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Evatt (a pseudonym) v The King

Evatt (a pseudonym) v The King

Case [2025] NSWCCA 130 1 September 2025

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Evatt (a pseudonym) v R [2025] NSWCCA 130
Hearing dates: 1 August 2025
Date of orders: 1 September 2025
Decision date: 01 September 2025
Before: Ward P at [1];
Yehia J at [2];
Weinstein J at [116].
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – sexual intercourse without consent – where the offending occurred in a domestic violence context and contrary to an ADVO – whether the sentencing judge erred in failing to take into account the applicant’s mental health – whether the sentence is manifestly excessive – appeal dismissed

Legislation Cited:
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

Cases Cited:
Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312
Bellchambers v R [2011] NSWCCA 131
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Crane v R [2024] NSWCCA 87
Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153
DB v R [2023] NSWCCA 323
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
ET v R [2024] NSWCCA 131
Everett v The Queen; Phillips v The Queen (1994) 181 CLR 295; [1994] HCA 49
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Harper v R [2022] NSWCCA 211
Harris v R [2021] NSWCCA 322
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286
JP v R [2024] NSWCCA 96
Lacey v Attorney General of Queensland (2011) 242 CLR 573; [2011] HCA 10
Lane v R [2025] NSWCCA 113
Luque v R [2017] NSWCCA 226
Mattiussi v R [2023] NSWCCA 289
McGrory v R [2018] NSWCCA 226
Moiler v R [2021] NSWCCA 73
Moodie v R (2020) 284 A Crim R; [2020] NSWCCA 160
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pasoski v R [2014] NSWCCA 309
R v Engert (1995) 84 A Crim R 67
R vMillwood [2012] NSWCCA 2
R v White [2025] NSWCCA 111
Walker v R [2006] NSWCCA 228
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
WW v R [2023] NSWCCA 311

Category: Principal judgment
Parties: Evatt (a pseudonym) (Applicant)
Rex (Respondent)
Representation:
Counsel:
Mr R Rajalingam (Applicant)
Mr S Healy (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/00303594
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of the name or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Evatt (a pseudonym) v The King

Details

AGLC: Evatt (a pseudonym) v The King [2025] NSWCCA 130
Case: [2025] NSWCCA 130
Decision Date: 01 September 2025

CaseChat Overview and Summary

In the matter of Evatt (a pseudonym) v The King, the appellant, Evatt, sought to appeal against the sentence imposed upon him for sexual intercourse without consent, occurring within the context of domestic violence and in contravention of an Apprehended Domestic Violence Order (ADVO). The case was heard and determined in the High Court of Australia. Evatt's primary contention on appeal was that the sentencing judge had failed to adequately consider his mental health in the context of the offence, and that the sentence was manifestly excessive.

The primary legal issue before the court was whether the sentencing judge's failure to properly account for Evatt's mental health amounted to a significant error in the sentencing process, such that the sentence should be considered manifestly excessive. The court was also required to assess whether the sentence imposed was appropriate in light of the circumstances and the applicable sentencing principles.

The High Court found that the sentencing judge had indeed considered Evatt's mental health and had appropriately weighed this factor within the context of the overall circumstances of the case. The court held that the sentence was neither manifestly excessive nor had it been imposed in error. The court also noted that the sentencing judge had considered the relevant aggravating and mitigating factors, including the impact of the offence on the victim and the breach of the ADVO. Consequently, the appeal was dismissed.

No further orders were made by the court beyond the dismissal of the appeal.

Orders