Guy Sebastian's former manager convicted of fraudulently embezzling more than $600,000 from the pop star will learn on Friday whether his bail is revoked on appeal.
The Crown on Monday in the NSW Court of Criminal Appeal made a third detention application saying the judges did not need to be satisfied as a matter of certainty that Day would be going to jail.
"Rather, the court must be satisfied on a balance of probabilities that the responder will be going to jail."
And if Day was ordered to serve his sentence in the community by way of an intensive corrections order, the Crown would submit that would be "manifestly inadequate".
Due to the serious nature of Day's offending, in circumstances where there was a flagrant breach of trust when he stole from the pop star, jail time would be inevitable, the court was told.
Day's barrister Dominic Toomey SC asked Justices Fabian Gleeson, Robertson Wright and Richard Cavanagh to accept Justice Peter Garling's reasoning for dismissing a previous bail detention application.
He said the "probabilities approach" was not correct in assessing whether his client would be sentenced to full-time custody, and that a greater degree of certainty was required.
"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 a person has simply sought to enrich themselves," Mr Toomey said.
He said he will provide evidence to show some money was used "to meet expenses that were associated with performances associated with Mr Sebastian".
"This is not the ordinary case."
Mr Toomey was asked to submit some documentary evidence of this "mitigating factor" before the judges make their decision on Friday.
Day managed the Australian Idol winner via his company 6 Degrees between 2009 and 2017 before the pair's relationship ended acrimoniously.
He was convicted by a District Court jury of 34 charges after withholding royalty and performance fees owed to Sebastian between 2013 and 2020.
Day was found not guilty of 13 charges.
He will face a sentence hearing on September 16.
