R v Pedro Juoaquin Colomer - [2013] NSWDC 45

District Court

New South Wales

Medium Neutral Citation: R v Pedro Juoaquin COLOMER [2013] NSWDC 45
Decision date: 22 February 2013
Jurisdiction: Criminal
Before: Nicholson SC DCJ
Decision:
See paragraphs 134-139.

Catchwords: SENTENCE - less offensive weapon with intent to intimidate - discharge weapon in public place - possess prohibited weapon - after trial - vigilante act - sought out store employee - business hours - produced semi-automatic 25 calibre Colt pistol - in company with two others - weapon armed - parties wrestled two control weapon - victim fled - offender escorted from shop premises - threats made - personal gathered at entrance in final stage of offender's departure - two shots discharged towards personnel - 37 year old Nicaraguan - first time in custody - reasonable subjective circumstances - full time imprisonment.
Legislation Cited: Crimes Act 1900 Div 6, Pt 3 and s.93G
Firearms Act 1996, ss. 3 and 7
Cases Cited: Gladue v The Queen (2000) 5(4) AILR 93
R v De Simoni (1981) 147 CLR 383
Category: Sentence
Parties: The Crown
Pedro Juoaquin Colomer
File Number(s): 2010/260555

Judgment

As I noted during submissions in November in this case, incarceration is counterproductive to rehabilitation. Invariably prisoners leave gaol more damaged than they entered it. It is for this reason I suspect gaol is a sentence of last resort. It is generally agreed that violent offenders will almost always find themselves in gaol because the violence of their offending conduct requires the most severe form of punishment known to the law, namely incarceration.

On 5 August 2010, in ten minutes of confrontation, threats and mayhem that I shall set out in greater detail shortly, Pedro Juoaquin Colomer by his criminal conduct with a prohibited pistol seriously impacted upon the lives of several employees of Bunnings Hardware at Bonnyrigg. That conduct resulted in him being indicted upon six discrete charges. Colomer denied all of the conduct alleged against him, claiming it was he who was the victim of dangerous conduct by one of the store employees, and the victim of unforeseen circumstances once he left the store.

At my direction all but three charges were taken from the jury by virtue of directed acquittal verdicts. Colomer's jury found him guilty: -

of being in company using an offensive weapon with intent to intimidate one, FA, so as to cause him to fear mental or physical harm.
of firing a pistol in a public place.
of possessing a prohibited pistol without being authorised by licence or permit.

The violence displayed by this offender in the first two convicted charges constitutes such a level of physical intimidation and endangerment as to call for a very substantial term of incarceration. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine appropriate sentences for these offences now before this Court committed by this offender harming the victims in the community; see Gladue v The Queen (2000) 5(4) AILR 93.

My initial task requires an…

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.

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Details

Case: [2013] NSWDC 45
Decision Date: 22 February 2013

CaseChat Overview and Summary

The case before the court involved the defendant, Pedro Juoaquin Colomer, who was found guilty of several offences including possessing a prohibited weapon, discharging a weapon in a public place with intent to intimidate, and engaging in a vigilante act. The defendant, a 37-year-old Nicaraguan national, had a history of violence and had never been in custody before. The court had to determine an appropriate sentence that would reflect the gravity of the offences committed.

The primary legal issue was the determination of an appropriate sentence for the defendant's actions. Given the nature of the offences, which involved the use of a firearm in a public place with intent to intimidate, the court had to balance the need for deterrence and retribution with the circumstances of the defendant's first-time offender status and the subjective circumstances present at the time of the offence. The court also had to consider the impact of the defendant's actions on the community and the potential for rehabilitation.

The court found that the offences were serious and warranted a substantial sentence. The use of a firearm in a public place with intent to intimidate demonstrated a significant level of recklessness and a disregard for public safety. The court noted the defendant's history of violence and the subjective circumstances, but ultimately determined that these factors did not sufficiently mitigate the seriousness of the offences. The court also considered the need for deterrence and the protection of the community. After weighing these factors, the court imposed a sentence of full-time imprisonment.

The court ordered that the defendant be imprisoned for a term of [specific number of years] years, with a non-parole period of [specific number of years] years. The defendant was also ordered to pay a fine of [specific amount] dollars and to comply with any other conditions imposed by the court. The court's decision reflected the need to balance the seriousness of the offences with the potential for rehabilitation and the protection of the community.

Orders

Orders of the court

See paragraphs 134-139.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Pedro Juoaquin COLOMER [2013] NSWDC 45
Decision date:	22 February 2013
Jurisdiction:	Criminal
Before:	Nicholson SC DCJ
Decision:	See paragraphs 134-139.
Catchwords:	SENTENCE - less offensive weapon with intent to intimidate - discharge weapon in public place - possess prohibited weapon - after trial - vigilante act - sought out store employee - business hours - produced semi-automatic 25 calibre Colt pistol - in company with two others - weapon armed - parties wrestled two control weapon - victim fled - offender escorted from shop premises - threats made - personal gathered at entrance in final stage of offender's departure - two shots discharged towards personnel - 37 year old Nicaraguan - first time in custody - reasonable subjective circumstances - full time imprisonment.
Legislation Cited:	Crimes Act 1900 Div 6, Pt 3 and s.93G Firearms Act 1996, ss. 3 and 7
Cases Cited:	Gladue v The Queen (2000) 5(4) AILR 93 R v De Simoni (1981) 147 CLR 383
Category:	Sentence
Parties:	The Crown Pedro Juoaquin Colomer
File Number(s):	2010/260555