R v Gountounas [2018] NSWCCA 40

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Gountounas [2018] NSWCCA 40 Hearing dates: 23 February 2018 Date of orders: 23 February 2018 Decision date: 19 March 2018 Before: Simpson JA at [1]; Fullerton J at [5]; McCallum J at [48] Decision: The order granting bail made by Hamill J on 1 February 2018 is revoked. Catchwords: BAIL – detention application – where respondent required to show cause why his continued detention is not justified Legislation Cited: Bail Act 2013 (NSW), ss 8, 16A, 19(3), 50 Criminal Code Act 1995 (Cth), ss 307.1(1), 11.5(1) Criminal Procedure Act 1986 (NSW), s 91 Cases Cited: A1 v R; A2 v R [2016] NSWSC 1288 Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314 R v Cain (No 1) [2001] NSWSC 116 R v Farrell [2016] NSWSC 1278 Category: Principal judgment Parties: The Crown (Applicant) Dimitrios Jimmy Gountounas (Respondent) Representation: Counsel: S McNaughton SC / R Rodger (Crown) D Edwardson QC (Respondent)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Caldicott Lawyers (Respondent) File Number(s): 2017/383012

Judgment 1. SIMPSON JA: I joined in the orders made on 23 February 2018. I have read in draft the reasons of Fullerton J for making those orders. I differ from her Honour only in respect of the weight I would attribute to certain of the factors advanced by Mr Gountounas to show cause why his continued detention is not justified: see Bail Act 2013 (NSW), s 16A. 2. I do not regard the lengthy delay that is likely to occur before Mr Gountounas comes to trial as of little weight; I would accord it significant weight. Similarly, I consider that the fact that Mr Gountounas will be held in a New South Wales facility while his family, including a young child, remain in South Australia, and the difficulties of preparing for trial in those circumstances also to be of significant weight. 3. Notwithstanding that, these factors are not sufficient to overcome the very real risk of flight identified by Fullerton J by reason of the clear strength of the Crown case, the evidence suggesting prior offending of the same kind and potential access to financial resources. In light of the allegations, the security offered cannot be said to constitute a real deterrent or disincentive to Mr Gountounas to abscond. If convicted, it is inevitable that a lengthy term of imprisonment will be imposed. 4. For these reasons I joined in the orders made revoking the bail order made by Hamill J. 5. FULLERTON J: Dimitrios Gountounas was granted conditional bail by Hamill J on 1 February 2018. The conditions his Honour imposed included a residence condition obliging Mr Gountounas to reside with his wife in South Australia under a curfew; to report daily to police in Adelaide; that he deposit $50,000 and agree to forfeit a further $100,000 and that one or more acceptable people (being members of Mr Gountounas' immediate family) agree to forfeit $1,000,000 and deposit acceptable security in that amount. 6. On 23 February 2018 this Court heard and determined a detention application brought by the Crown pursuant to s 50 of the Bail Act 2013 (NSW). 7. Mr Gountounas was in custody at the date of the hearing. The surety condition imposed by Hamill J was not able to be met due to issues associated with obtaining a valuation of a property at Cooper Pedy in South Australia nominated as one of two properties securing the agreement to forfeit $1,000,000. 8. The detention application was heard by the Court de novo. It was not an appeal from, nor was it a review of, the bail decision made by Hamill J. 9. The evidence relied upon by the parties in the hearing before his Honour was before the Court in the application book, as were his Honour's reasons for granting bail. Additional evidence was adduced at the hearing in this Court. 10. The Crown read an affidavit from the officer in charge of the investigation summarising the evidence leading to Mr Gountounas' arrest. In it he stated that the balance of the brief of evidence would be served by 21 March 2018. An affidavit from Mr Gountounas' solicitor was read in which he updated the various sources of the now $1,500,000 offered as surety to support the grant of conditional bail. I note that an unencumbered property at Mile End in South Australia, transferred to Mr Gountounas' sister on 19 February 2018, was proposed as a substitute for the property at Cooper Pedy owned by his parents. 11. At the conclusion of the hearing the Court ordered that the bail granted on 1 February 2018 be revoked. The Court indicated at that time it would deliver reasons for making that order at a later date. 12. What follows are my reasons for agreeing that bail should be revoked.