Quarta v The King

[2023] NSWCCA 173

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Quarta v R [2023] NSWCCA 173

Hearing dates:

8 February 2023

Date of orders:

10 July 2023

Decision date:

10 July 2023

Before:

Mitchelmore JA at [1]
Walton J at [117]
N Adams J at [118]

Decision:

(1)   Refuse leave to appeal on grounds 1 and 2 of the conviction appeal.

(2)   With respect to ground 3 of the conviction appeal:

       (a)   grant leave to appeal; and

       (b)   dismiss the appeal.

(3)   Grant leave to appeal against sentence.

(4)   Appeal against sentence dismissed.

Catchwords:

CRIME – appeals – appeal against conviction – use offensive weapon with intent to commit an indictable offence, namely intimidation, contrary to the Crimes Act 1900 (NSW), s 33B(1)(a) – where trial judge gave herself a warning pursuant to the Evidence Act 1995 (NSW), s 165, and a Murray direction in relation to the evidence of the key Crown witness – where trial judge held that the account of the key witness as to the identity of the shooter was supported by text message and phone call records, among other evidence – whether direction under s 165 insufficient and not applied to the evidence – whether trial judge erred in admitting two text messages as admissions as to involvement in the shooting – whether verdict was unreasonable

CRIME – appeals – appeal against sentence – use offensive weapon with intent to commit an indictable offence, namely intimidation, contrary to the Crimes Act 1900 (NSW), s 33B(1)(a) – engaging in police pursuit, contrary to the Crimes Act, s 51B(1) – not stopping at a stop sign, contrary to the Road Rules 2014 (NSW), reg 68(1) – driving while disqualified, contrary to the Road Transport Act 2013 (NSW), s 54(1)(a) – aggregate sentence of 6 years and 9 months imposed – whether sentencing judge failed 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 – whether sentencing judge failed to consider hardship of incarceration – whether sentence was manifestly excessive

Legislation Cited:

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

Supreme Court (Criminal Appeal) Rules 2021, r 4.15

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Delleci v R [2020] NSWCCA 4

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59

Filippou v R (2015) 256 CLR 47; [2015] HCA 29

Glenn (a pseudonym) v R [2020] NSWCCA 308

Kaddour v R [2019] NSWCCA 90

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

McTague v R [2020] NSWCCA 83

R v Basha (1989) 39 A Crim R 337

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

Roos v R [2019] NSWCCA 67

Smith v R [2019] NSWCCA 162

Zreika 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)

Solicitors:
Ross Hill and Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2020/84110; 2020/130456; 2020/91731

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

30 November 2021; 11 February 2022

Before:

Harris DCJ

File Number(s):

2020/84110; 2020/130456; 2020/91731

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.

Judgment

1. MITCHELMORE JA: The applicant, Justin Quarta, stood trial in the District Court in Gosford before Harris DCJ on 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”). The indictment also included an alternative count of firing a firearm in a public place contrary to s 93G(1)(b) of the Crimes Act (“Count 2”). The applicant pleaded not guilty to both charges. At the conclusion of an eleven-day trial by judge alone, her Honour found the applicant guilty of Count 1.

2. On 11 February 2022, her Honour sentenced the applicant on Count 1 and three further charges: one count of being involved in a police pursuit and driving recklessly contrary to s 51B(1) of the Crimes Act, one count of not stopping at a stop sign contrary to reg 68(1) of the Road Rules 2014 (NSW), and one count of driving while disqualified contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW). The applicant entered a plea of guilty on 25 November 2021, towards the conclusion of the trial on Counts 1 and 2 and shortly before the trial of the further charges was to commence (it was listed to follow the trial on Counts 1 and 2). The Court imposed an aggregate sentence of 6 years and 9 months imprisonment, with a non-parole period of 4 years and 6 months commencing on 19 March 2021.

3. The applicant seeks leave to appeal against both his conviction and sentence. His appeal against conviction raises three grounds:

1. Her Honour insufficiently directed herself as to s 165 of the Evidence Act 1995 (NSW) and did not apply the directions to the evidence.

2. Her Honour erred in admitting two text messages as admissions of the accused.

3. The verdict of guilty is unreasonable and cannot be supported by the evidence.

4. The sentence appeal raises the following three grounds:

1. Her Honour failed to apply the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy”) and R v Fernando (1992) 76 A Crim R 58 (“Fernando”).

2. Her Honour failed to consider the hardship of incarceration in the context of the applicant’s cognitive injury, mental illness and the COVID pandemic.

3. Her Honour imposed a sentence that was manifestly excessive, and a different sentence is warranted at law.

5. For the reasons outlined below, on the application for leave to appeal the conviction I would grant leave to appeal and would dismiss the appeal. On the application for leave to appeal the sentence, I would grant leave to appeal and dismiss the appeal. I will address the conviction appeal before turning to the sentence appeal.

The trial on Counts 1 and 2

6. The events the subject of Counts 1 and 2 occurred early on the morning of 11 March 2020. In summary, the Crown alleged that the applicant was driving a black Subaru WRX (“the WRX”) owned by Tahlia O’Grady. The precise nature of the applicant’s relationship with Ms O’Grady was the subject of some dispute in the evidence. Nonetheless, the Crown case was that Ms O’Grady was in the car with the applicant at the time of the offence. While in the car, the applicant had a heated phone conversation with Isaiah Bowman, who was a friend of the applicant and a former partner of Ms O’Grady. The Crown alleged that the argument between the applicant and Mr Bowman concerned a woman named Jamie.

7. The Crown alleged that shortly after the phone call, the applicant drove in the direction of San Remo, where Mr Bowman lived. At around that time, Mr Bowman was also in a car in the San Remo area: a black Holden Commodore (“the Commodore”) which was being driven by Ryan Kenney. Mr Kenney was a friend of the applicant and Mr Bowman, and he shared a daughter with Ms O’Grady. The Crown case was that the WRX and the Commodore travelled in the same direction down Emu Drive, San Remo, before coming to a stop some distance apart. The applicant alighted from the WRX holding a shotgun, and fired two shots at the Commodore before re-entering the WRX and driving away.

8. The central issue in the trial was the identity of the shooter. The Crown relied principally on the evidence of Ms O’Grady, who gave evidence that the applicant was driving the WRX and fired the shots at the Commodore. Mr Bowman and Mr Kenney were also called. Two residents of Emu Drive, Stephen Brown and Brodie Crompton, also gave evidence, as did a number of police officers who were involved in the investigation.

9. Apart from witness evidence, the Crown relied on phone call and text message records extracted from Ms O’Grady’s mobile phone. The Crown tendered a chronological table which was marked as Exhibit 16. The table included phone calls and text messages to and from the phone numbers of the applicant and Mr Kenney. The Crown contended that a phone call between Ms O’Grady’s phone and Mr Kenney’s phone at 5.58am on 11 March 2020 (Item 22), the duration of which was 3 minutes and 13 seconds, was the call in which the applicant and Mr Bowman engaged in the argument that led to the offending conduct.

10. The applicant gave evidence in his case. As I will address in more detail below, his evidence was that he was at home at the time of the shooting on 11 March 2020. He was not with Ms O’Grady, and he had not seen her in the week leading up to the shooting or on that day. The applicant denied the Crown’s version of events, including that he had attended Emu Drive in San Remo early on 11 March 2020; and he denied being in possession of a firearm or ammunition on that day. The applicant also challenged the Crown’s allegation that the two shots were fired from the same weapon.

Evidence in the Crown case

Isaiah Bowman

11. Mr Bowman was examined by the Crown on a Basha inquiry (see R v Basha (1989) 39 A Crim R 337). After giving evidence that was unfavourable to the Crown, he was cross-examined pursuant to s 38 of the Evidence Act. The transcript of his evidence was tendered in the trial.

12. Mr Bowman gave evidence that by the time of the shooting, he and Ms O’Grady had ceased their relationship and were just friends, although they were in contact most days. Mr Bowman was also close with Mr Kenney and the applicant, and would spend time with them every day. Mr Bowman did not recall having an argument with the applicant over the phone about a woman named Jamie on the morning of 11 March 2020.

13. Mr Bowman’s denied that he was on Emu Street on 11 March 2020, and he denied being in a vehicle with Mr Kenney at the time of the shooting. He agreed that Ms O’Grady had a black WRX, but he had no recollection of following that car shortly after a conversation with the applicant on the morning of 11 March 2020. Mr Bowman had no recollection of the applicant getting out of the WRX, and firing a gun twice in the direction of the Commodore that he and Mr Kenney were in. He later gave positive evidence that the applicant had never shot at him.

14. The Crown read Mr Bowman an exchange of text messages between the phone numbers of Ms O’Grady and Mr Kenney shortly after the time of the shooting, at 6.27am, suggesting to Mr Bowman that he sent the messages from Mr Kenney’s phone to the applicant on Ms O’Grady’s number (while Mr Kenney was driving). The messages included the following:

1. From Mr Kenney’s phone to Ms O’Grady’s phone, at 6.28am: “Enjoy her Justin”;

2. From Mr Kenney’s phone to Ms O’Grady’s phone, at 6.30am: “I hope you enjoyed the show Thalia you FUCKING rat look at you lol”.

3. From Ms O’Grady’s phone to Mr Kenney’s phone, at 6.32am:

“Listen I will I’m going to enjoy her and I’m going to enjoy hurting a women bashing dog come to my house and kill my whole family I don’t care I’m ready for war you just rooted Jamie ya kefeh go eat some pork ya fucking rat why didn’t jump out the show ain’t over and tahlia didn’t want none of this”

4. From Mr Kenney’s phone to Ms O’Grady’s phone, at 6.35am:

“You gronk I didn’t root Jamie you couldn’t even admit you were seeing her in the first place”

5. From Mr Kenney’s phone to Ms O’Grady’s phone, at 6.37am:

“Why try and act like you weren’t together and she knew what she was doing she loves seeing this SHIT”

15. Mr Bowman denied sending any of those messages from Mr Kenney’s phone, maintaining that he was in bed at the time.

Evidence of Ryan Kenney

16. Like Mr Bowman, Mr Kenney was examined by the Crown on a Basha inquiry and his evidence was tendered in the trial. Mr Kenney accepted that Mr Bowman was a close friend with whom he would regularly spend time. Although he knew of the applicant, Mr Kenney had only met him about nine months before giving evidence (in November 2021).

17. Mr Kenney gave evidence that on the morning of 11 March 2020 he and Mr Bowman were in a black Commodore, and they were stationary in that car on Emu Drive when the shooting occurred. However, Mr Kenney’s evidence was that the shooter was a man named Jackson Roberts, who he knew well. Mr Kenney said that he recognised Mr Roberts as the person holding the firearm.

18. When asked about the phone calls and text messages which formed part of Exhibit 16, Mr Kenney could not recall making phone calls to Ms O’Grady’s phone at 5.51am and 5.58am (Items 21 and 22). His evidence was that around that time, he was with a group of men (including Mr Bowman) and any one of them could have made those calls. Mr Kenney also denied having made a phone call to Ms O’Grady at 6.14am (Item 25), noting that he was driving the Commodore at that time and Mr Bowman had his phone. Mr Kenney also said that the phone call to Ms O’Grady’s phone a short time after the shooting (Item 35) was made by Mr Bowman.

19. In relation to the exchange of text messages between Mr Kenney’s phone number and Ms O’Grady’s phone number, Mr Kenney denied having sent the messages to which I have referred in [14] above, stating, “I wasn’t texting. I was definitely driving”. He accepted that he was the author of later texts in an exchange between his number and Ms O’Grady’s number commencing at 8.10pm on 11 March 2020 and concluding at 11.32pm (Items 36-46 of the table). Those messages were as follows:

“[Mr Kenney]:   Oi

[Mr Kenney]:   It’s me

[Mr Kenney]:   Tahlia!!!

[Ms O’Grady]:   Yeah

[Mr Kenney]:   What is wrong with you? Why on eath [sic] would you let that get so farr??

[Mr Kenney]:   After what happen don’t u see how quick n ease [sic] it is to have things go horribly wrong ??

[Ms O’Grady]:   I didn’t want none of that.

[Mr Kenney]:   Tee if ur in a relationship with old mate..well by all means go for it !! I hope he looks after you but cunt don’t go letting these two boys that was mates fight n do what there doin over you !! And it’s ur car cunt u could of n should off [sic] said NO WE NOT GOIN

[Mr Kenney]:   One of EM r gonna end up in the ground

[Mr Kenney]:   Tahlia sort it out on ur end ffs..there fighting cos of u..so talk to ur j and I’ll sort i

[Ms O’Grady]:   What do you mean do you know what he has done to Justin he went and told his girl that he was inlove with that he was sleeping around on her and he also hates women bashers and he bashed me .. so he technically there fighting over something that has nothing to do with Kenny I can’t sort j out he has a mind of his own and whatever his own brain tells him at the time he does iits his way or the highway an ds [sic] as for Isaiah he can fuckoff and never speak to me again the flop you should honestly conider [sic] checking your surroundings and Mabry [scil. maybe] take a step back from a few it’s only a matter of time Kenney and hiss [sic] going to turn on you his already said it be4 your my daughter’s father and the last thing I wanna see is you get hurt and ruby misses out on her dad because of a gronk fuck that …”

20. When asked about the message in which he wrote, “talk to ur j and I’ll sort i”, Mr Kenney said that “i” referred to Isaiah Bowman, and that “j” referred to Jackson Roberts. He did not understand why, in her next message, Ms O’Grady referred to “Justin” and suggested that she was seeking to protect Mr Roberts. Mr Kenney said that he did not reply to that message because he was confused about why Ms O’Grady had referred to the applicant.

21. When cross-examined by the Crown Prosecutor pursuant to s 38 of the Evidence Act, Mr Kenney denied that the applicant had fired the shots and denied knowing the applicant or being friends with him at the time. He speculated that Mr Bowman sent the text message to Ms O’Grady on the morning of the shooting that said, “Enjoy her Justin”, on the basis that he was led to believe, by Ms O’Grady, that she was with the applicant that morning. Mr Kenney was unable to explain the text in reply from Ms O’Grady’s phone, which stated among other things “you just rooted Jamie”. Mr Kenney was also unable to explain the reference to Justin in Ms O’Grady’s much later message that day (the last message extracted in [19]). He denied that he was lying to protect the applicant.

Evidence of Tahlia O’Grady

22. Ms O’Grady’s evidence was that she was not in a relationship with the applicant as at 11 March 2020, but she had known him for about a year and had asked him for help to retrieve vehicles which belonged to her but had been put in other people’s names. Ms O’Grady had asked the applicant for help because her partner at the time had recently been imprisoned. Mr Bowman was her ex-partner of two years, and at the date of the shooting their relationship was “[v]ery, very not good”. Ms O’Grady had also known Mr Kenney for around 6 years and had been in a relationship with him; at the time of the shooting their relationship was “okay”.

23. Ms O’Grady gave evidence that on the morning of 11 March 2020, she and the applicant left his residence shortly before 6am in her WRX, and drove to McDonalds at Lake Haven for breakfast. The applicant was driving the car and Ms O’Grady was in the passenger seat. Ms O’Grady recalled that the applicant had a backpack with him.

24. Ms O’Grady’s evidence was that when she and the applicant were in the car, she received a phone call from Mr Bowman. The applicant and Mr Bowman had what Ms O’Grady described as “a very heated conversation”, about a woman whom Ms O’Grady knew of, called Jamie-Lee. After the phone call ended, the applicant began driving in the direction of San Remo, which was where Mr Bowman lived. Mr Kenney was also staying in San Remo at the time, at his grandmother’s house.

25. Shortly after the applicant and Ms O’Grady turned into San Remo, she saw a black Commodore. She recognised the vehicle as belonging to a friend of hers, and she realised that Mr Bowman and Mr Kenney were in the vehicle. Ms O’Grady said to the applicant, “They’re coming”. The applicant initially accelerated away, but when Ms O’Grady said to him “It’s the boys” (being Mr Bowman and Mr Kenney), the applicant stopped the WRX in Emu Drive, San Remo. When the applicant stopped the WRX on Emu Drive, the Commodore also stopped a short distance behind them, which she ultimately estimated was some 10 to 15 metres.

26. Ms O’Grady said that after the car stopped, the applicant grabbed his backpack and pulled a gun from it. In cross-examination, she stated that there was also a small pencil case in the backpack that was “full of bullets”, from which the applicant retrieved one bullet. Her evidence was that the applicant exited the WRX and walked to the back of the car, and when he got to the back of the car he fired a shot from the gun. After the shot was fired, she heard the applicant say, “No effect, motherfucker”; she then heard a second shot approximately 60 seconds after the first. The applicant returned to the WRX and drove them back to his house. Ms O’Grady could not remember exactly when she left his house but she thought it was the following day.

27. On 13 March 2020, Ms O’Grady was observed by police driving the WRX. She fled from police and was engaged in a police pursuit, which ended when she was involved in a collision. Ms O’Grady was arrested by police and admitted briefly to hospital, at which time she agreed to participate in an interview, during which the police asked her about 11 March 2020 and took her mobile phone. Ms O’Grady was taken to the transcript of her police interview in cross-examination. She maintained that she was positive that the applicant had fired the first shot. Although she was unsure whether the applicant or another person had fired the second shot, Ms O’Grady denied that it was possible for both shots to have come from the Commodore.

28. On 20 October 2021, Ms O’Grady participated in a photo identification procedure and, on her evidence, “picked the wrong person”. By way of explanation, she said that a police officer had instructed her to select the wrong person and she did not want to give evidence in the case because she was scared of the applicant. In cross-examination, Ms O’Grady accepted that she had lied but did not accept that this demonstrated that she was willing to lie to the authorities when it suited her. On 15 November 2021, which was the first day of the trial, Ms O’Grady participated in a second photo identification procedure and she nominated the applicant as the shooter.

29. Ms O’Grady was asked about two phone calls recorded in Exhibit 16 between her and the applicant at 5.41am and 5.43am on 11 March 2020 (Items 17-18). She could not recall the reason for those phone calls, or why she had sent a text message a few minutes after the second of the phone calls, which said “Come on” (Item 20). On her evidence, she was with the applicant at that time. When cross-examined on this subject, Ms O’Grady was “positive” that she was with the applicant at the time and denied the possibility that the applicant was never in the car with her.

30. Ms O’Grady gave evidence that the call to her phone at 5.58am (Item 22) was the call between Mr Bowman and the applicant of which she had earlier given evidence and to which I have referred at [24] above.

31. In relation to the text message exchange between her phone number and Mr Kenney’s phone number, to which I have referred at [14] above, Ms O’Grady stated that she was still in the car with the applicant at that time and that the applicant sent those messages. The applicant still had her phone at 6.38am, when the records indicated that a call was received on her phone from Mr Kenney’s phone number (Item 35). Ms O’Grady acknowledged that she was the participant in the exchange of text messages with Mr Kenney on the evening of 11 March 2020, which I have extracted above at [19]. She could not recall receiving the text from Mr Kenney which referred to her being in a relationship with “old mate” and also stated “it’s ur car… u could of n should off said NO WE NOT GOIN”. However, she did recall sending Mr Kenney the text message that was sent at 11.32pm (Item 46) in which she referred to the nature of the dispute between the applicant and Mr Bowman.

32. Ms O’Grady accepted that she sent the applicant the text message at 11.34am on 13 March 2020 (Item 59), which stated:

“Argh did it hurt ha ha, I just had a feed with dad down lakey gunna fly home for a bit to unpack some stuff and grab a few things I might Evan drive the WRX back if I can change the look abit and what not if I can’t I’ll just come back anyway what is our plans for today after your done what your doing xx”

33. Ms O’Grady accepted that the reference to driving the WRX “back” and coming “back” seemingly referred to her returning to the applicant’s home. She also recalled receiving the following text messages from the applicant, which the Crown contended constituted admissions as to his involvement in the shooting (Items 60-61):

“Babe I think I’m fukd here ay”

“I’m going back jail”

34. Ms O’Grady also recalled receiving two photographs from the applicant at 1.55pm, with the message “Here something to remember me” (Item 57). Her evidence was that she understood this message to mean that the applicant was going to jail “[f]rom the shooting”.

35. Ms O’Grady was cross-examined about her drug use at the time of the shooting. She accepted that in March 2020 she was regularly using heroin, ice and marijuana, although the only drug she had a “problem” with was marijuana. She used ice on a daily basis if it was available. Ms O’Grady was not sure if she had used drugs on the morning of 11 March 2020, but recalled that she had not slept the night before because she had a lot going on with Mr Bowman and was trying to retrieve a car with the applicant’s help. Ms O’Grady had no recollection of using ice on the night before the shooting but she accepted that it was possible she had done so and that this may have been a reason why she had not slept.

36. Ms O’Grady admitted to having used heroin on 13 March 2020, being the date of her car accident, and described her usual use of about $100 worth of heroin daily to avoid withdrawal symptoms. She accepted that she experienced some memory problems due to her cannabis use but denied experiencing any other adverse side effects from her heroin, ice or cannabis use, such as confusion, altered thinking, paranoia, agitation or hallucinations. Ms O’Grady also denied that her memory of the events of 11 March 2020 was affected by her drug use at the time.

37. Ms O’Grady maintained in cross-examination that she had witnessed the applicant fire the first shot from his gun. She denied that she had nominated the accused as the shooter and lied about his involvement because of her past and present allegiances to Mr Kenney and Mr Bowman. Ms O’Grady did not accept that she was motivated to lie because she was concerned her bail application would be refused in relation to charges arising from her car accident on 13 March 2020.

38. Ms O’Grady denied the suggestion that she was with a person named Jack Roberts on the morning of the shooting, and asserted that Mr Roberts was deceased by that time. Ms O’Grady later accepted that she was mistaken about Mr Roberts being deceased as at March 2020, but she declined the invitation to reconsider her evidence that it was the applicant and not Mr Roberts in the car with her on 11 March 2020.

Evidence of Stephen Brown and Brodie Crompton

39. Mr Brown was a resident of Emu Drive, San Remo. He gave evidence that at 6.17am on 11 March 2020 he was on his bicycle at the end of his driveway, about to leave for work. He described it as dark but with the sun starting to come up; in cross-examination he said that it was “dark, it’s not pitch dark”. He also noted that there was some street lighting.

40. Mr Brown saw two vehicles drive down the street before stopping, the first approximately 15 metres from him and the second 8 to 10 metres from the first. The headlights from the second car were illuminating the first car.

41. Mr Brown saw the driver of the car that was further away from him get out of that car and move to its rear; he then heard a shot fired and saw a flame emitted from an object the person was holding in his hand, which appeared to him to be a gun. Mr Brown’s evidence was that the flame that he saw was headed “towards the other car”. Following cross-examination on that topic he confirmed in re-examination that it came from the hand “of the of the person who got out of the first car”.

42. After hearing the shot, Mr Brown “quickly did a U-turn” on his bike; he then heard a second shot. At the time he heard the second shot, Mr Brown was not facing the two cars. Mr Brown provided a general description of the person he saw fire the gun in terms of his clothing, height and build. The person was: shorter than 6 feet 2 inches, with an estimated height of 5 feet 6 inches, and he was wearing a hoodie, grey tracksuit pants and thongs.

43. Mr Crompton was also a resident of Emu Drive. He heard a loud bang at about 6.20am. Later that morning as he left for work, he stated that he could smell gunpowder in the air. When he arrived at work, a colleague told him that a tail-light on his vehicle had been smashed. He observed that the tail-light on the driver’s side had a number of holes in it and there was a “dint” in one of his rear fenders, none of which had been present on the vehicle the night before. Mr Crompton later spoke to police, who attended his workplace and took his vehicle for forensic examination. The Crown case was that a piece of red plastic that was collected by Senior Constable Sally Hogg from the roadway at Emu Drive was part of the tail-light of Mr Crompton’s car, which was damaged in the shooting.

Evidence of Detective Senior Constable Kylie Bagnall

44. Detective Senior Constable Bagnall was the police officer in charge of the investigation into the shooting. On 13 March 2020, an abandoned Commodore which may have been involved with the shooting was found in Bateau Bay. Officers did not notice any damage to the vehicle consistent with it having been shot at by a firearm. It was not otherwise forensically examined for gunshot residue, DNA or fingerprints. Also on 13 March 2020, after Ms O’Grady was arrested, police inspected the WRX she was driving at the time of her arrest. The testing for gunshot residue was negative, and there was no damage to the vehicle caused by ammunition. DSC Bagnall confirmed in cross-examination that no DNA or fingerprint testing was done on the WRX.

45. Closed circuit television footage from the morning of 11 March 2020 was obtained from a residence in Emu Drive and was tendered through DSC Bagnall. Relevantly, the footage depicted two vehicles proceeding in a southerly direction down Emu Drive, in the direction of the point where both cars were alleged to have stopped (out of frame). Two sounds could be heard on the audio of the CCTV footage, which were approximately three seconds apart and were consistent with gunshots. Shortly thereafter, two vehicles appeared on the footage going in the opposite direction on Emu Drive.

Evidence of Senior Constable Sally Hogg

46. Senior Constable Hogg was a trained forensic officer who attended the scene at Emu Drive on the morning of 11 March 2020. SC Hogg gave evidence that she located two pieces of plastic wadding and various other pieces of broken plastic on the roadway at Emu Drive. She also observed two areas of damage in the Colorbond fence that divided the properties at 75 and 77 Emu Drive. SC Hogg also located a metal fragment at the base of a tree on Emu Drive.

47. SC Hogg could not conclusively determine that the damage to the fence was consistent with damage from a shotgun, but her evidence was that the metal fragment that was located was consistent with a shotgun pellet. SC Hogg also gave evidence that plastic wadding is usually discharged from a firearm (shotgun) upon firing, although she could not determine precisely what firearm would have produced the wadding that was located on Emu Drive. Bullet hole testing carried out on the fence also returned a presumptive positive for lead and negative for copper (SC Hogg noted that bullets are made primarily of lead, while their casing is made of copper; she was unable to comment on the substance that shotgun shells are made of).

48. SC Hogg also conducted an examination of Mr  Crompton’s car, observing four areas of damage to the rear driver’s side of the vehicle, three of which were to the right rear tail-light. She could not comment on what may have caused the damage to the tail-light, save for noting that testing carried out on the damage returned a presumptive positive for lead and negative for copper.

Evidence of Detective Senior Constable Karen Kennedy

49. Detective Senior Constable Karen Kennedy was involved in the photo identification procedure with Ms O’Grady on 20 October 2021. Her evidence was that when Ms O’Grady and her mother attended Wyong Police Station that day, DSC Kennedy escorted them to an interview room and asked Ms O’Grady if she would participate in a “line-up viewing”, in which she would be shown a number of photographs and asked if she recognised any person in those photographs. Ms O’Grady asked if she would have to attend court if she selected the wrong person. Ms O’Grady’s mother suggested that if she picked the wrong person, it was probable that she would not have to attend court. DSC Kennedy informed that she should select someone if she recognised a person in the photographs and not select someone if she did not recognise anyone. In response to a further query about court attendance, DSC Kennedy confirmed that Ms O’Grady would be required to attend court regardless under subpoena.

The applicant’s evidence

50. 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.

51. 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.

52. The applicant knew Mr Bowman, having been introduced to him a few months before the shooting. He had “no problem” with Mr Bowman and they often went out for meals and trained together. The applicant denied knowing Mr Kenney as at the date of the shooting; they met around July 2020 when they were both at Shortland Correctional Centre in Cessnock.

53. The applicant’s trial counsel took him to Exhibit 16. The applicant could not recall the phone calls he received from Ms O’Grady at 5.41 am and 5.43 am on 11 March 2020, but suggested they related to her trying to sell him a car. As to subsequent phone calls and text messages from the morning of 11 March 2020, that Ms O’Grady had attributed to the applicant in her evidence, he denied ever having made phone calls or sent text messages from Ms O’Grady’s phone. He accepted that Exhibit 16 included subsequent phone calls between Ms O’Grady and himself, on 12 March 2020 and 13 March 2020, and said that they were about the car she was selling.

54. In relation to the two text messages that he sent to Ms O’Grady on 13 March 2020 (set out at [32] above), the applicant said he was letting her know that he was probably going back to jail because he had “failed a couple of urines”. The applicant denied that these messages had anything to do with what occurred on 11 March 2020 at Emu Drive.

55. In cross-examination, the applicant gave evidence that between 11 March 2020 and the trial he had sustained a head injury during an assault in custody, and had suffered memory difficulties and a stutter (only the former of which had resolved). However, he was “100% sure” that he was at home on the morning of 11 March 2020. He had reflected on this because he was being falsely accused of having committed an offence he had nothing to do with.

56. The applicant acknowledged that he knew a woman named Jamie-Lee. Although his evidence in chief was that he had never been in a relationship with her or had sex with her, he accepted in cross-examination that he did have sex with Jamie-Lee some weeks before 11 March 2020. The applicant denied that he became angry with Mr Bowman when he found out that Mr Bowman had slept with Jamie-Lee, and he denied that he had an argument with Mr Bowman on Ms O’Grady’s phone on the morning of 11 March 2020 which set off the events leading to the shooting. The applicant also denied that he was the author of the text messages that were sent from Ms O’Grady’s phone between 6.27am and 6.35am (see [14] above).

57. The applicant accepted that he had a history of drug use, including around the time of the offending when, on his estimate, he was using $50 worth of ice a few times a week. He also took opiates at a clinic during his parole period, although he denied that it was because he was withdrawing from heroin. He denied being addicted to ice or that its use made him agitated or quick to anger. On the contrary, smoking ice made him “mellow”, and he noted that he had experienced ADHD as a child.

58. The applicant gave evidence that one of the conditions of his parole as at March 2020 was to undergo weekly drug testing, and that he had failed about four times within the space of 4-5 months. He reiterated that this was the reason he had expressed concern to Ms O’Grady that he would be returning to prison in the two text messages on 13 March 2020. The applicant denied that he was referring to the shooting in those messages, and he denied that his message required no further explanation because Ms O’Grady would have known what he was talking about as she was with him at the time.

Findings of the trial judge

59. 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.”

60. 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.

61. 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.

62. 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.”

63. 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.”

64. 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.

65. 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.

66. 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.

67. 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

68. 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

69. 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.

70. 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.

71. 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.

72. 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.”

73. 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.

74. 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].

75. 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].

73. 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

77. 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.

78. 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.

79. 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

80. 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”.

81. 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.

82. 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.)

83. 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.

84. 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.

85. 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.

86. 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.

87. 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.

88. 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.

89. 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

90. 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.

91. 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.

92. 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.

93. 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.

94. 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.

95. 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.

96. 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.

97. 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.

98. 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.

99. 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.

100. 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.”

101. 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.

102. 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.

101. 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

104. 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.

105. 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.

106. 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

107. 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.

108. 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

109. 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.

110. 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].

111. 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.

112. 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.

113. 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.

114. 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.

115. It follows that I would dismiss the sentence appeal.

Conclusion

116. 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.

3. Grant leave to appeal against sentence.

4. Appeal against sentence dismissed.

117. WALTON J: I agree with the orders proposed by Mitchelmore JA for the reasons given by her Honour.

118. 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.

**********

Decision last updated: 10 July 2023