KUPEC v R [2022] NZCA 410

KUPEC v R [2022] NZCA 410 [29 August 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA586/2017[2022] NZCA 410BETWEEN JIRI KUPECApplicantAND THE QUEENRespondentCourt: Brown, Clifford and Williams JJCounsel: H G de Groot for ApplicantM L Wong for RespondentJudgment:(On the papers)29 August 2022 at 9.30 amJUDGMENT OF THE COURT(Recall)The application for recall is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] Mr Kupec was convicted of one charge of importing into New Zealanda class A controlled drug, namely methamphetamine, and sentenced to 17 years'imprisonment with a minimum period of imprisonment (MPI) of eight and a halfyears.1 His appeal against conviction and sentence was dismissed.2 His applicationto the Supreme Court for leave to appeal against conviction was dismissed.31 R v Kupec [2017] NZDC 22632 [Sentencing decision].2 Kupec v R [2018] NZCA 377.3 Kupec v R [2018] NZSC 113.[2] He now applies for a recall of this Court's decision declining his appeal againstsentence. He wishes to challenge the imposition of an MPI, a ground which was notadvanced at his first appeal. The Crown opposes the application contending that thecircumstances do not satisfy the threshold for recall stated by the Supreme Court inUhrle v R.4[3] As the Supreme Court recently stated in S (SC39/2017) v R,5 the general ruleis that a judgment, once delivered, must stand for better or worse, subject to appeal.A decision to recall will only be made in exceptional circumstances. It will beappropriate where some procedural or substantive error has occurred which wouldresult in a miscarriage of justice.6[4] Mr Kupec states that he did not understand that his appeal against sentence waslimited to a challenge to the starting point. He claims that had his instructions beensought he would have instructed his counsel to also challenge the MPI. As the Crownobserves, there has been no provision of a waiver of privilege in respect of theassertion that there was an error by senior counsel representing him on his appeal.[5] Mr Kupec contends that there are strong grounds to argue that the order for anMPI should be quashed: in particular that the MPI was imposed mechanistically(by mere recitation of s 86 of the Sentencing Act 2002); the "personal and impersonalfacts" of his offending did not call for an MPI; and that he has been and will be requiredto serve a very significant sentence of imprisonment in isolation.[6] While in Zhang v R, which was decided subsequent to Mr Kupec's trial andappeals, this Court warned against the mechanistic imposition of MPIs, the Court alsonoted that it is the factors of deterrence, denunciation and accountability that are likelyto be at the forefront of decisions in drug cases involving the imposition of an MPI.74 Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286.5 S (SC39/2017) v R [2022] NZSC 7.6 At [3].7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [169]–[171].[7] Mr Kupec imported 20 kilograms of methamphetamine in suitcases cleverlyconstructed to avoid any concerns on casual scrutiny.8 The sentencing Judgeconcluded that Mr Kupec not only knew he was importing illegal drugs but also"cynically" involved his mother in the enterprise so as to suggest to customs and otherofficials that he was undertaking legitimate overseas travel.9 The Judge'sconsideration of the imposition of an MPI was not mechanistic.10[8] Given this is the key point in Mr Kupec's application, the failure of his counsel,if that is what it was, to also mount an appeal against the imposition of an MPI is nota "very special reason [for which] justice requires" recall of our judgment on appeal.11It is of course open to Mr Kupec to make a second application to the Supreme Courtfor leave to appeal in respect of his sentence.Result[9] The application for recall is declined.Solicitors:Crown Law Office, Wellington for Respondent8 Sentencing decision, above n 1, at [6].9 At [14].10 At [29], [30] and [36].11 Uhrle v R, above n 4, at [29].