The King v Peter Alexander Wellman Claudia Romero Lopez
[2024] NZHC 2681
•16 September 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2022-085-1214
[2024] NZHC 2681
THE KING v
PETER ALEXANDER WELLMAN CLAUDIA ROMERO LOPEZ
Hearing: 16 September 2024 Appearances:
R G Buckman for Crown C L Parkin for Wellman
SWO Campbell for Romero Lopez
Judgment:
16 September 2024
SENTENCING REMARKS OF McQUEEN J
[1] Mr Wellman and Ms Romero Lopez, please remain seated at the moment, I will ask you to stand later in the sentencing process.
[2] Mr Wellman and Ms Romero Lopez, you appear for sentence in relation to charges for importation of Class A drugs. In July 2024, I provided sentence indications to each of you, which you have accepted, and you have pleaded guilty to your respective charges. I must now sentence you on those charges.
[3]To do this, I will:
(a)First, identify the charges that each of you have pleaded guilty to.
R v WELLMAN [2024] NZHC 2681 [16 September 2024]
(b)Second, describe the key facts of your offending.
(c)Third, set out my reasons for the sentence I will impose on each of you.
(d)Finally, I will impose those sentences on you.
Charges
[4]Mr Wellman, you have pleaded guilty to:
(a)one representative charge for importing a Class A drug (methamphetamine);1
(b)one charge of importing a Class A drug (cocaine);2
(c)one representative charge of supplying a Class A drug (methamphetamine)3;
(d)one charge of conspiring to possess a Class A drug for supply (methamphetamine);4 and
(e)one representative charge of engaging in a money laundering transaction;5
[5]Ms Romero Lopez, you have pleaded guilty to:
(a)one charge of importing a Class A drug, being cocaine;6 and
(b)one charge of engaging in a money laundering transaction.7
1 Misuse of Drugs Act 1975, ss 6(1)(a) and subs (2)(a): maximum penalty life imprisonment.
2 Misuse of Drugs Act 1975, ss 6(1)(a) and subs (2)(a): maximum penalty life imprisonment.
3 Misuse of Drugs Act 1975, ss 6(1)(c) and subs (2)(a): maximum penalty life imprisonment.
4 Misuse of Drugs Act 1975, s 6(2A)(a): maximum penalty 14 years’ imprisonment.
5 Crimes Act 1961, s 243(2): maximum penalty seven years’ imprisonment.
6 Misuse of Drugs Act 1975, ss 6(1)(a) and subs (2)(a): maximum penalty life imprisonment.
7 Crimes Act 1961, s 243(2): maximum penalty seven years’ imprisonment.
The offending
[6] I now briefly describe the offending that led to your charges. This is drawn from the agreed summary of facts.
Overview
[7] Operation Bali was a joint New Zealand Customs and Police investigation into a criminal syndicate importing methamphetamine and cocaine into New Zealand. You two, along with other co-defendants, all played essential parts in the importation of Class A drugs and other drug dealing activity.
Importation of Class A drugs
[8] The criminal syndicate operated from at least February 2021 to June 2022. Over that time several packages came into New Zealand which contained an estimated
28.6 kilograms of methamphetamine and 5 kilograms of cocaine. The packages were addressed to various addresses linked to one or more of the members of the syndicate. The Class A drugs were concealed in various items including a wooden table, a plate from a roading compactor, a metal cog and a sausage grill.
[9] You, Mr Wellman and other co-defendants, had leading roles in the criminal syndicate. You had close and regular contacts in South America that you used to arrange imports of methamphetamine into New Zealand (including the former husband of Ms Romero Lopez, nicknamed “Eddy”). You used your business, Speciality Glaziers Ltd, to rent the Boxman Storage container which was the location where you carried out the extracting and cleaning.
[10] Mr Wellman, you passed on details to a co-defendant from an overseas associate about collecting the wooden table shipment. You told the associate that you had all the details and would look into it and be in contact. The shipment was abandoned but Police later seized the table and found just over 2.9 kilograms of methamphetamine in the table legs.
[11] Mr Wellman, you were present at the Boxman Storage container when Ms Romero Lopez and another co-defendant brought metal rods to the container, these
rods being “rollers” out of a sausage grill. You and your co-defendants extracted cocaine from those rollers. Mr Wellman, you also took a package containing a roading compactor to the Boxman container and were surprised to find the base part of it was missing. When a further package containing the missing base plate arrived in New Zealand, Customs found it contained 6.1 kilograms of methamphetamine.
[12] Mr Wellman, you were responsible for 10.9 kilograms of the total Class A drugs imported by the syndicate (being 9.4 kilograms of methamphetamine and
1.5 kilograms of cocaine in three packages). Over $144,000 cash was found in the hot water cupboard at your address.
[13] Ms Romero Lopez, you had a significant role in the criminal syndicate. You were frequently in contact with your ex-husband Eddy about transferring funds overseas from the syndicate. You were responsible for 1.5 kilograms of the total Class A drugs dealt with by the syndicate contained in one package. As I have just mentioned, over $144,000 cash was found in the hot water cupboard of the address you shared with Mr Wellman.
Supply of methamphetamine and conspiring to possess for supply
[14] The supply of methamphetamine and conspiring to possess for supply charges involved you, Mr Wellman. You exchanged messages with a co-defendant to arrange providing samples of methamphetamine to an associate. You also distributed 336 grams of methamphetamine to another associate. That associate pre-paid you
$110,000 in cash and would then meet with you at different times to collect methamphetamine.
Money laundering transactions
[15] In relation to the money laundering charges, on 21 September 2021, you, Mr Wellman and Ms Romero Lopez, paid $25,500 in cash for a Nissan X-Trail vehicle. On 22 April 2022, you Mr Wellman also paid $48,000 in cash for a caravan.
Sentencing
[16] As I explained at the sentence indication hearings, the first stage of the sentencing process is to set a starting point for the offending, taking into account the aggravating and mitigating factors of the offending, and comparing the offending to other similar cases. Consistent with the approach advanced by counsel at the sentence indication hearing, and taken in other cases, I first assessed an appropriate starting point for the importation charges and then I considered whether an uplift for the remaining charges was appropriate. I will summarise my reasons for reaching your respective starting points from your sentence indications when I turn to sentencing each of you.
[17] After setting the starting point, the second step in the sentencing process is that I must consider any relevant circumstances personal to each of you which may be of aggravating or mitigating effect, to arrive at an appropriate sentence.
[18] At the sentence indication hearing, I indicated that a 25 per cent discount for any guilty pleas would be appropriate for each of you, and that any other mitigating factors that may be able to be established would appropriately be dealt with at sentencing when the usual reports and any other material would be available. I also indicated that I would consider the minimum period of imprisonment, or MPI, where required, at sentencing.
[19] Throughout the sentencing process, I must be guided by the purposes and principles of the Sentencing Act 2002. This includes the purposes of holding you both accountable, denouncing your conduct, deterring you and others who might offend like you, protecting the public and providing for your rehabilitation. I must consider the gravity of the offending and the degree of your culpability, and the seriousness of the type of offending. I must impose the least restrictive sentence that is appropriate in the circumstances.
[20]I turn now to the individual reasons for sentence.
[21]I begin with Mr Wellman.
Mr Wellman
Starting point
[22] Mr Wellman, I indicated a starting point for all of your offending as 17 years’ imprisonment. I arrived at this starting point having taken your importation offending as the lead charge and applying a starting point of 15 and a half years’ imprisonment, then uplifting that by 18 months to account for your supply and conspiracy to supply methamphetamine charges and the money laundering charge.
[23] I reached this starting point after considering counsel’s submissions and the case law referred to.8 Your offending placed you in band five in Zhang, which attracted a starting point range of 10 years to life imprisonment.9 I considered that you had a leading role in the importation, although I accepted that you did not have the level of control that placed you at the top of the leadership category.
[24] I will now consider whether your personal circumstances require an adjustment to this starting point.
Discounts
[25]Your counsel, Ms Parkin, submits that discounts are appropriate for:
(a)your addiction to methamphetamine at the time of the offending;
(b)your good character;
(c)your remorse; and
(d)time spent on electronically monitored bail (or EM bail).
8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; Pratap v R [2021] NZCA 308; Fangupo v R [2020] NZCA 484; R v McMillan [2021] NZHC 2118; McMillan v R [2022] NZCA 128; Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509; Cavallo v R [2022] NZCA 276, (2022) 30 CRNZ 726; R v Gillett [2024] NZHC 1221; R v Lidder [2020] NZHC 1738; Doan v R [2021] NZCA 532.
9 Zhang v R, above n 8, at [125].
Addiction
[26] In relation to addiction, I have the benefit of the Provision of Advice to Courts report, also known as a PAC report, and an Alcohol and Other Drug (AOD) Assessment. These reports state that you began using methamphetamine to deal with pain that you suffered as a result of a serious car accident that occurred in 2018, also involving your then wife, Ms Romero Lopez. Your inability to work at the same level you previously had due to your injuries contributed to you turning to methamphetamine to deal with the pain while at work. You realised that your use and the cost were increasing dramatically. You were receiving less income from work and using up your savings. You say that you were offered the chance to obtain methamphetamine at a reduced cost if you found other people to sell it to.
[27] You reflected to the report writer that you had been naïve about the scale of the drug operation. You said that you were a heavy user of methamphetamine at the height of your offending, but you are drug free now. The PAC report assesses you as having a low to moderate risk of reoffending. The AOD Assessment states that you appeared motivated to abstain permanently from methamphetamine, with a clear understanding of how your use led to your involvement in criminal activities. The AOD Assessment report writer considers that the risk-taking aspect of your personality, desire to help a “friend” and naivete all contributed to your poor choices and says further that they consider that the consequences of methamphetamine use have been so devastating for you that the risk of relapse or reoffending is low in the context of full employment and stability.
[28] Ms Parkin submits that in these circumstances, your culpability for the offending is reduced due to your addiction and thus a significant discount is warranted. She says the references provided to the Court from your employer, neighbour and friends, which portray you as a highly regarded and hardworking member of the community, support the submission that the out of character nature of your offending was likely due in part to addiction. Ms Parkin says that you have acknowledged your offending and not sought to minimise it.
[29] You have been able to work while you have been on EM bail, and I note the positive reference from your employer who says he would not hesitate to re-employ you as soon as possible.
[30] Ms Buckman for the Crown submits that the objective evidence from the investigation does not illustrate that you had an addiction. She says further that even if the Court accepts that you have some addiction it is insufficient to establish a causative contribution given the scale and complexity of the offending. Ms Buckman says rather the offending was purely for financial gain and any role your addiction played was minimal and displaced by the serious and orchestrated nature of your offending. Thus, the Crown’s position is that no discount is warranted or if there is to be one it should be small.
[31] I accept that your addiction to methamphetamine following the car accident helps to explain your involvement in drug dealing. I am therefore satisfied that your addiction forms a causative contribution to your offending.
[32] But you have accepted that you made wrong choices in getting involved with the syndicate. You told the PAC report writer that you were trying to think of a way out of the syndicate, just before you were arrested. You have acknowledged that you were trying to recover financially. And you say you have been able to wean yourself off methamphetamine since your arrest and it appears you have been performing very well at your job while on EM bail. These matters suggest to me that your addiction is not the only cause of your offending, rather, as I said in your sentencing indication, you had an expectation of substantial financial gain from what was plainly a commercial operation, and this is reinforced by the large sum of cash found at your home.
[33] Having considered all these factors, I am prepared to give you a 15 per cent discount for your addiction.
[34]I turn to consider your remorse and then your good character.
Remorse
[35] Ms Parkin submits that your remorse is evident from what you told the report writer and some discount is due for this. Ms Parkin says you cannot really understand how you allowed yourself to get so involved in the offending and that you do comprehend the enormous harm caused in society from methamphetamine. Ms Buckman says that while you might regret your offending there is no material that justifies a credit for remorse.
[36]I conclude that no separate discount is justified for remorse.
Previous good character
[37] As to your good character, Ms Parkin submits that your previous convictions do not preclude you from receiving credit for good character, albeit very modest. With the exception of one driving-related offence in 2002, all of your previous convictions are from around 30 years or more ago.
[38] The Crown says that although your previous convictions do not involve drug offending of the present kind, those previous convictions, together with the ongoing nature of your offending, precludes any good character credit. Ms Buckman emphasises that this was not spontaneous, one-off offending.
[39] The courts have contemplated credit for good character for the absence of recent convictions.10 Regard has been had to the length of the period during which good character was exhibited and whether the good character is simply an absence of convictions or also includes positive contributions to society.11
[40] For you Mr Wellman, I must weigh the circumstances of your offending over a considerable period against the long period where good character has been exhibited. In this regard the letters of reference, as I have already discussed, assist.
[41]I consider that a five per cent discount for good character is appropriate.
10 B v R [2019] NZCA 18 at [73].
11 At [72].
Time spent on restrictive EM bail
[42] Time spent on EM bail is a factor which must be considered pursuant to s 9(2)(h) of the Sentencing Act. Relevant to the assessment is the period of time spent, the relative restrictiveness of conditions, your compliance and any other relevant matter.12 Discounts for time spent on EM bail commonly range between 30 and 50 per cent of the time spent on EM bail, and discounts up to 50 per cent are not uncommon.13
[43] Ms Parkin says that you spent two years and two months on EM bail and she is aware of one minor breach and a recent alleged breach. After reviewing these breaches, I do not consider that they should restrict your ability to get credit for the time you spent on EM bail.
[44] It appears that your EM bail conditions remained the same but that for about a year you were able to undertake employment. This means that a lengthy period of the time you spent on EM bail was spent on less restrictive conditions but I accept nevertheless that bail conditions as a whole still represent a considerable curb on your liberty.
[45]The Crown accepts that some credit is warranted but not a full 50 per cent.
[46] I consider that a discount of 10 months is appropriate for the time you have spent on EM bail.
Guilty plea
[47] As already mentioned, Mr Wellman, you will also receive a 25 per cent discount for your guilty plea.
Overall sentence
[48] Accordingly, from a starting point of 17 years, I apply a combined discount of 45 per cent, deduct 10 months for time spent on EM bail, and arrive at a sentence of eight years and six months’ imprisonment.
12 Sentencing Act 2002, s 9(3A).
13 Shramka v R [2022] NZCA 299 at [61]–[62], citing Paora v R [2021] NZCA 559 at [53].
Minimum period of imprisonment
[49] Where an offender received a determinate sentence of more than two years, the Court may order that the offender serve a minimum period of imprisonment (or MPI), which is a minimum period that is longer than one-third of the sentence but must not exceed two-thirds of the full term or ten years.14
[50] Ms Buckman submits that your leading role and the significant quantity of Class A drugs involved in your offending illustrates a need to hold you accountable for the likely harm upon the community, to denounce your conduct and deter others from offending in the same manner. The Crown submits that the default non-parole period is insufficient to satisfy these purposes and an MPI is required for you.
Ms Buckman says that a 40 per cent MPI is appropriate in the circumstances.15
[51] Although Ms Parkin accepts that an MPI may be required, given the nature and extent of the offending, she emphasises that there must be a fact specific assessment and that your situation is quite different from the case of McMillan in that the offending is less sophisticated.16 Ms Parkin says that 40 per cent would be at the highest level.
[52] I have weighed the need for deterrence of such serious drug offending as yours (given its likely severe social consequences) with your counsel’s submission. I consider that there was a degree of sophistication and complexity in your offending and that the need to denounce your conduct and to deter others from offending in the same way does require an MPI.
[53] I conclude that a 40 per cent MPI is necessary in your circumstances and is consistent with the Courts’ approach in comparable cases.17
Ms Romero Lopez
[54]I now turn to you, Ms Romero Lopez.
14 Parole Act 2002, s 84; and Sentencing Act 2002, s 86.
15 Fungapo v R, above n 8, at [64]; and Doan v R, above n 8.
16 R v McMillan, above n 8.
17 Fungapo v R, above n 8.
[55] Your offending placed you in band four in Zhang, which attracted a starting point range of eight to 16 years’ imprisonment.18 After considering counsel’s submissions and the case law referred to,19 I considered that you had a significant role, but accepted that you did not exercise a managerial function nor had any significant autonomy in the importation.
[56] I indicated a starting point for all of your offending as nine years’ imprisonment. I arrived at this starting point having taken your importation offending as the lead charge and applying an eight and a half years’ imprisonment starting point, then uplifting that by six months to account for the money laundering charge.
[57] I will now consider whether your personal circumstances require an adjustment to this starting point.
Personal background
[58] I have the benefit of a PAC report in relation to you. The report writer has described your extremely difficult personal history while living in South America, which I do not need to particularise here other than to say your early life was unstable and abusive, and that you were also caught up in events with a gang related drug cartel without apparent fault on your part. As mentioned earlier, you were married to Eddy for some of this time. In 2011, you were able to move to New Zealand as a refugee. You met Mr Wellman and married. As also already discussed you and Mr Wellman were involved in a serious car crash. This left you with serious injuries including to your spine that continue to cause you significant pain and prevent you from working and you are now in receipt of the benefit from Work and Income New Zealand.
[59] You said to the report writer that you made money transactions on behalf of your son “as [you] try to do anything to make [your] son happy”. You said you were unaware of the cash found at the home you shared with Mr Wellman. You also said that you looked after the house and he looked after the money, noting that you “didn’t
18 Zhang v R, above n 8, at [125].
19 R v Hokai [2023] NZHC 2113; Cavallo v R, above n 8; R v Huang [2022] NZHC 3323; R v Ilton [2022] NZHC 3400; Faiyum v R [2020] NZCA 523; R v Li [2023] NZHC 891; Singh v R [2020] NZCA 211; R v RG [2022] NZHC 3207; R v Khan [2018] NZHC 3065; R v Parao [2016] NZHC 1105.
question where the money came from, women from my culture and situation don’t do that”.
[60] You confirmed to the report writer that you have never used illegal drugs. The report writer records that you acknowledge some issues with your mental health. This is supported by medical records provided by your counsel, and you say you continue to be on pain medication because of your injuries. I note that the records provided to the Court are incomplete but I have been able to ascertain the general position from what is provided.
[61] Your counsel, Mr Campbell, has explained that some misunderstandings occurred during the process of obtaining your PAC report given the combination of having an interpreter and discussing traumatic aspects of your past. A further brief PAC report was provided to the Court today.
[62] Mr Campbell says that you do take responsibility for the two charges to which you have pleaded guilty but given your description of yourself as naive there is perhaps not full acceptance of responsibility for your offending and the harms such offending causes to the community.
[63] Mr Campbell also submits that you are a vulnerable person with a background that presents with multiple criminogenic features including poverty, trauma, a chaotic childhood, poor mental health and poor educational outcomes. He says that this background means you are much more likely to become involved when presented with an opportunity to be entangled in the importation of cocaine. He says this is reinforced by your cultural background and your perceptions of yourself as a loyal wife. He reiterates that he is instructed by you that you did not know about the cash held at your address.
[64] Ms Buckman accepts that you have had a difficult past but says it is hard to find a causative connection to your offending.
[65] Ms Romero Lopez, I accept that you are a vulnerable person, as a result of your very difficult background, and that this has had ongoing impact on your mental health.
To an extent your cultural background also helps explain your involvement in the drug syndicate in the sense that you assisted your husband and your son. I am therefore satisfied that your personal circumstances form a causative contribution to your offending. However, the extent of your involvement in the offending means, as I said at your sentence indication, and as Ms Buckman referred to, that I do not accept that you were just “caught up” in the wider group’s offending.
[66] Having considered all of these factors, I am prepared to give you a 15 per cent discount for your personal background.
Previous good character
[67] You have no previous convictions and Mr Campbell seeks a reduction of up to 10 per cent. The Crown accepts that some credit is appropriate, suggesting five to 10 per cent.
[68] I am satisfied that a discount of 10 per cent is appropriate for your previous good character.
Hardship in prison
[69] The Crown accepts that English is your second language and that you may have some greater difficulty while in prison, but notes that your three sons live in New Zealand, and that you appear to have the support of a friend who has also been your landlord.
[70] Mr Campbell seeks a discount of up to 10 per cent for the difficulties he says you will experience in prison. He says you will be very isolated due to your limited English and that you have little or no family in the community who are able to support you. He says that your current flatmate may provide some support but he speaks only English which will limit it.
[71] Mr Campbell relies on the recognition given by the Courts to foreign nationals in prison where it has been accepted that in such circumstances a prison sentence is harder than usual to bear.20
[72]I consider that a discount of five per cent is justified in the circumstances.
Remorse
[73] Mr Campbell also suggested that the new PAC report demonstrates your remorse. But I agree with Ms Buckman that given that you do not appear to fully accept the scope of your offending no discrete discount for remorse is justified.
Guilty plea
[74] As already mentioned, Ms Romero Lopez, you will also receive a 25 per cent discount for your guilty plea.
Overall sentence
[75] Accordingly, from a starting point of nine years, I apply a combined discount of 55 per cent and arrive at a sentence of four years’ imprisonment.
Orders sought by the Crown
[76] Before I impose a sentence on each of you, I make the orders sought by the Crown pursuant to s 32 of the Misuse of Drugs Act 1975 for the:
(a)destruction of the drugs seized during the investigation; and
(b)forfeiture of the cash referred to in the summaries of fact relating to each of you Mr Wellman, and you Ms Romero Lopez.
20 Cavallo v R, above n 8, at [80]–[82]; and Harrieder v R [2020] NZHC 2548 at [35].
Imposition of sentence
[77] I will now pass sentence on each of you for your offending. Mr Wellman and Ms Romero Lopez, please stand.
[78]Mr Wellman, I sentence you as follows:
(a)for the importation of methamphetamine between 28 November 2021 and 4 March 2022 (representative), I sentence you to eight years and six months’ imprisonment with an MPI of 40 per cent.
The remaining sentences I am about to pass are to be served concurrently with that sentence.
(b)for the importation of cocaine on or about 13 February 2022, I sentence you to five years’ imprisonment;
(c)for the supply of methamphetamine between 22 May 2022 and 7 June 2022 (representative), I sentence you to six years’ imprisonment;
(d)for conspiring to possess methamphetamine for supply, I sentence you to four years’ imprisonment; and
(e)for engaging in a money laundering transaction between 21 September 2021 and 22 April 2022 (representative), I sentence you to one year imprisonment.
[79]Ms Romero Lopez, I sentence you as follows:
(a)for the importation of cocaine on or about 13 February 2022, I sentence you to four years’ imprisonment.
(b)for engaging in a money laundering transaction, I sentence you to one year imprisonment, to be served concurrently.
[80]You may both stand down.
McQueen J
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