R v Apperley - [2019] NZHC 1267

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 1267

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 1267 [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 1267
Case: [2019] NZHC 1267
Decision Date: 6 June 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Mallon J sentenced Richard George Apperley on 14 charges to which he had pleaded guilty. The charges included multiple counts of sexual violation, attempted sexual violation, sexual violation as a party, assault with a weapon, and charges related to objectionable publications. The court considered whether to impose a sentence of preventive detention. The legal issues before the court were whether Apperley posed a significant risk of reoffending and whether a finite sentence or preventive detention would be more appropriate to protect the community. The court assessed the nature and impact of the offending, Apperley's history of offending, and reports from health assessors on his risk of reoffending. After considering the submissions from both the Crown and defence, Mallon J determined that Apperley was likely to commit further serious sexual and violent offences if released at the expiry of a finite sentence. The court concluded that preventive detention was necessary to protect the community. Apperley was sentenced to preventive detention with a minimum period of ten years' imprisonment. He also received concurrent sentences for other charges.

Orders