A Canberra man who tricked a prostitute into having sex with him has been released as he appeals against his eight-month rape sentence, arguing the judge didn't properly consider the unusual nature of consent when deciding his punishment.
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Akis Emmanouel Livas, 52, found himself facing a charge of sexual intercourse without consent after an appointment with a sex worker in Canberra's south in October 2010.
He had handed the woman an envelope, promising it contained cash for the sex, and another $50 he owed from a previous visit.
But Livas asked her not to open it until he left, saying it was part of his fantasy for the sex to seem real.
The envelope, however, was empty, save for a card bearing a white rose.
The woman said she felt internally violated upon realising the deception, and police charged Livas.
He was prosecuted for rape on the basis that he fraudulently obtained consent for the sex, and pleaded guilty.
Justice Hilary Penfold sentenced him to eight months imprisonment earlier this year, and he has spent three months behind bars so far.
But Livas is appealing the sentence on three grounds, one of which is that the judge did not properly consider the unusual issue of consent, and the impact on the seriousness of the offence.
Barrister Shane Gill argued the appeal might not be heard until August or November, after Livas had completed the majority or all of the eight-month sentence.
Mr Gill used that as a basis for an application for showing there were special or exceptional circumstances warranting bail on Wednesday.
He said his client's appeal against sentence was at least "arguable" but would not be heard until Livas had served his time behind bars.
Crown prosecutor Keegan Lee opposed the release, saying the appeal was weak with little prospect of success.
He said the issue of consent was at the forefront of the judge's mind during sentencing.
But Chief Justice Helen Murrell agreed the appeal was arguable, although expressed some pessimism about its prospects for success. Nevertheless, she said, it was not frivolous.
She concerned Livas' sentence would be completed by the time the appeal was dealt with.
That, she said, meant special or exceptional circumstances existed and there was no reason Livas shouldn't be released on bail.
Livas was granted bail on strict conditions, including to reside at a southside address, not contact the victim or go near her property, to report to police, and to not leave the ACT.
A surety of $6000 was also required.
The two other grounds for Livas' appeal was that the judge improperly made a sentence of imprisonment her starting point and didn't consider weekend detention.
