R v Sigalla No 6)

[2016] NSWSC 1922

Supreme Court

New South Wales

Medium Neutral Citation:	R v Sigalla No 6) [2016] NSWSC 1922
Hearing dates:	22 November 2016
Date of orders:	22 November 2016
Decision date:	22 November 2016
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	1. Detention application granted.  2. Bail revoked.
Catchwords:	CRIMINAL LAW – detention application sought by Crown after guilty verdicts returned on 24 counts – prospect of custodial sentence imposed on offender – detention application granted – bail revoked
Legislation Cited:	Bail Act 2013 (NSW), s 17(2)(a), s 18(1) Corporations Act 2001 (Cth), s 184(2)(a)
Cases Cited:	Nil
Category:	Procedural and other rulings
Parties:	Regina Andrew John Sigalla
Representation:	Counsel: P McDonald SC/ S Callan (Crown) W P Brewer (Offender)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Brendan Pigott (Offender)
File Number(s):	2013/1511552013/355116
Publication restriction:	Nil

EX TEMPORE JUDGMENT

Introduction

1. Verdicts of guilty having been returned this afternoon in respect of each of the 24 counts on the indictment of offences contrary to s 184(2)(a) of the Corporations Act 2001 (Cth), the Crown has made a detention application under s 50 of the Bail Act2013 (NSW) and has submitted that bail ought be revoked in light of the jury's verdicts.

Parties’ submissions

Crown’s submissions

2. It has been submitted by Madam Crown that the circumstances of the verdicts of 24 counts, each of which carries a maximum penalty of five years imprisonment, would attract a sentence which would require Mr Sigalla to spend a substantial period in full-time custody. Further, the Crown submitted that, while Mr Sigalla might not have presented a flight risk pending the verdicts, the verdicts change the balance significantly and provide an increased incentive for Mr Sigalla not to turn up for the sentence hearing. The Crown also submitted that, as the more recent bail conditions have indicated, Mr Sigalla has been living in hotels (the Westin Hotel and, more recently, the Sheraton on the Park) and apparently has access to some funds, which could be used to assist his flight.

Mr Sigalla’s submissions

3. In response Mr Brewer, who appears on behalf of Mr Sigalla, has informed me from the bar table that the offender’s residence at those hotels has been funded by an accumulation of points earned through previous travel and use of the hotels rather than by cash. Mr Brewer submits that the offender has a very strong interest in being in New South Wales and notes that, throughout the trial, Mr Sigalla has been supported by a wife from whom he is estranged and his daughters, who Mr Brewer has identified as being amongst the persons who have been present in the public gallery at various times throughout the trial.

4. Mr Brewer also submits that it would be desirable that Mr Sigalla be at liberty in the lead-up to the sentence hearing because of the expert reports he would intend to adduce, so that I have a full picture of his physical and psychological health before considering an appropriate sentence. Mr Brewer indicated that, because of the need to gather evidence, it would be appropriate that the sentence hearing be deferred until the first week of term next year.

5. Mr Brewer emphasised, the following factors listed in s 18 of the Bail Act: the strength of Mr Sigalla's community ties; his past compliance with bail conditions; and the substantial period of time during which he has been on bail, having regard to the length of the time in the arraignments list and the adjournments of previous trial dates. Mr Brewer also refers to civil litigation in which Mr Sigalla is involved in this Court, which he submits would be facilitated by his presence (at liberty) in the jurisdiction.

Consideration

6. I propose to address relevant matters under s 18(1) of the Bail Act with a view to determining the strength or otherwise of the bail concern under s 17(2)(a), namely, that the Mr Sigalla will fail to appear at any proceedings for the offence.

7. Mr Sigalla's background and circumstances and community ties would tend to indicate that he has strong personal community ties in the jurisdiction. I note the very substantial, if not impeccable, compliance by Mr Sigalla with previous bail conditions.

8. Under s 18(1)(b), the nature and seriousness of the offence is relevant. By reason of the period of the offending conduct, the dishonest nature of it, and the breach of trust involved in it, I regard the offences as being relatively serious for that type of offence.

9. I can pass over the strength of the prosecution case, (s 18(1)(c)) there being no particular need to assess it now that the jury has brought in its verdicts.

10. Section 18(1)(i) provides that the likelihood of a custodial sentence being imposed if the accused person is convicted is a relevant factor. Mr Sigalla has been convicted. Although this is a preliminary view only at this stage, having regard to: the number of counts, Mr Sigalla's conduct; and the specified maximum of five years, one would have to consider there to be a strong likelihood of a custodial sentence being imposed, and one of a significantly greater length than the time between today and the time at which the sentence is likely to be imposed.

11. Section 18(1)(j) makes relevant the circumstance, if the accused person has been convicted of the offence and proceedings on an appeal against the conviction are pending, whether the appeal has reasonably arguable prospects of success. Obviously, the verdicts having just been returned, there is no particular basis for assessing the likelihood of an appeal or whether there are good grounds or not.

12. The need for Mr Sigalla to be free to prepare for his appearance in court at the sentence hearing or obtain legal advice is also relevant: s 18(1)(l). Although I accept that it is certainly easier for experts to assess a person's physical and psychological health when the person is at liberty, it is by no means unorthodox for experts to attend gaols for that purpose.

13. The matters which I have referred to in s 18, although they show that the offender has strong community ties, in my view, are not sufficient to outweigh the bail concern that Mr Sigalla will fail to appear at any proceeding for the offence, having regard to the prospect of a lengthy custodial sentence.

14. I also take into account the importance in the administration of justice of respecting that the presumption of innocence has been rebutted by the jury's verdict, and that is a matter which I think bears on an assessment of a detention application following the return of jury verdicts of guilty, particularly in circumstances such as the present.

15. Accordingly, bail is revoked, and Mr Sigalla will be detained forthwith.

Decision last updated: 23 April 2018