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
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- Nosti v The King [2024] NSWCCA 158
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- [2024] NSWCCA 158
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CaseChat Overview and Summary
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
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Background
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Evidence
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Decision
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Ratio Decidendi
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