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 1As 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. 2On 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. 3At 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. 4The 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. 5My initial task requires an assessment of the objective criminality of the offences before the Court. Later I will also need to have regard to matters personal to the offender known as subjective matters. The starting point for these assessments requires me to make findings of fact from the evidence that was before the jury relating to the offence, and later before me relating to the defendant. My fact-finding task in respect of the offence necessarily requires me to find facts consistent with and reflective of the jury verdict. There is no obligation to find facts at either extreme of favourability or unfavourability to an accused. 6In this case the accused gave evidence contrary to the evidence of, particularly one witness, Andrew McDonald, and inconsistent with the evidence of the FA'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 a both an honest and accurate witness. That foundational finding by the jury should be reflected in my finding of facts. When I say that he was both honest and accurate, I am particularly referring to the circumstances of the offence involving FA. As I will come to later, there was some demonstrated inaccuracy, although not as it seems to me on essential matters, in respect of his account of the discharge of the two shots later. 7There is a delay between the offending which occurred in August of 2010 and the sentencing disposition, indeed a substantial delay between the verdict in the trial, which was in May last year and the sentencing disposition. That delay, and whether it causes any impact will need to be assessed. The offender's rehabilitation prospects will need to be assessed, even if looking through a glass darkly. 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.