Colomer v R

[2014] NSWCCA 51

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Colomer v R [2014] NSWCCA 51

Hearing dates:

9 April 2014

Decision date:

18 June 2014

Before:

Basten JA at [1]
Fullerton J at [3]
Davies J at [4]

Decision:

1. Leave to appeal granted.

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - use offensive weapon to intimidate in company - fire firearm in a public place - possess a prohibited firearm - sentence - offender assaulted security guard at retail store and threatened him with a pistol - offender fires pistol twice in the direction of a group of persons - purposes of sentencing - whether evidence capable of establishing that gun was wracked
EVIDENCE - application to use evidence not before sentencing judge - evidence available but not used - need to show miscarriage of justice

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:

Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 2 of 2002 [2002] NSWCCA 515
Gallagher v The Queen (1986) 160 CLR 392
R v Deng [2007] NSWCCA 216
R v Fordham (1997) 98 A Crim R 359
R v McIntee (1985) 38 SASR 432
R v MA [2004] NSWCCA 92; (2004) 145 A Crim R 434
R v Pogson [2012] NSWCCA 225; (2012) 82 NSWLR 60
Vartzokas v Zanker (1989) 51 SASR 277
Veen v The Queen (No. 2) (1988) 164 CLR 465
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460

Category:

Principal judgment

Parties:

Pedro Jouquin Colomer (Applicant)
Crown

Representation:

Counsel:
I Nash (Applicant)
N Noman SC (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2010/260555

 Decision under appeal 

Date of Decision:

2013-02-22 00:00:00

Before:

Nicholson SC DCJ

File Number(s):

2010/260555

Judgment

1. BASTEN JA: I agree with the orders proposed by Davies J. While preferring to refer to the legally essential reasons given by a judge for imposing sentence as the 'reasons' or 'judgment' on sentence, rather than as 'remarks', I also agree with the reasons of Davies J.

1. This not being a case in which the evidence tendered on appeal should be admitted, it is not desirable to seek to resolve the ambiguities and disparities in approach in judgments referring to the circumstances in which it is appropriate to admit "fresh", "further" or "new" evidence.

1. FULLERTON J: I agree with Davies J.

1. DAVIES J: The Applicant stood trial on 19 October 2012 in relation to a number of charges arising out of an incident at a Bunnings store at Bonnyrigg on 5 August 2010. The Trial Judge directed verdicts of acquittal in respect of three counts and the jury returned guilty verdicts in respect of three counts as follows:

Count 2: Use an offensive weapon with intent to commit an indictable offence whilst in company. The maximum penalty is 15 years imprisonment.

Count 3c: Fire a firearm (a pistol) in a public place. The maximum penalty is 10 years imprisonment.

Count 4: Possess a prohibited firearm (a pistol) without being authorised by a licence or permit. The maximum penalty is 14 years imprisonment with a standard non-parole period of three years.

1. The Trial Judge, Acting Judge Nicholson SC, sentenced the Applicant as follows:

Count 2: A non-parole period of four years and six months commencing 5 August 2010 and expiring 4 February 2015 with a balance of term of two years and six months expiring 4 August 2017;

Count 3c: A non-parole period of four years and six months commencing 5 August 2010 and expiring 4 February 2015 with a balance of term of two years and six months expiring 4 August 2017;

Count 4: A fixed term of 18 months commencing 5 August 2010 and expiring 4 February 2012.

1. The Applicant originally sought leave to appeal against the sentences imposed on the following two grounds:

1. The Sentencing Judge erred in finding as an aggravating fact that the Applicant "wracked the pistol by pulling back the breech cover, thereby elevating a bullet into the firing chamber";

2. The Sentencing Judge erred in approaching the task on the basis that there existed "an imperative that all sentencing should have as its primary focus the protection of the community".

1. However, at the outset of the hearing of the appeal the Applicant sought leave to add a further ground of appeal as follows:

3. The Sentence proceedings miscarried by virtue of the absence in evidence of a letter and statement from Mr Amiouni dated, respectively, 23 September 2011 and 9 February 2012.

Facts

1. The following is a summary of the facts found by the Sentencing Judge.

1. At the Applicant's direction, the Applicant's father and an employee of the Applicant, Matthew Varghese, had attended the Bunnings store earlier on the day the offences were committed to purchase a drop saw and a compressor. As they were in the process of leaving the store they were stopped by a Bunnings employee who thought that they might have been shoplifting.

1. A security officer, Mr Amiouni, came upon the scene. He established that there was no wrongdoing and said that both were free to leave. Both the Applicant's father and Mr Varghese were upset by the incident and made their displeasure known by swearing at Mr Amiouni and the Bunnings employee. They were then asked to leave the store.

1. What the Applicant's father and Mr Varghese told the Applicant when they returned to work is not clear but the Applicant's case at trial was that there had been a confrontation between his father and Mr Amiouni. The Sentencing Judge found that there was absolutely no foundation for the Applicant to believe such a thing.

1. The Applicant decided to act. He armed himself with a small .25-calibre automatic Colt self-loading pistol by taking it from where it was kept and placing it in the left-hand pocket of a hooded top that he was wearing. His possession of that pistol from the time of securing it in his clothing to the time of disposing of it at a later time constituted count 4 on which he was convicted.

1. The Applicant took with him Mr Varghese and a young family relative. They drove to the Bunnings store. They parked near the trade door exit and the Applicant put some sort of cover over the rear number plate on his vehicle.

1. The Sentencing Judge was satisfied that it was the Applicant's intention that his young relative, who was well built, and Mr Varghese would support him while he dealt with the person who he believed was the Loss Prevention Officer at the store. The Sentencing Judge was satisfied that the Applicant's intention was to confront the security officer in an aggressive manner but his Honour was not able to discern the purpose of the Applicant in arming himself with the pistol in advance of his arrival at the store.

1. When in the store the Applicant and his companions first encountered the floor manager Andrew McDonald. The Applicant said that he wanted to be taken to store security and asked Mr McDonald to point out the security officer. When Mr McDonald asked why the Applicant needed to see the security officer the Applicant replied on two separate occasions that the security officer had been rude to "my mates". Nothing was said about the Applicant's father.

1. Coincidentally, whilst the Applicant and Mr McDonald were speaking, Mr Amiouni appeared from one of the aisles behind the Applicant and those with him. Mr Amiouni said that he was the store security officer and asked what the problem was. The Applicant said to Mr Amiouni "You were rude to my friend". He said he wanted to speak to Mr Amiouni outside. Mr Amiouni declined to go outside and said they could talk about it in the store.

1. The Applicant then moved towards Mr Amiouni so that he was about six inches from his face. He placed his left hand on Mr Amiouni's right shoulder. When Mr Amiouni said again that he was not going outside but they could speak within the store the Applicant grabbed Mr Amiouni's clothing. Mr Amiouni then pushed the Applicant's hand away. At that stage the Applicant's companion stepped closer to the Applicant.

1. Mr Amiouni then said, "This is an assault. Back off. This is an assault. Andy you are my witness. This is an assault". As he spoke, Mr Amiouni moved backwards.

1. Mr McDonald then moved towards the group intending to intervene between the Applicant and Mr Amiouni. At the same time the Applicant moved his left hand into the pocket of his hood saying, "That's not an assault, this is an assault." He withdrew his hand from the pocket with the Colt pistol secured in his left fist, pointing it at Mr Amiouni. At the same time Mr McDonald was pushed back by one of the three men.

1. The Sentencing Judge then said this:

Colomer passed his right hand over the top of the Colt barrel and, in so doing, wracked the pistol by pulling back the breech cover, thereby elevating a bullet into the firing chamber. The weapon was now armed and at it (sic) most dangerous, but for the safety catches, if they were engaged.

1. Mr Amiouni reached for the Applicant's left arm which was holding the pistol, grabbing it around the forearm. A struggle then ensued with the Applicant and Mr Amiouni wrestling over control of the pistol.

1. The Applicant, Mr Amiouni and the two other men all fell to the floor with the Applicant on top of Mr Amiouni. Mr Amiouni was screaming, "Help, help", and a little later, "Help, he's got a gun, he's going to shoot me. Help me".

1. A third Bunnings employee arrived and Mr McDonald told him to call the police because the Applicant had a gun. Mr Amiouni managed to free himself. He raced from the back of the store to a room near the trade entrance where he rang 000.

1. After Mr Amiouni ran off, the Applicant put the gun back in his pocket and walked towards the front of the store. Mr McDonald followed them. Mr McDonald called out to other staff ahead of them to "Keep away, back off". As they approached the tool shop the Applicant turned around and said to Mr McDonald, "Stop following us. If you keep following us I'll shoot you". The Applicant and the two others then left by the trade exit. A number of staff and two customers had gathered around and outside the trade entrance to watch them depart.

1. They returned to their truck. As the Applicant opened the door of the truck he took the gun from his pocket, turned and fired two shots towards, or in the direction of, the group gathered at the trade exit. The Sentencing Judge was not able to say when the two safety features on the pistol were disengaged.

1. The exact path of the projectiles discharged was impossible to determine as the spent projectiles were not found.

Grounds of appeal

1. The preliminary issue raised by Ground 3 is whether further evidence should be admitted on this appeal. The evidence is related to the issue raised in Ground 1 of the appeal. It is necessary first to address Ground 1 by reference to the evidence which was available to the Sentencing Judge.

Ground 1: Wracking the pistol as an aggravating fact

1. The relevant evidence at the trial about this issue came from Mr McDonald and a statement by Mr Amiouni. Mr Amiouni was unfit to give evidence. His statement was admitted when the Trial Judge ruled that he was "unavailable" within the meaning of the Evidence Act1995 (NSW).

1. The evidence in chief of Mr McDonald was relevantly this:

Q: Yes, and did he do anything when he said that?

A: That's when he reached into his - into his hoodie pocket and started having difficulty getting something out (TT216.39)

Q: And did you see what, if anything, he was having trouble getting out?

A: Well when he did get it out it was - it was silver and - and - and it was a gun.

Q: And how far away from the gun were you when you saw that? A: Well I was just in between them. I got shoved to the side so I would have been only a metre away when the gun came out.

Q: And how did you feel when you saw that?

A: Well at first it was really tiny and I thought it might have been one of those little lighters. But then he - he motioned with it with his other hand to -

Q: Again I'm -

A: Sorry

Q. - having to put on the record here, you're using your right hand in a kind of a lateral or horizontal motion?

A: Yeah, like -

Q: Backwards and forwards over -

A: Over the gun.

Q: - a bunched left hand?

A: Yeah.

Q: Allright.

A: So like you're cocking a gun. And he did that motion and that's

when -

Q. I'm going to stop you there. Have you ever seen a gun cocked

before?

A: Not in my face, no. Just on T.V." (TT217.3ff)

1. Mr McDonald was cross-examined about what he saw the Applicant do in relation to the gun. However, the issue in dispute at the trial was not what was done to the gun when it was produced. Rather, the issue was whether the Applicant had produced the gun or had simply managed to grab it from Mr Amiouni during the course of the struggle. The Applicant contended for the latter position. Implicit in that contention was the assertion that the gun belonged to Mr Amiouni and not to the Applicant.

1. The evidence in cross-examination of Mr McDonald was relevantly as follows:

Q. You indicated yesterday and I won't take you through the whole transcript at page 217, but that he made a movement as to cock the gun?

A. Yes, that's what it appeared like.

Q. That's what you said, "Like you were cocking a gun"?

A. Yes.

Q. You'd never said that in your statement did you?

A. Not in the statement no.

Q. And that's a specific and significant fact isn't it?

A. It is yes. Yes.

Q. So when you were trying to cooperate and be as accurate as you could with the police on 5 August 2010, do you agree with me that that would've been a relevant thing to tell them?

A. Yes, they told me to ring if any other things came to mind after the date and I rang one of the detectives and told him that, that I'd forgotten to make that in my statement.

Q. When did you ring and tell them that?

HIS HONOUR: Wait a minute. Better question is who and then when.

KRISENTHAL: I'm sorry.

Q. Do you recall who you rang?

A. I believe it was Detective Lowe.

Q. Do you recall when you made that telephone call?

A. I think it was around the time before the video walk through, so around--

Q. Right, so before 22 March?

A. Around that time yes.

Q. I'm not trying to pin you down to a date?

A. I see, yeah.

Q. But using 22 March 2011 as a marker?

A. Yeah.

Q. Before that time?

A. I believe so yes.

Q. And on 22 March 2011 Detective Lowe took another two statements from you didn't he?

A. He did yes.

Q. It's not mentioned in those statements is it?

A. I do not recall the video thing all that well.

Q. But if I could just - would you like to have a look at your two statements, they're brief statements?

A. If you say it's not there, then I'll take your word.

Q. So even though you say that you see this man cocking the firearm, it wasn't something that you remembered on the very day that it occurred?

A. There was a lot to remember on the day.

Q. Because what I'm suggesting on 5 August 2010, you were making specific reference to what you saw with regards to that firearm when it was produced weren't you?

A. Yes I was trying to.

Q. So, you're talking about that very specific short period of time? A. Yeah.

Q. It doesn't appear in the statement that you saw the weapon was cocked?

A. No, it doesn't.

Q. Because what I'm suggesting to you is that you never saw the hooded man, and that's my client, but you never saw the hooded man produce a weapon at all?

A. I would disagree with that.

Q. Because what I'd also suggest to you is that you didn't have any conversation with my client prior to him being involved in an incident with [FA]?

A. I would strongly disagree with that.

Q. That you weren't there before the struggle started?

A. Definitely disagree with that.

Q. And when you came on the struggle you saw Mr Amiouni and the hooded man fighting over something?

HIS HONOUR

Q. Do you agree with that, that you came across--

A. No, no, that's incorrect.

Q. Physical interaction already occurring?

A. No, incorrect.

KRISENTHAL

Q. And that during that struggle it wasn't the hooded man that was holding the weapon but rather it was Mr Amiouni that was holding the weapon?

A. Disagree.

HIS HONOUR: I think by that you mean it wasn't the hooded man holding the butt of the weapon.

KRISTENTHAL: Yes.

HIS HONOUR: Because they were apparently at some stage--

KRISTENTHAL: I accept your Honour's correction, yes.

Q. Do you understand the difference?

A. Yes, I understand the difference.

Q. What I'm suggesting to you is that the butt and the hand wrapped around the butt was being done by Mr Amiouni

A. I understand, I disagree.

Q. My client was in a struggle over that gun and that there was yelling about a gun.

A. I disagree.

...

Q. And what I'm suggesting to you is that the evidence that you've given, particularly about the conversations with my client before his involvement with [FA] are simply not right?

A. Disagree.

Q. And that he was not the person that ever produced the firearm? A. Disagree. (emphasis added)

1. It can be seen that, although there was a challenge to Mr McDonald, because his Statement did not mention the Applicant cocking the gun, he was never directly challenged that he was mistaken that he had seen the Respondent make a movement "like you are cocking a gun". Nor was it suggested to him that his evidence was untrue. The challenges were confined to the issue of who produced, and who was holding, the gun.

1. In Mr Amiouni's statement he said the following:

[12] The big guy walked up to me and stood face to face to me. I saw his hands doing something near his stomach, I looked down and I saw a Colt .22 semi automatic pistol. He was holding it in his right hand and was cocking it with his left. I know about firearms, I have a firearm licence, I am a firearms enthusiast and recognised the make and model of the pistol as soon as I saw it.

[13] Just after he cocked the pistol, he began to point the muzzle towards my stomach.

1. Early in the Remarks on Sentence the Sentencing Judge said this:

In this case the accused gave evidence contrary to the evidence of, particularly one witness, Andrew McDonald, and inconsistent with the evidence of the (sic) [Mr Amiouni's] statement before the jury. It is clear from the jury verdict that not only did the jury reject the accused's evidence, but it was satisfied beyond reasonable doubt that Andrew McDonald was both an honest and accurate witness. That foundational finding by the jury should be reflected in my finding of facts.

1. It was on the basis of that evidence of Mr McDonald, and what appeared in Mr Amiouni's statement, that the Sentencing Judge said what is set out at [19] above and then this:

A factor enhancing the criminality of this offender is the potential for danger to Andrew McDonald, who also grappled with the offender. The offender himself and his companions were also in danger.

While I cannot find the safety catch was off, I do find, in the dynamics of the situation, that they were not so secure as to guarantee, even if they were on, that the weapon did not become free of mechanical restraint; and I have found that it was armed.

1. The Applicant submitted that the availability of the finding as to the "wracking" of the pistol was not the subject of specific argument during the sentencing proceedings. As noted earlier, the issue at trial had been whether the Applicant brought the weapon to the scene. That issue was decided adversely to the Applicant as a result of the jury's verdict on Count 4. This is because he could not have been convicted of illegal possession of the gun if his possession of it only came about because he had managed to wrest the gun from Mr Amiouni during the struggle.

1. The Applicant further submitted that his Honour had to be satisfied beyond reasonable doubt that the Applicant had deliberately caused a bullet to enter the firing chamber of the weapon immediately after he had pointed the weapon at Mr Amiouni, if that was a fact aggravating the offending the subject of count 2. Because there was no direct or forensic evidence supporting such a conclusion, and because the gun had not discharged during the conflict, the Applicant submitted that it was not open to find that there was a bullet in the chamber of the pistol at that time.

1. The Sentencing Judge had available to him two pieces of evidence which were entirely consistent on the point. The first was Mr McDonald's evidence, albeit he had never seen a person cock a gun other than on television. It can be seen from the cross-examination of Mr McDonald that there was no direct challenge to his assertion that the Applicant had moved his hand in a way that suggested he was cocking the gun. The second piece of evidence was Mr Amiouni's statement. That was a statement that carried considerable weight because of Mr Amiouni's knowledge of guns.

1. That evidence provided more than a sufficient basis for the Sentencing Judge to conclude beyond reasonable doubt that the gun had been cocked with the result that there was a bullet in the chamber in the course of the confrontation with Mr Amiouni. There was ample basis for finding that that was an aggravating feature of the offence because in those circumstances the offence involved a grave risk of death to another person or persons: s 21A(2)(ib) Crimes (Sentencing Procedure) Act1999 (NSW).

1. Although of lesser weight because of the lapse of time, the discharge of the gun, indicating that a bullet had entered the chamber at some stage, was supportive of the finding.

1. Ground 1 fails.

Ground 3 - Absence of evidence

1. The evidence that is now sought to be relied upon is a letter from Mr Amiouni dated 23 September 2011 and a further statement of Mr Amiouni dated 9 February 2012.

1. The letter relevantly said this:

I wanted to correct the original statement I made on the incident which occurred with the offender on the 05/08/2010 about the firearm being cocked. On 05/08/2010 when making the statement to Detective Senior Constable Olmos I clearly stated to him the offender whom I now know as Pedro Colmer (sic) had the pistol next to his stomach with his jumper slightly covering the pistol and it looked like it was being cocked before it was pointed at my direction. Now those words I used are not stated in the statement.

...

I was insured (sic) that the charges was (sic) reduced to intimidation with a firearm accepting the fact that the original statement was not going to be used in this matter and expected to make another statement correcting the mistake in the original statement.

1. The further statement of Mr Amiouni said this:

[3] On the 5th of August 2010, I made a five page statement to Detective Olmos. In paragraph 12 I said he was holding it in his right hand and cocking it with his left. In addition to this statement I remember that he was holding the pistol in his right hand against his stomach. With his left hand he grabbed his jumper and slightly covered the pistol. He looked like he was trying to cock the pistol through the jumper. [Emphasis added]

1. By seeking to rely on this Ground, as well as tendering the letter and the statement, the Applicant was effectively applying to adduce further evidence. No application to that effect was filed nor was an affidavit filed or read at the hearing of the appeal in relation to the further evidence. Also tendered was a list of the documents marked for identification at the trial. MFI 4 was an email from Mario Licha, who was the Applicant's counsel at the sentencing hearing, to Stephen Makin, the solicitor at the DPP. The email from Mr Licha makes clear that the statement of 12 February 2010 was faxed to him but at that stage he was no longer instructed in the matter. However, he was later retained again and, as I have said, appeared for the Applicant at the sentence hearing. No explanation was given why the letter from Mr Amiouni and his second statement were not put before the Judge at the sentencing hearing.

1. The Applicant submits that the evidence should be received on the hearing of the appeal. The Applicant submitted further that if the evidence had been before the Sentencing Judge his Honour could not have been satisfied beyond reasonable doubt that the gun was cocked, and the feature of aggravation under s 21A(2)(b) of the Crimes (Sentencing Procedure) Act would not have been made out.

1. The general rule in criminal matters relating to the adducing of further evidence is that before the evidence will be received it must be shown that the sentencing of the Applicant, in the absence of that evidence, resulted in a miscarriage of justice with the result that an unjust sentence is permitted to stand: R v McIntee (1985) 38 SASR 432 at 435; Gallagher v The Queen (1986) 160 CLR 392 at 395.

1. In R v Fordham (1997) 98 A Crim R 359, the Court was concerned with whether a report from a psychologist obtained after sentence, which identified that the applicant was suffering from a "significant intellectual disability", should be received in support of a ground of appeal which challenged a finding by the sentencing judge that the applicant was "a cunning and not unintelligent (but uneducated) man...".

1. Howie AJ (with whom Hunt CJ at CL and Smart J agreed) said (at 377):

Absent sentencing error which requires the Court to resentence an appellant, this Court should, in my view, resist attempts to place before it material which was not before the sentencing judge. Simply because the legal representatives of an appellant (very often not the particular solicitor and barrister who acted for the appellant at the hearing on sentence) feel that some aspect of the personal circumstances of the appellant was not properly investigated and, therefore, not placed before the sentencing judge, or because they consider that more attention should have been given to some subjective factor than was paid to it by the legal representatives of the appellant at the sentencing hearing, it should not generally follow that a proper basis has been made out for this Court to receive such material. Those representing an accused person before the trial court have a wide discretion to conduct the defence as they see fit and this Court should not generally interfere in the exercise of that discretion: R v Birks [(1990) 19 NSWLR 677 at 683-685]. I see no reason why that principle should not apply, at least to the same extent, to sentencing proceedings as it does to the actual trial.

Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. As a general rule, where that evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed.

However, fresh evidence has been received by this Court where a miscarriage of justice may have occurred because there has been incompetent legal representation at the hearing before the sentencing court: Abbott (1984) 17 A Crim R 355 or where there has been negligence or carelessness in the presentation of the defence: McKenna [CCA, 16 October 1992, unreported]. It has been held that new evidence may be admitted where the evidence has real significance to the sentencing proceedings, and where the significance of the evidence was unknown to the appellant and the existence of that evidence was not made known to the legal representatives at the time of sentencing: Goodwin (1990) 51 A Crim R 328, compare De Marco [CCA, 20 November 1995, unreported]. There is also a general power in the Court to receive fresh or new evidence where the interests of justice require that course: Many (1990) 51 A Crim R 54.

1. More recently in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460, Johnson J observed at [82] that there are rare circumstances where the Court may be invited to have regard to a factor which may operate in mitigation of penalty which has been overlooked by defence counsel and the sentencing judge despite it being part of the material before the sentencing court. That is not this case. His Honour also referred at [81] to a line of authority in Victoria that spoke of the need for the circumstances to be exceptional and for there to be a demonstrated miscarriage of justice before that approach might be allowed on a sentence appeal.

R v Deng [2007] NSWCCA 216 at [38]-[45] involved an application by a respondent to tender evidence in the event that a Crown appeal against inadequacy was upheld. The evidence sought to put in issue the facts which were agreed in the Court below, in contrast to evidence which is customarily received on re-sentence being directed to events or matters that post-date the original sentencing. After referring to the extract above from the judgment of Howie AJ in Fordham, James J (with whom Mason P and Hislop J agreed) said:

It is apparent that the new evidence in the present case does not fit within any of the classes of cases described by Howie AJ in Fordham, with the possible exception that fresh or new evidence may be received "where the interests of justice require that course". The new evidence was available to the defence at the time of the proceedings on sentence and hence was not "fresh". As previously noted, at the hearing of the appeal counsel for the respondent expressly disavowed making any submission that the respondent had been improperly or incompetently represented by his legal advisers in the proceedings on sentence...

1. As in Deng, counsel for the Applicant (who did not appear at the sentencing hearing) disavowed any submission that the Applicant had been improperly or incompetently represented by his legal advisors in the proceedings on sentence. In those circumstances, it is necessary for the Applicant to show that there has been a miscarriage of justice, the evidence not being "fresh" evidence but evidence that was available both at trial and on sentence which could have been placed before the Sentencing Judge with reasonable diligence. No explanation has been offered for why that was not done.

1. Even if it may be accepted that the further evidence from Mr Amiouni was credible, the question is was it material to any issue raised on sentence. The question is not whether it may have produced a different sentencing outcome (in the sense that the Judge may have imposed a lower sentence), but whether the fact that it was not relied upon or referred to has been productive of a miscarriage of justice.

1. In my opinion the evidence lacked the necessary materiality for a question of miscarriage to arise. The letter from Mr Amiouni says that "it looked like it was being cocked before it was pointed in my direction". That is entirely consistent with Mr McDonald's evidence which the Sentencing Judge accepted. The only difference of significance between the letter and the subsequent statement on the one hand and Mr Amiouni's original statement on the other is that the letter and subsequent statement refer to the gun as being partly covered by the jumper or hoodie. Mr McDonald's evidence was that he saw the weapon as it was apparently being cocked. Whether it was partly covered by his clothing is not to the point. The matter referred to in [40] above is of relevance to this consideration also.

1. The sentence proceedings did not miscarry by reason of the absence of the evidence sought to be tendered. This is sufficient to conclude that ground 3 fails.

1. In any event, by reason of s 6(3) of the Criminal Appeal Act1912 (NSW), even if the further evidence was capable of producing a lesser sentence, this Court would have to be satisfied that a lesser sentence was warranted and should have been imposed in those circumstances.

1. In my opinion, a non-parole period of four years and six months with a balance of term of two years and six months might be thought to be a lenient sentence in all the circumstances. It was bad enough that the Applicant armed himself with a pistol and produced it during the totally unjustified assault on Mr Amiouni. The fact that it was loaded with at least two bullets, even if the gun had not been wracked, raises the matter to a high level of seriousness.

1. The leniency is further emphasised by the fact that the Sentencing Judge made the sentence for discharging the pistol twice in the direction of a group of persons on a Saturday morning at a retail shop entirely concurrent with the sentence in respect of the use of a weapon to intimidate. Even if the Sentencing Judge was wrong to have concluded that the offence of intimidation was aggravated by the guns having been cocked it cannot be said that the sentence imposed produced a miscarriage of justice.

1. These three matters, (1) the lack of an adequate explanation for the further evidence not being placed before the Sentencing Judge, (2) the lack of cogency of the further evidence, and (3) the inability to identify any miscarriage of justice, means that the evidence should now be rejected.

Ground 2: The focus of sentencing

1. During the course of his introductory remarks the Sentencing Judge said this:

One of these offences, memory serves me, carries a standard non-parole period, and that matter will also need to be addressed. What weight needs to be given to all of these matters against an imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined.

1. The Applicant submitted that since the commencement of s 3A of the Crimes (Sentencing Procedure) Act the protection of the community is not the only purpose of sentencing. Section 3A sets out seven purposes. One of those purposes is "to protect the community from the offender" but that purpose is not, of course, the same as protecting the community in a general sense.

1. The Applicant drew attention to what was said in Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 2 of 2002 [2002] NSWCCA 515 at [57]-[58] per Spigelman CJ (Wood CJ at CL, Grove J, Sully J and James J agreeing):

[57] ... [T]his Court did not receive submissions about the impact of s 3A of the 1999 Act which also takes effect from 1 January 2003. It is arguable that some of the "purposes of sentencing" which must now guide sentencing decisions constitute a change of pre-existing sentencing principle.

[58] For example, "prior" case law refers to the role of sentencing to protect the community, but that objective was often said to be achieved by means of rehabilitation, deterrence or retribution. Section 3A(c) now suggests that this should be regarded as a separate "purpose" and one concerned with protection of the community "from the offender".

1. Those remarks must be understood in the wider context of the case and the paragraphs that follow (to which the Court was not taken by the Applicant's counsel). The Attorney-General's application in that case for a guideline judgment concerning the offence of "assault police" in s 60(1) of the Crimes Act1900 (NSW) was made pursuant to an application dated 10 May 2002. As Spigelman CJ noted, after that date Parliament amended the Crimes (Sentencing Procedure) Act in 2002 to take effect from 1 February 2003 with the amending Act introducing (inter alia) s 3A.

1. That led Spigelman CJ to say:

[59] It may also be arguable that s 3A(c) [scil. (e)] - making the offender "accountable" - introduces a new element into the sentencing task. The same may be true of the reference to "harm" to "the community" in s3A(g).

[60] In the absence of argument, I would not wish to be understood to be expressing a view on these matters. The possibility that prior sentencing principle may need to be reviewed does, however, support the conclusion that the present application is premature.

[61] The guideline is sort at a time when new identification of the purposes of sentencing and the specification of the list of aggravating factors has not been considered by any courts. (emphasis added)

1. It may be accepted, quite apart from s 3A, that there is a number of different purposes of sentencing which overlap with none being able to be considered in isolation: Veen v The Queen (No. 2) (1988) 164 CLR 465 at 476; R v MA [2004] NSWCCA 92; (2004) 145 A Crim R 434 at [23].

1. In any event, a five member bench of this Court in R v Pogson [2012] NSWCCA 225; (2012) 82 NSWLR 60, when discussing rehabilitation, approved at [117] what was said in Vartzokas v Zanker (1989) 51 SASR 277 at 279:

The object of the courts is to fashion sentencing measures designed to reclaim individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community.

1. The argument raised by the Applicant is an arid one. It focuses on one sentence in the Remarks on Sentence and overlooks the fact that the Judge has clearly addressed other purposes including punishment and denunciation, rehabilitation and deterrence.

1. Moreover, it cannot be overlooked that the offences for which his Honour was sentencing all involved the use of a firearm. His Honour made a number of references to the underlying principles of the Firearms Act1996 (NSW) set out in s 3 of the Act. Two of the underlying principles are these:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms.

1. When the Remarks on Sentence are read as a whole, I do not consider that the Sentencing Judge's statement, that sentencing should have as its primary focus the protection of the community, was an error that infected the sentencing process.

1. In any event, even assuming his Honour erred in making that remark, the ultimate task for this Court is to determine if some less severe sentence is warranted in law. For the reasons I gave when considering Ground 3 I am not persuaded that any lesser sentence is warranted.

1. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

**********

Decision last updated: 18 June 2014