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Gabriel Vince Capuyan Apolonio has appealed his six-year prison sentence for raping a stranger.
His lawyer argued Apolonio had a “genuine” belief she was consenting, despite having to hold her down to commit the crime.
The appeal focuses on whether the sentencing judge should have allowed more discounts for Apolonio’s belief, and his lack of previous convictions.
Warning: This story deals with sexual assault.
A man who raped a stranger as she lay frozen trying not to wake her small child beside her has appealed his prison sentence, arguing he didn’t get enough credit for his previous good character.
Gabriel Vince Capuyan Apolonio’s lawyer also said the sentencing judge’s starting point should have been lower to account for the defendant’s claim he believed the victim was consenting to the forceful attack.
Apolonio, 27, appeared by audio-visual link in the Court of Appeal in Wellington on Tuesday where his lawyer, Phillip Allan, made a bid to have his six-year prison sentence shortened.
The victim sat in the back of the courtroom crying quietly through the hearing.
Apolonio was sentenced in the Timaru District Court in August last year after being found guilty at trial of rape and unlawful sexual connection.
According to the summary of facts, the victim was visiting a friend in Ashburton in January 2023 and planned on staying the night at their house. The friend’s husband invited some friends over, including Apolonio.
The group socialised and had some drinks, and eventually the victim went to the guest room and went to sleep beside her 5-year-old son.
The appeal was heard in the Court of Appeal in Wellington.
She woke about 20 minutes later to discover Apolonio had got into the bed beside her. He tried to take off her pants as she told him “no” and tried to push him away.
“She was aware her son was next to her and attempted to keep her movements to a minimum so as not to wake him,” the summary said.
Apolonio took off her pants despite her kicking at him, sexually assaulted her then held her down by her wrists and raped her.
“The victim went motionless as she was concerned her son would wake and observe what was happening.”
In sentencing, Judge Campbell Savage said the jury “clearly found there were no reasonable grounds for you to believe this stranger was consenting to what you did to her”.
Judge Savage pointed to a section of Apolonio’s pre-sentence report, in which he said: “I didn’t think she didn’t want it at that time and she didn’t protest. She let me do what I was doing.”
The judge said this showed Apolonio still did not understand what consent meant.
“It takes more than an absence of protest to indicate consent, especially when the person you have offended against is a complete stranger.”
In the appeal this week, Allan argued the judge should have adopted a lower starting point for sentencing as Apolonio held a “genuine” belief the victim was consenting.
He also said his client should have received more than a 5% discount to the sentence for his previous good character, which was shown by the letters of support and character references he provided to the court.
Allan also argued not enough of a discount was given to account for the time Apolonio spent on restrictive electronically-monitored bail.
Crown lawyer Joe Mara said the discounts the judge gave were sufficient and appropriate.
He said the starting point should not have been further discounted, and that Apolonio’s own evidence did not support him having a reasonable belief of consent.
Mara said during cross-examination Apolonio took a “murmur” from the victim as consent.
“It wasn’t enough to substantiate a reasonable belief in consent let alone actual consent,” he said.
He also disagreed there should have been a higher discount for previous good character, noting it took more than a lack of convictions to earn defendants more time off their sentence.
Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.
