Colomer v R [2014] NSWCCA 51

Colomer v R [2014] NSWCCA 51

The evidence of Mr McDonald and Mr Amiouni provided a sufficient basis for the Sentencing Judge to be satisfied beyond reasonable doubt that the pistol was cocked and that this was an aggravating feature involving a grave risk of death. The proposed further evidence was not fresh, had been available at trial and sentence, was not adequately explained, lacked sufficient materiality and cogency, and its absence did not cause a miscarriage of justice. Read as a whole, the sentencing remarks did not show that the Sentencing Judge wrongly elevated protection of the community so as to infect the sentencing process, and in any event no lesser sentence was warranted.

Jurisdiction
Australia
Judgment Date
18 June 2014
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Before the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['use Offensive Weapon to Intimidate in Company' 'fire Firearm in a Public Place' 'possess Prohibited Firearm' 'aggravating Facts on Sentence' 'further Evidence on Appeal' 'protection of the Community as a Sentencing Purpose']
['criminal Law' 'evidence' 'sentencing'] ['use Offensive Weapon to Intimidate in Company' 'fire Firearm in a Public Place' 'possess Prohibited Firearm' 'aggravating Facts on Sentence' 'further Evidence on Appeal' 'protection of the Community as a Sentencing Purpose']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Before the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the Sentencing Judge erred in finding as an aggravating fact that the Applicant wracked the pistol, thereby elevating a bullet into the firing chamber.' 'Whether the sentence proceedings miscarried because a letter and further statement from Mr Amiouni were not in evidence before the Sentencing Judge.' 'Whether the Sentencing Judge erred by approaching sentencing on the basis that the primary focus was protection of the community.' 'Whether further evidence available at trial and sentence should be admitted on appeal.']

Ratio Decidendi

The evidence of Mr McDonald and Mr Amiouni provided a sufficient basis for the Sentencing Judge to be satisfied beyond reasonable doubt that the pistol was cocked and that this was an aggravating feature involving a grave risk of death. The proposed further evidence was not fresh, had been available at trial and sentence, was not adequately explained, lacked sufficient materiality and cogency, and its absence did not cause a miscarriage of justice. Read as a whole, the sentencing remarks did not show that the Sentencing Judge wrongly elevated protection of the community so as to infect the sentencing process, and in any event no lesser sentence was warranted.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']