Citation: Evatt (a pseudonym) v R [2025] NSWCCA 130
Court: NSW Court of Criminal Appeal
Date: 1 September 2025
Judges: Ward P, Yehia J (principal judgment), Weinstein J
Background
The applicant, referred to by a pseudonym, pleaded guilty in the District Court to a serious series of offences committed on 25 October 2021 against his former wife. The offending occurred while the applicant was subject to an apprehended domestic violence order (ADVO) and included two counts of sexual intercourse without consent, entering a building with intent to intimidate, and contravening the ADVO. A further count of sexual intercourse without consent was taken into account on a Form 1 (meaning it was considered at sentencing without a separate conviction being entered).
The offending was egregious. The applicant located his former partner's secret address, entered her home, and subjected her to prolonged sexual and physical violence while their children slept inside. The day after, he took her to a remote location and threatened to kill her after forcing her to dig her own grave. The sentencing judge assessed the sexual offences as approaching the mid-range of objective seriousness and the intimidation offence as above the mid-range.
The applicant received an aggregate sentence of 12 years' imprisonment with a non-parole period of 8 years and 6 months. He sought leave to appeal against that sentence on two grounds.
Legal Issues
- Whether the sentencing judge erred by failing to properly take into account the applicant's mental health conditions as a factor reducing his moral culpability.
- Whether the aggregate sentence of 12 years was manifestly excessive, having regard to comparable cases.
Decision
Ground 1: Mental health and moral culpability
The applicant argued that the sentencing judge applied the wrong legal test by requiring a "clear causative link" between the applicant's mental health and his offending before any reduction in moral culpability could be recognised. Yehia J accepted that the phrase "clear causative link" set the bar too high as a matter of principle: the correct standard, drawn from Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, is whether the mental health condition materially contributed to the offending. A strict causal nexus is not required.
However, the Court found that the error in framing did not affect the outcome. The evidence did not establish that the applicant's mental health issues materially contributed to the offending. An expert opinion indicated his major depressive disorder was in remission at the relevant time. The sentencing judge had regard to the applicant's background and diagnoses in assessing his subjective circumstances, and given the calculated nature of the offending (including locating a secret address and breaching an ADVO), the Court found that general and specific deterrence remained weighty considerations. No reduction in moral culpability was warranted. Ground 1 was not made out.
Ground 2: Manifest excess
The Court confirmed the well-established principle that manifest excess requires more than showing the sentence is "markedly different" from other cases, or that the appellate court would have sentenced differently. Sentencing is a discretionary exercise and there is no single correct outcome; within a range of acceptability, the sentencing judge's assessment commands respect.
Yehia J reviewed the comparative cases relied on by the applicant and found meaningful differences between them and the present matter, including lower assessments of objective seriousness and stronger subjective circumstances in those other cases. While the sentence imposed was described as "stern," the Court was not persuaded it fell outside the acceptable range. Ground 2 was not made out.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A sentencing court is not required to establish a strict causal nexus between an offender's mental health condition and the offending before considering a reduction in moral culpability; the correct question is whether the condition materially contributed to the offending.
- Even where a mental health condition is found to have materially contributed to offending, a reduction in moral culpability does not automatically follow. The nature of the offending and the importance of deterrence remain relevant considerations.
- In dismissing the appeal on manifest excess, the Court of Criminal Appeal reaffirmed that appellate disagreement with a sentence, without more, is insufficient to establish error. The sentencing judge's discretion operates within a range of acceptability.
- Where expert evidence indicates a diagnosed condition was in remission at the time of sentencing, it is open to the sentencing judge to find that custody will not be more onerous than usual on that basis.
- Offending committed in deliberate breach of an ADVO, in a domestic violence context, tends to amplify the weight given to general and specific deterrence at sentencing.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 114(1)(d)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
Key Cases:
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- ET v R [2024] NSWCCA 131
- JP v R [2024] NSWCCA 96
- Crane v R [2024] NSWCCA 87
- DB v R [2023] NSWCCA 323
- Lane v R [2025] NSWCCA 113
- Harris v R [2021] NSWCCA 322
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Mattiussi v R [2023] NSWCCA 289
- Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312
- Bellchambers v R [2011] NSWCCA 131
- Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286
- Harper v R [2022] NSWCCA 211