AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
6
Court of Criminal Appeal 18 June 2014

Colomer v R

[2014] NSWCCA 51

Firearms & weapons
CRIMINAL LAW FIRE FIREARM IN A PUBLIC PLACE POSSESS A PROHIBITED FIREARM SENTENCE PURPOSES OF SENTENCING EVIDENCE AVAILABLE BUT NOT USED

Citation: Colomer v R [2014] NSWCCA 51
Court: Court of Criminal Appeal, NSW
Date: 18 June 2014
Judges: Basten JA, Fullerton J, Davies J

Background

The appellant was convicted by jury of three offences arising from an incident at a Bunnings store at Bonnyrigg on 5 August 2010. The convictions were for using an offensive weapon with intent to commit an indictable offence whilst in company (maximum 15 years), firing a pistol in a public place (maximum 10 years), and possessing a prohibited firearm without a licence (maximum 14 years, with a standard non-parole period of three years).

The facts were serious. The appellant had armed himself with a .25-calibre Colt semi-automatic pistol before travelling to the store to confront a security officer he believed had been rude to associates. Inside the store, he produced the pistol and struggled with the security officer over control of it. After leaving the store, he fired two shots in the direction of a group of staff and customers gathered at the trade exit.

The sentencing judge imposed concurrent non-parole periods of four years and six months on the two principal counts, with a balance of term of two years and six months, and a fixed term of 18 months on the firearms possession count. The appellant sought leave to appeal against those sentences.

  • Whether the sentencing judge erred by finding, as an aggravating fact, that the appellant had "wracked" the pistol (that is, manually cycled the slide to chamber a round), when that finding was not adequately supported by the evidence.
  • Whether the sentencing judge erred in characterising the protection of the community as the "primary focus" of all sentencing, contrary to the multi-purpose framework under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether a letter and witness statement from the security officer, which had been available but not placed before the sentencing judge, should be admitted as further evidence on appeal under the Criminal Appeal Act 1912 (NSW), and whether the absence of that material caused a miscarriage of justice.

Decision

Ground 3: Admission of further evidence

The Court refused to admit the letter and statement from the security officer. Although those documents had been available at the time of sentencing, the defence had not tendered them. The Court reaffirmed that, where evidence was available at first instance but not used, a party seeking to rely on it for the first time on appeal must demonstrate that a miscarriage of justice resulted from its absence. No such miscarriage was established here, and the Court declined to resolve broader doctrinal tensions in the case law about the precise test for admitting "fresh," "further," or "new" evidence (Basten JA noting those ambiguities expressly).

Ground 1: The "wracking" finding

The appellant argued that the evidence did not support the finding that he had manually cycled the pistol's slide to chamber a round, and that this aggravating fact was therefore impermissible. The Court accepted that there were questions about whether the evidence was capable of establishing the wracking finding. However, because the Court had declined to admit the further evidence on appeal, and because the broader sentencing outcome did not turn solely on that single finding, the ground did not produce a result warranting a lesser sentence.

Ground 2: "Primary focus" on protection of the community

The appellant contended that the sentencing judge had elevated community protection above all other sentencing purposes, contrary to the principle established in Veen v The Queen (No. 2) (1988) 164 CLR 465 that no single purpose dominates. The Court rejected this as "an arid argument." Reading the remarks on sentence as a whole, the judge had plainly addressed punishment, denunciation, rehabilitation, and deterrence alongside community protection. Additionally, the underlying principles of the Firearms Act 1996 (NSW) place public safety at the centre of firearms regulation, making repeated reference to protection of the community entirely appropriate in this context.

The Court concluded that even if the sentencing judge's framing of community protection as the "primary focus" was technically imprecise, it did not infect the sentencing process. No lesser sentence was warranted in law.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where evidence was available at the time of sentencing but was not tendered by the defence, the Court of Criminal Appeal will not admit it on appeal unless the absence of that evidence caused a miscarriage of justice. Mere availability is not enough.
  • A factual finding made at sentencing as an aggravating circumstance must be capable of being established by the evidence before the sentencing judge. Findings that go beyond the evidence can constitute error, though that error will not necessarily produce a lesser sentence on appeal unless the outcome was materially affected.
  • Under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), sentencing involves multiple overlapping purposes, none of which is to be treated as automatically paramount. The principle from Veen v The Queen (No. 2) remains authoritative on this point.
  • In firearms offences, repeated emphasis on community protection during sentencing is consistent with the stated underlying principles of the Firearms Act 1996 (NSW) and does not necessarily disclose error.
  • The ultimate question on a sentence appeal is whether a lesser sentence is warranted in law. Even where the Court identifies potential imprecision in a sentencing judge's reasoning, the appeal will be dismissed if that imprecision did not affect the appropriateness of the sentence imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
- Firearms Act 1996 (NSW), s 3

Cases
- 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 MA [2004] NSWCCA 92; (2004) 145 A Crim R 434
- R v McIntee (1985) 38 SASR 432
- 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