successfully. I need to encourage that and I will do so by reducing the combined starting point of 10 years six months down to nine years’ imprisonment. In giving this reduction, I take into account that you were subject to restrictive bail conditions for the period between charge and sentence.
[57] I will also give you a greater guilty plea discount than I did for the other two offenders. That is because you did ask for a sentencing indication at the first opportunity and the disputed facts hearing was not resolved solely in the Crown’s favour as it contended you had manufactured more than twice the amount upon which I settled. I will give you a 15 per cent discount. That takes the sentence to this point to seven years and eight months’ imprisonment.
[58] Standing back and looking at your offending in the round, you did not benefit financially from the manufacturing. You obtained methamphetamine as your principal reward. However, you were more actively involved in the operation than someone who did odd jobs for a bit of meth. And you have served three terms of imprisonment before for drug offending. On a totality basis, I will impose a final sentence of seven years’ imprisonment. There will be no minimum period of imprisonment.
Sentence
[59] Mr Kupkovic, Mr Tuan Ho and Mr Leighton Hoe, please stand.
[60] Mr Kupkovic, I sentence you to 15 years’ imprisonment, with a minimum
period of imprisonment of seven-and-a-half years.
[61] Mr Tuan Ho, I sentence you to 12-and-a-half years’ imprisonment. [62] Mr Leighton Hoe, I sentence you to seven years’ imprisonment. [63] I structure your sentences in this way:
Mr Kupkovic:
(a) On the two counts of manufacturing methamphetamine, 15 years’ imprisonment for each and on each a minimum period of imprisonment of seven-and-a-half years;
(b) On the representative count of supplying methamphetamine, 10 years’
imprisonment;
(c) On the count of possession of a precursor substance, two years’
imprisonment;
(d) On the count of possession of equipment, three years’ imprisonment; (e) On the count of possession of materials, three years’ imprisonment. All sentences will be served concurrently with each other.
Mr Tuan Ho
(a) On the count of manufacturing methamphetamine, 12-and-a-half
years’ imprisonment;
(b) On the count of supplying methamphetamine, five years’
imprisonment;
(c) On the count of receiving stolen property, one year imprisonment. All sentences will be served concurrently with each other.
Mr Leighton Hoe
(a) On the count of manufacturing methamphetamine, seven years’
imprisonment.
(b)I discharge you on counts 9, 10 and 11 in the indictment for resolution presented to me this morning.
[64] You may stand down.
Brewer J
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