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

1. 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.

2. 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.

3. 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 had transgender difficulties since a very early age and that in and of itself would be enough to wreak havoc in someone’s life. I am going to go back to your childhood in a little bit more detail because it seems to me that in addition to having to deal with transgender issues, at a time when the community is only just becoming truly accepting and understanding of the problems, that attend on people who feel that they have been born into the wrong body, you have as I said, had a very difficult childhood”.

The evidence in this case does not establish that the offender endured a difficult and dysfunctional childhood and adolescence. Nor does it establish that the offender endured transgender difficulties that wreaked havoc in her life. Moreover, I am not prepared to find that the community in New South Wales, particularly Sydney, is unaccepting of the problems that attend on people who feel they have been born into the wrong body.

4. This application is devoid of merit. Leave to appeal should be refused.

Ground 1: setting up three criteria for considering transgender status

5. Grounds 2 and 3 challenge factual findings in the impugned paragraph. In that context it was difficult to discern what ground 1 added to those grounds. The applicant’s answer was that this ground identified error of principle of the House v The King kind.

6. It is plain from the impugned passage that the sentencing judge was not articulating criteria which needed to be satisfied before the applicant’s transgender status could be considered in sentencing. The quotation from Lester had been drawn to his Honour’s attention by the applicant’s then counsel. Judge Gaynor was not articulating legal principles relating to sentencing of transgender people. The quotation simply involves factual findings about the accused in that case. And the sentencing judge here was indicating that, in light of the evidence before him, the factual findings in Lester were not apposite as regards the applicant.

7. Moreover, the sentencing judge had earlier said in the sentencing judgment that the applicant’s “identification as a transgender person is a significant feature to be taken into account in the sentencing exercise”. His Honour then listed ways in which that identification was significant, being the very ways which had been suggested in the applicant’s written submissions below: namely, that the applicant had been held in a men’s correctional centre when bail refused; that she had been abused in that centre; and that further time in custody would be served in a male facility. Later in the judgment his Honour dealt favourably with the submission that the applicant’s life had been destabilised by the transitioning process (as discussed below), accepted that the applicant’s transgender status in a male facility would make custody more onerous for her, and took that status into account again as a reason for finding special circumstances in setting the non-parole period.

8. In this context it is entirely untenable to suggest that the judge erred in declining to take into account the applicant’s transgender status unless the “three criteria” referred to in Lester were satisfied.

Grounds 2 and 3

9. The applicant complains that the sentencing judge erred in finding that the evidence did not establish that the applicant had had a difficult and dysfunctional childhood and adolescence, nor that she endured transgender difficulties that wreaked havoc in her life. No such findings were sought in the Court below. As has been said many times, it is incumbent in a sentencing appeal to establish error in the decision appealed from, and in general error cannot be established by saying a judge erred in failing to find or determine some point which had not been raised: eg Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [77]-[82]. In some cases the failure to raise a point may be of such significance as to constitute a miscarriage of justice or failure of procedural fairness sufficient to uphold an appeal: see eg Tsiakas v R [2015] NSWCCA 187 at [43]-[44]; recently, Shortland v R [2024] NSWCCA 174 at [45]-[49]. In considering any such argument it is relevant to take into account whether some forensic purpose was served by the point not having been raised.

10. It is rather arbitrary for the applicant to complain that findings in such distinct terms were not made, where those particular findings happen to have been made in Lester and the sentencing judge was simply saying such findings were not made out on the evidence before him. In any event, the applicant had given evidence by affidavit in the sentencing proceeding. She said she had always had the thought of transitioning since she was a teenager but was always in denial. She did not give evidence of any other difficulties in her childhood or adolescence. She said she commenced transitioning in late 2018, aged 36, by taking hormones; that prior to that time she was “very close to everyone in my family, including my aunties and cousins”, who would regularly invite her over for family gatherings; however since then her aunties and cousins had ceased all communication with her, and she felt her relationship with her mother had changed. A number of these matters were referred to by the sentencing judge.

11. Gender dysphoria is likely to be challenging for any child, adolescent or adult. But that challenge does not necessarily and of itself mean that the person must have had a difficult and dysfunctional early life or that havoc has been wreaked in their life. Whether or not such characterisations are apt depends on the facts.

12. The factual material that the applicant pointed to in this court were certain matters stated in a psychologist’s report that was tendered below, including: the applicant suffered a sexual assault at age 16 by a man outside the home, with consequent emotional and psychological effects; struggled to form close friendships during childhood which she attributed to gender dysphoria; experienced some caregiver discipline and embarrassment connected to dressing in feminine clothing and playing with dolls; suffered a self-inflicted genital injury at age eight; and had some suicidal and self-harming ideation since being about that age. The judge accepted some of these matters, including the sexual assault and consequent psychological difficulties. He was not bound to accept the historical facts recited in the report when the applicant had not testified to the truth of the matters recorded there.

13. Even if these matters were accepted they do not necessitate the sort of severe factual findings and characterisations now sought about her childhood, adolescence and life. That is especially so given that the psychological report itself said the applicant “described her immediate family to be loving and close knit” and she “denied any neglect or abuse … at home”.

14. Moreover, it was a rational forensic choice for the applicant’s counsel appearing below to seek to emphasise that she had had a substantially stable and happy life until difficulties arose connected with her decision to commence transitioning. That approach both sought to contextualise the offending and support the submission that the inevitable custodial sentence should be served by way of intensive correction order. And it had some success. The sentencing judge accepted that the applicant had “lost a large amount of support and stability in her life” consequent upon her commencing to transition, and accepted the psychologist’s assessment that she was “not inherently anti-social”, which supported a positive finding as to prospects of rehabilitation.

15. This application does not come close to making out any miscarriage of justice or unfairness to warrant upholding the appeal were leave to be granted.

16. DAVIES J: I agree with Kirk JA.

17. RIGG J: I agree with Kirk JA.

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Decision last updated: 14 March 2025