Agresta v The Queen [2020] VSCA 334

1 This is an application for bail pending appeal against conviction and sentence. As counsel for the respondent points out, this is an application under s 310 of the Criminal Procedure Act 2009, not under the Bail Act 1977, and it is governed by the principles applicable to appeal bail developed by this Court over a number of years.

2 The relevant principles were set out recently by the Court in Cvetanovski v The Queen:

An application for bail by a person who is appealing against his/her conviction or sentence is quite different from a bail application by a person who is yet to be tried. In the latter case, the presumption of innocence applies and there is, under the Bail Act 1977, a presumption in favour of a grant of bail.

Bail pending appeal, on the other hand, will only be granted in exceptional circumstances. The stringency of this requirement reflects the fact that the conviction and sentence are valid unless and until set aside, and are not in any sense provisional or contingent upon confirmation by an appellate court. A grant of bail pending appeal also carries with it the risk that, should the appeal fail, the convicted person will have to return to prison.

In Re Zoudi, this Court held that the exceptional circumstances requirement may be satisfied where the appeal cannot be dealt with by the court until after the expiry of the appellant's non-parole period. The fundamental principle is one of fairness. Bail is granted in order to avoid the injustice which would arise should the appellant end up serving more time in custody than would be lawfully justified in the event that the appeal succeeds. In that event, success on appeal is effectively rendered meaningless.[1]

3 The applicant relies on circumstances of exactly the kind described in those paragraphs. He was convicted on 24 May 2012 of conspiracy to possess a commercial quantity of an unlawfully imported border-controlled drug, being ecstasy, in what is identified in his submissions and referred to more generally as the 'tomato tins case'. He was sentenced by Justice King to 12 years' imprisonment with a non-parole period of eight years and six months. Importantly for present purposes, that non-parole period of eight years and six months has been fully served. It expired, we are told, on 12 October this year.

4 The applicant challenges his conviction on that conspiracy charge on grounds relating to the conduct of the former barrister, Ms Nicola Gobbo. It is sufficient for present purposes to say that his complaints centre on Ms Gobbo's provision of information to police which led to his arrest. Those matters are described in some detail in a recent decision of this Court concerning one of the co-offenders.[2] The conviction appeal is unlikely to be heard until well into 2021, at the earliest.

5 Counsel for the respondent submitted that the appeal 'might be ready before the end of next year'. It is important to say, for the benefit of this applicant and counsel, that we have a number of other conviction appeals relating to Ms Gobbo's involvement, including one by this applicant's co-accused, Mr Karam, which go back a number of years since they were filed. It is likely that priority will be given to those earlier-filed matters. Naturally, we regard these matters as being of very great public importance, as well as of importance to those bringing the applications. But this is a substantial extra load for the Court of Appeal beyond our normal criminal appeal work.

6 Because of the expiry of the non-parole period under the tomato tins sentence, the applicant's case would normally attract the Zoudi[3] principles in a straightforward way. The position is complicated, however, because on 11 September 2014 he was sentenced by Judge Hampel for a quite separate offence of trafficking in a commercial quantity of MDMA ('2014 matter'). He was sentenced to 10 years' imprisonment on that charge. Her Honour directed that four years of that sentence be served cumulatively on the sentence imposed by Justice King. That resulted in a new total effective sentence of 16 years and her Honour set a new global non-parole period of nine years and six months.

7 As became clear in the course of discussion with counsel, if Judge Hampel's sentence in the 2014 matter stood alone it is to be assumed that a non-parole period of between 6 and 7 years would have been fixed on the head sentence of 10 years. We therefore proceed on the assumption that the non-parole period under that sentence would have expired, or would be likely to expire soon. We note, in addition, that in the application for leave to appeal against sentence in the 2014 matter which accompanies Mr Agresta's application for leave to appeal against the tomato tins conviction, he argues that if the conviction application succeeds, he should be resentenced on the 2014 matter on a different basis.

8 The ground of appeal against sentence is in these terms:

Ground 1: Should the Applicant's conviction, the subject of S EAPCR 2020 0103, be quashed, that would amount to fresh and compelling evidence which demonstrates the true significance of the facts in existence at the time of sentence. Accordingly, the sentencing discretion would be re-opened and it would be submitted that the Court impose a different and lesser sentence to avoid a miscarriage of justice. Should the conviction on the Tomato Tins charge be quashed:

1.1 The Applicant would fall to be resentenced as a person without the same serious criminal history for major drug offences;

1.2 The Applicant would fall to be sentenced as a person who had already served more than eight and half years in custody, in satisfaction of a sentence that was quashed. The injustice to the Applicant ought to be remedied in the following ways:

1. The sentence imposed on the Inca offending be adjusted to commence at the time he was sentenced; and
2. The head sentence and non-parole period be further adjusted in accordance with the principles in Karpinski v The Queen [2011] VSCA 94; (2011) 32 VR 85, to reflect the presentence detention, previously served on the Tomato Tins matter, that would otherwise be 'dead' time.

9 For present purposes, we must assume that the sentence imposed by Judge Hampel in 2014 stands, and stands alone. That is the assumption on which we ask the Zoudi question, 'Is there a risk that success on the conviction appeal might be rendered nugatory?'

10 The submission for the applicant is that these circumstances create exactly the risk of injustice referred to in the passage from Cvetanovski, cited earlier. That is, if the appeal against the tomato tins conviction succeeds, and particularly if the resentencing takes place as the applicant contends it should, then any time served in custody between now and the date of that putative successful appeal would be time which was not 'lawfully justified'.[4]

11 It seems to us, on that analysis, that the circumstances of this case are indistinguishable from those in Mr Cvetanovski's successful application for bail. The written submission of the Commonwealth Director opposed the grant of bail and properly drew attention to the fact that the global non-parole period has not expired. In answer to questions from the Court, however, counsel appearing for the Commonwealth Director, acting with conspicuous fairness, conceded that it would be open to us to view this case as indistinguishable from Cvetanovski. In our view, that concession is properly made and the position is to be contrasted with that in Mr Zirilli's case.[5]

12 Of course, should the conviction appeal fail, then the applicant will have to serve the balance of the global non-parole period. So the grant of bail does not, of itself, have any effect on the validity of the sentences to which he is presently subject. That question will be revisited once the conviction appeal has been heard and determined.

13 For those reasons, we grant the application for bail pending the hearing of the conviction appeal and the associated sentence appeal.

[1] Cvetanovski v The Queen [2020] VSCA 126, [1]-[3] (Maxwell P, Beach and Weinberg JJA) ('Cvetanovski') (citations omitted).

[2] Zirilli v The Queen [2020] VSCA 261, [14]-[28] (McLeish and Weinberg JJA) ('Zirilli').

[3] Re Zoudi [2006] VSCA 298; (2006) 14 VR 580, 588 [28]; [2006] VSCA 298 (Maxwell P, Buchanan, Nettle, Neave and Redlich JJA) ('Zoudi').

[4] Cvetanovski [2020] VSCA 126, [3] (Maxwell P, Beach and Weinberg JJA).

[5] Zirilli [2020] VSCA 261, [47] (McLeish and Weinberg JJA).