Citation: R v Pedro Juoaquin Colomer [2013] NSWDC 45
Court: District Court of New South Wales
Date: 22 February 2013
Judge(s): Nicholson SC DCJ
Background
The offender, a 37-year-old Nicaraguan man, armed himself with a semi-automatic .25-calibre Colt pistol and attended a Bunnings Hardware store at Bonnyrigg on 5 August 2010, accompanied by two others. His purpose was to confront a store security officer whom he believed had wrongfully accused or confronted his father and an employee earlier that morning. In fact, the court found the security officer had acted politely and properly, and had actually assisted the offender's father in exonerating him from any suspicion of shoplifting.
Inside the store, the offender sought out the person he believed responsible. A floor manager, Andrew McDonald, intervened calmly. During the ensuing confrontation, the offender produced the loaded pistol. A struggle for the weapon followed, the intended victim fled, and the offender was escorted from the premises. As he departed, with staff gathered at the entrance, he discharged two shots in the direction of those personnel.
The offender was charged with six offences. The court directed acquittals on three, and the jury convicted him of the remaining three: using an offensive weapon in company with intent to intimidate, discharging a pistol in a public place, and possessing a prohibited pistol without a licence or permit.
Legal Issues
- What findings of fact, consistent with the jury's verdict, should the sentencing court make about the circumstances of the offending?
- What was the objective seriousness of each offence, including the offender's intent in arming himself and discharging the weapon?
- What weight should be given to subjective factors, including the offender's age, background, lack of prior custodial history, and prospects for rehabilitation?
- How should the sentences for the three convictions be structured, including the application of any standard non-parole period and whether special circumstances existed?
- What effect, if any, should the substantial delay between offending (August 2010) and sentencing (February 2013) have on the outcome?
Decision
The court assessed the objective criminality of all three offences as serious. The intimidation offence and the discharge of the firearm were characterised as offences of potentially lethal violence, substantially elevating their gravity. The court found the offender had acted as a vigilante: he armed himself, recruited companions, concealed his vehicle's registration plate, and set out specifically to confront a person he had wrongly identified as having wronged his father. The security officer's conduct had in fact been entirely civil and proper.
On the facts, the court was unable to determine precisely why the offender brought the pistol, acknowledging it may have been carried as a backup or equaliser rather than for a more sinister purpose. However, the court held that regardless of that uncertainty, the offence of discharging the weapon in the direction of store personnel at close range, and the sustained intimidation of a security officer with a loaded firearm, demanded a substantial custodial sentence. The court applied the principle from R v De Simoni that findings at sentence must not operate to punish for uncharged conduct, and confined its fact-finding to what was consistent with the jury's verdicts.
Turning to subjective matters, the court found the offender had reasonable subjective circumstances. He was a first-time prisoner, had been in custody since the offending, had undertaken rehabilitation efforts, and the delay between offending, verdict, and sentence was a factor noted by the court. The court found special circumstances justifying a longer than usual balance of term beyond the non-parole period, to facilitate supervision and rehabilitation on parole.
Orders Made
- Count 4 (possessing a prohibited pistol without licence or permit): 18 months imprisonment, commencing 5 August 2010, expiring 4 February 2012.
- Discharging a pistol in a public place: Non-parole period of 4 years and 6 months commencing 5 August 2010, expiring 4 February 2015; balance of term of 2 years and 6 months, expiring 4 August 2017.
- Using an offensive weapon in company with intent to intimidate: Non-parole period of 4 years and 6 months commencing 5 August 2010, expiring 4 February 2015; balance of term of 2 years and 6 months, expiring 4 August 2017.
- Total effective sentence: 7 years imprisonment with a non-parole period of 4 years and 6 months.
- Special circumstances found.
Key Takeaways
- The District Court confirmed that violent offending involving prohibited firearms will almost always attract full-time imprisonment, reflecting the principle that the most serious violent conduct demands the most severe form of punishment available.
- Fact-finding at sentence must be consistent with the jury's verdict: where the jury accepted the prosecution witnesses as both honest and accurate, the sentencing judge's findings of fact should reflect that conclusion.
- A vigilante motive, in which an offender arms himself and actively seeks out a perceived wrongdoer, does not mitigate objective seriousness and may aggravate it, particularly where the perceived grievance had no factual foundation.
- Special circumstances were found to exist, permitting the court to extend the balance of term beyond the standard ratio, on the basis of first-time custody and the offender's rehabilitation needs.
- Delay between offending, verdict, and sentence is a relevant consideration at the sentencing stage, though in this case it did not displace the imperative of community protection as the primary sentencing consideration.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), Division 6, Part 3 and s 93G
- Firearms Act 1996 (NSW), ss 3 and 7
Cases:
- Gladue v The Queen (2000) 5(4) AILR 93
- R v De Simoni (1981) 147 CLR 383