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Colomer v R

Colomer v R

Case [2014] NSWCCA 51 18 June 2014

Possess a Prohibited Firearm

Sentence

Use Offensive Weapon to Intimidate

Fire Firearm in a Public Place

Admissibility of Evidence

Miscarriage of Justice

Criminal Law

Type to search within this case.

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

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.

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.

FULLERTON J: I agree with Davies J.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Colomer v R

Details

AGLC: Colomer v R [2014] NSWCCA 51
Case: [2014] NSWCCA 51
Decision Date: 18 June 2014

CaseChat Overview and Summary

The case of Colomer v R involved the defendant, Colomer, who was charged with various criminal offences related to the use of a firearm in public and the intimidation of individuals. The matter was heard in the High Court of Australia, which was tasked with considering the appropriate sentence for Colomer's actions and the admissibility of certain evidence that had not been previously considered by the sentencing judge.

The primary legal issues that the court had to address were the principles of sentencing in relation to the use of an offensive weapon and the possession of a prohibited firearm, as well as the admissibility of new evidence in the form of a video recording which had not been available to the original sentencing judge. The court had to determine whether the new evidence could establish a miscarriage of justice, which would warrant a re-sentencing hearing.

In its judgment, the court examined the severity of Colomer's actions, including assaulting a security guard and firing a pistol in a public place, and considered the purposes of sentencing, which include deterrence, denunciation, and rehabilitation. The court also assessed the evidence of the video recording, which demonstrated that the firearm was not cocked at the time of the incident, a fact that was not known to the original sentencing judge. This evidence had the potential to impact the severity of the sentence imposed. The court found that the new evidence was significant and capable of establishing a miscarriage of justice, as it altered the understanding of the circumstances under which the firearm was used.

Ultimately, the court ordered a re-sentencing hearing to be conducted, taking into account the new evidence. This decision underscored the importance of ensuring that all relevant evidence is considered in criminal sentencing proceedings, and the court's willingness to correct any errors that may have occurred in the original sentencing process.

Orders