Day remains on bail after Judge Timothy Gartelmann last Friday refused a detention application made by the Crown. The judge was not positively satisfied of the “absolute” certainty of full-time imprisonment “on the limited evidence presently before the court”.
Day was required to surrender his passport and must live at his Sydney address,reporting to police each Wednesday. His sentence hearing was set down for September 16.
However,Day is listed for a bail hearing in the Supreme Court on Tuesday,July 12,when theHerald has confirmed the Office of the Director of Public Prosecutions will be making a second detention application,this time in the higher court before Justice Peter Garling.
Gartelmann had said even though it appeared “likely,even highly likely that ... a sentence of imprisonment will be imposed in these proceedings”,it was insufficient to engage the Bail Act amendment relied upon by the Crown,which only passed parliament last month,to have Day detained ahead of sentencing.
“The determination I have made today does not mean the accused will not be sentenced to full-time imprisonment,nor does it mean it is unlikely,” he said on Friday last week.
On the first application,Crown prosecutor David Morters,SC,submitted that it was “more probable than not” Day would be jailed. He said he was unaware of any matters which approached Day’s level of systematic offending “where anything but a period of full-time imprisonment has been imposed”.
Embezzlement by a clerk or servant carries a maximum penalty of 10 years behind bars. Morters acknowledged there was scope for cumulation regarding the sentences imposed for some charges.