Court of Appeal (Vic)|2011-04-13|Before: Weinberg JA

Milkins v The Queen [2011] VSCA 93 (13 April 2011)

R v Milkins (Unreported, County Court Of Victoria, Judge Chettle, 12 May 2009)

CRIMINAL LAW - Application for leave to appeal against sentence - Total effective sentence 15 years with non-parole period 12 years - Whether fixing of non-parole period of 80% total effective sentence too high - Whether sentence manifestly excessive - Extensive criminal history with few mitigating factors - Offences merited lengthy terms of imprisonment - Questionable prospects of rehabilitation - Need for both specific and general deterrence - Leave to appeal against sentence refused.

1 After a trial that lasted some eight days, the applicant, James Milkins, was convicted in the County Court at Melbourne of nine counts arising out of the commission of four separate armed robberies. He was acquitted of a further six counts on the presentment. The offences in question all took place between March and June 2007.

2 The counts upon which the applicant was convicted, and the sentences imposed for each, are set out in the following table:

Possession of firearm which has been defaced or altered

3 This made a total effective sentence of 15 years. A non-parole period of 12 years was fixed. In addition, it was ordered that any licence that the applicant had to drive a motor vehicle be cancelled, and that he be disqualified from obtaining a further licence for a period of two years, operative from 12 November 2020.[1]

4 The applicant now seeks leave to appeal against both conviction and sentence.

5 Put simply, the Crown alleged that the applicant was one of two men who carried out armed robberies at three separate gaming venues in Melbourne. These offences were committed on:

12 March 2007 (the Boundary Hotel at Bentleigh East);
6 May 2007 (the Rosstown Hotel at Carnegie); and
27 June 2007 (the Blackburn Hotel in Whitehorse Road).

6 The Crown further alleged that, on 20 May 2007, the applicant, this time acting alone, robbed the Boundary Hotel at Bentleigh East for a second time.

The first Boundary Hotel robbery (counts 1 and 2)

7 In the early hours of 12 March 2007, at about 5:30 a.m, two masked men shattered the glass doors to the Boundary Hotel at Bentleigh East, using a rock to effect entry. One of them, said to have been the applicant, was armed with a .38 calibre Smith & Wesson revolver. The men threatened one of the hotel employees, a Ms Cecilia Martin, demanding that she open the safe located in the strong room. They took some $22,000 in cash from the safe, as well as a number of coins from a coin hopper which was situated in the gaming room. The money was put into a pink carry bag which they had brought with them. The two men then fled the scene.

8 A woman named Ida Luppino was called as a witness by the Crown. She said that, in March 2007, she was living in an apartment in Burwood Road Hawthorn and that the applicant was her boyfriend at the time. She said that he would, from time to time, stay with her at the flat.

9 Ms Luppino said that, on the morning of 12 March 2007, the applicant arrived at her flat. He had in his possession a large amount of cash which he counted out in her presence. It came to some $10,000.

10 After the applicant was arrested, the police seized several of his mobile phones. These contained a number of photographic images. Among them were several which Ms Luppino said had been taken at her apartment. She was able to identify her cat in one of the images as well as recognising her carpet. She said that the cash shown in the photographic image looked like the money that the applicant had counted in her presence.

11 Ms Luppino was then taken to another photographic image which showed a firearm that she recognised as having been brought by the applicant to her apartment. She recognised a bracelet that belonged to the applicant in that photograph.

12 According to Ms Luppino, the applicant had moved out of her unit in May or June 2007. She said that the applicant telephoned her on 23 June 2007 and arranged to collect his bed and his television set. She said that she would leave them downstairs in the apartment car park. He collected these items on the following day. He was driving a Volkswagen Polo which, Ms Luppino said, he had told her he had purchased several days earlier.

13 Early on the morning of 6 May 2007, two men robbed the Rosstown Hotel in Carnegie. The circumstances surrounding the robbery were very similar to those involving the first Boundary Hotel robbery. The man said by the Crown to be the applicant's accomplice was armed with an axe which he used to smash the glass door to the premises. The applicant was said to have been armed, as in the first Boundary Hotel robbery, with a .38 calibre revolver. He wore a dark beanie with the eyes cut out of it.

14 On this occasion, the two men threatened Ms Sandra Drysdale, the gaming supervisor at the Rosstown Hotel, forcing her into the office where the takings were kept. They stole a large sum of cash which they deposited into a black garbage bag. As the man said to be the applicant ran from the premises, his revolver discharged, accidentally it would seem. A fragment of the bullet from his weapon was subsequently found in the foyer of the premises.

15 Forensic evidence was led at the trial to the effect that the bullet found at the Rosstown Hotel had been fired from the same .38 calibre revolver as was subsequently seized from the applicant when he was arrested, almost two months later, on 27 June 2007.

The second Boundary Hotel robbery (counts 5 and 6)

16 It was alleged that, on the morning of 20 May 2007, the applicant returned to the Boundary Hotel in Bentleigh East. On this occasion he was alone. According to the Crown, the applicant was once again armed with a .38 calibre revolver. He gained entry to the premises by smashing the glass door with a large rock. He ran into the gaming area and, as in the course of the first Boundary Hotel robbery, menaced Ms Martin with his revolver. He demanded that she put the cash (some $25,000 - $30,000) into a green enviro-bag which he was carrying. He then ran from the premises.

17 I interpolate to say that it is, perhaps, an odd feature of this case that this was actually the third time that the applicant was said to have robbed the Boundary Hotel. In 2004, he was sentenced to a term of imprisonment for having robbed that hotel. On that occasion, the applicant, in company with two accomplices, stole some $66,525 in cash. One of the applicant's two accomplices was Christian Karpinski, the same man who robbed the Blackburn Hotel with him, which was the subject of count 14 in the current presentment. The 2004 robbery was carried out in basically the same way as the four robberies that were the subject of the instant counts.

18 The Crown, of course, did not lead evidence of the applicant's 2004 robbery at the Boundary Hotel. However, the fact that he had previously committed exactly the same type of offence at the same hotel was noted during the course of the plea.

19 On either the evening of 26 June 2007 or early the following morning, a blue Mazda 626 motor car was stolen from where it was parked in Walter Street, Mitcham. In the early hours of 27 June 2007, this vehicle was used by the applicant and Karpinski to rob the Blackburn Hotel in Whitehorse Road.

Blackburn Hotel robbery (counts 12, 14 and 15)

20 The evidence of the applicant's guilt of the robbery of the Blackburn Hotel was quite overwhelming.

21 Moments before the Blackburn Hotel was robbed, the applicant and Karpinski were seen by Messrs McLean and Guiney, two police officers who were then engaged in general surveillance, to be driving the Mazda 626 which had been stolen either earlier that day or on the previous night. The applicant and Karpinski appeared to be 'casing' the premises. They then pulled up near the entrance to the bottle shop and alighted from the vehicle.

22 Karpinski was armed with a welder's chipping hammer. He used that implement to smash the locked safety glass automatic doors to the gaming area. Both men then entered the venue. The applicant, who was armed with a Smith & Wesson revolver, fired a single shot into the glass automating doors causing them to shatter. This allowed them entry into the gaming room, where two female employees were seated. Karpinski entered the office where the cash was kept and began loading it into a bag. A few seconds later, the applicant joined him and helped load the bag with cash.

23 Seconds before he went into the cash office, the applicant fired a shot from his Smith & Wesson revolver. That shot, which may have been accidental, was nonetheless fired in close proximity to one of the female staff members. After taking approximately $40,000 in cash, the two men raced out of the hotel and escaped in the Mazda 626.

24 Both men then drove to the home of Karpinski's deceased grandmother in Alberta Street, Box Hill North. They parked the Mazda 626 in the garage. They were then seen by police to be burning the clothes which they had worn during the armed robbery.

25 Moments later, the two men were arrested by the Special Operations Group as they attempted to climb over the back fence of the Alberta Street premises. At the time of his arrest, the applicant was armed with what the Crown alleged was the .38 calibre Smith & Wesson revolver that he had used throughout all of the robberies that he had committed. The Crown said that this was the same revolver as the applicant had in his possession in March 2007, at Ms Luppino's apartment, when he took the photographs of the cash spread on the floor.

26 An examination of the weapon seized from the applicant showed that the serial number had been welded over.

27 Bullet fragments from the two rounds that had been fired during the Blackburn Hotel robbery were forensically examined. It was established that they had been discharged from the .38 calibre Smith & Wesson revolver found in the applicant's possession at the time of his arrest.

28 To compound the applicant's difficulties, a quantity of gunshot residue was detected on his hand shortly after his arrest.

29 The applicant formally admitted during the course of the trial that he had been, at all relevant times, a prohibited person under the Firearms Act 1996. He also formally admitted that the Smith & Wesson revolver found in his possession was not a registered firearm.

30 In addition to the evidence that was led in relation to each individual robbery, the Crown relied upon a body of circumstantial evidence that was said to be of general application.

31 This included evidence that, although the applicant had been unemployed for some considerable time, he was able to purchase, on 6 June 2007, a Volkswagen Polo motor vehicle for the sum of $23,500 in cash, most of it in notes of small denomination.

32 The Crown also relied upon photographic and forensic evidence to the effect that the applicant had been in possession throughout the entire period of the robberies, March to June 2007, of the very same Smith & Wesson revolver.

33 In addition, the Crown pointed to the photographic evidence showing that the applicant had been in possession of about $10,000 in cash on the very morning of the first Boundary Hotel robbery. That amount, incidentally, came to about half the sum that had been stolen from the Boundary Hotel, and was consistent with a division of the spoils between two offenders.

34 Finally, and importantly so far as this application is concerned, the Crown relied upon the similar fact doctrine in order to establish the identity of the applicant in relation to all of the robberies. That is a matter to which I shall shortly return.

35 There were originally eight grounds in support of the application for leave to appeal against conviction, but grounds 3, 4 and 6 were expressly abandoned.

36 However, during the course of oral submissions, counsel who appeared for the applicant before this Court sought leave to add an additional ground not previously raised. The Court allowed argument to be advanced in support of that ground, but reserved its decision as to whether leave to amend would be granted.

37 Ground 1 contends that the trial judge failed in four quite separate ways to charge the jury adequately as to the burden and standard of proof. The applicant submits that his Honour ought to have done, but did not do, the following:

refer specifically, in his charge, to the 'presumption of innocence';
refer, in terms, to the fact that the applicant 'did not have to prove anything';
impress upon the jury that the standard of proof represented by the words 'beyond reasonable doubt' is a 'very high one' or 'the highest standard known to the law'; and
assist the jury in its understanding of the criminal standard of proof by contrasting that very high standard with the lower standard of proof applicable in civil proceedings.

38 In my opinion, these contentions are without substance.

39 In the first place, the trial judge, in his opening remarks to the jury, referred specifically, and in terms, to the presumption of innocence. Although he did not use that expression again when he finally came to charge the jury, he did state, a number of times, that the Crown, having brought these charges, bore the onus of establishing each and every element in every one of the offences charged. He also made it abundantly clear that the standard of proof to which the jury must be satisfied was that 'beyond reasonable doubt'. In my view, his Honour was not obliged to do more.

40 The following passages from the trial judge's charge illustrate just how thoroughly the jury were instructed as to both the burden of proof, and the standard that the Crown had to meet:

The onus, or burden of proof, the task of proving that, rests upon the Crown and remains on the Crown at all times. A verdict of not guilty means either, as you have just been told by Mr Langslow, that you believe the accused is innocent, or you are not satisfied that the accused is guilty.

The standard to which you must be satisfied is a high one. It is expressed in words which reflect our understanding of the serious nature of the work of a criminal court. Those words are, beyond reasonable doubt. They are words which have been applied by juries in criminal courts for many years. They mean what they say, and any further definition of them would be neither useful, nor proper. If, at the end of your deliberations your state of judgment is, I am satisfied beyond reasonable doubt by the evidence, that the accused is guilty of the particular count you are considering, your proper verdict is guilty. If, on the other hand, your state of judgment is, I am not satisfied by the evidence beyond reasonable doubt that the accused is guilty of that particular charge, your verdict should be not guilty.

Before you draw any inference adverse to the accused man in this trial, you have to be satisfied beyond reasonable doubt of two things. Firstly, the facts you are relying upon to draw the conclusion, have been established to your satisfaction beyond reasonable doubt, and secondly, that the conclusion you draw from those established facts, is the only reasonable conclusion open. You will see that that is consistent with the rule that proof of guilt means proof beyond reasonable doubt, and proved by the Crown.

and (in describing the process of drawing inferences by reference to a hypothetical example about flying interstate):

So, come back to my criminal trial. Before you draw any inference adverse to an accused man, you must be satisfied the facts, the boarding pass, the bag, the Melbourne, the Sydney, those facts have to be established beyond reasonable doubt, and the conclusion I come to that he flew Qantas, up the front, has to be the only reasonable conclusion open. That is the process of drawing inferences, and it has particular relevance in this case as well, simply because this is a circumstantial case in a large respect, and I have to give you some directions in relation to that.

A circumstantial case, in essence, involves the following proposition; a whole heap of facts are proven to you and you have had evidence from all over them, and from those facts it is said that certain conclusions can be inferred. Before you draw any inference based upon that circumstantial case, adverse to the accused man, you have to be satisfied beyond reasonable doubt that the fact is established, before you use it, and satisfied beyond reasonable doubt that the conclusion from the various facts, is the only reasonable conclusion. The obvious examples that stare in this case, is there is no doubt you might have thought and no argument that there were five armed robberies, and it is said that there are similarities in the armed robberies that should lead you to conclude that the same people carried it out, just taking that for a start off.

You would have to be satisfied beyond reasonable doubt of the existence of the facts that you are relying upon to come to such a conclusion, and you would have to ask yourself, is that the only reasonable conclusion open on the facts? You have just heard both counsel say to you, Mr O'Doherty say, yes it is, you should be satisfied beyond reasonable doubt that it is the same people, and indeed that it was the accused man, and Mr Langslow say, how could you because of all the differences? That is where the battle ground lies in this case, is to whether to not you can be satisfied beyond reasonable doubt that the conclusion the Crown has asked you to draw, that it was the accused man at each of the robberies carrying the pistol, is the only reasonable conclusion open in this case. That is really why inferences are so important, and I will come back to it because it is so important.

The accused and the Crown are entitled to a separate consideration, by you, of each charge. Just because, for example, hypothetically you were to find the accused man guilty in respect of one charge, it does not mean, of course, that he is guilty of the rest. And just because you were to find him not guilty of one charge, does not mean he is not guilty of the others. Each count has to be considered in the light of the evidence that applies to it, and you ask yourself in respect of each count individually, does the evidence relating to this charge, satisfy me beyond reasonable doubt of his guilt?

If it does, you convict him. If it does not, you do not, you find him not guilty.

Nothing I say in relation to this subject detracts from the onus of proof being on the Crown and the Crown bears the onus of establishing on each separate count the guilt of the accused man beyond reasonable doubt.

Before you draw any adverse inference to him I will remind you against him you must be satisfied beyond reasonable doubt it is the only reasonable inference you could draw from those established facts.

41 A judge's charge to a jury should not be regarded as some form of mantra, to be recited verbatim from an approved script. A judge must, of course, make it clear that the Crown has the onus of establishing each and every element in every offence charged.[2] The judge must explain to the jury, in effect, that the onus of proof identifies the party who is obliged to establish a fact, and who will bear the legal consequences of a failure to do so.[3] There is, however, no rigid formula by which that instruction must be given.

42 The judge must also make it clear to the jury that the Crown is required to establish guilt 'beyond reasonable doubt'. It has been said repeatedly by the High Court that it is a mistake to depart from this time-honoured formula.[4] There are examples of cases where convictions have been quashed because judges have attempted to substitute other expressions for the term 'beyond reasonable doubt'. As a general rule, absent a specific reason why elaboration may be required, it should be avoided.

43 That is not to say that a trial judge should not tailor his or her charge to the demands of the particular case. It may be that, in a given case, a judge believes that it will be helpful, in explaining that the onus of proof rests upon the Crown, to use the expression 'presumption of innocence'. There is, of course, no reason why a judge should not do so. Nor is there any reason why a judge should not tell the jury that, in a criminal trial, the accused is not obliged to prove anything. Indeed, as will be seen, the Victorian Criminal Charge Book ('Charge Book') recommends such a direction.

44 It is a fact that juries in this State are often told that the standard of proof in a criminal trial is 'a very high one'. Sometimes they are also told that it is the 'the highest standard known to the law', and some judges consider it helpful to go on and contrast that standard with the lesser standard that applies in civil cases.[5]

45 The Charge Book itself contains the following recommendation as to what constitutes a conventional direction on the onus and standard of proof:

I want to emphasise again that under our justice system people are presumed to be innocent, unless and until they are proved guilty. So before you may return a verdict of guilty, the prosecution must satisfy you that [each of] the accused is guilty of the charge[s] in question. The accused does/do not have to prove anything.

The prosecution must do this by proving [each of] the accused's guilt of the charge[s] beyond reasonable doubt. As I have told you, these words mean exactly what they say - proof beyond reasonable doubt.

The prosecution does not need to prove every fact that they allege to this standard. It is the essential ingredients or "elements" of the charge[s] that they must prove beyond reasonable doubt. I will explain these elements in detail in a moment.

...

It is only if you are satisfied that the prosecution has proven all of the elements of a charge [and disproved all defences] beyond reasonable doubt that you may find the accused guilty of that charge. If you are not satisfied that the prosecution has done this, your verdict must be "Not Guilty".[6]

46 It is possible, and perhaps likely, that ground 1 is based, at least in part, upon the disconformity between the trial judge's charge to the jury as regards the onus and standard of proof, and the recommended format of the direction contained in the Charge Book. If that is indeed the basis upon which the ground was drawn, it rests upon a misconception.

47 It is worth remembering what was said by Hayne J, in that regard, in Tully v The Queen: [7]

Because the criminal law has become as complex as it now is, "bench books" of standard forms of instructions to the jury are readily available for the assistance of trial judges. Properly used, such books are invaluable. But there is a risk that the prescription of common forms of instruction, which must necessarily be framed without reference to specific facts, and thus in abstract terms, will be used without relating them to the issues that the jury has to decide. The proper use of standard forms of jury instructions requires the judge first to identify what are the real issues in the case, then to identify the relevant instructions that are to be given to the jury and then, and most importantly, to instruct the jury by relating the standard form of instruction to the real issues in the case. The bare recitation to a jury of the relevant sections of a bench book of standard instructions, unrelated to the real issues in the case, does not fulfil the trial judge's task.[8]

48 The law on this point is perfectly clear. A judge is not obliged, when directing a jury as to the onus of proof, to use the term 'presumption of innocence'. Nor is a judge bound to say to a jury that the accused 'need not prove anything'. The critical requirement is that the jury be given a clear direction as to the onus of proof. That can be done without using either of these formulae.

49 It may be useful, in some cases, for the trial judge to go further. It may be of assistance to the jury to refer to the 'presumption of innocence'.[9] It may help a jury to understand the onus of proof to emphasise that the accused need not prove anything. However, failure to say either of these things does not, of itself, give rise to a miscarriage of justice.

50 The same can be said of the references in the Charge Book to the standard of proof. It is certainly not erroneous to provide the full direction set out as the recommended charge in the Charge Book. Indeed, it may be 'good practice', as the Charge Book observes, to convey to the jury that the criminal standard of proof is the highest standard of proof known to the law, and that it can be contrasted with the lower standard of proof applicable in civil proceedings.[10] However, a departure from what is said in the recommended charge will not, of itself, signify that there has been a failure to direct the jury adequately.[11]

51 In my opinion, the trial judge's charge to the jury in the present case was perfectly adequate with regard to both the onus and standard of proof. However, that is not the end of the applicant's difficulties. He faces an additional hurdle in relation to ground 1. That is because his counsel at trial (a vastly experienced advocate in criminal matters) did not take any exception to his Honour's charge regarding this, or any other aspect of that charge. That is obviously a matter of considerable significance.

52 Regrettably, this is yet another case in which a ground is sought to be relied upon in this Court which raises a new point never taken below, and obviously not considered to be of any significance in the context of the trial itself. It should be understood that, whatever latitude may have been afforded in the past, this Court will not readily entertain points of that kind.

54 This ground complains of his Honour's directions to the jury as to the evidence of the two police witnesses, McLean and Guiney, who purported to identify the applicant as the driver of the stolen Mazda 626 shortly before the Blackburn Hotel robbery was committed.

55 The trial judge gave the jury the following warning regarding identification evidence:

Ladies and gentlemen, I want to turn now to the evidence if [sic] identification of Mr Guiney and Mr McLean, both of whom gave evidence that on 27 June in the vicinity of the Blackburn Hotel, they purported to see the accused man driving the motorcar.

...

The history of the law reveals that evidence of personal identification of the accused by witnesses for the Crown should be treated very carefully. Such evidence is frequently given with confidence by respectable and honest witnesses who are nonetheless later found to have been wholly mistaken. Because they are respectable, honest and confident, courts are inclined to accept their evidence forgetting that human observation and recollection are infinitely fallible and that the expression: "That's the man I saw" can never be anything more than: "I believe that's the man I saw." Remembering this, I warn you that no matter how confident a witness may appear, you should scrutinise his evidence, the evidence of both the witnesses I have referred to most carefully before basing a conviction of the accused upon it. Of course, that sometimes such evidence is obviously correct and accurate and reliable. The difficulty is determining when it is and when it is not.

What I am really doing is giving you a judicial warning that people have been absolutely certain and absolutely wrong in cases of identification. We have all probably had the example of, we see someone we think we know, we walk up to them and then we realise it is not them just before we speak to them.

So a number of factors you should take into account in considering that evidence, is the witness identifying someone well known to them or someone that they have never seen before? If you know somebody really well, you are more than likely to get it right than wrong but not necessarily then, even. I think the evidence here was that Mr McLean did not know the accused beforehand, this is the first time he saw him that night and that Mr Guiney claimed to have seen him on other occasions, had been following him as you recall on earlier days and been watching him.

You should ask yourself the following questions. What opportunity did the witness have to make the observation that he did? What was the light like at the time? How much time was there to make the observation? Were we talking about seconds? Fractions of seconds or more? What part of the person identified was presented for view? How much of him could he see? In the case of Mr McLean, you know that the accused was allegedly in the seat in a motorcar moving at night, and you will remember what Mr Langslow put to you and asked, it is a matter for you to consider, whether or not you can see properly in across areas in to darkened cars and the like, and things of that sort. Did he just see his face or was it some other part of him he could see? Were there any intervening or distracting movements of traffic or people or things around at night that might have obstructed the view? Was each of them, I mean you have got the position from Mr Guiney, he is across the other side of the road, does the distance affect his view? Did the binoculars help? All of these factors you have got to consider.

You would ask yourself whether the witness was under any stress at the time. And if he was, what sort of effect that would have on him. And I think I raised that before in relation to people and their observations when they are under stress in an armed robbery, they might not see too much but were there any factors like that operating on the witness at the time that he made his identification. You have to consider the possibility that Mr Langslow put, ask yourself whether this is - he said to the policeman: "Look, really what happened is that you went backwards really. You caught Milkins at the address in Box Hill and so you went back and put him in the car because you caught him there." Police officer said that was not true but you could still consider it and assess whether or not that has any legs.

Has the witness been tested previously in relation to identification? It would appear not. There has been nothing, there has been no testing of the identification. He says both witnesses simply made it by observing the accused.

You should look finally then, at evidence of personal identification carefully. And you should look at all the other - look around perhaps to see whether there is other evidence that supports the identification. They do not stand on their own. Is there anything else that points to the identification being correct?

I should say too, the fact that both Guiney and McLean identified the accused, each have to be looked at separately and two defective identifications do not necessarily support each other. The fact that one identifies him does not mean that the other must be right. You have got to take into account the lighting and remember, as a matter of law I am telling you, people get it wrong all the time. We do, policemen do, anyone can and you have got to consider that when you assess the evidence of the two police officers in relation to the identification of the accused man.

56 Once again, as with ground 1, counsel who appeared at the trial took no exception whatever to this aspect of his Honour's charge. That makes this ground all the more difficult to sustain.

57 In the submission filed in this Court on behalf of the applicant, the argument reduced to one which complained of his Honour's observation midway through his direction, that 'sometimes ... [identification] evidence is obviously correct and accurate and reliable'. It was submitted that by making this balancing comment, his Honour impermissibly diluted the force of what should have been an entirely unqualified warning.

58 In my opinion, this contention cannot be accepted. The balancing comment, if that is how it is viewed, was no more than a throwaway line which stated nothing more than a truism. It did not detract from the strength of the warning given as to the dangers of mistaken identification. The jury would not have regarded it as having done so.

60 This ground complains of a failure to give a 'propensity warning' when directing the jury to give separate consideration to each count on the presentment.

61 The trial judge said this to the jury regarding the need for separate consideration of each count:

The accused and the Crown are entitled to a separate consideration, by you, of each charge. Just because, for example, hypothetically you were to find the accused man guilty in respect of one charge, it does not mean, of course, that he is guilty of the rest. And just because you were to find him not guilty of one charge, does not mean he is not guilty of the others. Each count has to be considered in the light of the evidence that applies to it, and you ask yourself in respect of each count individually, does the evidence relating to this charge, satisfy me beyond reasonable doubt of his guilt?

If it does, you convict him. If it does not, you do not, you find him not guilty.

The Crown says, therefore, you should be satisfied the accused is guilty of any one of these offences because the pattern shows him to be involved in all of them and you work backwards, to some extent, from if you are satisfied beyond reasonable doubt it was him in the Blackburn for example, you can take it backwards from there and say "It is him in the others." That is the logic the Crown ask you to apply. Bear in mind I have told you that you need to consider every count separately in a context of the evidence that relates to it. You are entitled to look at the totality of the evidence and see whether there are striking similarities between the transactions and so striking that they could not reasonably have arisen by coincidence and does that indicate that the same person was responsible for each transaction.

It is important that you recall in relation to that that you do not say, even if you did find and were satisfied beyond reasonable doubt that he was involved in the last one, the Blackburn Hotel, that does not mean that he was therefore necessarily guilty of the others. It is not a domino, I think is the word used by Mr Langslow, but it is not one in, all in. You need to say, "Even if I am satisfied beyond reasonable doubt in relation to The Blackburn Hotel, where does that fit in the picture and can I still be satisfied beyond reasonable doubt that he was the perpetrator in relation to the others?"

63 It is true, as the applicant contends, that his Honour did not give the jury what is sometimes described as the classical 'propensity warning'. That warning has a number of components. These are fully discussed in the authorities.[12]

64 Where the warning is given, it involves telling the jury that evidence of this kind is introduced for a limited purpose, and identifying what that purpose happens to be. It invites the jury to scrutinise the evidence with great care before placing any reliance upon it. It requires the jury to be told that they cannot reason from a finding that the relationship, tendency or motive (as the case may be) has been established, to a conclusion that the accused is the type of person likely to have committed the offence charged, and that the accused is therefore guilty.

65 However, even though propensity evidence may have been admitted, as for example where the evidence falls within the similar fact doctrine, a propensity warning is not always necessary.[13] For example, it is well established that in a case involving a multiple count presentment where cross-admissibility may be an issue, but with no reliance being placed upon uncharged acts, a 'separate consideration' warning may sufficiently protect against the risk of the jury reasoning in an impermissible manner.[14] Indeed, where the Crown does rely upon cross-admissibility of multiple counts, a propensity warning might be confusing, and perhaps misleading.[15]

66 Though the trial judge did not give a classic propensity warning in the present case, what he did say to the jury amounted to what is sometimes termed an 'anti-substitution' warning.[16] He told them that, even if they were satisfied that the applicant had committed the Blackburn Hotel robbery (to which, I interpolate, the applicant had no realistic defence), they should not assume from that finding alone that he must therefore have committed one or all of the earlier robberies. His Honour also gave a traditional 'separate consideration' direction.

67 The jury plainly understood his Honour's instructions in that regard. That is apparent from the fact that they acquitted the applicant of one of the five robberies with which he was charged.

68 It is important to note that the trial judge was not asked by counsel who appeared at the trial to give a 'propensity warning'. That was hardly surprising in light of the fact that his Honour gave a detailed and comprehensive 'separate consideration' warning as well as the 'anti-substitution' warning to which I have referred. In the circumstances, there was no miscarriage of justice.

70 This ground alleges that the trial miscarried by reason of an aggregate of the errors alleged in grounds 1, 2, and 5.

71 There having been no error of any kind established in any of grounds 1, 2, or 5, ground 7 cannot succeed.

72 This ground contends that the verdicts on counts 1, 2, 3, 5, and 6 are unsafe and unsatisfactory. Where such a ground is relied upon, the question to be asked by this Court is that set out in M v The Queen,[17] namely whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. It is important to bear in mind, in a circumstantial case, that it is the whole of the evidence that must be considered, and not particular parts of the evidence viewed in a piecemeal fashion.[18]

73 In answering the question posed by this ground, the Court must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses. If, after making due allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then this Court is bound to set aside the verdict.[19]

74 At least in relation to those counts now impugned by this ground, the case brought by the Crown was essentially circumstantial. That does not mean that it was necessarily deficient in any particular respect.

75 In part, the Crown relied, in support of its circumstantial case, upon the evidence that applied across the board to all of the robbery counts. As I have previously indicated, the applicant was, throughout the period March to June 2007, unemployed. However, on no fewer than three occasions, each of them proximate in time to the commission of a robbery, he was seen to be in possession of a large amount of cash. In addition, as previously noted, there was evidence upon which the jury were entitled to act that throughout that entire period he had in his possession a .38 calibre Smith & Wesson revolver. There was forensic evidence that the same weapon was used in both the Rosstown Hotel and Blackburn Hotel robberies.

76 In addition to the circumstantial evidence relating to each individual count, there was also the identification evidence of the two police witnesses relating to the Blackburn Hotel robbery.

77 The Crown also relied upon what it described as a 'pattern of similar behaviour' across all of the counts of robbery. In effect, the Crown relied upon the similar fact doctrine, in its traditional and classical sense, as part of its overall case. It argued that the jury could, if satisfied that the circumstances surrounding the robberies were 'strikingly similar', and if also satisfied that the applicant had committed at least one of those robberies, use that finding as support for the circumstantial case that the Crown put forward.

78 In that regard, the Crown pointed to a number of features that were said to render these robberies sufficiently distinctive to enable evidence that the applicant had committed one of them to be used when considering whether he was also responsible for the others. In particular, the prosecutor at the trial invited the jury to conclude that there was 'striking similarity' on the basis that:

all of the robberies with which the applicant was charged took place at gaming venues;
they all involved 'soft targets', namely defenceless staff who, as it happened, were female;
they all took place in the early hours of the morning, just after closing time, and shortly before members of the public began arriving for the day's gaming;
entry to the gaming area, on each occasion, was effected by smashing open glass doors;
the robberies all occurred at a time when security guards who were normally present were off duty;
a revolver was used in every robbery;
shots were fired on a number of occasions;
the video footage indicated that the same offenders appeared to have carried out all of the robberies;
the disguises that were worn by the offenders at each robbery appeared to have been home made;
the methodology employed in each robbery appeared to be essentially the same. On each occasion, the demands that were made were couched in similar terms, and it was significant that in every case the offenders asked about the location of security staff; and
the robberies were committed with extraordinary efficiency and speed.

79 Assuming, as I have for the purpose of considering this ground, that the similar fact doctrine was properly available to the Crown, and having regard as well to the circumstantial evidence that tended to identify the applicant as the offender in relation to each of the robberies, I am not persuaded that any of the convictions on counts 1, 2, 3, 5, or 6 should be regarded as unsafe and unsatisfactory.

80 In my opinion, the Crown was entitled to rely upon the similar fact doctrine in support of its case against the applicant. The features associated with each of the robberies were, when taken together, sufficiently distinctive to allow for that mode of reasoning.

81 It is true that a number of the features associated with each of the robberies that were identified by the Crown, and upon which it relied as the basis for invoking similar fact reasoning, were relatively commonplace. One would hardly be

surprised to find that a firearm was brandished during the commission of a planned and highly professional armed robbery.

82 On the other hand, it was a singular feature of all of these robberies that they involved gaming venues that were attacked in the early hours of the morning. The use of a rock, or other object, to smash a glass door was also distinctive. The manner in which each robbery was carried out was broadly the same. So too was the appearance of the two offenders in relation to the first Boundary Hotel robbery, the Rosstown Hotel robbery and the Blackburn Hotel robbery.

83 Nor can it be forgotten that the Boundary Hotel was robbed on two occasions, within a relatively short period, in circumstances that made it highly likely, in my view, that the same offender was involved each time.

84 Once again, it should not be forgotten that not only was a revolver used in all of the robberies, it was actually discharged in two of the four robberies for which the applicant was convicted.

85 In my opinion, the Crown clearly established the connection between the Blackburn Hotel robbery and the Rosstown Hotel robbery. I emphasise again that the revolver found in the applicant's possession when he was arrested, caught virtually red handed after the Blackburn Hotel robbery, was used both in the commission of that offence and in the commission of the earlier Rosstown Hotel robbery. Moreover, the same weapon was photographed in the possession of the applicant in Ms Luppino's apartment.

86 When one adds to this substantial body of evidence the testimony of Ms Luppino, the photographs of the cash taken in her flat, the gunshot residue detected on the applicant's hands when he was arrested, and the cash found in his possession at that time, the circumstantial case presented by the Crown can be seen to have been extremely powerful.

87 The strength of the Crown case was effectively conceded by counsel who appeared at the trial. During the course of the plea the following exchange took place:

HIS HONOUR: It was a very strong case, wasn't it, from the Crown point of view?

MR LANGSLOW: Well, the Crown had a good deal of evidence, Your Honour.

HIS HONOUR: All right, put it that way.

88 It is somewhat curious, in light of that response, that this Court was pressed to accept a ground of appeal which contends that the evidence in support of some of the counts was so weak as to render the verdicts on those counts unsafe and unsatisfactory. In truth this was, in almost every respect, an overwhelming case.

90 During the course of oral submissions, counsel who appeared for the applicant before this Court sought leave to amend the proposed grounds of appeal by adding an additional ground. That ground was, in substance, that the trial judge erred in directing the jury that they could use the evidence in relation to any single count when considering the evidence in relation to other counts. In other words, there was a challenge to the Crown's reliance upon similar fact reasoning, and to his Honour's decision to leave similar fact reasoning available to the jury for their consideration.

91 It must be said at once that no such point was taken at trial. No complaint of that kind was ever included in the grounds of appeal, whether as initially formulated, or in their final form by way of full statement. No mention is made of any such ground in the written submissions filed on behalf of the applicant. No notice of any kind was given to the Crown of an intention to rely upon such a ground until the morning upon which the matter first arose in this Court. Indeed, the point only became apparent when counsel sought to rely upon this argument as an adjunct to existing ground 8. Plainly, any such reliance would be misconceived, as counsel for the applicant freely conceded.

92 The applicant was permitted to develop the proposed new ground, and the Court indicated that it would reserve its decision as to whether to extend time and allow the grounds to be amended.

93 Having now heard and considered the arguments advanced in support of this proposed new ground, I would refuse leave to amend.

94 In my opinion, and largely for the reasons set out in dealing with ground 8, it was properly open to the Crown to invoke the similar fact doctrine in relation to these various robberies.

95 The facts of this case fit comfortably within the authorities that deal with the admissibility of such evidence, or perhaps more accurately, the cross-admissibility of evidence of this kind. This trial was conducted before the Evidence Act 2008 ('new Act') came into force. Accordingly, the common law as to similar fact evidence, as modified in this State by statute,[20] governed the application of this doctrine during the course of this trial.

96 It may be that, under the former evidentiary regime that applied in this State, the threshold for admissibility under this doctrine was higher than it presently is in relation to 'tendency' and 'coincidence' evidence under ss 97 and 98 of the new Act. Nonetheless, irrespective of whether that was so, the threshold was met in this case.

97 If I am wrong about that, I would still refuse leave to amend. The Crown submitted, correctly in my opinion, that even assuming that the threshold for cross-admissibility was not met, the case against the applicant was so overwhelming in all respects that a conviction was inevitable. The Crown invited this Court to invoke the proviso, if necessary, to sustain the conviction on the basis that it had established that no substantial miscarriage of justice was done.

98 The proviso continues to apply to this case because the applicant was sentenced before the Criminal Procedure Act 2009 came into force. In the circumstances of this case, I would have no hesitation in invoking the proviso were it necessary to do so.

99 Leave to amend by adding proposed ground 9 should be refused.

100 A total effective sentence of 15 years with a non parole period of 12 years is, of course, a severe punishment. In my opinion, however, a sentence of that severity was entirely warranted.

101 The four robberies of which the applicant was convicted were all serious examples of what must be viewed as a very serious offence. Each robbery was carefully planned and professionally carried out. The amounts stolen were substantial. Shots were fired during the course of two of the robberies. Not surprisingly, the Victim Impact Statements indicated that employees who were present at the time were traumatised by what took place.

102 The applicant has a lengthy criminal record which includes convictions for armed robbery. To make matters worse, the current offences were committed while he was still on parole for two previous armed robberies, one of them involving the very same gaming venue that he twice robbed in this case. That hardly speaks well of his prospects of rehabilitation.

103 The applicant pleaded not guilty to all counts, electing to contest even those relating to the Blackburn Hotel robbery. That was an offence to which he had no conceivable defence. He of course evinced no remorse for his wrongdoing.[21]

104 Plainly, these offences merited lengthy terms of imprisonment. I am unable to accept the submission that any of the individual sentences imposed in this case fell outside the permissible ambit of a sound exercise of sentencing discretion. A sentence of 7 years and 6 months' imprisonment for an armed robbery committed in circumstances such as these cannot be regarded as beyond what is legitimately available as a sentencing disposition. Nor am I persuaded that the total effective sentence of fifteen years was manifestly excessive. There had to be a significant measure of cumulation, always bearing in mind the totality principle.

105 In short, these were offences of the utmost gravity, committed by an offender with a terrible criminal history who had little to call in aid by way of mitigation.

106 The applicant contends that the non-parole period of 12 years was itself excessive. He notes that this figure works out to 80% of the head sentence. That ratio might, in some cases, be regarded as unusually high. It might, in such cases, call for some explanation from the sentencing judge. However, in the present case, the reason why such a long non-parole period was fixed is perfectly obvious. The applicant's prospects of rehabilitation must be regarded as highly questionable. Any non-parole period that is fixed must give effect to the need for both specific and general deterrence, and the need to denounce and adequately punish the offending. I would not interfere with any aspect of his Honour's sentence.

107 It follows that, in my view, leave to appeal against both conviction and sentence should be refused.

[1] That being the earliest date upon which the applicant would be eligible for parole.

[2] Woolmington v DPP [1935] UKHL 1; [1935] AC 462, 481 (Viscount Sankey LC); R v Dickson [1983] VicRp 19; [1983] 1 VR 227, 235.

[3] King v The Queen [2003] HCA 42; (2003) 215 CLR 150, 158 (Gleeson CJ).

[4] Dawson v R [1961] HCA 74; (1961) 106 CLR 1, 18 (Dixon CJ); Green v The Queen [1971] HCA 55; (1971) 126 CLR 28, 31- 32.

[5] There is some disagreement among trial judges as to whether this last formulation is likely to be helpful to a jury whose members are unlikely to know anything about the standard of proof applicable in a civil case. Some judges avoid this aspect of the model direction contained in the Charge Book on the basis that a jury may regard it as confusing.

[6] Judicial College of Victoria, Victorian Criminal Charge Book 3.6.1 at 24 March 2011.

[8] Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234, 261 (Hayne J).

[9] R v Reeves (1992) 29 NSWLR 109; Palmer v The Queen (1992) 64 A Crim R 1.

[10] Judicial College of Victoria, Victorian Criminal Charge Book 1.7.1 at 17 March 2011.

[11] See generally R v Carter [2009] VSCA 272; Anderson v The Queen [2010] VSCA 108; Benbrika v The Queen [2010] VSCA 281.

[12] R v Vonarx [1999] 3 VR 618, 624-625; KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, 259 (Kirby J); Owen v The Queen [2001] TASSC 79; (2001) 123 A Crim R 183, 185 (Evans J); R v Best [1998] 4 VR 603, 618 (Callaway JA with whom Phillips CJ and Buchanan JA agreed); R v TJB [1998] 4 VR 621, 633 (Callaway JA with whom Phillips CJ and Buchanan JA agreed).

[15] In R v Loguancio [2000] VSCA 33; (2000) 1 VR 235; KRM v R (2001) 206 CLR 211; and R v Ellul [2008] VSCA 106; (2008) 185 A Crim R 311 it was held that a propensity warning was unnecessary in the particular circumstances.

[19] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493-494.

[20] See R v Best [1998] 4 VR 603, and the discussion of s 398A of the Crimes Act 1958 as it then stood in that case.

[21] There was a hand-written letter sent by the applicant to the trial judge in which he spoke of his hopes for the future. That letter fell short of expressing any actual remorse for any of the specific offences for which he was subsequently to be sentenced.

Milkins v The Queen [2011] VSCA 93

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Judgment (150 paragraphs)

Milkins v The Queen [2011] VSCA 93 (13 April 2011)

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Legislation Cited (1)

Cases Cited (12)