Nixon v The Queen - [2017] NZSC 56

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE SUPREME COURT OF NEW ZEALAND

SC 15/2017
[2017] NZSC 56

BETWEEN	MATEO MELINA NIXON Applicant
AND	THE QUEEN Respondent

Court:	William Young, OʼRegan and Ellen France JJ
Counsel:	S J Gray for Applicant R K Thomson for Respondent
Judgment:	2 May 2017

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

The applicant pleaded guilty to a number of charges of sexual offending in relation to six complainants. He was sentenced to a term of imprisonment of 14 years with a minimum period of imprisonment (MPI) of eight years.[1] He appealed unsuccessfully to the Court of Appeal against conviction but his sentence was reduced on appeal to a term of 13 years with an MPI of six years and six months.[2] The applicant seeks leave to appeal to this Court against conviction and sentence.
[1]R v Nixon [2015] NZDC 16756 (Judge Phillips).
[2]Nixon v R [2016] NZCA 589 (Randerson, Cooper and Asher JJ) [Nixon (CA)].
The applicant suffers from Autism Spectrum Disorder (ASD). He wishes to argue on his conviction appeal he had a tenable defence based on a reasonable belief in consent which his trial counsel failed to advance.
The applicant also wishes to argue insufficient allowance has been given in sentence for the hardships he faces in prison as a result of his disability.

Assessment

As the respondent accepts, the relevance of a defendant’s subjective mental state to the mens rea element of sexual violation in issue could comprise a question of law of general or public importance.[3] The Court of Appeal concluded there was no evidence that the applicant’s assessment of consent by the complainants was affected by his disability. On that basis, no more general question arises. There is nothing raised by the applicant to call in doubt the Court of Appeal’s conclusion. Nor is there a risk of a substantial miscarriage of justice.[4] We make three points.
[3]Supreme Court Act 2003, s 13(2)(a) which still applies to this application by virtue of the transitional provisions in the Senior Courts Act 2016. The criteria in s 13 are now set out in s 74 of the Senior Courts Act.
[4]Supreme Court Act, s 13(2)(b).
First, the applicant provided no evidence that his assessment of the complainants’ viewpoint was affected by his disability. To the contrary, as the Court of Appeal observed, in the course of his interview with police the applicant’s approach was that the complainants “positively and actively consented”.[5] For example, he rejected the accounts of a number of the complainants that they were asleep at the time. The applicant would seek on appeal to adduce an affidavit. But the affidavit simply asserts a belief the complainants were consenting and so takes the matter no further.
[5]Nixon (CA), above n 2, at [25] and [32].
Second, the summary of facts to which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nixon v The Queen

Details

AGLC: Nixon v The Queen [2017] NZSC 56
Case: [2017] NZSC 56
Decision Date: 2 May 2017

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an appeal by Mateo Melina Nixon against both his conviction and sentence for sexual offending. Nixon, who has Autism Spectrum Disorder, argued that his trial counsel failed to advance a tenable defence based on a reasonable belief in consent, and that insufficient allowance was made in his sentence for the hardships he faces in prison due to his disability. The Court of Appeal had previously reduced Nixon's sentence but upheld his conviction. The Supreme Court was asked to determine whether the appeal had any merit.

The court first considered the issue of whether Nixon's Autism Spectrum Disorder affected his assessment of consent, which could be a question of law of general or public importance. The Court of Appeal had concluded that there was no evidence that Nixon's disability affected his assessment of consent, a conclusion not challenged by Nixon. The court found that Nixon had provided no evidence to suggest his disability affected his understanding of consent, and that the expert evidence did not support the claim that his disability played a role in his understanding of the complainants' consent.

The Supreme Court then considered the sentence appeal, finding that the discount given for Nixon's remorse, rehabilitation, and the effects of his disability in prison did not present a question of general or public importance. The Court of Appeal had already increased this discount, which did not pose a substantial risk of a miscarriage of justice.

The Supreme Court dismissed Nixon's application for leave to appeal against his conviction and sentence.

Orders