Opetaia v Police

[2025] NZHC 1065

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-000021

[2025] NZHC 1065

BETWEEN

DONIELLE THERESA FATIMA OPETAIA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	6 May 2025
Counsel:	N N Mani for Appellant J M Kim for Respondent
Judgment:	6 May 2025

JUDGMENT OF BREWER J

Solicitors:

Public Defence Service (Auckland) for Appellant Kayes Fletcher Walker (Manukau) for Respondent

OPETAIA v POLICE [2025] NZHC 1065 [6 May 2025]

Introduction

[1]    Ms Opetaia appeals the refusal of Judge P A H Hobbs to discharge her without conviction on admitted charges of wilful damage and assault with intent to injure.1

[2]I take the background facts from the Judge’s decision:

[3]    So, inevitably, I turn first to the offending itself. On 12 November of last year, you were attending at a party at an address in Clover Park. A fight broke out outside the address, and the police attended. The summary records that you became agitated due to the police presence. You verbally abused the police as they were arresting persons who were present and engaged in the fight. You walked up to a police patrol car and punched the windscreen, smashing the glass. The victim, Constable Hannah Udall, advised you that you were under arrest for wilful damage. You were asked to turn around. You punched the Constable in the face. She was treated at Middlemore Hospital and suffered a concussion.

The decision

[3]        The Judge held that the gravity of the offending itself was serious:

[4]        The aggravating features, or the features of the offending that make it more serious are obviously the attack to the constable’s head, namely the punch which resulted in a concussion and treatment in hospital. It is a significant aggravating feature that the victim of your offending was a police officer acting in the execution of her duty. Your offending was accompanied, as I have said, by the damage to the patrol car.

[4]        The Judge considered the mitigating factors personal to Ms Opetaia:

[5]        I acknowledge what is set out in Mr Harris’ submissions, and your affidavit about the circumstances that you were confronted with at that time. You were, apparently, under immense pressure, dealing with an autistic child and feeling under considerable strain. It is suggested that you felt lost and unable to ask for help. It is suggested that this offending was a culmination of that stress, and effectively out of character for you.

…

[7] There are, however, a number of things that you have done, or are relevant, that make the offending less serious. You have no previous convictions of any kind, and you are in your early 30’s. You have pleaded guilty, and accepted responsibility for it. It is apparent that you are remorseful for the offending – I have read the letter that you have written to the police officer. You offered to go to restorative justice, but for understandable reasons and for reasons that are not of your making, that was not possible. You have

1      Police v Opetaia [2024] NZDC 32243.

undertaken voluntary community work at Everybody Eats, and you have also undertaken counselling. I have letters confirming both the community work and the counselling that you have received at Tupu Pacific Alcohol and Other Drug Gambling Service, here in Auckland. You have also offered to pay reparation. All of those things obviously go to reduce the seriousness of your offending.

[5]                 In the Judge’s view, this reduced the gravity of the offending from serious to moderately serious offending.

[6]                 The Judge then turned to the consequences to Ms Opetaia of the entry of convictions:

[10] You are more concerned about the specific consequences to you in finding employment. You have, since the age of 18, been continuously employed in customer service roles, and I have read the material before me that lists those roles. It is apparent from the material that you left your last job and since then, have been unable to find a new job. You have provided, as part of the material before me, emails from potential employers who have declined your applications to be employed by them. You have been, I am told, rejected by nine employers to date. There is no express reference in any of those rejections to the matters currently before me, but I am asked to draw the inference that the reason you have not been employed by these potential employers is indeed because of these proceedings – I am told that you have been required to disclose the fact that you are facing court proceedings. I am therefore asked to draw the inference that with your experience and employment history, the reason you have been unable to obtain employment is because of this charge. That may be so, it is perhaps a reasonable inference to draw, I do not know.

[7]                 In the Judge’s view, the consequences identified by Ms Opetaia are part of the inevitable general consequences that flow from moderately serious offending of this type. He concluded that the difficulties Ms Opetaia might experience as a result of convictions are not out of all proportion to the seriousness of the offending.

[8]The Judge sentenced Ms Opetaia to nine months’ supervision.

The appeal

[9]                 The operative ground of appeal is that the Judge erred in his assessment of the consequences to Ms Opetaia’s employment prospects of the entry of convictions. In short, the submission is that the Judge should have concluded that convictions would materially prevent Ms Opetaia from securing employment and that this is a consequence out of all proportion to the gravity of her offending.

Discussion

[10]I see no error on the part of the Judge and no miscarriage of justice.

[11]              The offending is serious. The context is using violence against a police officer doing her duty on behalf of all New Zealanders.

[12]              Ms Opetaia’s personal characteristics mitigated the gravity of the offending and were properly considered by the Judge. I agree that, overall, the gravity of the offending could be described as moderate (although, I would place it towards the upper end of moderate).

[13]              The Judge is correct that a general consequence of convictions such as these will likely be difficulty in obtaining employment. At least, employment involving the exercise of responsibility.

[14]              Mr Mani submits that the situation before the Judge was about the potential for employment difficulties. Now, Mr Mani submits, the fact that convictions have been entered make Ms Opetaia’s position worse. The Judge should have taken that into account.

[15]              I am afraid that I disagree. The key point is that for the discretion to discharge without conviction to be present, the consequence of a conviction has to be out of all proportion to the seriousness of the  offending.  The consequences  identified  for  Ms Opetaia come nowhere near to meeting this test.

[16]              I add that the sentence of nine months’ supervision was extraordinarily merciful when considered against the fact that Ms Opetaia assaulted a police officer with intent to injure her, by punching her in the face with such violence that the constable had to be treated in hospital and suffered a concussion.

Decision

[17]The appeals against conviction and sentence are dismissed.

Brewer J