APPEAL AND NEW TRIAL - in general and right of appeal - appeal from Magistrates Court - whether miscarriage of justice in absence of warning about voice identification evidence - no miscarriage of justice.

CRIMINAL LAW - jurisdiction, practice and procedure - judgment and punishment - whether sentencer erred in rejecting a community service condition to a good behaviour order when sentence of imprisonment suspended - error found and appellant to be re-sentenced.

Domestic Violence and Protection Orders Act 2001 (ACT)

Magistrates Court Act 1930 (ACT), Div 3.10.2

Evidence Act 1995 (Cth) 1995 (Cth), s 116

Crimes (Sentence Administration) Act 2005 (ACT), ss 108, 110

Hanel v Shoemark [2010] ACTSC 67

Grbic v Pitkethly [1992] FCA 451; (1992) 38 FCR 95

Sharrett v Gill [1993] ACTSC 147; (1993) 65 A Crim R 44

Parker v Espinoza (1996) 85 A Crim R 336

Johnson v Giumelli [2003] ACTSC 58; (2003) 175 FLR 467

Dennis v Davis [2010] NTSC 35; (2010) 204 A Crim R 1

Fazio v Castledine [2007] WASC 25; (2007) 168 A Crim R 391

Barry v Police [2009] SASC 295; (2009) 197 A Crim R 445

R v Green [2001] SASC 25; (2001) 78 SASR 463

Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250

Tatam v Svikart [1999] NTCA 146

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555

Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1

Gardiner v The Queen [2006] NSWCCA 190; (2006) 162 A Crim R 233

R v Trudgett [2008] NSWCCA 62; (2008) 70 NSWLR 696

R v Taylor (No 2) [2008] ACTSC 97

Longfield v Glover [2005] ACTSC 25; (2005) 191 FLR 332

AB v The Queen [1999] HCA 46; (1999) 198 CLR 111

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. The appellant, Todd Andrew Connelly, was in a relationship with a woman for about eight years but it ended in mid 2007.

2. As a result of events surrounding the termination of the relationship, Mr Connelly's former partner sought a Domestic Violence Order and one was granted under the Domestic Violence and Protection Orders Act 2001 (ACT), prohibiting Mr Connelly from, inter alia, contacting the applicant, behaving in a harassing manner towards her, or threatening her.

3. The applicant reported to police on 10 March 2008 that Mr Connelly had, over the prior days, breached the Order by making a number of telephone calls to her.

4. Mr Connelly was arrested on 13 March 2008 and, in an interview with police on 14 March 2008, denied making the phone calls alleged by his former partner, the applicant for the Domestic Violence Order.

5. Mr Connelly was subsequently charged with breaching the Order on 6 March 2008 and on 10 March 2008.

6. A hearing was conducted in the Magistrates Court on 21 January 2009 and Mr Connelly was convicted of both charges. Those convictions amounted to a breach of a Good Behaviour Order made in respect of Mr Connelly on 10 December 2007 when he was convicted of a charge of stalking and two concurrent Good Behaviour Orders made on the same day in respect of two charges of contravening a protection order. It also constituted a breach of a Good Behaviour Order made on 20 June 2007 for a charge of assault.

7. He was sentenced to six months imprisonment on each of the charges of breaching the Domestic Violence Order, to be served concurrently, and on the breach of the first Good Behaviour Order sentenced to four months imprisonment, one month imprisonment of which was to be cumulative on the other sentences, all the imprisonment to be served by periodic detention. There seemed to be no sentence in respect of the other breaches of Good Behaviour Orders.

8. On 21 January 2009, Mr Connelly lodged a Notice of Appeal. He prepared that Notice himself. He appealed against conviction and sentence. He was presumably granted bail pending the appeal.

9. The appeal came on for hearing on 15 October 2009. Mr Connelly was then represented. His counsel was granted leave to file an amended Notice of Appeal which was filed on 19 October 2009.

10. The amended Notice of Appeal set out the following grounds of appeal:

The grounds of the appeal against conviction are:

(a) That the learned Magistrate failed to direct and warn herself adequately in relation to the voice identification evidence.

The grounds of rounds [sic] of appeal against sentence are:

(b) That the sentence was manifestly excessive.

(c) That the learned Magistrate failed to have proper regard to the significance of the appellant's alcoholism in structuring an appropriate sentence.

(d) That the learned Magistrate erred in not finding that community service was appropriate in all the circumstances.

11. Appeals from the Magistrates Court in criminal matters are regulated by Div 3.10.2 of the Magistrates Court Act 1930 (ACT).

12. So far as the appeal against conviction is concerned, it is a rehearing. That is, the appeal court must determine whether the decision of the Magistrates Court is wrong, by that court falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. This court, as the appellate court, will give proper allowance to the advantage of the Learned Magistrate who has seen and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.

13. The appellate court is obliged to conduct a real review of the trial and the Learned Magistrate's reasons. The court has power to receive further evidence, subject to some restrictions.

14. The appellate court must weigh conflicting evidence and draw its own conclusions from primary facts found by the Learned Magistrate.

15. The appellate court is not restricted to making the decision that should have been made by the Learned Magistrate but must have regard to the circumstances which exist at the time of the appeal and make its own decision on these circumstances.

16. So far as the appeal against sentence is concerned, the sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate, and that I am not merely tinkering.

17. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find specific error but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.

18. See Hanel v Shoemark [2010] ACTSC 67 and Cooper v Corvisy (No 2) (2010) 5 ACTLR 151.

19. The complainant, Frances Hayes, said that she had been in a relationship with the appellant, Todd Andrew Connelly, for about eight years until the relationship ended. They lived together during that time. The relationship ended in about June 2007.

20. After the end of the relationship, Ms Hayes says she sought and was granted a Domestic Violence Order under the Domestic Violence and Protection Orders Act against Mr Connelly, in particular prohibiting him from contacting her or her son, Lochlan, except at court or through a solicitor for a period of 12 months from 16 July 2007. This may have been because of the assault for which Mr Connelly had been dealt with by the Magistrates Court referred to earlier (at [6]).

21. On 6 March 2008, Ms Hayes said she was at the Kambah Tavern. She met some friends there, including Ms Joanne Harrison. Ms Hayes had five or six full strength schooners of beer to drink that night. Ms Harrison had about six or seven schooners of cider.

22. During the evening, Ms Hayes said she noticed that she had missed some calls on her mobile phone. She rang her son but he told her he had not called her. She answered one call and recognised Mr Connelly who said something like "We need to talk". Ms Hayes said "There's a-you've got a DVO out" or "You've broken the DVO". She knew it was Mr Connelly because he has a distinctive voice and, of course, she had been in a relationship with him for eight years. I note that, in the circumstances, the words she heard were consistent with the caller being Mr Connelly, indeed made it likely it was him. No evidence suggested anyone else would make such calls.

23. Ms Harrison said she answered the phone and had a conversation with the caller. She told Ms Hayes that Mr Connelly had threatened her and her son. She told her that he said "I know where she lives. I know where she works. I know where her son lives. I know her - where her son works. I'm going to kill them." She had known Mr Connelly for about four years and during that time would see him quite frequently, at one stage about three times a week.

24. Ms Hayes said she was naturally upset at this message but was also scared. During the evening she received about 17 calls, 10 of which she did not answer.

25. Ms Harrison said that after that call had ended and she had given the phone back to Ms Hayes, it started to ring again. Ms Harrison answered it again and she says she heard Mr Connelly say "This isn't your phone" and she replied "Yes it is". She said Mr Connelly then said "No it isn't" and she said "I've already told you this is Sharon" and the call ended soon after when she hung up.

26. She said she may have taken two more calls where a similar conversation took place.

27. Ms Hayes said she did not know how the caller had obtained her mobile number because she had changed them after the problems leading to her seeking the Domestic Violence Order. She did later receive a call on the same phone using the same number from Mr Connelly's brother, which surprised her.

28. Four days later, on 10 March 2008, Ms Hayes said that again she received some phone calls. She answered one and heard a voice she recognised as that of Mr Connelly say "Hello darling. Are you going to talk to me today?" She said, "You're a fucking gutless cunt. Leave me alone" and then she hung up. She received another call which she answered but the caller hung up. In another call, which she answered, she said "You're an idiot" and the caller blew a "raspberry". This, Ms Hayes said, was something that Mr Connelly used to do to her.

29. Ms Hayes said that the calls upset her and caused her some alarm.

30. In cross-examination, Ms Hayes said that she could not remember when the calls came on 10 March 2008, but she reported them to police the next day. Ms Hayes was challenged on the events and it was suggested to her that she had made up the conversations, a suggestion she denied. It was also suggested to her that when calls were made she automatically assumed that it was Mr Connelly, which she also denied.

31. There was some challenge to the time of day when the calls were made on 10 March 2008, but it seems clear that the evidence of Ms Hayes was that it was in the evening.

32. Ms Hayes also agreed that Mr Connelly had caused a Domestic Violence Order to be issued against her.

33. Ms Hayes was challenged in cross-examination that she had made up the story that Mr Connelly was ringing her. It was suggested that she just assumed that it was him. She denied these matters. It was also put to her that Mr Connelly did not speak to her on the phone on 6 or 10 March 2008 and she denied that.

34. It was not suggested to her that she would not recognise Mr Connelly's voice or that she was mistaken about who was speaking to her on the phone.

35. In cross-examination, Ms Harrison denied that she was affected by alcohol when she took the calls. She said that she did not talk much to Mr Connelly on the phone, if at all, when Ms Hayes and he were in a relationship. They mostly met at the Kambah Tavern. She had spoken to him after the relationship had ended.

36. Ms Harrison said that Mr Connelly's voice was distinctive, being "deep and gravelly".

37. It was suggested to her that many males she met in the Tavern had gravelly voices and she agreed.

38. She also agreed that when Ms Hayes spoke to her Ms Hayes told her that she had been receiving calls from Mr Connelly, though at first she thought the missed calls and ones where no-one answered may have been from her son.

39. Ms Harrison also said that when she first answered a call, she did not announce herself, but in the second call she said she announced herself as Sharon, a joke that she and Ms Hayes had, in the past, shared. She thought there were four calls in total that she took. She said that Mr Connelly spoke on each time she answered the phone.

40. In cross-examination, Ms Harrison denied that, when answering the phone, she had assumed that it was Mr Connelly; she said that she recognised the voice.

41. She said that, although Ms Hayes, when handing the phone to her first, said "It's probably him [i.e. Mr Connelly] again", she did not assume that it was him but she heard his voice and knew it was him. She denied that she expected the caller to be Mr Connelly, though she clearly thought it was possible, perhaps probable. She was, however, quite sure that it was him on the phone.

42. Constable Russell Grant also gave evidence. He arrested Mr Connelly on 13 March 2008. He also interviewed him. The taped record of the interview was tendered. In it Mr Connelly described himself as a carpenter. When the allegation of contact with Ms Hayes on 6 March was put to him, he denied contacting her and called Ms Hayes a liar.

43. He said that after work, he usually goes to Calwell Shopping Centre to have a beer, then goes home to have dinner and go to bed. He denied trying to see Ms Hayes or to go to her address. He denied making threats to her or to her son.

44. In the interview, Mr Connelly agreed that he and Ms Hayes had known each other for eight years and that he lived with her for that time.

45. Constable Grant also described making reverse call records searches with Telstra, confirming Ms Hayes' number. He tendered a document that showed that 34 calls had been made to her number on 6 March 2008 from a public phone located at Calwell Shops of duration from two seconds to 46 seconds between 8.53 pm and 10.47 pm. The various durations of the calls was consistent with the evidence.

46. The document also showed 22 calls made on 10 March 2008 from the same phone of duration from nought to nine seconds between 6.16 pm and 6.48 pm.

47. A map was tendered showing that the Calwell Shopping Centre was within easy walking distance of his residence. Some photographs were tendered showing the relevant phone at the Calwell Shopping Centre about 50 metres from the entrance to the Calwell Tavern.

48. The police officer said he did not know how much a local phone call costs or whether the phone at the Calwell Shopping Centre can operate on a phone card or only coins. He agreed that the caller had to have monopolised the phone box because of the frequency of the calls. He looked at the phone depicted in the photographs and said that it was clear from the photographs that it accepted phone cards.

49. Mr Connelly then gave evidence. He confirmed the relationship he had had with Ms Hayes. He denied ever using the phone at the Calwell Shopping Centre. He said he did not know Ms Harrison very well though he had played pool with her. He had not had much conversation with her and had not spoken to her on the phone.

50. In cross-examination he said that he would have worked on 6 March 2008 and that he normally finishes at about 3.30 pm. He said his usual pattern was then to go home; at the time he was living with his mother in Richardson. This was at the address shown on the tendered map. He said he would kiss his mother, drop his Esky, have a quick cup of tea and then go to a tavern or a club. Sometimes he would go to Chisholm, sometimes he would go to Wanniassa. He said that occasionally he would go to the Calwell Tavern. He did say he would go to the Calwell Tavern more frequently than the other places but not daily. It was the closest to his home, a 10 to 15 minute walk away.

51. He said that on 10 March 2008, he had probably started drinking about 1 pm or 2 pm. He did not recall where he had been drinking that day. He had gone to bed early, at about 7 o'clock because it was Canberra Day and he was tired. His mother told him after he had been arrested that he had gone to bed that day at about that time.

52. That was a bit odd because, in the interview conducted, after his arrest, he had only been questioned about the calls alleged to have been made on 6 March 2008 and no questions were asked about 10 March 2008 and so no details given to him about that offence. Indeed, Constable Grant had not been certain that he knew of the calls alleged to have been made on 10 March 2008 at the time of the arrest. He was, however, charged with offences on both 6 and 10 March 2008 in court later on 14 March 2008.

53. He also agreed that Ms Hayes could recognise his voice and that he would recognise her voice. He confirmed that he and Ms Harrison played in a pool competition once a year for about six weeks, playing once a week during that time. He did say, however, that he did not recall speaking to her during the competition, though he had engaged her in small talk several times. He also said that Ms Hayes had met Ms Harrison through him; he knew her before Ms Hayes did.

54. He agreed that if someone telephoned another person 34 times under two hours and hung up that would be harassing behaviour.

55. Mr Connelly also said in cross-examination that he did not know where Ms Hayes worked or where she lived.

56. Mr P Bevan, counsel for Mr Connelly, submitted that there were two people saying Mr Connelly telephoned Ms Hayes and one, Mr Connelly, saying that he did not. He reminded her Honour that the evidence was identification evidence and that her Honour had to give herself "the normal warnings".

57. He submitted there was no independent corroboration. He accepted that there was opportunity, the calls having come from a phone at the Calwell Shopping Centre, but that, he submitted, was as far as it could go.

58. He pointed to "some history in this matter" with "cross-Domestic Violence Orders".

59. Mr Bevan also noted that while Ms Harrison says that on the first call she did not identify herself as "Sharon", Ms Hayes said that she did, a discrepancy in the evidence.

60. He submitted that the issue basically came down to voice identification; was the voice that of Mr Connelly? He conceded that the calls would be harassing, also prohibited by the Domestic Violence Order.

61. He also submitted that Ms Harrison had been told by Ms Hayes that Mr Connelly had been telephoning and submitted that Ms Harrison, though she denied it, must have had an expectation that the voice she would hear was that of Mr Connelly. As her Honour noted, however, though she agreed there was some expectation of a probability, she said "I didn't assume it was [Mr Connelly]. He has a very distinctive voice. I've never met anyone with a voice like [Mr Connelly's]."

62. Mr Bevan submitted that there was a displacement effect that had to be remembered. It is not clear to me exactly what was meant by this submission. Perhaps it was intended to address the issue that both Ms Hayes and Ms Harrison may have expected or assumed that the calls came from Mr Connelly, though Ms Hayes initially thought they had come from her son.

63. He noted that Mr Connelly was arrested a week later. He said, curiously, that because of that time, "he's unable to exactly precisely identify his movements, get alibi as to where he was at the time". I have to confess that a week does not seem a long time that makes it difficult to remember where one was previously.

64. Ms J Campbell, who appeared for the respondent, submitted that the case was a strong prosecution case. She submitted that her Honour could accept that calls were made. This was, I note, not really in contention.

65. She acknowledged that the prosecution relied on voice recognition, but of a person who had known Mr Connelly for eight years and was in a very strong position to recognise his voice.

66. The issue, it seemed to her Honour, was whether Ms Hayes was lying, for Mr Connelly accepted that Ms Hayes could recognise his voice. Ms Campbell submitted that there was nothing to support such an allegation, though it had been put to her in cross-examination and she had denied it.

67. Ms Campbell also noted that the provisions in the Evidence Act 1995 (Cth) relating to visual identification do not apply to aural identification. I note, however, that s 116 of that Act does apply to voice (or aural) identification. She also submitted, correctly in my view, that this was a different situation from those where the witness hears a voice for the first time when an offence is allegedly being committed and is then asked to identify the voice again; here, Ms Hayes, was very familiar with the voice of Mr Connelly.

68. Ms Campbell also submitted that the case was supported by the circumstantial evidence that the calls came from the phone at the Calwell Shopping Centre. She further submitted that the circumstances were not inconsistent with the evidence Mr Connelly gave, for the calls on 10 March ended at 6.40 pm, giving him time to get home and go to bed at about 7.00 pm.

69. She submitted the evidence of the prosecution witnesses was clear, they were not damaged in cross-examination and, with the support of the circumstantial evidence, should result in a conviction.

70. After some debate with the Learned Magistrate, Ms Campbell accepted that the breach of the Domestic Violence Order on 6 March 2008 was constituted by the admitted harassing nature of the calls rather than the alleged threat, though it might be seen that the threat was also harassing. It may be, however, that as the threat was clearly conveyed to Ms Hayes, a ground of threatening behaviour as the breach might still have been made out.

71. Her Honour gave an immediate ex tempore decision. There is, obviously, much to recommend that, though, as her Honour noted, the reasons may thereby "imperfectly summarise the evidence".

72. Her Honour identified the charges and gave a summary of the directions she was required to give herself as to burden and standard of proof.

73. Her Honour summarised the evidence and it seemed to me that it was an accurate summary. No point was taken on appeal about any inadequacy of her Honour's statement of the facts.

If I can accept [Ms Hayes'] evidence beyond reasonable doubt, the case against the defendant in relation to both charges is proved beyond reasonable doubt.

75. Her Honour then scrutinised the evidence of Ms Hayes carefully as she was bound to do. She noted there were some minor discrepancies in it, but her clear impression was they were:

... not because she was dissembling or attempting to be untrue to her oath, but partly because she indicated, quite frankly that she had not read her original police statement before coming to court.

76. Her Honour rejected the idea that Ms Hayes was deliberately untruthful. She also considered that an assertion by her that it was Mr Connelly making the accepted calls when it was someone else was, in the circumstances, unfounded and was illogical. It might be said that, by implication, her Honour had addressed by this the question of identification.

77. Her Honour also accepted Ms Harrison as a witness of truth, describing both she and Ms Hayes as "good, clear witnesses and ... that Ms Harrison was [not] the sort of person, based on the evidence adduced ..., who would perjure herself simply to support a friend's seeking of vengeance ..."

78. Her Honour acknowledged that Mr Connelly gave evidence on oath and she did not lightly discount his evidence, but held that it did not survive her finding on the strong prosecution evidence, supported by the circumstantial evidence and the credibility of the prosecution witnesses.

79. Her Honour found the offences proved beyond reasonable doubt.

80. The proceedings were adjourned to 28 October 2008. As well as the offences that her Honour found proved, there were breaches of earlier orders that the finding on these offences constituted as noted above (at [6]).

81. On 10 December 2007, Magistrate Burns had dealt with Mr Connelly for three charges: stalking and two charges of contravention of protection orders. On the stalking charge, his Honour had sentenced Mr Connelly to five months imprisonment but suspended it immediately and made a Good Behaviour Order for two years. On the two charges of contravention of a protection order he had imposed the same sentence concurrently.

82. On 20 June 2007, Magistrate Doogan had dealt with Mr Connelly for a charge of common assault. Her Honour had convicted him but made a Good Behaviour Order for two years with a surety of $1,000.

83. The facts of the matters were before her Honour but, regrettably on an appeal against sentencing, only the facts in relation to the stalking charge have been reproduced in the Appeal Book.

84. Mr Connelly's criminal record was tendered. It was long and undistinguished, dating back to 1984. It included 52 charges from 29 court appearances. Most of them were for breaches of traffic regulations though these are, of course, criminal charges nevertheless. Many were regulatory but there were eight convictions for drink-driving or refusing a breath test. There were also eight convictions for resisting or assaulting police. There were, in addition, three convictions for driving whilst disqualified. The most recent charges also showed a disturbing trend, being the convictions for common assault, contravening a protection order and stalking, though I can accept that all of these were committed in the context of the breakdown in the relationship with Ms Hayes.

85. A Pre-Sentence Report was tendered. It reported that Mr Connelly had suffered a dysfunctional, violent and unstable family background. His father was an alcoholic and was violent. The children, Mr Connelly had two siblings, witnessed their father's domestic violence against their mother and, on occasions, intervened. Mr Connelly's mother described "life was hell" living with his father.

86. The parents separated when Mr Connelly was eight, though he remained close to his father. His father, however, died when he was fifteen. Though his mother was a hard worker she was not loving and hit her children in attempting to make them behave. A new relationship between his mother and another man was no more successful as he was also an alcoholic and the relationship ended when Mr Connelly was 17.

87. Mr Connelly went to school in Canberra, attending regularly with good grades. He gained his Year 10 Certificate and then commenced an upholstery apprenticeship. That ended when he was made redundant but he then completed a carpentry apprenticeship. He has worked in the building industry ever since.

88. Mr Connelly started drinking when he was 16. He would drink about six stubbies a night and described being "pretty much" drunk all his adult life.

89. Mr Connelly has had three long-term relationships. A child was born of his first relationship but it ended because of his alcoholism. He does not have regular contact with this child.

90. His second relationship lasted for about 12 years and three children were born of the relationship. When the parties separated, he maintained contact with his children of this relationship.

91. His third relationship was with Ms Hayes. He told the author of the Pre-Sentence Report that they both drank but Ms Hayes increased her intake towards the end of the relationship and this became problematic. He felt there was increasing stress in the relationship and did not understand the charge of stalking that resulted.

92. Mr Connelly has completed two Sober Driving Courses and reduced his alcohol intake in 2007. He made a brief contact with ACT Health's Alcohol and Drug Program in July 2007 and attempted to enter detoxification but there were no beds available. He did, however, attend meetings of Alcoholics Anonymous.

93. At the time of these offences he was living in a caravan park. He remained single after the breakdown of the relationship with Ms Hayes. He reported that he was still drinking but that it was not of a problematic level. This may have been the successful result of his attempt at rehabilitation.

94. Mr Connelly was assessed as unsuitable for the ACT Corrective Services Family Violence Cognitive Self-Change Program and told the author of the Report that he would "not take part in the program under any circumstances." He has, however, attended counselling with Relationships Australia but the counsellor did not consider he needed much by way of therapy.

95. A Psychological Report from Dr John Jacmon was tendered on behalf of Mr Connelly. For reasons set out below (at [114]), it does not appear to have been accepted into evidence, though it was read by her Honour who made references to its contents. It confirmed Mr Connelly's background reported in the Pre-Sentence Report, though it recorded his break-up with Ms Hayes in greater detail.

96. It reported that after the break-up, Ms Hayes drove home drunk and an incident occurred from which he was charged with assault. This appears to be the assault for which he was required to sign the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) referred to above (at [6] and [82]).

97. Dr Jacmon described the stalking as Mr Connelly ringing Ms Hayes after she had, unbeknown to him, been granted a Domestic Violence Order issued against him. This does not make a lot of sense and is different from the statement of facts tendered by consent in the stalking proceedings.

98. That statement of facts shows that, when the relationship ended, Ms Hayes was assaulted on 17 June 2007. Ms Hayes applied for and was granted a Domestic Violence Order on 18 June 2007. On 19 June 2007, Ms Hayes packed Mr Connelly's belongings and placed them in black garbage bags in the lounge room. ACT Housing changed the locks.

99. Mr Connelly appeared in Court on the assault charge on 20 June 2007 and a Good Behaviour Order was made (as noted at [82] above). He returned to the premises on 21 June 2007 and Ms Hayes would not let him in. She told him that she had been granted the Domestic Violence Order.

100. Ms Hayes then left her house to take her son to school, and to go to work. She then received a call on her mobile phone from her home telephone number. She answered it and Mr Connelly was calling. She told him again about the Domestic Violence Order and reported the matter to police.

101. When she returned home, she noted the screen door was open and that the garbage bags had gone. She noticed, however, that Mr Connelly's possessions had been unpacked and placed back where they had been before she packed them up into the bags. That night, Mr Connelly rang Ms Hayes and confirmed that he had unpacked his belongings.

102. On 22 June 2007, Ms Hayes received eight calls to her work phone from Mr Connelly between 9.50 am and 10.35 am and in excess of 30 calls to her mobile between the same times.

103. Police arrived at the premises later that morning and found Mr Connelly outside with an open bottle of beer. He said he was there to collect his belongings.

104. He was arrested and spent about five months in pre-sentence custody. When released, he told Dr Jacmon that police took him to the premises to collect his belongings but they had been removed and he had to clothe himself by availing himself of the services of St Vincent de Paul Society.

105. Dr Jacmon did report that, in 1989, Mr Connelly won a Queen's Bravery Award when he managed to pull the unconscious driver of a tanker full of aviation fuel from his vehicle after it had rolled on its side at a creek in Yass.

106. Dr Jacmon administered a number of tests to Mr Connelly and analysed the results which provided a clinical assessment that showed he suffered from depression, anxiety and alcohol abuse at clinically significant levels, markedly impairing his daily functioning. It included suicidal ideation that had existed since June 2006.

107. He reported that Mr Connelly was "markedly saddened by how his life had panned out. He was sorry for the distress caused to his loved ones". He considered that Mr Connelly's disorders were likely to worsen without treatment. He reported that longer term treatment had commenced and presented a comprehensive treatment plan. Completion of the plan should, he considered, reduce the probability of re-offending.

108. That the version of the events relating to the stalking charge in Dr Jacmon's Report were different from those presented to the court caused the Learned Magistrate some concern. She expressed concern that Mr Connelly may be a liar and that the incorrect history may affect the validity of the Report and its recommendations. She commented that "until he faces up to what he's done and acknowledges that he did it, no rehabilitation is going to be effective."

109. Mr Bevan pointed out that Dr Jacmon reported that the disorders suffered by Mr Connelly "directly impinge on his capacity to make reasoned judgments." Later, Dr Jacmon reported that the symptoms he had diagnosed "result in markedly diminished capacity in judgment".

110. Her Honour's concern that the results may be affected by the history which, as she saw it, was incorrect, may, at one level be true, it is also to be noted that the symptoms diagnosed are not directly related to the particular historical events as to the offences and, as described in the Report, are analysed from the measurement of issues such as somatic complaints, anxiety, depression, mania, paranoia, schizophrenia, borderline features, antisocial features, alcohol and drug problems, aggression, suicidal ideation, stress, non-support, treatment rejection, dominance and warmth.

111. While some self-report may be dissembled, even deceitful, the tests are validated and there are internal checks to ensure that inconsistency and inadequate or inaccurate reporting are screened.

113. In any event, the proceedings were adjourned to 21 January 2009. In the meantime, a report had been prepared by Mr Marshall O'Brien, a clinical psychologist.

114. At the resumed hearing, the prosecution opposed the tender of Dr Jacmon's Report as he was not available for cross-examination. It is, in fact, not clear what the status of the Report ultimately was as it has been included in the Appeal Book and was obviously read by her Honour, though her Honour said it had not been tendered, but then referred to matters in it, showing she had read it.

115. In any event, Mr O'Brien's Report seems to have been tendered and was also included in the Appeal Book. So far as I can gather, neither Report was actually marked as an exhibit and so they both appear to have had the same status in that respect.

116. Mr O'Brien's Report was briefer. In it he stated that he had made contact with Dr Jacmon and requested the raw scores for the Personality Assessment Instrument and these had been provided. Mr O'Brien analysed them himself. He also interviewed Mr Connelly at length on two occasions.

117. His conclusions were that Mr Connelly was suffering from major depression. He also experienced state and trait anger, especially by the circumstances of his present legal situation. He has had suicidal thoughts, perhaps as a result of his legal situation, and admitted to alcohol problems and antisocial attitudes but the analysis did not reveal aggressive tendencies.

118. He considered that Mr Connelly had not attempted to distort his presentation when completing the tests and appeared reliable in his statements. He noted that Mr Connelly was aggressive in his youth and to have drunk alcohol at problematic levels, likely as "self-medication". He dislikes authority figures, especially if perceiving them as unfair, and has a propensity to be angry in reaction but not usually aggressive and attempts to contain his anger.

119. Mr O'Brien gave oral evidence. He described his interviews with Mr Connelly. He was asked about whether Mr Connelly's self-report could distort or deceive the process of his assessment by providing false answers. He said:

Well, in that particular case it's very unlikely because the instrument is quite smart in having a number of ways of assessing precisely that. So it's looking for people who are going to be trying to either make a good impression or a very bad impression. In the latter case that's what you would expect in these circumstances because they might want to use the mental health defence. So you'd be expecting that to arise in some cases, so you prepare for that. But the instrument itself is very clever is [sic] disguising those and we also look at what we call the validity scales before we start to interpret the profile. Now, of course, I couldn't do anything about the profile because I did get given a copy of Dr Jackman's [sic] report by Mr Connelly but I rang Dr Jackman [sic] and asked for the raw scores to be sent to me which he did the very next day and I analysed them again and I was pleased to see that the validity scores fell well below the critical cut-off points for considering his profile invalid. So I could then assume that this was a correct profile.

MR BEVAN: Valid means that the answers he'd given to that PAI test, you believe they were genuine?

MR O'BRIEN: Yes, yes.

120. He reported that Mr Connelly stated he drank a six pack of beer daily, which is more than the recommended quantity. That, he said, would affect the recollection of an ordinary person but probably only relax a chronic drinker. He did not consider that Mr Connelly's use of alcohol would affect his memory, though if he drank even more excessively at the time, this could have resulted in memory loss.

121. He agreed with Dr Jacmon's diagnosis reported above (at [106]). He also found it surprising how Mr Connelly was able to contain his violence and aggression, expressing it verbally, but in a context where he considers injustice has been done.

122. He felt that if Mr Connelly could constrain his drinking and his anger he would be a very productive member of the community.

123. In cross-examination, he agreed that at the time of preparing his report he did not have the facts of the charges nor Mr Connelly's criminal history, though he had seen them that morning. He said that they did not affect his assessment in his report.

124. He also opined that Mr Connelly is a chronic drinker, problematically, but has nevertheless not acted in a way that has caused physical injury to others often. He felt that unless Mr Connelly considered an injustice had been done, he would not act in an aggressive manner. He felt, in particular, that his domestic partners were generally not at risk from Mr Connelly, though he acknowledged that, at the point of a break-up of a relationship, there would be a high risk.

125. In summary, he felt that the history of Mr Connelly's offences was alcohol induced and based. He did not understand that Mr Connelly had taken any steps to address his alcohol abuse. He confirmed that, though Mr Connelly may make a threat of harm, he would be quite unlikely to carry it out. He also accepted that Mr Connelly had an anger issue with authority figures.

126. The Learned Magistrate expressed the view that the matter was a difficult sentencing one because, despite pleading guilty to the earlier matters on which her Honour had to sentence Mr Connelly, he continued adamantly to deny the current offences. Her Honour did not find that Mr Connelly was lying, though Mr O'Brien's evidence raised a doubt as to a finding that he had simply no memory of making the calls, though Mr O'Brien did say that it could be the position had he been drinking excessively at the time.

127. As to rehabilitation, her Honour noted that, while there was material showing a treatment plan, Mr Connelly had not embarked upon it or, indeed, seemingly "committed to that course himself." Indeed, I note that Mr O'Brien thought that it was an unrealistic plan. Her Honour suggested that Mr Connelly's alcohol problems may be deeper than he was prepared to accept.

128. Her Honour noted that Mr Connelly was subject to four court orders at the time these offences were committed and they had caused Ms Hayes distress.

129. In relation to re-sentencing, (which the court could do under ss 108(3)(b) or 110(2)(b) of the Crimes (Sentence Administration) Act), her Honour considered that the starting point was to impose the terms of imprisonment (though that appears to be acting under s 110(2)(a) of that Act) because the avoidance of further offences had not been achieved. Her Honour did note that prior to the imposition of the suspended sentence for stalking, Mr Connelly had spent about four months in custody on remand.

130. Her Honour considered that rehabilitation would be "a very rocky path" for Mr Connelly because of his denial of the offences.

131. Her Honour considered that suspending the term of imprisonment would be "a bit of a nonsense" because she considered Mr Connelly was "incapable of complying with the terms of an [Good Behaviour] Order".

132. Her Honour then considered that a community service condition to a Good Behaviour Order did not "adequately reflect the objective seriousness of his conduct." Her Honour considered that periodic detention permitted Mr Connelly to remain employed and productive in the community. She noted that the pre-sentence custody prior to sentencing for the stalking charge had not deterred him.

133. She then sentenced him to six months imprisonment for the offence of contravening the protection order on 6 March 2008 to be served by periodic detention. On the second matter of contravening the protection order on 10 March 2008, she imposed the same sentence to be served concurrently.

134. On the breach of the suspended sentence on the stalking charge and, possibly, though not expressly, the two earlier contraventions of protection orders, Her Honour imposed a sentence of four months imprisonment, one month of which was to be served consecutively on the earlier sentences and also to be served by periodic detention. It is not clear that her Honour imposed any additional or specific sentence in relation to the breach of the Good Behaviour Order of 20 June 2007.

135. Ms J Sabharwal, who appeared for Mr Connelly, submitted that the Learned Magistrate had made an error of law in failing to warn herself adequately or at all about the voice identification evidence.

136. In Grbic v Pitkethly [1992] FCA 451; (1992) 38 FCR 95, Sheppard J said (at 107-8):

I think that cases which are tried by judicial officers alone may sometimes present more difficulties in their analysis than do cases which are tried by juries. The jury is the tribunal of fact and determines issues of fact guided by the directions of the trial judge. The judge and the jury have separate and distinct functions. If identification is in issue, it is for the judge to determine whether or not to admit the evidence of identification. If it is admitted, the judge's task is to give the jury the appropriate directions and warnings about the way they should deal with the evidence. In a case tried without a jury, the tribunal will not usually reject the evidence, but it will be faced with the question whether, in the light of the totality of the evidence, it can safely conclude that it has been established beyond reasonable doubt that the crime was committed by the accused. In reaching its conclusion the tribunal must give itself the appropriate warnings of the dangers inherent in identification evidence in cases where the accused was not previously known to the witnesses. It then needs to consider those warnings and to be sure that it has heeded them. This does not mean that it is to be overawed by them but it needs to pay them real attention. Finally, it has to determine whether it is satisfied of the guilty of the accused. Inevitably these considerations will tend to overlap and resolve themselves into one overall question. At the heart of that question will be the degree of satisfaction which the tribunal has with the strength of the identification evidence. An appellate court called upon to review a conviction on the ground that it is unsafe or unsatisfactory because of the nature of the identification evidence in the case, must also give close attention to that matter. In doing so it will need to consider whether, in all the circumstances, the court below could safely have arrived at a conclusion of guilt.

137. This statement has been followed and applied in a number of cases, including Sharrett v Gill [1993] ACTSC 147; (1993) 65 A Crim R 44, Parker v Espinoza (1996) 85 A Crim R 336, Johnson v Giumelli [2003] ACTSC 58; (2003) 175 FLR 467 and Dennis v Davis [2010] NTSC 35; (2010) 204 A Crim R 1.

138. In this case, Mr Bevan expressly referred to the need for a warning (see [56] above) but her Honour did not give herself a warning. Thus, Mr Sabharwal submitted, the absence of a warning resulted in a miscarriage of justice and the conviction should be set aside.

139. Mr J Lawton, who appeared for the respondent, conceded that no warning had been given. Thus, there had not been compliance with s 116 of the Evidence Act 1995 (Cth). He submitted, however, that there was no miscarriage of justice

140. It is clear that, in appeals from Magistrates, even where there is error, a conviction need not necessarily be set aside in cases in which an appeal court, after using the appropriate warnings to itself, may be left in no doubt. As Miles CJ said in Sharrett v Gill (at 326):

A jury must be warned by the judge in strong and enthusiastic terms of the various dangers attendant upon the acceptance of identification evidence and the judge must further point out to the jury all possible points of weakness in that evidence, regardless of whether they have been discovered or mentioned by defence counsel. A magistrate or judge sitting alone must expressly remind himself or herself of those dangers and weaknesses. If not, a conviction based upon such evidence (and, at least in a jury trial, regardless of any other evidence implicating the accused) is liable to be set aside at some stage in the judicial process. In an appeal by way of re-hearing from a magistrate sitting alone where the magistrate has not expressly issued the warnings, the conviction may not necessarily be set aside, as the appeal court, after issuing the warnings to itself, may be left in no doubt.

141. This was confirmed by Gray J in Johnson v Giumelli.

142. In such appeals that approach is well established. See, for example, Fazio v Castledine [2007] WASC 25; (2007) 168 A Crim R 391 and Barry v Police (SA) [2009] SASC 295; (2009) 197 A Crim R 445. This is sometimes said to be the "application of the proviso".

143. Thus, in R v Green [2001] SASC 25; (2001) 78 SASR 463, Doyle CJ (with whom Bleby J agreed), said (at 474; [40] to [41]) by reference to Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250:

1. In the present case, the trial judge gave no such warning to himself. In the case of trial by judge alone, a warning that should be given to the jury by reference to an aspect of the facts of the particular case, should usually be recorded in the reasons of the trial judge, to ensure that the matter giving rise to the need for a warning is not overlooked, and also to demonstrate that the judge has properly directed himself or herself on the facts. The warning should be recorded in the trial judge's reasons even though there is no statutory requirement to that effect: cf Fleming at 263 [31]. The requirement to give reasons will usually include a requirement to give reasons that demonstrate that the requirements of law and practice, applicable to the circumstances of the case, have been discharged: cf Fleming at 263-264 [32]-[33]. If the circumstances of the case call for a warning, then it is necessary for the trial judge to show that the warning has been heeded.
2. It does not follow as a matter of course that a failure to give a warning that should be given will result in the appeal being allowed: Fleming at [32]. Whether the failure to give a warning that should be given will mean that an appeal must be allowed will depend upon whether the failure to give the warning gives rise to a substantial risk of miscarriage of justice. However, usually a failure to give a warning that is required would give rise to a real risk of a miscarriage of justice.

144. In relation to matters of identification evidence and warnings, however, there is some disagreement. In Tatam v Svikart [1999] NTCA 146, Mildren J said (at [10]):

It is clear from the judgment of the High Court in Domican v The Queen, as well as other authorities to which we were referred, that once error has been established by the failure of the learned trial judge or the magistrate to give himself the appropriate warning and to identify relevant weaknesses that need to be considered and taken into account, that amounts to a miscarriage of justice and, therefore, there can be no application of the proviso.

145. Gray J in Johnson v Giumelli (at 473), suggested that this may be stated "too broadly", citing the following passage from Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 (at 566):

... The case is not one where the Court of Criminal Appeal could conclude that the jury must inevitably have convicted the appellant despite the trial judge's failure to direct the jury to consider the specific weaknesses [in the identification evidence].

146. This position has, in turn, been doubted by Southwood J in Dennis v Davis where his Honour referred to the statement of Mildren J in Tatam v Svikart referred to above (at [144]) and then said (at 18-9; [75]-[76]):

The above statement of Mildren J was questioned by Gray J in Johnson v Giumelli. However, in the particular circumstances of Tatam v Svikart it seems to me that the statement of Mildren J is correct and, in any event, it is binding on me. In Domican v The Queen the majority of the High Court stated:

As the learned Acting Chief Justice pointed out, the adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case. But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused. A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused. The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused. Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused.

(Emphasis added.)

In Tatam v Svikart the Northern Territory Court of Appeal expressly did not decide if it was always necessary for a trial magistrate to enunciate the fact that he or she had provided themselves with an appropriate warning about matters of identification evidence. In Fleming v The Queen, in the context of a discussion about whether the trial judge should have given himself a warning of the kind discussed Longman v The Queen, the High Court stated that there may be cases where an examination of the reasons given, although they do not contain express reference to a warning, sufficiently discloses that the judge has had regard to the warning. However, an animating principle which lies behind the requirement of s 33 is that criminal justice not only be done but also be seen to be done. The judgment must show expressly or by necessary implication that the warning was taken into account. It is no answer that the trial judge is an experienced judge who was well aware of the requirement of the warning and that he or she must have taken the warning into account.

(Footnotes omitted).

147. In my view, however, that does not fit the current situation, especially in the light of the provisions of the Evidence Act 1995 (Cth).

148. Thus, in Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, the High Court held that an identification warning under that Act was not mandatory where, for example, identification was admitted and not in issue having regard to the adversarial nature of criminal proceedings. In Gardiner v The Queen [2006] NSWCCA 190; (2006) 162 A Crim R 233, McClellan CJ at CL (with whom James and Simpson JJ agreed), said (at 249; [75]):

It is now settled that, as with the common law, a warning is only required when identification evidence is disputed: Dhanhoa Gleeson CJ and Hayne J at 9; 47; McHugh and Gummow JJ at 16; 53; Callinan J at 26-27; 61-62. Furthermore, as the joint judgment of Glesson CJ and Hayne J in that case makes plain, if a warning is required its content will depend upon the nature of the evidence which has been given and the issues debated at the trial. When evidence is given that a person previously known to the witness was recognised the warning required will be significantly confined.

149. In this case, the evidence was the kind of identification evidence that is known as recognition evidence: R v Taylor (2008) 2 ACTLR 216 (at 218-9; [10]); R v D (2008) 2 ACTLR 225 (at 227; [9]). Ms Hayes had known Mr Connelly for over eight years during which time they lived together and Ms Harrison had known him for about four years, meeting him at least weekly for much of that time.

150. In R v Trudgett [2008] NSWCCA 62; (2008) 70 NSWLR 696, Spigelman CJ (with whom Hulme and Latham JJ agreed) said (at 700-1; [24] to [31]) of such evidence:

1. Recognition evidence is not 'wholly' based on what the witness perceived at the time of the offence. However, it may be 'partly' so based.
2. The distinction between 'recognition' and 'identification' was recognised in Davies v The King [1937] HCA 27; (1937) 57 CLR 170 at 181 where the High Court said in a joint judgment:

It is almost unnecessary to say that the amount of care and the nature of the precautions which should be taken when a potential witness is brought to identify an accused or suspected person must vary according to the familiarity of the witness with that person. It would be ridiculous ... to deny the value or reliability of the identification if the witness' knowledge of the prisoner arose from long and close association or from every day intercourse in business affairs.

1. However, this analysis does not suggest that witnesses cannot err when purporting to recognise a person that they have known intimately and/or for a long time. I note particularly the observations of Lord Widgery CJ in R v Turnbull [1977] QB 224 at 228: 'Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made'. (See also Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 at 667 [55].)
2. I note that the joint judgment in Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 referred to R v Turnbull with approval. (See at 561, fn 18.) Furthermore, consistently with the whole of the analysis in R v Turnbull (at 228) (not just the part I have extracted), the High Court considered a list of relevant circumstances (at 565) which commenced as follows: 'The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified ...' (Emphasis added). This indicates that a warning may be appropriate in a recognition case.
3. The development of the common law with respect to recognition evidence is set out by Redlich AJA, with whom Maxwell P and Buchanan JA agreed, in R v Spero [2006] VSCA 58; (2006) 13 VR 225 at 233 [25]- [30]. His Honour concluded that, on the facts of that case (the complainant had known the applicant for 25 years) no warning was required in accordance with Domican v The Queen. Nevertheless, the requirements of s 116 and s 165 differ from, and in certain respects are stricter than, the directions required by Domican. (See R v Clarke (1997) 97 A Crim R 414 at 424-247.)
4. Plainly, recognition evidence does not suffer from all of the defects of identification evidence. However, it does share with such evidence the danger that a witness will propound his or her conclusion with force and conviction. Furthermore, both forms are also likely to be given special weight by a jury, even where its reliability is dubious.
5. Generally speaking, recognition evidence will be more reliable than identification evidence strictly so called. For example, the displacement effect and the rogue's gallery effect would not appear to be material. That is not, however, sufficient to exclude it from the Dictionary definition and from s 116 as a category. Section 116 does not turn on any issue of reliability (cf s 165).
6. In my opinion, the Crown submission, that recognition evidence does not fall within the definition of 'identification evidence' at all, should be rejected. (See also Gardiner v The Queen [2006] NSWCCA 190; (2006) 162 A Crim R 233 at 247 [68]- [69].)

151. In this case, it seems to me that there was no real dispute that Ms Hayes was able to recognise Mr Connelly's voice; it was not suggested that she was mistaken about who was on the phone but that, rather, she had made up the story. There was some suggestion she may have been mistaken, but it was so faint as to be negligible.

152. The position with Ms Harrison was a little different but, again, it was never suggested that she had mistaken the voice, though some of the cross-examination came quite close to that.

153. Accordingly, while the issue was not absolutely clear cut, it was, in my view the case that in the conduct of the hearing there was no real dispute about the capacity of both Ms Hayes, especially, but also Ms Harrison, to recognise Mr Connelly's voice. The defence case was that they had made up the story that the calls came from Mr Connelly, rather than that they had been mistaken.

154. It seems to me that position was very similar to that in Parker v Espinoza, where Anderson J said (at 340-1):

I think I must look at the evidence for myself and after according due weight to the magistrate's manifest attitude towards the credit of the identifying witnesses, see whether their evidence is of such a quality that it ought to be accepted as sufficiently reliable to sustain a finding of guilt beyond reasonable doubt, notwithstanding its weaknesses and the dangers of accepting identification evidence.

155. I have read the evidence carefully. The starting point is that both witnesses knew Mr Connelly well. Ms Hayes had spoken to him on the phone many times before.

156. While the words said on the phone were brief, they were not simple monosyllables and in some cases quite sufficient for identification that was recognition. I am also mindful that the setting was a tavern, but no evidence was led as to the conditions there.

157. I am mindful that her Honour found Ms Hayes and Ms Harrison truthful witnesses. They certainly were not shaken in cross-examination and their evidence was, by and large, consistent both with themselves and each other.

158. Accepting that even recognition of well-known persons is subject to error and accepting the need to scrutinise identification evidence very carefully, the strength of the identification in this case leaves me in no doubt of Mr Connelly's guilt.

159. While a warning should have been given, it would have been "significantly confined"; probably limited to the fact that the amount of conversation was quite limited, and that people can be mistaken even about the voices of those they know well. In my view, there was no miscarriage of justice. Having carefully read her Honour's reasons, I am not satisfied that a warning would in any reasonable way have likely affected the decision her Honour made.

160. The appeal against conviction must be dismissed.

161. Not much of the appeal was directed to the issue of sentence. Nevertheless, the only real explanation for the offences was that Mr Connelly was excessively drunk at the time. He clearly was an alcoholic. Despite that, he managed to hold down a good job and remain in employment. He was a good father to his three children, the youngest of whom he was supporting financially.

162. The offences were serious in that they constituted a breach of a protection order. The courts have always considered such offences to be serious. As Rares J said in R v Taylor (No 2) [2008] ACTSC 97 (at [2]), a Domestic Violence Order is a very important order to protect persons. Such orders are to be obeyed. These were, however, by no means the most serious of breaches. There was no physical contact. There was a threat, but while it appears to have caused some distress, it did not cause Ms Hayes to report the matter to police at the time; indeed, that only came after the second round of calls. On the evidence of the psychologist, Mr O'Brien, there was no likelihood of the threat being carried out and Ms Hayes appears to have known that; at least she had lived with Mr Connelly long enough to be aware of his personality in this regard.

163. Nevertheless, the conduct was harassing, as agreed. It was, thus, repeated or persistent conduct that is annoying or distressing rather than something that would incite fear. It is clear that persistent phone calls, especially where such contact is not welcome, amounts to harassment: Longfield v Glover [2005] ACTSC 25; (2005) 191 FLR 332 (at 335). Nevertheless, that is what it was.

164. To assert that an offence is serious is not in itself the end of the matter for many offences are serious. In terms of this offence, so far as Ms Hayes was concerned, it was in the lower end of the range of conduct that could constitute the serious offence of contravening a protection order.

165. That it was an offence committed against the same victim as the offences for which the earlier Good Behaviour Orders were made has two aspects. It means that the previous criminal justice and penal response had not been successful and also that Mr Connelly was clearly finding it hard to come to terms with the end of the relationship.

166. He has not rejected rehabilitation. He did attend a series of relationship counselling sessions and the opinion of the author of the Pre-Sentence Report was that there was no further benefit in continuing to attend this counselling. That was the opinion of his counsellor, who thought he did not require "much in the way of therapy".

167. In support of this, there was the time lapse between the offences and sentencing. It is not entirely clear why this occurred, but the offences occurred in March 2008; Mr Connelly was arrested on 14 March 2008 and he was sentenced on 21 January 2009. In that time, he was not subject to any further allegations of any kind so far as the Court was made aware.

168. Mr Connelly's criminal record was not a good one, but mostly consisted of traffic and street offences until the series of offences arising out of the breakdown of his relationship with Ms Hayes. Thus, while it denied him the leniency that a clean record would have provided, it was not yet so serious that condign punishment was needed to ensure that he did not commit dangerous, more predatory or graver offences.

169. Taking these matters into account, it seems to me that her Honour was correct to find that imprisonment was appropriate. Her Honour, however, was in error to have dismissed the option of suspending a term of imprisonment with a Good Behaviour Order to include a community service condition.

170. There are two elements to this. The first is that the sentence for the stalking charge seems to me to have been too severe. The facts show harassing phone calls, but for a closed period. There was an improper entry into the home of Ms Hayes but not while she was there and Mr Connelly had earlier resided there with her. While some of the conduct constituted contraventions of a protection order, these could not be doubly punished. Indeed, in those circumstances, it is arguable that even concurrent penalties would have offended against sentencing principle as set out by the High Court in Pearce v The Queen (1998) 194 CLR 610. In that case, counts 9 and 10 on an indictment were charges of maliciously inflicting grievous bodily harm and of breaking and entering and while in the premises inflicting grievous bodily harm. The court recognised that these were separate offences, necessary to encompass the criminality. The court noted that on the two counts the sentencing judge imposed identical sentences but made them wholly concurrent.

171. McHugh, Hayne and Callinan JJ (with whom Gummow J agreed on this point), said (at 623-4):

The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.

...

Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count.

172. For the stalking charge, Mr Connelly was, taking into account the pre-sentence custody, which his Honour did as he was obliged to do, effectively sentenced to about nine months imprisonment, though more than half was a suspended sentence. Still, that seems severe for the culpability of the particular form of the offences.

173. That a severe, possibly too severe, sentence is imposed does not mean that the next offence needs to be punished as or more severely. The sentences should always reflect the actual culpability of the criminality involved.

174. In my view, looked at in the context of the actual offences and in the context of Mr Connelly's personal and criminal history, it could not be said that the offences were so serious that a suspended sentence with a community service condition was too lenient.

175. Mr Connelly certainly had breached court orders in the case of contravening protection orders and driving while disqualified but he had previously completed a Community Service Order and it appears that previous supervision had not been problematic.

176. In my opinion it was an error to have dismissed from real consideration a sentence of imprisonment fully suspended with a Good Behaviour Order and probation and community service conditions.

177. Accordingly, I uphold the appeal against sentence. That requires me to re-exercise the sentencing discretion: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 (at 160; [130]).

178. Given the passage of time, I need to hear further submissions on sentence and, perhaps, receive further material. I will invite the parties to provide any such material and submissions.

I certify that the preceding one hundred and seventy-eight (178) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the appellant: AP Jones & Co, Lawyers

Solicitor for the respondent: ACT Director of Public Prosecutions