NIXON v R [2016] NZCA 589

NIXON V R [2016] NZCA 589 [9 December 2016]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA530/2015[2016] NZCA 589BETWEEN MATEO MELINA NIXONAppellantAND THE QUEENRespondentHearing: 1 November 2016Court: Randerson, Cooper and Asher JJCounsel: N P Chisnall and S Gray for AppellantA Markham for RespondentJudgment: 9 December 2016 at 11.00 amJUDGMENT OF THE COURTA 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)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 theoffending 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 to1 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 threeoccasions 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 appealApproach where plea of guilty entered[7] The approach to conviction appeals where there have been pleas of guiltywas 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 advice3 Richmond v R [2016] NZCA 41 at [17]–[18].4 R v Merrilees [2009] NZCA 59 at [34]. See also Lyttelton v R [2014] NZCA 638 at [52]; andPenniket v R [2016] NZCA 154 at [7].5 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:6The existence of a defence at the time of the guilty plea, even a possiblyviable defence, is not alone enough to allow a change of plea. There may bedefences that could be run, but which are put to one side because they areunlikely to succeed, or carry other disadvantages. In the absence of materialcounsel error, such decisions cannot be revisited on appeal save in rarecircumstances. The sole fact that a possible defence was known to exist atthe time the appellant pleaded guilty does not on its own show a miscarriageof 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 thatshe 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'sfunctioning 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 he6 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, whichincluded 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. Dr Baker had recently assessed Mr Nixon as definitely having ASD. Ultimately Dr Baker provided a report prior to the sentencing hearing, giving Mr Nixon's history and her views on his ASD and theeffects 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 tolearn 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 ofalcohol on his own or the other's judgment at the time, or to predict how theother person might view things later.[19] This report provided strong confirmation of Mr Nixon's ASD condition andthe difficulties he had as a consequence of this condition through his life. TheCrown 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 inconsent. He anticipates a Crown submission that there were no social signals (subtle or otherwise) for Mr Nixon to misconstrue from the sleeping or heavily intoxicatedcomplainants. In response, he says "that concrete viewpoint is met by Dr Duff'sevidence, which provides a contrasting and compelling lens through which to assess Mr Nixon's behaviour". Dr Duff's overall opinion was that:61. 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.[21] Dr Duff addressed Mr Nixon's practice of initiating sexual intercourse withAB 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 therule". 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 theoffending 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 toappreciate the difference in the levels of consent or competency of others comparedto 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 anarguable 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 positionwhen he considered Dr Baker's report. He said:7I 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 herewhatsoever. I think that Dr Baker, with all due respect to her, overlooksthe 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 wassound.[25] Even Dr Duff's report does not show that Mr Nixon's assertions that hethought 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 thecomplainants positively and actively consented. Dr Duff's general statements7 R v Nixon, above n 1, at [22]–[23].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 bythe Crown for this appeal, to respond to Dr Duff's affidavit. Dr Barry-Walsh did notdisagree 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 settingcould 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.8Evidence of the appellant's intoxication was irrelevant. She argued that Mr Nixon'sASD could not give rise to a defence. She also referred to R v Gutuama where this Court suggested a standard jury direction:9The other way of satisfying the third element would be to satisfy you that noreasonable person in the accused's shoes could have thought that she wasconsenting. That is concerned with the belief of a reasonable person in theaccused's position.[28] Mr Chisnall invited the Court to follow the more recent decision ofR v Can.10 The Court in that case rejected the argument that Clarke wrongly adopted8 R v Clarke [1992] 1 NZLR 147 (CA) at 149.9 R v Gutuama CA275/01, 13 December 2001 at [39].10 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 reasonablebelief 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 considerationsassociated 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 withR v Clarke, which was referring to the general approach and not dealing with specific characteristics other than intoxication. A Gutuama direction does notnecessarily 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 thereasons that we have set out, the evidence fell short of that.11 At [42].12 At [45].13 At [46].14 At [46].15 R v Ross [2008] NZCA 222 at [31].16 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 ofthe 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 complainantsactively 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] The conviction appeal fails.17 Crimes Act 1961, s 128A(3).18 Pakau v R [2011] NZCA 180 at [30].The sentence appealThe 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 percent credit for Mr Nixon's ASD and a small amount of reparation ($5,000 total) thathe 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 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [90].20 At [48].21 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'sASD 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 inE (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 any22 R v Nixon, above n 1, at [23].23 See the quote set out at [23] of this judgment.24 At [25] and [31].25 E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411.26 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].27 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].28 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 WarrenBrookbanks "The Sentencing and Disposition of Mentally Disordered Offenders" in WarrenBrookbanks 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 Callfor 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.29As 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, ofDr Duff's recent report. She described in that report Mr Nixon's unusual attitude tosex, 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. Theycould just be seen as another expression of a strong sense of unacceptable self-entitlement. The Judge's finding that the ASD did not lead tomisunderstandings, quoted earlier,32 seems to us to be correct and Mr Nixon's ASDcannot 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 was29 R v Tuia CA312/02, 27 November 2002 at [15].30 R v Bridger [2003] 1 NZLR 636 (CA) at [42].31 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 144.32 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 thespecific 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 sufferin 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 viewthat 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'sexperience 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 RespondentAPPENDIX AComplainant Charge Date Description from summary of facts Complainant'sstate duringoffending andresponseMr Nixon's response in police interviewPQ 1: sexualviolation byrape01/10/09–31/12/09Asleep in bed with AB and Mr Nixon(N). Awoke to find N having sex withher. Said no, asked him what he wasdoing. N said words to the effect: "it'sok, [AB] doesn't mind". PQ said it wasnot ok and she did mind. It took N quitea while to stop.Asleep. Awoke,said it was not okand she minded.Said they were mutually affectionate and kissingbefore having sex. Afterwards PQ inexplicablybecame upset. Said she had taken drugs and thismay have caused her to lose memory of theconsensual activity.2: sexualviolation byunlawfulsexualconnection01/01/10–31/03/10Visited AB. After drinking fell asleep inbedroom. Awoke to N with his hands onher thighs and a finger inside her vagina.Asleep. Awokeduring incident.Did not recall the exact events. Remembered onone of the occasions at the address in questionPQ came into the room, began taking her clothesoff, said she was attracted to him, got into bed.3: sexualviolation byunlawfulsexualconnection01/01/10–31/03/10Visited AB. After drinking went to bedin a bedroom. Awoke to N with hisfingers inside her vagina. Said no,pushed him away.Asleep. Awoke,said no, pushedhim away.Suggested PQ may have made up the allegationsbecause she did not want to damage herrelationship with AB.MB 4: indecentassault01/01/10–31/12/10Party at N's home. MB was drinking.Went to lie on a bed. N went intobedroom, put his hands down her pants,touched her breasts a few times. MBtold him to stop doing this but he wouldnot. MB eventually got up and left.Intoxicated. ToldN to stop.No recollection of this incident.10: sexualviolation byrape27/10/11–01/11/11MB went to rave with AB. Became veryintoxicated. N walked her to her car. Nasked if he could stay in her car and sheagreed. Woke up to N on top of her andhaving rough sexual intercourse with her.MB veryintoxicated."We became intimate um and yeah had sex the evening was hazy because I was intoxicatedas was she, but from what I do remember washer being very eager for sexual contact".They went back to her car, drank more alcohol,kissed, MB removed her clothes, becameintimate, had sexual intercourse.Complainant Charge Date Description from summary of facts Complainant'sstate duringoffending andresponseMr Nixon's response in police interview11: sexualviolation byrape27/10/11–01/11/11On the second night of the rave, MBbecame very intoxicated after consumingalcohol and illicit drugs. N comfortedMB. She has little memory of events.Awoke to find N with her in her car andher pants and underwear in bushesnearby.Very intoxicated.Little memory ofevents.MB told him she loved him and wanted tocontinue with what they were doing. She was"definitely in a state of coherence to talk to meabout what we were doing and that indicated tome she was in, she was in a, in a clear enoughhead space to consent to what she was doing".Had sex for "quite some time", he stopped whenMB said she didn't want to have any more sex.NB 5: sexualconduct withyoung personunder 166: sexualconduct withyoung personunder 1601/01/11–17/04/11NB was the younger sister of a friend ofAB. Visited sister's flat after school.Had a few beers and a meal, thenconsumed more alcohol and had a joint.Fell down, could not get up. Put on thebed with her sister. N got onto the bed.Reached over, touched NB on her breaston top of her clothing. NB could notmove or cry out due to her level ofintoxication.N put hand underneath her clothing,moved his hand down from around herbelly button to her vagina where hetouched her genitalia.Very intoxicated.Could notmove/cry out.No recollection of touching NB. Possible that ina "semi-conscious state" his hands wanderedand he "inadvertently inappropriately touched[NB] without, without um, yeah withoutconsciously knowing it was her or realising whatI was doing at the time". Could not recall stateof NB's sobriety.Mentioned he had had a discussion with acounsellor and had been told he had a condition"that can lead to being unaware of surroundingsand essentially unconscious but um yeah,basically wandering hands while not beingconsciously aware of it and from, from what Irecall this is one of the occasions I spoke tohim about that".Complainant Charge Date Description from summary of facts Complainant'sstate duringoffending andresponseMr Nixon's response in police interviewMA 7: sexualviolation byunlawfulsexualconnection23/06/11–27/06/11MA went to N's house with herboyfriend. She was very tired, N offeredher his bed, which she shared withanother female. MA awoke to find Nwith his hands down her pants. Hepulled her trousers down and put hisfingers inside her vagina. MA pushed Naway, yelled at him, told him to fuck off,pulled her underwear and pants up. Nleft.Asleep. Awoke,pushed N away,yelled at him, toldhim to fuck off,pulled pants andunderwear up.MA had been flirting with him. "I believe wewent up into my room together um and startedbecoming intimate um, we had sex that eveningum, we were touching each other um and wehad sex".Did not recall MA pushing him away or tellinghim to fuck off. MA was "up" and "awake", shemay have been drinking and said she was tiredbut "wasn't in a terrible wasted state".8: sexualviolation byrape23/06/11–27/06/11Later that night N returned and hadsexual intercourse with MA while shewas asleep.MA awoke. Her vagina felt sore andherpants and underwear were around herankles.Asleep. Had a conversation about it the followingmorning. MA was "totally aware" she had sexwith him and concerned about whether to tellher partner. She told him she had felt "horny".12: indecentassault17/12/11 MA went to AB's birthday party at N'shome. MA and boyfriend travelled up invan, she was very tired after arriving andwent for a sleep. Awoke to N with hishands down her pants and around thefront of her genital area, cupping hervaginal area. She said "what the fuckTeo, not again" and moved his handsaway. Left and went to van.Asleep. Awoke,said "what thefuck Teo, notagain" and movedN's hands away."Yeah, I may have made some advance um itmay, have made some advance, um."Complainant Charge Date Description from summary of facts Complainant'sstate duringoffending andresponseMr Nixon's response in police interviewTR 9: sexualviolation byrape17/08/11–22/08/11TR drinking at N's home. Went andcrashed in a room. Was almost asleep.N entered room, climbed on top of her,pulled her jeans down, raped her,ejaculated.Almost asleep butconscious at timeof offending.Recalled having sexual intercourse with TR onone occasion. They were intimate and "kissingpassionately" . Neither fit to drive a vehicle butengaged in conversation."When we initiated our sexual contact, she was happy with it to continue, that um, that wasthe impression I got from her actions andreactions to my advances. It was reciprocal, um she never told me not to or to stop".In response to question about what led him tobelieve TR consented: "Ah, the events leadingup to it. The fact that we were intimate in thelounge downstairs. Ah the fact that we went andslept in the same bed, or we, we retired to thesame bed together. Ah, the, our intimacy thatcontinued once we were in bed".AB 13: sexualviolation byrape01/07/12–31/08/12AB rang N to tell him their relationshipwas over. N travelled to see AB, andthey then went to N's home. They weredrinking and talking about theirrelationship. N convinced AB to stay thenight.They shared a bed. AB told N therewould be no sex. Awoke to find Nhaving sex with her. He was on top ofher, her tights had been removed and heejaculated inside her.Asleep. Beforeshe went to sleep,told N that therewould be no sex.They went to bed together, ended up having sex,he understood it to be "break up sex". "We wentto the bedroom and then it was all veryfamiliar, you, if you know what I mean by that,um our, our relation, our, yeah, we just had sexas we had previously."Did not recall AB telling him not to have sexwith her while she was asleep, definitelydisputed that this occurred. During therelationship AB did not have any issue with himhaving sexual intercourse with her while sheslept.