Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 6)

1. [1]

   This is an application by Sef Gonzales, the applicant, under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (“CAR Act”). It is his sixth such application [1] . The previous five, which all related to his convictions, were dismissed [2] . This is the first application which relates to his sentences. He has applied for the whole case to be referred to the Court of Criminal Appeal pursuant to s 79(1)(b) of the CAR Act.

2. [2]

   On 20 May 2004, the applicant was convicted, following trial by jury, of the murder of his mother, father and sister in their family home on 10 July 2001. He was arrested and charged on 13 June 2002 and has always maintained his innocence.

3. [3]

   The applicant was sentenced to life in prison on 17 September 2004 by James J [3] . The applicant appealed against his convictions and sentences to the Court of Criminal Appeal. His appeals were dismissed on 27 November 2007 [4] .

4. [4]

   The application is based upon new material containing a claim that the applicant was sexually assaulted by a priest when he was a child and suffers, as a result, from Post-traumatic Stress Disorder (“PTSD”). This new material is submitted to give rise to the appearance of a question as to a mitigating circumstance, such as to satisfy s 79(2) of the CAR Act, and is said to require the whole case to be referred to the Court of Criminal Appeal pursuant to s 79(1)(b) of that Act to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). It is claimed that the issue was not previously raised at the applicant’s sentence proceedings or on his appeals because he was in denial about his PTSD symptoms.

Background

1. [5]

   The following section is largely based on the background summary within the submissions filed on behalf of the Attorney General, which accurately reflects the findings made by James J in his sentencing judgment.

2. [6]

   At approximately 4.30pm on 10 July 2001, the applicant entered his sister Clodine Gonzales’ bedroom armed with a baseball bat or similar object and one or two kitchen knives taken from a knife block in the kitchen of the house. He compressed her neck in an apparent effort to strangle her, struck her at least six times with a blunt object (described as a baseball bat or similar) and stabbed her multiple times (inflicting five major stab wounds to her neck and two major wounds to her chest or abdomen). It is not possible to determine the precise sequence of the stabbing, hitting and strangling aspects of the attack.

3. [7]

   The applicant’s mother Mary Gonzales left his father Teddy Gonzales’ office (where she worked) at about 4.50pm, arriving home to North Ryde at about 5.30pm. Very shortly after she entered the house, the applicant attacked her with a kitchen knife. He stabbed her in the face, neck, chest and abdomen and her windpipe was completely transected. In support of his conclusion that the attack occurred shortly after Mary Gonzales entered the house, James J noted that Mary Gonzales was still wearing the shoes she had worn to work and her handbag was found on the floor close to her body. Mary Gonzales’ usual practice when she arrived home was to take off her shoes, put them in a shoe cupboard and place her handbag in one of two “special places”.

4. [8]

   Teddy Gonzales left his Blacktown office sometime after Mary Gonzales left. At 6.23pm he made a call to the landline at the family home. The call was not answered. Teddy Gonzales arrived at the house at about 6.50pm, whereupon the applicant attacked him with a kitchen knife, inflicting multiple stab wounds to his neck, chest, back and abdomen. He was still close to the front door at the time of the attack. James J observed that “[v]astly more force was used by the prisoner than was necessary to kill Mr Gonzales”. At the time of his death, Teddy Gonzales was still wearing the clothes and shoes he had worn to work. His briefcase was found on the floor near his body.

5. [9]

   At some stage during the evening on 10 July 2001, the applicant spray-painted the words “Fuck off Asians KKK” on a wall in the family room/kitchen area of the house. After killing his three family members, the applicant disposed of the items he used as weapons, as well as his clothing and shoes. None of those items have ever been found.

6. [10]

   The applicant then went to his friend Sam Dacillo’s house. The two had previously agreed to meet at 8pm at Mr Dacillo’s house and go out together. They met at or about the agreed time before driving to the Central Business District (“CBD”) in the applicant’s car. After going to Planet Hollywood on George Street and a nearby video games arcade, the two men left the CBD. The applicant did not say anything to Mr Dacillo about the killings.

7. [11]

   After the applicant dropped Mr Dacillo off around 11.30pm, he returned to the family home. Subsequently, he telephoned the Ambulance Service. A recording of the call was played at trial, though its precise timing was not fixed. During the call, the applicant told the operator that someone had shot his parents and that there was a lot of blood. He sounded distraught.

8. [12]

   James J made a number of findings relevant to motive, stating that in committing the murders, the applicant was motivated by fear that “because of his poor performance in his university studies, his parents might take his car [to which he was very attached] away from him and might withdraw other privileges which had been granted to him; and that he wished to inherit his parents’ property (worth about $1.5 million) without delay and as sole heir.

9. [13]

   James J noted the evidence at trial about the applicant administering poison to his mother about 10 days before the murders, which the applicant believed would be lethal.

10. [14]

    The applicant relied on two alibis, the first of which was abandoned and both of which were rejected by the jury. James J found that in addition to the alibis the applicant had attempted to set up a number of “false trails” including:

11. [15]

    Despite the applicant’s age, James J imposed concurrent life sentences for each of the murders, finding that there was a risk of future dangerousness posed by the applicant and that he was satisfied, for the purposes of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”) that the applicant’s level of culpability in the commission of each murder was so extreme that the community interest in the purpose of sentencing could only be met through the imposition of life sentences.

Material before me

1. [16]

   I have been provided with the following material:

   1. (1)

      Application by Mr Gonzales pursuant to s 78 of the CAR Act dated 24 November 2024 annexing:

   2. (2)

      Submissions on behalf of the Attorney General dated 27 February 2025

   3. (3)

      Applicant’s submissions in response to the Attorney General’s submissions dated 3 March 2025, annexing:

   4. (4)

      Reply submissions on behalf of the Attorney General dated 23 April 2025; and

   5. (5)

      Handwritten correspondence from the Applicant replying to the Attorney General’s reply submissions dated 1 May 2025.

2. [17]

   Also referred to in the material before me are the sentencing judgment of James J and the judgment of the Court of Criminal Appeal (both referred to at [3] above) which I have also considered.

3. [18]

   It is apparent from those judgments that the applicant relied at sentence on a report prepared by Professor David M Greenberg who had conducted a psychiatric assessment of the applicant over two days. James J noted at [71]:

4. [19]

   James J stated at [74]:

5. [20]

   As to any mental issue, James J concluded at [75]:

6. [21]

   It can also be noted that James J recorded (apparently based on the pre-sentence report) that the applicant migrated with his family to Australia from the Philippines when the applicant was eleven years old and that he went to high school in Australia. As set out below at [43], the age of the applicant when he arrived in Australia is now claimed by him to be incorrect, and that he arrived when he was ten years old.

7. [22]

   James J also noted that the pre-sentence report stated that the applicant’s behaviour since being in custody had been described by correctional staff as “polite and unproblematic”.

8. [23]

   James J imposed three concurrent sentences of imprisonment for life. Considerations for reaching this outcome included that the applicant did not plead guilty, that he did not provide any assistance to the authorities and, to the contrary, persistently endeavoured to mislead them. He showed no contrition. James J did not make any finding that the applicant had no prospects of rehabilitation. However, his Honour considered that there was a risk of the applicant re-offending and that there was a risk of future dangerousness. This conclusion was based on matters including the objective facts of the offences; that the applicant pleaded not guilty; that more than three years after having committed the offences the applicant continued to maintain his innocence and had not demonstrated any insight into the enormity of the offences he committed or any acceptance of responsibility for the offences; and the high degree of unscrupulousness and duplicity shown by the applicant in the raising of the false alibis and the laying of the false trails.

9. [24]

   The appeals to the Court of Criminal Appeal were against conviction and sentence. Relevantly, as to the sentence appeal, the Court noted that the applicant was aged 19 at the time of the murders, and 24 at the time of sentence. There was no reference to any child sexual abuse experienced by the applicant. The Court of Criminal Appeal at [165] found there was no error in the way in which James J dealt with the applicant’s age and nor was there any error regarding his prospects of rehabilitation. The Court of Criminal Appeal held that James J did not fail to consider the possibility of being considered for parole, and the sentences of life imprisonment were not manifestly excessive. The Court of Criminal Appeal concluded that it was “well open to the judge to regard the murders as within the worst category of murders at common law” and, for the purposes of s 61(1) of the Sentencing Act, that they were “at a level of culpability so extreme that the community interests there identified could only be met by the imposition of the life sentences”.

The law

1. [25]

   Part 7 of the CAR Act is headed ‘Review of convictions and sentences’.

2. [26]

   Division 3 of Part 7 is headed ‘Applications to Supreme Court’. Division 3 comprises ss 78 and 79 which read as follows:

3. [27]

   Section 74 of the CAR Act is headed “Definitions”. Section 74(2) provides:

4. [28]

   In determining an application under Part 7 of the CAR Act, the Court is making an administrative decision: Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 (“Eastman”) at [124].

5. [29]

   It can be observed that the relevant question pursuant to s 79(2) of the CAR Act is whether there “appears” to be “a doubt or question” – not whether there “is” a doubt or question (relevantly) as to any mitigating circumstances in the case. It is the satisfaction of the judge as to the relevant condition which is critical: Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783; [2013] NSWCA 383 (“Sinkovich”) at [26]; Buttrose v Attorney General of New South Wales [2015] NSWCA 221 at [16].

6. [30]

   It has been held (albeit it in a different legislative context) that a “question” is a less intense mental state than a “doubt” and may be stimulated “without any particular answer being pointed to”: Eastman at [134] per Heydon J (Gleeson CJ, Gummow, Kirby, Hayne, and Callinan JJ agreeing).

7. [31]

   In Sinkovich at [28], Basten JA stated in relation to the phrase “any mitigating circumstances”:

8. [32]

   As stated by Payne JA in GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 (“GAR”) at [139], the test in s 79(2) of the CAR Act is not a demanding one. It was further observed “the fact that the gatekeeper to either of the inquiries provided for by s 79 is the Supreme Court itself emphasises the importance of the role and ensures, as Basten JA explained at [53] in Sinkovich, that it is exercised ‘responsibly and, no doubt, sparingly’”. In this regard, the non-exhaustive factors set out in s 79(3) “throw [..] further light on the breadth of the matters which may be taken into account in exercising the gatekeeper role” (GAR at [139]).

9. [33]

   In Li v Attorney General for New South Wales (2019) 99 NSWLR 630; [2019] NSWCA 95 Basten JA at [19] endorsed as correct the following statement by Harrison J (albeit in relation to an application for an inquiry rather than a referral to the Court of Criminal Appeal, but nevertheless apposite):

10. [34]

    It is not necessary for the Court in an application under Part 7 to determine if the evidence is “fresh” rather than “new”. As Johnson J stated in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [11]:

11. [35]

    Johnson J also observed in Further Application by Gil Bum Yun pursuant to s. 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 825 at [50]:

12. [36]

    Section 79(3) allows the Court a discretion to refuse to consider or otherwise deal with an application for review if it appears that the matter has been, inter alia, fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence) and the Court is not satisfied that there are special facts or circumstances that justify the taking of further action.

The present application

1. [37]

   The applicant relies upon expert evidence from Mr Marc Richardson, a psychologist who states he is experienced in treating victims of historical child sexual abuse. In a document entitled “Expert certificate – pursuant to s 177 Evidence Act 1995” Mr Richardson states the following:

2. [38]

   It can be seen immediately that the applicant’s treating psychologist is purporting to provide an independent expert statement. This dual role, on the face of it, would appear to be problematic. Nevertheless, I am not finally determining any issue. Even if I regard the report as being limited to Mr Richardson’s view as an experienced treating psychologist, it appears that a question in relation to the issue of PTSD on the basis of historical child sexual abuse is being raised.

3. [39]

   The applicant (who is self-represented) contends that he has had a deprived background “in the sense that he was deprived of a childhood free from severe trauma and its severe consequences”. Although he acknowledged he was “raised in a loving and stable environment”, he also stated “he has had to suffer in silence and in debilitating denial about his PTSD and its cause, because addressing his PTSD and its traumatic cause was overwhelmingly distressing for the applicant as a child through to the time he was sentenced”. It is submitted that the applicant’s deprived background is a mitigating factor which should be taken into account.

4. [40]

   The applicant also submits that his PTSD diagnosis is a mitigating factor which causes his custodial sentence to weigh more heavily upon him.

5. [41]

   It is contended that the unavailability of this material at the time of sentence deprived James J of the opportunity to impose a lesser sentence based on all the subjective facts.

6. [42]

   Although not entirely clear, I have read the application in total as raising a question as to mitigating circumstances which satisfies s 79(2) of the CAR Act because first, his custody weighs more heavily upon him because of his PTSD, and second, the applicant’s culpability was affected because of his PTSD or relatedly because he had a “deprived background” in the sense that his background was not free of trauma.

7. [43]

   As noted above at [21], as to a factual issue which impacts upon the existence of the claimed trauma, the applicant also claims that James J:

8. [44]

   The Attorney General noted that James J applied s 61(1) of the Sentencing Act when he sentenced the applicant and pointed to the discussion of that provision set out in Rogerson v R; McNamara v R [2021] NSWCCA 160; 290 A Crim R 239 (“Rogerson”). The Attorney General also pointed to the discussion about the reduction of an offender’s moral culpability on the basis of a person’s mental health set out in DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [95], and further that it was not clear whether the applicant was relying upon the principles in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37.

9. [45]

   The Attorney General set out relevant parts of James J’s sentencing judgment, noting that the applicant had denied to Professor Greenberg that he had any symptoms of PTSD just before the murders or subsequently, and Professor Greenberg’s opinion that he was unable to diagnose the applicant with any major psychiatric illness or personality disorder. As set out above at [20], James J found that at the time of the murders, the applicant was not suffering from any mental illness, disorder or abnormality which mitigated his objective criminality.

10. [46]

    The Attorney General submits that there is not sufficient material to give rise to the appearance of a doubt or question about a mitigating circumstance, given there is no information in the material verifying the point in time at which the applicant began experiencing symptoms of PTSD, and noting the disavowal of any such symptoms to Professor Greenberg. The Attorney General notes that the Justice Health Medical Certificates referred to by Mr Richardson as confirming that the applicant has been a long-suffering victim of PTSD throughout his time in custody have not been provided, and nor has the basis been set out upon which Mr Richardson suggests that it is “highly likely” that the applicant has been suffering PTSD since 10 years of age.

11. [47]

    The Attorney General submits that the application “does not raise any appearance of a doubt or question as to a mitigating circumstance in the applicant’s sentence … [and] does not provide a basis for referring the case to the [Court of Criminal Appeal] pursuant to the CAR Act”.

12. [48]

    The applicant made submissions in response contending that the Attorney General had not acknowledged that Mr Richardson was not only an expert who had agreed to be bound by the Expert Witness Code of Conduct, and had made enquiries he deemed appropriate, but was also an approved counsellor under the NSW Victims Support Scheme. The applicant submitted there was no reason provided to doubt Mr Richardson’s statement that he had viewed the relevant records, and there was no basis to question his interpretation of the records. The applicant produced two pages of correspondence confirming, when read together, that Mr Richardson was approved to provide counselling to the applicant for 22 hours under the VRS Act.

13. [49]

    As to the applicant’s prior denial of PTSD to Professor Greenberg, the applicant submitted that the Attorney General’s submission gives no weight to Mr Richardson’s opinion that the reason the applicant was in denial about his PTSD symptoms was because acknowledging these symptoms would lead to him having to publicly confront the cause of the trauma which was very distressing to the applicant over two decades ago. The applicant further submitted that the Attorney General’s submissions do not take into account that failure to acknowledge abuse is consistent with survivors of historical child sexual abuse. Finally, the applicant contended that should the Court accept Mr Richardson’s expertise, there is no reason to doubt his conclusions.

14. [50]

    The Attorney General’s submissions in reply commenced with a legal analysis concerning the admissibility of the correspondence referred to by the applicant under s 113 of the VRS Act. Ultimately, however, the submission was made that the Attorney General does not contend that s 113(1) of the VRS Act precludes me from having regard to the documents supplied by the applicant in support of this application. I accept that I can have regard to the supporting correspondence submitted by the applicant. However, the following submission was made:

15. [51]

    I note that this appears to be correct.

16. [52]

    It was still contended, nevertheless, that there remains insufficient material to give rise to the appearance of a doubt or question about a mitigating circumstance for the reasons previously advanced.

17. [53]

    The applicant finally submitted the following in response to the Attorney General’s complaint that the source records were not produced by Mr Richardson:

Consideration

1. [54]

   It is clear that the evidence provided in support of the applicant’s application is scant. However, as noted above, the test in s 79(2) is not a demanding one. Further, the material which has been provided resonates with the now well recognised fact that many victims of child sexual abuse do not disclose their abuse until many years later, often when they are well into adulthood: Willmot v Queensland [2024] HCA 42; (2024) 419 ALR 623; (2024) 98 ALJR 1407 at [21].

2. [55]

   I must also note that given the history of the rejected alibis, and false trails laid by the applicant, one may be forgiven for being somewhat sceptical as to the veracity of the now claimed child sexual abuse. However, it can also be noted that the offences were committed when the applicant was only 19 years old, and he was sentenced when he was 24 years old and still a young adult. The offending was within a decade of the claimed child sexual abuse. I am not in a position to dismiss outright the opinion of the applicant’s treating psychologist, Mr Richardson, who claims to have expertise in child sexual abuse and is an approved counsellor under the NSW Victims Support Scheme. He opines that the applicant exhibits symptoms consistent with PTSD, and the applicant’s account as to why this was not raised at sentence is consistent with Mr Richardson’s experience of survivors of child sexual abuse. He opines that it is highly likely that the applicant has been suffering from PTSD and the effects of his molestation at 10 years of age until the present date.

3. [56]

   As also noted above at [33], the level of satisfaction I have to reach for a referral to be made is not that a doubt or question is well founded, but only that there appears to be a doubt or question as to any mitigating circumstance. The issue of PTSD on the basis of child sexual assault was not raised before the sentencing judge, but it is possible that it could, if made out, potentially have some impact upon a s 61 determination as a mitigating circumstance. If successfully raised on appeal, this issue would likely be considered in the context of the case law which makes clear that in assessing the level of culpability of the offender in the commission of the offence for the purposes of s 61(1), the Court should take into account the circumstances surrounding or causally connected to the offence. This exercise not only includes consideration of the objective seriousness of the offence, but also subjective matters, such as the offender’s background, criminal history and any mental disease, disorder or incapacity. Even if these matters tend towards the imposition of a life sentence, there remains a discretion for the Court to impose a fixed term. In the exercise of instinctive synthesis, consideration of subjective matters such as remorse, confessions, pleas of guilty and their timing, and the offender’s prospects of rehabilitation are germane. Some matters may be relevant to both stages of the assessment: Sentencing Act, ss 61(3) and 21(1); R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469; 121 A Crim R 342 at [93]; Rogerson at [634]–[635].

4. [57]

   Even though the material before me is scant, and some would not be admissible on appeal, I am of the view that the modest threshold set out in s79(2) has been met. I am satisfied that there appears to be a doubt or question as to a mitigating circumstance in the case. It is worth noting again that the applicant is currently self-represented and, in my view, would have little chance of success on appeal on the admissible material he has presented so far. Whether either of those factors change remain to be seen.

Orders

1. [58]

   Accordingly, I make the following orders:

   1. (1)

      I direct that pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), the whole of the applicant’s case is referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence.

   2. (2)

      The applicant’s case be listed before the Registrar of the Court of Criminal Appeal for further directions as soon as reasonably practicable.