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Supreme Court 22 November 2016

R v Sigalla No 6)

[2016] NSWSC 1922

Fraud & dishonesty
CRIMINAL LAW DETENTION APPLICATION GRANTED BAIL REVOKED

Citation: R v Sigalla (No 6) [2016] NSWSC 1922
Court: Supreme Court of New South Wales
Date: 22 November 2016
Judge: Adamson J

Background

The accused was tried on an indictment containing 24 counts of dishonestly using his position as a company officer in breach of s 184(2)(a) of the Corporations Act 2001 (Cth), each count carrying a maximum penalty of five years imprisonment. The jury returned verdicts of guilty on all 24 counts on the afternoon of the judgment.

Immediately following the verdicts, the Crown made a detention application under s 50 of the Bail Act 2013 (NSW), arguing that bail should be revoked. The accused had been on bail for a substantial period leading up to trial, during which his compliance with bail conditions was described as very substantial, if not impeccable.

The accused was living in hotels (the Westin and then the Sheraton on the Park) at the time of the application. The defence contended the hotel accommodation was funded by accumulated loyalty points rather than cash, and that the accused had strong reasons to remain in New South Wales, including family ties and ongoing civil litigation in the Supreme Court.

  • Whether the bail concern under s 17(2)(a) of the Bail Act 2013 (NSW), that the accused would fail to appear at sentencing proceedings, was sufficiently established to justify revoking bail.
  • How the relevant factors under s 18(1) of the Bail Act 2013 (NSW) weighed against each other in circumstances where the accused had strong community ties but now faced a strong likelihood of a substantial custodial sentence.

Decision

Adamson J considered the relevant factors under s 18(1) of the Bail Act 2013 (NSW) to assess the strength of the bail concern that the accused would fail to appear for sentencing. The court acknowledged the accused's strong community ties in the jurisdiction, supported by the presence of his estranged wife and daughters throughout the trial, and his very substantial compliance with bail conditions over an extended period.

The court found that the nature and seriousness of the offences weighed against continued bail. The offending was characterised as relatively serious for its type, involving dishonest conduct over a prolonged period and a significant breach of corporate trust.

The prospect of a custodial sentence was central to the court's reasoning. Given the number of counts and the five-year maximum applicable to each, Adamson J formed a preliminary view that a custodial sentence of significantly greater length than the time remaining before sentencing was strongly likely. That prospect, the court held, materially increased the accused's incentive to abscond, a risk that had not existed to the same degree while the presumption of innocence remained.

The court also noted that expert assessment of the accused's physical and psychological health for sentencing purposes could be conducted in a custodial setting, and that this consideration did not tip the balance in favour of continued liberty. The defence submission regarding ongoing civil litigation and the need to prepare for sentencing was acknowledged but not found to be decisive. Bail was revoked and the accused was ordered to be detained forthwith.

Orders Made

  • Bail revoked.
  • The accused to be detained forthwith.

Key Takeaways

  • Guilty verdicts on multiple serious charges can substantially alter the bail calculus, even where an accused had previously demonstrated strong compliance with bail conditions and deep community ties.
  • Under s 17(2)(a) and s 18(1)(i) of the Bail Act 2013 (NSW), the likelihood of a substantial custodial sentence is a significant factor in assessing the risk of flight after conviction. The greater the likely sentence, the greater the court will regard the incentive to abscond.
  • The Supreme Court treated the rebuttal of the presumption of innocence by a jury's guilty verdict as a relevant consideration in the administration of justice when assessing a post-verdict detention application.
  • Expert reports on an accused's physical and psychological health for sentencing purposes can be obtained while the accused is in custody, and this was held not to justify continued bail.
  • Strong community ties, a history of bail compliance, and a lengthy period on bail are not automatically determinative where the prospect of a lengthy custodial sentence creates a materially increased flight risk.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17(2)(a), 18(1), 50
- Corporations Act 2001 (Cth), s 184(2)(a)

Cases cited: None cited in the judgment.