R v Acevedo - [2024] NSWSC 639

Supreme Court

New South Wales

Medium Neutral Citation: R v Acevedo [2024] NSWSC 639
Hearing dates: 23 May 2024
Date of orders: 28 May 2024
Decision date: 28 May 2024
Jurisdiction: Common Law
Before: Harrison CJ at CL
Decision:
Bail granted subject to conditions

Catchwords:
CRIME – bail – release application – grant of bail following conviction but before sentence – whether the applicant “will be sentenced to full-time imprisonment to be served by full time detention” so that s 22B Bail Act 2013 (NSW) applies – where alternative sentence of community corrections order was available – where it could not be said the applicant “will” serve full-time imprisonment by way of full time detention – where the applicant has filed a notice of intention to appeal – where the applicant’s grounds of appeal “are at least arguable and enjoy reasonable prospects of success” for the purpose of the release application – not necessary to consider “special or exceptional circumstances” pursuant to s 22B Bail Act 2013 – bail granted

Legislation Cited:
Bail Act 2013 (NSW), s 17, 22B
Crimes Act 1900 (NSW), ss 61M, 66D
Crimes (Sentencing Procedure) Act 1999 (NSW), s 8

Cases Cited:
Director of Public Prosecutions (DPP) (NSW) v Day [2022] NSWCCA 173
Director of Public Prosecutions (DPP) (NSW) v Van Gestel (2022) 405 ALR 371; [2022] NSWCCA 171;
R v Williams [2018] NSWSC 994

Category: Principal judgment
Parties: Francisco Javier Acevedo (Applicant)
Crown (Respondent)
Representation:
Counsel:
G Scragg (Applicant)
Solicitors:
Ly Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2024/145088
Publication restriction: Nil

JUDGMENT

HIS HONOUR: Francisco Javier Acevedo was found guilty following trial by a jury in the District Court of New South Wales on 9 February 2024 of three counts (Counts 1, 2 and 5) of aggravated act of indecency – victim under 16 years (DV) - contrary to s 61M(1) of the Crimes Act 1900. The maximum penalty for these offences is 7 years imprisonment. On the same day he was found not guilty of two similar counts (Counts 4 and 6) and one count (Count 3) of attempt to have sexual intercourse with a child above the age of 10 years and under the age of 14 years contrary to s 66D of the Crimes Act. All of the offences were alleged to have been committed between 1 January 2001 and 26 August 2003. The complainant is the daughter of Mr Acevedo’s then wife.
Mr Acevedo was arrested on 3 May 2022. He remained at liberty on bail until the date of the verdicts. He is next scheduled to appear in court for sentence on 7 June 2024. A notice of intention to appeal was filed on 8 March 2024. It raises the following grounds of appeal:

Ground 1: The jury’s verdict of guilty on counts 1, 2 and 5 is unreasonable in all the circumstances and cannot be supported by the evidence having regard to the not guilty verdicts on counts…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Acevedo

Details

AGLC: R v Acevedo [2024] NSWSC 639
Case: [2024] NSWSC 639
Decision Date: 28 May 2024

CaseChat Overview and Summary

The case of R v Acevedo involved the applicant, Acevedo, who sought bail following his conviction but before his sentencing. The matter was heard in the Supreme Court of New South Wales. Acevedo applied for bail under section 22B of the Bail Act 2013 (NSW), which stipulates that bail may be granted to an applicant convicted of an offence but not yet sentenced if it can be shown that the applicant will be sentenced to full-time imprisonment to be served by full-time detention. The central issue for the court was whether Acevedo met the criteria for bail under this section of the Act.

The court examined whether Acevedo would be sentenced to full-time imprisonment in a full-time detention facility. The court held that the availability of an alternative sentence of a community corrections order meant it could not be definitively said that Acevedo would serve full-time imprisonment in this manner. Additionally, the court noted that Acevedo had filed a notice of intention to appeal against his conviction, and his grounds of appeal were at least arguable and enjoyed reasonable prospects of success. Consequently, the court found that it was not necessary to consider any special or exceptional circumstances under section 22B of the Act.

After considering these factors, the court determined that Acevedo met the criteria for bail under section 22B of the Bail Act 2013 (NSW). The court granted Acevedo bail, pending the outcome of his appeal and pending his sentencing. The court's decision was based on the applicant's arguable grounds of appeal and the reasonable prospects of success associated with those grounds. The court concluded that the balance of the relevant considerations favoured the granting of bail.

Orders