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Court of Criminal Appeal 21 August 2024

Nosti v R

[2024] NSWCCA 158

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE SEVERITY APPEAL OFFENCES COMMITTED AGAINST EMPLOYER SELF

Citation: Nosti v R [2024] NSWCCA 158
Court: NSW Court of Criminal Appeal
Date: 21 August 2024
Judges: Harrison CJ at CL, Dhanji J (primary judgment), Rigg J

Background

The applicant was employed as the financial controller, and later financial manager, of a Sydney private school from 2004 until 2019. Over that period, he fraudulently obtained more than $7.4 million from his employer to fund a severe gambling problem, making full admissions to police upon his arrest in 2020.

He was convicted on five charges of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900 (NSW), with three further offences taken into account on two Form 1 documents. He received a 25 percent guilty plea discount and was sentenced in the District Court to an aggregate term of nine years' imprisonment with a non-parole period of five years and six months.

The applicant sought leave to appeal, representing himself. He could not identify a specific error of law but complained the sentence was excessive, particularly the non-parole period. The Court of Criminal Appeal itself raised a concern about how the Form 1 offences had been handled at sentencing, and the Crown did not oppose the applicant relying on that issue despite it not having been articulated as a formal ground of appeal.

  • Whether new evidence the applicant sought to introduce on appeal should be admitted
  • Whether the original sentence was manifestly excessive
  • Whether the sentencing judge erred in the manner in which the Form 1 offences were taken into account when determining the aggregate sentence
  • Whether any error identified warranted the sentencing discretion being exercised afresh and, if so, what sentence should be imposed

Decision

New evidence: The applicant sought to rely on material not placed before the sentencing judge, despite those matters being known to him at the time of sentencing. The Court refused leave to rely on the new evidence. No acceptable evidence linked the new material to the commission of the offences, and the Court was not persuaded that any miscarriage of justice had occurred through its absence at the original hearing.

Manifest excess: The Court acknowledged the sentence was stern but declined to characterise it as manifestly excessive. The applicant's candid acknowledgment of personal responsibility and his request for leniency, while understandable, did not provide a basis for appellate intervention.

Form 1 error: The Court identified a significant procedural problem in the way the parties had presented the matter below. Both the Crown and the applicant's representatives had tendered agreed facts in a form that failed to identify, separately, the total amount and time period referable only to the five conviction offences, as distinct from the Form 1 matters. Without that information, the sentencing judge could not properly construct an aggregate sentence confined to the offences for which she was actually sentencing. Both parties had, in effect, led the judge into error.

Resentencing: Because the sentencing discretion had miscarried on the Form 1 issue, the Court exercised the discretion afresh. It had regard to the seriousness of the offending (particularly the applicant's position of trust), the variation in gravity across the individual offences, the applicant's rehabilitation efforts, and the reflection on his conduct evidenced in his affidavit filed on appeal. Some degree of cumulation of sentences was required to reflect the overall criminality. The Court imposed an aggregate sentence of seven years and six months' imprisonment, with a non-parole period of four years and six months, maintaining a similar ratio between the two periods to that set by the original sentencing judge.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence of nine years' imprisonment (NPP five years and six months) quashed
  • Applicant resentenced to an aggregate term of seven years and six months' imprisonment, with a non-parole period of four years and six months, commencing 25 August 2021
  • Earliest parole eligibility date: 24 February 2026

Key Takeaways

  • A sentencing judge determining an aggregate sentence for conviction offences that also involve Form 1 matters must be provided with the amounts and timeframes referable specifically to the conviction offences alone. Failure by the parties to supply that information can vitiate the sentencing exercise, even where neither party expressly objected at the time.

  • Where both parties lead a sentencing judge into error, the Court of Criminal Appeal may still identify and correct that error, including where the issue was raised by the Court itself rather than in a ground of appeal, provided the Crown does not oppose the point being taken.

  • New evidence on a severity appeal is not admissible as of right. The Court confirmed established principles: the evidence will be refused unless it can be shown that a miscarriage of justice resulted from its absence below, or some other basis exists requiring the sentencing discretion to be re-exercised.

  • A self-represented appellant's acknowledgment of personal responsibility and plea for leniency, while relevant context, does not itself constitute a legal basis for appellate intervention in a sentence.

  • Under s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the role of Form 1 offences is to inform the overall sentencing exercise, but the sentencing court must keep clear the distinction between what is being sentenced and what is merely being taken into account.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b) (dishonestly obtain financial advantage by deception)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Barnes v R (2022) 299 A Crim R 483; [2022] NSWCCA 140
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
- Eden v R [2023] NSWCCA 31
- Kapila v R [2024] NSWCCA 48
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64