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Supreme Court 18 April 2018

R v Castagna (No 13)

[2018] NSWSC 2045

Fraud & dishonesty
BAIL PROCEEDS OF CRIME UNACCOUNTED FOR BAIL REVOKED

Citation: R v Castagna (No 13) [2018] NSWSC 2045
Court: Supreme Court of New South Wales
Date: 18 April 2018
Judge(s): Adamson J

Background

The offender, a medical practitioner referred to throughout as Dr Castagna, had been on bail since being charged. He was convicted by jury on three counts on the indictment on the day this judgment was delivered. Prior to conviction, he had complied with all bail conditions, which required him to reside at a specified address, notify authorities of overseas travel, and attend court as required.

Since being granted bail, Dr Castagna had travelled overseas at least six times and returned on each occasion. He had never failed to appear in court. At the time of sentencing he was in full-time employment, had no prior criminal history in Australia, and had strong community ties including a 45-year marriage, two children, and close to 20 years of residence in Gordon, NSW.

Following the jury's verdicts, the Crown made a detention application under s 50 of the Bail Act 2013 (NSW). The Crown submitted that the return of guilty verdicts represented a fundamental change in circumstances, making a custodial sentence highly likely and raising concerns about the risk of the offender failing to appear at sentencing and the risk of further serious offending.

  • Whether, following the return of guilty verdicts, there were bail concerns under s 17 of the Bail Act 2013 (NSW) that justified revocation of bail
  • Whether the likelihood of a custodial sentence under s 18 of the Bail Act 2013 (NSW) materially altered the bail assessment
  • Whether any conditions of bail could sufficiently ameliorate the identified bail concerns

Decision

Adamson J identified two primary bail concerns under s 17 of the Bail Act: the risk that Dr Castagna would fail to appear at the sentence hearing listed for 25 May 2018, and the risk that he would commit a serious offence if at liberty. The Crown pointed in particular to unaccounted-for proceeds of crime, arising from the gap between the unpaid tax and the amount the subject of count 13 of the indictment.

Under s 18(i1) of the Bail Act, the court was required to consider the likelihood of a custodial sentence given that conviction had been recorded but sentencing had not yet occurred. Adamson J found that a custodial sentence was "highly likely, if not inevitable."

Dr Castagna's counsel submitted a suite of relatively strict proposed bail conditions, including conditions as to residence and the provision of security. Counsel also drew attention to Dr Castagna's compliance record, community ties, and the fact that Adamson J had reserved a question of law for the Court of Appeal under s 72 of the Judiciary Act 1903 (Cth), which raised the prospect of an acquittal being directed. The court took that reserved question into account but was not persuaded it displaced the bail concerns identified.

Adamson J concluded that no conditions, including those proposed, could sufficiently ameliorate the bail concerns. The court emphasised the importance of protecting the administration of justice during the period between the return of jury verdicts and the sentencing hearing.

Orders Made

  • Bail revoked.

Key Takeaways

  • Under s 18(i1) of the Bail Act 2013 (NSW), where a person has been convicted but not yet sentenced, the likelihood of a custodial sentence is a specific matter the court must consider in assessing bail concerns, and a finding that such a sentence is "highly likely, if not inevitable" weighs significantly against continued bail.
  • A strong prior record of compliance with bail conditions, including multiple overseas trips and unfailing court attendance, does not automatically preclude revocation of bail once the circumstances change materially following conviction.
  • Refusing bail, the Supreme Court found that the period between the return of jury verdicts and the sentencing hearing is a critical phase for the administration of justice, one that may justify revocation even where the accused has complied fully with conditions up to that point.
  • The existence of unaccounted-for proceeds of crime can constitute a relevant factor in assessing the risk that an offender will commit a further serious offence if at liberty.
  • A reserved question of law with prospects of success on appeal is a factor properly taken into account in a bail determination, but it does not necessarily outweigh other bail concerns, particularly where a custodial sentence is considered highly likely.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17, 18, 50
- Judiciary Act 1903 (Cth), s 72

Cases cited: No cases were cited in the judgment.