Quarta v R [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)