THE QUEEN v RICHARD GEORGE APPERLEY [1999] NZCA 86 (13 May 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 450/98

THE QUEEN

V

RICHARD GEORGE APPERLEY

Hearing:	13 May 1999
Coram:	Tipping J Doogue J Robertson J
Appearances:	R J MacPherson for Appellant
	J C Pike for Crown
Judgment:	13 May 1999

judgment of the court DELIVERED BY ROBERTSON J

[1] On 11 December 1998 the appellant was sentenced in the High Court at Palmerston North on two charges of sexual violation to 10½ years imprisonment.A 7 year sentence of imprisonment was imposed concurrently on an abduction charge and a 6 month sentence of imprisonment was activated to be served cumulatively.The total effective sentence was 11 years.

[2] On 15 September 1998 the appellant who was temporarily living apart from his partner and their children travelled from his home in Levin to Paraparaumu. He went to an address where he expected to see an acquaintance but on arrival the only person at the house was the 15 year old female complainant.He went into the house and very shortly thereafter grabbed her and threw her onto the bed and lay on top of her.A struggle ensued and the defendant pulled a knife, held it to her throat and said, "you are going to co-operate with me or I am going to hurt you."

[3] Mr Apperley took rope from his jacket pocket, tied the victim's hands behind her back and told her he did not want anything happening in her house and that they were going to take a drive.

[4] With the aid of a knife he conducted her out of the house and forced her into his car.Before leaving the house he used a tea towel to wipe the door handles so as not to leave evidence of his being at the address.The complainant was put into the back seat of the car where she was told to lie down.The appellant then drove to Levin.He told her to "stay down" as there were cars behind them.

[5] They went to his home address, parking the car at the rear of the house. The victim was pulled from the car and taken into his bedroom.Having sat her on the double bed he cut the rope from her hands and holding the knife to her throat told her to take her clothes off.When she was naked he told her to perform oral sex but she refused.He then grabbed the victim by her hair, pushed her onto the bed, took off his own clothes, lay on top of her and forced his penis into her vagina and raped her.He then dressed himself and told her to get dressed.A few minutes later he tied her hands to a weights bar, placed masking tape across her mouth and left her in the bedroom while he went into the lounge and turned up the stereo loud to prevent any noise she might make being heard.

[6] The appellant told the victim that he needed time to be alone so he could think about what he had done and he briefly left the house.He returned, came up behind her, and using the knife cut her skivvy, sweatshirt and bra from her back while her hands were still tied in front of her.He then threw her face down on the bed and then forced his erect penis into her anus.

[7] Following the second attack he became remorseful and provided the victim with some of his clothing before driving her back to Paraparaumu where he dropped her off at one of her friend's addresses and returned to Levin.When spoken to in the early hours of the following morning he initially denied any involvement but eventually admitted the facts as outlined.He said he did not know what had come over him and why he had raped her.He said he had contemplated killing and disposing of her so he could not be linked to the crime.

[8] The appellant is 19.He has had an association with the mother of his three sons over a number of years.He has had a troublesome time since he was about 13, at which stage he says he suffered sexual abuse at the hands of his own father.Although he had some previous convictions he had not served a prison sentence and had been employed more often than not.The sentencing Judge had two psychiatric reports detailing his troubled background but indicating that he was not suffering from any mental disorder.The second of the reports indicated that there were some positive signs that he might be able to tackle some of his problems.

[9] The learned sentencing Judge reviewed a number of decisions involving sexual violations with serious aggravating circumstances of this sort.Some were prior to 1993 when there was an increase in the maximum term and others since that date.

[10] The Judge reached the view that an appropriate starting point in all the circumstances was 16 years.He allowed a deduction of 5½ years for the mitigating factors, the strongest of which was the prompt plea of guilty at what could fairly be described as being made at the earliest opportunity.

[11] The Judge however said :

None of this can obscure the fact that this was horrendous offending, well up the scale.There is the element of abduction and the threats with a knife which together must have terrorised the victim, quite apart from the two distinct sexual violations, then there is the tying up of the victim and the degree of force used.

[12] As one would anticipate the victim was severely traumatised by this ordeal.Her life at least in the meantime has been destroyed and she is suffering mental trauma and physical side effects.

[13] Mr McPherson, counsel for the appellant, realistically accepted that this was serious offending but undertook an analysis of a number of prior decisions of this Court and the decision of the English Court of Appeal in R v Billam & Ors (1986) 82 Crimes Appeal 347 and sought to persuade us that the sentencing Judge by adopting a starting point of 16 years had "blurred the line between levels of aggravation indicated in Billam and the presumption as to the starting point which such aggravation attracts".

[14] We are not attracted to such an approach.In New Zealand since 1993 "8 years should now be said to be the starting point in a contested rape case" (R v A [1994] 2 NZLR 129).

[15] A sentencer is always required to undertake an exercise having regard to matters of aggravation and mitigation.

[16] The aggravating factors in this case are succinctly encapsulated in the sentencer's summation referred to above.He reached the view that 16 years was appropriate.That is certainly not inconsistent with the approach in this Court in R v Parsons (CA 455/95, 24 May 1996).

[17] The range of sentencing is also consistent with the 10 year sentence which was upheld in R v Brown (CA 308/87, 15 April 1988);R v Wynyard (CA 285/87, 3 March 1988) where 8 years was upheld after pleas of guilty;the effective sentence of over 9 years in R v Morris [1991] 3 NZLR 641 which was after trial and R v Retimana (CA 121/88, 5 October 1988) where on a plea of guilty a sentence of 9 years was imposed in this Court on a Solicitor-General appeal.Those were all offences prior to the amendment and are proportionately within the same range as that which was applied in the present case.This was a serious and sustained violation of an innocent young complainant which has had serious and continuing consequences.It required clear denunciation and condemnation. There could be debate about the basis upon which the ultimate sentence was constructed but the crux issue is the total effective sentence.It cannot be said that 10½ years was manifestly excessive.We consider it was clearly within the proper range.

[18] The appeal is accordingly dismissed.

Solicitors

Crown Law Office, Wellington