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Nosti v The King

Nosti v The King

Case [2024] NSWCCA 158 21 August 2024

Appeal

Sentencing

Error in Sentencing

Miscarriage of Justice

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nosti v R [2024] NSWCCA 158
Hearing dates: 26 July 2024
Date of orders: 21 August 2024
Decision date: 21 August 2024
Before: Harrison CJ at CL at [1]
Dhanji J at [2]
Rigg J at [57]
Decision:
(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.

Catchwords:
CRIME – appeals – appeal against sentence – severity appeal – dishonestly obtain financial advantage by deception offences – offences committed against employer – self-represented applicant – where applicant does not squarely raise legal error, manifest excess or miscarriage – where applicant concedes he cannot identify an error of law – where applicant candidly referred to his own responsibility and asked for a degree of leniency – not a basis on which this Court can intervene
EVIDENCE – question as to new evidence sought to be relied upon by applicant on appeal – where there is no evidence linking new evidence to commission of offences – where this Court not persuaded that a miscarriage of justice was occasioned as a result of the absence of the new evidence before the sentencing judge – established principles – leave to rely upon new evidence refused
CRIME – appeals – appeal against sentence – Form 1s – where the Court raised with counsel for the Crown a concern with respect to the manner in which offences on the Form 1s were dealt with – where Crown 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 – error found with respect to Form 1s – parties led sentencing judge into error – sentencing judge could not correctly undertake the process of determining an appropriate aggregate sentence due to lack of information – sentencing discretion miscarried – sentencing discretion exercised afresh

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

Cases Cited:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nosti v The King

Details

AGLC: Nosti v The King [2024] NSWCCA 158
Case: [2024] NSWCCA 158
Decision Date: 21 August 2024

CaseChat Overview and Summary

Nosti has appealed against his sentence for dishonestly obtaining a financial advantage by deception. The court must decide whether the sentence was manifestly excessive or whether there was a legal error. The applicant argued that the sentence was manifestly excessive, but did not identify any legal error. The applicant also sought to rely on new evidence but was unable to demonstrate a link between the new evidence and the commission of the offences. The court was not persuaded that a miscarriage of justice had occurred due to the absence of this evidence. The applicant also complained about the use of Form 1s by the prosecution. The court found an error in the use of these forms, which led to the sentencing judge being unable to correctly determine an appropriate sentence. The court found that the sentencing discretion had miscarried and ordered that the sentencing discretion be exercised afresh.
The appeal was dismissed, and the matter was remitted to the sentencing judge for re-sentencing. The court found that the applicant's appeal did not demonstrate a legal error, manifest excess or miscarriage of justice. The court was also not persuaded that the new evidence sought to be relied upon by the applicant would have made a difference to the sentence. The court found that the error in the use of Form 1s led to the sentencing discretion being miscarried and ordered that the sentencing discretion be exercised afresh. The court did not find it necessary to consider the applicant's argument that the sentence was manifestly excessive as the court found no legal error or miscarriage of justice.

Orders