Nosti v R [2024] NSWCCA 158
Nosti v R [2024] NSWCCA 158 · Read the judgment on AustLII
Catchwords: Sentencing – fraud – rolled up facts – Form 1
Where an offender is to be sentenced for conduct across charges both on indictment and one or more Forms 1, the CCA has held that it will be an error if a sentencing Court is not specific in defining what is, and is not, part of the formal convictions. The presentation by the parties of a global position, encapsulating both the matters on indictment and the Form 1, may lead a court into error.
The applicant was the financial controller and then the financial manager of an independent school. He pleaded guilty to five counts on indictment of dishonestly obtaining a financial advantage by deception. Crucially, there were three further counts taken into account on two Form 1 documents. Over the course of about 14 years, the applicant redirected the school’s GST refunds from the Australian Tax Office into his own personal accounts. The total amount – including the Form 1 matters – was about $7.4million. More specifically, the offences on indictment involved obtaining about $6.77million over a somewhat shorter time span. The applicant had a gambling addiction and had committed the offences to feed that addiction. The offences came to light after the applicant resigned and a new financial manager reconciled the school’s funds. In the District Court the applicant was sentenced to an aggregate sentence of 9 years, with a non-parole period of 5 years and 6 months. He appealed his sentence, self-represented.
During the course of the appeal, despite being unenthusiastic about the applicant’s original appeal grounds (one of which raised ‘fresh’ evidence which was available but had not been relied upon at first instance), the Court raised with the Crown a concern with the way that the Form 1 matters had been dealt with during sentencing. The Crown had come ready to deal with the issue, and did not oppose a grant of leave to add the ground.
The Court (Dhanji J, with whom Harrison CJ at CL and Rigg J agreed) observed that the sentencing judge commenced her remarks by observing that the offending ‘… occurred over a period commencing [in] December 2004 through to 2 March 2019’ and ‘involved the misappropriation of just over $7.4milion’. This was not factually incorrect, but the offending for which the applicant was to be sentenced was more limited. The offending resulting in convictions was closer to $6.77 million – and the specific figure was provided to the CCA, but not to the sentencing judge at first instance (at [46]).
In sentencing for fraud, the total criminality will often be expressed in terms which include reference to the total amount and the period over which the offending occurred, since it is common to use those metrics to compare cases. However, that does not suggest that sentencing for fraud offences should proceed by reference principally to the factors of quantum and duration, since that would be to commit legal error, and would be contrary to the principle of individualised justice. Without being exhaustive, other factors include 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. The offender’s subjective case will of course always be relevant (at [44]-[45]).
The Court here was unable to see how the sentencing judge could correctly undertake the process of determining an appropriate aggregate sentence for the offending for which the applicant stood for sentence without being provided with the more specific value of fraud relating purely to the matters on indictment, as well as the correct offending period (at [47]).
The conduct of the parties at first instance in tendering Agreed Facts in the form they were and in providing incomplete submissions was such as to lead the sentencing judge into error (at [31]).
After resentencing (taking into account on resentence some fresh evidence which the applicant had tried – unsuccessfully – to raise as a principal ground of appeal), the applicant was resentenced to a period of 7 years and 6 months, with a non-parole period of 4 years and 6 months.
It follows that practitioners will need to be careful, in cases where offending has been ‘rolled up’, and where there are one or more Form 1 offences, to ensure that the specific offending captured by each count is explicitly set out by the Agreed Facts and the submissions. Care needs to be taken not to allow Form 1 offences to be merged into an ‘overall’ position – at least without qualification.