Nosti v R

Court of Criminal Appeal (NSW)|2024-07-26|Before: Harrison CJ, Dhanji J, Rigg J

The applicant's subjective case

The sentencing judge referred to the following features of the applicant's subjective case.
The applicant was 58 years old at the time of sentence. He was exposed to problematic poker machine gambling as a child, as a result of which his parents were forced to sell the family home and move to public housing.
The offender tendered a psychological report of Ms Anita Duffy, dated 21 June 2021. In this report Ms Duffy opined that the offender satisfies the diagnostic criteria for a gambling disorder and a major depressive disorder.
The applicant had two significant relationships: his first wife, with whom he ran a restaurant, until that business venture failed, partly due to his gambling; and his second marriage, which ended when the applicant's offending was disclosed.

Consideration

As noted above, the applicant represented himself on the appeal.
The applicant filed on his appeal an affidavit which raised matters upon which he wished to rely on this application, but which he had not raised in the District Court, despite the matters being known to him at that time. The Crown submitted that the evidence was not admissible on the appeal, other than in the event the Court came to resentence, having regard to the principles with respect to the admission of new evidence on appeal, referring to Barnes v R (2022) 299 A Crim R 483; [2022] NSWCCA 140 at [24]-[34] and Eden v R [2023] NSWCCA 31 at [38]. While the applicant expressed in his affidavit his own view that the new evidence on which he seeks to rely was the catalyst for his gambling addiction, he does not provide a foundation for that opinion. The applicant is not himself qualified to give the opinion. There is, as was pointed out by the Crown, no acceptable evidence before this Court linking the new evidence to the commission of the offences. In these circumstances, I am not persuaded that a miscarriage of justice was occasioned as a result of the absence of the new evidence before the sentencing judge. I would, as a result, and in accordance with established principles as to the nature of an appeal against sentence to this Court, not admit the new evidence unless some other basis is established requiring the Court to re-exercise the sentencing discretion.
The applicant's submissions, as might be expected, attacked the length of the sentence, pointing to various considerations which, in the applicant's submission, demonstrated the harshness of the sentence imposed upon him. Ultimately, however, the applicant frankly conceded he could not point to any error on the part of the sentencing judge. As to the result, the applicant, acknowledging his unfamiliarity with the appeal process, candidly referred to his own responsibility for his situation, and was not directly critical of the sentence imposed. The applicant's submissions, in essence, asked that this Court intervene in order to extend him a degree of leniency, in the absence of any identified error in the sentence pronounced below. While the applicant might be commended for the respectful and candid manner in which he put his case forward, that is not a basis on which this Court may permissibly intervene. The Crown submitted that while the sentence might be considered stern, it was not manifestly excessive, a submission with which I am inclined to agree.
There is, however, another issue. While not raised by the applicant, this Court raised with the counsel for the Crown at the hearing, a concern with respect to the manner in which the offences on the Form 1s were dealt with. In the event, and quite commendably, counsel for the Crown had come prepared to deal with the issue. In the circumstances counsel for the Crown, very fairly, did not oppose the applicant being granted leave to rely on a complaint of this nature in the absence of an articulated ground of appeal.
Having had the benefit of considered argument on behalf of the Crown, I have come to the view that her Honour erred in the manner in which the offences on the Form 1s were taken into account in determining the aggregate sentence. In making this observation, I should, at the outset, stress that the error is entirely understandable as a result of the manner in which the matter was presented to her Honour. That is, the conduct of the parties, in tendering the Agreed Facts in the form that they were in, the submissions of the Crown and the submissions on behalf of the applicant, were all such as to lead her Honour into error.
It will be recalled that the applicant was to be sentenced for sequences 1, 3, 5, 7 and 8. Sequences 2 and 4 were to be taken into account when sentencing for count 3. Sequence 6 was to be taken into account when sentencing the applicant for count 8. Her Honour imposed an aggregate sentence. This had the result that the Form 1 matters were taken into account in the determination of the indicative sentences for counts 3 and 8.
The manner in which offences on a Form 1 are to be taken into account is not controversial. In 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 ("Attorney General's Application"), Spigelman CJ explained the correct approach being as follows (at [39]-[40] and [42]): "39 The sentencing court is sentencing only for the "principal offence". It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a "discount" for the use of the procedure. This is not sentencing for the principal offence. 40 In my opinion, it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account, when sentencing for a particular offence, that is, the primary offence. … 42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another."
See also Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [22]-[23]; Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [23]-[25]. An offence on a Form 1 may also serve to put other offences into context: Kapila v R [2024] NSWCCA 48.

The sentencing judge's reasons

In order to understand my concern as to the treatment of the offences on the Form 1s, it is necessary to consider her Honour's reasons more generally.
Her Honour commenced her reasons as follows: "The offender, Augustine Robert Nosti, currently aged 58, is to be sentenced for five offences of [d]ishonestly [o]btaining a [f]inancial [a]dvantage by [d]eception. The offending occurred over a period commencing [in] December 2004 through to March 2019 in Sydney and involved the same victim, Moriah College, located at Queens Park in Sydney. The offending involved the misappropriation of just over $7.4 million."
Her Honour then noted that the offences were all charged against s 192E(1)(b) [1] of the Crimes Act 1900 (NSW), which prescribes a maximum penalty of 10 years imprisonment. Her Honour then said: "The offender also asks that I take into account, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999, offences on a Form 1. On a Form 1 and attaching to sequence 3, are two further offences of [d]ishonestly [o]btaining a [f]inancial [a]dvantage by [d]eception, pursuant to the same provision. On a further Form 1, attaching to sequence 8, is an offence of [o]btaining a [f]inancial [a]dvantage, [b]eing [m]oney, by [d]eception, pursuant to s 178BA(1) of the Crimes Act 1900, which carries a maximum penalty of five years imprisonment."
Her Honour, in referring to the manner in which the offences on the Form 1 were to be taken into account, said: "The offender must be sentenced in a way that will provide appropriate punishment for the principal offences to which he has pleaded guilty, subject to the consideration that must be given to the matters on the Form 1 that I am required to take into account. Having availed himself of the Form 1 arrangement, the offender has the benefit of not facing separate punishment for these additional offences. The additional offences do, however, impinge upon the sentence to be imposed for the principal offences to which they attach by requiring an appropriate increase in the sentence that would otherwise be applied to that principal offence standing alone. This is to reflect the need for greater weight to be given to specific deterrence arising from the extent of the offender's criminal behaviour and the community's entitlement to retribution for these additional offences."
Read in isolation, her Honour's statement that the penalty to be applied for the principal offences should be increased on the basis of "the community's entitlement to retribution for these additional offences" appears to be erroneous. There can be no aspect of extracting retribution from an offender for offences with respect to which they have not been convicted. Rather, the weight to be given to retribution for the principal offences may be affected having regard to the Court's awareness that the offender has committed other offences for which no punishment has, or will, be imposed.
I would, however, not find error on this basis. It is clear that her Honour appreciated that, in determining the indicative sentence for each offence, she was sentencing the applicant only with respect to that offence. Read in context, and noting that her Honour clearly had the reasons of Spigelman CJ in Attorney-General's Application in mind, I accept the Crown's submission that her Honour's reference to "for" can be read as meaning "having regard to".
Having referred to the Form 1 procedure, her Honour then went on to outline the proper approach to sentencing the offender in a manner which is unimpeachable. Thus, her Honour had regard to the purposes of sentencing, the yardstick provided by the maximum penalty, the facts of the offences from which their objective gravity was discerned, together with the circumstances of the offender. Regard was had to those various and competing considerations to arrive, by the process of instinctive synthesis, at an appropriate sentence for each offence. In determining the indicative sentences for counts 3 and 8, regard was had to the presence of the offences on the related Form 1s in the manner discussed above. The starting point for each offence was then appropriately discounted for the utilitarian value of the pleas of guilty.
Having arrived at appropriate indicative sentences, there was, of course a second step, which was to determine the total term. This, like the determination of the individual, or in this case, indicative terms, is not the result of a mechanistic or arithmetic exercise. In Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, Bell and Keane JJ said (at [37]): "Just as a sentencing judge is accorded as much flexibility as is consonant with the statutory sentencing regime in determining the appropriate sentence, so, too, the judge is to be accorded the same flexibility in determining the structure of two or more sentences. The [CSPA] does not confine the approach to be taken to the structure of two or more sentences. It assumes concurrency in the absence of a direction to the contrary. The sentencing judge was required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence was just and appropriate to the totality of the appellant's offending behaviour." (footnotes omitted)
As their Honours immediately went on to observe, the question of whether the sentences for two offences should be wholly concurrent, or the subject of at least a degree of cumulation, requires consideration of whether the sentence to be imposed for one offence "could encompass the criminality of both offences", or, as it has also been expressed, whether the sentence imposed for one offence is capable of comprehending the criminality of the other offence or offences: Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27]; R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 at [52].
The exercise to be conducted, of course, requires a proper appreciation of the total criminality. In cases of fraud such as the present, that total criminality will often be expressed in terms which include reference to the total amount obtained and the period over which the offending occurred. When looking at the results in other cases as comparators, it is common to assess those cases against the matter to be sentenced by reference to those metrics. Indeed, her Honour engaged in precisely this exercise. The relevance of the total amount of the fraud, as opposed to the amounts involved in the individual charges is further underscored by the fact that, as here, many of the "individual" charges will in fact be "rolled up" charges; that is, single charges which themselves encompass a number of individual offences, noting the use of rolled up charges necessarily affects the available maximum penalty: see generally R v Richard [2011] NSWSC 866.
None of what I have said immediately above is to suggest that sentencing for fraud offences should proceed by reference principally to the factors of quantum and duration. To give these factors determinative weight would be to commit the type of error identified in Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64. That is, it would be contrary to the principle of individualised justice. Without intending to be exhaustive, other factors commonly of relevance are any breach of trust and its nature; the number of victims and their circumstances; the sophistication of the enterprise; and the nature of the deception engaged in. An offender's subjective case will, of course, always be relevant. All relevant factors must be considered in the instinctive synthesis, including when looking at comparable cases.
In the present case, her Honour, as I have observed, commenced her remarks by noting that the offending "occurred over a period commencing [in] December 2004 through to 2 March 2019" and "involved the misappropriation of just over $7.4 million". That was not factually incorrect. However, the offending for which the applicant was to be sentenced was more limited. The amount involved in the offences resulting in convictions was $6,769,873.05. That figure, it might be noted, was provided by counsel for the Crown on the appeal. It was never provided to the sentencing judge. With respect to the time over which the offences were committed, the offending commenced in December 2004 with sequence 6, that being an offence with respect to which the applicant was not being sentenced. The offending for which the applicant stood to be sentenced commenced with sequence 7 on 11 March 2010. Again, this was not a matter drawn to the attention of the sentencing judge.
While her Honour's introductory observation as to the total of the frauds and the period over which they were committed was not factually wrong, it is significant, in my view, that, at no stage of the remarks on sentence did her Honour refer to the total amount involved in the offences for which the applicant was to be sentenced, or to the period over which they were committed. Indeed, after setting out, without distinguishing between them, the conduct relating to each of the sequences (including the Form 1 matters), her Honour again observed that the "total amount of funds that the [applicant] fraudulently obtained from the College was $7,408,777.43". Her Honour recounted, without demurrer, the Crown's submission that, relevant to objective seriousness, "[t]he offending commenced within the first year of employment in December 2004". Similarly, her Honour recounted the submissions of the applicant's counsel that matters relevant to objective gravity included "the quantum of money involved" and the "length of time over which the offences [were] committed" a period the applicant's counsel referred to as being 14 years and 2 months, that is, a period which included the period from 2004, the subject of sequence 6, for which the applicant was not being sentenced.
Despite both parties noting the relevance of the total amount and the period over which the offences were committed, her Honour was never, at least directly, provided with that information. I am unable to see how her Honour could correctly undertake the process of determining an appropriate aggregate sentence for the offending with respect to which the applicant stood for sentence, without it. The inference I would draw from the absence of any reference to the amount and period involved in the charges on which the Crown proceeded is that, in determining the total sentence, her Honour viewed the offending as encompassing a total of approximately $7.4 million over the period from December 2004 to March 2019.
The amount of money reflected in the charges for which the applicant was to be sentenced, was not of an order of magnitude different to the $7.4 million referred to by her Honour. Whether that difference had the capacity to affect the result (such that it can be regarded as material and thus triggering the need to re-exercise the sentencing discretion) need not be debated. The period of the offending was substantially extended by reference to the commencement date of December 2004. I do not mean to suggest that the date on which the applicant's misconduct began was irrelevant. Doubtless, when having regard to the weight to be given to retribution and personal deterrence in sentencing for sequence 8 (to which sequence 6 was attached), the reality that offending against the victim had been going on for some time was a relevant consideration. But that is not at all the same thing as imposing a sentence for the uncharged offending.
Contrary to the argument of the Crown on the appeal, it is not possible to conclude other than that the sentencing discretion miscarried in determining an appropriate aggregate sentence. The sentencing discretion must be exercised afresh.

Resentencing

I adopt the findings of the sentencing judge. With respect to the applicant's affidavit filed on the appeal, as noted above, there is an absence of evidence upon which the Court can rely linking the events referred to with the offending conduct. Nonetheless, the affidavit does at least establish that the applicant has reflected on the causes of his behaviour. This is of some relevance, together with the evidence of his efforts at rehabilitation, as put before the sentencing judge.
The offending was clearly serious, particularly having regard to the applicant's trusted position. The seriousness of the individual offences varied primarily in accordance with the amounts involved, which varied significantly, and the duration of the offences. The offences were not particularly sophisticated. Sequences 7 and 8, and sequence 6 on the Form 1, involved the applicant simply transferring funds from a College account to an account to which he had access. The remaining sequences were slightly, though not significantly, more sophisticated, involving the applicant misdirecting GST refunds. It should be noted that that lack of sophistication is, in large measure, a reflection of the trust that had been reposed in the applicant. In relation to sequences 3 and 8 it is necessary to have regard to the respective Form 1 offences. In the circumstances of the present matter, I am of the view that sequence 6 is properly taken into account by, in relation to count 8, increasing the weight to be given to retribution and personal deterrence based on the knowledge the applicant commenced his offending in 2004 with the commission of offences for which he will never be punished.
With regard to the overall criminality for which the offender stood for sentence, the total obtained, some $6.76 million dollars, is a very substantial amount. The period over which the offences for sentence occurred was nine years, from March 2010 to March 2019. While substantially less than the 14 years referred to in the court below, this is still a very substantial period. On the other hand, this was not a case involving the deception of multiple victims or involving the exploitation of victims with a particular vulnerability, and as such is not, all else being equal, as serious as such cases.
Had I been imposing individual sentences and not an aggregate sentence, I would, in each case, having allowed a discount of 25 percent for the applicant's plea of guilty, and with some rounding, have imposed the sentences set out in the table below: Seq Offence Dates Financial Advantage Starting Point Indicative Sentence 16.8.15 1 year 1 Dishonestly obtain financial advantage by deception; - $957,713.09 2 years 6 months 10 months 13.9.16 12.10.16 3 Dishonestly obtain financial advantage by deception; taking into account seqs 2 and 4. - $2,716,177 4 years 3 years 12.12.18 16.1.19 5 Dishonestly obtain financial advantage by deception. - $292,002 18 months 12 months 11.3.19 12.3.10 2 years 7 Dishonestly obtain financial advantage by deception. - $920,936.90 3 years 3 months 1.3.16 29.11.10 3 years 8 Dishonestly obtain financial advantage by deception; taking into account seq 6. - $1,683,050.06 5 years 9 months 15.4.15

To reflect the criminality across all the offences, there must be some cumulation. I would impose a total term of imprisonment of 7 years and 6 months. I would find special circumstances on the same basis as found by the sentencing judge and set a non-parole period of 4 years and 6 months. The ratio of the non-parole period to the total is very similar to that set by her Honour. I regard this as appropriate having regard to the very substantial steps taken by the applicant towards his rehabilitation.
In accordance with the above, I propose the following orders: 1. Grant leave to appeal; 2. Allow the appeal; 3. Quash the sentence imposed on the applicant in the District Court on 25 August 2021. In lieu thereof, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), sentence the applicant to an aggregate sentence for sequences 1, 3, 5, 7 and 8, to imprisonment for 7 years and 6 months, with a non-parole period of 4 years and 6 months, commencing on 25 August 2021, the non-parole period expiring on 24 February 2026. 4. The earliest date on which the applicant will be eligible to be released on parole is 24 February 2026.
RIGG J: I agree with Dhanji J.

Endnote

The reasons refer to s 192A(1)(b) which is clearly a transcription error. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2024

As to issue (1):

At [28]: There was no acceptable evidence before this Court linking the new evidence to the commission of the offences. In these circumstances, this Court was not persuaded that a miscarriage of justice was occasioned as a result of the absence of the new evidence before the sentencing judge. In accordance with established principles as to the nature of an appeal against sentence to this Court, the new evidence was deemed to be inadmissible unless some other basis was established requiring this Court to re-exercise the sentencing discretion. Barnes v R (2022) 299 A Crim R 483; [2022] NSWCCA 140, considered Eden v R [2023] NSWCCA 31, considered

As to issue (3):

At [31] and [46]-[50]: The conduct of the parties in the Court below, in tendering the Agreed Facts in the form that they were in, the submissions of the Crown and the submissions on behalf of the applicant, were all such as to lead the sentencing judge into error. Each failed to provide her Honour with the amount involved in the offences resulting in convictions and the period over which those offences were committed. It was not possible for her Honour to correctly determine an aggregate sentence for the matters with respect to which the applicant was convicted without having regard to the amount of the fraud and the period over which it was committed, limited to the matters for which the sentence was to be passed. 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, applied Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115, considered Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81, considered Kapila v R [2024] NSWCCA 48, considered

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