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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: Court of Criminal Appeal
Date: 21 August 2024
Judge(s): Harrison CJ at CL, Dhanji J, Rigg J

Background

The applicant worked as the financial controller and later financial manager of Moriah College, a Sydney eastern suburbs school, from January 2004 until he resigned in March 2019. After his departure, a new financial manager discovered that GST refunds from the ATO had been redirected to the applicant's personal bank accounts rather than received by the College. A forensic accounting investigation revealed the applicant had also been directly transferring College funds to his own accounts from 2004 onwards.

The total amount fraudulently obtained was $7,408,773.43, funded, as the applicant admitted, by a severe gambling addiction. He was arrested in May 2020 and made full admissions to police. He was sentenced in the District Court in August 2021 on five sequences of charges under s 192E(1)(b) of the Crimes Act 1900 (NSW), with further sequences listed on Form 1s to be taken into account at sentencing.

The applicant, representing himself, sought leave to appeal his sentence on the basis that its length, particularly the non-parole period, was excessive.

Legal Issues

  • Whether the sentence imposed was manifestly excessive
  • Whether new evidence raised by the applicant in an affidavit on appeal should be admitted
  • Whether the sentencing judge erred in the manner in which Form 1 offences were taken into account when determining the aggregate sentence
  • Whether the sentencing discretion should be exercised afresh

Decision

Manifest excess:
The applicant conceded on appeal that he could not identify any error on the part of the sentencing judge (at [29]). His submissions amounted to a request for leniency in the absence of identified error, which the Court noted is not a permissible basis for intervention (at [29]). The Crown submitted the sentence, while stern, was not manifestly excessive, and the Court indicated agreement (at [29]).

New evidence:
The applicant filed an affidavit raising matters known to him at the time of sentencing that had not been placed before the District Court. The Court refused to admit the evidence (at [28]). The applicant was not qualified to give the opinion he sought to advance, and no acceptable evidence linked the new material to the commission of the offences. The Court was not persuaded that any miscarriage of justice resulted from the absence of this material before the sentencing judge (at [28]).

Form 1 error:
The Court identified, of its own motion, an error in the treatment of the Form 1 offences (at [30]-[31]). The sentencing judge was never directly provided with the total amount of fraud involved in the charges for which the applicant was actually being sentenced ($6,769,873.05, from March 2010) as distinct from the global fraud figure of $7.4 million covering all conduct from December 2004 (at [46]). Both parties had presented submissions framed by reference to the total amount and the full 14-year period, including conduct covered only by a Form 1, and neither corrected this before the sentencing judge (at [47]-[48]). The Court found the inference was compelling that the sentencing judge had assessed the aggregate sentence by reference to $7.4 million over the longer period, rather than by reference to the criminality for which the applicant stood to be sentenced (at [48]). The parties had effectively led the sentencing judge into error (at [31]).

Re-exercise of sentencing discretion:
The Court held the sentencing discretion had miscarried and must be exercised afresh (at [50]). On resentencing, the Court adopted the sentencing judge's findings as to the applicant's subjective case (at [51]). The Court noted the offending was serious but not especially sophisticated, given the trust reposed in the applicant (at [52]). The relevant period was nine years, from March 2010 to March 2019, and the amount involved in the sentenced offences was approximately $6.76 million (at [53]). Applying a 25 percent discount for the guilty plea and finding special circumstances based on the applicant's substantial rehabilitation efforts, the Court imposed a total term of 7 years and 6 months with a non-parole period of 4 years and 6 months (at [55]).

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 25 August 2021 quashed
  • In lieu thereof, the applicant sentenced to an aggregate sentence of 7 years and 6 months imprisonment, with a non-parole period of 4 years and 6 months, commencing 25 August 2021 and expiring 24 February 2026
  • Earliest parole eligibility date: 24 February 2026

Key Takeaways

  • A self-represented applicant who candidly concedes he cannot identify legal error and asks only for leniency provides no permissible basis for the Court of Criminal Appeal to intervene in a sentence (at [29]).

  • New evidence on a severity appeal will not be admitted unless the applicant establishes a miscarriage of justice arising from its absence at first instance; unqualified opinion evidence without a proper evidentiary foundation will not satisfy that threshold (at [28]).

  • Where a sentencing judge is presented with an agreed statement of facts that does not distinguish between the amounts and periods attributable to sentenced offences and those on a Form 1, and both parties frame submissions around the global figures, the parties themselves may bear responsibility for any resulting sentencing error (at [31], at [47]-[48]).

  • Form 1 offences properly inform sentencing by, for example, affecting the weight given to retribution and personal deterrence for the principal offence to which they are attached, but they cannot be treated as offences for which the offender is being punished (at [39], at [52]).

  • Establishing a gambling addiction as the explanation for fraud offending does not, of itself, make the addiction a mitigating factor at sentence; that position reflects consistent Court of Criminal Appeal authority (at [26]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

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
- Johnston v R [2017] NSWCCA 53
- Kapila v R [2024] NSWCCA 48
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- R v Richard [2011] NSWSC 866
- R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64