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]. When the judge gave a one year discount for the guilty pleas, he was in fact giving a 29% discount when applied to the correct figure of three years six months, not four years.

[10]     It was this 29% discount which Mr Chisnall attacked.  He submitted the discount should have been no more than 10%, which, when applied to the correct figure of three years six months, would have translated to a discount of about four or five months.  That would have brought the sentence down to about three years. 

[11]     We shall return to Mr Chisnall’s argument on that point shortly.  We shall digress for a moment to encapsulate the balance of Mr Chisnall’s argument.  Mr Chisnall accepted that sentencing is not a precise science and there is always a range.  The outer limits of that range were, say, two and a half years’ to three and half years’ imprisonment.  Even if one took the bottom point of the range, one was outside the zone where home detention could legitimately be considered as an alternative to imprisonment. 

[12]     Mr Chisnall then turned to what we should do now.  He acknowledged that Mr Kupkovic had already served more than three months’ home detention.  Mr Chisnall suggested this should equate to six months’ prison.  The rationale for that is that there is no parole with home detention whereas parole or early release is always a feature of sentences of imprisonment.  Taking a two and a half year minimum (the bottom of the range) and discounting six months in respect of home detention already served, one reached a figure of two years’ imprisonment.  That, Mr Chisnall submitted, should be the sentence we should now substitute. 

Discount for the guilty pleas – 10% or 25%?

[13]     We return now to the discount for the guilty pleas.  We accept that 10% is the normal discount for pleas entered on arraignment.  But Mr Mansfield, for Mr Kupkovic, explained that Mr Kupkovic should be treated as if he had effectively entered his pleas at depositions.  Pleas entered at depositions do normally attract a 25% discount, the discount which Allan J believed he was giving. 

[14]     Mr Mansfield submitted there were four reasons why Mr Kupkovic could not reasonably have been expected to enter his guilty pleas before he did:

(a)He had initially received legal advice that what he said he had done meant he had a defence to the charge of manufacturing;

(b)There was uncertainty as to whether the police accepted his version of events, an uncertainty not cleared up until the week before trial, at which time the Crown did in effect accept Mr Kupkovic’s version;

(c)Mr Kupkovic wanted the particulars of some of the charges changed, something the Crown did not accept until the week before trial;

(d)He had legitimate concerns about the effect which his guilty pleas might have on his wife’s position as a co-defendant.  She too faced a manufacturing charge resulting from the police raid on the Kupkovic home.  Mr Kupkovic maintained his wife was innocent of any wrongdoing and indeed, just before their trial was due to commence, the Crown dropped the manufacturing charge against Mrs Kupkovic and substituted a charge of permitting premises to be used for manufacturing methamphetamine.  Mrs Kupkovic pleaded not guilty to that charge and was in due course acquitted. 

[15]     We shall consider these reasons in turn.  Mr Kupkovic gave a statement to the police on the day of his arrest.  In that statement, he said that, some months before, he had allowed a friend, Dean Longair, to move into the Kupkovics’ family home and bring drug-related paraphernalia with him.  Mr Kupkovic acknowledged he had seen Mr Longair handling the drug-related equipment and precursor substances and had watched him manufacturing methamphetamine.  Essentially, he admitted knowing what his friend was doing and had turned a blind eye to it. 

[16]     On 7 June 2007, some seven weeks before the police raid, Mr Longair committed suicide.  This left Mr Kupkovic with the drug-related paraphernalia in his home.  Mr Longair’s wife did not want the equipment herself.  So it remained at the Kupkovics’ home – unused because Mr Kupkovic did not himself know how to manufacture methamphetamine.  He had merely watched Mr Longair doing it.  That was the state of affairs when the police raid took place. 

[17]     It would seem that the lawyer Mr Kupkovic initially retained did not appreciate that Mr Kupkovic’s admissions were sufficient to make him a party to the manufacture of methamphetamine.  He had, after all, admitted to allowing Mr Longair to store drug paraphernalia and precursor substances at his home, to using his home as a place of manufacture, and to watching Mr Longair while he manufactured methamphetamine.  Clearly, those acts taken together amounted to encouragement and assistance.  According to Mr Mansfield, the advice Mr Kupkovic originally received was to plead not guilty, advice Mr Kupkovic readily accepted because, as a lay person, he did not realise that one could be guilty of manufacturing methamphetamine even though not actually the manufacturer.

[18]     It was not until Mr Mansfield became involved as Mr Kupkovic’s lawyer, shortly after depositions in April 2008, that Mr Kupkovic received advice that the acts he had admitted to in his statement were sufficient of themselves to make him a party to the manufacturing. 

[19]     Although Mr Kupkovic’s affidavit, which was before Allan J at sentencing, does not refer to the initial legal advice Mr Kupkovic says he was given, we are, for present purposes, prepared to accept Mr Mansfield’s assertion that the advice was to the general effect above stated.

[20]     We turn to the second reason.  After Mr Mansfield became involved, he attempted to find out from the police whether they accepted Mr Kupkovic’s version of events.  It was not until the week before the Kupkovics’ joint trial was due to begin (8 December 2008) that the Crown essentially accepted that version of events.  In due course, Mr Kupkovic swore an affidavit as to what had happened.  Mr Mansfield told us the account in that affidavit was in essence the same as Mr Kupkovic had given the police on the day of his arrest.  Mr Kupkovic’s affidavit formed part of the agreed facts at sentencing. 

[21]     Of course, the fact that there may have been a dispute as to the facts of the offending would not in itself have prevented Mr Kupkovic from entering guilty pleas much earlier than he did.  After all, the Sentencing Act 2002 sets out a regime whereby disputed facts can be tested following the entry of guilty pleas: see s 24.  Notwithstanding that, we accept that the fact Mr Kupkovic did not know until the eve of trial whether the police would accept his version of what had happened was a factor to be taken into account in assessing the reasonableness of the delay in his entering guilty pleas. 

[22]     We turn to the third reason.  In the original indictment, the three counts relating to possessing equipment, precursors and materials capable of being used in the manufacture of methamphetamine all referred to those items being in Mr Kupkovic’s possession “on or about 30 July 2007”, with the intention that they be used for the purpose of manufacturing methamphetamine.  Mr Kupkovic was not prepared to plead guilty to those counts as, by that date, he had no such intention.  Any intention he had to be involved in drug manufacture came to an end on Mr Longair’s death.  What he was prepared to plead to were counts that he had had these items in his possession with that intention earlier.  It was not until the week before trial that the Crown acceded to a change in the indictment, altering these counts so as effectively to backdate them.  Given Mr Kupkovic’s stance from day one, we consider he was justified in insisting upon this change before he pleaded guilty to those three counts. 

[23]     Finally, we consider Mr Kupkovic’s concern about the effect his admissions might have on his wife’s position.  Normally, of course, an accused cannot set up as an excuse for delay in entering guilty pleas any concern he or she may have as to the effect of such pleas on co-accused.  Some leniency perhaps is justified, however, in the case of spousal co-accused, at least where the accused pleading guilty asserts his or her spouse is innocent and such is eventually found to be the case. 

[24]     We think there is merit in all of these submissions, especially considered together.  We accept that, in the circumstances, it was not reasonable to expect Mr Kupkovic to enter pleas of guilty until he knew better where the Crown stood on the matters Mr Mansfield had raised.  It appears, for whatever reason, there was delay in the police being able to advise their position on Mr Mansfield’s concerns.  In those circumstances, we consider it fair, as no doubt Allan J did, that Mr Kupkovic should be treated for discount purposes as if he had entered the pleas about the time Mr Mansfield became involved.  That would indicate that a 25% discount was not unreasonable. 

[25]     A 25% discount on three years six months (see above at [8]) would bring this sentence down to about two years eight months’ imprisonment.  That would suggest an acceptable range of, say, two years three months’ to three years’ imprisonment.

Home detention

[26] Our range is somewhat lower than the range Mr Chisnall ended up with: see above at [11]. On his range, we agree it would have been most unlikely that home detention could have been justified as an alternative to imprisonment. But our lower range at least brings it into contention. We accept that the case must have been right on the cusp and that Mr Kupkovic was lucky in being sentenced to home detention as opposed to imprisonment. In the end, we have decided not to interfere with the judge’s exercise of discretion for the following reasons, taken together.

[27]     First, Mr Kupkovic was a first offender.  While first offenders who commit serious drug offences can normally expect imprisonment, such a sentence is not inevitable if there are indications that something less than prison might satisfy the purposes and principles of sentencing. 

[28]     Secondly, Mr Kupkovic had previously been a worthwhile member of society and employed.  He had a supportive family.  The pre-sentence report indicated a high level of motivation to change his offending behaviour.

[29]     Thirdly, Mr Kupkovic’s role in the manufacturing was very limited.  He was not the principal and apparently derived no financial reward from whatever manufacturing Mr Longair did complete. 

[30]     Fourthly, we are very conscious of the fact that Allan J gained a particular insight into the Kupkovic family having presided over the trial of Mr Kupkovic’s wife, whom he acquitted.  Apparently, it was agreed between the Crown and Mr Kupkovic’s lawyer that Allan J should undertake Mr Kupkovic’s sentencing because of the knowledge he had gained about the family and the drug offending within the household as a result of being the trial judge.  The judge’s conclusion may have been merciful, but such mercy no doubt flowed at least in part from the special insight he would have gained. 

[31]     Finally, Mr Kupkovic is complying well with the sentence.  The report we have from the Department of Corrections indicates that Mr Kupkovic has complied to date with all of the special conditions to which his sentence of home detention was subject.  These include not drinking and not using illicit drugs.  He is shortly to begin a medium intensity rehabilitation programme.  In addition, he has completed 60 hours of the community work ordered and, according to the report we were given, “no enforcement action or internal sanctions have been taken against him by Community Probation and Psychological Services at this point”. 

Result

[32]     We grant the Solicitor-General leave to appeal, but dismiss the appeal. 

Final comment

[33]     We end with this comment.  Mr Kupkovic should be aware he avoided a sentence of imprisonment by a narrow margin.  If he fails to comply with his sentence of home detention, it would be open to his probation officer to apply to the court for an order under s 80F(4) of the Sentencing Act.  Under that subsection, the court is able, if satisfied the offender has failed to comply with home detention conditions, to cancel that sentence and substitute any other sentence that could have been imposed originally.  Should that come to pass, the court would be entitled, when deciding whether to impose imprisonment under subs (4), to take into account what we have said in this judgment, including the fact Mr Kupkovic avoided imprisonment by a whisker. 

Solicitors:
Crown Law Office, Wellington