Nosti v The King

[2024] NSWCCA 158

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 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

Category:

Principal judgment

Parties:

Augustine Nosti (Applicant)
Rex (Crown)

Representation:

Counsel:
J Styles (Respondent)

Solicitors:
Self-represented (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/00136895

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

25 August 2021

Before:

Robinson DCJ

File Number(s):

2020/00136895

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Augustine Nosti, sought leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed on him on 25 August 2021 in the District Court of New South Wales. The applicant was sentenced with respect to five charges of dishonestly obtaining a financial advantage by deception, committed against a common victim, his employer, Moriah College. Three further offences were taken into account on two Form 1 documents.

The applicant worked as the financial controller, and later the financial manager, of the College from 2004 until 2019. The total amount that the applicant fraudulently obtained from the College over this period was $7,408,773.43. The amount involved in the offences resulting in convictions (that is, excluding those offences listed on the Form 1 documents) was $6,769,873.05. Upon his arrest in 2020, the applicant made full admissions to police and said he had engaged in the fraud to fund his severe gambling problem.

The applicant was afforded a 25 percent discount with respect to each offence for his pleas of guilty which were entered in the Local Court. He was sentenced to an aggregate sentence of 9 years imprisonment with a non-parole period of 5 years and 6 months, commencing on 25 August 2021.

The applicant was unrepresented. He sought to rely on new evidence and impliedly raised a complaint of manifest excess. The Court raised an issue as to the manner in which the Form 1 matters were dealt with. Despite the matter not having been raised as a ground of appeal, counsel for the Crown had come prepared to deal with the issue and did not oppose the applicant relying on the issue in the absence of a ground of appeal.

The principal issues on appeal were:

1. Whether the new evidence upon which the applicant sought to rely, which he had not raised in the District Court despite the matters being known to him at that time, should be admitted;

2. Whether the sentence imposed by the sentencing judge was manifestly excessive;

3. Whether the sentencing judge erred in the manner in which the offences on the Form 1 documents were taken into account in determining the aggregate sentence; and

4. Whether, as a result of this Court’s view that issue 3 had been established, the appeal should be upheld, and a lesser sentence passed.

The Court held (per Dhanji J, Harrison CJ at CL and Rigg J agreeing), allowing the appeal:

As to issue (1):

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 (2):

2. At [29]: While the sentence was stern it was not manifestly excessive.

As to issue (3):

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

As to issue (4):

4. At [49]-[56]: The error identified in issue 3 required the sentencing discretion to be exercised afresh. With respect to the applicant’s affidavit filed on appeal, it at least established that the applicant had reflected on the causes of his behaviour. This was of some relevance, together with the evidence of his efforts at rehabilitation, as put before the sentencing judge. This Court found that the offending was 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 periods over which they were committed. To reflect the criminality across all the offences, some degree of cumulation was required.

5. The sentence imposed on the applicant in the District Court was quashed. The applicant was resentenced to imprisonment for 7 years and 6 months, with a non-parole period of 4 years and 6 months. The earliest date on which the applicant will be eligible to be released on parole is 24 February 2026.

JUDGMENT

1. HARRISON CJ at CL: I agree with Dhanji J.

2. DHANJI J: The applicant, Augustine Nosti, seeks leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed on him by her Honour Judge Robinson on 25 August 2021 in the District Court of New South Wales at Sydney. The applicant was sentenced with respect to five charges of dishonestly obtaining a financial advantage by deception, committed against a common victim, his employer, Moriah College. Three further offences were taken into account on two Form 1 documents pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA).

3. The applicant was afforded a 25 percent discount with respect to each offence for his pleas of guilty which were entered in the Local Court. He was sentenced to an aggregate sentence of 9 years imprisonment with a non-parole period of 5 years and 6 months, commencing on 25 August 2021. The non-parole period will end on 24 February 2027 and the full-term is due to expire on 24 August 2030. The sentencing judge made a finding of special circumstances, significantly varying the ratio between the non-parole period and the total term.

4. A table outlining the offences for which the applicant was sentenced is set out below:

Seq	Offence	Dates	Financial Advantage	Indicative and Aggregate Sentences
1	Dishonestly obtain financial advantage by deception; s192E(1)(b) Crimes Act 1900 (NSW) (CA); Maximum 10 years (no SNPP).	16.8.15 - 13.9.16	$957,713.09	1 year 10 months [22 months]
3	Dishonestly obtain financial advantage by deception; s192E(1)(b) CA; Maximum 10 years (no SNPP).	12.10.16 - 12.12.18	$2,716,177	3 years 9 months
Form 1 (Seq 2)	Dishonestly obtain financial advantage by deception; s192E(1)(b) CA; Maximum 10 years (no SNPP).	21.01.16	$19,289.37	[Form 1] Taken into account on Seq 3.
Form 1 (Seq 4)	Dishonestly obtain financial advantage by deception; s192E(1)(b) CA; Maximum 10 years (no SNPP).	10.11.17	$8,160	[Form 1] Taken into account on Seq 3.
5	Dishonestly obtain financial advantage by deception; s192E(1)(b) CA; Maximum 10 years (no SNPP).	16.1.19 - 11.3.19	$292,002	18 months
7	Dishonestly obtain financial advantage by deception; s192E(1)(b) CA; Maximum 10 years (no SNPP).	12.3.10 - 1.3.16	$920,936.90	3 years 4 months
8	Dishonestly obtain financial advantage by deception; s192E(1)(b) CA; Maximum 10 years (no SNPP).	29.11.10 - 15.4.15	$1,683,050.06	4 years 6 months
Form 1 (Seq 6)	Obtain money by deception (>$15,000) s178BA(1) CA; Maximum 5 years (no SNPP).	22.12.04 - 1.2.10	$611,445.01	[Form 1] Taken into account on Seq 8.
$7,408,777.43	TT 9 years NPP 5 years 6 months

Grounds of Appeal

5. The applicant was not represented either in the preparation, or at the hearing, of his appeal. He conceded in his written submissions that he could not “say that [her Honour] Judge Robinson had made any error of law”, but added “nor [could he] say that she had not”.

6. He did make a complaint as to the “length of the sentence being excessive, particularly the non-parole period.” The respondent Crown accepts that this submission impliedly raises manifest excess as a basis for this Court’s intervention.

Factual Background

7. An agreed statement of facts was tendered before the sentencing judge. The applicant was employed in January 2004 as the financial controller of Moriah College, a school of approximately 1650 students in the eastern suburbs of Sydney. His responsibilities included (but were not limited to) budgeting, financial accounting and reporting to the board. In January 2018, the applicant was appointed the full-time financial manager. He resigned in March 2019.

8. Upon the applicant’s resignation, Moriah College appointed a new financial manager, who undertook a reconciliation of funds in October 2019. In doing so, it became apparent that GST refunds from the Australian Taxation Office (“ATO”) had not been received by the College. GST revenue had been transferred by the ATO directly to personal accounts held by the applicant. The offences arising from this conduct are as follows.

Sequences 1, 2, 3, 4 and 5

Sequence 1

9. Between 6 August 2015 and 13 September 2016, the applicant directed eleven GST refunds from the ATO, totalling $957,713.09 into his personal Commonwealth Bank of Australia (“CBA”) account.

Sequence 2 (placed on a Form 1, and attaching to sequence 3)

10. On 21 January 2016, the applicant redirected one GST refund from the ATO, totalling $19,289.37, into his personal CBA account.

Sequence 3

11. Between 12 October 2016 and 10 December 2018, the applicant redirected 24 GST refunds from the ATO, totalling $2,716,177, into his ANZ joint offset account.

Sequence 4 (placed on a Form 1, and attaching to sequence 3)

12. On 10 November 2017, the applicant redirected one GST refund from the ATO, totalling $8,160, into his ANZ joint offset account.

Sequence 5

13. Between 16 January and 11 March 2019, the applicant redirected two GST refunds from the ATO, totalling $292,002, into his St George Bank account.

Sequences 6, 7 and 8

14. Subsequent to the discoveries made by the new financial manager, Moriah College engaged a forensic accounting firm, which commenced an investigation into the misappropriation of the College’s funds. It discovered that the applicant had been dishonestly transferring funds to his own private accounts from 2004 onward. That offending occurred by the applicant gaining access to College accounts and transferring significant sums of money into his own bank accounts. Consequently, further offences arose as follows.

Sequence 6 (placed on a Form 1 and attaching to sequence 8)

15. Between 22 December 2004 and 1 February 2010, the applicant transferred a total of $611,455.01 across 62 separate transactions into his personal accounts held at CBA and St George banks.

Sequence 7

16. Between 12 March 2010 and 1 March 2016, the applicant transferred a total of $920,936.90 across 156 separate transactions into his two personal accounts held at CBA and St George banks, and his ANZ joint offset account.

Sequence 8

17. Between 29 November 2010 and 15 April 2015, the applicant transferred a total of $1,683,050.06 across 145 transactions to his ANZ credit card account and a credit card account of his then wife, held at CBA.

Summary of Fraudulent Transactions

18. The total amount that the applicant fraudulently obtained from Moriah College was $7,408,773.43. The division between the matters for sentence and the Form 1 matters was not articulated in the Agreed Facts. I will return to this issue in the course of these reasons. The entirety of the funds was obtained by deception during the period of the applicant’s employment with the College.

Police Investigation and Arrest

19. On 7 May 2020, the applicant attended Waverly Police Station where he was arrested and interviewed. He made full admissions to police. He told police he had engaged in the fraud to fund his severe gambling problem. The applicant accepted the total funds and the number of transactions put to him by police.

The applicant’s subjective case

20. The sentencing judge referred to the following features of the applicant’s subjective case.

21. 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.

22. 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.

23. 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.

24. The applicant suffers from anxiety and has a heart condition. He was admitted to the Mental Health Unit at Hornsby Hospital between 10 November and 30 December 2019, having presented with suicidal ideation. During his admission, he engaged with counselling and attended Gamblers Anonymous. He was again admitted to the Mental Health Unit (subsequent to his arrest) between 9 June and 2 July 2020, again with suicidal ideation, gambling addiction and depression.

25. Following to his first admission to hospital, the applicant engaged in gambling counselling through Lifeline. Ms Isabel Alfonso, a Lifeline psychologist whose report dated 3 June 2020 was tendered by the applicant, described the offender as having expressed great remorse, particularly in relation to the impact of his conduct on his wife and children. Subsequent to his arrest, from 13 May 2020, the applicant has also engaged in fortnightly gambling counselling through BaptistCare. His counsellor, Ms Rhonda Woodford’s reports of 30 June 2021 and 5 August 2021 were tendered at sentence. In her first report, Ms Woodford describes the applicant to have “fully engaged in counselling” and to have shown “insight and understanding into his addiction” and a “willingness to show genuine responsibility”.

26. The applicant’s gambling addiction was found by the sentencing judge to be an explanation for the applicant’s offending but not a mitigating factor. I pause to note here that her Honour’s treatment of this issue was in accordance with authority, most notably Johnston v R [2017] NSWCCA 53 where Bathurst CJ observed (at [36]) that this Court “has consistently held that the fact that offences were committed to feed a gambling addiction will not generally be a mitigating factor at sentence”. Her Honour found that the applicant had good prospects of rehabilitation and was unlikely to reoffend.

Consideration

27. As noted above, the applicant represented himself on the appeal.

28. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.”

34. 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

35. 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.

36. 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.”

37. 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.”

1. The reasons refer to s 192A(1)(b) which is clearly a transcription error.

38. 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.”

39. 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.

40. 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”.

41. 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.

42. 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)   

43. 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].

44. 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.

45. 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.

46. 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.

47. 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.

48. 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.

49. 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.

50. 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

51. 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.

52. 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.

53. 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.

54. 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
1	Dishonestly obtain financial advantage by deception;	16.8.15 - 13.9.16	$957,713.09	2 years 6 months	1 year 10 months
3	Dishonestly obtain financial advantage by deception; taking into account seqs 2 and 4.	12.10.16 - 12.12.18	$2,716,177	4 years	3 years
5	Dishonestly obtain financial advantage by deception.	16.1.19 - 11.3.19	$292,002	18 months	12 months
7	Dishonestly obtain financial advantage by deception.	12.3.10 - 1.3.16	$920,936.90	3 years	2 years 3 months
8	Dishonestly obtain financial advantage by deception; taking into account seq 6.	29.11.10 - 15.4.15	$1,683,050.06	5 years	3 years 9 months

55. 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.

56. 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.

57. RIGG J: I agree with Dhanji J.

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Endnote

Decision last updated: 21 August 2024