Moss v The King - [2025] NSWCCA 37

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Moss v R [2025] NSWCCA 37
Hearing dates: 7 March 2025
Date of orders: 14 March 2025
Decision date: 14 March 2025
Before: Kirk JA at [1];
Davies J at [16];
Rigg J at [17]
Decision:
Leave to appeal refused.

Catchwords:
CRIME – appeals – appeal against sentence – alleged error in finding transgender applicant did not have difficult and dysfunctional early life and difficulties which wreaked havoc on her life – sentencing judge did not set criteria to be established prior to considering applicant’s transgender status – no miscarriage of justice or unfairness established by not finding facts which findings had not been sought

Legislation Cited:
Crimes Act 1900 (NSW), s 86(2)(a)

Cases Cited:
DPP v Lester [2016] VCC 1445
Shortland v R [2024] NSWCCA 174
Tsiakas v R [2015] NSWCCA 187
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category: Principal judgment
Parties: Megan Moss (Applicant)
Crown (Respondent)
Representation:
Counsel:
L Fernandez SC (Applicant)
C Curtis (Respondent)
Solicitors:
Nyman Gibson Miralis (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/354658
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Not applicable

Date of Decision:

23 February 2024

Before:

Everson DCJ

File Number(s):

2021/354658

JUDGMENT

KIRK JA: The applicant, Megan Moss, is a transgender person who was convicted after a late guilty plea of a serious offence, namely aggravated kidnapping contrary to s 86(2)(a) of the Crimes Act 1900 (NSW). The maximum penalty for the offence is 20 years imprisonment. The sentencing judge, Everson DCJ, sentenced the applicant to a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 3 months.
The applicant seeks leave to appeal on three grounds:

(1) The sentencing judge erred in finding that in order to take into account the applicant’s transgender status the three criteria set out in DPP v Lester had to be established.
(2) The sentencing judge erred in finding that the applicant did not have a difficult and dysfunctional childhood and adolescence.
(3) The sentencing judge erred in finding that the applicant did not have transgender difficulties which wreaked havoc on her life.

All three grounds focus on the following portion of the sentencing judgment, where the applicant impugns the reasoning in the paragraph after the quotation from DPP v Lester [2016] VCC 1445:

My attention has been drawn by counsel for the offender to the Victorian County Court decision of DPP v Lester [2016] VCC 1445 where Judge Gaynor noted the following about the transgender status of an offender appearing for sentence.
“A great difficulty for you has been that in addition to this difficult and dysfunctional childhood and adolescence that you had to endure, it has been your belief from a very early age that although you were born a girl, you were in fact a boy. In other words, you have…

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 Moss v The King

Details

AGLC: Moss v The King [2025] NSWCCA 37
Case: [2025] NSWCCA 37
Decision Date: 14 March 2025

CaseChat Overview and Summary

The case of Moss v The King involved a transgender individual appealing against her sentence. The defendant, Moss, argued that the sentencing judge had erred in concluding that she did not have a difficult and dysfunctional early life that had significantly impacted her. The appeal was heard in the High Court of Australia. The primary focus of the appeal was whether the sentencing judge had made an error in not finding that Moss had a challenging early life and whether this error led to a miscarriage of justice or unfairness in the sentencing process.

The legal issues before the court included whether the sentencing judge had failed to properly consider the defendant's transgender status as a mitigating factor and whether this omission constituted a significant error in the sentencing process. Additionally, the court had to determine if the absence of a clear criterion for establishing the relevance of the defendant's early life circumstances constituted a procedural error. The court also needed to decide if the failure to find specific facts about the defendant's early life constituted a miscarriage of justice or unfairness.

The High Court found that the sentencing judge had not erred in not finding that Moss had a difficult and dysfunctional early life, as such findings were not sought. The court emphasised that the sentencing judge had not set out any criteria to be established before considering the defendant's transgender status. Furthermore, the court concluded that Moss had not demonstrated any miscarriage of justice or unfairness resulting from the failure to find specific facts about her early life. The court held that the sentencing process was fair and that the absence of certain findings did not affect the overall outcome.

The High Court dismissed the appeal, upholding the original sentence imposed on Moss. The court's decision underscored the importance of clearly identifying the criteria for considering mitigating factors, such as the defendant's transgender status, and ensuring that the sentencing process is conducted fairly and without procedural errors.

Orders