R v Incandela (No 3) - [2022] ACTSC 93

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Incandela (No 3)
Citation:	[2022] ACTSC 93
Hearing Date:	29 March 2022
DecisionDate:	29 March 2022
Before:	McCallum CJ
Decision:	Bail revoked.
Catchwords:	CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Bail — Where offender convicted of indictable offence but not yet sentenced — Where Crown seeks revocation of bail — Whether the balance of consideration of the mandatory factors in s 22 of the Bail Act 1992 (ACT) is altered by fact of conviction
Legislation Cited:	Crimes Act 1900 (ACT) Bail Act 1992 (ACT)
Cases Cited:	Nona v The Queen (No 2) [2012] ACTCA 59 Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 State of New South Wales v Donovan [2015] NSWSC 1254
Parties:	The Queen ( Crown) Salvatore Incandela ( Offender)
Representation:	Counsel T Hickey ( Crown) T Jackson ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
File Number:	SCC 64 of 2021

HER HONOUR:

Salvatore Incandela stood trial for a single count of sexual intercourse without consent, being reckless as to whether the complainant was consenting contrary to s 54(1) of the Crimes Act 1900 (ACT). The offence carries a maximum penalty of imprisonment for 12 years. The jury has this morning returned a verdict of guilty whereupon the Crown applied to have Mr Incandela's bail revoked. The application is opposed.

Prior to his trial, Mr Incandela was on bail for a lengthy period of time, having been arrested in December 2020. His conditions of bail at some point were varied to allow him to reside in the state of Queensland, where he lived with his sister at an address in Southport and where he was able to secure employment in his previous occupation as a concreter.

As at the period immediately before the trial, he was working as the foreman of a crew of six, working full-time subject to days lost due to rain. He, so far as the information before the Court reveals, has not breached his bail on any occasion during that lengthy period. He has some minor prior convictions but none which would cause concern in the present context.

There is, however, the need to consider the particular provisions of the Bail Act 1992 (ACT). Section 9B of the Act removes the presumption for bail in the case of a person convicted of an indictable offence but not yet sentenced, which is of course the position in which Mr Incandela now finds himself. Bail is accordingly to be determined in accordance with the mandatory but not exhaustive list of considerations set out in s 22(1) of the Act as follows:

22    Criteria for granting bail to adults
(1) In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider—
(a)    the likelihood of the person appearing in court in relation to the offence; and
(b)    the likelihood…

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.

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Details

Case: [2022] ACTSC 93
Decision Date

CaseChat Overview and Summary

The case of R v Incandela (No 3) was heard by the Supreme Court of the Australian Capital Territory. Salvatore Incandela was convicted of a sexual offence and the Crown sought to revoke his bail. The Court was required to determine whether the mandatory considerations in s 22 of the Bail Act 1992 (ACT) are altered by the fact of a conviction and whether it should grant or refuse bail to the offender. The Court considered the arguments of both the Crown and the offender before making its decision.

The central legal issue was whether the mandatory considerations in s 22 of the Bail Act 1992 (ACT) are altered by the fact of conviction and, if so, how that fact should be taken into account in the assessment of the risk of flight and the strength of the evidence against the offender. The Court examined the relevant statutory provisions and case law, and considered the particular circumstances of the offender in deciding whether to grant or refuse bail. The Court concluded that the fact of conviction does alter the balance of the considerations in s 22 of the Bail Act and that it should take into account the increased risk of flight and the strength of the evidence in deciding whether to grant or refuse bail.

The Court found that the fact of conviction alters the balance of the considerations in s 22 of the Bail Act and that it should take into account the increased risk of flight and the strength of the evidence in deciding whether to grant or refuse bail. The Court considered the offender's particular circumstances, including his lengthy period on bail, his employment and residential arrangements, and his prior criminal history. The Court found that there was some risk of flight and that the offender did not have a particular need to be at liberty for the period between conviction and sentencing. The Court therefore concluded that bail should be revoked and that the offender should be taken into custody.

The Court revoked the offender's bail and ordered that he be taken into custody. The offender has the right to appeal the decision of the Court to the Court of Appeal of the Australian Capital Territory.

Orders