NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.html	
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]

[1]	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 finger and forced him to kiss your penis. On another occasion, you forced
[B] to suck your penis, touched his penis and penetrated his anus with your finger. On a further occasion, you penetrated [B’s] anus with your penis. You threatened to kill [B’s] mother and sister.

[5]	Also in 2004, on one occasion, you made [C] masturbate your penis and then perform oral sex on you. You also provided [C] with cannabis on that same occasion.

[6]	In 2005, on one occasion, you made [D] masturbate your penis.

[7]	In 2006, on one occasion, you played with [E]’s penis before penetrating his anus with your penis. You provided cannabis to [E] after this offending.

Approach to sentencing

[8]	In terms of my approach to sentencing,8 I will first set a starting point which reflects the nature and circumstances of your offending. I will then consider your personal circumstances, to assess whether an adjustment to the starting point is required – up or down.

[9]	Throughout this process, I have regard to the purposes and principles of sentencing as set out in the Sentencing Act 2002.9 In serious sexual offending such as this, the relevant purposes of sentencing include: to hold the offender accountable for harm done to the victims; promote a sense of responsibility for and acknowledgement of that harm; provide for the interests of victims; denounce the conduct; deter the offender or others from committing the same or a similar offence; protect the community from the offender; and assist in the offender’s rehabilitation and reintegration.

8	Moses v R [2020] NZCA 296.
9	Sentencing Act 2002, ss 7-8.

[10]	In terms of the principles of sentencing, I take into account the gravity of the offending, including the degree of culpability, and the seriousness of the type of offence. I must also impose the least restrictive outcome that is appropriate in the circumstances.

[11]	Mr Steele, for the Crown, submits the presumption of imprisonment for the offence of sexual violation applies10 and this principle should be reflected in the length rather than the type of sentence imposed.

[12]	Although psychological reports were received, the Crown does not seek a sentence of preventive detention as you have not yet had a chance to engage in rehabilitation. Mr Steele acknowledges that preventive detention is not supported by the psychological reports. I agree. A determinate sentence is preferable.

Starting point

[13]	The lead or most serious offending is sexual violation. The Crown submits a global starting point for all your offending is appropriate, on the basis that your threats to kill, provision of cannabis in order to facilitate your sexual offending and use of physical violence against a number of your victims, are best addressed as aggravating features of the sexual offending. Your counsel, Mr Hamlin, agrees with this approach. I consider it is the preferable approach in this case rather than identifying one victim subject to the most serious offending and setting separate uplifts for the other victims or for the threats and drug offending.

[14]	The Court of Appeal’s guideline judgment for sexual violation sets four bands where the lead offence is rape, penile penetration of the mouth or anus, or violation involving objects.11 The different bands reflect the seriousness of the offending based on assessment of various aggravating features.

[15]	The Crown submits, and your counsel accepts, that the following aggravating features were present in your offending:

10	Crimes Act 1961, s 128B(2).
11	R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

(a)	Vulnerability of the complainants due to their age – that is, four of your five victims were under 16 – relative to your age and the fact they were in CYFS care.12 You knew the victims were vulnerable because of their backgrounds and abuse they had already suffered. Vulnerability is present to a high degree.

(b)	Secondly, a breach of trust.13 This factor overlaps with vulnerability somewhat. You represented yourself to CYFS as a responsible caregiver, but breached the trust put in you and abused your position to offend. This factor is present to a moderate degree.

(c)	Scale of offending.14 Your offending spans from 2003 to 2006, and involved five victims with a spread of offences.15 As your counsel submitted, however, some victims were in your care for a relatively short period and experienced a single occurrence of abuse. Mr Steele did also acknowledge that you had a positive side and did some good with respect to other boys in your care. Mr Hamlin describes you as an enigma. Overall therefore, I consider the aggravating feature of the scale of offending is present to a moderate to high degree.

(d)	Degree of violation.16 The degree of violation involved in the offending was serious. Your offending involved penetration of [B’s] anus and mouth, penetration of [C]’s mouth and penetration of [E]’s anus. I acknowledge that this degree of violation is inherent in these rape/penile penetration bands.

(e)	Next, supply of cannabis and elements of control using gifts in relation to some victims is a moderate aggravating feature.

12	Sentencing Act 2002, s 9(1)(g); and R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [42]-[43].
13	Section 9(1)(f); R v AM at [50].
14	R v AM at [47]-[49].
15 The Crown submits that the scale of offending is aggravated due to the evidence of witnessing sex acts with other boys. As indicated, I do not consider that specific offending against other boys was proved beyond reasonable doubt.
16 R v AM at [52].

[16]	The Crown says the following aggravating features were also present in your offending:

(a)	Planning and premeditation.17 The Crown submits this factor is present to a high degree, as you often took steps to get your victims alone, groomed your victims by giving them gifts such as fizzy drinks, takeaways, alcohol and cannabis, and controlled them using threats, force and use of authority. Your counsel submits that premeditation and planning are not present to a high degree, that taking steps to get victims alone is a common feature of this type of offending, that your convictions are reflective of opportunistic offending, and that you did not undertake significant planning or active steps to isolate the complainants. I have already referred to the use of gifts. I consider your offending involved an element of planning and premeditation, but I accept your counsel’s submission this was not present to a high degree.

(b)	Violence and detention.18 The Crown submits your offending involved physical violence beyond that inherent in your sexual offending and the threats, and that violence, intimidation and threats of violence were key features of your offending. The Crown also submits there was an element of detention in some of your offending, as you prevented some victims from leaving for a period or prevented others from entering the room. However, the Crown acknowledges that a level of detention is inherent in sexual offending because the victim is not free to leave. Your counsel notes that you did not face any charges of physical abuse, and therefore any evidence regarding the use of physical violence was not essential to a finding of guilt. In addition, Mr Hamlin submits that the element of detention in your offending does not extend beyond the degree intrinsic to sexual offending. As he submits, your intimidating threats are an aggravating feature but I accept that physical violence

17	Sentencing Act 2002, s 9(1)(i); and R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [37].
18	Section 9(1)(a)-(b); and R v AM at [38]-[41].

was not the subject of separate charges and the element of detention was not necessarily related to the offending.

(c)	Finally, harm to the complainants.19 Although inherent in this type of offending, I accept the victims were prevented from having a safe and secure home in a time of particular need. This is an aggravating feature. The harm caused to [B] is clear from his victim impact statement. [B] spoke of how he was a kid, you took advantage of him when he was in CYFS care with no one to turn to, he was ruined by what you did, your offending affected his subsequent life choices, and he was diagnosed with PTSD. As he said, no child deserves to be treated the way he was treated by you. I thank [B] for his statement. The impact on other victims was evident at trial.

[17]	Counsel agree, and I also agree, there are no mitigating features relating to your offending.

[18]	As both counsel agree, I consider the number and extent of the aggravating features of your offending, as I have described, places it in band four of the guideline judgment. As with band three, cases in band four involve two or more aggravating features present to a high degree, or more than three aggravating features present to a moderate degree. However, band four likely involves multiple offending such as rape over considerable periods of time rather than single instance offences.20 Such offending involving children and teenagers will attract starting points at the higher end of the band. The starting point range for band four is 16 to 20 years’ imprisonment.

[19]	The Crown submits that the aggravating features present in your offending are so significant and present to such a degree that your offending sits squarely in band four. Accordingly, the Crown submits that an appropriate starting point is 18 years’ imprisonment.

19	Section 9(1)(d); R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [44].
20	R v AM at [108].

[20]	Both counsel refer to another case where the offending involved seven male victims, aged eight to 22, over a 13 year period.21 The charges involved manual and oral stimulation and anal intercourse. The offender came into contact with his victims through his involvement with various groups and activities in which the boys stayed at his home and he also took them camping. It was a combination of the period of the offending and the number of victims which made that offending serious.22 There was also a breach of trust. In the guideline judgment that case was considered to be an example of a case at the lower end of band four.

[21]	For that reason, Mr Hamlin submits that the least restrictive outcome would be to impose a starting point of 16 years’ imprisonment, at the lower end of band four.

[22]	Having considered the guideline judgment, the existence and extent of the aggravating features and the other case referred to, I consider that the appropriate starting point for all of your offending is 16 years’ imprisonment.

Effect of current sentence/totality

[23]	You are currently serving a sentence of imprisonment in relation to other offending. You were sentenced to five years’ imprisonment on 13 July 2018 but have been in custody since arraignment on 23 May 2018.23

[24]	Both counsel agree that your sentence for the present offending should be served cumulatively on that earlier sentence but that some reduction of the starting point is required when considering the totality of the offending,24 and that a four year reduction is appropriate.

[25]	It is well established that the totality principle is not limited to sentencing on a single occasion for multiple offences.25 Here, the offending is of a similar type but not proximate in time. The other offending occurred much later. But since this earlier

21	R v Martin CA251/99, 12 October 1999, cited in R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [109].
22	R v AM at [110].
23	The sentence end date for that offending is 23 May 2023.
24	Sentencing Act 2002, s 85.
25	Skipper v R [2011] NZCA 250.

offending came to light in the investigation of that other offending and you were sentenced separately because you pleaded guilty to that offending, I agree it is appropriate for the sentence to be served cumulatively but with a substantial reduction of four years for totality.

[26]	Accordingly, the adjusted starting point for your offending is 12 years’ imprisonment.

Personal aggravating and mitigating factors

[27]	I now consider whether there are aggravating or mitigating features personal to you that justify an adjustment to the starting point.

[28]	The Crown does not seek an uplift for previous convictions. I consider that is correct. Equally, Mr Hamlin does not suggest there should be a discount for previous good character in the circumstances. That is also correct.

[29]	I consider now your background and upbringing. Based on a report carefully prepared by Ms Turner,26 Mr Hamlin submits that you suffered significant childhood trauma, and that this and drug addiction are causal to your offending and warrant a discount of 15 to 20 percent. The Crown acknowledges your personal circumstances, accepting the contents of the report generally, but submits that the causative link between your background and the offending is tenuous at best, and that a 5 to 10 per cent discount is appropriate. The Crown refers to varying discounts for matters raised in cultural reports for other cases of offending of a sexual nature.27

[30]	This morning Mr Steele acknowledged that your childhood trauma is extreme and accepts that there is a link, at least in relation to some aspects of your background.

[31]	I approach this issue in two stages. First, I consider the causal nexus between your background and the offending. To establish a nexus, there needs to be persuasive evidence of the trauma and addiction, or indeed other mitigating factor, as opposed to

26	Sentencing Act 2002, s 27.
27	R v Nicholls [2020] NZHC 824; R v Ashby [2019] NZHC 2156; R v Tamahau [2019] NZHC 2799;
R v Hart [2019] NZHC 3309; and Arona v R [2018] NZCA 427.

mere self-reporting.28 The second step involves balancing the sentencing purposes and principles.

[32]	I have reviewed Ms Turner’s report. It is detailed and helpful. It indicates you are of Ngāpuhi and Samoan descent (and I note from other reports you are also of Yugoslavian descent on your mother’s side). You were deprived of access to Māori culture growing up and do not speak te reo Māori. While you speak Samoan, your experience within your Samoan family was abusive and traumatic. So you are significantly disconnected from both of those cultures.

[33]	Your early life was difficult. Your parents separated when you were four years old and your mother retained custody of you and your siblings. Not long after, your mother became unable to care for you and sent you to what you believe was “state care” with friends. While there, you were physically and sexually assaulted and witnessed the killing of your baby sister. There is some corroboration for this trauma. After your sister’s death, you were uplifted and placed with your grandparents who were strict and also abusive. They regularly beat you. You were also sexually abused by an uncle. There is a degree of corroboration for this abuse. Your mother had moved to Australia. On one occasion, you saw her and ran away to be with her but she returned you to your grandparents and went back to Australia. You then often ran away. You also spent some time living with your father, who was a heavy drinker and physically abused you, and you were manipulated by your stepmother. You clearly suffered from family dysfunction and abandonment. You spent most of your time living on the streets, stealing what you needed to survive. You developed gang connections.

[34]	You moved back in with your father aged about 13, although he moved out when you were 14 and you stayed in his state house with your brother, and began working.

[35]	The report states that cannabis and alcohol came into your life at the age of nine or ten, progressing to more regular use once you started working and later also dabbling in heroin in your teenage years. You say you used drugs to mask your pain

28	Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [148].

and shame. You felt unworthy of love. You moved to Australia partly to get away from the drug influence, although you continued with cannabis. Some years later while working night shift, you began using amphetamines. This led to imprisonment, where you quit amphetamines and after only consumed alcohol and cannabis, and occasionally LSD. You returned to New Zealand in 1990.

[36]	In 2006, after the death of Liam Ashley, who was in your care at the time, you began using methamphetamine. You closed down the boxing gym but opened another in 2008. Your drug use increased. In 2013 you separated from your wife and by 2014 you were on anti-depressants, sleeping pills, alcohol, ecstasy, gamma hydroxybutyrate, methamphetamine and synthetic cannabis. Your gang involvement had also increased.

[37]	Your other offending I have mentioned occurred at this time. You told the report writer you hold deep shame and remorse for the 2014 offending and that you were “off your head” at the time. You say you know your actions caused deep damage to your victim and his family. You also suffered serious physical retribution.

[38]	You have six children, including two children with your wife. You continue to be very good friends with her. She and the children are a great support to you. You hope to reunite with her upon your release and live the rest of your life with your family. You say you have every intention of dealing with your drug addiction, and that you are willing to participate in any form of rehabilitation the Court deems suitable. You are now 59 years old.

[39]	Ms Turner considers that your early childhood and later adulthood trauma has a clear link with your early and prolific drug use, and that your trauma and addiction issues are linked to your offending.

[40]	I accept that there is a nexus between your childhood trauma, family dysfunction and your offending. There is a causal connection between your traumatic childhood, which involved sexual and physical abuse and deprivation, and your offending. While your abuse is self-reported, there is some corroboration. Ms Turner states that studies show that those who are sexually abused have an increased

likelihood of becoming sexual abusers themselves. Dr Jacques makes the same link. That does not excuse your offending, but it goes some way to explaining it. I also accept there is some causal connection between your cultural disconnectedness and the offending. Ms Turner considers your life may well have played out differently had you had the strength of your whakapapa and aiga behind you. But this connection is harder to see given the more positive aspects of your life before this offending occurred when you were in your forties.

[41]	I am less persuaded that there is a clear nexus between your drug and alcohol addiction issues and this offending – as opposed to your 2014 offending. You report that it was only after Liam Ashley’s death in 2006 and so after this offending that you began using methamphetamine. According to Dr Jacques’ report, you did not consider yourself ever to have had alcohol problems until 2013 following the breakdown of your marriage. You have no convictions for criminal offending between 1990 and the current offending beginning in 2003. I accept drug use was present as a background factor, triggered again after this offending.

[42]	I now balance the purposes and principles of sentencing.29 It is well established that deprivation may reduce an offender’s moral culpability for offending, impacting upon the application of several purposes and principles of sentencing, such as holding the offender accountable, denunciation, general and specific deterrence, community protection, and the need for rehabilitation.30

[43]	However, sentencing for some offences may be dominated by considerations such as denunciation, victim impact and community protection – reducing and perhaps eliminating any discount for culpability on cultural grounds.31 Excessive discounts in this context undermine the criminal law’s precepts of agency and choice.32 The Crown says those considerations apply here, given the gravity of your offending.

29	Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [38]-[39].
30	Poi v R [2020] NZCA 312 at [24]-[27].
31	Arona v R [2018] NZCA 427 at [61], citing Heta at [57].
32	Carr v R [2020] NZCA 357 at [66].

[44]	Almost everything turns on the facts of the particular case. I have concluded there is a nexus between your childhood trauma, family dysfunction, cultural disconnectedness and the offending. That nexus modestly reduces your moral culpability.

[45]	On the other hand, I acknowledge the importance of denouncing your serious offending and the need to hold you accountable for that. There is also the purpose of rehabilitation. You maintain your innocence in relation to the present offending – although you admitted the 2014 offending and are willing to participate in treatment for that as well as your drug addiction issues. Dr Jacques considered you are likely to respond well to treatment and that, while your denial of offending is concerning and may interfere with therapy, this may change over time.

[46]	Taking all these matters into account in the context of the serious offending in this case, I consider that the other sentencing purposes reduce, but do not eliminate, the need for a discount for personal circumstances. Your modestly reduced moral culpability and the importance of assisting your rehabilitation lead me to conclude that a discount of 15 per cent is appropriate. This brings your end sentence to a total of  10 years and two months’ imprisonment, to be served cumulatively on your existing sentence.

Minimum period of imprisonment

[47]	The Crown seeks a minimum period of imprisonment (MPI) of 50 per cent on the basis that serving the normal one-third of the sentence before parole eligibility would be insufficient to meet the purposes of holding you accountable for the harm done and denouncing your serious offending. The Crown also relies on the need to protect the community. Mr Hamlin submits an MPI is not required given that it is unlikely the Parole Board would consider you a suitable candidate for release without completing treatment for your offending and you are subject to the Child Sex Offender Register for the remainder of your life.33

33	Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 35(1)(a).

[48]	Given the cumulative sentence proposed, your parole eligibility will be based on a notional single sentence of 15 years and two months’ imprisonment.34 Accordingly, you would be eligible for parole after just over five years, that is, around two years from now. Whereas an MPI imposed now would run from the parole eligibility date in respect of the existing sentence of five years’ imprisonment.

[49]	MPIs must not be imposed as a matter of routine or in a mechanistic way.35 But the guideline judgment for this type of offending states that MPIs of at least     50 per cent are very routine in cases of multiple counts of sexual offending against children.36 Given the circumstances and aggravating features of this serious offending against five victims and involving multiple offences,37 the operation of the single notional sentence in this case and the general desirability for consistency,38 I consider that an MPI of 50 per cent is warranted for the purposes of holding you accountable and denunciation. I consider the Parole Board will be better placed to assess the need to protect the community having regard to progress with your acceptance of responsibility, treatment and rehabilitation, but in the context of this case, involving a cumulative sentence where the parole eligibility date has already passed, protection of the community for a longer period is also relevant.

Result

[50]	Mr Opetaia, please stand.

[51]	On the charges of sexual violation by unlawful sexual connection, I sentence you to 10 years and two months’ imprisonment.

[52]	On the charges of supplying cannabis plant to a person under 18, I sentence you to four years’ imprisonment.

34	Parole Act 2002, s 75.
35	Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [169].
36	At [156].
37 At [154]. See also Raharaha v R [2012] NZCA 24, a decision involving sexual offending against three teenage boys over a 7-year period. The appellant was employed as a caregiver/foster carer at the time of the offending.
38         Sentencing Act 2002, s 8(e).

[53]	On each of the other charges, I sentence you to three years and four months’ imprisonment.

[54]	These sentences are all to be served concurrently, but cumulatively on your sentence of five years’ imprisonment on 13 July 2018.

[55]	A minimum period of five years and one month’s imprisonment is imposed on the charges of sexual violation by unlawful sexual connection.39

[56]	Please stand down.

Gault J

39	I understand and intend that this MPI runs from the parole eligibility date in respect of the existing sentence of five years’ imprisonment.