Cervantes v DPP [2010] VSCA 4

1 The applicant was found guilty by jury on two counts of robbery. He was acquitted on two further counts of robbery and a count of intentionally causing injury. A plea was conducted and the applicant was sentence to be imprisoned for a term of 32 months on each count. The sentencing judge directed that 12 months of the sentence upon one count be served cumulatively upon the sentence on the other count, making a total effective sentence of 44 months' imprisonment. Her Honour directed that the applicant was to serve a minimum of 32 months before he was to become eligible for parole. The applicant seeks leave to appeal against both conviction and sentence.

2 The victim of the first count of robbery, Ellie Marin, worked at a clothing store in Smith Street, Collingwood. She gave evidence that on 15 June 2007 the applicant entered the store and spoke to her. The applicant left and returned a minute later, walked up to the counter and confronted Ms Marin, saying - 'This is a robbery. Give me all your money.' Ms Marin handed a cash box to the applicant. The applicant removed $100 from the box and enquired as to the whereabouts of the safe. Ms Marin said there was no safe.

3 The applicant ushered Ms Marin towards a rear storeroom, continuing to press her about a safe. He entered the store room and the applicant closed the door behind him. He then asked Ms Marin for her purse, saying that he need money because he was on drugs. Ms Marin said that she only had $5 and he replied that she could keep it if that was all she had. The applicant told Ms Marin not to move and to stay there and not speak to anybody. He then left, closing the door behind him. Three days later, Ms Marin identified the applicant from a photo board.

4 Natalie Prygodicz gave evidence that on the following day, 16 June 2007, she was working at another clothing store in Smith Street, Collingwood. She observed the applicant looking directly at her through the shop window. Half an hour later Ms Prygodicz was smoking a cigarette at the front of the store. The applicant asked her for the time. An hour later when Ms Prygodicz was in the store with her sister, the applicant entered the store, approached the sisters and said to Catherine Prygodicz, 'This is a robbery.' Natalie Prygodicz replied, 'Are you joking?' The applicant then grabbed Catherine by the neck and forced both sisters into a rear office saying, 'No, I'm fuckin' serious. This is a robbery.'

5 The applicant pushed Catherine Prygodicz to the floor while continuing to tell Natalie Prygodicz to get money out of the till. The applicant then took of Natalie's arm and pulled her back towards the counter and till. She opened it and gave the applicant about $600. The applicant observed that Catherine Prygodicz was standing and said to her, 'I thought I told you to stay down.' The sisters were frightened by the applicant's conduct. Natalie told the applicant that he would get the money and was to relax and calm down. Catherine told the applicant, untruthfully, that she had activated a security system. The applicant left the shop with the $600. Subsequently both the sisters identified the applicant by way of a photo board. The applicant called no evidence and did not give evidence himself.

6 The sole ground of the application for leave to appeal against conviction is that the verdicts are unreasonable and cannot be supported by the evidence. The evidence of the shop assistants, if accepted by the jury, clearly established the commission of the robberies. The only area for debate was whether it was open to the jury to find that the Crown had established the identity of the robber.

7 It is well established that identification evidence often presents difficulties. In Domican v R the Court said:

Where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula but it must be cogent and effective. It must be appropriate to the circumstances of the case. The attention of the jury should be drawn to any weaknesses in the identification evidence.[1]

8 In the present case, I am of the opinion that the trial judge complied with the requirements spelled out in Domican v R. The trial judge directed the jury that it was important that they carefully scrutinise the evidence of identification and pointed out the circumstances, such as the unsettling effect of the robberies, which might affect the shop assistants' ability to identify the robber. Her Honour told the jury that they needed to consider the description by the witnesses of the robber; whether it matched the accused; whether the witnesses were relying upon any particular feature; how long there was between the incident and the identification.

9 The trial judge also gave a warning to the jury about photographic identification, pointing out that photographs were two-dimensional and did not show the way persons move, their facial expressions or body shape, and many of the characteristics that would normally help to identify a person. Her Honour also said that photographs may have been taken in different circumstances from those in which the offender was observed by the witnesses and there may be other differences such as lighting.

So to summarise, in relation to identification evidence, it is important that you examine all identification evidence with special care and that you are especially cautious before accepting such evidence as correct and relying upon it. You must consider the dangers of identification evidence as well as any particular weaknesses in the evidence in this case, considering each count separately.

Some of the matters that you must consider would include the circumstances in which the original observations of the offender were made; the characteristics of the witness when they made the observation; and the state they were in at the time they made the observation; and the way in which the accused was identified, and here it was from photographs.

If, after careful examination of the identification evidence and in light of all of the circumstances and other evidence given in the case, you are satisfied beyond reasonable doubt that the accused was correctly identified, then you can use that evidence in reaching your verdict.

11 No exception to the charge was taken by counsel for the applicant. Ms Marin said that although, 'everything happened quickly', she had a 'decent amount of time' to observe the robber. She said that when she opened the cash drawer, the robber was facing her on the other side of the desk. The lights in the shop were on. She said that she watched the applicant during the whole time he was in her company and was looking at his face. In cross-examination Ms Marin conceded that the event was shocking, frightened her and was traumatic. She agreed that she was 'emotional' and was 'unsettled, shocked'. When shown the photo board by the police she said that she was, 'one hundred percent sure' that the applicant was the robber.

12 Both Natalie and Catherine Prygodicz gave evidence as to the identity of the robber. Natalie Prygodicz said that she clearly remembered the person who entered the store because she had seen him earlier in the day and said that he resembled one of her favourite musicians. She described the applicant in some detail when she spoke to the police soon after the accident. Her sister gave evidence which was consistent with that evidence.

13 The applicant's principal complaint was that although there was surveillance cameras in each store, no evidence of any images from the cameras was led at the trial. The absence of the evidence was explained in the following exchange between counsel for the applicant and the trial judge at the commencement of the trial:

HER HONOUR: What about CCTV, is that relevant to any of these counts?

MR HEVEY: We will make it available but I can tell you it is absolutely useless as far as I am concerned. I have had a brief look through. The Ella Bache doesn't work. We can't get it to open. The others are there if my friend wants to make whatever he will of it.

HER HONOUR: You don't propose to lead it but you will make it available?

MR HEVEY: I'll make it available. I have provided a copy to my learned friend, but frankly I don't think it will be of assistance to anyone.

14 In my opinion, there was sufficient evidence upon which the jury could base their verdicts. I would dismiss the application for leave to appeal against conviction.

15 The ground of the application for leave to appeal against sentence is that the sentence is manifestly excessive. In order to evaluate the ground, it is necessary to say something of the circumstances personal to the applicant. The applicant is now 35 years old. He came to Australia from Peru with his family in 1987 at the age of 12 years. He encountered language and cultural difficulties and within a few years was in trouble with the law. The applicant left school in Year 10 and since then he has never had steady employment. He lost contact with his family at the age of 17 years.

16 As a consequence of having no identity papers, apparently the applicant has been unable to obtain social security benefits, a driver's licence, a tax file number, or a bank account. The sentencing judge observed that it was only in November 2008 that the applicant was able to obtain evidence of resident status which might enable him to obtain documents proving his identity. Her Honour noted that the applicant was, 'unable to obtain any social security benefits' as a consequence of his lack of identity papers and was 'living on the streets without any support'. I share her Honour's apparent disquiet at this state of affairs. It appears to me to be remarkable that the authorities could release the applicant without equipping him with the means to cope with the outside world.

17 The applicant has an extensive criminal record and he has spent a significant part of his adult life in prison. He has some 30 prior convictions from 16 court appearances. His previous convictions include convictions for street offences, drug offences, offences of dishonesty, robbery and other offences of violence. The applicant has a history of drug use, including resort of heroin and cocaine.

18 The sentencing judge expressed the opinion that the applicant was to some extent institutionalised and that his prospects of rehabilitation were limited.

19 There is no denying the seriousness of the offences themselves. The victims of each offence were isolated and vulnerable. The applicant's conduct was serious and put the shop assistants in considerable fear. The victim impact statements reveal that they continue to suffer from the effects of the robberies. In my view the sentencing judge correctly identified general deterrence as a matter of some importance together with denunciation of the applicant's conduct and the need to protect the community.

20 The question of whether a sentence is manifestly excessive involves the review of the discretion. The sentence will only be vitiated if it is outside the range available to the sentencing judge; that is, where it is demonstrated that the sentence is one which a reasonable sentencing judge could not impose. In the present case I am of the opinion that the sentence was within the range available to her Honour, having regard to the offences themselves and the circumstances of the applicant, including his daunting record.

21 I would dismiss the application for leave to appeal against sentence.

22 I agree with the conclusions to which the learned presiding judge has come and with his reasons for them. I particularly wish to associate myself with his Honour's disquiet at the difficulties faced by the applicant as a result of his inability to obtain proof of his identity.

24 The orders of the Court will be that the application for leave to appeal against conviction and the application for leave to appeal against sentence are dismissed.

[1] [1992] HCA 13; (1992) 173 CLR 555, 561-2.