Nosti v R [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)