Lawavou v The King - [2025] NSWCCA 35

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lawavou v R [2025] NSWCCA 35
Hearing dates: 9 October 2024
Date of orders: 14 March 2025
Decision date: 14 March 2025
Before: Garling J at [1];
Cavanagh J at [2];
Yehia J at [3].
Decision:
(1)   Grant leave to appeal.
(2)   Uphold the appeal.
(3)   Quash the sentence imposed on the applicant in the District Court on 14 February 2023 and, in lieu thereof, sentence the applicant to an aggregate sentence of 15 years’ imprisonment to commence on 25 December 2021 and expire on 24 December 2036. The aggregate non-parole period is 9 years and 6 months to commence on 25 December 2021 and expire on 24 June 2031. Mr Lawavou will first be eligible for release to parole on 24 June 2031.

Catchwords:
CRIME – appeal against sentence – child sexual assaults – whether additional evidence of sexual assaults against the applicant should be admitted – characterisation of the additional evidence as “fresh” or “new” evidence – evidence admitted – appeal allowed – applicant resentenced

Legislation Cited:
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 Cited:
Adanguidi v R [2024] NSWCCA 82
Aiga v R [2024] NSWCCA 175
Barnes v R (2022) 299 A Crim R 483; [2022] NSWCCA 140
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
C v R [2022] NSWCCA 285
Cornwell v R [2015] NSWCCA 269
Eden v R [2023] NSWCCA 31
Elali v R [2025] NSWCCA 9
Green v R [2022] NSWCCA 230
Green v The King (1939) 61 CLR 167; [1939] HCA 4
Kaveh v R [2017] NSWCCA 52
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49
Nosti v R [2024] NSWCCA 158
R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
R v Birks (1990) 48 A Crim R 385; (1990) NSWLR 677
R v Fordham (1997) 98 A Crim R 359
R v Goodwin (1990) 51 A Crim R 328
R v L (Supreme Court (NSW), 3 July 1986, unrep)
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
Shalida v R [2024] NSWCCA 55
Shortland v R [2024] NSWCCA 174
Stubbings v R [2023] NSWCCA 69
Young (a pseudonym) v R [2021] NSWCCA 163
Zreika v R (2012) A Crim R 460; [2012] NSWCCA 44

Category: Principal judgment
Parties: Marika Vacokowale Lawavou (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Odgers SC with S Kluss (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2021/00366329
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the names or any matters which might tend to identify the victims or any children involved is prohibited.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

-

Date of Decision:

14 February 2023

Before:

McGrath SC DCJ

File Number(s):

2021/00366329

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Marika Vacokowale Lawavou (the applicant) sought leave to appeal against the sentence imposed on him by McGrath SC DCJ on 14 February 2023 in the District Court of New South Wales.

The applicant was sentenced following pleas of guilty to a series of sexual offences and assault offences committed against the applicant’s stepdaughter and her mother, with whom the applicant was in a relationship. Eleven sexual offences were committed against the applicant’s stepdaughter, in addition to one assault offence, one intimidation offence and one intentional choking offence. One assault offence was committed against the applicant’s partner. An aggregate sentence of 18 years’ imprisonment with a non-parole period of 13 years and 6 months was imposed.

On appeal, the applicant sought to rely on additional evidence that during his detention in a Fijian gaol, he was sexually assaulted by another inmate on multiple occasions. The sexual assaults upon him occurred before, but at a time proximate to, the offences for which he was sentenced. The applicant also sought to rely on expert psychiatric evidence about the impact of those assaults upon him.

The applicant relied on two grounds of appeal, namely:

The applicant contends that the sentence imposed was manifestly excessive and a different sentence is warranted at law.
A miscarriage of justice resulted from the absence in the sentencing proceedings of new evidence relating to the applicant.

The Court held per Yehia J (Garling and Cavanagh JJ agreeing), granting leave to appeal against the sentence, upholding the appeal and resentencing the applicant:

As to ground 2:

The Court was satisfied on the balance of probabilities that the applicant was sentenced to a term of imprisonment of 12 months in Fiji for assaulting a police officer. The applicant served approximately 10 months of that term in prison before returning to Australia. The Court accepted the applicant’s account of having been sexually assaulted in the way set out in his affidavit: per Yehia J at [91] (Garling J at [1] and Cavanagh J at [2] agreeing).
The relevant enquiry to be made when determining whether to admit additional evidence (irrespective of whether it is “new” or “fresh” evidence) is a consideration of whether a miscarriage of justice has occurred in depriving the applicant of the opportunity to have material considered which could have a real bearing on the sentence. In considering that test, the Court is to consider whether the additional material had the capacity or potential to materially impact the sentence. It is not whether the Court can conclude with any certainty that the material would have made a material difference to the sentence: per Yehia J at [129] (Garling J at [1] and Cavanagh J at [2] agreeing).

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25; Shalida v R [2024] NSWCCA 55; Green v R [2022] NSWCCA 230; Shortland v R [2024] NSWCCA 174, applied.

The absence of relevant subjective material impacted upon the sentencing judge’s capacity to assess moral culpability; to consider whether the applicant was a suitable vehicle for general deterrence; to properly assess the applicant’s prospects of rehabilitation; and to inform the question of whether there should be a finding of special circumstances. Had the additional evidence been before the sentencing court, there could have been a material prospect of the applicant receiving a lesser sentence: per Yehia J at [131] (Garling J at [1] and Cavanagh J at [2] agreeing).
The additional evidence is “fresh” evidence because it was not discoverable by the exercise of reasonable diligence. Even if the evidence is characterised as “new” evidence, it had the capacity to have a real bearing upon the exercise of the sentencing judge’s discretion: per Yehia J at [133], [134] (Garling J at [1] and Cavanagh J at [2] agreeing).

Barnes v R (2022) 299 A Crim R 483; [2022] NSWCCA 140; Lawless v The Queen (1979) 142 CLR 659 at 675; [1979] HCA 49; Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35; Adanguidi v R [2024] NSWCCA 82; R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356; Eden v R [2023] NSWCCA 31; Stubbings v R [2023] NSWCCA 69; Nosti v R [2024] NSWCCA 158; R v Goodwin (1990) 51 A Crim R 328; Kaveh v R [2017] NSWCCA 52; Elali v R [2025] NSWCCA 9, applied. Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118, considered.

The absence of the additional evidence at the sentence proceedings resulted in a miscarriage of justice. Ground 2 is made out: per Yehia J at [135] (Garling J at [1] and Cavanagh J at [2] agreeing).

As to ground 1:

Having determined that Ground 2 should be upheld, it was not necessary to deal with Ground 1: per Yehia J at [136] (Garling J at [1] and Cavanagh J at [2] agreeing).

C v R [2022] NSWCCA 285, applied.

JUDGMENT

GARLING J: I agree with the orders proposed by Yehia J for the reasons her Honour has given.
CAVANAGH J: I agree with Yehia J.
YEHIA J: Marika Vacokowale Lawavou (“the applicant”) seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by McGrath SC DCJ (“the sentencing judge”) in the District Court of New South Wales at Newcastle on 14 February 2023. The appeal is made in time.
On 14 February 2023, the applicant was sentenced for a series of assault offences and sexual offences with a further two offences taken into account on two Form 1s pursuant to s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”). The offences were committed against the applicant’s stepdaughter (“GE”) and her mother (“LH”), with whom the applicant was in a relationship. Eleven sexual assault offences were committed against GE, in addition to one assault offence, one intimidation offence and one intentional choking offence. One assault offence was committed against LH.
The applicant confirmed his pleas of guilty (and acknowledgements of guilt) in respect of all of the offences with which he was charged, on 14 February 2023. The following table sets out the offences for which the applicant was sentenced (including the two additional Form 1 offences attaching to sequences 13 and 17), the maximum penalties, and the indicative sentences set by the sentencing judge (following the application of a 25% discount to reflect the utilitarian value of the plea of guilty).

Sequence	Offence	Maximum Penalty and Standard Non-Parole Period	Indicative sentence	Approximate indicative sentence before discount
Seq 1 H86262374/1	Intentionally sexually touch child between 10 and 16 years contrary to s 66DB(a) of the Crimes Act 1900 (NSW)	MP: imprisonment for 10 years SNPP: none	4 years	5 years, 4 months
Seq 2 H86262374/2	Intentionally sexually touch child between 10 and 16 years contrary to s 66DB(a) of the Crimes Act	MP: imprisonment for 10 years SNPP: none	4 years	5 years, 4 months
Seq 3 H86262374/3	Intentionally sexually touch child between 10 and 16 years contrary to s 66DB(a) of the Crimes Act	MP: imprisonment for 10 years SNPP: none	2 years, 6 months	3 years, 4 months
Seq 5 H86262374/5	Intentionally sexually touch child between 10 and 16 years contrary to s 66DB(a) of the Crimes Act	MP: imprisonment for 10 years SNPP: none	2 years, 6 months	3 years, 4 months
Seq 8 H86262374/8	Sexual intercourse with a child aged 10 years or older and under 14 years contrary to s 66C(1) of the Crimes Act	MP: imprisonment for 16 years SNPP: 7 years	5 years (NPP 3 years)	6 years, 8 months (NPP 4 years)
Seq 10 H86262374/10	Sexual intercourse with a child aged 10 years or older and under 14 years contrary to s 66C(1) of the Crimes Act	MP: imprisonment for 16 years SNPP: 7 years	6 years (NPP 4 years)	8 years (NPP 5 years, 4 months)
Seq 11 H86262374/11	Sexual intercourse with a child aged 10 years or older and under 14 years contrary to s 66C(1) of the Crimes Act	MP: imprisonment for 16 years SNPP: 7 years	6 years (NPP 4 years)	8 years (NPP 5 years, 4 months)
Seq 13 H86262374/13	Sexual intercourse with a child aged 10 years or older and under 14 years contrary to s 66C(1) of the Crimes Act	MP: imprisonment for 16 years SNPP: 7 years	8 years (NPP 5 years)	10 years, 8 months (NPP 6 years, 8 months)
Seq 12 (on the Form 1 attaching to seq 13) (H86262374/12)	Intentionally sexually touch child between 10 and 16 years contrary to s 66DB(a) of the Crimes Act	MP: imprisonment for 10 years	-	-
Seq 18 H86262374/18	Common assault contrary to s 61 of the Crimes Act	MP: imprisonment for 2 years SNPP: None	1 year	1 year, 4 months
Seq 20 H86262374/20	Common assault contrary to s 61 of the Crimes Act	MP: imprisonment for 2 years SNPP: None	1 year	1 year, 4 months
Seq 21 H86262374/21	Intentionally sexually touch child between 10 and 16 years contrary to s 66DB(a) of the Crimes Act	MP: imprisonment for 10 years SNPP: None	6 years	8 years
Seq 17 (on the Form 1 attaching to seq 21) (H86262374/17)	Intimidation (domestic violence) contrary to s 13(1) Crimes (Personal and Domestic Violence) Act 2007 (NSW)	MP: imprisonment for 5 years and/or a fine of 50 penalty units	-	-
Seq 22 H86262374/22	Intentionally choke without consent contrary to s 37(1A) of the Crimes Act	MP: imprisonment for 5 years SNPP: None	3 years	4 years
Seq 23 H86262374/23	Intentionally sexually touch child between 10 and 16 years contrary to s 66DB(a) of the Crimes Act	MP: imprisonment for 10 years SNPP: None	2 years, 6 months	3 years, 4 months

The applicant received an aggregate sentence of 18 years’ imprisonment, commencing on 25 December 2021 and expiring on 24 December 2039, with a non-parole period of 13 years and 6 months, expiring on 24 June 2035.

Procedural History and Grounds of Appeal

Given the delay between the filing of the Notice of Appeal and judgment, it is appropriate to set out in some detail the procedural history of the matter.
On 1 February 2024, a Notice of Appeal was filed by the applicant seeking leave to appeal against the aggregate sentence. A sole ground of appeal was relied upon, namely that the sentence is manifestly excessive. The matter was listed for hearing on 10 April 2024. The submissions of the applicant referred to a report of Dr Richard Furst dated 26 January 2024 and indicated that the report was relied upon on the usual basis.
On 9 April 2024, the applicant filed an Amended Grounds of Appeal document containing a new ground that “a miscarriage of justice occurred in circumstances where the sentencing Judge was not provided with evidence of the psychiatric condition of the applicant and the subjective case of the applicant”.
On 10 April 2024, at the hearing of the matter, the applicant sought and was granted an adjournment to seek further evidence in relation to the proposed additional ground of appeal. Subsequently, further evidence was served by the applicant which included an affidavit of the applicant affirmed on 15 July 2024 and a further report of Dr Furst dated 30 June 2024.
On 22 July 2024, the applicant filed a further Amended Grounds of Appeal document, containing two grounds of appeal:

Ground 1: The applicant contends that the sentence imposed was manifestly excessive and a different sentence is warranted at law.
Ground 2: A miscarriage of justice resulted from the absence in the sentencing proceedings of new evidence relating to the applicant.

The applicant requires leave of the Court to rely on the additional ground. The Crown did not oppose leave being granted to rely on the additional ground. In light of the merit of Ground 2, leave should be granted.
The additional evidence relied upon by the applicant will be summarised more fully below. For present purposes, the applicant relied upon the fact that during his detention in a Fijian gaol, he was brutally raped by another inmate on multiple occasions. The sexual assaults upon him occurred before, but at a time proximate to, the offences for which he was sentenced. The applicant also seeks to rely on expert psychiatric evidence about the impact of those assaults upon him. It should be noted at this early stage that the Agreed Facts on Sentence, tendered in the sentence proceedings, included as an agreed fact, that at the beginning of 2020, the applicant was sentenced to a term of imprisonment of 12 months for assaulting a Fijian police officer and that he served 10 months in prison and returned to Australia on 11 November 2020.
The appeal was heard in this Court on 9 October 2024. During the appeal, the Crown sought to challenge the agreed facts that the applicant had served a term of imprisonment in Fiji. This challenge led to a preliminary evidentiary question that must be resolved.
The applicant was cross-examined in this Court, the Crown suggesting that he was not detained in a Fijian gaol. That challenge was in part based on the applicant’s Fijian criminal history (Annexure ACB5 to the affidavit of the respondent’s instructing solicitor Aisling Cunningham, affirmed on 4 October 2024), which records only one offence; being an assault causing actual bodily harm with a penalty expressed as: “bound over in the sum of $500.00 for 6 months not to reoffend”.
The question of whether the applicant was detained in Fiji was inextricably linked to the additional evidence because the applicant maintained that he was sexually assaulted whilst incarcerated in prison in Lautoka.
Given that the records obtained by the respondent were incomplete, leave was granted to the respondent to file further evidence on the issue. As at 18 December 2024, the respondent had received and filed evidence pursuant to a request for Mutual Assistance to the effect that the applicant had not been in custody in Fiji (Annexure ACB1 to the affidavit of Aisling Cunningham, affirmed on 18 December 2024). Further affidavit evidence to this effect was filed and served by the respondent on 20 December 2024.
The applicant was also granted leave to file further material including submissions. On 9 January 2025, in reply to the evidence of the respondent, the applicant served on the respondent an affidavit of the applicant’s instructing solicitor, annexing a letter dated 8 January 2025 from the Fiji Correction Service to the effect that the applicant had been in custody in the Lautoka Corrections Centre between 14 February 2020 and 13 October 2020. The letter states that this period of custody was pursuant to a sentence of “12 months”, presumably referring to 12 months’ imprisonment.
On 9 January 2025, the respondent’s solicitor sought instructions via the Mutual Assistance procedure from the Commonwealth Attorney-General’s Department as to the source and accuracy of the above-mentioned letter.
On 23 January 2025, the respondent’s solicitor received a letter forwarded by the Commonwealth Attorney-General’s Department, dated 22 January 2025, in which the Fiji Correction Department confirmed the contents of their letter dated 8 January 2025, advising that the previous information stating that the applicant had not been incarcerated in Fiji, “is incorrect and the reason for the mistake was due to the crash of our computer which had our data”.
As a result of this further information, the respondent no longer advances on this appeal, as a positive proposition, that the applicant was not in custody in Fiji. The respondent maintains the position, however, that even if this Court was satisfied that the applicant has established that he was sexually assaulted, the applicant has failed to demonstrate that the additional evidence had the potential to have a real bearing on the sentence and its absence did not result in a miscarriage of justice.
The upshot of the procedural history is that this Court can accept that the applicant was in prison in Lautoka between February and October 2020. This was accepted by the Crown in the sentence proceedings as attested to by the agreed facts in those proceedings.
Having obtained what appears to have been an inaccurate Fijian criminal history, I accept that it was incumbent on the respondent to properly investigate the issue and obtain further evidence. It is, however, unfortunate that the process has taken so long.

Circumstances of the Offending

The facts upon which the applicant was sentenced were contained in the “Agreed Facts on Sentence” and can be summarised as follows.
The applicant is a Fijian national who was granted a bridging visa in December 2020. The applicant commenced a relationship with LH over the internet in 2016. In 2017, LH and GE travelled to Fiji for a holiday with the applicant. LH agreed to marry the applicant while overseas and the applicant returned to Australia with LH and GE.

During 2019, the applicant travelled between Fiji and Australia more frequently because he was required to attend court in Fiji relating to criminal proceedings being brought against him. At the beginning of 2020, the applicant was sentenced to a term of imprisonment of 12 months for assaulting a Fijian Police Officer. He only served approximately 10 months in prison and returned to Australia on 11 November 2020.
Upon the applicant’s return to Australia after serving time in prison, GE and LH observed a change in the applicant’s behaviour. LH observed that he was argumentative, withdrawn and seemed angry. GE observed that after his term of imprisonment the applicant became angry and was frequently drunk.
The offences to which the applicant pleaded guilty took place over the course of approximately one year commencing in December 2020 when the applicant was living with LH and GE at an address in Valentine, until September 2021, and thereafter at an address in Belmont until November 2021.

Sequence 1

Sequence 1 occurred sometime between 1 December 2020 and 31 December 2020. GE was 12 years old at the time. She was in the lounge room with the applicant, while LH was making dinner. The applicant discovered GE had downloaded TikTok on her phone and said that he would not tell her mother about the presence of TikTok on her phone if she let him touch her. During the night, the applicant entered GE’s bedroom. She was laying on her back in bed and the applicant pulled back the bedsheets covering GE and laid on top of her. The applicant slid his hand inside of her pants and underwear and rubbed her vagina with his hand.
GE attempted to shove the applicant off her and in response he told her to “shut up”. GE was crying during the incident. She did not call out to her mother as she believed the applicant would be angry and that her mother would want to “kill him”. The applicant stopped after a period of time and went back to bed. GE lay on her bed crying. GE looked at her watch and observed that it was about 2:00am or 3:00am. She went to the toilet before returning to bed and going to sleep.
GE did not disclose the incident as she did not think her mother would believe her and she also thought the applicant would take her little sister and leave.

Sequence 2

Approximately one month after the first incident, sequence 2 occurred. GE was 12 years old at the time. The applicant found the Snapchat application on GE’s phone. The applicant became angry and said words to the effect of “let me touch you again”. GE went to bed at about 9:00pm but remained awake for two or three hours before falling asleep. At approximately 2:00am or 3:00am, the applicant entered GE’s bedroom, where she was laying on her back in bed. The applicant laid on top of her. GE was crying and tried to push him off, begged him to get off and told him that he could tell her mother, LH, about Snapchat.
The applicant placed his hand inside GE’s underwear and rubbed her vagina with one or two fingers. As he was doing so, he said words to the effect of “Shut the fuck up you bitch” and “This is all your fault because you have social media”.

Sequence 3

Sequence 3 occurred between 3 June 2021 and 30 September 2021. GE was 12 years old at the time. The applicant entered GE’s bedroom in the morning before going to work. He laid on top of her and put his hand inside of her underwear and started rubbing her vagina. GE told the applicant to get off her.

Sequence 5

Sequence 5 occurred between 1 December 2020 and 30 September 2021 when GE was 12 years old. The applicant entered GE’s bedroom and pulled her pants and underwear down to her ankles. The applicant placed his head near her vagina and grabbed her legs. In response, GE kicked one of his shoulders with force. The applicant then lay on top of her, pulled her pants almost the entire way up and then began rubbing her vagina.

Sequence 8

Sequence 8 occurred between 1 December 2020 and 30 September 2021, when GE was 12 years old. The applicant entered GE’s bedroom at night, laid on top of her, pulled her pants down and began rubbing her vagina before placing his finger into her vagina. GE said words to the effect of “please get off, it hurts so bad” and was crying because of the pain caused by the penetration. GE was trying to be quiet as she did not want LH to hear. The applicant said words to the effect of “just loosen up.” GE tried to push the applicant off but was unable to do so.

Sequence 10

Sequence 10 occurred between 1 September 2021 and 8 October 2021 when GE was 12 years old. The applicant had been drinking alcohol and entered GE’s bedroom during the night. He flipped her over so she was laying on her back. The applicant pulled GE’s pants and underwear down to her ankles. He rubbed GE’s vagina before inserting his finger into her vagina. GE began to cry and said words to the effect of “Please get off” and the applicant responded with words to the effect of “Shut the fuck up. If your mum hears you, I’ll kill both of you.” GE recalled that the penetration “really hurt”.

Sequence 11

Sequence 11 occurred on or around 8 October 2021, when GE was 12 or 13 years old. The applicant came into her bedroom and laid on top of her. He pulled her pants and underwear down to her ankles and rubbed her vagina. He then said words to the effect of “fuck you” and was sighing during the incident. The applicant penetrated GE’s vagina with one finger and attempted to penetrate her with another finger. GE kicked the applicant with force to prevent this. She cried “hysterically” and tried to get the applicant off her. GE locked herself in the bathroom and cried after this incident.

Sequences 13 and 18 (and sequence 12 on the Form 1 attaching to sequence 13)

Sometime between 9 October 2021 and 23 October 2021, approximately one to two weeks after GE turned 13 years old, the applicant came into GE’s bedroom. GE was laying on her stomach and the applicant pulled his pants and underwear down and placed his hand around GE’s throat and squeezed her throat. The applicant put his other hand on GE’s breast. She attempted to push the applicant away. The applicant then placed his penis on her bottom and pulled GE’s pants and underwear down. He began rubbing her vagina and inserted his finger into her vagina. He had one hand holding his penis and was using the other hand to penetrate GE whilst she was laying on her stomach.
GE was kicking the applicant during this incident. The applicant said to her words to the effect of “shut the fuck up or I’ll kill you.” He then pulled his pants up and walked out of GE’s bedroom. GE pulled her pants up, went into the bathroom, locked the door and cried.

Sequences 20, 21 and 22 (and sequence 17 on the Form 1 attaching to sequence 21)

On 23 or 24 November 2021, LH and the applicant were in their bedroom speaking about how GE had been talking to her biological father. LH was of the view that the applicant did not like GE speaking to her biological father, or her step-mother. In response to learning GE had spoken to her biological father, the applicant stormed out of the bedroom and began yelling at GE and said words to the effect of “Do you even want to live here?”. LH followed him out and stood between GE and the applicant. The applicant then struck LH in the face with the back of his hand.
The applicant went into the kitchen and began consuming beers. He drove away from the house, and then returned, demanding to know if there was any vodka in the house. He then yelled at GE, telling her to go to bed. The applicant went outside and sat in the car. He eventually returned to the house and began yelling at LH saying words to the effect of “Why did you let her speak to her father?”, in reference to GE. The applicant punched LH in her left arm, her left thigh, and struck her in the back of the head.
The applicant then entered GE’s room and woke her up. She was laying on her stomach, and he pulled her pants and underwear off and placed his penis on GE’s vagina. The applicant’s penis was erect, and he placed it at the entrance of GE’s vagina. GE began yelling out to LH. It is likely LH was having a shower at the time. In response to GE’s yelling, the applicant grabbed her throat and squeezed it with force, and said words to the effect of “I’ll strangle you to death”. GE could not breathe and reported having bruises on her throat for two weeks after the incident.
Upon hearing footsteps, the applicant got off GE and pulled his underwear up. LH had decided to check on GE and as she was walking towards GE’s bedroom, she observed the applicant leaving GE’s bedroom, pulling his underwear up and tucking his penis inside his underwear. Both GE and LH observed the applicant with his pants across his shoulder as he left GE’s bedroom.
LH yelled “What are you doing in [GE]’s room, what have you done?”. LH entered GE’s bedroom and observed GE cowered in the corner of the room with her underwear at her ankles, shaking. LH grabbed a knife and ran towards the bathroom the applicant was in. LH observed the applicant washing his penis and hands.
The applicant said words to the effect of “Tell you mum I’ve done this before, I’ve done this since Valentine”. LH gave GE the knife and told her to get her younger sister. LH yelled words to the effect of “Get out of this house and never come back.” In response the applicant backed LH, GE, and her younger sister into the bathroom and yelled words to the effect of “Give me the knife so I can slit your Mum’s throat”. The applicant then tried to find the car keys and was saying words to the effect of “Give me the fucking keys before I kill both of you”. LH gave the applicant the car keys and yelled words to the effect of “Get out and never come back”.
On 26 November 2021, LH called the applicant via Facebook messenger and recorded conversations with him, in which he can be heard to say the following:

“I touched [GE]”;

“I touched her inappropriately”;

In response to a question of “Did you tell them you did it many, many times?” the applicant responded “Yeah”;

“I was going to tell you this I was thinking of saying it”;

“This is not the first time this has happened”;

In response to a question of whether the applicant told his family that he had choked GE’s throat while he was telling her to “shut the fuck up”, he responded “Yeah”;

LH said that she saw the applicant with his penis on GE. The applicant responded that he was not going to penetrate her with his penis;

"I'm really sorry";

“I'm sorry for what l've done... I hurt [GE]. I hurt our family.”;

With reference to their family unit: "It was me all along that kept breaking it.";

In response to a question of “How are you going to go when you come back in the house with [GE], are you going to be tempted to touch her again?” the applicant responded “I won't”;

In response to a question of "Be honest, how many times did you touch [GE]?" the offender can be heard to say “4, 5, 6”.

On 20 December 2021, LH, GE, and her younger sister attended the Mid North Coast Child Abuse Office and GE participated in an electronically recorded interview with Detective Senior Constable Chinner.
The applicant was arrested on 25 December 2021 by Leading Senior Constable Chapman at the premises in Belmont. The applicant declined to participate in an ERISP.

Remarks on Sentence

The sentencing judge acknowledged that sexual offences against children are “very, very serious” in their own right. His Honour remarked that the courts have recognised the need to protect children from sexual exploitation by adults and to keep them “free from the later psychological trauma such offending invariably causes.”
His Honour referred to Lee J’s remarks in R v L (Supreme Court (NSW), 3 July 1986, unrep) that “young children are, in the family situation, virtually helpless against sexual attack of a male parent” and remarked that:

“Although Mr Lawavou is not the parent of [GE], he was in the family home her mother’s partner and was in loco [parentis] and the facts of his offending fit the circumstances that Lee J was referring to all those years ago”.

The sentencing judge assessed the objective seriousness of the offences by reference to the statutory guideposts, namely, the maximum penalties and, where relevant, the standard non-parole periods.
In respect of the objective seriousness of the sexual touching offences, the sentencing judge found:

“…I am satisfied that the sexual touching offences are offences which fall in the mid-range or higher than the mid-range for offences of this nature. The sexual touching offences involved what the courts refer to as ‘skin on skin contact’, his finger or fingers touching the child’s vagina, which the courts have expressed are the most serious examples of sexual touching offences.”

The sentencing judge noted that, in relation to some of the sexual touching offences, they were accompanied with threats to kill the victim if she was not quiet. The offences were “invariably done in circumstances of obvious distress being caused to her and to persist it”. His Honour concluded that sequence 21 was at the highest end of objective seriousness for a sexual touching offence.
In respect of the sexual intercourse offences the sentencing judge found that they are “certainly above the midrange of objective seriousness for offences of this nature”. All of them involved digital penetration of a 12 or 13 year old girl’s vagina by a large grown adult. The victim was in the middle of the age range, between 10 and 14, and there was an age difference of 15 years or so between GE and the applicant.
The sentencing judge observed that the familial relationship between the applicant and GE goes to objective seriousness, as does the fact that many of the offences involved verbal abuse, and all of them involved “pain, crying and pleas by the victim to stop what he was doing”.
In respect of the choking offence committed against GE, the sentencing judge found that it is an “objectively serious example of the offence”, observing that:

“…in the context of other sexual offending, [it] is an objectively serious example of the offence. It involved him placing his hand against her throat and choking her so that she could not breathe. She had, the facts record, bruises on her neck and throat for some two weeks afterwards. She was a 12 or 13 year old child.”

In relation to the common assaults committed against GE and LH, the sentencing judge found that they are both “serious examples” of this sort of offence.
With respect to sequences 13 and 21, the sentencing judge took into account the offences on the Form 1 being sexual touching in respect of sequence 13, and stalk/intimidate, in respect of sequence 21. His Honour clarified that taking offences into account by way of a Form 1 does not aggravate the objective seriousness of the offence.
Although the applicant was the partner of the victim’s mother and living in the home with her, the sentencing judge made clear that the offences were not charged as offences under authority. In that regard his Honour cautioned:

“…I do not take into account the statutory aggravating factor that the offences involved a breach of trust. I am careful to remind myself of the offences to which he has pleaded guilty and not to aggravate them contrary to the principles set out by the court in De Simoni.”

Nonetheless, the sentencing judge considered that in respect of the sexual intercourse and sexual touching offences, the fact that the applicant took advantage of his position in the family elevated the objective seriousness of each offence.
Although lack of consent was not an element of the sexual intercourse offences, the sentencing judge acknowledged that GE was not consenting to the offending and was “reacting against it, was crying, was asking [the applicant] to stop and was doing her physical best to push him away from her”. The sentencing judge made a finding that it was obvious to the applicant that the victim was resisting the sexual touching and sexual intercourse offences, and he persisted in the face of her resistance and distress.
His Honour also took into account the following circumstances which related to the offending, namely that the applicant was physically larger than GE; and, it was an aggravating factor that the offending occurred in GE’s bedroom where she was entitled to feel safe; the applicant “violated the sanctity of her home and the sanctity of her bedroom”.

Victim Impact Statement

The sentencing judge received a Victim Impact Statement from GE. She described the harm which stemmed from the applicant’s offending including flashbacks, difficulty regulating anger, feelings of broken trust, and how the offending affected her relationship with her mother, LH. The sentencing judge took into account the harm done, not as an aggravating factor contrary to s 21A of the CSPA but as a “compelling example of the adverse psychological consequences that have been caused by the offending in this case.”

Subjective considerations

There was no material tendered on sentence in support of the applicant’s subjective case.
In that regard, the sentencing judge remarked that “little” is known of the applicant’s subjective circumstances. His Honour made some findings on the very limited material available to him:

“He is now some two or three days shy of his 30th birthday. He is a citizen of Fiji and a resident in this country. He committed the offences when he was 27 and 28 years of age. The facts allow me to infer that he had a problem with alcohol and that the problem worsened over the year that these offences were committed.”

The sentencing judge was in a difficult position having to sentence the applicant for very serious sexual offences against a child, in the absence of evidence relating to the applicant’s subjective case.
Given the absence of any assessments or evidence, the sentencing judge made a finding that the applicant’s prospects of rehabilitation were “very guarded”. His Honour remarked that there was no material before the Court which could allow him to make a more favourable assessment.
His Honour made similar comments in respect of the applicant’s likelihood of reoffending. No assessment had been conducted of the applicant, in any formal sense, setting out his risk of reoffending, and accordingly, the sentencing judge concluded that he “[could not] assess whether he will be an immediate or likely candidate for [custodial] courses”.
In respect of the applicant’s criminal history, the sentencing judge noted:

“… that although he has one prior conviction, apparently for assault, in Fiji, he has no prior convictions in this country and no convictions for offences of this sort and to the extent that these offences may be considered to be out of character, notwithstanding that they took place over a period of 12 months. I take that into account.”

The sentencing judge found “some small allowance” and was “satisfied to some extent” that the offender does have some remorse for his offending, which his Honour took into account to the extent he was able to on sentence. His Honour had regard to the applicant’s representations, made during a telephone conversation with LH, in which he told her that he was not a sex offender and the offences had occurred “because he was so drunk”; that he was sorry; and that, “alcohol has done all of this shit.”
His Honour emphasised that self-induced intoxication cannot be taken into account as a mitigating factor but found that the applicant did have a serious alcohol problem. There was no doubt alcohol disinhibited him “to a greater or lesser extent” in many of the offences but was not a factor taken into account in the applicant’s favour.
The sentencing judge considered that the applicant’s time in custody was affected by COVID-19, which restricted his access to courses whilst in custody. However, ultimately, his Honour found that given the length of the non-parole period required to be imposed, conditions relating to COVID-19 would abate during that period and enable the applicant appropriate access to courses.

The sentencing judge declined to make a finding of special circumstances in respect of the applicant. His Honour noted that there was no evidence that would support a finding that any additional period on parole would be required to facilitate the applicant’s rehabilitation.
The applicant was afforded a 25% discount for the utilitarian value of the early pleas.

Ground 2

A preliminary evidentiary question

Ground 2 asserts that a miscarriage of justice resulted from the absence of the additional evidence in the sentence proceedings. The applicant seeks to rely on evidence not put before the sentencing judge, namely: his affidavit affirmed 15 July 2024, his evidence at the hearing on 9 October 2024, and the reports of Dr Furst, dated 26 January 2024 and 30 June 2024.
The applicant characterised the additional evidence as “fresh” evidence. However, the applicant further submitted that even if this Court were of the view that the evidence is “new” evidence, its absence in the sentence proceedings resulted in a miscarriage of justice.
The respondent accepted that the material should be provisionally admitted to ascertain whether it is “fresh” evidence and whether this Court should act upon it. The respondent’s position, however, is that the Court would ultimately reject both the evidence and Ground 2.
As indicated above, a preliminary evidentiary issue arose as to whether this Court was satisfied, on a balance of probabilities, that the applicant was in custody in Fiji and whilst there, was sexually assaulted. The applicant and Dr Furst were cross-examined at the hearing.
In addition to the “fresh” evidence, the applicant relied on the Agreed Facts to establish the veracity of his account that he was sexually assaulted whilst detained in Fiji. The Agreed Facts relevantly state at [7]:

“During 2019, the offender travelled between Fiji and Australia more frequently because he was required to attend court in Fiji relating to criminal proceedings being brought against him. At the beginning of 2020, the offender was sentenced to a term of imprisonment of 12 months for assaulting a Fijian Police Officer. He only served 10 months in prison and returned to Australia on 11 November 2020.”

The applicant also relied on the observations made by both GE and LH as to the applicant’s behaviour when he returned to Australia. The observations are also contained in the Agreed Facts as follows:

“Upon his return to Australia after serving time in prison, [GE] and [LH] observed the offender to undergo a change in his behaviour. [LH] observed that he was argumentative, withdrawn and seemed angry. [GE] observed that after his term of imprisonment the offender became angry and was frequently drunk.”

The evidence in this Court

The applicant deposed that in 2020 he became intoxicated and punched a police officer in Fiji. He pleaded guilty and was sentenced towards the “end of January 2020” to 10 months’ imprisonment which he served in prison in Lautoka. He was housed in one of four dormitories. Each dormitory had “10 double bunks on one side and the same number of single beds on the other side” in addition to people sleeping on the floor. The applicant estimated about 50 people, and sometimes more, were housed in one dormitory. The applicant slept on a lower bunk and would put fabric on the top bunk to give himself privacy and block the light out.
Not long after the applicant entered custody, one night, at about 1:00am, while he slept, four men took hold of him. One of the men held his neck, one held his feet and another was standing close by. The fourth person was a “big man” in the gaol. A “big man” is a person with “considerable power among the inmates”. He weighed around 130kg and was “6’ 8””. The “big man” told the applicant to “be quiet” and said “if [the applicant] said anything ‘things will be worse and bad things will happen to your family’”. At the time the applicant was being held by two of the other men. The applicant believed that the “big man” knew his family, as Lautoka is a small community.
The applicant felt his pants being removed and felt considerable pain as he was penetrated in the anus by one of the men. He was held down throughout the assault. As a result of the sexual assault, the applicant was bleeding and suffered bruising around his neck.
The applicant could not reliably estimate how long the assaults lasted but recalled that “it felt like a long time”. When the assault finished, the perpetrators threatened him by saying that if he reported the incident, his family would be killed.
Two nights after the first assault, the same thing happened again. It was “the same big man and his friends”. The sexual assaults became “a repeated event about 10 times” and “it was the same man each time”. The applicant recalled that the assaults occurred over about a month every couple of nights in the same way, and each time he bled from the anus.
The Crown cross-examined the applicant during the hearing of the appeal, suggesting that he did not serve a term of imprisonment in Fiji and questioning his account of being sexually assaulted. The applicant maintained his account that he had been imprisoned in Fiji and that whilst there he had been sexually assaulted on a number of occasions.
In challenging the applicant’s account that he was imprisoned in Fiji, and by extension, his account that he was sexually assaulted in prison, the respondent relied on information obtained in respect of the proceedings in Fiji. That information was both incomplete and inaccurate.
The summary of the procedural history (set out above) reveals that following the hearing of the appeal, further documentation was received by the parties establishing that the applicant was indeed incarcerated in Fiji in 2020, as he said he was. The applicant maintained that whilst incarcerated, he was sexually assaulted. Dr Furst has provided expert evidence outlining the impact upon the applicant of the sexual assaults.
In addition to the applicant’s evidence, he relied upon the Agreed Facts in two ways. First, that he had served 10 months in prison in Fiji before his return to Australia on 11 November 2020. Second, that both victims observed a change in his behaviour upon his return from Fiji.
I am satisfied on the balance of probabilities that the applicant was sentenced to a term of imprisonment of 12 months in Fiji for assaulting a police officer. He served approximately 10 months of that term in prison before returning to Australia on 11 November 2020. I also accept his account of having been sexually assaulted in the way set out in his affidavit, affirmed on 15 July 2024.

“Fresh” or “new” evidence

Applicant’s submissions

During the hearing of the appeal, some time was spent on the question of the characterisation of the additional evidence.
The applicant contended that the material contained in the applicant’s affidavit and the reports of Dr Furst, constitutes “fresh” evidence, and has the capacity to impact on the sentence in a material way. It was submitted that the evidence was highly relevant to an assessment of the applicant’s moral culpability, his prospects of rehabilitation, the weight to be afforded to general deterrence and the application of special circumstances.
In the event that this Court determines that the evidence is not “fresh” evidence, the applicant contends it is “new” evidence, and it may be admitted on the basis that its absence would lead to a miscarriage of justice. The applicant submitted that the failure to put the additional material before the sentencing judge resulted in a practical injustice to the applicant and as such, the applicant ought to be resentenced.
The applicant relied upon the affidavit of Mr Ross Hill affirmed 5 April 2024 to submit that the applicant was not “recasting a different case” before this Court. There simply was no subjective case put before the sentencing judge.
Mr Hill is the applicant’s solicitor in the present proceedings. Mr Hill stated that upon proceeding with the appeal it became apparent that the applicant was “highly sensitive” about the matter [the sexual assaults] and “reluctant” to discuss it. He ultimately provided instructions to proceed with the severity appeal. Over the course of further conversation, the applicant became “progressively more communicative” and indicated that “bad stuff” had happened to him whilst in custody in Fiji and that this had “altered many aspects of his thinking and behaviour on his return to Australia”. On that basis, a psychiatric report from Dr Furst was requested.
Mr Hill’s affidavit confirmed that no applications for psychological or psychiatric reports were made when the applicant’s matter was in the District Court. Inquiries of the applicant’s legal representatives in the sentence proceedings revealed that: “Mr Lawavou would not provide us with any information as to his subjective background. When questioned he would return to ruminating on the offences”.
The applicant did not contend that the applicant’s legal representatives at the sentence proceedings were incompetent. Rather, the absence of the additional evidence was the result of the applicant’s reluctance to disclose the sexual assaults because he was ashamed and because he did not appreciate the significance of that material to the sentence. In those circumstances, it was argued that the evidence could not be obtained by the exercise of reasonable diligence of the applicant’s solicitors. The applicant relied on Hamill J’s remarks in Green v R [2022] NSWCCA 230 (Macfarlan JA and Harrison J agreeing) at [38]-[39] that the relevant question to be addressed is “not whether there was neglect or incompetence but whether, viewed objectively, the events that unfolded gave rise to a miscarriage of justice”.

Crown Submissions

The respondent submitted that the Court would reject the “new” evidence, reject Ground 2, and dismiss the appeal. The Crown submitted that the evidence relied upon by the applicant is not “fresh” evidence because it was available at the time of sentence.
The respondent emphasised that the reason the applicant did not tell his legal representatives he had been sexually assaulted was because he was embarrassed and did not feel his representatives were interested in his background, not because the evidence or information was unavailable to be disclosed.
Irrespective of whether the additional evidence is characterised as “new” or “fresh” evidence, the respondent argued that the additional material would have had no real bearing on the exercise of the sentencing discretion. The Crown emphasised that Dr Furst did not delineate between the effect of any undiagnosed post-traumatic stress disorder (PTSD) that the applicant may have, the applicant’s sexual attraction to his stepdaughter, or the applicant’s abuse of alcohol. The Crown emphasised the difficulty with evidence that conflated those three factors, relying on N Adams J’s remarks in Aiga v R [2024] NSWCCA 175 at [97]-[108] (Ierace and Sweeney JJ concurring).
The respondent submitted that the evidence does not support that the applicant suffers from impaired mental functioning. His contention that the “new” evidence favours less weight being afforded to general deterrence should be rejected. Emphasis was placed on the applicant’s acknowledgment that he understood the gravity of his actions.

The additional material

The contents of the applicant’s affidavit affirmed 15 July 2024 details the nature of the sexual assaults he experienced whilst in in prison in Fiji.
In his report dated 26 January 2024, Dr Furst referred to the sexual assaults as a “traumatic experience that [the applicant] kept to himself”. The applicant reported “I changed a lot. I was depressed, stressed, and weak. I thought about it often, especially when I was alone”. Dr Furst’s report also records that the applicant felt “embarrassed and ashamed talking about his victimisation”.
In respect of how the applicant’s alcohol consumption changed following the assaults, Dr Furst noted that the applicant drank more alcohol after his return to Australia in November 2020 and this was “most likely as a maladaptive means of coping with the trauma he experienced when he was sexually assaulted in jail earlier that year”.
Dr Furst made a finding that the applicant meets the criteria for alcohol use disorder, paedophilic disorder, and post-traumatic stress disorder. He remarked that the applicant developed symptoms of PTSD “in the form of frequent nightmares, insomnia, increased anxiety and increased drinking” and it was in this context that the sexual abuse of his stepdaughter “commenced and then continued, often while he was intoxicated”. In respect of the applicant’s “as yet” undiagnosed PTSD and heavier drinking in 2020 and 2021, Dr Furst commented:

“…Although not directly causal of his actions, his PTSD and increase[d] abuse of alcohol probably contributed to his poor decision-making and disregard of the consequences of his actions when he initiated inappropriate sexual contact with his stepdaughter and continued to abuse her thereafter. He was probably also seeking some type of emotional relief by selfishly gratifying his own sexual desires and his sexual attraction towards his stepdaughter by way of his offending conduct…”.

The Addendum Report authored by Dr Furst, dated 30 June 2024, addresses the applicant’s delay in disclosing the sexual assault, and specifically, why the applicant failed to “confide the issues of his own sexual assault” to his original solicitor and counsel representing him in his District Court proceedings. In that regard, Dr Furst stated:

“The disclosure of sexual abuse victimisation, if disclosed at all, is highly variable, especially amongst male victims of sexual abuse/sexual assault… In all of the circumstances, it is unsurprising that the applicant did not disclose his purported sexual assault victimisation as an adult when incarcerated in Fiji in 2020 to his solicitor and his counsel and this [in] no way… detracts from the veracity of any such disclosure at a later date, namely to myself.”

In cross-examination of Dr Furst on the appeal, the Crown challenged his opinions expressed in the Addendum report, generally dealing with delay in reporting sexual assaults by victims. The challenge related to Dr Furst’s reliance, at least in part, on a study that related to “child males being sexually assaulted as children”, as opposed to adult male victims.
Dr Furst maintained that “…it is common that all sexual assault victims, male or female, commonly don’t report sexual assault”. Delay in making a complaint about sexual assaults is not limited to a complaint of childhood abuse. The challenge to Dr Furst’s opinion in this regard was unsuccessful.

Determination

Fresh or new evidence?

It is well-established that a party is generally bound by the conduct of counsel at first instance, who has a wide discretion in conducting proceedings: R v Birks (1990) 48 A Crim R 385; (1990) 19 NSWLR 677 at 683, 685; R v Fordham (1997) 98 A Crim R 359 at 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals: Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 (‘Khoury’) at [104].
Moreover, an appeal to the Court of Criminal Appeal does not afford the applicant an opportunity to recast his or her case: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 (“Betts”); Eden v R [2023] NSWCCA 31 (“Eden”) at [32]. Sentence appeals are reviews of a discretion and not a rehearing with different evidence: Zreika v R (2012) A Crim R 460; [2012] NSWCCA 44 at [81] (Johnson J, McClellan CJ at CL and Rothman J agreeing). The rule is not absolute, and as noted by Simpson J (Davies J and Grove AJ agreeing) in Khoury, has been “diluted over the years”: at [105]. The rigour with which it is applied must be tempered in order to accommodate the interests of justice: Green v The King (1939) 61 CLR 167; [1939] HCA 4 per Latham CJ; Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 per Barwick CJ.
The characterisation of the additional evidence as “fresh” or “new” took on some significance in the appeal, no doubt because of statements to the effect that “fresh” evidence is more readily admitted than “new” evidence. In Barnes v R (2022) 299 A Crim R 483; [2022] NSWCCA 140 (“Barnes”), Hamill J (Gleeson JA and Ierace J agreeing) stated at [28]:

“The case law draws a distinction between “fresh” and “new” evidence… Fresh evidence is received more readily than new evidence.” (Emphasis added.)

See also Adanguidi v R [2024] NSWCCA 82; R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356; Khoury.

The issue must therefore be addressed and resolved, although, in my view, the distinction between “fresh” and “new” evidence is less significant on a sentence appeal where a court is of the view that the additional material may have had a real bearing on the sentencing outcome and that the absence of the material in the sentence proceedings resulted in a miscarriage of justice.
"Fresh" evidence has been defined (in the context of trial proceedings) by Mason J in Lawless v The Queen (1979) 142 CLR 659 at 675; [1979] HCA 49 as "... evidence of which the accused was unaware at the time of his trial and... evidence which he could not have discovered with reasonable diligence". The clear distinction between the two kinds of evidence is explained in the following manner by Stephen J at 669:

“The concept of fresh evidence, as evolved in the cases and in particular in Ratten v. The Queen, a decision of this Court which was expressed as containing a definitive pronouncement of appropriate principle, requires that the evidence in question, not being before the jury at the trial, was not then available to be called by the defence. If. on the contrary, the defence, knowing of that evidence, elected not to tender it, it will not be fresh evidence. Again, if it is evidence of which the accused ‘bearing in mind his circumstances as an accused, …could reasonably have been expected to have become aware and which he could have been able to produce at the trial’ it will not be fresh evidence. However ‘great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial’, it being ‘probably only in an exceptional case’ that evidence not actually available to him is to be denied the quality of fresh evidence. So it is that it is evidence which is ‘actually or constructively available’ to the accused but is not called by him that is spoken of as lacking the quality of fresh evidence. These passages all appear in the judgment of the Chief Justice in Ratten's Case, with whose judgment three other members of the Court concurred.” (Citations omitted.)

In considering what evidence, by reasonable diligence, could have been available, “great latitude” ought to be extended to an accused: Ratten v The Queen per Barwick CJ at 517.
Evidence is “new” evidence, if it was available to be adduced at trial, either actually or constructively, but was not adduced: Adanguidi v R at [13] (Garling, Fagan and McNaughton JJ). This proposition is drawn from the decision in R v Abou-Chabake in which Kirby J (Mason P and Levine J agreeing) summarised the distinction between fresh and new evidence (again in the context of trial proceedings) in the following way at [63]:

“First, a distinction is made between ‘new evidence’ and ‘fresh evidence’. Fresh evidence is not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered or available at the trial by the exercise of due diligence.”

The distinction between “fresh” and “new” evidence (in the context of an appeal against sentence) was explained by Hamill J in Barnes (Gleeson JA and Ierace J agreeing). His Honour characterised the difference between the two forms of evidence in the following manner at [28]:

“…Evidence will constitute ‘fresh evidence’ if it was not available to a party, ‘could not have been discovered with the exercise of reasonable diligence’ at the time of sentence, and its admission will depend on whether it had the ‘capacity to affect the outcome of proceedings at first instance.’ ‘New’ evidence is material that was available but not used, or was discoverable with reasonable diligence at the time of sentence.” (Citations omitted.)

In Barnes, the applicant appealed his sentence on the ground that the sentence proceedings miscarried because of the absence of the applicant’s Justice Health medical records before the sentencing judge. The applicant had refused to give consent to his legal representatives to access his health records.
The additional evidence was relied on as “fresh” because it was not discoverable with the exercise of due diligence. The respondent characterised the evidence as “new” because it was intentionally withheld by the applicant as a forensic choice, and/or was discoverable by subpoena by the applicant’s lawyers.
Hamill J (Gleeson JA and Ierace J agreeing) characterised the evidence as “fresh” and exercised the discretion favourably to the applicant to admit the evidence, having regard to his “unique psychological factors” which led to the applicant’s decision to refuse access to the health records prior to sentencing. The reference to “unique psychological factors” was a reference to Cornwell v R [2015] NSWCCA 269 at [59] (Hall J, Basten JA and Wilson J agreeing), in the context of the applicant’s schizophrenia.
Hamill J (Gleeson JA and Ierace J agreeing) considered that the circumstances which led to the refusal of access to the Justice Health records were “exceptional” and “[t]here was no deliberate or forensic decision” made not to review and use the records. There was nothing to suggest that the applicant appreciated the potential significance of the materials: at [44].
Hamill J’s characterisation of the type of evidence in Barnes as “fresh” is at odds with Simpson J’s characterisation of “fresh” and “new” evidence (particularly in the context of psychological conditions and reports) in Khoury, where the Court was considering proposed fresh evidence that concerned the level of the applicant’s intellectual functioning, and his mental and/or psychological condition. There was no such evidence before the sentencing judge. Counsel at first instance had great difficulty conferring with the applicant. Counsel suggested to the applicant that he may need medical help because he was incapable of mentally coming to grips with what had occurred. The applicant was offended and responded that he did not think he was “mental”. Counsel felt intimidated by the applicant’s response, which had the effect of deterring him from pursuing the question of “psychiatric assessment and intervention”: at [122]-[123].
Simpson J (Davies J and Grove AJ agreeing) found that “the applicant made a deliberate, though spontaneous, decision not to obtain the evidence”: at [134]. Simpson J held that “the evidence does not qualify as fresh”, noting that the evidence sought to be admitted was evidence of the applicant’s psychological and mental (intellectual) condition, and the condition was said to be in existence at the time of sentencing. Simpson J held that the evidence “plainly could have been obtained in the exercise of reasonable diligence”: at [137]. Despite not being “fresh” evidence, the Court nevertheless held that the evidence ought to be received.
A number of recent decisions of this Court have cited with implicit approval the principles with respect to “new” and “fresh” evidence set out by Hamill J in Barnes: Eden at [32]-[34] (Dhanji J, Gleeson JA and Fagan J agreeing); Stubbings v R [2023] NSWCCA 69 at [35] (Gleeson JA, Davies and Wilson JJ agreeing) and Nosti v R [2024] NSWCCA 158 at [28] (Dhanji J, Harrison CJ at CL and Rigg J agreeing).
Regardless of whether the additional evidence sought to be relied upon is categorised as “fresh” or “new” evidence, the appropriate test to be applied in considering whether the evidence ought to be admitted is whether the admission of the additional evidence would avoid a miscarriage of justice. In Betts at [10] the High Court observed:

“Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence. Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence. Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence. None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice.” (Emphasis added, footnotes omitted.)

In the context of a severity appeal, when considering whether leave to appeal should be granted, the nature of the inquiry raised by the proposed ground of appeal ought to be kept in mind: Shalida v R [2024] NSWCCA 55 at [37] (Gleeson JA, Rothman and Cavanagh JJ agreeing). It is an objective inquiry based “ultimately, [on] what did or did not occur” and whether this occasioned a miscarriage of justice. In the present case, the applicant did not disclose the sexual assault to his legal representatives at the sentence proceedings. It was not contended that the absence of the material was a result of incompetence of counsel.
The relevant test was set out by Hamill J in Green v R (Macfarlan JA and Harrison J agreeing):

“[38] The question is not whether there was neglect or incompetence but whether, viewed objectively, the events that unfolded gave rise to a miscarriage of justice. The inquiry is an objective one, focused ‘ultimately, [on] what did or did not occur’ in relation to the entering of the plea and whether a miscarriage resulted. The evidence of the lawyers is relevant to inform that question of whether there was a miscarriage of justice. It is not an inquiry into whether there was professional neglect. As Gaudron J put it in TKWJ v The Queen (2002) 212 CLR 124 at [31]:
‘As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of “flagrant incompetence”, “egregious error” or the like.’

[39] Her Honour was alluding to earlier cases where such language was employed and where the focus of the inquiry was on the degree of the lawyers' neglect or incompetence. Similarly McHugh J said in TKWJ v The Queen at [79]:
‘The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred.’”

(Footnotes omitted.)

In Shortland v R [2024] NSWCCA 174 the Court was concerned with the admission of additional evidence after sentence. Stern JA (Cavanagh and Sweeney JJ agreeing) stated that it was clear that sentence proceedings “may give rise” to a miscarriage of justice where material evidence was available and relevant to sentence, but the offender was deprived of the opportunity to have that material considered in mitigation. The Court concluded that had a psychological report of the nature of that which was tendered as additional evidence been before the sentencing court, there would have been a material prospect of the applicant receiving a lesser sentence: at [50].
The relevant enquiry to be made when determining whether to admit additional evidence (irrespective of whether it is “new” or “fresh” evidence) is a consideration of whether a miscarriage of justice has occurred in depriving the applicant of the opportunity to have material considered which could have a real bearing on the sentence. In considering that test, the Court is to consider whether the additional material had the capacity or potential to materially impact the sentence. It is not whether the Court can conclude with any certainty that the material would have made a material difference to the sentence.
The sentencing judge was not provided with any material relating to the applicant’s subjective case. As noted earlier, the sentencing judge made some brief findings about the applicant’s subjective case on the very limited material available to him. Other than the applicant’s age, his citizenship of Fiji and the fact that he had “a problem with alcohol” that had escalated over the year that the offences were committed, there were no other details about the applicant’s subjective case.
The absence of relevant subjective material impacted upon the sentencing judge’s capacity to assess moral culpability; to consider whether the applicant was a suitable vehicle for general deterrence; to properly assess the applicant’s prospects of rehabilitation; and to inform the question of whether there should be a finding of special circumstances. Had the new evidence been before the sentencing court, there could have been a material prospect of the applicant receiving a lesser sentence.
The applicant’s legal representatives at the sentence hearing attempted, unsuccessfully, to obtain from the applicant a history of his background and subjective case. Although the occurrence of the sexual assaults was obviously known to the applicant, it was not known to his legal representative at the time of the sentence proceedings. In circumstances where it may be accepted that the applicant did not disclose the sexual assaults because he was embarrassed and ashamed, the question as to whether the evidence was discoverable with the exercise of reasonable diligence requires a nuanced approach.
I am persuaded that the additional evidence falls into the category of “fresh” evidence. I am not of the view that the evidence was discoverable with the exercise of reasonable diligence.
Even if the evidence is characterised as “new” evidence, it had the capacity to have a real bearing upon the exercise of his Honour’s sentencing discretion: R v Goodwin (1990) 51 A Crim R 328 at 330 (Hunt J, Grove J agreeing); Kaveh v R [2017] NSWCCA 52 at [33] (Latham J, Basten JA and Campbell J agreeing); Elali v R [2025] NSWCCA 9 at [134] (Price AJA, Ierace and McNaughton JJ agreeing).
I am satisfied that the absence of the additional evidence at the sentence proceedings resulted in a miscarriage of justice. I would therefore uphold Ground 2.

Resentence

Having determined that Ground 2 should be upheld, it is not necessary to deal with Ground 1: C v R [2022] NSWCCA 285 at [67] per Mitchelmore JA (Bell CJ and Yehia J agreeing). I have, however, had regard to the submissions made in respect of Ground 1, on resentence.
Error having been established, it is necessary to resentence the applicant unless, in the separate and independent exercise of my discretion, I conclude that no different sentence should be passed: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [35] per French CJ, Hayne, Bell and Keane JJ; Young (a pseudonym) v R [2021] NSWCCA 163 at [88]-[95] per Beech-Jones J (Basten JA agreeing).
In the absence of any challenge by the parties to the sentencing judge’s summary of the facts and his assessment of the objective seriousness of each offence, I adopt that summary and agree with his Honour’s assessment of the objective seriousness of the offences. The offending conduct was grave. The offences involved sexual touching and sexual assaults on a child, in circumstances where on occasion the applicant used threats and physical violence.
The child victim suffered greatly as a result of the offending. Not only must the offending be denounced, but the applicant must also be held to account for his appalling crimes which call for condign punishment.
In resentencing the applicant, I have had regard to the applicant’s subjective case which is before this Court by way of the fresh evidence. The additional material provides an overview of the applicant’s subjective case which was almost entirely absent in the sentence proceedings. The report of Dr Furst dated 26 January 2024, provides a summary of the applicant’s psychiatric, drug and alcohol history and documents the results of the mental state examination, which gave rise to the making of several diagnoses, including alcohol use disorder, paedophilic disorder and post-traumatic stress disorder.
Dr Furst states that after returning to Australia in November 2020, the applicant suffered “symptoms of post-traumatic stress disorder in the form of frequent nightmares, insomnia, increased anxiety and increased drinking. It was in this context that the sexual abuse of his stepdaughter commenced and then continued, often whilst he was intoxicated”. Dr Furst states that “[a]lthough not directly causal of his actions, his PTSD and increase[d] abuse of alcohol probably contributed to his poor decision-making and disregard of the consequences of his actions when he initiated inappropriate sexual contact with his stepdaughter and continued to abuse her thereafter.”
The difficulty that sometimes exists in identifying whether a mental health condition or an alcohol addiction is causative of offending, was acknowledged by N Adams J (Ierace and Sweeney JJ agreeing) in Aiga v R at [97]:

“It is not uncommon for offenders to come before the court with a combination of a deprived childhood, mental illness and a drug or alcohol addiction. This can make it difficult to unravel which of those three factors, if any, are potentially causative of the offending behaviour. It can be important to identify what factors are causative because while a deprived childhood and/or mental illness may reduce an offender’s moral culpability, drug or alcohol addiction usually does not. Section s 21A(5AA) of the Sentencing Act provides that, ‘[i]n determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor’.”

Although the applicant’s increased consumption of alcohol related, at least in part, to the trauma he experienced when he was sexually assaulted, his intoxication at the time of the offending is properly characterised as “self-induced”. The applicant drank alcohol from his early to mid-teens, often to excess. This was before the sexual assaults upon him occurred and prior to the onset of PTSD symptoms. I cannot find that the applicant’s alcoholism was the result of his PTSD.
By virtue of s 21A(5AA) of the CSPA, the applicant’s self-induced intoxication at the time of the offending could not therefore be taken into account as a mitigating factor.
The sexual assaults experienced by the applicant and the resulting condition of PTSD are matters relevant to the applicant’s subjective case which must be factored into the equation of the proportionate sentence. It is of some note that both victims observed a change in the applicant’s behaviour upon his return to Australia in November 2020. He was “argumentative, withdrawn and seemed angry”. Although not “directly causal” of his offending, his decision making and disregard for the consequences of his actions were at least in part due to his PTSD and it is therefore relevant to an assessment of his moral culpability and a reduction in the weight to be afforded general deterrence. However, the extent of any reduction must be assessed in the context of the gravity of the offending.
The primary importance of the new evidence relates to two related but discrete aspects of the sentencing exercise. First, in relation to an assessment of the applicant’s prospects of rehabilitation. Second, as to whether there should be a finding of special circumstances.
Dr Furst provides recommendations regarding the applicant’s future treatment. The applicant would likely benefit from treatment with psychotropic medication and engagement in drug and alcohol counselling. Although an assessment of the applicant’s prospects of rehabilitation must remain guarded, his disclosure of the sexual assaults committed against him, the diagnoses that have been made and the recommendations regarding future treatment, are matters that paint a more positive picture of the applicant’s prospects of rehabilitation and unlikelihood of reoffending. They are also factors that give rise to a finding of special circumstances.
I am satisfied that there should be a variation of the statutory ratio to allow the applicant a longer period on parole to receive counselling and treatment for his mental health conditions.
Notwithstanding the new evidence, the objective seriousness of each offence warrants lengthy periods of imprisonment. Applying a 25% discount to reflect the utilitarian value of the plea, the indicative sentences are as follows:

Sequence	Offence	Indicative sentence
Seq 1	Intentionally sexually touch child between 10 and 16 years contrary to s 66DB(a) of the Crimes Act	3 years
Seq 2	Intentionally sexually touch child between 10 and 16 years contrary to s 66DB(a) of the Crimes Act	3 years
Seq 3	Intentionally sexually touch child between 10 and 16 years contrary to s 66DB(a) of the Crimes Act	2 years
Seq 5	Intentionally sexually touch child between 10 and 16 years contrary to s 66DB(a) of the Crimes Act	2 years
Seq 8	Sexual intercourse with a child aged 10 years or older and under 14 years contrary to s 66C(1) of the Crimes Act	4 years (NPP 2 years, 4 months)
Seq 10	Sexual intercourse with a child aged 10 years or older and under 14 years contrary to s 66C(1) of the Crimes Act	5 years (NPP 3 years)
Seq 11	Sexual intercourse with a child aged 10 years or older and under 14 years contrary to s 66C(1) of the Crimes Act	5 years (NPP 3 years)
Seq 13	Sexual intercourse with a child aged 10 years or older and under 14 years contrary to s 66C(1) of the Crimes Act	7 years (NPP 4 years, 6 months)
Seq 12 (on the Form 1 attaching to seq 13)	Intentionally sexually touch child between 10 and 16 years contrary to s 66DB(a) of the Crimes Act	-
Seq 18	Common assault contrary to s 61 of the Crimes Act	1 year
Seq 20	Common assault contrary to s 61 of the Crimes Act	1 year
Seq 21	Intentionally sexually touch child between 10 and 16 years contrary to s 66DB(a) of the Crimes Act	5 years
Seq 17 (on the Form 1 attaching to seq 21)	Intimidation (domestic violence) contrary to s 13(1) Crimes (Personal and Domestic Violence) Act	-
Seq 22	Intentionally choke without consent contrary to s 37(1A) of the Crimes Act	2 years, 3 months
Seq 23	Intentionally sexually touch child between 10 and 16 years contrary to s 66DB(a) of the Crimes Act	2 years

Having regard to notional accumulation and concurrency, and applying the principle of totality, I would impose an aggregate sentence of 15 years’ imprisonment commencing on 25 December 2021 and expiring on 24 December 2036, with a non-parole period of 9 years and 6 months, expiring on 24 June 2031.

Orders

I would propose the following orders:

Grant leave to appeal.

Uphold the appeal.

Quash the sentence imposed on the applicant in the District Court on 14 February 2023 and, in lieu thereof, sentence the applicant to an aggregate sentence of 15 years’ imprisonment to commence on 25 December 2021 and expire on 24 December 2036. The aggregate non-parole period is 9 years and 6 months to commence on 25 December 2021 and expire on 24 June 2031. Mr Lawavou will first be eligible for release to parole on 24 June 2031.

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Decision last updated: 14 March 2025

Medium Neutral Citation:	Lawavou v R [2025] NSWCCA 35
Hearing dates:	9 October 2024
Date of orders:	14 March 2025
Decision date:	14 March 2025
Before:	Garling J at [1]; Cavanagh J at [2]; Yehia J at [3].
Decision:	(1) Grant leave to appeal. (2) Uphold the appeal. (3) Quash the sentence imposed on the applicant in the District Court on 14 February 2023 and, in lieu thereof, sentence the applicant to an aggregate sentence of 15 years’ imprisonment to commence on 25 December 2021 and expire on 24 December 2036. The aggregate non-parole period is 9 years and 6 months to commence on 25 December 2021 and expire on 24 June 2031. Mr Lawavou will first be eligible for release to parole on 24 June 2031.
Catchwords:	CRIME – appeal against sentence – child sexual assaults – whether additional evidence of sexual assaults against the applicant should be admitted – characterisation of the additional evidence as “fresh” or “new” evidence – evidence admitted – appeal allowed – applicant resentenced
Legislation Cited:	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 Cited:	Adanguidi v R [2024] NSWCCA 82 Aiga v R [2024] NSWCCA 175 Barnes v R (2022) 299 A Crim R 483; [2022] NSWCCA 140 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 C v R [2022] NSWCCA 285 Cornwell v R [2015] NSWCCA 269 Eden v R [2023] NSWCCA 31 Elali v R [2025] NSWCCA 9 Green v R [2022] NSWCCA 230 Green v The King (1939) 61 CLR 167; [1939] HCA 4 Kaveh v R [2017] NSWCCA 52 Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49 Nosti v R [2024] NSWCCA 158 R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 R v Birks (1990) 48 A Crim R 385; (1990) NSWLR 677 R v Fordham (1997) 98 A Crim R 359 R v Goodwin (1990) 51 A Crim R 328 R v L (Supreme Court (NSW), 3 July 1986, unrep) Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Shalida v R [2024] NSWCCA 55 Shortland v R [2024] NSWCCA 174 Stubbings v R [2023] NSWCCA 69 Young (a pseudonym) v R [2021] NSWCCA 163 Zreika v R (2012) A Crim R 460; [2012] NSWCCA 44
Category:	Principal judgment
Parties:	Marika Vacokowale Lawavou (Applicant) Rex (Respondent)
Representation:	Counsel: S Odgers SC with S Kluss (Applicant) E Wilkins SC (Respondent) Solicitors: Ross Hill & Associate Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2021/00366329
Publication restriction:	Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the names or any matters which might tend to identify the victims or any children involved is prohibited.
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: - Date of Decision: 14 February 2023 Before: McGrath SC DCJ File Number(s): 2021/00366329