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: Shortland v R [2024] NSWCCA 174
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category: Principal judgment Parties: Megan Moss (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
L Fernandez SC (Applicant)
C Curtis (Respondent)
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
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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.
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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.
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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…
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- AGLC
- Moss v The King [2025] NSWCCA 37
- Case
- [2025] NSWCCA 37
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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