The Queen v Kupkovic - [2009] NZCA 330

IN THE COURT OF APPEAL OF NEW ZEALAND
CA225/2009
[2009] NZCA 330
THE QUEEN
v
ANDREI MIKOYAN KUPKOVIC
Hearing:15 July 2009

Court:Chambers, Randerson and Keane JJ
Counsel:N P Chisnall for Crown

R M Mansfield for Respondent

Judgment:28 July 2009 at 4 pm

JUDGMENT OF THE COURT

The application for leave to appeal is granted, but the appeal is dismissed.

REASONS OF THE COURT
(Given by Chambers J)
Manufacturing methamphetamine
[1] On 8 December 2008, Andrei Kupkovic, the respondent, pleaded guilty on arraignment to five charges:
(a)Manufacturing methamphetamine;
(b)Three counts of possessing equipment, precursors and materials capable of being used in the manufacture of methamphetamine;
(c)Possessing three methamphetamine pipes.

[2]       Allan J sentenced Mr Kupkovic to 12 months’ home detention and 100 hours’ community work: HC AK CRI 2007-004-23338 2 April 2009.
[3]       The Solicitor-General has applied for leave to appeal against that sentence on the grounds that it “was a manifestly inadequate response to the seriousness of Mr Kupkovic’s offending”. The Solicitor-General contends that Allan J, by imposing that sentence, erred in principle.
[4]       Whether the sentence was manifestly inadequate is the sole issue with which we are concerned.
Was the sentence manifestly inadequate?
The Crown argument
[5]       Allan J adopted, as a starting point for all the offending, four years’ imprisonment. Mr Chisnall, for the Crown, accepts that was an appropriate starting point. We agree. It needs no further discussion.
[6]       Allan J allowed a six month discount for the following factors:
(a)Remorse;
(b)His “expressed determination to return to [his] former life as a useful member of society and a good husband and father”;
(c)He was 32 years old and, prior to this offending, “had a completely clean record”;
(d)Since his arrest, he had not taken drugs.

[7]       Factor (c) needs some explanation. When the police searched Mr Kupkovic’s home on 30 July 2007 and uncovered the drug offending, they also found a stolen motorbike, laptop computer and television. The police charged Mr Kupkovic summarily with receiving. He pleaded guilty to those charges and had earlier been sentenced to 150 hours’ community work. The effect of Allan J’s sentence was to increase the amount of community work Mr Kupkovic was bound to perform to 250 hours. In making this qualification to factor (c), we are not, however, criticising the judge for treating Mr Kupkovic as effectively a first-time offender.
[8]       Mr Chisnall accepted this six month discount was appropriate. We agree. That brings us down to three years six months.
[9]       The judge then allowed a one year discount for Mr Kupkovic’s guilty pleas. In giving that discount, the judge believed he was giving a 25% discount. But, when this court talks of discounts of 10%, 25%, or 30-33%, depending on the timing of the plea, that percentage is applied “to the provisional sentence after all aggravating factors and all other mitigating factors have been taken into account”: see, for example, R v Fonotia [2007] 3 NZLR 338 at [51] and R v Walker [2009] NZCA 56 at [18]-[21].…

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 The Queen v Kupkovic

Details

AGLC: The Queen v Kupkovic [2009] NZCA 330
Case: [2009] NZCA 330
Decision Date: 28 July 2009

CaseChat Overview and Summary

The case of The Queen v Kupkovic involved the respondent, Andrei Mikoyan Kupkovic, who pleaded guilty to five charges related to the manufacture and possession of methamphetamine. Allan J sentenced Mr Kupkovic to 12 months of home detention and 100 hours of community work. The Solicitor-General applied for leave to appeal, arguing that the sentence was manifestly inadequate given the seriousness of Mr Kupkovic's offending. The central issue for the Court of Appeal was whether the sentence was indeed manifestly inadequate.

The Crown's argument was that the sentence was too lenient, given the nature of the offences. They accepted that a starting point of four years' imprisonment was appropriate but argued that the discount applied for remorse and other mitigating factors was excessive. The Crown also argued that the discount for early guilty pleas should have been no more than 10%, resulting in a significantly higher sentence. The Court examined the reasons for the delay in Mr Kupkovic entering his pleas and found merit in his justifications, which included misunderstanding the legal advice initially received, uncertainty about the police accepting his version of events, changes needed in the indictment, and concerns about the impact on his wife. Given these factors, the Court found that a 25% discount was reasonable, leading to a sentence range of approximately two and a half to three years' imprisonment. Despite this, the Court decided not to interfere with the judge's discretion, considering the limited role of Mr Kupkovic in the offences, his compliance with the sentence, and the special insight gained by the sentencing judge.

The Court granted leave to appeal but dismissed the appeal, concluding that while the sentence was on the cusp of being inadequate, it was not manifestly so. The Court also warned Mr Kupkovic that any failure to comply with his home detention conditions could result in a harsher sentence being imposed.

Orders