Citation: R v Dimitri De Angelis [2012] NSWDC 219
Court: District Court of New South Wales
Date: 28 November 2012
Judge: Cogswell SC DCJ
Background
The defendant had been convicted of offences involving sophisticated deception and fraud and was awaiting sentencing. His solicitor applied for a short extension of bail to allow a forensic psychiatrist to conduct a pre-sentence assessment before the sentencing hearing.
The Crown opposed bail. Because the defendant had already been convicted, he did not enjoy the presumption in favour of bail that applies to many accused persons under the Bail Act 1978.
Legal Issues
- Whether bail should be granted to a convicted person awaiting sentencing, where no entitlement to bail exists under s 8(2)(a)(iii) of the Bail Act 1978
- How the four considerations under s 32 of the Bail Act applied to the particular circumstances of the defendant
Decision
The court found that, following conviction, s 8(2)(a)(iii) of the Bail Act removed any entitlement to bail. The application therefore fell to be determined solely by reference to the mandatory considerations in s 32(1), which the court noted exhaustively define the relevant matters: a court may take into account those specified matters "and those matters only."
The four s 32 considerations are the likelihood of the person appearing in court, the interests of the applicant, the protection of victims, and the protection and welfare of the community. On the first, the court noted no prior failure to appear, the surrender of two passports, no prior convictions, and long-term residence in Australia. The Crown's point that fresh passports could be applied for was noted but not treated as decisive.
The defendant's personal interests weighed significantly in favour of bail. A forensic psychiatrist had an appointment scheduled for the following Monday and had previously assessed the defendant's case as complex. While the appointment could occur in custody, it would cause disruption to the psychiatrist's practice. The court also noted the defendant had been receiving psychiatric treatment twice weekly since late 2010.
On community protection, the court acknowledged the seriousness of the fraud offences but observed that no offences had been committed while on bail and that prior apprehended violence order proceedings involving neighbours had been withdrawn or dismissed. The court granted bail for six days, subject to twice-daily reporting conditions, noting that the defendant needed to begin to appreciate that a custodial sentence was imminent.
Orders Made
- Bail granted until Tuesday 4 December 2012 at 10:00 am
- Defendant to report twice daily to Hornsby Police Station (at any two times within each 24-hour period)
- On Monday 3 December 2012, reporting reduced to once only, due to the psychiatric appointment
- All other existing bail conditions confirmed
Key Takeaways
- Under s 8(2)(a)(iii) of the Bail Act 1978, a person who has been convicted but not yet sentenced has no entitlement to bail; any grant is discretionary.
- Section 32(1) of the Bail Act limits the court to four specified considerations when determining a bail application: likelihood of appearance, the applicant's interests, victim protection, and community welfare.
- The District Court treated an imminent forensic psychiatric assessment, previously arranged in the community, as a meaningful factor weighing in favour of the defendant's personal interests under s 32.
- Absence of any offending while on bail, and the withdrawal of related civil proceedings, reduced the weight given to community protection concerns, even where the underlying offences were serious.
- Granting bail does not preclude the court from imposing onerous reporting conditions to reflect the seriousness of the situation and the imminence of a custodial sentence.
Legislation and Cases Referenced
Legislation:
- Bail Act 1978 (NSW), ss 8(2)(a)(iii), 32(1)
Cases cited: None cited in the judgment.