R v Kupkovic - [2014] NZHC 1645

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-005703
CRI-2012-092-011275

CRI-2012-092-005957 [2014] NZHC 1645

THE QUEEN

v

ANDREI MIKOYAN KUPKOVIC LEIGHTON KENNETH HOE TUAN ANH HO

Hearing: 25, 26 and 27 November 2013 and 17 and 18 March 2014

Counsel:

JLS Shaw for Crown MA Edgar for Kupkovic AG Speed for Hoe

AM Rice/PK Hamlin for Ho

Judgment:

15 July 2014

JUDGMENT OF BREWER J

This judgment was delivered by me on 15 July 2014 at 10:00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: Meredith Connell (Auckland) for Crown Mark Edgar (Auckland) for Kupkovic Andrew Speed (Auckland) for Hoe
Philip Hamlin (Auckland) for Ho

R v KUPKOVIC, HOE & HO [2014] NZHC 1645 [15 July 2014]

Introduction

[1] The prisoners pleaded guilty to one representative count of manufacturing methamphetamine between 1 November 2011 and 1 May 2012.1 The comity of the Crown and the prisoners ceased at this point.

[2] The sentences the prisoners will receive under the count depend, to a large extent, on the quantity of methamphetamine manufactured. The Crown’s case is that a lot of methamphetamine was manufactured by the prisoners. Mr Shaw contends:2

3.5The table below details the methamphetamine yield from the various manufactures which the Crown alleges each of the Prisoners were involved in. The calculations have been adjusted (from the table in the previous Crown memorandum) bearing in mind the matters noted above.

Number of manufactures
Yield from one set

(50% conversion)

Yield from two sets

(50% conversion)

Kupkovic:

32 manufactures
32 x 45 = 1,440g 32 x 90 = 2,880g

Ho:

24 manufactures
24 x 45 = 1,080g 24 x 90 = 2,160g

Hoe:

11 manufactures
11 x 45 = 495g 11 x 90 = 990g

3.6Having regard to all relevant factors, the Crown position is that the appropriate methamphetamine yield figure for each of the Prisoners is as follows:

(a) Kupkovic – approximately 1.44 to 2.88 kilograms

(b) Ho – approximately 1.08 to 2.16 kilograms. (c) Hoe – approximately 495 to 990 grams.

[3] These yield figures, at the lower end, would bring Mr Kupkovic and Mr Tuan
Ho into band four of the tariff case of R v Fatu3 and Mr Leighton Hoe into the upper end of band three. At the higher end all three prisoners would be well into band four.

1      There are other counts in the indictment to which pleas of guilty have been entered, but there is no dispute about their factual underpinning.
2      Crown memorandum in relation to disputed facts hearing (quantum), dated 18 March 2014.
3      R v Fatu [2006] 2 NZLR 72 (CA) at [43].

[4] The prisoners, however, submit that the quantity of methamphetamine they manufactured is far less. Mr Kupkovic concedes he manufactured 349 grams (band three), Mr Tuan Ho concedes 600 grams (band four), and Mr Leighton Hoe denies any direct involvement with manufacturing methamphetamine. I infer Mr Hoe pleaded guilty on the basis that on a very few occasions he was a party…

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 [2014] NZHC 1645
Case: [2014] NZHC 1645
Decision Date: 15 July 2014

CaseChat Overview and Summary

The High Court of New Zealand considered the case of R v Kupkovic, Hoe & Ho, which involved three defendants charged with manufacturing methamphetamine. The defendants pleaded guilty to a representative count of manufacturing methamphetamine between 1 November 2011 and 1 May 2012. The key legal issue was determining the quantity of methamphetamine manufactured by each defendant, which would determine their respective sentences. The Crown argued that a significant quantity of methamphetamine was manufactured, while the defendants claimed the quantities were much lower.

The court found that the defendants manufactured methamphetamine on multiple occasions at various locations. The evidence included intercepted communications between the defendants, which the Crown argued were references to manufacturing activities. The court found that these references did indeed relate to manufacturing, and that the defendants were involved in multiple incidents of manufacturing. The court concluded that the average yield per manufacture was 67.5 grams of methamphetamine for the lead defendant, Kupkovic, and a lower average yield for the other two defendants.

Based on the findings, the court sentenced the defendants as follows: Kupkovic to 2025 grams of methamphetamine, Tuan Ho to 1552 grams, and Leighton Hoe to 607 grams. The court considered the defendants' roles in the manufacturing operations, with Kupkovic as the leader and the other two defendants playing supporting roles. The court also took into account the defendants' personal use of methamphetamine and the financial motivations behind their involvement in the manufacturing activities.

Orders