Agresta v The Queen

[2020] VSCA 334

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0103
S EAPCR 2020 0243

SALVATORE AGRESTA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and EMERTON JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 December 2020
DATE OF JUDGMENT:	14 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 334

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CRIMINAL LAW – Appeal – Conviction – Bail pending appeal – Whether exceptional circumstances – Expiry of non-parole period – Risk of successful appeal being rendered nugatory – Bail granted – Re Zoudi (2006) 14 VR 580, Cvetanovski v The Queen [2020] VSCA 126 followed – Criminal Procedure Act2009 s 310.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M E Dempsey with Mr J Barreiro	Condello Lawyers
For the Respondent	Mr M R Wilson	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P
EMERTON JA:

1. This is an application for bail pending appeal against conviction and sentence. As counsel for the respondent points out, this is an application under s 310 of the Criminal Procedure Act 2009, not under the Bail Act 1977, and it is governed by the principles applicable to appeal bail developed by this Court over a number of years.

1. The relevant principles were set out recently by the Court in Cvetanovski v The Queen:  

An application for bail by a person who is appealing against his/her conviction or sentence is quite different from a bail application by a person who is yet to be tried. In the latter case, the presumption of innocence applies and there is, under the Bail Act 1977, a presumption in favour of a grant of bail.

Bail pending appeal, on the other hand, will only be granted in exceptional circumstances. The stringency of this requirement reflects the fact that the conviction and sentence are valid unless and until set aside, and are not in any sense provisional or contingent upon confirmation by an appellate court. A grant of bail pending appeal also carries with it the risk that, should the appeal fail, the convicted person will have to return to prison.

In Re Zoudi, this Court held that the exceptional circumstances requirement may be satisfied where the appeal cannot be dealt with by the court until after the expiry of the appellant’s non-parole period. The fundamental principle is one of fairness. Bail is granted in order to avoid the injustice which would arise should the appellant end up serving more time in custody than would be lawfully justified in the event that the appeal succeeds. In that event, success on appeal is effectively rendered meaningless.[1]

[1]Cvetanovski v The Queen [2020] VSCA 126, [1]–[3] (Maxwell P, Beach and Weinberg JJA) (‘Cvetanovski’) (citations omitted).

1. The applicant relies on circumstances of exactly the kind described in those paragraphs.  He was convicted on 24 May 2012 of conspiracy to possess a commercial quantity of an unlawfully imported border-controlled drug, being ecstasy, in what is identified in his submissions and referred to more generally…