HORN v R [2023] NZCA 353

HORN v R [2023] NZCA 353 [8 August 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA453/2022[2023] NZCA 353BETWEEN JAMES LEWIS HORNAppellantAND THE KINGRespondentHearing: 10 May 2023Court: Mallon, Moore and Fitzgerald JJCounsel: H B Leabourn for AppellantC P Paterson for RespondentJudgment: 8 August 2023 at 10 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] In the Auckland District Court, a jury found the appellant James Horn, guiltyof one charge of sexual violation by rape.[2] On 5 August 2022, Judge Dawson sentenced him to five years and 11 months'imprisonment.1[3] He appeals both his conviction and sentence.Background[4] Mr Horn's four-day trial commenced on 10 May 2022. At that time he facedtwo charges: disabling2 and sexual violation by rape.3 In respect of the first charge,the Crown's case was that Mr Horn administered the complainant a substancecontained in a glass of orange juice, likely a sedative, which caused her to loseconsciousness. This deprived her of the ability to give consent to the sexualintercourse that followed and formed the basis of the second charge. The factualbackground follows.[5] Mr Horn and the complainant, A, were known to each other for some yearsthrough A's former partner, B. B and Mr Horn had been close friends since school.Mr Horn operated a [redacted] business [redacted]. A had previously helped Mr Hornin the business doing various administrative and marketing tasks. She trusted Mr Horn[redacted].[6] On 13 April 2019, B assaulted A in their Whangārei home. The police werecalled. A was relocated to a local Women's Refuge facility.[7] That evening, Mr Horn rang A, apparently in an attempt to contact B. Learningof her situation, he offered to pick her up from Whangārei and take her back down toSandspit, ostensibly to be in the company of friends she knew and trusted. A acceptedthe offer and so Mr Horn drove to Whangārei and brought her back to Sandspit. Theythen got in a dinghy and went out to Mr Horn's charter boat which was moored out inthe bay.1 R v Horn [2022] NZDC 14970.2 Crimes Act 1961, s 197; maximum penalty five years' imprisonment.3 Sections 128(1)(a) and 128B; maximum penalty 20 years' imprisonment.[8] A's evidence was that she was very tired. She said that Mr Horn handed her aglass of orange juice which she drank. She began to feel dizzy and a little sick. Sheapologised to Mr Horn for being unsociable. She went down inside the cabin and ontoa bed. She was fully clothed and went straight to sleep. When she woke up, shediscovered she was naked. It was still dark. Lying directly behind her, also naked,was Mr Horn. He was cuddling her. She could feel his genitals sticking to the backof her body. Her vagina was sticky and sore. She could smell semen.[9] She gathered up as many clothes as she could and went up onto the deck whereshe spent the rest of the night waiting for Mr Horn to wake up and return her to shore.[10] It was not until well into the next day that Mr Horn woke up. A asked him totake her to the local medical centre at Wellsford, apparently to register as a patient.Mr Horn drove her there. En route, he apologised several times, without saying why.[11] As it transpired, A did not register at the medical centre. Instead, she went withMr Horn to a friend's home where Mr Horn left her. At that address there was somekind of altercation. A called the Whangārei Women's Refuge and, through them, thepolice were notified. A returned to Whangārei. Her clothing was taken for evidentialpurposes and she underwent a medical examination. Genital swabs revealed thepresence of semen. DNA linked to Mr Horn was recovered.[12] Mr Horn was not spoken to by police until November the following year. Hisaccount was that it was A who asked him to pick her up from Whangārei. He said hetook her back to Sandspit and they went out to his boat where he made a bed for A onthe deck. However, A complained that she was too cold and asked if she could sleepin the cabin bed with him. He agreed. He said it was A who initiated the sexualadvances. He said he was woken up by her performing oral sex on him which hereciprocated. He denied any penile penetration but said that at one point, he digitallypenetrated her vagina.Disabling charge dismissed[13] At the end of the Crown case, counsel for Mr Horn, who was not counsel onthe appeal, made an oral application in the absence of the jury seeking a discharge ofthe disabling charge under s 147 of the Criminal Procedure Act 2011 (CPA). This wason the basis that there was no evidence or no sufficient evidence that Mr Horn hadgiven the complainant a glass of orange juice that contained a drug or other disablingsubstance.[14] Counsel for Mr Horn submitted that A's evidence, taken at its highest, was thatshe thought she must have been drugged because she did not feel well and that theglass of orange juice must have been spiked because that was the only thing A couldthink of that might explain her dizziness, drowsiness, nausea and waking up to findherself "stuck to a filthy man when [she] couldn't understand how the hell thathappened".[15] The Crown submitted it was a reasonable inference the orange juice containeda sedative because A had a clear of recollection of arriving on the boat, but after sheconsumed the orange juice she felt dizzy and unwell, having never felt that waypreviously. Because of how she felt, she made her way down into the cabin andpromptly fell asleep. When she woke up she found herself naked with Mr Horn andhad no memory of what had happened in the interim.[16] The Judge delivered a brief oral judgment. He determined that the chargeshould be dismissed for three reasons. First, there was no toxicological evidence thatA had any disabling drug in her system, or evidence from a third party as to hercondition. Secondly, there was no evidence that Mr Horn had any drugs in hispossession other than for legitimate medicinal purposes. Thirdly, there werealternative explanations available, consistent with innocence, to explain why A feltdisabled, including the trauma of recent events, the time of night, and possible alcoholand methamphetamine consumption.[17] The jury returned and the Judge addressed them in the following terms:Members of the jury, one of the things I've been talking about with the lawyersis the continuation of charge one. You'd know there are charges, one ofdisabling and one of rape or a second of rape that you need to make decisionsupon.Having heard argument from the lawyers I am satisfied there is insufficientevidence for the charge of disabling to go to you to make a decision upon so Iam dismissing that charge now. The only charge you need to focus upon ischarge two, the charge of sexual violation by rape.Conviction appealGrounds of appeal[18] On the conviction appeal, Mr Leabourn, for Mr Horn, submitted, that once thedisabling charge had been dismissed, the correct course would have been for the Judgeto declare a mistrial and discharge the jury because the illegitimate prejudiceassociated with the evidence on charge one was so significant that Mr Horn could notreceive a fair trial. He submitted that a retrial on the sexual violation charge was theonly safe option. Alternatively, the Judge should have stopped the Crown fromcross-examining Mr Horn on whether he had drugged A and intervened to preventCrown counsel from advancing its case to the jury on the question of lack of consenton the basis that A had been drugged or stupefied.[19] In any event, Mr Leabourn submitted that the Judge failed to give sufficientdirection and guidance to the jury as to how they should deal with the allegations ofstupefaction, or the use of drugs by Mr Horn, both at the time the charge was dismissedand in his summing up. He should have directed them that any evidence suggesting Amay have been drugged by Mr Horn was inadmissible on the sexual violation chargeand the jury must ignore it.Appeal jurisdiction[20] To succeed in his conviction appeal, Mr Horn must show that a miscarriage ofjustice has occurred.4 "Miscarriage of justice" is defined in s 232(4) of the CPA. Itrequires a two-step enquiry.5 First, the appellant must establish an error, irregularityor occurrence relating to or affecting the trial. Secondly, he must establish there is areal risk this affected the outcome of the trial or rendered it unfair or a nullity.4 Criminal Procedure Act 2011, s 232(2)(c).5 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [23]–[24].Discussion[21] It is plain from a reading of the prosecutor's cross-examination of Mr Horn andhis closing submissions to the jury that the principal thrust of the Crown's case wasthat Mr Horn administered a stupefying substance or sedative to A contained in a glassof orange juice. This, the Crown submitted, had the effect of rendering A effectivelyunconscious and thus unable to consent to sexual intercourse.[22] This approach is consistent with the way the prosecutor opened the Crown'scase to the jury. At two distinct points in his opening, the prosecutor referred to Abeing drugged. First, when introducing A's evidence and, secondly, when addressingthe elements of both charges.[23] As for the first, he said: when they got [to] Mr Horn's boat he seized an opportunity. He gave hersome orange juice. Shortly after [A] felt tired and went to sleep in the cabinof the boat. When [A] got to the boat she had a glass of orange juice that Mr Horn hadpoured her. She felt quite tired, she apologised to Mr Horn for beingunsociable but she was exhausted from the past 24-hours so she climbed downinto the cabin and went to sleep.[24] Secondly, when discussing the elements of the two charges, the prosecutorsaid: the first charge is disabling. In other words the allegation is that Mr Horndrugged [A] so she was incapable of resisting his sexual advances while theywere on the boat. The boxes that you would need to tick for that charge arethat Mr Horn gave [A] a drug, that as a result of that drug she becameunconscious. That he intended her to become unconscious when he gave herthat drug. That she did not consent to ingesting that drug and that Mr Hornbelieved that [A] was not consenting to ingesting the drug and had no lawfuljustification or excuse for giving her the drug....So the second charge on that is sexual violation by rape. So the tick boxes forthat charge are that the Crown is required to first prove that the act happened,that is that Mr Horn penetrated [A]'s genitalia with his penis. Secondly, thatit occurred without [A]'s consent and thirdly, in the absence of a [reasonable]belief on the part of Mr Horn. Now that third box, that is an absence of[reasonable] belief on the part of Mr Horn, can be proved in one of two ways.The first is to prove that he did not genuinely believe she was consenting, orthat no [reasonable] person in his shoes would have believed that she wasconsenting.[25] Following the Judge's ruling on the s 147 application, Mr Horn gave evidence.He said that the reason he went out to the boat was to collect some painkillers and itwas A who asked to join him. On the boat he said he had a "couple of Norflex" pillsand a couple of bourbons. He said that Norflex has a calming effect. After that hewent to sleep. He said that because he'd taken the pills he was quite dozy. Incross-examination, he accepted that Norflex was a strong painkiller which can assistsleep. It was put to him that the side effects included dizziness, nausea and sleepiness.Mr Horn accepted this was sometimes the case. It was put to him that Norflex andother prescription drugs he was taking at the time cause tiredness and can sometimesmake a person feel relaxed. He denied giving A any orange juice. He said that he didnot drink orange juice because it gave him indigestion.[26] In his closing address the prosecutor first referred to the evidential effect of thedisabling charge being dismissed. He said:So as his Honour advised you yesterday Mr Horn now faces one charge andone charge only. Sometimes that happens in trials. Charges get changed ordismissed before you retire to deliberate. Now the Crown case is still thatMr Horn drugged her, but you do not need to consider the elements or tickboxes for that stupefying charge, rather you need to decide the rape chargealone.[27] Then, when discussing consent, the prosecutor said: The second box is to do with consent and so the Crown must prove that ithappened without [A]'s consent and the allegation here is that [A] was asleep,ah, was unconscious, unconscious at the time she was, because she'd beendrugged by Mr Horn. And the law provides that a person cannot consent tosexual activity if they're so intoxicated or affected by another drug that theycannot consent or refuse to provide consent.So given [A] spoke about how she can remember climbing down into the cabinafter drinking that orange juice and her next memory is waking up, you canbe sure that she must have been affected by this drug during that and that's inbrief and I'll talk about that in further detail, I'll expand on that.[28] As foreshadowed, the prosecutor returned to the topic when discussing thefacts: Once they get [onto the boat] they get on to the deck and [A]'s sitting onthe deck looking at the stars and other boats smoking cigarettes. She asks[then] for a drink. Mr Horn gives her an orange juice. She doesn't see himpour it. It might be that Mr Horn went into the cabin and got it from the fridgeor that chilly bin by the bed and you've got photos of that in the cabin.We know he has access to strong pain killers and the side effects of those painkillers [he] accepted are dizziness and sometimes feeling nauseous. After shedrinks this orange juice, she starts to feel dizzy and sick. A feeling that she'snever had before she told the interviewer when drinking orange juice. Whyhas she had that feeling? Because Mr Horn's drugged her. She excuses herselfas she's feeling unsociable. Because she's dizzy she needs to hold the railingto get down into the cabin where she knows the bed is.Now, I'm sure my learned friend will point you to the fact that the only drugslocated in [A]'s system were cannabis and methamphetamine. To be clear theCrown don't allege that Mr Horn spiked her drink with methamphetamine orcannabis. What the Crown allege is that he used another drug, that he usedsome of those pain killers that he had access to, strong pain killers that mightmake you feel sleepy.Now importantly the toxicologist, Helen [Poulsen], who you rememberappeared via CCTV or AVL on the TV, she said that the toxicology test wouldhave involved testing for sedatives, pain killers, several hundred drugs I thinkshe said and she said that most medicinal drugs she wouldn't expect them tobe detected 24 hours after they were ingested and you'll recall that the urineand blood samples were taken 40 hours after [A] was raped. 40 hours.So of course, those blood or urine samples weren't going to show up anymedicinal drugs or it was very unlikely that they were going to show up anyand interestingly the toxicology results didn't even pick up on the [Pamol] Ithink as [A] called it that she'd taken at Women's Refuge earlier that samenight.So, I suggest you can't really place any weight on any suggestion by my friendthat if she'd been drugged by Mr Horn you might have seen it in her blood orurine because the fact is that those samples were taken too late after thefact to show any trace of it. So, coming back to [A]'s version of events thenext thing she remembers is waking up naked next to Mr Horn, who's alsonaked and cuddling her. She can feel his genitals sticking into her back. Shefeels sticky and sore between her legs. She could smell semen.So if you believe [A], then Mr Horn after she's gone down to that cabin,Mr Horn's undressed her while she's asleep in that boat. Not an impossibletask for a physically much bigger male than a smaller female who onlyweighed 46 kilograms at the time. You know, something you might expecther to wake up from had this been a natural sleep which might assist you inreaching that earlier decision whether or not Mr Horn did drug her in any way.[29] It is quite apparent from these extracts that, from the earliest stages of the trial,the prosecutor linked the question of consent to whether or not A had been drugged orstupefied by Mr Horn to the point that she lost consciousness and was thus incapableof giving consent. His invitation in closing that the jury could be "sure" A was affectedby drugs placed in the orange juice makes this position clear.[30] In our view, this was an unnecessarily high standard for the Crown to adopt foritself. The Crown did not need to pitch its case as high or as narrowly as that. In thecontext of this case, all the jury needed to be sure of was that A did not consent tosexual intercourse with Mr Horn because, on A's account, she was not conscious at thetime. The jury did not need to be sure of the reasons she was unable to give consent;only that she did not consent. As the Judge observed in his oral decision on the s 147application, there were alternatives to explain A's tiredness and nausea other thanbeing drugged by Mr Horn. Plainly, the jury by its verdict rejected Mr Horn's evidenceand believed the complainant that she did not consent and Mr Horn did not have areasonable belief that she did consent.[31] Relevant to Mr Horn's account of consensual sexual activity initiated by A,was A's evidence that, even if she had the capacity to, she would not have consented.She gave her reasons which the prosecutor put to the jury in his closing address. Theseincluded that she still had feelings for B despite the events that led her to complain ofassault to the police, that a sexual liaison with anyone else was the last thing on hermind at the time, and that she regarded Mr Horn as a trusted friend rather than apotential sexual partner. She described herself as "horrified at losing [B] ... that[she] wouldn't sleep with his friend". She said that she did not find Mr Horn at allattractive and, relatedly, that there was a significant age difference between them (shewas in her mid-twenties and he was a man in his fifties). There is also the evidence ofMr Horn's repeated apologies as they drove to the Wellsford medical centre and thecomments he apparently made to A about needing to get over B, as they drove downto Sandspit. Plainly, the jury disbelieved Mr Horn and his account. As the Crownhighlighted in its closing submissions, there was an evidential basis for that disbelief.[32] Against that background, we turn to examine whether the Crown should havebeen permitted to continue to advance its case on the basis it did following thedismissal of charge one. The answer to that question will inform the other groundsadvanced on the conviction appeal.[33] We do not accept that a consequence of the Judge's decision to dismiss chargeone was that all the evidence supporting that charge became inadmissible in tendingto prove the rape charge.[34] Evidence in a proceeding is admissible if it is relevant and is not otherwiseinadmissible or excluded by statute.6 Evidence is relevant in a proceeding if it has atendency to prove or disprove anything that is of consequence to the determination ofthe proceeding.7 The threshold set by s 7 of the Evidence Act 2006 is low. As theSupreme Court observed in Wi v R, in reference to s 7(3):8[8] This is not an exacting test: nor should it be. Any definition ofrelevance has to accommodate all kinds of evidence and in particularcircumstantial evidence, individual pieces of which are often of slender, andsometimes very slender, weight in themselves. The question is whether theevidence has some, that is any, probative tendency, not whether it hassufficient probative tendency. Evidence either has the necessary tendency orit does not.[35] A's evidence that after consuming the orange juice she felt drowsy, nauseatedand fell into such a deep sleep that she was woken neither by Mr Horn removing herclothes or having sexual intercourse with her, is plainly relevant to the question ofwhether she consented. It is also relevant to reasonable belief in consent, particularlyif the jury accepted that Mr Horn was responsible for A's state.[36] Of course, s 7 must be read in light of s 8 of the Evidence Act. Section 8(1)(a)requires the judge to exclude evidence if its probative value is outweighed by the riskthat the evidence will have an unfairly prejudicial effect on the proceeding. However,we cannot see how that balancing exercise could operate to exclude this evidence. Indismissing the disabling charge, the Judge was not satisfied that a reasonable jury,properly directed, could convict. That was because, in his view, there were otherreasonably possible causes, consistent with Mr Horn's innocence on the disablingcharge, to explain A being rendered unconscious. In proving the rape charge, in6 Evidence Act 2006, s 7(1).7 Section 7(3).8 Wi v R [2009] NZSC 121, [2010] 2 NZLR 11.addition to the other essential elements, the jury needed to be satisfied that A did notgive her consent because, on the Crown's case, she was unconscious. Unlike the proofrequired on the disabling charge (that is unanimity Mr Horn knowingly administereda sedative to A), the jury did not need to be unanimous on the mechanism that led herto be in that state; only that they were satisfied beyond a reasonable doubt that she didnot give her consent for whatever reason.[37] This is a not dissimilar situation to that which this Court encountered inR v Win.9 As in the present case, the appellant in that case was originally charged withdisabling and sexual violation by rape.10 The appellant's challenge was that the jury'sverdict of guilty on the rape charge was unreasonable and unsupported by theevidence.[38] The Crown case was that the appellant administered a stupefying substancecontained in drinks of vodka and orange. The complainant described having nomemory of any events after consuming the second glass until she woke up the nextmorning naked in the appellant's bed with all the indicia that sexual intercourse hadtaken place, including the presence of semen. She had no memory of the interveningevents. Analysis of the complainant's urine revealed the presence of the prescribedmedicine, Capadex, a painkiller related to opiates with narcotic effects. Thecomplainant said she had not knowingly taken such a substance. However, theappellant had been prescribed Capadex by his general practitioner. The Crown casewas that he surreptitiously administered the drug to the complainant so that, whencombined with a substantial amount of alcohol, she lost consciousness and was thusincapable of consenting to the sexual intercourse that followed.[39] At the conclusion of the Crown case, the trial Judge, Simon France J,discharged the appellant on the stupefying charge.11 He held that, although theCrown's expert evidence was that the narcotic was in the complainant's body duringthe 18-hour period between the time she first went to the appellant's room and whenthe sample was taken the next afternoon, it was clinically possible for it to have been9 R v Win [2007] NZCA 370.10 Crimes Act, ss 197, 128(1)(a) and 128B.11 R v Win, above n 9, at [8]. Crimes Act, s 347 (now repealed).administered up to 24 hours before the sample was taken, that is six hours before thecomplainant first went to the appellant's room.12 The Judge determined it was opento the jury to conclude that the appellant administered the drug to herself. However,the jury also had to be satisfied that the drug was a substantial and operating cause ofthe unconsciousness of the complainant. On the evidence, this meant that thecomplainant would have had to consume more than two capsules of Capadex. TheJudge determined that normally the inference that the administration of the drug wasa substantial and operating contributor to the unconsciousness is drawn either from thenature of the drug or its known effects on the victim on the particular occasion. Heconsidered that, because there was an equally credible alternative explanation for thelack of memory and subsequent illness, that is from excessive alcohol intake as foundin her system, the jury could not be satisfied beyond reasonable doubt that it was thedrug rather than the alcohol that contributed to her state of unconsciousness in asubstantial way.[40] On appeal, this Court held that proof of the sexual violation charge rested onthe jury's assessment of the complainant's credibility.13 Necessarily, the verdict meantthat the jury believed her. The Court found there was ample evidential support for thatoutcome, which included her dislike of the appellant such that she would never haveconsented to sexual intercourse, the high levels of alcohol in her body far greater thanany quantity she had voluntarily consumed, the presence of a prescription drug withnarcotic properties in her urine, the appellant having such a prescription drugavailable, sexual intercourse having occurred, and the appellant's explanation in hispolice interview, some parts of which the jury may have regarded as incriminatory andother parts exculpatory.14[41] The Court also referred to the Judge's comment in dismissing the disablingcharge that there was ample evidence that may have provided an explanation for thecomplainant's stupor.1512 R v Win, above n 15, at [9].13 At [12].14 At [12]–[13].15 At [13].[42] While we accept that the present appeal is grounded on a different basis, thereare obvious parallels between the cases which assist. In Win, neither the trial Judgenor this Court suggested anywhere that the evidence supporting the disabling chargewhich had been dismissed could not be used by the jury to support the proof of a sexualviolation charge. Indeed, the Court specifically included aspects of that evidence inrejecting the claim that the verdict was unreasonable.16 For the reasons discussedabove, a similar approach applies in the present case.[43] That being the case, we cannot accept the submission that, having dismissedthe disabling charge, the Judge should have declared a mistrial and discharged the jury.[44] We also cannot accept that the Judge should have stopped Crown counsel fromcross-examining Mr Horn on whether he had drugged A, or that he should haveintervened to prevent the Crown from advancing its case on the question of consenton the basis that A had been drugged or stupefied. In any event, it was Mr Hornhimself who introduced the topic of Norflex in his evidence-in-chief. Crown counselwas entitled to explore his explanation and that evidence in cross-examination.[45] Furthermore, although perhaps a somewhat surprising trial strategy, there wasnothing impermissible in the Crown putting to the jury the proposition that they couldbe sure that Mr Horn had spiked A's orange juice with a substance, probably Norflex,which caused her to lose consciousness. In doing so, it seems to us that the Crownunnecessarily narrowed the range of options that might also have explained A's stupor.That factor tended to operate more to advantage rather than prejudice the defence inour view.[46] We also regard it as noteworthy that neither the defence nor the Judgeconsidered it necessary to intervene to stop Crown counsel cross-examining Mr Hornon the orange juice and what it may have contained. Similarly, it seems the defencedid not register any complaints about the Crown's closing submissions, and neitherdid the Judge either to counsel or to the jury in his summing up.16 At [15].[47] Finally, this brings us to the appellant's criticism that the Judge gaveinsufficient direction and guidance to the jury as to how they should deal with theevidence of stupefaction or the use of drugs by Mr Horn. Mr Leabourn submitted thata direction should have been given at the time the Judge advised the jury he haddismissed charge one and that he should have given tailored directions in his summingup.[48] First, we do not agree that the Judge was required to give a detailed or tailoreddirection at the time he advised the jury that charge one had been dismissed. Thatsubmission begs the question as to what he should have said. It seems to us there werethree options available to the Judge at that point: say nothing or tell the jury he woulddiscuss the effect of the evidence in his summing up or give a full direction that itwould still be open to the jury to consider the evidence supporting the disabling chargein relation to the rape charge in the context of consent. In the circumstances, giventhe stage the trial was at when the charge was dismissed, a full direction before all theevidence had been received would have been premature. The Judge elected to saynothing. That was an option available to him and the fact he went no further does notsatisfy us that justice miscarried as a result.[49] The central question is whether the Judge went far enough in his summing upin directing how the evidence might be used by the jury in proof of the rape charge. Itis to that question we next turn.[50] In Win this Court referred to how the trial Judge had "carefully and clearlyexamined the competing arguments and the pharmacological evidence", noting thatthe summing up was tailored to the evidence and the facts.17[51] In the present case the Judge took the jury to the question trail and gave thestandard directions on what constitutes consent. He made specific reference to lackof protest or physical resistance not of itself amounting to consent. He noted that aperson who is asleep or unconscious has not consented to sexual activity. He notedthat a person does not consent to sexual activity if the activity occurs while she, herself,17 R v Win, above n 15, at [14].is so affected by alcohol or some drug that she cannot consent or refuse to consent tothe activity.[52] Against that background the Judge developed the two opposing narratives ofwhat was said to have occurred, noting that there were only two present and that therespective credibilities of A and Mr Horn were at issue. He gave a tripartite directionbefore summarising the respective submissions of counsel on the credibility of theprincipal players.[53] The Judge then tied the question of Mr Horn's intent and state of mind to thedrawing of inferences from proved facts. He gave the standard direction that theinferences must not be the product of speculation or guesswork. The Judge alsodirected that if two conclusions are equally open on the same evidence, the jury shouldchoose that which is most favourable to the defendant. That direction does not reflectthis Court's statements about such a direction,18 but was favourable to Mr Horn.[54] We agree that it is regrettable the Judge did not give more tailored directionsin respect of the proper use the jury could put evidence that A had been drugged, ifthey accepted that to be the case. For example, a direction that linked the Crown'ssubmission that A was drugged to the standard direction on how consent cannot begiven by someone who is asleep or unconscious would have been helpful. Such adirection could have been quite economical with the Judge directing it was for the juryto decide whether or not they were satisfied that A was unconscious at the time sexualintercourse took place and was thus unable to give consent. Reference could havebeen made to the Crown's submission that the evidence supported the inference A wasdrugged, with the reservation the jury must not speculate. The Judge could havedirected the jury that as a matter of law they needed to be sure that A did not consentbecause she was unconscious at the relevant time and, while the jury needed to beunanimous on that issue, they did not need to be unanimous on the cause of A'sunconsciousness.1918 R v Puttick (1985) 1 CRNZ 644 (CA) at 647; R v Hart [1986] 2 NZLR 408 (CA) at 413; Hutchinsv R [2016] NZCA 173 at [31]; Edwardson v R [2017] NZCA 618 at [77]; Hines v R [2018] NZCA242 at [33]; and Mehrok v R [2019] NZCA 663 at [54].19 See the guidance on jury unanimity in Ashin v R [2014] NZSC 1534, [2015] 1 NZLR 493 at [173]–[189]; Nicholson v R [2015] NZCA 266 at [55]; and Merritt v R [2018] NZCA 610 at [65]–[67].[55] However, we do not think that, because the Judge did not tailor his remarks tothe evidence and the law in this way, means that justice miscarried here. Between thecompeting addresses of counsel and the Judge's summing up, the jury would havebeen left in no doubt as to the issues they needed to decide and the evidence properlyavailable to prove the essential elements.20 The central issue was the credibility of A.Plainly, by their verdict, they believed A and disbelieved Mr Horn. There was evidenceavailable to support each conclusion. This led the jury, with the aid of a standardquestion trail, to their verdict. There was no miscarriage of justice.[56] It follows that the appeal against conviction is dismissed.Sentence appealDecision under appeal[57] The Judge adopted a starting point of eight years' imprisonment.21 This wascalculated by reference to three aggravating factors that the Judge found present. Thefirst was the harm caused to A and the consequential effects on her health and mentalwellbeing.22 The second was the abuse of trust implicit in the offending.23 Mr Hornhad exploited A's vulnerability as a refugee of domestic abuse. Thirdly, A wasvulnerable; she was asleep and isolated on Mr Horn's boat moored some distance fromthe shore.24 She was unable to remove herself without Mr Horn's assistance.[58] In mitigation, the Judge noted that Mr Horn was a person of previously goodcharacter with no previous convictions despite his age.25 He also referred to Mr Horn'sphysical ailments including chronic pain and some issues with depression.26 The s 27report referred to Mr Horn being bullied at school and having a difficult history offamily relationships as well as personal matters the Judge took into account but did20 This was not a case like Crump v R [2020] NZCA 287, [2022] 2 NZLR 454 at [30] because in thepresent case it was obvious how the respective cases fitted in with the elements of the charge.21 R v Horn, above n 1, at [10].22 At [6].23 At [7].24 At [7].25 At [7].26 At [8].not refer to explicitly.27 He accepted there was some causal connection betweenMr Horn's background and the offending, although not to a high level.28[59] From the starting point, the Judge allowed a six per cent discount for previousgood character, a 10 per cent discount for his ill health and, in respect of the s 27 report,a 10 per cent discount, producing a total discount of 26 per cent and bringing the finalsentence to one of five years and 11 months' imprisonment.29The grounds[60] Mr Leabourn submitted that the sentence of imprisonment of five years and11 months was manifestly excessive. He accepted that in the light of R v AM thecommonly accepted starting point for a charge of rape is eight years which the Judgeappears to have taken.30[61] However, his complaint was that too much weight was placed on the impactthe offending had on the complainant and other aggravating factors. In relation to theeffect on the complainant, Mr Leabourn submitted that the Judge determined that thecomplainant had turned to drugs and alcohol as a consequence of the offendingwhereas it appeared she had been a user of both prior to the events. He alsocomplained that the Judge placed significant weight on the submission that it had takena long time for A to get her life back on track. She needed to undertake stresscounselling. However, Mr Leabourn submitted that the evidence showed that A's lifehad been chaotic and disorganised before the events in question and it was unfair toplace the blame for her predicament at the feet of the appellant.[62] Mr Leabourn also complained that the Judge failed to place sufficient weighton Mr Horn's lack of previous convictions and other circumstances, allowing only asix per cent discount for his lack of previous convictions and otherwise good characterdespite him being 55 years old.27 At [9].28 At [9].29 At [10].30 R v AM [2010] NZCA 114, [2010] 2 NZLR 114.[63] Another complaint is that the Judge allowed only a 10 per cent discount forMr Horn's past health, his severe and chronic neck pain and associated depression,meaning that a term of imprisonment would be harder for him than others in betterhealth.[64] Finally, Mr Leabourn submitted that those factors, together with the favourableobservations in the s 27 report, meant that a greater than 26 per cent discount wasappropriate overall.Appeal jurisdiction[65] This Court must allow the appeal if satisfied that, for any reason, there was anerror in the sentence imposed and a different sentence should be imposed.31 The focusis on the end sentence rather than the process by which it was reached.32 The Courtwill not interfere where the sentence is within the range that can properly be justifiedby accepted sentencing principles.33 To this end, the concept of a "manifestlyexcessive" sentence is well-engrained and there is no reason not to use it.34Discussion[66] No issue can be taken with the starting point of eight years' imprisonmentwhich was well within the available range. Mr Leabourn accepted it was a usualstarting point for a charge of rape. This detracts from his submission that the Judgeplaced too much weight on the impact of the offending on A. In any event, it is notuncommon for victims of sexual offending to have already had difficult lives prior tothe offending. A's background does not make the impact of rape on her any lessdamaging.[67] The question is whether the combination of discounts for Mr Horn's personalcircumstances totalling 26 per cent was inadequate leading to a manifestly excessivesentence.31 Criminal Procedure Act, s 250(2).32 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].33 At [36].34 At [35].[68] We cannot agree that the Judge placed insufficient weight or gave insufficientcredit to Mr Horn's personal mitigating factors for the reasons that follow.[69] While good character is obviously a mitigating factor, in Mr Horn's case thisis tempered by evidence of his lack of remorse.35 At no point has Mr Horn acceptedhis offending. The PAC report illustrates this. In respect of A, Mr Horn questionedhow one woman could be raped eight times. The six per cent discount, in thesecircumstances, was within range.[70] The 10 per cent discount for Mr Horn's poor health was in our view generous.His claim that he had broken his back and neck was self-reported although we doaccept his evidence at trial that he had been prescribed a strong pain killer in the formof Norflex. We also accept, of course, that imprisonment can present a greater burdenfor those who suffer from ill health. In Mr Horn's case, however, there is no evidencethat these issues cannot be properly and effectively managed in prison.[71] Nor do we consider the 10 per cent discount for the factors outlined in the s 27report inadequate. We agree with the Judge that the causal connection is notparticularly strong and, in the circumstances, that discount might also be regarded asgenerous.[72] It follows that we are not satisfied that the sentence was manifestly excessiveand this aspect of the appeal must also fail.Result[73] The appeal is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent35 Taylor v R [2017] NZCA 574 at [24]; and R v Findlay [2007] NZCA 553 at [101].