A sentencing judge's finding that there is a reasonable possibility of an honest belief in consent is not inconsistent with a finding beyond reasonable doubt of recklessness as to consent under s 61HA(3)(b) of the Crimes Act 1900 (NSW). The three states of mind in s 61HA(3) are not discrete and independent categories but exist on a spectrum. A diagnosis of autism spectrum disorder does not necessarily substantially reduce moral culpability for sexual offences; the weight to be given to such a diagnosis depends on the evidence of its causal link to the offending, and the assessment of that weight is an evaluative judgment for the sentencing judge.
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