R v Castagna (No 13) [2018] NSWSC 2045

Supreme Court New South Wales

Medium Neutral Citation: R v Castagna (No 13) [2018] NSWSC 2045 Hearing dates: 18 April 2018 Decision date: 18 April 2018 Before: Adamson J Decision: Bail revoked Catchwords: BAIL – detention application following return of verdicts by jury on three counts – custodial sentence highly likely if not inevitable – bail concerns of failure to appeal and risk of committing further serious offences – proceeds of crime unaccounted for – bail revoked Legislation Cited: Bail Act 2013 (NSW), ss 17, 18, 50 Judiciary Act 1903 (Cth), s 72 Category: Procedural and other rulings Parties: Regina Anthony Dante Castagna (Offender) Representation: Counsel: P McGuire SC/A McGrath (Crown) P Strickland SC/S White SC (Offender)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Hazan Hollander Lawyers (Offender) File Number(s): 2016/137095

Judgment: EX TEMPORE 1. Following the return by the jury of verdicts of guilty of three counts on the indictment in respect of the offender, Dr Castagna, the Crown has made a detention application under s 50 of the Bail Act 2013 (NSW). 2. Dr Castagna has been on bail since he was charged. I understand that he has also, for a period after the dismissal of the committal proceedings, been at unconditional liberty. While he has been on bail, it is accepted that he has complied with each and every one of the bail conditions. These conditions, in substance, require him to reside at a particular address; to notify the authorities if he was to travel overseas; and to attend court proceedings as and when required. 3. I have been informed that since Dr Castagna has been on bail he has travelled overseas at least six times, and, on each occasion, he has returned to Australia. There has been no occasion on which he has not attended court. 4. The Crown has submitted that, since the return of the jury's verdicts, there has been a fundamental change in circumstances. The Crown submitted that there is a strong prospect, if not an inevitability, that a custodial sentence will be imposed on Dr Castagna. 5. The Crown has referred to the possibility that Dr Castagna will not attend the sentence hearing and also the possibility of the commission of a further serious offence. The Crown referred, in particular, to the unaccounted for proceeds of crime arising from the differential between the unpaid tax by Dr Castagna and the amount which was dealt with and was the subject of count 13 on the indictment of which Dr Castagna was convicted. 6. The bail concerns which are identified in s 17 of the Bail Act which appear to me to be relevant are: the risk that the offender will fail to appear at any proceedings for the offence, being the sentence hearing which I have listed for hearing on 25 May 2018; and the risk that he will commit a serious offence if at liberty. 7. Section 18 of the Bail Act lists the matters to which I must have regard, if relevant, in assessing bail concerns. Section 18(i1) is of present relevance as Dr Castagna has been convicted of the offences but not yet sentenced. In these circumstances I am required to consider the likelihood of a custodial sentence being imposed. In my view, it is highly likely, if not inevitable, that a custodial sentence will be imposed. 8. Mr Strickland SC, who appears with Mr White SC on behalf of Dr Castagna, has made helpful and detailed oral and written submissions about Dr Castagna's background, lack of criminal history, circumstances and community ties. It is established that Dr Castagna has no criminal history in Australia, and has worked extensively overseas. Until his convictions today he was regarded as a person of good character with a good reputation in the community. He has undoubtedly very strong community ties. He has been married for 45 years and has two children and strong family relationships. He lives in Gordon where he has lived for almost 20 years. He currently has full-time employment and attends work five days a week. He has no history of failure to appear and, as I have mentioned, he has travelled overseas on at least six separate occasions since he has been on bail for this matter. 9. Mr Strickland has submitted on his behalf that Dr Castagna has a long history of being law-abiding, a submission that may be regarded as having been undermined by the terms of the indictment, and the verdicts returned by the jury today. 10. Mr Strickland has raised the offender's need to be free for other purposes, such as the need to prepare for the various proceedings, including the sentence hearing and proceeds of crime proceedings which are listed for directions on 6 June 2018. 11. Relatively strict bail conditions have been proposed on behalf of Dr Castagna, including as to residence and provision of security. 12. Mr Strickland has also submitted that, as I have reserved a question of law for the consideration of the Court of Appeal pursuant to s 72 of the Judiciary Act 1903 (Cth), there is at least a prospect that those proceedings will be successful from Dr Castagna's point of view, and that an acquittal will be directed. I have taken that matter into consideration in determining whether bail ought be revoked. 13. Notwithstanding the strict bail conditions proposed, I am not satisfied that the bail concerns which I have identified can be sufficiently ameliorated by a grant of bail on conditions, even those proposed by Mr Strickland, with the amendments proposed by the Crown. 14. It is of utmost importance that the administration of justice from the time a jury returns its verdicts to the time of the sentence hearing is protected. Having regard to the bail concerns I have identified I am not satisfied that there are any conditions on bail which could be granted to sufficiently ameliorate those concerns.