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. FACTS 8The precursor to Colomer's criminal conduct occurred some 40 minutes before his arrival at Bunnings. His father, Pedro Colomer Senior, and an employee of the offenders, one Matthew Varghese, had attended Bunnings earlier that morning at the offender's direction. For both men English is a second language. They were instructed by this offender to purchase a drop saw and a compressor. As they were in the progress of departing from Bunnings they were stopped by a Bunnings employee who noticed the box in which the drop saw was housed was an open box - apparently that is a device commonly used by shoplifters - and the Bunnings employee was keen to investigate. Neither Varghese nor Pedro Colomer Senior speak English well. There was some confusion, which may have included, although not likely, a specific allegation to one or other of them of shoplifting. It is more like likely an employee of Bunnings would not risk the potential for defamation, and would, in any event, simply have made an enquiry during that discussion between the employee and the offender's two errand runners. 9Mr FA, the store security officer, came upon the scene. He quickly established there was no wrongdoing by either man, and both were free to go as paying customers. It would seem both were upset by the incident, swearing in English to make their displeasure known, and for that reason, and that reason alone, were asked to leave the store. I am satisfied FA's role when he came upon the scene was generally supportive of these two customers he saw before him and was polite, nonabrasive, and correct. 10The offender's case is that there had been a confrontation between his father and FA, the store security officer. The evidence in the trial was unequivocal and to the contrary. What the offender was told or understood of this event by either or both of his contacts would appear to have left him with an impression that some affront had been done to his father by store security, although interestingly that is not quite what he said when confronted by Andrew McDonald later. 11I repeat, there is absolutely no foundation for him otherwise believing such a situation. Indeed, and importantly I find his understanding did not accord with the reality of the civil, exculpating and proper conduct of FA. 12Pedro Colomer, the offender, decided he would 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 hoody garment that he was wearing, or determined to wear to the Bunnings store. His possession of this pistol from this time of his securing it in his hoody to the time of his disposing of it as described later constitutes the third charge upon which the jury convicted him; (Count 4). 13He recruited Varghese and a young family relative to accompany him. They set out for the Bunnings store. The two recruits travelled in a separate work truck to this offender. Pedro Colomer parked his work truck in the driveway that serviced Bunnings customers and product delivery traffic. He parked some 29 metres from the trade door exit on what might be described as the departure half of the driveway. 14At some point prior to his entry to the Bunnings store he secured a cover of some kind over his rear registration number plate. Whether done before or after his arrival in the Bunnings driveway I am unable to say. The coverage of the registration plate is very much a disputed fact, but the absence of a visible number plate was a matter noted by several of the witnesses in circumstances where at least some of them were seeking to look at a number plate for the purposes of enabling and aiding an inevitable subsequent investigation. It is a finding adverse to the offender, and one necessarily made beyond reasonable doubt. 15Prior to entering the store through the tradesmen's entrance, Varghese and the well-built juvenile joined him. I am satisfied Pedro Colomer's intent was that these two would support him while he dealt with the person who he believed was the store lost prevention officer. I am satisfied beyond reasonable doubt his intention in departing from his father's house in Raphael Street Greenfield Park was to confront this person in some aggressive manner. 16His purpose in arming himself with the pistol prior to arriving is unclear. It may have been simply for backup, or an equaliser in any confrontation that became out of hand; although one would have thought he had an equaliser by being accompanied by the two men, or he may have had the weapon for some more sinister purpose. Frankly I am unable to say and must sentence in the light of that. 17Fortunately for Bunnings and its staff members, the floor manager of the department where Pedro Colomer commenced seeking the "store security" was Andrew McDonald. His calm level headed and realistic approach to Pedro Colomer and his companions was the valve that kept the potential chaos within the steaming pressure cooker that was Pedro Colomer. 18Pedro Colomer encountered McDonald with a question: "Where's your store security?" McDonald replied: "What is it you're after?" Colomer said words to the effect he wanted to be taken to the store security. He, Pedro Colomer that is, knew that store security was there. McDonald said: "Well I'm not sure. I could check upstairs with other managers and see if anyone's seen him". McDonald described Pedro Colomer as appearing impatient. Colomer said: "No, point him out to us". Pedro Colomer put his hand on McDonald's shoulder nudging him. McDonald said: "What do you need to see him for? I'm a manager, maybe I can sort you out instead". Colomer replied: "No, I want to see store security. He was very rude to my mates": - (note: "not my father", "to my mates", the two men that were present I assume) - Pedro Colomer said pointing to Varghese. 19McDonald replied: "No, I'm management, do you want to tell me what happened?" Colomer said: "My friend doesn't speak English that well. Store security accused him of stealing. Threw him out ... so we want to talk to him". McDonald said: "Well I can take your complaint. I can take you upstairs. We can write down a complaint and I can deal with security if you like". Colomer replied: "I want to see him. I want to see security". 20As events turned out FA appeared from one of the aisles behind Pedro Colomer and his companions. FA approached this group and said: "I'm store security, what seems to be the problem?" Pedro Colomer and the other two turned to face FA. Colomer said: "You were rude to my friend". 21Again, for the third time, I draw attention to the fact that the complaint does not appear to be about the father. 22Colomer continued: "We need to speak to you outside". FA said: "No, your friend was rude to staff at the front of the store, that's why he had to leave. He was swearing, he was rude, there is nothing to discuss. That's my decision". Colomer insisted: "Come outside and we'll talk about it. Come outside I need you to talk about it". FA said: "No, I am not going anywhere. I'll stay here and talk to you about it". 23During this exchange Pedro Colomer moved towards FA so that he was about six inches from his face. From the time he had entered Bunnings throughout this exchange the hood on Colomer's garment was over his head concealing his profile features. 24Colomer's voice was insistent in tone. He placed his left hand, which I note is his dominant hand, on FA's right shoulder. FA said: "I'm not going outside, we can talk here". Colomer grabbed FA's clothing in the area of his right shoulder. FA, using two hands, brushed Colomer's hand away. 25Both of Colomer's companions, as events turned out, stepped closer to Colomer. McDonald became concerned that the events could deteriorate significantly. FA said, "This is an assault. Back off. This is an assault. Andy (McDonald) you are my witness. This is an assault." As FA spoke, he also moved backwards a distance of a metre to two metres and a bit. 26McDonald, meanwhile, moved towards the group intending to intervene between Colomer and store security. 27Meanwhile Colomer moved his left hand into the garment pocket saying, "That's not an assault, this is an assault." He was having some difficulty withdrawing his hand from the garment pocket, but when he did so the prohibited silver .25 semi automatic Colt pistol was secured in his left fist pointing at FA. 28McDonald was pushed from his would be interfering part by one or other of the three men. FA said, "He's got a gun. Andy, he's got a gun." 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 most dangerous, but for the safety catches, if they were engaged. This particular model of Colt is a small weapon. McDonald initially thought it was a novelty cigarette lighter. The overall length of the weapon was something in the order of four inches, if memory serves me correctly. 29FA had some knowledge of small arms and was, no doubt, very conscious of the danger the presentation of this weapon at him presented for him. He reached for Colomer's left arm that had the weapon, grabbing it around the forearm. With his other hand, FA reached for the hand that held the weapon. In other words, both of FA's hands were on Colomer's left hand. 30Colomer joined the struggle by clasping his right hand on to his left, so he was holding the weapon in both hands. The two men struggled, wrestling over each other seeking to gain control of the pistol. When giving his evidence, Andrew McDonald demonstrated; the Crown described the demonstration as, "The left and right hands going like a windscreen wiper." 31McDonald tried unsuccessfully to call triple-0 on the store phone. He then heard all four men hit the floor. FA was screaming, "Help, help." He was on the bottom; Colomer on top of him. There was an all-in struggle. McDonald intervened. He tried to separate the group. Both Colomer and Pedro Colomer maintained their individual grips on the pistol or hand, as the case may be, struggling for possession of the pistol in Pedro Colomer's hand. McDonald estimates the struggle continued for, "a few minutes." I am prepared to find it continued for minutes, but not prepared to find it continued for a significant period which seemed like minutes to FA and McDonald. 32McDonald succeeded in pushing the youth away. Then he grabbed Pedro Colomer's arm around the elbow and, with his other hand around Pedro Colomer's chest area, saying, "Let go, let go of the gun." My own view of McDonald's action was that this was extremely brave. 33FA was constantly screaming, "Help, he's got a gun, he's going to shoot me. Help me." FA was terrified. He feared for his life. Whatever Pedro Colomer's intentions were, FA's life was in danger throughout this struggle. Colomer's refusal to surrender his possession of the pistol contributed to the fear and horror that FA was experiencing. 34Varghese and the juvenile seemed to become disentangled from the melee. A third employee of Bunnings arrived to be told, by McDonald, to "Call police, he's got a gun". During this exchange somehow FA managed to free himself, leaving McDonald and Pedro Colomer engaged. 35FA departed the scene at all the speed he could muster, making his way from the back of the store to a room adjacent to the trade's entrance, known as the DIY room. There he secured himself inside, still terrified and distraught. He rang triple-0 and was the first to raise the alarm. There, in the room, he stayed, cowered, shaken and distressed until police arrived. 36These are the events that constitute the first count (Count 2) that the jury found Colomer guilty of. 37With the departure FA, the fracas ended. As Colomer extricated himself from McDonald, he placed the Colt back in the left hand pocket of his garment. Varghese, for some reason or other, chased after FA, but shortly returned to join Colomer and the juvenile. The three then headed towards the front store at a walk. McDonald followed about one and a half metres behind. Halfway down an aisle on their way to the door, Colomer turned to speak to McDonald, "Stop following us," he said. McDonald backed off a bit, but continued to follow. 38When they reached the end of the aisle they turned left away from the main door but towards the tradesmen's entrance by which they initially entered. Andrew McDonald called out to staff ahead of them to, "Keep away, back off," and not to interfere, particularly as one or two staff thought to block their passage. McDonald repeated this message as they approached the tool shop. At about this time Colomer turned a second time and said, in a threatening tone to McDonald, "Stop following us. If you keep following us I'll shoot you." McDonald replied, "Look, I'm walking you out of the store. Once you're out of the store, you're fine. Everything is cool, I'm not going to follow you out of the store." The three men left by the trade exit. 39A number of staff and two customers had gathered around and outside the trade entrance to watch them depart. 40Varghese and the juvenile broke off heading towards their work truck. Colomer veered to his right, making his way towards his work truck parked on the exit driveway. He opened the door of the truck, took the weapon from his pocket possibility, turned and fired two shots towards, or in the direction of, the group gathered at the trade exit. 41Implicit in the weapon's capacity to discharge, is the disengagement of two safety features on the Colt. The point at which these were disengaged cannot be determined, other than to say that they were disengaged by the time the weapon was discharged. The exact path of the projectiles discharged is impossible to determine, as the spent projectiles were not found. The cartridge cases, as I recall, were. 42Several witnesses gave evidence on this incident. In some respects their evidence was found to be inaccurate as to their location and the numbers present at the trade door. There were also differing descriptions of the actions of the offender as he discharged his weapon. 43McDonald's description suffers some of the deficiencies that were common among the others. Be that as it may, the jury clearly found there were two deliberate discharges of the weapon while it was in the possession of the offender and at a time when he was in the process of departing the scene, which departure was interrupted for the purpose of deliberately taking the pistol from the left pocket of the top garment he was wearing, pointing it in a general direction of the group gathered at the door, and twice discharging it with little pause between each discharge. 44These are the facts and circumstances constituting the second guilty verdict, (Count 3C) on the indictment. The offender's account of accidental discharge was rejected by the jury. OBJECTIVE CRIMINALITY 45From the facts as he finds them to be, a sentencing judge is required to assess what is called the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour the offender. That is done by comparing objectively the criminality exhibited in the three charges before me, with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these three offences can be evaluated. The objective criminally has an important impact on the overall sentencing outcome. 46In assessing the objective criminality of firearms offences, a useful starting point is to have regard to the principle objectives of the Firearms Act 1996. They can be found in section 3 of the Act as being to confirm that firearm possession, and use, is a privilege not a right, conditional upon an overriding need to ensure public safety and, secondly, to improve public safety by imposing strict control upon the possession and use of firearms. 47The potential harm to the community arising from unlawful, or unauthorised possession, is so obvious that it needs no stating. It is an act of immense social irresponsibility. The firearm laws are enacted by Parliament to guarantee public safety through close monitoring of weapons and ensuring that only fit and proper persons have access to them. 48The distribution of firearms into the community without any means of monitoring or controlling their sale, would see weapons in the hands of persons ill-suited for them and persons prepared to use them for illegal purposes and that is, frankly, what I have here. 49Parliament, police and the public have also long associated unlawful possession of firearms with subsequent illegal use of those firearms by the criminal element. Consequently breaches of the Firearms Act are to be recognised as offences against public safety. 50Section 93G of the Crimes Act, which creates the offence of firing a firearm in a public place, sets a maximum penalty of 10 years for the offence. That section creates a number of offences carrying the same maximum penalty, such as possessing a loaded firearm in a public place, carrying a firearm in a manner likely to endanger property, carrying a firearm with disregard for the safety of himself or otherwise. None of those offences necessarily involve the discharge of a firearm to constitute the offence. 51The offence before the court, however, is one that does require the discharge of the firearm. I should note, in fairness, there are other offences in the section, all other things being equal, inherently more serious than the offence I am dealing with also carrying the same maximum penalty of 10 years. For example, fires a firearm in a manner likely to injure a person, firing likely to endanger a person or firing a firearm with disregard for the safety of others. 52Discharging a firearm is clearly an offence against public safety. There are three areas of concern in this case; the potential for a direct hit from a projectile, the potential for an indirect hit from the ricochet from a projectile and the potential for "collateral" harm resulting in high levels of stress, fear and recognising exposure to lethal danger. 53In this case there were consequences, both given in evidence and visible from the demeanour from a number of witnesses, of the trauma and post-traumatic effects of the offence. While it is unlikely this offender foresaw the psychological and emotional damage his acts would cause, those who make and administer the firearm laws are well aware of them. 54Harm and damage to persons through unlawful acts constitute anti-social conduct of a high order. I note that section 93G of the Crimes Act is headed: "Causing Danger With Firearms Or Spear Guns." 55The presence of up to a dozen or so persons adds to the severity of the offending conduct. Clearly if the offence had occurred at midnight with no one present, the place would still be a public place, but the scope for harm to others would have been less. On the other hand, if there had been a union or employer meeting called in the driveway with 50 or 100 persons present at the time of discharge, the severity of the offence would have been greater than the offence I am dealing with. 56But considering the potential danger to others, does not offend the De Simoni (1981) 147 CLR 383 principle. That would appear to be contemplated by the heading and terms of the section. The fact that the Colt pistol was discharged two times, increases the criminality because there became two occasions, as distinct from one, when persons, or property, were put at risk of being struck and two occasions where stress level would be excited. 57The criminality associated with the offender's possession of the weapon needs to be specified. On the evidence before the court, it is unclear whether this pistol was the property of the offender or some other person's. What the circumstances were by the offender actually coming into possession of the pistol that morning, or what prior association, if any, he had with the pistol, is unclear. Even though the offender was wearing a holster, true it is the weapon was hand held. Even so, there is no evidence who owned the holster. It may well have been the offender's, but I am not prepared to make a finding beyond reasonable doubt. Nor does the hiding place where it was subsequently found by police reveal ownership. I can only be satisfied beyond reasonable doubt that the offender came into actual possession of the pistol on the morning, moments prior to his departure to Bunnings. 58It is important that his possession of the pistol on the Saturday morning was for an unlawful purpose and it was sought out to advance that purpose. 59Those facts aggravate his possession of the criminality, that is to say, he possessed the pistol to give him some advantage in his dealing with the security officer, which counts against him in respect of the possession charge. That the pistol that he took possession of what a "prohibited pistol" occurs because it is semi-automatic, that is, self loading and, therefore, a more dangerous pistol on that account. Also it counts against Mr Colomer on the possession charge. 60However, that particular aggravating feature is an element of the offence, for which the maximum penalty is 14 years imprisonment, as distinct from a maximum of 5 years for possession of a firearm, that does not qualify as prohibited. 61In respect of the first guilty verdict matter, the offence is to be found in Division 6 of Pt 3 of the Crimes Act. Part 3 is confined to Offences Against The Person. Division 6 contains offences relating to Acts Causing Danger to Life and Bodily Harm. 62The specific allegation against the offender is an offence of intimidation so as to cause FA to fear mental or physical harm. While intimidation is an indictable offence, the language used in the indicted charge, the legislation creating that offence provides a maximum penalty for it of only 5 years. That is to say, intimidation is low on the scale of potential indictable crimes by contrast with murder or occasioning GBH or kidnapping, or the like. 63In this case the acts of the offender achieved his intent. There is no doubt FA feared for his life that he would be shot. He called out continually for help because he feared physical harm. As a consequence of this assault by Colomer, FA was unable to give evidence at the trial. The significance of this is his inability to give evidence was because of his immense and on-going fear of the offender. It would appear he has, to some extent then, been disabled by the offences that occurred in the aisles of the Bunnings store on 5 August 2010. 64The maximum penalty for this offence is 15 years. This offender was in the company of the juvenile, as well as Varghese. The indictment only mentioned the juvenile, and that elevated it from the 12 year maximum to the 15 year maximum. So that aggravating feature is again an element of the offence. 65An overview of the 10 or so minutes of this offender's time at Bunnings exhibits a very high level of criminality. Initially his intended target was the store security officer. The targeting of FA was a vigilante response to a perceive wrongdoing, which he related to FA. Assuming, for the sake of argument, there was any merit in equating FA's conduct with the claimed wrongdoing, the actual confrontation of him was widely and obscenely disproportionate to the perceived wrongdoing. 66What is always alarming about vigilante acts are that all notions of true justice are cast aside. Any chance of avoiding a calamitous mistake is rejected as unworthy of consideration. An innocent man has been made to pay a terrible on-going disabling price for Colomer's anger management problems. 67A 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. 68While 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. 69The offender's resentment turned from FA to those gathered at the trade's door when, in a large burst of anger and defiance, two shots were fired in the direction of about a dozen persons who had done Colomer no harm at all but simply wished him gone from the premises. Again another price paid by innocent people because of Colomer's anger and management problems. 70I am going to take the luncheon judgment now and after lunch I will start to on the second part of the judgment relating to the offender's subjective matters. SUBJECTIVE MATTERS 71I turn now to the subjective matters. I am both entitled and required to do that. Not only am I sentencing for these criminal offences but I am sentencing this particular offender for them. Each offender coming before the Court varies from others who stand or who have stood for sentence. Circumstances personal to an offender may offer to the court some explanation and insight into the commission of these offences by him or some reason why more or less a sentencing outcome is appropriate. BACKGROUND FAMILY AND RELATIONSHIPS 72Colomer is approaching his 37th birthday. His marriage of some nine years broke down, and the partners separated in April 2010 some three to four months before the incidents that the Court is dealing with. There are two children of the relationship, a boy aged seven or eight, and a daughter aged nine or ten remain with their mother. At least such was the case when I initially drafted this. I will come back to that matter. The mother and the children were then living nearby, but Colomer claims that his separation from the wife and children contributed to his poor reasoning at the time of the offending. 73His parents and siblings, and it would seem his wife as well, migrated from Nicaragua to Australia. In respect of his situation he arrived in Australia when he was about eight. There are two sisters and one brother in Australia and one sister in Nicaragua. One sister is deceased. During the trial and/or court appearances he has been strongly supported by family and friends. 74His childhood in Nicaragua was marred by witnessing a number of atrocities, including seeing starving people, others shot from vehicles, and even being run over. He witnessed high levels of violence during that country's civil war. There are still residual post-traumatic symptoms such as experiencing images of people being shot when he tries to sleep. He witnessed his mother threatened by a soldier holding a rifle to her head. There was domestic violence in the home. He has experienced being shot and stabbed, although whether in the Nicaraguan civil war, or as an adult is unclear. EDUCATION EMPLOYMENT AND SKILLS 75He attended Canley Vale Public School and Cabramatta High. At age nine he was involved in a motor vehicle accident which required as part of his convalescence for him to use a wheelchair for six months. I should indicate that the convalescence took I think 18 months. During this time he claims his high school peers and other people stared at him and made fun of him. He used this fact as an excuse to avoid school attendance. Ultimately he left school to work as a fencer with his father. He claims social isolation and excessive working. By October 2008 he had become the sole director of the family business P & N Fencing and Gates Pty Limited. Many of the referees who supplied testimonials were business associates who spoke highly of him as a businessman and employer. I will come in more detail to that shortly. It is likely, health permitting, he will be able to return to this business upon his release from custody. GENERAL HEALTH 76Colomer is a big, powerfully built man, somewhat overweight. Notwithstanding his big frame he does not enjoy good health. At nine the motor vehicle accident earlier referred to saw him suffer multiple fractures, some of which required reconstruction of his right shoulder and right knee. From this collision he spent 18 months rehabilitating at Westmead Hospital. I have referred to the need for a wheelchair during six months of that convalescing. One leg is now five centimetres shorter than the other. This required surgery when aged 12. Some time in his twenties he was shot and fractured his tibia in two places, and was treated for two weeks. 77He still suffers chronic pain, and has done so since childhood. During the trial, and during transportation to and from custody for the trial his pain was palpable. Sitting still for extended periods can itself become a source of further pain for him. He is, I suspect, in need of pain management therapy. While I do have a psychiatric report, I do not have a physician's report, so have speculated. 78A further adjournment of this matter was occasioned last November as a consequence of his being assaulted via unlawful head trauma from behind. He appears to have been unconscious for some five minutes prior to paramedics arriving. How long he was unconscious before paramedics were notified is unclear. Paramedics found him in a chair hunched over, although they were informed prior to their arrival he was found lying on his back on the cell floor. I now know that he had a Glasgow Coma score of 14 out of 15; which indicates that his level of consciousness when they arrived was high. Or put another way, almost normal. 79There was blood from cuts and swelling to the left side of his mouth. He was unable to open his mouth and there was evidence of a blow to the rear of the head. He was removed to the health centre where he was observed overnight and at his own request returned to his cell the following day. Four days later he was still experiencing dizzy spells. An adjournment was permitted to explore his head sequelae, if any. 80Since writing that I have been served with four further exhibits. The most useful among them for present purposes is the email of Judy Schatzman, dated 14 February 2013, which details a chronology of treatment received in respect of this. He is still complaining of some numbness to his facial bones. 81Prior to the last hearing he had received a CT scan of the cervical spine and of the facial bones, and no abnormalities on that occasion were found. Subsequently he has attended an appointment with a neurosurgical registrar at Westmead Hospital. He has been reviewed by the Parklea doctor. He has undergone an MRI scan of the brain, and he attended appointment with the Parklea doctor to discuss the MRI results. 82It would seem that he still experiences headaches, dizziness and neck pain, although the medical investigation could indicate no identifiable cause for the clinical symptoms that he is experiencing. There appear to be no neurological deficits, and he has further appointments scheduled in mid March. MENTAL HEALTH 83Doctor Richard Furst, a psychiatrist, examined Colomer for the defence. He noted no prior history of diagnosed mental illness. Doctor Furst found him to be lucid, clear in expression, with logical thought form. There was no complaint of paranoia, or auditory hallucinations. There was no current thought of suicide, although Colomer claimed two prior attempts, one as a teenager, and one just prior to 5 August 2010, after his separation. On examination there appears to be no indication of cognitive impairment. 84The Justice Health records reveal a long history of drug abuse, which I shall return to shortly. History of depression was also revealed. In May of 2011 Colomer told Justice Health assessors he was depressed in mood, felt like crying all the time, had poor sleep, and was ruminating excessively. 85In June of 2011 Doctor Chew noted Colomer to be fearful and depressed. There was a further review in August 2011 where he reported feeling "desperate" from time to time and not sleeping well. Various brands of antidepressants have been prescribed for him as the doctors appear to be searching for one that suits him. 86Doctor Furst's Axis One diagnosis referred to three problems: Major depressive disorder, chronic pain, substance abuse disorder (cocaine amphetamine and codeine) 87In his second report Doctor Furst advanced a thesis that the offender's depressed mood, the effects of drugs he was taking on a daily basis, his past exposure to violence, trauma and childhood witnessing of civil warfare events had a bearing on his mental state at the time of the three offences I am dealing with. 88This underlying mental disorder, said Doctor Furst, mitigates against the seriousness of his actions at the time. The quote 'underlying mental disorder' must be a reference to the major depressive disorder. What the doctor does not explain is which particular symptoms of that disorder displayed any part in Colomer's possession of the pistol, his presentation of the pistol with intent to intimidate a stranger, and his double discharge of the Colt pistol at a group of strangers, some of whom had no previous contact with him. Nor is there any explanation as to how those symptoms came to play apart in the offender's thinking, intent and physical conduct. 89The offender's own explanation for his being at the shop, as given to Andrew McDonald was: "No, I want to see the store security, he was very rude to my mates". That motive also appears in the note written by the offender to the Court: "Your Honour, I heard evidence of an argument at Bunnings store between a loss prevention officer ... and my employee, Matthew Varghese, in which I intervened". 90Neither of those explanations for his presence, it should be noted, make any reference to his father, which if memory serves me was his case in evidence-in-chief, and in his account to the doctor, and it would seem from the doctor's observations to his instructing solicitors; see the doctors instructions in the second letter. 91I reject the doctor's opinion that the offender's mental disorder mitigates his actions. That said, however, his major depressive disorder, his chronic pain condition, and his substance abuse disorder do have some part to play in mitigating the way in which the full penalty is to be served. Custody must necessarily be much harder for him as a result of constant unremitting and severe pain. His depressive disorder will have a better prognosis when his custody abates in favour of liberty. His substance abuse disorder is better treated in the community where rehabilitation must take place. These three factors, coupled with some others I will come to shortly, compel a finding of special circumstances. 92In the meantime I note Dr Furst recommends this offender remain under the care of Justice Health, which should include seeing a psychiatrist and a Mental Health nurse on a regular basis. He should be referred to a clinical psychologist, says Dr Furst, to address coping skills, low self-esteem and childhood legacies, including childhood maladjustment and multiple childhood traumas here, and in Nicaragua. 93On his release Dr Furst said he should be required to attend mental health services in Liverpool and/or a private psychiatrist to monitor his response to treatment and anti-depressant medication. For my part I would prefer to see that recommendation built into a formal condition of his parole. DRUG AND ALCOHOL ABUSE 94It would appear, when interviewed shortly after his arrest, the offender denied any drug or alcohol issues. 11 days later, whilst in custody, of course, at a mental health assessment, he gave a history of abusing Panadeine Forte, Rivotril, cocaine and ice. When consulting Dr Furst for a report for this hearing, he disclosed, in yet more detail, his past drug history which included using heroin six to seven times annually, between his 17th and 22nd birthdays, using ecstasy on weekends from the age of 16 with dosages of as many as seven pills per night. The offender said that cocaine use also began at age 17 in social settings and also used for sexual arousal. In the months after the offences he claimed a $4,000 to $5,000 weekly expenditure on cocaine and "ice". 95He told Dr Furst he kept his drug use hidden from the family. There does not appear to be any report of withdrawal symptoms upon incarceration, nor any suggestion from his referees of his inattention or other absences from work during the months prior to the offence. He claims no use of cannabis and no problems with alcohol. I have elsewhere noted inconsistencies in his claims and I doubt that he is an accurate historian. 96While I accept there is a long history of poly-drug abuse, including prescription drugs, I have reservations as to its intensity in the months leading up to the commission of the three offences before the court. Frankly I doubt if he could have kept a $5,000 a week drug usage hidden from his family or employees. I also doubt that he could have suddenly entered a drug-free regime in custody without a need to detox from drug use of some months at that level as claimed. 97I am prepared to accept there was abuse of non-illicit substances in relation to pain management and depression. I note Dr Furst's recommendations include participation in the Getting Smart Program and other suitable drug rehabilitation programs. CHARACTER AND CRIMINAL HISTORY 98As earlier noted, Colomer enjoyed a positive reputation among business associates. The project manager for the Mirvac Group found him respectful to their staff, having good communication skills, respectful and polite in every regard and having a highly ethical nature. The Assistant Construction Manager for the Mirvac firm found Colomer to have an accommodating nature, as having tact and an honesty when informing his employer, that is that the employer, was wrong. He was a dedicated and hard worker, loyal, loving and generous to his own family. For that matter, the Site Manager found him well respected, polite, a family man, a devoted Catholic, a person with no problems communicating and working along with other trades persons. 99Colomer's accountant, who has known the offender for 15 years, found him honest, reliable, peaceful, dedicated to his wife, family and friends. 100Three other business associates echoed similar sentiments to those that I referred to. The Blacktown Cricket Club, in a reference 18 months after the offender was remanded in custody, noted his "continued" support for the Club for which it thanked him; but really said nothing much about his character. 101Material from the gaol showed the offender usefully using his time in custody in employment including, more recently, in a trusted position in the reception room at Parklea Prison. The prison chaplain, echoing the Sight Manager's observations, noted very frequent, if not weekly, attendances at Sunday church services. The Overseer, Trades Instructor" noted voluntary participation in vocational employment training programs and there was a statement of employment covering several more than a year working in the Parklea Prison CES cabinet shop and completion of some TAFE courses. 102If the observation of Colomer's referees were accepted, these offences involving the discharge of a weapon and the intimidation of FA, would be out of character. However, there is a prior conviction in August, 2009, for an offence of assault where the Liverpool Court found the offender had responded disproportionately and criminally with violence in circumstances where he perceived his father was slighted by an RTA officer who refused to grant a medical parking pass upon the basis of insufficient identification and discrepancies in the material provided. That assault was upon a female. It involved spitting at her, striking the perspex safety shield with his fist and throwing an EFTPOS machine at her which impacted on her left shoulder. 103There was one other earlier offence, suggesting loss of temper was involved, namely malicious damage to property. There are a couple of driving offences. There are no prior firearm offences, nor can it be said that the offender's past criminal antecedents deprive him of any entitlement to some mitigation on account of his good character or, put positively, he is entitled to some mitigation of penalty on account of his good character. 104He has not previously been to prison. This period on remand represents his first period of incarceration experience. ATTITUDE TO OFFENCE 105The offender's case was to blame the loss prevention officer for the presence of the pistol at the Bunnings store and the loss prevention officer for the presentation of the pistol at him at the Bunnings store. In that respect the evidence accepted by the jury was to the contrary. Not only that, Colomer was in possession of a holster that could only be explained by the existence of the colt his possession. 106His claimed collection of the weapon after the fracas, makes no sense, particularly as the person who he claimed owned the weapon had decamped at such speed as he could muster. The Crown case was that the weapon never left Colomer's possession. The jury has clearly rejected Colomer's version. That is not surprising. 107The collection of the weapon is only consistent with the weapon belonging to Colomer. The failure to hand it over to authorities at Bunnings, decamping with the weapon, subsequently discharging it, are consistent with the weapon belonging to him and inconsistent with it being FA's. 108FA's telephone call and the obvious distress, fear and anxiety, together with the words that FA used both at the scene of the offence and in the emergency call, are consistent with the Colt belonging to Colomer and not belonging to FA. 109I do not regard Colomer as in any way understanding the impact his offending contact has had upon FA or other Bunnings employees. 110Colomer has, however, acknowledged that, "My actions in the circumstance were completely inappropriate and lacking a proper regard for the safety and well-being of fellow citizens which I deeply regret." Implicit in that, it seems to me, is an acknowledgment, although not spelt out in so many words, that the two discharges of the pistol were done by him. Mr Colomer does not appear to accept that there was no basis in reality for him to be angry at the loss prevention officer. Neither his father nor Varghese was ill treated, as far as the evidence discloses, by any Bunnings staff. 111The offender does acknowledge, however, that his acts have impacted on his father and family who depend on him for financial support; although I understand that the business is being managed, as best it can be, by his brother. He claims to have determined that he will address all of the issues that caused this incident so as to prevent any such thing happening again. REHABILITATION PROSPECTS 112His rehabilitation prospects are likely to be more positive than negative. He has good family support, although I note the family dynamics played some part in his motivation. He has a very good work ethic and support for from his business peers. He has a minimal criminal record, although one offence driven by a similar misguided motivation. He says that he was living in a motel at about the time of the offending. Nonetheless I have assumed his accommodation needs will be met by family members. 113He has used his time in custody positively in terms of work and progress. On the other hand there are still some worrying aspects as to his lack of insight and any honesty in facing up to his intimidation of the store security officer; his absence of contrition for that offence; his past drug abuse and the absence of seeking any community based solutions for it in the past; his poor health, both the lack of pain management strategies and his long term depression. I acknowledge that these are problems best resolved in the community. 114In the absence of resolving these issues, offending, although not necessarily of the same kind, would still be on the cards. 115In the confines of the prison he says, and I accept, he is seeking to do what he can to address the issues, and in so saying, although not with any confidence, I find a favourable rehabilitation outcome. IMPACT OF HIS IMPRISONMENT UPON THIRD PARTIES 116His counsel sought to argue a case for mitigation of penalty on the basis of the needs of third parties, in particular his two children and his father. There is evidence the father has significant physical ailments, particularly impacting on his spine, shoulders and upper arms. There is a heart condition which is being treated, in part, with an automatic internal defibrillator, which was implanted in March, 2011. 117The father's doctor describes him as unfit to work, although it would appear that the father does from time to time to do a bit of work. The two children have been reviewed by psychologist Harinith in September, 2012. It would appear private schooling and some extracurricular activities have been curtailed because of financial pressures arising from the offender's incarceration. So far as the little girl is concerned, after her father was remanded in custody there were mood swings, un-cooperativeness, yelling, truancy and self-harm and aggressive behaviour. She began therapy sessions which explored some of the consequences of her having an absent father. It was psychologist Harinith's opinion that this child had been affected by separation from her father and his incarceration. The child presents with anxiety disorder symptoms, but it would appear the experience and the response to an imprisoned father is within the normal range of responses and experiences that are the sad consequence of incarceration for this girl. 118The younger child is also known as Pedro. He too has manifest worrying symptoms as a consequence of his separation from the father and the father's incarceration. He was already showing some symptoms of vulnerability, delay in achieving certain milestones, suffering asthma and difficulties with expressive language prior to the offender's arrest. There were, however, achievements particularly in the sporting area. 119Since the father's remand there has been oppositional behaviour, refusal to sleep in his own room, fear of the dark, fear of night noises and fear of ghosts. He too has been involved in therapy sessions with psychologist Harinith, which have included speaking about his emotions. She was satisfied there are determinantal psychological effects caused by the separation from the father. Psychologist Harinith opines the boy has separation anxiety symptoms. Again, I am still of the view that even though this child's symptoms are more severe than his sister's they fall in the normal range of a child deprived of a father because of incarceration. 120In both cases it should be noted there were pre-offending periods of separation, including three months prior to the current offences. It would also appear the paternal relatives have not maintained contact with the children, I dare say exacerbating the impact of the father's absence. What, if any, contributions to the symptomatology of the child are attributed to those two factors, is unclear, but I am satisfied some is. 121Finally, I note that the mother appears to recognise the importance and value of therapy for children and the treatment she is having for them is bearing some fruit. 122Since writing the above, there have been further developments. It would seem the mother has now taken the children to visit her own parents in Nicaragua during the last adjournment and she returned towards the end of January without the children. There is evidence before me this morning that she claims the children's passports have expired. My understanding is that these two children were born in Australia, although that, of course, would not resolve any passport issues. 123My understanding also is that no return airfare can be bought to Australia without a passport being valid to the date of return. That does not, of course, exclude the mother buying a one-way ticket for the children at the outset. The mother, of course, has not been called to give evidence. It is unclear to me the nationality of the passport that the children travelled on, but presumably it is one of Nicaraguan origin. Nor is it clear to me what authority the mother had to take the children from Australia without the concurrence of the father. That matter has not been explored in evidence. 124I am told, and the evidence is not challenged, that the children have remained behind in Nicaragua upon a claim that the passports have expired. If that is so, it is likely that the tickets were one-way tickets. The offender's sister has been told that the children will not return unless $10,000 is paid. She and her mother, also the offender's mother, are in the early stages of initiating Family Court proceedings to seek the return of these two children. This is very troubling for the offender but, frankly, his release from gaol can do nothing to bring them back other than what is already being done. 125None of these matters involving the children, or the father, that is the third parties, is such as to call for any mitigation of the penalty otherwise appropriate, but all of these would make the offender's custody time more arduous for him. 126As I earlier foreshadowed, all of them are drivers for finding special circumstances. SETTING THE SENTENCE 127Both the statute law and the case law require I give general deterrence consideration. Academics are telling us that general deterrence is a failed doctrine. This offender has now been in custody in excess of two years by account of the nature of his offending. 128I am satisfied the sentences I am about to impose will lose none of their efficacy or gain none with the otherwise appropriate sentences I intend to impose. 129I intend to give no further weight to general deterrence, or personal deterrence, that is otherwise inherent in any sentence I impose. 130I note section 7 Firearms Act offences carry a standard non-parole period of 3 years for an offence falling within the mid range of objective seriousness. I have spoken about the objective seriousness of that offence. I note that this offender has been in custody since his arrest on 5 August, 2010. 131All of the offending conduct is related to, or connected with, this offender's decision to confront the store security officer, FA, at Bunnings. The Crown described it as a single escalating episode of criminal conduct. For that reason, all sentences will be concurrent. 132The possession of the pistol offence plays a role in all three offences, but the sentencing for the discharge and the intent to intimidate, I recognise they are intended offences of potentially lethal violence. For that fact, their seriousness is substantially greater. 133I convict the offender of the three offences that are before the court. 134For the offence that on 5 August, 2010, at Greenfield Park, did possess a prohibited pistol without being authorised by licence or permit, you are sentenced to 18 months imprisonment to date from 5 August, 2010. That sentence expired on 4 February, 2012. 135For the offence of discharging a pistol in a public place, I set a non- parole period of 4 years and 6 months to commence on 5 August, 2010 and to expire on 4 February, 2015. 136I find special circumstances. 137I set a balance of term of term of 2 years and 6 months to expire on 4 August, 2017. 138For the offence that you, on 5 August, whilst being in the company of a juvenile who initials are CC, but whose name is known to you, you did use an offensive weapon with intent, namely intimidation of FA so as to cause him to fear physical and mental harm, you are sentenced to a non-parole period of 4 years and 6 months to date from 5 August, 2010, and to expire on 4 February, 2015, and a balance of term of 2 years and 6 months to expire on 4 August, 2017. 139Put in simple language, so you may understand it, the overall sentence is one of 7 years. Your non-parole period is one of 4 and a half years. I cannot order your release to parole, the Parole Board must do that. Can I tell you this: They look for two things before they will release anyone to parole; is he a danger to himself? Is he a danger to anyone else? If you continue to take drugs, you are a danger to yourself. If you are demonstrating no contrition about having a firearm, they will be concerned about your danger to other people. 140I tell you all that because if you do not get your parole on the first occasion, you will have to wait a year before you apply again. So I would like you to do all that you can to do, and indeed all you have been doing, to get your parole first time up. My plan is for you to have 2 and a half years non-parole. 141Finally, I would like to commend to police and to Bunnings that consideration be given to publicly acknowledging the courage, poise and good sense of Andrew McDonald during the 10 minutes of criminal activity that I have been dealing with in these remarks on sentence. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 April 2013