The onerousness of imprisonment for transgender prisoners is a relevant sentencing factor, but the applicant's gender identity is irrelevant to moral culpability. Even where fresh evidence demonstrates significant hardship experienced by a transgender prisoner, including rape, assault and harassment, this may be insufficient to warrant a lesser sentence where the offending is serious. The Court did not resolve whether the applicant's post-sentence gender transition and experiences constituted fresh evidence demonstrating the true significance of pre-existing facts, instead disposing of the matter on the basis that no lesser sentence would be imposed even if the sentencing discretion were re-opened. In Victoria, no practical distinction is drawn between 'fresh' and 'new' evidence in sentence appeals.
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