Incandela v The Queen

[2022] ACTCA 52

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title: 

Incandela v The Queen

Citation: 

[2022] ACTCA 52

Hearing Date: 

7 October 2022

Decision Date: 

7 October 2022

Before: 

Elkaim J

Decision: 

Bail is refused

Catchwords: 

APPEAL – APPLICATION – Sentence – where applicant seeks a stay of his sentence – where applicant seeks bail pending his Court of Appeal hearing – bail refused

Cases Cited: 

Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290
Warne v The Queen [2022] ACTCA 35

Parties: 

ACT Director of Public Prosecutions

Salvatore Incandela (Offender)

Representation: 

Counsel

K McCann (DPP)

Self-represented (Offender)

Solicitors

ACT Director of Public Prosecutions

Self-represented (Offender)

File Number: 

ACTCA 25 of 2022

Decision under appeal: 

Court/Tribunal:	ACT Supreme Court
Before:	McCallum CJ
Date of Decision:	29 March 2022
Case Title:	R v Incandela
Court File Number:	SCC 64 of 2021

Elkaim J: 

1.       On 10 June 2022, the applicant was sentenced by McCallum CJ to three years’

imprisonment with a two year nonparole period after the offender was found guilty by a

jury of the offence of sexual intercourse without consent. The commencement of

imprisonment was backdated to 22 March 2022.

2.       The applicant, who is now applying for bail pending appeal, wishes to be granted bail so

that he can live at an address with his sister in Queensland. In order to obtain bail, an

applicant who is asking for bail pending an appeal needs to show special circumstances.

3.       In Warne v The Queen [2022] ACTCA 35 at [7] (Warne), I set out the applicable

principles, quoting from Refshauge J in Sherd v The Queen [2011] ACTCA 17; 5 ACTLR

290. In Warne, I said at paragraphs [8] and [10]:

The result of the above authorities is that bail should not be granted in the absence of exceptional circumstances, but that exceptional circumstances may be established by showing that a successful appeal would render the success as nugatory because of the time that had passed pending the appeal.

…

Clearly therefore the outcome of the application should be dictated by the strength of the appeal. If it has no prospects then that attribute should be shared with the application. But if there is an arguable case on appeal, and the stronger be better, then the chances of success on the application will be increased.

4.       The difficulty facing Mr Incandela is to establish the strength of the appeal and that if he

remained in prison, his success would make the appeal nugatory. However, he is going

to be in prison for about a year up to when his appeal is heard against a three year

sentence.

5.       Most importantly, he has not been able to show that there are exceptional circumstances.

What he has said is that he will face difficulty in preparing an appeal from in prison. I am

sure this is right. Being in prison would make things more difficult than if he was not in

prison and had the help of his sister, but that does not amount to exceptional

circumstances.

6.       I have no choice but to refuse bail.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: