Gabriel Apolonio fails to cut prison term after raping mother lying next to sleeping child

Gabriel Apolonio raped a stranger as she lay next to her sleeping son. He has now failed in his bid for a shorter sentence. Photo / 123rf

Warning: This story deals with sexual assault

A man who raped a stranger as she lay frozen next to her young son claimed he got his “wires crossed” when he sexually advanced on the woman because she “didn’t protest”.

Gabriel Vince Capuyan Apolonio was sentenced to six years' imprisonment when he appeared 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 woman and her son were staying with a friend at their house in Ashburton in January 2023. The friend’s husband invited some friends over, including Apolonio.

The group socialised and had some drinks, and eventually the woman went to the guest room and went to sleep beside her son.

Sometime later, Apolonio, 27, went into the guest bedroom and got into bed next to the woman.

Despite her attempts to kick him away, Apolonio managed to remove her pyjama pants and touch her genitals. Holding her down by her wrists, he then raped her.

At this point the woman lay frozen, fearful of waking her child, who would see what was happening to his mother. He continued raping her, leaving the room when he’d finished.

He went on to challenge the length of his sentence in the Court of Appeal, claiming it was excessive.

His lawyer Phillip Allan argued the sentencing judge should have adopted a lower starting point because Apolonio had an honest belief his victim had consented.

Apolonio had earlier told a presentence report writer, “I got my wires crossed ... I didn’t think she didn’t want it at that time, she didn’t protest, she let me do what I was doing.”

But the Court of Appeal wasn’t buying it.

“These statements smack of an offender seeking to diminish the gravity of his offending,” the decision said.

“It is inconceivable that Mr Apolonio had an honest belief in the victim’s consent, and we consider the Judge’s remarks indicate that he was astonished at the suggestion.”

Allan also suggested that his client should have received more than a 5% discount for his previous good character.

Again, the court rejected the argument.

“The most that could be said for Mr Apolonio is that aged 25, he had no prior convictions. No more than 5% was required.”

The court dismissed the appeal and said the original sentence was correct.

Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist for 20 years, including at the Waikato Times and RNZ. Most recently she was working as a media adviser at the Ministry of Justice.