Citation: Moss v R [2025] NSWCCA 37
Court: Court of Criminal Appeal
Date: 14 March 2025
Judge(s): Kirk JA at [1]; Davies J at [16]; Rigg J at [17]
Background
The applicant, a transgender woman, pleaded guilty late to aggravated kidnapping under s 86(2)(a) of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of 20 years imprisonment. The sentencing judge in the District Court imposed a term of 4 years and 6 months with a non-parole period of 2 years and 3 months.
In the sentencing judgment, the judge quoted from the Victorian decision DPP v Lester [2016] VCC 1445, which contained factual findings about a transgender offender in that case. The judge then noted that equivalent findings were not made out on the evidence before him regarding the applicant.
The applicant sought leave to appeal, challenging the sentencing judge's reasoning on three grounds. All three grounds focused on that passage of the sentencing judgment.
Legal Issues
- Whether the sentencing judge erred in principle by treating the Lester passage as setting out criteria that had to be satisfied before the applicant's transgender status could be considered in sentencing
- Whether the sentencing judge erred in finding that the applicant had not established a difficult and dysfunctional childhood and adolescence
- Whether the sentencing judge erred in finding that the applicant had not established that transgender difficulties wreaked havoc on her life
Decision
Ground 1 (error of principle): The Court of Criminal Appeal found no error of principle. Reading the impugned passage in context, the sentencing judge was not articulating legal criteria that had to be met before the applicant's transgender status could be considered (at [6]). In fact, the judge had already identified the applicant's transgender status as a significant sentencing factor, addressed the additional hardship of custody in a male facility, accepted that the transitioning process had destabilised her life, and took her transgender status into account when finding special circumstances for the non-parole period (at [7]-[8]).
Grounds 2 and 3 (factual findings about childhood and life difficulties): The Court held that no such findings had been sought in the court below, and it is a well-established principle that error cannot ordinarily be established on appeal by pointing to findings a judge failed to make on a point that was not raised (at [9]). While there are exceptions where failure to raise a point amounts to a miscarriage of justice or denial of procedural fairness, neither exception applied here (at [9], [15]).
The Court also noted that the factual basis for the findings now sought was not compelling. The applicant's own affidavit described a substantially stable family life before transitioning, and the psychologist's report itself recorded that the applicant described her immediate family as loving and close knit and denied neglect or abuse at home (at [10], [13]). Even accepting the more difficult matters recorded in the psychologist's report, those facts did not compel characterisations as severe as a difficult and dysfunctional early life or havoc wreaked across her life (at [13]).
The Court further observed that emphasising a stable pre-transition life had been a rational forensic choice by the applicant's counsel below. That approach supported both a contextualisation of the offending and the submission for an intensive correction order, and it achieved some success with the sentencing judge (at [14]).
Orders Made
- Leave to appeal refused.
Key Takeaways
- A sentencing appeal cannot succeed on the basis that a judge failed to make factual findings on a point that was never raised by counsel in the court below, absent a miscarriage of justice or denial of procedural fairness (at [9]).
- Quoting factual findings from another case in a sentencing judgment does not, without more, establish that those findings were being treated as legal criteria required to be met before a relevant personal characteristic could be considered (at [6]).
- The Court of Criminal Appeal confirmed that the sentencing judge here gave genuine and substantial weight to the applicant's transgender status across multiple aspects of the sentence, including hardship in custody, destabilisation from transitioning, and special circumstances (at [7]).
- Gender dysphoria presents real challenges, but those challenges do not of themselves require specific factual characterisations such as a difficult and dysfunctional early life. Whether such characterisations are appropriate depends on the evidence in each case (at [11]).
- A deliberate forensic choice not to press a particular submission below is a relevant consideration when an appellate court evaluates whether the omission amounts to a miscarriage of justice (at [9], [14]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) , s 86(2)(a)
Cases
- DPP v Lester [2016] VCC 1445
- Shortland v R [2024] NSWCCA 174
- Tsiakas v R [2015] NSWCCA 187
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460