Citation: Moss v R [2025] NSWCCA 37
Court: NSW Court of Criminal Appeal
Date: 14 March 2025
Judge(s): Kirk JA (with whom Davies J and Rigg J agreed)
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.
At sentencing, the applicant's counsel drew the sentencing judge's attention to the Victorian County Court decision of DPP v Lester [2016] VCC 1445. That case included remarks by Judge Gaynor about a different offender's difficult childhood, transgender difficulties from a very early age, and an unsupportive community environment. The sentencing judge here indicated those factual findings from Lester were not made out on the evidence before him.
The applicant sought leave to appeal on three grounds, all directed at that portion of the sentencing judge's remarks. She argued the judge had improperly imposed a set of preconditions before considering her transgender status, and had made erroneous factual findings about her childhood and life experiences.
Legal Issues
- Whether the sentencing judge erred by treating the remarks in DPP v Lester as establishing three criteria that had to be satisfied before the applicant's transgender status could be taken into account in sentencing.
- Whether the sentencing judge erred in finding that the evidence did not establish the applicant had a difficult and dysfunctional childhood and adolescence.
- Whether the sentencing judge erred in finding that the evidence did not establish that the applicant had endured transgender difficulties that wreaked havoc in her life.
Decision
Ground 1: No error of principle in how transgender status was approached. The Court of Criminal Appeal found it was plain that the sentencing judge was not setting preconditions for considering the applicant's transgender status. The passage from Lester had been raised by defence counsel, and the remarks in that case were factual observations about a specific offender rather than legal principles. Critically, the sentencing judge had in fact taken the applicant's transgender status into account in several respects, including as a factor making custody more onerous, as a basis for finding special circumstances in the non-parole period, and in accepting that transitioning had destabilised her life. It was therefore untenable to argue that transgender status had been treated as irrelevant unless preconditions were met.
Grounds 2 and 3: Factual findings not sought in the court below. Kirk JA confirmed the well-established principle that a sentencing appeal must identify error in the decision actually made. As a general rule, error cannot be established by asserting that a judge failed to make findings that were never sought. No submissions had been made at first instance seeking findings that the applicant had a difficult and dysfunctional childhood or that her life had been wrecked by transgender difficulties. The Court noted that in some cases, the omission of a point may constitute a miscarriage of justice or denial of procedural fairness, but no such finding was warranted here.
The Court went further to assess the underlying factual position. The applicant's own affidavit evidence had not described childhood difficulties beyond her feelings about gender identity. The psychological report, while recording some concerning historical matters, also described the applicant's immediate family as loving and close-knit, and recorded that the applicant had denied neglect or abuse at home. Even if all matters in the report had been accepted, they did not compel the severe characterisations sought. Moreover, the forensic approach taken below, emphasising a substantially stable pre-transition life, had been a rational choice and had achieved some success before the sentencing judge.
The application was described as entirely devoid of merit, and leave to appeal was refused.
Orders Made
No orders were made in this decision.
Key Takeaways
- A sentencing appeal cannot succeed by pointing to findings a judge failed to make where those findings were never sought at first instance, unless the omission amounts to a miscarriage of justice or a failure of procedural fairness.
- Factual remarks made about a specific offender in a case cited by defence counsel do not constitute legal principles, and a sentencing judge's conclusion that those facts are not made out on different evidence does not involve an error of principle.
- Gender dysphoria is likely to be challenging for any person, but the Court of Criminal Appeal confirmed that this does not automatically or necessarily mean the person had a difficult and dysfunctional early life or that their life has been severely disrupted. Whether such characterisations apply depends on the specific evidence.
- In dismissing the appeal, the Court of Criminal Appeal noted that the sentencing judge had in fact taken the applicant's transgender status into account in multiple ways, including as a factor making custody more onerous and as a basis for adjusting the non-parole period.
- Forensic choices made by counsel at first instance can bear directly on what findings are available on appeal. Where counsel took a deliberate approach to contextualise the offending in a particular way, that choice can constrain the grounds available to challenge the resulting sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 86(2)(a) (aggravated kidnapping)
Cases:
- DPP v Lester [2016] VCC 1445 (Victorian County Court)
- Shortland v R [2024] NSWCCA 174
- Tsiakas v R [2015] NSWCCA 187
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
- House v The King (implied reference to the House v King error of principle standard)