NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR
IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY
S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA530/2015
[2016] NZCA 589
BETWEEN
MATEO MELINA NIXON
Appellant
AND
THE QUEEN
Respondent
Hearing:
1 November 2016
Court:
Randerson, Cooper and Asher JJ
Counsel:
N P Chisnall and S Gray for Appellant
A Markham for Respondent
Judgment:
9 December 2016 at 11.00 am
JUDGMENT OF THE COURT
A
The application for leave to adduce fresh evidence on appeal is granted.
B
The conviction appeal is dismissed.
C
The sentence appeal is allowed.
D
The sentence of 14 years imprisonment with an eight-year minimum
term on charge one is set aside and substituted by a sentence of 13 years
imprisonment with a six–year, six–month minimum term.
The
concurrent sentences on the remaining charges are undisturbed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
NIXON V R [2016] NZCA 589 [9 December 2016]
Introduction
[1]
Between 2009 and 2012 the appellant, Mateo Nixon, was involved in a
South Island outdoor dance party scene. In 2015 he pleaded guilty to 13 charges of
sexual offending relating to six complainants arising out of his activities as part of
that scene. He was sentenced by Judge Phillips in the Dunedin District Court to a
term of 14 years imprisonment with a minimum period of imprisonment of eight
years.1
[2]
Mr Nixon now appeals, contending that his guilty pleas ought to be set aside
and his convictions quashed. He suffers from autistic spectrum disorder (ASD). He
says his counsel failed to put forward a tenable defence based on a reasonable belief
that the complainants consented to sexual activity. It is argued that his ASD led him
to misread the social cues that were before him. It is also submitted that the sentence
imposed upon him was manifestly excessive and that in particular the Judge failed to
give appropriate credit for his ASD and his remorse.
[3]
At the time of the offending Mr Nixon was aged between 24 and 27 years.
He was in an open relationship with one of the complainants, AB, and the other five
complainants, PQ, MB, NB, MA and TR, were either close friends of AB or persons
whom Mr Nixon met socially.
[4]
The facts were fully set out in a summary of facts that was ultimately, after
the charges were laid, agreed to between the Crown and Mr Nixon’s then lawyer,
Ms Bulger. The summary of facts is a lengthy document. Aspects of those facts are
relevant to our determination. Therefore we set out as Appendix A to this judgment a
table that isolates the charges relating to each complainant, a description of the
offending from that summary, the complainants’ position in relation to the offending,
and Mr Nixon’s response to the allegations in this police interview.
[5]
As the table shows, PQ on two of the occasions expressly said “no” when
Mr Nixon had intercourse with her. On the first occasion in 2009 she said it was not
ok and that she minded. In respect of the charge concerning MB, MB told him to
1
R v Nixon [2015] NZDC 16756.
stop. MA yelled at him and told him to “fuck off” on the first occasion between MA
and Mr Nixon and said “what the fuck Teo, not again” on the third of the three
occasions of sexual contact. AB stated that she made it clear there would be no sex
before she went to sleep and woke to find Mr Nixon having sex with her.
[6]
The following particular factors emerge from the facts in relation to the six
complainants and the 13 charges:
(a)
AB and PQ were asleep when sexual contact was initiated by
Mr Nixon.
(b)
MB, NB, MA and TR were drowsy or under the influence of alcohol
and drugs when sexual contact was initiated.
(c)
Mr Nixon and the complainants knew or met each other socially and
some were part of the dance party scene.
(d)
Four out of the six complainants stated that they positively indicated
that they did not want sex or communicated that his behaviour was
unacceptable immediately after the incident.
The conviction appeal
Approach where plea of guilty entered
[7]
The approach to conviction appeals where there have been pleas of guilty
was set out in R v Le Page where this Court said:2
… it is only in exceptional circumstances that an appeal against conviction
will be entertained following entry of a plea of guilty. An appellant must
show that a miscarriage of justice will result if his conviction is not
overturned. Where the appellant fully appreciated the merits of his position,
and made an informed decision to plead guilty, the conviction cannot be
impugned. These principles find expression in numerous decisions of this
Court, of which R v Stretch [1982] 1 NZLR 225 and R v Ripia [1985]
1 NZLR 122 are examples.
2
R v Le Page [2005] 2 NZLR 845 (CA) at [16].
[8]
There are at least four broad categories where, notwithstanding a guilty plea,
there can be a miscarriage of justice.3 These are:
(a)
where the defendant did not appreciate the nature of, or did not intend
to plead guilty to, a particular charge;
(b)
where on the admitted facts the defendant could not in law have been
convicted of the offence charged;
(c)
where the plea was induced by a ruling which embodied a wrong
decision on a question of law; and
(d)
where trial counsel errs in the advice given as to the non-availability
of certain defences or potential outcomes. This fourth category is a
recent addition.4
[9]
The fourth category is relied on in this appeal.
It applies in cases of
significant counsel error. Counsel, for example, may act wrongly or negligently to
induce a decision on the part of a defendant to plead guilty under the mistaken belief
or assumption that no tenable defence exists or can be advanced, when there is in
fact an available tenable defence. This is the ground that must be considered in this
appeal. If a defence such as reasonable belief in consent to intercourse had a realistic
prospect of success, and this was not adequately explained by counsel to a defendant
so that an informed decision could be made by the defendant whether to plead not
guilty and run the defence, there could be a miscarriage of justice.
[10]
Nevertheless, in approaching this fourth category we bear in mind the
observation of this Court in R v Merrilees:5
[35]
It is often the case that an offender pleads guilty reluctantly, but
nevertheless does so, for various reasons. They may include the securing of
advantages through withdrawal of other counts in an indictment, discounts
on sentencing, or because a defence is seen to be futile. Later regret over the
entering of a guilty plea is not the test as to whether that plea can be
impugned. If a plea of guilty is made freely, after careful and proper advice
3
4
5
Richmond v R [2016] NZCA 41 at [17]–[18].
R v Merrilees [2009] NZCA 59 at [34]. See also Lyttelton v R [2014] NZCA 638 at [52]; and
Penniket v R [2016] NZCA 154 at [7].
R v Merrilees, above n 4.
from experienced counsel, where an offender knows what he or she is doing
and of the likely consequences, and of the legal significance of the facts
alleged by the Crown, later retraction will only be permitted in very rare
circumstances.
[11]
Mere assertions of a possible defence are not enough. On appeal a real case
for the defence must be established, demonstrated on the law or the facts. This Court
in Penniket v R held:6
The existence of a defence at the time of the guilty plea, even a possibly
viable defence, is not alone enough to allow a change of plea. There may be
defences that could be run, but which are put to one side because they are
unlikely to succeed, or carry other disadvantages. In the absence of material
counsel error, such decisions cannot be revisited on appeal save in rare
circumstances. The sole fact that a possible defence was known to exist at
the time the appellant pleaded guilty does not on its own show a miscarriage
of justice.
[12]
It is necessary therefore to examine whether there was a defence available
based on Mr Nixon’s reasonable belief in consent in the context of his ASD.
The evidence of ASD
[13]
The pleas of guilty were entered on 9 July 2015. An affidavit has been filed
by Mr Nixon’s counsel, Ms Bulger, following the waiver of privilege. She states that
she met with Mr Nixon on five occasions prior to him entering his plea of guilty.
[14]
Prior to the entry of a plea, Ms Bulger sent a detailed letter to Mr Nixon of
15 May 2015 setting out the potential defences that could be raised. She observed in
that letter that from what Mr Nixon had told her the most likely defence that he
would want to run was consent. She advised that to run that defence Mr Nixon
would need to give evidence. She did not expressly discuss reasonable belief in
consent, and we discuss that issue later in the judgment.
[15]
Ms Bulger stated in her affidavit that she had no concerns about Mr Nixon’s
functioning intelligence ability, his ability to communicate or understand, or his
fitness to take part in the proceedings. Mr Nixon is regarded by the experts as
intelligent. He never suggested to her that he believed that a person who is asleep
can nevertheless be seen as consenting to sex. And his instructions were that he
6
Penniket v R, above n 4, at [8].
believed the complainants were consenting (as distinct from them actually
consenting).
[16]
Ms Bulger exhibited Mr Nixon’s record of instructions to plead guilty, which
included some detail about the sentencing process. Importantly, he accepted the
summary of facts (save for one aspect not relevant to this appeal). Ms Bulger could
not attend the entry of the plea because of weather conditions, and instructed another
barrister to appear.
[17]
On 23 June 2015, well prior to sentencing and before the plea of guilty,
Ms Bulger had been in contact with Dr Ruth Baker, a general practitioner
specialising in ASD conditions.
definitely having ASD.
Dr Baker had recently assessed Mr Nixon as
Ultimately Dr Baker provided a report prior to the
sentencing hearing, giving Mr Nixon’s history and her views on his ASD and the
effects on him of a prison sentence. She did not suggest that the diagnosis of ASD
could be utilised in any way as part of a defence. There was no suggestion from her
or Mr Nixon himself that the diagnosis of ASD could somehow explain a belief on
Mr Nixon’s behalf that the complainants were consenting.
[18]
On sentencing the instructed counsel presented the report from Dr Baker
dated 3 August 2015. This report appears to have been aimed at the sentencing
rather than plea. Dr Baker made observations about Mr Nixon’s commitment to
learn social strategies, which we will refer to later. She noted that Mr Nixon’s
mother had reported as early as 2002 that she believed he had an “underlying
disorder, specifically Asperger’s”, and “he is unable to read or anticipate other
people’s emotions … has an underlying deficit in interpreting facial expressions and
… this has impacted on his social relationships”. Dr Baker stated:
In particular, I am convinced there was absolutely no intent by Mateo to
cause harm or distress, that he genuinely believed sex to be consensual
and/or initiated by the complainant, but failed to recognise the impact of
alcohol on his own or the other’s judgment at the time, or to predict how the
other person might view things later.
[19]
This report provided strong confirmation of Mr Nixon’s ASD condition and
the difficulties he had as a consequence of this condition through his life. The
Crown did not contest this on sentencing or in this appeal. As we have said, the
summary of facts recorded that some of the complainants specifically stated to
Mr Nixon in various ways that they did not want sex. It is not suggested that
Mr Nixon had not read and understood the summary of facts.
Clearly, this
contradiction between the agreed facts, and what Mr Nixon was asserting about
consent was not pointed out to Dr Baker. As we will discuss later, it was a point
clearly understood by the sentencing Judge.
[20]
In submissions before us the principal report relied upon by Mr Chisnall for
Mr Nixon was a report from a psychiatrist, Dr Mhairi Duff, prepared specifically for
the purposes of the appeal and not available to the sentencing Judge. Mr Chisnall
argues that Mr Nixon’s ASD gives rise to an arguable defence of reasonable belief in
consent. He anticipates a Crown submission that there were no social signals (subtle
or otherwise) for Mr Nixon to misconstrue from the sleeping or heavily intoxicated
complainants. In response, he says “that concrete viewpoint is met by Dr Duff’s
evidence, which provides a contrasting and compelling lens through which to assess
Mr Nixon’s behaviour”. Dr Duff’s overall opinion was that:
61.
[21]
In summary therefore it is probable that someone with ASD would
be significantly more likely to believe that a partner was consenting
in circumstances where a judgement needed to be made about their
capacity to consent, than someone who did not suffer from ASD.
This difficulty would be further exacerbated if the other party did not
actively oppose the sexual activity, did not state they did not want
the acts to occur or if they showed concrete actions that had
previously indicated consent to Mr Nixon. Examples of this might
include getting into his bed, taking their clothes off, previously
consenting or initiating other intimacy acts such as kissing him.
Dr Duff addressed Mr Nixon’s practice of initiating sexual intercourse with
AB while she was asleep. She commented that the fact AB simply went “along with
it” would not have “afforded an opportunity for Mr Nixon to learn the nuance of the
rule”. Furthermore, he would not only have been less intuitively able to “consider
consent in detail and in the context of the level of competency of the partner” but he
would “also have struggled to understand the rules generally given his very
abnormal learning environment during his adolescence and early adult life”. Dr Duff
suggested that in the context of someone with ASD the similar pattern to the
offending might represent “a fixed pattern of behaviour that he was not aware was
not acceptable until this was bluntly spelt out to him at his intervention”.
[22]
Relevantly, Dr Duff also observed that Mr Nixon would have “struggled to
appreciate the difference in the levels of consent or competency of others compared
to his own state of mind particularly where both parties had been using substances”.
She observed that Mr Nixon was of high average intellectual function, but had poor
occupational and life skills.
[23]
The key difficulty facing the submission that Mr Nixon’s ASD gave rise to an
arguable defence of belief in consent is that Mr Nixon has provided no evidence
indicating that his assessment of the signals of the complainants was affected by his
ASD. In sentencing Mr Nixon the Judge in our view correctly captured the position
when he considered Dr Baker’s report. He said:7
I have considered it objectively and I accept that a person suffering the
disorder has difficulties in true understanding of the consequences of
behaviour, that there can be difficulties with social interaction and
communication.
Where I do have difficulty with Dr Baker is where she talks about
misunderstandings on your part. I do not accept for a minute there was any
misunderstanding whatsoever here. I consider here that your actions were
not of a kind that the psychologist was talking about where there was a
misinterpretation by the person suffering from the disorder of what was
being said or inferred by the other partner. There was no such matter here
whatsoever. … I think that Dr Baker, with all due respect to her, overlooks
the facts of this matter and deals generally with the autistic spectrum
disorder.
[24]
As the Judge highlights, Dr Baker did not point to any actual examples of
how Mr Nixon may have misunderstood the complainants.
This was also
Ms Bulger’s reason for not seeing ASD as a defence. In our view her reasoning was
sound.
[25]
Even Dr Duff’s report does not show that Mr Nixon’s assertions that he
thought the complainants were consenting arose from any specific misread signals.
In fact, in the course of the police interview Mr Nixon’s claim was that the
complainants positively and actively consented.
7
R v Nixon, above n 1, at [22]–[23].
Dr Duff’s general statements
presuppose evidence that had never been put forward by Mr Nixon, namely that the
complainants did not oppose sex, or showed concrete actions previously indicating
consent. As the summary in Appendix A shows, he asserted occasions of mutually
consensual sex, and had no recollection of any complainant saying to him that they
did not want sex. There was no suggestion by him that he had misread their signals.
The obvious defence open on his version of events was actual consent on the part of
the complainants. The difficulty was that the agreed summary of facts, still not
challenged on appeal, had most of the complainants specifically telling Mr Nixon
that they did not consent.
[26]
We were assisted by the affidavit of Dr Barry-Walsh, a psychiatrist called by
the Crown for this appeal, to respond to Dr Duff’s affidavit. Dr Barry-Walsh did not
disagree with most of Dr Duff’s general opinions on ASD and Mr Nixon’s condition,
but emphasised that before the impact of ASD on an individual in a specific setting
could be determined it would be necessary to show how the individual’s
understanding of consent might have been applied “within the context of the alleged
offending”. In his view there was insufficient material on which to conclude that
ASD explained Mr Nixon’s actions.
Our assessment of the evidence of ASD
[27]
Ms Markham for the Crown relied on R v Clarke where it was held that the
adequacy of the grounds for a belief in consent had to be judged objectively. 8
Evidence of the appellant’s intoxication was irrelevant. She argued that Mr Nixon’s
ASD could not give rise to a defence. She also referred to R v Gutuama where this
Court suggested a standard jury direction:9
The other way of satisfying the third element would be to satisfy you that no
reasonable person in the accused’s shoes could have thought that she was
consenting. That is concerned with the belief of a reasonable person in the
accused’s position.
[28]
Mr Chisnall invited the Court to follow the more recent decision of
R v Can.10 The Court in that case rejected the argument that Clarke wrongly adopted
8
9
10
R v Clarke [1992] 1 NZLR 147 (CA) at 149.
R v Gutuama CA275/01, 13 December 2001 at [39].
R v Can [2007] NZCA 291.
a purely objective approach. It held that the Clarke/Gutuama approach to consent
and reasonable belief in consent involves a mixed subjective and objective belief
test.11 It noted after a review of the case law that characteristics such as intoxication,
mental impairment and mental illness “have been held to be irrelevant” to reasonable
belief in consent.12 On the other hand, age, and, conceivably, cultural background
may become relevant in considering reasonable belief. The actual thought processes
of the particular defendant may become material, and contextual considerations
associated with the defendant’s personal characteristics may explain why he or she
thought in a particular way.13 It will only be in comparatively rare cases that the
defendant has a particular characteristic that could arguably be relevant to the
reasonableness of an asserted belief in consent.14
[29]
A similar approach was adopted in R v Ross15 and Taniwha v R16 where it was
accepted that there may be rare cases in which the Judge ought to isolate particular
circumstances or characteristics of the defendant that are said to provide the
reasonable grounds for belief.
[30]
Although we were invited by both sides to do so, we see no reason to doubt
the approach shown in these cases, and we do not see a necessary conflict with
R v Clarke, which was referring to the general approach and not dealing with
specific characteristics other than intoxication.
A Gutuama direction does not
necessarily exclude a consideration of any of a defendant’s personal characteristics,
and the three more recent authorities we have referred to leave that possibility open,
assuming the rare case where there is a credible narrative or expert opinion.
Whether ASD could be one of the unusual cases where the defendant has a particular
characteristic that could be relevant to the reasonableness of an asserted erroneous
belief in consent does not have to be determined in this case. This is because there is
no evidence that Mr Nixon’s ASD led to an erroneous belief in consent. For the
reasons that we have set out, the evidence fell short of that.
11
12
13
14
15
16
At [42].
At [45].
At [46].
At [46].
R v Ross [2008] NZCA 222 at [31].
Taniwha v R [2010] NZCA 15 at [22].
[31]
We record that s 128A of the Crimes Act 1961 casts some light on the issue
before us. It provides that a person does not consent to sexual activity if it occurs
when that person is asleep or unconscious,17 but says nothing about reasonable
belief. Nevertheless, this Court has held that if a complainant is unconscious or
asleep, there cannot be a reasonable belief in consent.18
[32]
Therefore the evidence of Mr Nixon’s ASD, and the particular evidence of
the experts, does not demonstrate any basis for a defence based on reasonable belief
in consent. The facts do not show any such reasonable but mistaken belief arising
out of his ASD or any other matter. On Mr Nixon’s explanation the complainants
actively and positively indicated to him actual consent. The key problem for this
defence was that Mr Nixon’s claims in the police interview were contrary to the
summary of facts that he accepted. He filed no affidavit disputing the summary. On
appeal he cannot contradict it or go behind it.
[33]
We conclude there was no defence available based on reasonable belief in
consent.
Ms Bulger was right to focus her analysis of the defences on actual
consent. There was no erroneous advice.
[34]
Mr Chisnall after the hearing sought leave to file further submissions to
amend the charge of sexual conduct with a person under the age of 16, pursuant to
s 134 of the Crimes Act, as the Crown cannot prove that the complainant was under
the age of 16 years old at the time of the offending. He submitted that if convicted,
Mr Nixon will face long-term and disproportionate punishment for the offence. We
decline leave. The summary of facts was explicit that the relevant complainant was
under the age of 16. This summary was accepted by Mr Nixon when he pleaded
guilty. Our review of the statements indicates there was a proper factual basis for the
statement that the relevant complainant was under the age of 16.
[35]
17
18
The conviction appeal fails.
Crimes Act 1961, s 128A(3).
Pakau v R [2011] NZCA 180 at [30].
The sentence appeal
The sentence
[36]
The appellant submits that the end sentence of 14 years imprisonment with an
eight-year minimum term for the lead charge, sexual violation by rape, was
manifestly excessive.
[37]
Judge Phillips adopted a global starting point of 20 years imprisonment. He
considered that the offending came clearly within rape band four of R v AM
(CA27/2009),19 and that it fell towards the higher end. Indeed, 20 years is the top of
band four. He allowed a credit for the guilty plea of 25 per cent, and gave a five per
cent credit for Mr Nixon’s ASD and a small amount of reparation ($5,000 total) that
he had paid to the complainants. Mr Chisnall submitted that the starting point was
too high, and the deductions too low.
The starting point
[38]
There were six rape convictions involving five complainants, and two
convictions for unlawful sexual activity with a person under the age of 16. As was
recognised in R v AM (CA27/2009)20 and B (CA196/2010) v R,21 when there are
multiple victims, there can be cumulative sentences that lead to a total that is in
excess of the 20-year highest limit of band four. Here there was evidence of severe
emotional harm to some of the victims. The rapes, while not of the worst order,
involved full sexual intercourse and ejaculation, in circumstances amounting to a
breach of trust. In some of the rapes there were elements of premeditation, although
not to a major degree.
[39]
In our view the starting point of 20 years imprisonment fixed by the Judge,
while high, was not out of the available range. The number of victims (six in total)
and the extent of their suffering required a starting point in the upper reaches of band
four.
It is fair to say that the starting point was not the primary focus of
Mr Chisnall’s sentencing submission.
19
20
21
R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [90].
At [48].
B (CA196/2010) v R [2011] NZCA 654 at [58]–[62].
Mitigating factors
[40]
Mr Chisnall particularly focussed on the five per cent reduction, which he
submitted ignored significant mitigating factors, which we now consider.
[41]
The most difficult issue that arose in sentencing was how to treat Mr Nixon’s
ASD as a mitigating factor. The report of Dr Baker had been presented at sentencing
by the defence to show that Mr Nixon had difficulty understanding the consequences
of his behaviour.
As we have discussed, the Judge considered that general
statements about the effects of ASD were of little help to him in the sentencing
process, and that they overlooked the actual facts.22 The report did not show that
misunderstandings arising from ASD were causative of the offending.23 He was
prepared to give a discount of five per cent for extra difficulties Mr Nixon might
have in prison and for the limited reparation.24
[42]
The issue of the effect of a mental disorder was considered by this Court in
E (CA689/10) v R where it was said:25
[68]
A mental disorder falling short of exculpating insanity may be
capable of mitigating a sentence either because: if causative of the offending,
it moderates the culpability;26 it renders less appropriate or more subjectively
punitive a sentence of imprisonment;27 or because of a combination of those
reasons.28 The moderation of culpability follows from the principle that any
22
23
24
25
26
27
28
R v Nixon, above n 1, at [23].
See the quote set out at [23] of this judgment.
At [25] and [31].
E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411.
Section 8(a) of the Sentencing Act 2002 provides that a court in sentencing must take into
account the gravity of the offending in the particular case, including the degree of culpability of
the offender. Section 9(2)(e) provides that in sentencing the court must take into account that the
offender has, or had at the time the offence was committed, diminished intellectual capacity or
understanding. The mental impairment must, however, be causative of the offending: R v M
[2008] NZCA 148 at [33].
Section 8(h) of the Sentencing Act provides that a court in sentencing must take into account any
particular circumstances of the offender that mean that a sentence or other means of dealing with
the offender that would otherwise be appropriate would, in the particular instance, be
disproportionately severe. For a discussion of this principle see R v Verschaffelt [2002] 3 NZLR
772 (CA) at [22]–[25].
R v Nilsson CA552/99, 27 July 2000 at [10] and R v Rys [2007] NZCA 360 at [45]. For a
discussion of the difficulties involved in sentencing those with mental disorders see Warren
Brookbanks “The Sentencing and Disposition of Mentally Disordered Offenders” in Warren
Brookbanks and Alexander Simpson (eds) Psychiatry and the Law (Lexis Nexis, Wellington,
2007) at 197; Ian Freckelton “Sentencing offenders with impaired mental functioning:
R v Verdins, Buckley and Vo” (2007) 14(2) Psychiatry, Psychology and Law 359; and Michelle
Edgely “Common Law Sentencing of Mentally Impaired Offenders in Australian Courts: A Call
for Coherence and Consistency” (2009) 16(2) Psychiatry, Psychology and Law 240.
general criminal liability is founded on conduct performed rationally by one
who exercises a willed choice to offend.29
As this Court recently observed in R v Bridger, sentencing does have “an essentially
moral base” and “lesser moral fault requires recognition”.30
[43]
There have been a number of cases where persons who have a mental
disorder or impairment have had their sentence reduced to reflect their diminished
moral responsibility.31 There is no formula. A person with a mental disorder may
warrant no discount at all where it is not causatively related to the offending and
cannot be seen as reducing the moral wrong, or where any compassionate discount is
cancelled by an increased risk to the community posed by the offender on release.
To accurately evaluate any discount that may be warranted it may be necessary to
consider the issue in conjunction with other recognised mitigating factors such as
remorse, rehabilitation, and the likelihood of reoffending.
[44]
We have the benefit, in addition to the material that was before the Judge, of
Dr Duff’s recent report. She described in that report Mr Nixon’s unusual attitude to
sex, which he saw as “an easier shortcut to getting to know them” and the difficulties
he would have had to “intuit social information, read emotional cues or consider the
perspective of others”. We must be cautious about these reported statements. They
could just be seen as another expression of a strong sense of unacceptable
self-entitlement.
The Judge’s finding that the ASD did not lead to
misunderstandings, quoted earlier,32 seems to us to be correct and Mr Nixon’s ASD
cannot be seen as mitigating culpability for the offending.
[45]
However, the position in relation to rehabilitation is more positive in
mitigation terms. Generally the reports indicate that Mr Nixon now has improved
insight and motivation to attend therapy and further education. Dr Baker noted his
commitment to learn strategies around the social challenges of ASD now his
condition had been identified. He complied with previous supervision and was
29
30
31
32
R v Tuia CA312/02, 27 November 2002 at [15].
R v Bridger [2003] 1 NZLR 636 (CA) at [42].
See for example Maurice v Police HC Auckland A33/99, 12 April 1999; R v Mohamed [2007]
NZCA 170; and Uncles v R [2012] NZCA 144.
At [23] above.
assessed by the probation service as likely to comply with community-based
sentences and imprisonment.
[46]
Mr Nixon has prior convictions, but not of a sexual nature. We have read the
letters he has written to the victims expressing his remorse, and other letters from his
former partner, his family and former employers, which speak of difficulties he has
faced, and the high hopes they hold for him. The material before us indicates that
Mr Nixon imposes a relatively low risk of re-offending despite a high assessment in
the pre-sentence report turning on the standard assessment relying on his repeated
offending over three years. Clearly Mr Nixon now has excellent family support.
[47]
There is now further information before us in Dr Duff’s report about the
specific effects on Mr Nixon of imprisonment. Mr Nixon will be likely to struggle to
read the non-verbal and indeed verbal cues in his prison environment that warn him
about who to approach or avoid and is likely to blunder into unsafe situations. As a
result of his poor social skills he may spend more time in isolation than his peers.
He is more likely to be ostracised, bullied or assaulted and to inadvertently break
rules. He is also more likely to be negatively affected by the lack of control over the
noise, temperature, smells, food choices, clothing and bedding.
[48]
We do not overlook Dr Barry-Walsh’s affidavit where he expresses caution
about Mr Nixon’s prospects of rehabilitation, and queries the hardships he will suffer
in prison. There is no actual evidence of his condition causing him difficulties in
prison. However, a combination of all the factors we have set out, and the benefit of
Dr Duff’s report which was not available to the sentencing Judge, lead us to the view
that the five per cent discount allowed was too low. The combination of remorse,
rehabilitation and a modest allowance for the specific effects of ASD on Mr Nixon’s
experience in prison, lead us to conclude that the discount should have been more.
There should have been an overall deduction from 20 years imprisonment to
17 years and six months imprisonment. At that point the discount of 25 per cent for
the guilty plea should have been applied, which means that the end sentence should
have been 13 years imprisonment (rounded down), and not 14 years imprisonment.
[49]
For the same reason the minimum term should reduce. While the gravity of
the offending demands a minimum term, for the reasons we have set out, we see the
mitigating factor of ASD, the prospects of rehabilitation and the remorse as limiting
the appropriate period to approximately 50 per cent, lower than the 57 per cent
chosen by the Judge. There is not the level of community risk that might be
ordinarily anticipated following such serious offending. We also take into account
the modest reparation that was paid. The minimum term is reduced from eight years
to six years and six months imprisonment.
Result
[50]
The application for leave to adduce fresh evidence on appeal is granted. The
conviction appeal is dismissed.
[51]
The sentence appeal is allowed.
[52]
The sentence of 14 years imprisonment with an eight-year minimum term on
charge one is set aside and substituted by a sentence of 13 years imprisonment with a
six-year, six-month minimum term. The concurrent sentences on the remaining
charges are undisturbed.
Solicitors:
Crown Law Office, Wellington for Respondent
APPENDIX A
Complainant
Charge
Date
Description from summary of facts
PQ
1: sexual
violation by
rape
01/10/09–
31/12/09
2: sexual
violation by
unlawful
sexual
connection
3: sexual
violation by
unlawful
sexual
connection
4: indecent
assault
01/01/10–
31/03/10
Asleep in bed with AB and Mr Nixon
(N). Awoke to find N having sex with
her. Said no, asked him what he was
doing. N said words to the effect: “it’s
ok, [AB] doesn’t mind”. PQ said it was
not ok and she did mind. It took N quite
a while to stop.
Visited AB. After drinking fell asleep in
bedroom. Awoke to N with his hands on
her thighs and a finger inside her vagina.
10: sexual
violation by
rape
27/10/11–
01/11/11
MB
Complainant’s
state during
offending and
response
Asleep. Awoke,
said it was not ok
and she minded.
Mr Nixon’s response in police interview
Said they were mutually affectionate and kissing
before having sex. Afterwards PQ inexplicably
became upset. Said she had taken drugs and this
may have caused her to lose memory of the
consensual activity.
Asleep. Awoke
during incident.
Did not recall the exact events. Remembered on
one of the occasions at the address in question
PQ came into the room, began taking her clothes
off, said she was attracted to him, got into bed.
01/01/10–
31/03/10
Visited AB. After drinking went to bed
in a bedroom. Awoke to N with his
fingers inside her vagina. Said no,
pushed him away.
Asleep. Awoke,
said no, pushed
him away.
Suggested PQ may have made up the allegations
because she did not want to damage her
relationship with AB.
01/01/10–
31/12/10
Party at N’s home. MB was drinking.
Went to lie on a bed. N went into
bedroom, put his hands down her pants,
touched her breasts a few times. MB
told him to stop doing this but he would
not. MB eventually got up and left.
MB went to rave with AB. Became very
intoxicated. N walked her to her car. N
asked if he could stay in her car and she
agreed. Woke up to N on top of her and
having rough sexual intercourse with her.
Intoxicated. Told
N to stop.
No recollection of this incident.
MB very
intoxicated.
“We became intimate um and yeah had sex …
the evening was hazy because I was intoxicated
as was she, but from what I do remember was
her being very eager for sexual contact”.
They went back to her car, drank more alcohol,
kissed, MB removed her clothes, became
intimate, had sexual intercourse.
Complainant
NB
Charge
Date
Description from summary of facts
11: sexual
violation by
rape
27/10/11–
01/11/11
On the second night of the rave, MB
became very intoxicated after consuming
alcohol and illicit drugs. N comforted
MB. She has little memory of events.
Awoke to find N with her in her car and
her pants and underwear in bushes
nearby.
5: sexual
conduct with
young person
under 16
01/01/11–
17/04/11
NB was the younger sister of a friend of
AB. Visited sister’s flat after school.
Had a few beers and a meal, then
consumed more alcohol and had a joint.
Fell down, could not get up. Put on the
bed with her sister. N got onto the bed.
Reached over, touched NB on her breast
on top of her clothing. NB could not
move or cry out due to her level of
intoxication.
6: sexual
conduct with
young person
under 16
N put hand underneath her clothing,
moved his hand down from around her
belly button to her vagina where he
touched her genitalia.
Complainant’s
state during
offending and
response
Very intoxicated.
Little memory of
events.
Very intoxicated.
Could not
move/cry out.
Mr Nixon’s response in police interview
MB told him she loved him and wanted to
continue with what they were doing. She was
“definitely in a state of coherence to talk to me
about what we were doing and that indicated to
me she was in, she was in a, in a clear enough
head space to consent to what she was doing”.
Had sex for “quite some time”, he stopped when
MB said she didn’t want to have any more sex.
No recollection of touching NB. Possible that in
a “semi-conscious state” his hands wandered
and he “inadvertently inappropriately touched
[NB] without, without um, yeah without
consciously knowing it was her or realising what
I was doing at the time”. Could not recall state
of NB’s sobriety.
Mentioned he had had a discussion with a
counsellor and had been told he had a condition
“that can lead to being unaware of surroundings
and essentially unconscious but um yeah,
basically wandering hands while not being
consciously aware of it and from, from what I
recall … this is one of the occasions I spoke to
him about that”.
Complainant
Charge
Date
Description from summary of facts
MA
7: sexual
violation by
unlawful
sexual
connection
23/06/11–
27/06/11
MA went to N’s house with her
boyfriend. She was very tired, N offered
her his bed, which she shared with
another female. MA awoke to find N
with his hands down her pants. He
pulled her trousers down and put his
fingers inside her vagina. MA pushed N
away, yelled at him, told him to fuck off,
pulled her underwear and pants up. N
left.
8: sexual
violation by
rape
12: indecent
assault
23/06/11–
27/06/11
17/12/11
Later that night N returned and had
sexual intercourse with MA while she
was asleep.
MA awoke. Her vagina felt sore and
herpants and underwear were around her
ankles.
MA went to AB’s birthday party at N’s
home. MA and boyfriend travelled up in
van, she was very tired after arriving and
went for a sleep. Awoke to N with his
hands down her pants and around the
front of her genital area, cupping her
vaginal area. She said “what the fuck
Teo, not again” and moved his hands
away. Left and went to van.
Complainant’s
state during
offending and
response
Asleep. Awoke,
pushed N away,
yelled at him, told
him to fuck off,
pulled pants and
underwear up.
Mr Nixon’s response in police interview
MA had been flirting with him. “I believe we
went up into my room together um and started
becoming intimate um, we had sex that evening
um, we were … touching each other um and we
had sex”.
Did not recall MA pushing him away or telling
him to fuck off. MA was “up” and “awake”, she
may have been drinking and said she was tired
but “wasn’t in a terrible wasted state”.
Asleep.
Had a conversation about it the following
morning. MA was “totally aware” she had sex
with him and concerned about whether to tell
her partner. She told him she had felt “horny”.
Asleep. Awoke,
said “what the
fuck Teo, not
again” and moved
N’s hands away.
“Yeah, I may have made some advance um it
may, have made some advance, um.”
Complainant
Charge
Date
TR
9: sexual
violation by
rape
17/08/11–
22/08/11
Description from summary of facts
TR drinking at N’s home. Went and
crashed in a room. Was almost asleep.
N entered room, climbed on top of her,
pulled her jeans down, raped her,
ejaculated.
Complainant’s
state during
offending and
response
Almost asleep but
conscious at time
of offending.
Mr Nixon’s response in police interview
Recalled having sexual intercourse with TR on
one occasion. They were intimate and “kissing
passionately” . Neither fit to drive a vehicle but
engaged in conversation.
“When we initiated our sexual contact, she was
… happy with it to continue, that um, that was
the impression I got from her actions and
reactions to my advances. It was reciprocal, um
… she never told me not to or to stop”.
AB
13: sexual
violation by
rape
01/07/12–
31/08/12
AB rang N to tell him their relationship
was over. N travelled to see AB, and
they then went to N’s home. They were
drinking and talking about their
relationship. N convinced AB to stay the
night.
They shared a bed. AB told N there
would be no sex. Awoke to find N
having sex with her. He was on top of
her, her tights had been removed and he
ejaculated inside her.
Asleep. Before
she went to sleep,
told N that there
would be no sex.
In response to question about what led him to
believe TR consented: “Ah, the events leading
up to it. The fact that we were intimate in the
lounge downstairs. Ah the fact that we went and
slept in the same bed, or we, we retired to the
same bed together. Ah, the, our intimacy that
continued once we were in bed”.
They went to bed together, ended up having sex,
he understood it to be “break up sex”. “We went
to the bedroom and then … it was all very
familiar, you, if you know what I mean by that,
um our, our relation, our, yeah, we just had sex
as we had previously.”
Did not recall AB telling him not to have sex
with her while she was asleep, definitely
disputed that this occurred. During the
relationship AB did not have any issue with him
having sexual intercourse with her while she
slept.