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Court of Criminal Appeal 10 July 2023

Quarta v R

[2023] NSWCCA 173

Firearms & weapons
CRIM E A PPEALS A PPEAL AGAINST CONVICTION WHETHER VERDICT WAS UNREASONABLE CRIME A PPEALS A PPEAL AGAINST SENTENCE

Citation: Quarta v R [2023] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 10 July 2023
Judges: Mitchelmore JA (with Walton J and N Adams J agreeing)

Background

The appellant was convicted after a judge-alone trial of using an offensive weapon (a firearm) with intent to commit an indictable offence, specifically intimidation, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW). The offence arose from an incident on 11 March 2020 in which the Crown alleged the appellant fired two shots at a vehicle on Emu Drive, San Remo, NSW, following a heated phone argument with a former acquaintance.

The key Crown witness was a passenger in the appellant's car who identified him as the shooter. The trial judge gave herself a warning under s 165 of the Evidence Act 1995 (NSW) and a Murray direction (a caution about relying on potentially unreliable witness evidence) regarding that witness's account. The trial judge also admitted two text messages sent by the appellant as admissions of his involvement in the shooting.

The appellant was subsequently sentenced on the firearms offence and three driving offences arising from a separate police pursuit. The sentencing judge imposed an aggregate sentence of 6 years and 9 months imprisonment, with a non-parole period of 4 years and 6 months. The appellant appealed against both conviction and sentence.

Conviction appeal:
- Whether the trial judge's s 165 warning was insufficient and not properly applied to the key witness's evidence
- Whether the trial judge erred in admitting two text messages as admissions of involvement in the shooting
- Whether the guilty verdict was unreasonable and unsupported by the evidence

Sentence appeal:
- Whether the sentencing judge failed to apply the principles from Bugmy v The Queen (2013) 249 CLR 571 and R v Fernando (1992) 76 A Crim R 58, which govern sentencing of offenders with disadvantaged backgrounds
- Whether the sentencing judge failed to consider the hardship of incarceration given the appellant's cognitive injury, mental illness, and COVID-19 conditions
- Whether the aggregate sentence was manifestly excessive

Decision

On the conviction appeal: The Court of Criminal Appeal dismissed all three grounds. On the s 165 direction ground, the Court found that the appellant's trial counsel had not requested any further warning beyond what the trial judge gave. Under s 165, a warning must be requested to enliven the statutory obligation. Because no such request was made in relation to the additional matters raised on appeal, the precondition for a warning was not satisfied. The Court also found that the appellant had not established a lost real chance of acquittal as a result of the absence of further directions.

On the text message admissions ground, the Court held it was well open to the trial judge to read the two messages in context and treat them as admissions. The trial judge appropriately considered the messages alongside surrounding evidence and rejected the appellant's contrary explanation. On the unreasonable verdict ground, the Court reviewed the whole of the evidence and was satisfied it was reasonably open to the trial judge to be satisfied beyond reasonable doubt of the appellant's guilt, given the key witness's evidence was corroborated by the text messages, phone records, and other witnesses.

On the sentence appeal: The Court found no error in the sentencing judge's treatment of the Bugmy principles. The sentencing judge had reduced the appellant's moral culpability on account of his difficult upbringing and lack of parental support, but weighed that reduction against the countervailing need for general and specific deterrence and community protection, particularly given the appellant was on parole for similar offences at the time. That approach was consistent with Bugmy and Fernando.

The hardship of incarceration argument was rejected because no evidence of more onerous conditions had been placed before the sentencing judge, and no submission had been made on those matters at the sentencing hearing. The Court confirmed it was not appropriate to raise such arguments for the first time on appeal. The Court also rejected the manifestly excessive ground, finding the sentencing judge had correctly assessed the objective seriousness of the offences, made no double-counting error, and properly accounted for the appellant's subjective circumstances, including his institutionalisation and substance abuse history, through a special circumstances finding.

Orders Made

  • Leave to appeal against conviction refused on grounds 1 and 2
  • Leave to appeal against conviction granted on ground 3; appeal dismissed
  • Leave to appeal against sentence granted; sentence appeal dismissed

Key Takeaways

  • Under s 165 of the Evidence Act 1995 (NSW), the obligation to give a warning about potentially unreliable evidence is only enlivened when a party requests one. Where trial counsel does not seek a direction, the statutory precondition is not met and the absence of a warning will not ordinarily found a ground of appeal.

  • A conviction appeal on the basis of an unreasonable verdict requires the appellate court to review all the evidence as a whole. Corroboration of a key witness's account through phone records, text messages, and other witnesses can support a finding of guilt beyond reasonable doubt even where a credibility warning has been given about that witness.

  • Text messages may properly be admitted and treated as admissions where the trial judge considers them in context and has a sound basis for rejecting the accused's alternative explanation. No error arose from that approach here.

  • Applying Bugmy, a sentencing judge may reduce an offender's moral culpability on account of a disadvantaged background while still giving significant weight to deterrence and community protection, particularly where the offender reoffended while on parole for similar conduct and rehabilitation prospects are poor.

  • Grounds of appeal relating to the hardship of incarceration, including conditions arising from COVID-19 or an offender's mental health, cannot be agitated for the first time on appeal where they were not raised and supported by evidence in the sentencing hearing below.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B, 51B, 93G
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), ss 38, 165
- Road Rules 2014 (NSW), reg 68
- Road Transport Act 2013 (NSW), s 54

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59
- Filippou v R (2015) 256 CLR 47; [2015] HCA 29
- Kaddour v R [2019] NSWCCA 90
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- R v Engert (1995) 84 A Crim R 67
- R v Fernando (1992) 76 A Crim R 58
- R v Murray (1987) 11 NSWLR 12
- R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260
- Smith v R [2019] NSWCCA 162
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44