R v Opetaia - [2021] NZHC 1503

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-090-6165

[2021] NZHC 1503

THE QUEEN

v

EARL WILLIAM OPETAIA

Hearing: 23 June 2021

Appearances:

H Steele and B Archibald for the Crown P Hamlin for the Defendant

Sentencing:

23 June 2021

SENTENCE OF GAULT J

Solicitors / Counsel:
Mr H Steele and Ms B Archibald, Meredith Connell, Office of the Crown Solicitor, Auckland Mr P Hamlin, Barrister, Auckland
Mrs A S Bloem and Ms A Tupuola, Bloem & Associates, Auckland

R v OPETAIA [2021] NZHC 1503 [23 June 2021]

Mr Opetaia, you appear for sentence after being found guilty by a jury of:

(a)seven charges of sexual violation by unlawful sexual connection;1

(b)five charges of indecently assaulting a boy between 12 and 16;2

(c)one charge of sexual conduct with a young person under 16;3

(d)two charges of indecent assault on a man or boy over the age of 16;4

(e)three charges of supplying cannabis plant to a person under 18;5 and

(f)three charges of threatening to kill.6

The offending

[2] From 2001 to 2006, you were an approved caregiver for Child Youth and Family Services (CYFS) and ran a boys’ home from your boxing gym in Kelston. During this period, you offended against five teenage boys in your care between February 2003 and April 2006.

[3] The facts of your offending are that on two occasions in 2003, you threatened to kill [A].7 The threats included that you would kill him or hang him off the balcony by his neck, and you would take him to the gang pad where he would be raped and

1      Crimes Act 1961, s 128(1)(b) and 128B, maximum penalty 20 years’ imprisonment. CRNs 18090008624, 18090008622, 18090008614, 18090008615, 18090008617, 200045035550 and 200045035551.
2      Crimes Act 1961, s 140A(1)(a), maximum penalty seven years’ imprisonment. CRNs 18090008613, 20004503548, 20004503549, 200045035553 and 18090008623.
3      Crimes Act 1961, s 134(3), maximum penalty seven years’ imprisonment. CRN 200044035554.
4      Crimes Act 1961, s 141(1)(a), maximum penalty seven years’ imprisonment. CRNs 18090008602 and 18090008603.
5      Misuse of Drugs Act 1975, ss 6(1)(d) and (2)(c), maximum penalty eight years’ imprisonment (one charge representative). CRNs 18090008612, 18090008621 and 18090008625.
6      Crimes Act 1961, s 306(1)(a), maximum penalty seven years’ imprisonment. CRNs 18090008601, 18090008604 and 18090008616.
7      The Crown submits it is implicit in the findings of guilt in relation to the charges relating to [A] that he witnessed you offending against one or two other boys. I do not consider that specific offending against other boys was proved beyond reasonable doubt.

hung out to dry. Also, on two occasions, you indecently assaulted [A] by hitting/flicking his genitals whilst he was in the shower.

[4] In 2004, on at least one occasion, you provided [B] with cannabis. On one occasion, you masturbated [B], had him masturbate your penis, penetrated his anus with your…

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 R v Opetaia

Details

AGLC: R v Opetaia [2021] NZHC 1503
Case: [2021] NZHC 1503
Decision Date: 23 June 2021

CaseChat Overview and Summary

Earl William Opetaia, an approved caregiver for Child Youth and Family Services, was convicted by a jury of various serious charges including multiple instances of sexual violation, indecent assault, supplying cannabis to minors, and threatening to kill. The court identified several aggravating features in Opetaia's offending, including the vulnerability of the victims, breach of trust, the scale of the offending, degree of violation, and the harm caused. The court set a starting point of 16 years' imprisonment, acknowledging the significant trauma Opetaia experienced in his childhood, which was accepted as a mitigating factor, resulting in a 15% discount. The totality principle led to a reduction of four years, bringing the adjusted starting point to 12 years' imprisonment. Considering the purposes of sentencing, including accountability, denunciation, and rehabilitation, the court imposed a minimum period of imprisonment of five years and one month. Opetaia was sentenced to 10 years and two months' imprisonment for the sexual violation charges, four years for supplying cannabis, and three years and four months for the other charges, all to be served concurrently but cumulatively with a pre-existing sentence.

Gault J ultimately sentenced Opetaia to a total of 10 years and two months' imprisonment for the sexual violation charges, with a minimum period of imprisonment of five years and one month. The other sentences were to be served concurrently but cumulatively with the existing sentence.

Orders