Quarta v R

Court of Criminal Appeal (NSW)|2023-02-08|Before: Mitchelmore JA, Walton J, Adams J

The applicant's evidence

The applicant confirmed that he knew Ms O'Grady, having met her through a friend a few years earlier. They had a short relationship comprising a few one-night stands, the last of which was in February 2020. That was the only occasion on which Ms O'Grady had attended his house. He described their relationship as at the date of the shooting as being "on good terms" and stated that at the time she was selling him a car.
The applicant denied that he was with Ms O'Grady in the week leading up to and including 11 March 2020. His evidence was that on the morning of 11 March he was at home, and was not with Ms O'Grady either at the Lake Haven McDonalds or on Emu Drive, San Remo. The applicant also denied that he possessed a firearm or bullets at that time.

Findings of the trial judge

After noting the elements of the offences with which the applicant was charged, the trial judge proceeded to summarise the evidence given by the various witnesses. Her Honour gave herself a warning pursuant to s 165 of the Evidence Act in relation to Ms O'Grady's evidence. Given the centrality of that warning to Ground 1 on the conviction appeal, I will set it out in full: "Tahlia O'Grady is a witness who might be supposed to have been criminally concerned in the events giving rise to the proceedings, if only by failing to report the commission of the offence to the police. The experience of the Courts over the years has shown that the evidence given by such a witness may be unreliable and for that reason I must approach the evidence of Ms O'Grady with considerable caution. There are many reasons why the evidence of such a person may be unreliable, including: 1. The witness may want to shift the blame onto others and to justify their own conduct. In the process the witness may have constructed untruthful stories which tend to play down their own part in the crime and play up the part of others in the crime, even going so far as to blame quite innocent people. 2. The witness may make false claims as to the involvement of others out of motives of revenge or a feeling of dislike or hostility. 3. The witness may have been motivated to give false evidence in order to avoid criminal charges themselves. Ms O'Grady gave evidence that at the time she was interviewed on 14 March 2020, and nominated the accused as the shooter she was concerned that she may be refused bail for driving offences she had committed that day. This was in circumstances of her drug addiction and at a time she was applying for custody of her two daughters. That may provide a motivation to assist the police in the hope that they would grant her bail. 4. There may be other reasons or motives why false evidence is given by a witness in the position of Ms O'Grady. It is not for the accused to establish what they might be. 5. In respect of Ms O'Grady's evidence, experience has shown that once such a witness has given a version to the police which incriminates an accused he or she may feel locked into that version, even if it contained inaccuracies, or even if it was substantially untrue."
The trial judge also gave herself a Murray direction (so named after R v Murray (1987) 11 NSWLR 12) to the effect that Ms O'Grady's evidence should be "scrutinised … with great care", as the evidence of a single witness on which the Crown case heavily relied.
Her Honour put the evidence of Mr Bowman to one side on the basis that his asserted absence from Emu Drive that morning was "wholly implausible", having regard to the evidence of other witnesses and the evidence in Exhibit 16. As to Mr Kenney, the trial judge noted that his evidence was largely consistent with the Crown case but for the identity of the shooter; and her Honour did not accept his evidence that the shooter was Jack Roberts. It "did not ring true" to her Honour that Mr Kenney had known for some 18 months that Mr Roberts was the shooter, and was concerned that the applicant was being falsely accused, but was prepared to keep that to himself when asked to make a statement. Her Honour did not accept that Mr Kenney did not know he was to be called in the trial until approximately two weeks beforehand, in the face of the evidence of DSC Bagnall that she had invited him to make a statement earlier. The trial judge also found it "simply difficult to accept" that Mr Kenney did not know the applicant and did not know of his relationship with Ms O'Grady, finding that evidence to be inconsistent with his communications with Ms O'Grady around the time of the shooting.
On the evidence before her, the trial judge was satisfied beyond reasonable doubt that the driver of Ms O'Grady's WRX fired two shots from a firearm directed towards the Commodore being driven by Mr Kenney. In reaching that conclusion, her Honour relied on what she described as a combination of the following evidence: "1) Stephen Brown's observation that the driver of the first vehicle got out of his car and fired the first shot at the second car, Mr Brown only heard and did not see the second shot being fired. 2) Tahlia O'Grady's evidence that she saw the driver of her vehicle fire the first shot. She too only saw the first shot but heard the second shot. 3) There was a very short period of 3 seconds between the firing of the first shot and the second shot in circumstances where only the driver of the first vehicle was out of his car. 4) The two pieces of plastic wadding located by police are consistent with them being fired with the same weapon. 5) The metal fragment found in the same area as the damage to the Colorbond fence is consistent with having been fired from a shotgun. 6) The damage to the Colorbond fence is consistent with two shots having been fired from about the same position on Emu Drive."
The trial judge was not satisfied that the applicant's version of events was reasonably open and rejected it. Her Honour described his evidence as being contradicted "in vital respects" by the contents of Exhibit 16: "Particularly having regard to item number 59, a message sent from Tahlia O'Grady to the accused telling him that she was going to come back to see him and asking him what plans he had made for them that day. She also referred implicitly to the fact that her WRX had been involved in the shooting. That he was or had been, but for his interest in her cars, trying to avoid Ms O'Grady is inconsistent with the contents of his messages to her at 67, which included sending photographs of himself to her to remember him by if he went to prison, and message 69 where he is complaining that she had forgotten about him already."
The trial judge was satisfied that Items 60 and 61 of Exhibit 16 were admissions by the applicant about his involvement in the shooting, having regard to their proximity in time to the shooting and also to Item 59. Her Honour rejected the applicant's evidence that the messages reflected his concern about breaching his parole conditions.
Her Honour accepted that she could not be convinced of the identity of the shooter solely on the basis of Ms O'Grady's evidence, noting that she had been "at least reckless" as to her evidence that she was instructed by a police officer to lie in the first photo identification procedure. Her Honour accepted, however, that Ms O'Grady was motivated by her fear of the applicant and selected a different person as a self-protective measure to avoid having to give evidence against him. This substantially reduced the likelihood that she was lying when she identified the applicant in the second photo identification procedure, which occurred at a time when she had already been subpoenaed to give evidence and had attended court on that basis. Further, her Honour's assessment of Ms O'Grady in terms of her answers and her demeanour, having observed her "very closely as she gave her evidence from the witness box", was that she was attempting to be truthful, was not evasive in her responses, and made appropriate concessions.
There was also other evidence that supported Ms O'Grady's evidence that it was the applicant who committed the offences. Her Honour referred in this regard to a number of the text messages in Exhibit 16, and the evidence of Mr Kenney that Ms O'Grady had been hanging out with the applicant before the shooting. Her Honour accepted that Mr Brown's description of the shooter did not closely resemble the applicant. However, her Honour was not satisfied that this raised a reasonable possibility that it was not the applicant who committed the offence. Her Honour noted in this regard that Mr Brown had witnessed an incident of short duration and was otherwise mistaken as to his recollection of certain aspects of the incident.
Her Honour concluded: "I am satisfied that the evidence to which I have referred corroborates the evidence of Tahlia O'Grady in vital respects, namely that she was in the company of the accused at the time of the shooting and that it follows, given the other evidence of which I am satisfied, that the accused used a firearm, namely a shotgun, to shoot at the vehicle occupied by Ryan Kenny (sic) and Isaiah Bowman on Emu Drive in San Remo on 11 March 2020. The only reasonable inference is that this amounted to an act of intimidation and in respect of count 1 I find the accused guilty."

The appeal against conviction

Leave is required for each of the grounds of appeal. The applicant did not seek the direction at the trial which is the subject of complaint in Ground 1 (see r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021), while Grounds 2 and 3 are not confined to a question of law (see s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)).

Ground 1 - insufficiency of the s 165 direction

The applicant submitted that the trial judge erred in relation to the direction she gave herself regarding Ms O'Grady's evidence under s 165(1)(d) of the Evidence Act, on the basis that it did not sufficiently encapsulate the range of issues with Ms O'Grady's reliability. Apart from identifying the issue of Ms O'Grady's criminal concern in the events giving rise to the proceedings, the applicant submitted that her Honour did not advert to additional matters that his trial counsel had identified, including that Ms O'Grady had deliberately lied to police, falsely identified the shooter, lied that police had informed her to falsely identify the shooter, and was affected by drugs.
The applicant also submitted that there were issues concerning certain of the recorded phone calls and text messages that were inconsistent with Ms O'Grady's account and should also have been the subject of directions. The applicant advanced a similar argument in relation to the second photo identification procedure, contending that a s 165 direction should have been given on the basis that Ms O'Grady was being called upon by the Crown to "go along with the evidence of the person who she had initially named in the interview in the hospital", and was seeking to restore her credibility following her admittedly false claims in the first photo identification procedure.
In oral submissions, counsel for the applicant placed significant weight on the judge-only nature of the trial, in which the ultimate form of the directions was only given at the point of judgment. While it was accepted that the matters to which the applicant's trial counsel referred in address were not raised with the trial judge for inclusion in a s 165 direction, it was implicit from his submissions that the matters raised were expected to be addressed by the trial judge in that context. Counsel emphasised in this respect that immediately after the trial judge raised the prospect of a s 165 direction in relation to the possibility that Ms O'Grady may have been "at least" criminally concerned, trial counsel made lengthy submissions which raised various other issues with Ms O'Grady's unreliability. Read in the context of the exchange that had preceded them, and having regard to counsel's admitted use of "shorthand" in relation to the directions sought, the applicant submitted that all of those matters were directed at the content of a s 165 direction.
In evaluating this ground, it is necessary to consider the context in which the need for a warning under s 165 arose. Towards the end of the afternoon on which the Crown had commenced his address and had dealt with the evidence of Ms O'Grady, her Honour stated that she wanted to discuss with both counsel "any directions that you would seek that I give myself". The following exchange ensued between her Honour and counsel: "HER HONOUR: Now, just because we're on the topic, a s 165 warning in respect of Tahlia O'Grady, at least in respect of perhaps in the aspect of evidence that she committed an offence of concealing a serious offence, if not more than that. She was in the car with a man with a firearm, who subsequently got out and shot somebody. So I think there's evidence to suggest she's criminally concerned. NORRIE [FOR APPLICANT]: That would be my position, your Honour. CROWN PROSECUTOR: I don't think I can quarry with that. HER HONOUR: Whilst I need to approach with great caution, the evidence of Mr Bowman and Mr Kenny (sic), it's not my view that they attract a s 165 warning because their evidence assists the defence case. A s 165 warning is really in respect of evidence that the Crown rely upon to prove the charges against the accused. Although I'm happy to hear from you, if you think that that's not correct. There are other reasons why I need to look at closely the evidence of Mr Bowman and Mr Kenny (sic). But they're not the same sorts of reasons that I need to be cautious of accepting the evidence of Ms O'Grady. NORRIE: At first blush, I agree with that formulation, your Honour, I will give it some more thought."
Her Honour also invited both counsel to turn their minds to the issue of directions overnight, "if there was something else you think I might need to direct myself on outside of general directions". In response, counsel for the applicant foreshadowed that "there may be a need to provide a direction on hearsay evidence", which would fall within s 165, but he needed to think more about it. The following day, when he commenced his address, counsel for the applicant referred on two occasions to the need for a Murray direction in relation to the evidence of Ms O'Grady (which had been flagged the previous day) but did not make further reference to directions under s 165.
Although the applicant now contends that the trial judge should have given herself a s 165 warning about various aspects of Ms O'Grady's evidence, his trial counsel did not make such a request, beyond accepting what fell from her Honour regarding Ms O'Grady being criminally concerned in events giving rise to the proceedings, a matter to which s 165(1)(d) of the Evidence Act refers. It follows that the statutory precondition for a direction under s 165, being a request for which s 165(2) makes provision, was not established: Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 at [232] (Heydon J); Smith v R [2019] NSWCCA 162 at [63].
The fact that the applicant's counsel made submissions to the trial judge on matters which it is now said should have been the subject of a s 165 direction does not satisfy the statutory precondition. As the Crown submitted in this Court, the additional matters (see [69] above) went generally to the reliability of Ms O'Grady's evidence. Those topics are routinely the subject of submissions without the need for a warning under s 165: R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260 at [98]-[99] (Howie J, Hulme J agreeing), referred to with approval in Kaddour v R [2019] NSWCCA 90 at [114].
In circumstances where the direction about which the applicant now complains was not sought at the trial, he needs to demonstrate that he lost a real chance (or a chance fairly open) of being acquitted: see Roos v R [2019] NSWCCA 67 at [72]-[74], cited with approval in Glenn (a pseudonym) v R [2020] NSWCCA 308 at [289]. The applicant has not done so. I would refuse leave to appeal on Ground 1 under r 4.15 of the Supreme Court (Criminal Appeal) Rules.

Ground 2 - admissibility of alleged admissions by the applicant

I have extracted the messages from the applicant to Ms O'Grady on 13 March 2020 that were Items 60 and 61 of Exhibit 16 at [33] above. The applicant submitted that the trial judge could not have been satisfied that the only rational inference to be drawn from Items 60 and 61 was that he was admitting his involvement in the shooting. In circumstances where those messages did not refer to Ms O'Grady's earlier text message (Item 59), it was not apparent that his messages were responsive to it. Nor was it open on the evidence to conclude that the only reasonably available inference from those messages was that the applicant was going back to jail because of his involvement in the shooting, noting the evidence he had given about breaching his parole conditions.
In oral submissions, counsel for the applicant emphasised that the reliance on Items 60 and 61 as admissions of guilt was "inextricably linked" to Ms O'Grady's reliability, because Ms O'Grady claimed not to have been aware of the applicant's failure to comply with conditions of his parole relating to drug use. Counsel submitted that her Honour's conclusion was not available on the evidence (or, as it was put orally, "against the flow of the evidence"), and could only have been made if the messages were considered "in isolation, not referring to the unreliability question that was more broadly advanced by the [applicant] at trial and the circumstances that were relevant to that". There was thus some overlap between Ground 2 and Ground 3, which alleged that the verdict was unreasonable.
Contrary to the applicant's submission, the trial judge did not look at Items 60 and 61 in isolation. Rather, and as her Honour emphasised, the context of Items 60 and 61 was important. They were sent minutes apart, and some 25 minutes after Ms O'Grady had sent the applicant a message in which she told him that she "might Evan drive the WRX back if I can change the look abit and what not" and asked what their plans were for the day. It was well open to her Honour to consider that the two messages that the applicant sent were responsive to that message, and to reject his evidence that the messages were not responsive but rather were about him returning to jail for breaching his parole conditions relating to drug use. As the trial judge said, his evidence in that regard was difficult to accept in circumstances where "his own evidence was that his parole officer had been good to him and was extending leniency to him for his failed previous drug testing". In view of the limited merit of Ground 2 I would refuse leave to appeal under s 5(1)(b) of the Criminal Appeal Act.

Ground 3 - unreasonable verdict

The question on an unreasonable verdict ground is whether, upon the whole of the evidence, it was open for the trial judge to be satisfied beyond reasonable doubt of the applicant's guilt: see M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Filippou v R (2015) 256 CLR 47; [2015] HCA 29; Criminal Procedure Act 1986 (NSW), s 133(1). Central to the applicant's submissions was the evidence of Ms O'Grady, whom counsel described in the written submissions as a "self-confessed [liar], drug addict, who was demonstrated to be unreliable and entirely likely to deflect blame from the true assailant".
The applicant submitted that it was not open to the trial judge to conclude that Ms O'Grady had merely acted recklessly in relation to her evidence that she had been instructed by police to select the wrong person in the photo identification procedure. Rather, Ms O'Grady had told repeated and deliberate lies about the identity of the shooter, the death of Jack Roberts, and the instructions that police gave her during the first photo identification procedure. The applicant also relied on the text messages exchanged between Ms O'Grady and the applicant on the morning of 11 March 2020, in one of which she told him to "come on", as supporting the inference that they were not together that morning.
The applicant submitted there was an absence of independent corroborative evidence, whether in the form of forensic evidence or otherwise, to support Ms O'Grady's evidence that she was with the applicant on the morning of the shooting and that he was the shooter. The applicant submitted that Mr Kenney's evidence did not support that the applicant and Ms O'Grady had spent time together on the day of the shooting. As to the text messages which formed part of Exhibit 16, the applicant advanced a number of submissions: 1. The interpretation that the Crown advanced of the messages sent by Mr Kenney to Ms O'Grady on the evening of 11 March 2020 depended on accepting Ms O'Grady's interpretation, which was circular. Those messages did not specifically refer to the shooting earlier that day, did not reveal the identity of the shooter, and did not discuss the jealousy which had motivated the shooting (according to Ms O'Grady). 2. The message sent by Ms O'Grady to the applicant at 11.34am on 13 March 2020 (Item 59) only linked Ms O'Grady to the WRX, not to the applicant. 3. The applicant's subsequent messages to Ms O'Grady at 11.59am and 12.02pm on 13 March 2020 (Items 60-61) did not constitute admissions of guilt to the shooting. It was equally open to interpret the messages as the applicant stating his concern about returning to jail because he had been using drugs and had failed a series of drug tests. (This argument was addressed in the context of Ground 2.)
The applicant relied on Mr Brown's description of the shooter as someone who was taller and heavier than the applicant. He submitted that this description was likely to be reliable having regard to the direct lighting on the shooter from the headlights of the Commodore.
As the trial judge accepted, there were issues with Ms O'Grady's reliability arising, inter alia, from her false photo identification on 20 October 2021. It did not follow, however, that her Honour could not accept her evidence on the central issue of the trial, namely, the identity of the shooter. In reaching the conclusion that she was satisfied beyond reasonable doubt that the applicant was the shooter, the trial judge observed Ms O'Grady "very closely", and "gave her evidence even further scrutiny if that was possible, once apprised of the false identification". It is significant in this respect that having subjected Ms O'Grady's evidence to that degree of scrutiny, her Honour found that her identifying the wrong person in the first identification procedure was a self-protective measure. As her Honour found, this reduced the likelihood that she had falsely implicated the applicant in the second identification procedure, which occurred after she had been subpoenaed and was required to give evidence.
Further, as the Crown emphasised, Ms O'Grady's evidence was supported by entries in Exhibit 16, including the applicant's messages to Ms O'Grady on 13 March 2020 which her Honour accepted constituted admissions about his involvement in the shooting. Apart from those messages, read in context with the message of Ms O'Grady to which I have referred in Ground 2, the trial judge relied on: 1. The phone contact between Ms O'Grady and the applicant early on 11 March 2020, and her text message asking him to "come on". As the Crown submitted, even if there was some confusion in Ms O'Grady's evidence about the circumstances in which the phone calls and text messaging occurred that morning, it did not bear on the central issue of the identity of the shooter. It otherwise supported a version of events where Ms O'Grady and the applicant were making arrangements to meet on the morning of the shooting. That was, of course, directly contrary to the applicant's evidence that he had not seen Ms O'Grady that morning or at any point during the preceding week. 2. The message that Mr Kenney sent Ms O'Grady at 11.27pm the same day, telling her to sort things out with "ur j", while he would sort things out with "i" (Item 45), which her Honour was satisfied were references to Justin and Isaiah respectively and to the shooting that had occurred that morning. 3. Ms O'Grady's responsive message, at 11.32pm, referring to "Justin" as being the victim of a disagreement between "j" and "Isaiah", which confirmed for her Honour the construction of the previous text message. Contrary to the applicant's submission, the contemporaneous reference to "Justin" (and "Isaiah") in this message provided objective support for the applicant's involvement in the events of the day.
I do not accept the applicant's submission that Ms O'Grady's evidence that Mr Roberts was deceased as at 11 March 2020 was a deliberate lie. As I have noted above, when a later date was put to her she accepted it, but maintained her evidence that it was the applicant in the vehicle and not Mr Roberts.
I also do not accept that Ms O'Grady's history of drug use impacted on her credibility or reliability on the central issue. I have referred above to her denying during cross-examination that her drug use clouded her mental functions or resulted in any side effects such as confusion, altered thinking, paranoia, agitation or hallucinations. It is apparent from my review of the transcript that Ms O'Grady was clear and consistent in her recollection of the applicant's involvement in the shooting.
As to the evidence of Mr Brown, I accept the Crown's submission that, as the trial judge found, it did not raise a reasonable possibility that the shooter was someone other than the applicant. As her Honour stated, he was witnessing an incident of short duration and was clearly upset and shocked by what he had seen. That he was upset was evident from his having identified one of the cars as red, when both cars were black. Further, as the Crown submitted, Mr Brown was observing the events from some distance and at an angle, and the shooter was wearing a hoodie and track pants.
On my review all of the evidence, and considering it as a whole, it was reasonably open to the trial judge to be satisfied beyond reasonable doubt that the applicant was guilty of Count 1. Although I would grant leave to appeal on Ground 3, the appeal should be dismissed.

The sentence appeal

The proceedings on sentence were heard in the District Court over three days between November 2021 and February 2022. The applicant was sentenced on Count 1 on the basis of her Honour's findings to which I have referred above. The facts of the three driving offences were the subject of Agreed Facts.
As summarised by the sentencing judge, the applicant committed the driving offences on 19 March 2020. At 10.40am that morning, Senior Constable Buko was performing highway patrol duties in a marked highway patrol vehicle. When exiting the northbound twin service stations located on the M1 Motorway near Alison, SC Buko observed a white Toyota Corolla hatchback, driven by the applicant, roll through a stop sign. Although he activated his warning lights, the applicant accelerated away. SC Buko commenced a pursuit but he was directed to desist. The two cars ended up travelling alongside each other when exiting the motorway, in the course of which the applicant was seen by SC Buko to be looking over at him and laughing.
Shortly after this incident, Senior Constables Sams and Keane observed the applicant driving north along Doyalson Link Road, and followed him at a distance as he turned into a cul-de-sac. The applicant did a U-turn at the bottom of the street and drove back towards the police, accelerating as he did so, swerving back and forth to get around the police vehicle and causing the driver of the police vehicle to swerve to avoid a collision. The police pursued the applicant but found the Corolla abandoned; subsequent DNA taken from the steering wheel of the vehicle matched the applicant's profile. On 20 March 2020, police charged the applicant with the driving offences. At that time he was receiving treatment at John Hunter Hospital under police guard, following a motorcycle accident in which he was involved on 19 March 2020.
In addition to the s 166 certificate, the Crown tendered the applicant's criminal and custodial histories, a Google Maps image showing the route the offender took during the police pursuit to which the driving offences related, the applicant's traffic record report, parole documents and fact sheets. The applicant did not give evidence but tendered reports from an advanced trainee in psychiatry, Dr Abi Ratnagopal, and two psychologists, Ms Nihal Kucuk and Dr Paul Pusey. The sentencing judge also had regard to the sentencing remarks of Judge Ingram SC in the context of what her Honour described as "strikingly similar" offending.
In assessing the objective seriousness of the offence the subject of Count 1, the sentencing judge had regard to a number of factors. The weapon used was a shotgun, and the offence involved two shots being fired in a residential street at a time when residents would be waking and leaving for work, giving rise to a real risk of injury and possibly death to innocent people. Her Honour considered that this disregard for public safety constituted an aggravating factor pursuant to s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"). Additionally, the shots were directed at the intended victim, Mr Bowman. There was no evidence of substantial planning by the applicant, other than his possession of the firearm and ammunition. Although the serious indictable offence of intimidation relied upon by the Crown carried a maximum penalty of 5 years (as compared to other serious indictable offences which carry maximum penalties of up to 25 years imprisonment), the nature of the intimidation was of a high order.
Her Honour noted the parties' agreement that a discount of 5% would account for the limited utilitarian value of the late pleas on the driving offences. Her Honour described the police pursuit charge as a serious example of reckless driving on a busy freeway at mid-morning, involving a distance of some 20 kilometres. Her Honour noted that the applicant seemed to find this humorous, having been observed to be laughing at SC Buko.
The sentencing judge described it as a "significant factor" that at the time of the commission of the present offences, the applicant was on parole for a shooting offence of an almost identical nature, for which he was convicted and sentenced by Judge Ingram SC on 21 April 2017. That offence involved the applicant and another man pursuing a vehicle occupied by two victims along public roads, shooting at it twice and causing bullet damage to the victims' car, before engaging in a pursuit with police. The applicant had only been released from custody four months before he engaged in the conduct the subject of Count 1, with the parole period for the earlier offence to expire on 24 December 2020. That he was subject to conditional liberty when he committed the Count 1 offence and driving offences was an aggravating factor: s 21A(2)(j) of the Sentencing Procedure Act.
Her Honour noted that the applicant's criminal history dated back to when he was 14 years old and was "no doubt the product of a long history of drug use". His record included car theft, driving while disqualified, aggravated dangerous driving, offences involving the use of a weapon, and offences in custody. Her Honour concluded that the applicant's criminal history raised the need for the sentence imposed to reflect the principles of denunciation, protection of the community, and specific deterrence.
In terms of the applicant's subjective circumstances, her Honour found that the applicant had a difficult upbringing and lacked parental support. Both of his parents had heroin addictions and he described his upbringing as one that was marred by significant conflict, chaos, and verbal and physical abuse. His father involved the applicant in his own criminal activity until he left school in Year 8 and became "a kid of the street". His education was affected by symptoms of ADHD and behavioural issues, although he later went on to complete Year 10 in custody. At the time of the offending, the applicant was unemployed and in receipt of Centrelink payments. He had no employment history, having spent the majority of his adult life in custody.
The applicant had a history of drug abuse, starting as a teenager. At various points the applicant had a heroin addiction, and abused cocaine, Rohypnol and Xanax. He was also a long-term user of anabolic steroids. The applicant reported that his drug use was prompted by sexual and physical abuse in custody when he was a juvenile, which caused him to self-medicate to counter his emotional distress. The sentencing judge accepted that this abuse likely derailed his development, leading him to resort to "maladaptive drug use to mollify his emotional response". The long-term impacts of his drug use included isolation from friends and family, difficulty developing and maintaining relationships, a lack of employment, criminal activity and extensive periods in custody. At the time of his sentencing, the applicant was on the Buprenorphine program in custody and was receiving regular psychological support.
The sentencing judge took into account the reports tendered on behalf of the applicant, ultimately finding as follows: "While there is a notable absence of unity in respect of the offender's background and diagnosis which may be explained by a capacity to malinger, I am satisfied that the offender's childhood was marred by a lack of parental support, and that on balance his development was likely further derailed by sexual and physical abuse suffered in juvenile detention, that he resorted to maladaptive drug use to mollify his emotional response would not have been helped by learned behaviour from his parents. The offender's moral culpability is reduced in that way. Despite a reduction in moral culpability, I am not satisfied of any direct nexus between the offender's mental state and the commission of the offences. As I have already noted the offender himself was unable to recount his emotional or mental state at the time of the offences. Given the serious nature of offences involving firearm discharge in a public place and police pursuits general deterrence remains a relevant factor. The offender's repeat offending in a similar way and his reoffending on parole means that personal deterrence and the protection of the community loom large."
The sentencing judge described the applicant as having shown no signs of remorse, and his prospects of rehabilitation were "somewhere between poor and guarded" and would depend heavily on his engagement with psychological and/or drug and alcohol counselling services. Her Honour noted in this regard that the applicant had spent the majority of his adult life in prison and was "likely institutionalised". Her Honour also noted that the applicant had reported to Dr Pusey that he had stopped using drugs, which was notable given that he had never before engaged in treatment relating to his substance abuse.
It was accepted that only sentences of full-time imprisonment were appropriate in the circumstances. Her Honour took into account the disparate nature and temporal separation between the shooting and driving offences and considered that a degree of notional partial accumulation was appropriate. Her Honour also had regard to the applicant having served a period of 9 months relating to the revocation of parole for the offences for which he was sentenced by Judge Ingram SC, and the 6 months he served for an unrelated driving offence. Her Honour found special circumstances in recognition of the need to address the applicant's institutionalisation, his psychological needs, and the effect of the accumulation of sentences.
Her Honour's indicative sentence for the use offensive weapon with intent to intimidate offence was 5 years and 9 months, and for the offence of engaging in a police pursuit driving recklessly, allowing for the 5% utilitarian discount, 2 years and 4 months. The aggregate sentence was 6 years and 9 months imprisonment, with a non-parole period of 4 years and 6 months. For the driving whilst disqualified offence, her Honour imposed a fixed term of 11 months imprisonment to run concurrently with the aggregate sentence. Her Honour also disqualified the applicant from holding a licence for a period of 3 years for the police pursuit offence, and for 2 years for the drive whilst disqualified offence, with the latter period of disqualification commencing on his release.

Ground 1 - application of Bugmy and Fernando

The applicant accepted that the sentencing judge considered the principles discussed in Bugmy and Fernando, in so far as his dysfunctional and deprived upbringing was found to be relevant to the assessment of moral capability. However, he submitted that her Honour treated the impact of his history as diminishing over time, as a result of which it was not properly brought to account in assessing moral culpability. The applicant also submitted that the sentencing judge erred in concluding that there was no direct nexus between the applicant's mental state and the commission of the offences (see DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 ("De La Rosa")), in circumstances where the Bugmy and Fernando considerations made clear that that nexus was established. In oral submissions, counsel for the applicant submitted that the complaint pursuant to this ground was also relevant to Ground 3.
It does not follow from the manner in which her Honour expressed her reasoning that appropriate weight was not given to Bugmy considerations. In the passage that I have extracted in [100] above, her Honour made a finding in accordance with Bugmy, referring to the applicant's childhood and the abuse to which he had been subjected whilst in juvenile detention, and finding that his moral culpability was reduced "in that way". What her Honour proceeded to find, in what immediately followed, was that: 1. the applicant's moral culpability was not further reduced on the basis of any direct nexus between his mental state and the commission of the offences, a finding that was well open having regard to the lack of any uniform diagnosis and the applicant's inability to recount his emotional or mental state at the time of the offences; and 2. in view of the nature and seriousness of the offences, general deterrence remained relevant, as did personal deterrence and protection of the community.
As the Crown submitted, the sentencing judge's approach was consistent with Bugmy whilst bringing to account other factors that were relevant to the sentencing exercise, in accordance with the well-recognised and often complex interplay between these factors: R v Engert (1995) 84 A Crim R 67 at 68 (Gleeson CJ). I accept the Crown's submission that it was open to the sentencing judge to conclude, having noted the reduction in the applicant's moral culpability for the reasons above, that there were countervailing considerations concerning the need for general and specific deterrence and the protection of the community which the sentence needed to reflect.

Ground 2 - hardship of incarceration

The applicant next submitted that the sentencing judge failed to give adequate weight to various matters which indicated that his period of incarceration would be unusually onerous. He relied in this respect upon his various diagnoses and injuries, including a number of mental health conditions, a neurocognitive disorder arising from a traumatic brain injury suffered during a motor vehicle accident and assault in custody, and observed hypervigilance, all of which were said to be likely to negatively impact his experience of custody. He also submitted that the sentencing judge failed to consider the impact of COVID-19, which was likely to make his conditions of incarceration more onerous.
This ground may be dealt with shortly. As the Crown submitted, there was no evidence before the sentencing judge to establish that the applicant's mental and cognitive health and/or conditions of incarceration arising from the COVID-19 pandemic made his conditions of incarceration more onerous than those of other offenders. Further, no such submission was made either orally or in writing in the sentence hearing on those subjects (noting that, in so far as the impact of the pandemic was concerned, a submission on that topic would have been sufficient). An appeal is not the occasion to agitate these issues for the first time: Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [81].

Ground 3 - manifest excess

The applicant's submissions on this ground were primarily concerned with the sentence imposed in respect of the Count 1 offence. In oral submissions, counsel for the applicant pointed to the notional starting point in respect of that offence (5 years 9 months), submitting that it was "very close to the midway point". The applicant took issue with it by reason of the following matters: 1. In terms of objective seriousness, the shooting did not cause injury to any person, the offence occurred in the early hours of the morning such that there was limited danger to any member of the public, neither alleged victim complained that they were intimidated, and there was no evidence of substantial planning by the applicant other than his possession of the firearm and ammunition. 2. The sentencing judge's consideration of the aggravating factor of "disregard for public safety" occasioned by the firing of the weapon effectively amounted to double counting, in so far as that factor was an inherent part of the offence with which the applicant was charged. 3. Although the sentencing judge recognised that the applicant was likely institutionalised given the significant portion of his adult life spent in custody, the parole period of 2 years and 3 months fixed by her Honour insufficiently recognised that the applicant had ceased using drugs and would require assistance in the community to overcome his long-standing issues. 4. As identified in Ground 1, the applicant had a disadvantaged childhood, and experienced verbal, physical and sexual abuse and drug addiction from an early age. He also experienced significant mental and cognitive health issues. Neither matter was reflected in the ultimate sentence.
The principles regarding the ground of manifest excess are well settled: see for example Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. It is the aggregate sentence that was ultimately imposed that is the focus of the ground, with the Court concerned as to whether it reflects the totality of the criminality evident in the counts for which the applicant has been sentenced: McTague v R [2020] NSWCCA 83 at [47], citing Delleci v R [2020] NSWCCA 4 at [61].
The matters on which the applicant relies do not establish that the sentence that her Honour imposed was unreasonable or plainly unjust. In terms of the objective seriousness of the Count 1 offence, her Honour recognised the factors on which the applicant relies, but recognised also that the offensive weapon was a shotgun. At least one of the shots was fired in the direction of Mr Bowman, and both shots were fired on a public road at a time when persons, such as Mr Brown, were heading to work. Her Honour was correct to conclude that the offence involved a disregard for public safety. Contrary to the applicant's submission, reliance on that matter as an aggravating factor did not involve double-counting. The offence was use offensive weapon with intent to commit an indictable offence; it is not an inherent aspect of that offence that it will involve a shotgun, let alone that it will occur in a public place in the presence of bystanders.
The driving charges were also objectively serious. The police pursuit occurred on a motorway in the mid-morning over some 20 kilometres. As the Crown also emphasised, the applicant at one point drove directly at police, requiring them to swerve to avoid a collision.
As to the manner in which the sentencing judge addressed the applicant's very difficult upbringing, I have addressed this above. Her Honour reduced his moral culpability on that basis, but nonetheless concluded that general and personal deterrence remained an important factor given the serious nature of the offences. As the Crown submitted, it was material to this point that the applicant was on parole for similar offences when he committed the offences for which he was sentenced, and that the sentencing judge's assessment of his prospects of rehabilitation was somewhere between poor and guarded.
Her Honour also recognised that the applicant had spent a lengthy time in custody, and recognised the significance of the applicant having ceased using drugs in his current period of custody. Her Honour found special circumstances on account of his institutionalisation and his psychological needs, which included substance abuse. It does not follow from her Honour not setting a higher ratio between the head sentence and the non-parole period that the sentence is manifestly excessive.
It follows that I would dismiss the sentence appeal.

Conclusion

I propose the following orders: 1. Refuse leave to appeal on grounds 1 and 2 of the conviction appeal. 2. With respect to ground 3 of the conviction appeal: 1. grant leave to appeal; and 2. dismiss the appeal. 1. Grant leave to appeal against sentence. 2. Appeal against sentence dismissed.
WALTON J: I agree with the orders proposed by Mitchelmore JA for the reasons given by her Honour.
N ADAMS J: I have had the advantage of reading the judgment of Mitchelmore JA in draft. I agree with the orders proposed by her Honour for the reasons provided. In relation to Ground 3 of the conviction appeal, I too have reviewed the evidence and am satisfied that it was reasonably open to the trial judge to be satisfied beyond reasonable doubt that the applicant was guilty of Count 1.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 10 July 2023

v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Category: Principal judgment Parties: Justin Quarta (Applicant) Crown (Respondent) Representation: Counsel: S Kluss (Applicant) D Scully (Respondent)

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Justin Quarta, was found guilty of one count of using an offensive weapon with intent to commit an indictable offence, namely intimidation, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW) ("Count 1"). He was later sentenced in respect of that charge and three further driving offences concerning a police pursuit in which he was involved, with the sentencing judge imposing an aggregate sentence of 6 years and 9 months imprisonment, with a non-parole period of 4 years and 6 months. The Count 1 offence arose out of an incident on 11 March 2020. The Crown alleged that on that date, the applicant was driving a black Subaru WRX owned by his acquaintance, Tahlia O'Grady, who was a passenger in the vehicle. While in the car, the applicant engaged in a heated phone conversation with Isaiah Bowman, a friend of his and a former partner of Ms O'Grady. After the phone call, the applicant drove in the direction of San Remo, NSW, where Mr Bowman lived. At the same time, Mr Bowman was being driven in a black Holden Commodore by another friend of his and the applicant's, Ryan Kenney. The Crown alleged that the two cars travelled in the same direction before stopping on Emu Drive some distance apart, at which point the applicant alighted from his vehicle and fired two shots at the Commodore before re-entering the WRX and driving away. The central issue in the trial was the identity of the shooter. The Crown relied primarily on the evidence of Ms O'Grady, who identified the applicant as the shooter, as well as evidence from witnesses and a number of police officers involved in the investigation. The Crown also relied on phone call and text message records extracted from Ms O'Grady's phone. Mr Bowman and Mr Kenney were both examined by the Crown on a Basha inquiry, and their evidence was tendered in the trial. The applicant gave evidence, in which he denied the Crown's version of events. The trial judge was satisfied beyond reasonable doubt that the applicant used a firearm to shoot at the Commodore being driven by Mr Kenney and found him guilty of the Count 1 offence. In forming that conclusion, her Honour gave herself a warning pursuant to s 165 of the Evidence Act 1995 (NSW) and a Murray direction in respect of Ms O'Grady's evidence. Notwithstanding the scrutiny placed on her evidence, the trial judge accepted that it was corroborated in key respects by other evidence. In particular, her Honour accepted that two text messages sent by the applicant to Ms O'Grady constituted admissions as to his involvement in the shooting. In imposing the aggregate sentence on the applicant, the sentencing judge found that there were two aggravating factors: the disregard for public safety demonstrated by the applicant in respect of the Count 1 offence; and that he was subject to conditional liberty when he committed all of the offences. Her Honour also held in the context of assessing objective seriousness that the nature of the intimidation involved in the Count 1 offence was of a high order, and the police pursuit offence was a serious example of reckless driving. The applicant's extensive criminal history raised the need for the sentence imposed to reflect principles of denunciation, protection of the community, and specific deterrence. As to the applicant's subjective circumstances, the primary judge accepted that he had a difficult upbringing lacking in parental support, no employment history, and a history of drug abuse. Although this justified a reduction in his moral culpability, her Honour was not satisfied that there was any nexus between the applicant's mental state and the commission of the offences. Her Honour also held that the applicant showed no signs of remorse, had between poor and guarded prospects of rehabilitation, and was likely institutionalised. Her Honour noted the disparate nature and temporal separation between the offences, finding that a degree of notional accumulation was warranted. In imposing the aggregate sentence, the sentencing judge also took into account the period of time the applicant had served in prison in relation to the revocation of his parole, made a finding of special circumstances, and applied the utilitarian discount of 5% for the applicant's late plea of guilty in respect of the driving offences. In the conviction appeal, the applicant advanced three grounds of appeal, alleging that the trial judge erred in: insufficiently directing herself as to s 165 of the Evidence Act and not applying the directions to the evidence; admitting two of the text messages as admissions by the applicant; and reaching a verdict of guilty which was unreasonable and could not be supported by the evidence. In the sentence appeal, the applicant also advanced three grounds, alleging that the sentencing judge erred in: failing to apply the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and R v Fernando (1992) 76 A Crim R 58; failing to consider the hardship of incarceration in the context of the applicant's cognitive injury, mental illness and the COVID pandemic; and imposing a sentence that was manifestly excessive. The Court (Mitchelmore JA, Walton and N Adams JJ agreeing) held: As to the conviction appeal: (1) The applicant's trial counsel did not request that the trial judge give herself a s 165 warning about various aspects of Ms O'Grady's evidence, and merely accepted what her Honour stated regarding Ms O'Grady being criminally concerned in the Count 1 offence. The further matters identified by the applicant's counsel, about which he submitted a direction should have been given, were properly matters for submission. Further, a direction was not sought in relation to those matters, from which it followed that the statutory precondition for a warning under s 165 was not satisfied: [74]-[75]. Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59; Smith v R [2019] NSWCCA 162 applied. (2) The applicant did not demonstrate that, by reason of the trial judge failing to give directions which were not sought at the trial, he had lost a real chance or a chance fairly open of being acquitted: [76]. R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260; Kaddour v R [2019] NSWCCA 90 considered. (3) The primary judge appropriately considered the text messages said to constitute admissions by the applicant in context. It was well open to her Honour to consider that, read in that context, the two messages constituted admissions, and to reject the applicant's evidence to the contrary: [79]. (4) On review of all the evidence, considered as a whole, it was reasonably open to the trial judge to be satisfied beyond reasonable doubt that the applicant was guilty of Count 1. In particular, her Honour did not err in relation to her assessment of the evidence of Ms O'Grady, the evidence which supported Ms O'Grady's account (including the text messages and phone call records from her phone), and the evidence of the witnesses to the shooting: [84]-[89]. M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Filippou v R (2015) 256 CLR 47; [2015] HCA 29 applied. As to the sentence appeal: (5) The sentencing judge gave appropriate weight to Bugmy considerations. Her Honour's approach was consistent with Bugmy, but also brought to account other factors relevant to the sentencing exercise. It was open to her Honour to accept that, notwithstanding the reduction in the applicant's moral culpability, there were countervailing considerations concerning the need for general and specific deterrence and community protection which needed to be reflected in the sentence: [105]-[106]. Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; R v Fernando (1992) 76 A Crim R 58; R v Engert (1995) 84 A Crim R 67 considered. (6) There was no evidence before the sentencing judge to establish that the applicant's mental and cognitive health and/or conditions of incarceration arising from the COVID-19 pandemic made his conditions of incarceration more onerous than those of other offenders. No such submission was made on any of those matters in the sentencing hearing, and it was not appropriate to agitate such matters for the first time on appeal: [108]. Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 applied. (7) The aggregate sentence imposed on the applicant was not unreasonable or plainly unjust. In assessing the objective seriousness of the offences, the sentencing judge correctly concluded that the Count 1 offence involved a disregard for public safety, and reliance on that matter as an aggravating factor did not involve double counting. Her Honour also correctly concluded that the driving charges were objectively serious. There was also no error in her Honour's assessment of the applicant's subjective circumstances. It did not follow from her Honour not setting a higher ratio between the head sentence and the non-parole period that the sentence was manifestly excessive: [111]-[114]. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; McTague v R [2020] NSWCCA 83; Delleci v R [2020] NSWCCA 4 applied.

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