R v Apperley - [2019] NZHC 1276

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 WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI 2017-085-2927

[2019] NZHC 1276

THE QUEEN

v

RICHARD GEORGE APPERLEY

Sentencing: 6 June 2019

Appearances:

P K Feltham for the Crown

V C Nisbet and S W O Campbell for Mr Apperley

Date:

6 June 2019

SENTENCING NOTES OF MALLON J

Introduction

[1] Mr Apperley, you can remain seated for now. There is a lot to go through when a sentence of preventive detention is sought so it will take a while. When I come to formally pass sentence on you I will ask you to stand and that will be at the end.

[2]You appear for sentencing on 14 charges to which you have pleaded guilty.

[3]These charges comprise:

R v APPERLEY [2019] NZHC 1276 [6 June 2019]

(a)six representative charges for sexual violation;1

(b)two charges for attempted sexual violation;2

(c)three charges for sexual violation as a party; 3

(d)one representative charge of assault with a weapon;4 and

(e)two representative charges for objectionable publications:

(i)one for knowingly making them;5 and

(ii)the other for knowingly possessing them.6

[4] You were made aware that the Crown was seeking a sentence of preventive detention.7 As is required when such a sentence is sought, the Court commissioned two health assessor reports, one from Dr Chaplow, a psychiatrist, and the other from Ms Brown, a psychologist, concerning your likelihood of committing further sexual and violent offences.8 Your counsel arranged on your behalf a report from a third health assessor, from Mr Riley, a psychologist. The sentencing was delayed until today to allow sufficient time for that report to be completed.9 The Court convened yesterday to allow counsel the opportunity to question the three health assessors.

Summary of the offending

[5] The sexual offending charges concern four female victims, who I will refer to as E, F, G and H.

1      Crimes Act 1961, s 128(1)(a)-(b); maximum sentence of 20 years’ imprisonment.
2      Section 129(1); maximum penalty of 10 years’ imprisonment.
3      Sections 128(1)(a)-(b) and 66(1); maximum penalty of 20 years’ imprisonment.
4      Section 202C(1)(a); maximum penalty of five years’ imprisonment.
5      Films, Videos and Publications Classifications Act 1993, ss 123(1) and 124(1); maximum penalty of 14 years’ imprisonment.
6      Sections 131(1) and 131A(1); maximum penalty of 10 years’ imprisonment or a $50,000 fine.
7      Sentencing Act 2002, ss 87(3) and 88(1)(a).
8      Section 88(1)(b).
9      Guilty pleas on the charges, except the breach of ESO were entered on 5 November 2018 shortly before the trial was scheduled to commence.

First victim: E (1994-1998)

[6] Your offending against E was the most prolonged and serious. The charges relating to her are representative charges of sexual violation by rape, and oral and anal connection; a representative charge of assault with a weapon; attempted rape and attempted unlawful connection; and sexual violation by rape, oral connection…

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 Apperley

Details

AGLC: R v Apperley [2019] NZHC 1276
Case: [2019] NZHC 1276
Decision Date: 6 June 2019

CaseChat Overview and Summary

Richard George Apperley was sentenced in the High Court of New Zealand for multiple charges including sexual violation, attempted sexual violation, assault with a weapon, and making and possessing objectionable publications. The court considered a sentence of preventive detention due to the severity and frequency of the offenses, which involved four female victims over an extended period. The legal issues involved assessing the risk of reoffending, the effectiveness of previous treatment, and whether a finite sentence or preventive detention would better protect the community. The court relied on three health assessors' reports to determine the risk level and treatment prospects. The judge concluded that the defendant posed a high risk of reoffending despite treatment, and preventive detention was necessary. The sentence included preventive detention with a minimum period of imprisonment of ten years, along with concurrent sentences for other charges.

The final orders included preventive detention with a ten-year minimum period of imprisonment, concurrent sentences for other charges, and orders for the destruction of objectionable publications and forfeiture of items used in the offenses. Additionally, the court made orders regarding name suppression and the discharge of a charge related to breaching an extended supervision order.

Orders