TSANAKTSIDIS v COMMISSIONER OF POLICE [2026] SASCA 86

Applicant: ATHANASIOS TSANAKTSIDIS Counsel: MR P DAWES - Solicitor: MCDONOUGH COLE LEGAL Respondent: COMMISSIONER OF POLICE Counsel: MS Z SMITH - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 22/07/2026 File No/s: SCCRM-26-025823 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. TSANAKTSIDIS v COMMISSIONER OF POLICE [2026] SASCA 86 Judgment of the Honourable Justice Stanley 23 July 2026 CRIMINAL LAW - PROCEDURE - BAIL - AFTER CONVICTION Application for bail pending the hearing and determination of an appeal against sentence. The applicant pleaded guilty to one count of cultivating a commercial quantity of controlled plants, contrary to s 33B(2) of the Controlled Substances Act 1984 (SA); one count of possessing prescribed equipment, contrary to s 33LA(a) of the Controlled Substances Act; and one count of abstracting or diverting electricity from a power system, contrary to s 85(1)(a) of the Electricity Act 1996 (SA). On 23 June 2026, a magistrate sentenced the applicant to two years and six months’ imprisonment for all the offences pursuant to s 26 of the Sentencing Act 2017 (SA), with a non-parole period of one year and three months, each of which commenced on 23 June 2026. The applicant seeks bail pending the hearing and determination of an appeal against sentence. The respondent opposes bail in any form. Held, dismissing the application for bail pending appeal: The determination of an application for bail involves the exercise of discretion conferred by s 10(2) of the Bail Act 1985 (SA). The evaluative decision required to be undertaken in this case does not favour the grant of an application for bail. Bail Act 1985 (SA) s 10(2); Controlled Substances Act 1984 (SA) ss 33B(2), 33LA(a); Criminal Procedure Act 1921 (SA) (SA) s 116(1); Electricity Act 1996 (SA) s 85(1)(a); Sentencing Act 2017 (SA) ss 26, 40(3)(b)(ii), referred to. Beshara & Kleut v Paphitis (1987) 136 LSJS 16 ; C, TL v Police [2010] SASC 115; Ex Parte Maher (1986) 1 Qd R 303; Nankivell v The King [2024] SASCA 71; Question of Law Reserved No 3 of 2023 [2024] SASCA 29; R v Baker [2000] SASC 281; R v Blayney [2002] SASC 184; R v Flanigan (unreported judgment, Supreme Court of South Australia, Debelle J, 25 November 1996, S5937) ; R v Frederick [2004] SASC 304; R v Giordano (1982) 31 SASR 241; R v Kostaras [2002] SASC 231; -- 1 of 8 -- R v McKelliff [2003] SASC 357; R v Williams [2018] NSWSC 994; United Mexican States v Cabal (2001) 209 CLR 165, considered. -- 2 of 8 -- TSANAKTSIDIS v COMMISSIONER OF POLICE [2026] SASCA 86 Court of Appeal – Criminal STANLEY JA: Introduction 1 This is an application for bail pending the hearing and determination of an appeal from a sentence of imprisonment of two years and six months with a non-parole period of one year and three months, each of which commenced on 23 June 2026. 2 The sentence was imposed in relation to one count of cultivating a commercial quantity of controlled plants contrary to s 33B(2) of the Controlled Substances Act 1984 (SA) (Controlled Substances Act), one count of possessing prescribed equipment contrary to s 33LA(a) of the Controlled Substances Act and one count of abstracting or diverting electricity from a power system contrary to s 85(1)(a) of the Electricity Act 1996 (SA). 3 The sentence was imposed by a magistrate. Although the count relating to cultivation of a commercial quantity of controlled plants, namely marijuana, is a major indictable offence the applicant was sentenced, with the consent of the prosecution, by a magistrate pursuant to s 116(1) of the Criminal Procedure Act 1921 (SA). 4 Having pleaded guilty at an early stage of the proceedings the applicant was entitled to a discount on any sentence of up to 25 per cent pursuant to s 40(3)(b)(ii) of the Sentencing Act 2017 (SA) (Sentencing Act). 5 A single sentence for all three counts was imposed pursuant to s 26 of the Sentencing Act. It appears that the sentencing magistrate commenced with a starting point of three years and four months before reducing it to two years and six months for the early guilty pleas. 6 The sentence was neither suspended nor ordered to be served on home detention. As a result, the applicant’s bail was revoked and he was taken into custody on 23 June 2026. 7 The applicant brings the appeal against sentence on three grounds. First, the sentence was manifestly excessive; second, the sentencing magistrate erred in declining to suspend the sentence of imprisonment; and, lastly, in the alternative, the sentencing magistrate erred in declining to order the sentence be served on home detention. 8 The sentence appeal is listed for callover before the Court of Appeal on 10 August 2026. -- 3 of 8 -- [2026] SASCA 86 Stanley JA 2 9 The applicant seeks home detention bail pending the hearing and determination of the sentence appeal. The proposed home detention address is a house occupied by the applicant’s brother and son. The address has been assessed as suitable. The applicant’s brother is prepared to act as a guarantor in the sum of $5,000. 10 The Director of Public Prosecutions opposes a grant of bail in any form. 11 Pursuant to s 10(2) of the Bail Act 1985 (SA) (Bail Act), the Court has an unfettered discretion whether the applicant should be granted bail in circumstances where the applicant has been convicted of an offence in respect of which he has been taken into custody. Legal principles 12 In Nankivell v The King1 (Nankivell) Livesey P analysed the principles applicable to an application for bail pending appeal as follows.2 13 Before the Bail Act commenced, in R v Giordano King CJ identified the matters to be taken into account when considering a grant of bail pending appeal, explaining that it is unnecessary, and would be unwise to attempt to compile a list of the totality of the circumstances that must be considered.3 Factors that may be relevant include:4 • Bail ought not be granted after conviction unless bail was appropriate prior to trial. • The prospects of the success of the appeal, noting that the court which considers the application for bail cannot be expected to assess the prospects of success of the appeal unless those prospects are obvious. • The duration of the term of imprisonment imposed, particularly if it is so short that the term may expire before the appeal is determined. 14 The courts should be cautious about granting bail pending appeal:5 There are practical reasons, moreover, why courts should exercise extreme caution about the grant of bail pending appeal. An appellate court does not sentence afresh in the light of circumstances which have changed since sentence was passed. It should not be placed in the invidious position, particularly on an appeal against sentence, of the dismissal of the appeal having the effect of returning to prison a person whose circumstances may 1 [2024] SASCA 71. 2 Nankivell v The King [2024] SASCA 71 at [9]-[16]. 3 R v Giordano (1982) 31 SASR 241, 242 (King CJ). 4 R v Giordano (1982) 31 SASR 241, 243 (King CJ). 5 R v Giordano (1982) 31 SASR 241, 242. Followed in R v Baker [2000] SASC 281; R v Blayney [2002] SASC 184; R v Kostaras [2002] SASC 231; R v McKelliff [2003] SASC 357; R v Frederick [2004] SASC 304; C, TL v Police [2010] SASC 115, [87]-[90] (Kelly J, with whom White J agreed). -- 4 of 8 -- [2026] SASCA 86 Stanley JA 3 have changed greatly during a period of liberty on bail pending appeal. There is a serious risk of availability of bail leading to a proliferation of unmeritorious appeals thereby adding to the strains on the system of justice. Persons undergoing punishment in custody are prone to seize any opportunity to secure release, perhaps leaving the future to take care of itself. Appeals would be launched, irrespective of the prospects of success, simply in order to secure release, or perhaps with a view to creating situations which would tend to frustrate justice by making it difficult to return the appellant to prison. 15 Section 10(2) of the Bail Act now confers on a bail authority an unfettered discretion as to whether an applicant should be released on bail in circumstances where the applicant has been convicted of the offending in respect of which the applicant has been taken into custody.6 16 Following the introduction of the Bail Act, in Beshara & Kleut v Paphitis Cox J held that there was no presumption for or against bail on an application for bail pending appeal.7 17 Cox J held that a convicted person who is seeking bail pending his appeal has the task of satisfying the bail authority that his is a proper case for the grant of bail. As his Honour explained:8 … [The] task of any defendant who applies for bail pending an appeal is never likely to be easy. That is not because of a presumption, legal or factual or of some less precise kind, against the grant of bail in such a case. It is a conclusion that necessarily follows from the very circumstances inherent in any such application. These circumstances have not changed with the enactment of the Bail Act. There is nothing in the Bail Act that requires the courts to ignore them or to give them less weight than they were formerly given. That does not mean that the courts should never grant bail pending appeal. Each application must be dealt with on its own merits. However, it would seem correct to say that the grant of bail pending appeal will continue to be exceptional. 18 Subsequently, in R v Flanigan,9 Debelle J followed the approach of Cox J in Beshara and emphasised that the unfettered nature of the discretion in s 10(2) of the Bail Act is not consistent with the proposition that bail will only be granted in exceptional circumstances. He concluded that the very conclusion that bail will only be granted in exceptional circumstances is, in fact, to fetter the exercise of the discretion.10 It ought not be overlooked, however, that Debelle J concluded that:11 6 As for the meaning of these words see Question of Law Reserved No 3 of 2023 [2024] SASCA 29 (Doyle, Bleby and David JJA). 7 Beshara & Kleut v Paphitis (1987) 136 LSJS 16 (Beshara) (Cox J). 8 Beshara, 19. Followed by Gray J in R v Baker [2000] SASC 281, [4]-[7], “there is no presumption for or against a grant of bail following conviction”. 9 R v Flanigan (unreported judgment, Supreme Court of South Australia, Debelle J, 25 November 1996, S5937) (Flanigan). 10 Flanigan. 11 Flanigan. -- 5 of 8 -- [2026] SASCA 86 Stanley JA 4 … a grant of bail pending appeal will never be easy and if regard is had to all relevant factors, it might at the end of the day result in the grant of bail being an exceptional event. 19 More recently, in R v Williams Davies J held that it is neither appropriate, nor the task of a judge hearing a bail application pending an appeal to the Court of Criminal Appeal, to engage in the same exercise as that of the Court of Criminal Appeal.12 20 There is a public interest in not making it appear that a conviction is only contingent until affirmed on appeal,13 as well as in having a convicted person serve the sentence imposed by the court as soon as is practicable.14 21 The applicant seeks to rely upon the reasons of Gray J in R v Blayney15 (Blayney) where his Honour said that home detention bail with strict conditions including electronic monitoring reduced the impact of the issues identified by Thomas J of the Supreme Court of Queensland in ex parte Maher16 (Maher). The reasoning of Thomas J in Maher reflects the reasons of King CJ in R v Giordano17. To the extent there is any difference in approach I consider that the approach taken by Livesey P in Nankivell should be adopted as the most recent statement of the relevant principles to deciding an application for bail pending appeal. In any event for reasons that follow I consider any reduction in the impact of the issues identified by Gray J is likely to be negligible. Consideration 22 In this case the applicant seeks to rely on the following matters in support of his application for bail pending appeal. First, that delay in hearing and deciding the application may render the appeal futile. Second, it is relevant the applicant was sentenced in a court of summary jurisdiction. Third, that home detention bail is being sought for the first time. Fourth, the applicant’s personal circumstances and other factors support the grant of bail pending appeal. 23 This is an appeal against sentence not conviction. Irrespective of the outcome of the appeal the applicant will be liable to some form of punishment. Presently the applicant will become eligible for parole on 23 September 2027. His head sentence will expire on 23 December 2028. The matter is to be called over on 10 August. The applicant’s counsel has foreshadowed an application for an expedited appeal. That is a matter for the callover judge. However, the risk that the applicant’s sentence will expire prior to finalisation of the appeal is remote. 12 R v Williams [2018] NSWSC 994, [24]. 13 Ex Parte Maher (1986) 1 Qd R 303 considered in R v McKellif [2003] SASC 357. 14 Ex Parte Maher (1986) 1 Qd R 303, 310 approved by the High Court in United Mexican States v Cabal (2001) 209 CLR 165, [39]; cited in R v Frederick [2004] SASC 304. 15 [2002] SASC 184 at [10]. 16 [1986] 1 Qd R 303. 17 (1982) 31 SASR 241 at 242. -- 6 of 8 -- [2026] SASCA 86 Stanley JA 5 24 While it is common ground that the appeal is arguable, even allowing for the view of Gray J in Blayney, public interest considerations inimical to the success of this bail application persist despite the advent of electronic monitoring. First, the Court should not be placed in the invidious position of the dismissal of an appeal having the effect of returning to prison a person whose circumstances may have changed greatly during a period of liberty and secondly, there is a clear public interest in preventing the appearance that a sentence by a judge of a lower court is only contingent until it is affirmed by a higher court. Caution must be exercised to avoid the risk that the grant of bail pending appeal will give rise to such a view among prisoners resulting in the proliferation of unmeritorious appeals to secure release. Third, there is an obvious public interest in having a convicted person serve the sentence imposed by the court as soon as practicable. Finally, in the context of the applicant’s reliance on the reasoning in Blayney the observations of Doyle J, with whom Kelly and Parker JJ agreed in R v Dell18 should be remembered. Justice Doyle said that it is important to bear in mind that while serving a term of imprisonment on home detention represents a significant entrenchment upon a defendant’s ordinary liberty and freedom of movement, and is a more onerous form of punishment than a suspended sentence of imprisonment, the reality is that it is a significantly less onerous form of punishment than a sentence that the defendant serve an immediate term of imprisonment within a prison. These policy considerations persist despite the advent of electronic monitoring. If the Court dismisses the appeal, it will be placed in the position of returning the applicant to custody. Further, electronic monitoring does little or nothing to avoid the perception of the Magistrates Court’s sentence appearing contingent until it is confirmed by a higher court. 25 There remains a real risk of undue delay in the applicant serving his sentence although I consider it is unlikely the appeal will be rendered futile given the timeframes involved. Reliance on early release before the applicant is eligible for parole is speculative. 26 I would not attach much weight to the fact that the applicant was sentenced in a court of summary jurisdiction or that home detention bail is being sought for the first time. In both cases I consider that these factors are only relevant to an application for bail before trial rather than after the applicant for bail has been convicted and sentenced. The fact that home detention bail is being sought for the first time is not a factor which favours a grant of bail of any kind, including home detention bail, pending appeal. 27 The applicant seeks to rely upon personal and other factors.19 I would not suggest that some of those factors are not relevant to the exercise of the Court’s discretion but none of them either individually or collectively outweigh the public interest factors which, in this case, militate against a grant of bail pending appeal. 18 (2016) 126 SASR 571 at [56]-[57]. 19 Applicant’s Written Submissions at [28]-[31]. -- 7 of 8 -- [2026] SASCA 86 Stanley JA 6 28 While I accept that there is no conclusive evidence of the value of the marijuana crop, I accept that the evidence points to a cultivation of 47 plants in what was a sophisticated operation whose primary objective was to make money. Conclusion 29 In the end the application involves the exercise of a discretion. For the reasons set out earlier, I do not consider that the evaluative decision required favours the grant of the application. 30 For these reasons, the application for bail pending appeal is dismissed. -- 8 of 8 --