Day,49,was of 34 counts of embezzlement,totalling $624,675.41,relating to Sebastian’s performance fees and royalties dating back to 2013.
Titus Day arrives at court on Monday to hear a third application to have him detained before sentence.Brook Mitchell
Embezzlement by a clerk or servant carries a maximum penalty of 10 years’ imprisonment.
Prosecutors have made unsuccessful,under new bail laws,to have Day put behind bars before his sentencing,set down for September 16.
The relevant legislation,section 22B of the Bail Act,states that between conviction and sentence “for which the accused person will be sentenced to imprisonment to be served by full-time detention”,the offender must be refused bail unless special circumstances are established.
In the NSW Court of Criminal Appeal on Monday,Justice Fabian Gleeson,Justice Robertson Wright and Justice Richard Cavanagh heard submissions on a third application made by the Crown.
Guy Sebastian arrives at the Dowing Centre Courts in May.James Alcock
Day,wearing a blue suit,sat in the front row of the public gallery for the hearing.
Crown prosecutor Guy Newton acknowledged that the judges didn’t “have a crystal ball” and were not in the same position as a sentencing judge. He said that the court did not need to be satisfied “as a matter of certainty” that Day “will be going to jail”,rather on the balance of probabilities.
“Given the very serious nature of the offences,which total frauds in excess of $600,000,in circumstances where there was a flagrant breach of trust,this is a matter[which would] on any reasonable assessment attract a sentence of full-time custody,” Newton said.
He said if the sentencing judge were to impose an intensive correction order,served in the community,the Crown would submit that would be a “manifestly inadequate sentence”.
Day’s barrister,Dominic Toomey,SC,argued there was a “reasonable possibility” of a sentence other than full-time imprisonment,and his client’s matter was “not the ordinary case”.
“This is a man who has no prior offences and ... there will be evidence of good character,” he said.
“We will argue on sentence that this is not a case where the money,that has been found to have been embezzled,was used in the way one often sees in cases of embezzlement where the person has simply sought to enrich themselves.”
Toomey said,“without impugning the jury’s verdict”,the defence submitted the money was used to “meet expenses which were associated with performances by Mr Sebastian” and was a “lesser degree of seriousness than one ordinarily sees”.
The judges reserved their decision until Friday afternoon,allowing Day’s lawyers to tender further documentation. Toomey said the material would go to some,but not all,of the counts on the indictment.
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