R v Livas
[2020] ACTSC 34
•19 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Livas |
Citation: | [2020] ACTSC 34 |
Hearing Date: | 19 February 2020 |
DecisionDate: | 19 February 2020 |
Before: | Elkaim J |
Decision: | The application for bail is refused. The offender is remanded in custody. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – no prior remand – application for offender to be remanded in custody on entry of guilty plea – presumption of bail – likelihood of full-time custody |
Legislation Cited: | Bail Act 1992 (ACT) s 22 |
Cases Cited: | Mason v Demasi [2009] NSWCA 227 |
Parties: | The Queen (Crown) Akis Livas (Offender) |
Representation: | Counsel A Williamson (Crown) P Edmonds (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Offender) | |
File Number: | SCC 77 of 2019 |
ELKAIM J:
Earlier today the offender pleaded guilty to a single count of culpable driving causing death. The offence relates to a motor vehicle collision on 28 July 2018 when a truck driven by the offender collided with the rear of a stationery smaller vehicle. A four‑year‑old passenger in the stationary vehicle died instantly.
Following the entry of the plea the Crown said that the offender should be taken into immediate custody. Mr Edmonds, who appeared on behalf of the offender, pointed out that to date he had not been the subject of any bail orders and had attended court whenever required. Mr Edmonds applied for bail and suggested conditions designed to maintain some control over the offender’s activities.
The parties agreed that, without more, a presumption of bail arose in respect of offences of this type. Mr Edmonds pointed out that although there had been a plea of guilty, agreed facts had not yet been compiled and a conviction not entered. There may be occasions when a distinction arises between a conviction and a plea of guilty, but I do not think they are relevant to the present case. In my view no distinction should be drawn here from the fact that a formal conviction has not been recorded.
The Crown relied on s 22 of the Bail Act 1992 (ACT) to ground its opposition to the application for bail. The Crown said there were three matters that are relevant:
(a)A sentence of full-time custody is inevitable. The offender knew he had sleep apnoea and knew he ought not to be driving;
(b)Not only was the offender aware that he should not have been driving prior to the offence but, notwithstanding his licence having been suspended, he had driven since the offence; and
(c)The offender has a significant criminal history. His history, both in the Australian Capital Territory and New South Wales was tendered. The history generally relates to driving matters and, to a much lesser extent, drug convictions. There is also a conviction for a sexual offence which resulted in a substantial prison sentence, part of which was suspended.
I will first deal with the second of the reasons because I think it cannot be taken into account. The basis for the allegation arises from a sleep study booking form prepared in preparation for a sleep study due to take place on 9 January 2019. Question 10 in the form asks the patient “How will you travel to and from your sleep study?”. The handwritten response is “car - drive (indistinct)”. Because the indistinct word could well be “self”, as suggested by the Crown, I asked Mr Edmonds to enquire of his client what had been written. The response was that the handwriting on the form was not that of the offender and he could not assist with the indistinct word. The Crown said that for purposes of a bail application, strict rules of evidence did not apply, and I should proceed on the basis that the offender had driven, or at least stated an intention to drive, notwithstanding his licence had been suspended.
I disagree with the Crown’s submission on this point. Medical notes are notoriously unreliable, as explained by Basten JA in the New South Wales Court of Appeal in Mason v Demasi [2009] NSWCA 227. I will therefore remove this ground from consideration.
Notwithstanding the above conclusion I am nevertheless of the view that bail should not be granted. I think the inevitability of a full-time custodial sentence, even if followed by a portion of the sentence being suspended, is enough to determine the result of the application.
Standing alone, the offender’s criminal record would not have resulted in bail being refused. However, taken with the almost certainty of a full-time custody result I think the record strengthens the Crown’s position.
Mr Edmonds tendered a medical report from a general practitioner, Dr Alasady. The report describes a cardiac condition which might be the origin of the sleep apnoea but which, in any event, requires treatment. Notwithstanding that treatment was recommended in January 2019 it has not yet occurred. I was informed that this is because of the delays inherent in the public health system.
While the offender is obviously entitled to, and should have, the treatment there is no medical evidence to suggest that his heart condition will affect his period in custody and the prison authorities will no doubt take the appropriate steps should treatment be required.
Accordingly, the application for bail is refused. The offender is remanded in custody.
| I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 22 May 2020 |
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