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:

1. 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.

1. 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.

1. 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.

1. 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 of the person, while released on bail—

(i)       committing an offence; or

(ii)      harassing or endangering the safety or welfare of anyone; or

(iii)      interfering with evidence, intimidating a witness, or otherwise     obstructing the course of justice, in relation to the person or      anyone else; and

(c)    the interests of the person.

1. Section 22(2) of the Act provides in addition:

(2)    Also, if the person is convicted of an indictable offence, or the elements of an indictable    offence are proven in relation to the person, but the person has not been sentenced, a      court must consider the likelihood of the person being given a sentence of      imprisonment.

1. The Crown has drawn the Court's attention to the consideration of that subsection in the decision of Refshauge J in Nona v The Queen (No 2) [2012] ACTCA 59, particularly at [52] where his Honour expressed the conclusion that:

“Ordinarily, when a person has been convicted of an indictable offence for which a sentence of imprisonment is at least almost inevitable, s 22(2) of the Bail Act makes it 'tolerably clear' that bail should be refused.”

1. I would be wary about adopting a normative principle in those terms.  Any application for bail is concerned with an offender's right to personal liberty which as long ago as 1986 the High Court in Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 at 292 described as, “[t]he most fundamental and important of all common law rights” and one which, “cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes.” I applied that principle in the very different context of an application for continuation of the detention of an offender after the conclusion of his sentence of imprisonment in State of New South Wales v Donovan [2015] NSWSC 125 at [2]. My decision in that case was upheld and the reference to Williams repeated with approval by the New South Wales Court of Appeal in State of New South Wales v Donovan [2015] NSWCA 280 at [58]. What Williams recognises, however, is that parliament can qualify and to some extent take away common law rights, even rights of such a fundamental nature.  The question is how clearly the language which is said to achieve that result is expressed.

1. With great respect to Refshauge J, I do not agree that the language of the Bail Act supports the adoption of a normative principle of general application that a person convicted of an indictable offence should be refused bail even where a sentence of imprisonment is at least almost inevitable.  Every application must be considered on its merits.

1. That said, however, it is plain that in a number of respects the fact of conviction alters the balance of the consideration of the mandatory factors set out in s 22 of the Bail Act.  The assessment of risk (and in particular, the risk of committing an offence endangering the safety of a person interfering with evidence or failing to appear) is the primary consideration, but the fact of conviction alters the balance in two important respects.

1. Firstly, it may readily be thought to increase the risk of flight or failure to appear. It is a very different thing for a person facing an unproved charge to contemplate failing to appear when required by the Court to a person knowing that he or she has been convicted and is very likely to be sentenced to a term of imprisonment.  That is of particular relevance here where the offender is ordinarily resident in another state.

1. Secondly, one of the relevant considerations specified in s 22(3) is the strength of the evidence against the person. The fact of conviction renders that consideration entirely in favour of the refusal of bail in two ways; firstly, it removes the need to speculate about the likelihood of conviction and, secondly, it removes the risk that an innocent person refused bail might spend a lengthy time on remand. Contextually, s 9B confirms this analysis.

1. Whilst I accept that Mr Incandela has not previously breached bail and does not have serious prior convictions and that he appears to have secure residential and employment arrangements, there is no particular personal need in terms of his interests for him to be at liberty for the eight weeks between now and the date of sentence: cf s 22(1)(c) of the Bail Act.  He has not identified any need to put his affairs in order and in my assessment there is some risk of flight.

1. In all the circumstances, I have concluded that bail should now be revoked and that Mr Incandela should be taken into custody.

I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for  Judgment of her Honour Chief Justice McCallum

Associate:

Date: