Citation: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 6) [2025] NSWSC 555
Court: Supreme Court of New South Wales
Date: 20 August 2025
Judge(s): McNaughton J
Background
The applicant was convicted by jury on 20 May 2004 of three counts of murder, having killed his mother, father and sister at the family home on 10 July 2001. James J sentenced him to concurrent terms of life imprisonment on 17 September 2004, finding that his culpability was so extreme that only life sentences could meet the community interest in the purposes of sentencing. The Court of Criminal Appeal dismissed his appeals against both conviction and sentence on 27 November 2007.
This was the applicant's sixth application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act). The previous five applications all concerned his convictions and were dismissed. This application, brought by a self-represented applicant, was the first to challenge his sentences.
The application rested on new material asserting that the applicant was sexually assaulted by a priest as a child and has since suffered Post-traumatic Stress Disorder (PTSD). The applicant contended this information was not raised at sentencing or on appeal because he was in denial about his PTSD symptoms. He sought referral of the whole case to the Court of Criminal Appeal as an appeal against sentence under section 79(1)(b) of the CAR Act.
Legal Issues
- Whether the new material regarding childhood sexual abuse and resulting PTSD gave rise to the appearance of a doubt or question as to a mitigating circumstance in the case, satisfying the threshold in section 79(2) of the CAR Act.
- Whether the modest statutory threshold for referral to the Court of Criminal Appeal was met, notwithstanding the limited and potentially inadmissible nature of the supporting evidence.
- Whether the dual role of the applicant's treating psychologist (as both treating clinician and purported independent expert) affected the weight to be given to his report.
Decision
Issue 1: The statutory threshold under section 79(2) of the CAR Act
McNaughton J confirmed that the test under section 79(2) requires only that there "appears" to be a "doubt or question" as to a mitigating circumstance, not that any such doubt or question is established or well-founded (at [29]). The threshold is not a demanding one, and the Court's role at this stage is that of a gatekeeper to be exercised responsibly and sparingly, not a final adjudicator of the merits (at [32]).
Issue 2: The PTSD and childhood sexual abuse material
The supporting evidence came from Mr Richardson, a psychologist who is both the applicant's treating psychologist and an approved counsellor under the NSW Victims Support Scheme. McNaughton J observed that the dual role of treating clinician and independent expert was potentially problematic, but noted that no final determination of admissibility was required at this stage (at [38]). Even treating the report as reflecting only the views of an experienced practitioner in this field, it raised a question about PTSD arising from historical child sexual abuse (at [38]).
The Court acknowledged that the evidence was scant and some of it would likely be inadmissible on appeal, and noted grounds for scepticism given the applicant's history of fabricating alibis and false trails (at [54]-[55], [57]). However, McNaughton J found that the applicant's account of why PTSD was not raised at sentencing was consistent with Mr Richardson's experience of survivors of child sexual abuse, and consistent with the now well-recognised pattern of delayed disclosure in such cases (at [54]-[55]). The Court found that the PTSD issue, if made out on appeal, could potentially bear on a section 61 determination as a mitigating circumstance, because culpability assessment under that provision can encompass subjective matters including an offender's background and any mental disorder causally connected to the offending (at [56]).
Issue 3: Outcome
McNaughton J was satisfied that the modest threshold in section 79(2) had been met and that there appeared to be a doubt or question as to a mitigating circumstance (at [57]). His Honour expressly noted that the applicant, as a self-represented person, would have little prospect of success on the admissible material presented so far, and that whether this changed remained to be seen (at [57]).
Orders Made
- The whole of the applicant's case is referred to the Court of Criminal Appeal pursuant to section 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), to be dealt with as an appeal against sentence.
- The matter is to be listed before the Registrar of the Court of Criminal Appeal for further directions as soon as reasonably practicable.
Key Takeaways
- The section 79(2) threshold for referral to the Court of Criminal Appeal is a low one: the court need only be satisfied that there "appears" to be a doubt or question as to a mitigating circumstance, not that the doubt or question is made out or well-founded (at [29], [56]).
- Evidence that is scant or potentially inadmissible on appeal does not necessarily preclude a referral under section 79(2), provided the statutory threshold of apparent doubt or question is met (at [54], [57]).
- Under section 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the assessment of culpability in a life sentence determination can encompass subjective matters, including an offender's background and any mental disorder or incapacity causally connected to the offending; even where those factors tend towards a life sentence, a discretion to impose a fixed term remains (at [56]).
- A treating psychologist who also purports to provide an independent expert opinion occupies a dual role that is, on its face, problematic, though this issue does not need to be finally resolved at the Part 7 gatekeeper stage (at [38]).
- The well-recognised phenomenon of delayed disclosure of childhood sexual abuse, most recently affirmed by the High Court in Willmot v Queensland [2024] HCA 42, can be relevant context when a court considers why PTSD arising from such abuse was not raised at an earlier stage of proceedings (at [54]-[55]).
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21 , 61
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW), s 177
- Uniform Civil Procedure Rules (NSW) 2005, Schedule 7
- Victims Rights and Support Act 2013 (NSW), s 113
Cases
- Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2018] NSWSC 787
- Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412
- Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW); (No 3) [2021] NSWSC 263
- Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No. 4) [2023] NSWSC 323
- Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 5) [2024] NSWSC 182
- Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Buttrose v Attorney General of New South Wales [2015] NSWCA 221
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28
- Further Application by Gil Bum Yun pursuant to s.78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 825
- GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314
- Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232
- Li v Attorney General for New South Wales (2019) 99 NSWLR 630; [2019] NSWCA 95
- R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469; 121 A Crim R 342
- R v Gonzales [2004] NSWSC 822
- Rogerson v R; McNamara v R [2021] NSWCCA 160; 290 A Crim R 239
- Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783; [2013] NSWCA 383
- Willmot v Queensland [2024] HCA 42; (2024) 419 ALR 623; (2024) 98 ALJR 1407