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Court of Criminal Appeal 14 March 2025

Lawavou v R

[2025] NSWCCA 35

Sexual offencesAssault & violence
CRIME APPEAL AGAINST SENTENCE CHILD SEXUAL ASSAULTS EVIDENCE ADMITTED APPEAL ALLOWED APPLICANT RESENTENCED

Citation: Lawavou v R [2025] NSWCCA 35
Court: Court of Criminal Appeal, New South Wales
Date: 14 March 2025
Judges: Garling J, Cavanagh J, Yehia J (Yehia J delivering the principal judgment, Garling and Cavanagh JJ agreeing)

Background

The applicant pleaded guilty in the District Court at Newcastle to a total of 14 offences: eleven sexual offences against his stepdaughter, one assault offence and one intimidation offence against her, one intentional choking offence, and one assault offence against his partner. The offences were serious, and the sentencing judge imposed an aggregate sentence of 18 years' imprisonment with a non-parole period of 13 years and 6 months.

On appeal, the applicant sought to place before the Court of Criminal Appeal evidence that had not been before the sentencing judge. That evidence was that, prior to his return to Australia, the applicant had been imprisoned in Fiji following a conviction for assaulting a police officer and had been sexually assaulted by another inmate on multiple occasions during that imprisonment. He also sought to rely on expert psychiatric evidence about the psychological impact of those assaults.

The applicant advanced two grounds of appeal: that the original sentence was manifestly excessive, and that a miscarriage of justice resulted from the absence of this additional evidence at the sentencing proceedings.

  • Whether additional evidence of sexual assaults suffered by the applicant in a Fijian prison should be admitted on appeal, and whether that evidence was properly characterised as "fresh" or "new" evidence.
  • Whether the absence of that evidence from the original sentencing proceedings resulted in a miscarriage of justice.
  • Whether, if ground 2 succeeded, it was necessary also to determine whether the original sentence was manifestly excessive (ground 1).

Decision

Admission of additional evidence (Ground 2)

The Court accepted, on the balance of probabilities, that the applicant had served approximately 10 months of a 12-month Fijian prison sentence and had been sexually assaulted by another inmate in the manner described in his affidavit. The psychiatric evidence of the impact of those assaults was also admitted.

Yehia J confirmed the applicable test: when determining whether to admit additional evidence on a sentence appeal, the court asks whether a miscarriage of justice has occurred by depriving the applicant of the opportunity to have material considered that could have a real bearing on the sentence. The question is whether the material had the capacity or potential to materially affect the sentence, not whether the court can be certain the material would have made a difference.

The Court found the evidence was "fresh" because it was not discoverable through the exercise of reasonable diligence at the time of the original sentencing. Even if it were characterised as "new" evidence (that is, evidence that existed but was available and not tendered), it still had the capacity to bear materially on the exercise of the sentencing discretion. The absence of this evidence had impaired the sentencing judge's capacity to assess the applicant's moral culpability, his suitability as a vehicle for general deterrence, his prospects of rehabilitation, and whether special circumstances warranted a different ratio between head sentence and non-parole period. There was a material prospect that, had the evidence been before the sentencing court, a lesser sentence would have been imposed. Ground 2 was upheld and a miscarriage of justice established.

Manifest excess (Ground 1)

Having upheld ground 2 and proceeding to resentence, the Court found it unnecessary to determine whether the original sentence was manifestly excessive.

Resentencing

The Court resentenced the applicant to an aggregate term of 15 years' imprisonment commencing 25 December 2021, with a non-parole period of 9 years and 6 months. This represents a reduction of 3 years in the head sentence and 4 years in the non-parole period compared with the original sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Original sentence quashed.
  • Applicant resentenced to an aggregate term of 15 years' imprisonment commencing 25 December 2021 and expiring 24 December 2036, with a non-parole period of 9 years and 6 months expiring 24 June 2031.
  • First eligible for release to parole on 24 June 2031.

Key Takeaways

  • The test for admitting additional evidence on a sentence appeal is whether its absence created a miscarriage of justice by depriving the applicant of the opportunity to have material considered that could have had a real bearing on the sentence. The court need not be satisfied the material would definitively have changed the outcome, only that it had the capacity or potential to do so.
  • Whether additional evidence is categorised as "fresh" (not discoverable by reasonable diligence) or "new" (available but not tendered) affects the analysis but may not be determinative. Even "new" evidence can be admitted if it had the capacity to materially affect the sentencing discretion.
  • Subjective evidence of serious trauma suffered by an offender, including sexual assault, is relevant at sentencing to multiple considerations: moral culpability, suitability for general deterrence, prospects of rehabilitation, and special circumstances.
  • Where a ground relating to miscarriage of justice through absence of evidence succeeds and the appellate court proceeds to resentence, it is not necessary to also determine a ground of manifest excess.
  • In dismissing ground 1 as unnecessary, the Court applied the principle from C v R [2022] NSWCCA 285 that resentencing following a successful second ground renders determination of a manifest excess ground redundant.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), ss 37(1A), 61, 66C(1), 66DB(a)
  • Crimes (Personal and Domestic Violence) Act 2007 (NSW), s 13(1)
  • Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 32(1)
  • Criminal Appeal Act 1912 (NSW), s 5(1)(c)
  • Sentencing and Penalties Act 2009 (Fiji), s 18(4)

Cases