R v Campbell [2007] VSCA 189

**1 I have had the considerable advantage of reading in draft the reasons for judgment of Ashley JA and Kaye AJA and I agree with their Honours that the application for leave to appeal against conviction should be refused.

2 Viewed with the benefit of hindsight, it appears that the judge might profitably have given the jury more extensive or clearer directions as to the weaknesses inherent in the victim's identification of the applicant from a photo-board and as to the effect of a conversation which the victim had with investigating police before she so identified the applicant. But, as Ashley JA and Kaye AJA explain in their joint reasons, there was nothing inherently problematic about the photo-board as such, and the judge did give the jury extensive Domican[1] directions (albeit without referring in terms to the shortcomings of photo-identification);[2] and, in the end, the judge did convey to the jury, with the weight of his authority, the need to consider the effect of the victim's conversation with police before she identified the applicant.

3 Were it not for the seniority and experience of counsel who represented the applicant at trial, one might perhaps still have had some doubt as to whether the judge's charge was sufficient to bring home to the jury all of the risks which they needed to consider. But, given that defence counsel was very senior and greatly experienced, and that he did not take exception to what was said, I am persuaded that the directions were adequate in the circumstances in which they were given. Accordingly, I do not consider that any miscarriage of justice was occasioned by the failure of the judge to say more.[3]

4 I agree with Ashley JA and Kaye AJA that the judge erred in purporting to cumulate the sentence imposed in respect of the subject offences onto the sentence**

imposed on the applicant on 4 October 2004. The error re-opens the sentencing discretion. The applicant should be re-sentenced as their Honours propose.

**5 The applicant, who is 29 years of age, pleaded not guilty to presentment S02769109.2 ("the first presentment") by which he was charged with armed robbery, false imprisonment, reckless conduct endangering life, and reckless conduct endangering the person. Those charges arose out of a robbery at the Nappy Land Store in Sunshine on 19 November 2004. Upon his trial in the County Court, the applicant was convicted by the jury on the counts of armed robbery, false imprisonment and reckless conduct endangering the person. He was acquitted of the count of reckless conduct endangering life.

6 The trial judge adjourned the plea hearing to a date to be fixed. On that date, the applicant pleaded guilty to presentment S02769109.3 ("the second presentment") by which he was charged with armed robbery, false imprisonment (three counts), reckless conduct endangering the person and common assault (three counts). Those charges arose out of a robbery at the Spotswood Newsagency on 25 November 2004. After hearing a plea in mitigation of sentence, the judge, on 5 April 2006, sentenced the applicant, on the charges on the first presentment, to a total effective sentence of 5 years and 6 months' imprisonment. On the second presentment, the judge also sentenced the applicant to a total effective sentence of 5 years and 6 months' imprisonment. His Honour ordered that three years of the sentence imposed on the first presentment be served cumulatively on the sentence imposed on the second presentment, making a total effective sentence of 8 years and 6 months. His Honour fixed a minimum non-parole period of 6 years and 6 months. The judge further directed that 6 years of the sentence be served cumulatively on a sentence imposed on the applicant on 4 October 2004, by which the applicant had been sentenced to a term of imprisonment of 2 years (with a minimum non-parole period of 1 year) on**

one count of robbery.[4] The applicant seeks leave to appeal against his conviction on the first presentment, and the sentences imposed on both presentments.

**7 The circumstances of the robbery on the Nappy Land Store on 19 November 2004 can be briefly summarised. On that date Ms Odette Jovicic was working alone in the store. A tall thin man entered the store and then left. About 15 minutes later he returned and purported to be looking for nappies for a 2 years old child. Ms Jovicic spoke to him to ascertain what he wanted. She then returned to the cash register. There the man approached her, grabbed her from behind, and put a knife to her throat. He pushed her to the cash register and told her to open the till, from which he stole about approximately $1,000. He then demanded that Ms Jovicic go to the back of the store and get more money. She told him she only had a bag of change under the till, and the man took that too. He then left the store.

8 The sole issue at the trial concerned the identity of the applicant as the man who perpetrated the robbery. Ms Jovicic gave evidence in which she described him as being very tall, very skinny, with a fair complexion and fair coloured short hair. She said he was wearing dark coloured track suit pants. On the day after the robbery she was shown three books of photographs by an administration support officer attached to the criminal investigation squad. Those booklets did not contain a photograph of the applicant. Ms Jovicic picked out a photograph of another man. When asked how certain she was that the robber was the person depicted in that photograph, she said: "Eight out of ten". In cross-examination she said that she was not sure that it was the offender, and that, when she picked out the photograph, she said that the offender may have looked similar. She also said that the offender had hair on his head, which was different to the man in the photograph picked by her.

9 Subsequently, on 11 April 2005, Ms Jovicic was shown a photo board by Detective Senior Constable Bacon, who was then attached to the Altona North Regional Crime Task Force. Ms Jovicic picked out the photograph of the applicant. Senior Constable Bacon stated that when Ms Jovicic selected that photograph, she had a "look of horror" on her face. She said: "That's him definitely", gasped, became emotional, and had to leave the room because she was crying. In her own evidence, Ms Jovicic stated that, when she saw the photograph of the applicant on the photo board, she was absolutely sure that it was the man who perpetrated the robbery.

10 In cross examination Ms Jovicic stated that about one week after the robbery a police officer (Detective Tzounos) had suggested to her that the robber's ears stuck out. She also agreed that she had said at the committal proceeding that the features in the photograph of the applicant which she remembered were the ears, because they stuck out a lot.

11 At the time of the robbery Mr Peter McEwan worked at a Tattslotto Agency which was next door to the Nappy Land Store. He saw a male person outside his shop. That person looked suspicious. Mr McEwan had seen that person a few times. He was tall, and had an unusually slim build. He was wearing track suit pants very high and had short dark hair. The male was then with a female. The female left and the male went towards the Nappy Land Store. Shortly thereafter Mr McEwan saw the same person running past. Mr McEwan was shown photographs by the police on the day of the robbery but did not pick anyone. In cross examination he agreed that he looked at several photograph albums but did not identify anyone. Subsequently, he said, he was shown three photo boards, and he picked a man straight away. But then he seemed to agree that at the committal he had said that he had been unable to identify anyone positively.

12 The other witness to the relevant events was Mr Jim Peterson. He was not called to give evidence, but by consent his statement, and cross examination at the committal, were read into evidence. Mr Peterson owned an eatery which was two doors from the Nappy Land Store, and next to Mr McEwan's premises. On 19 November 2004 at about 2.30 pm he noticed two girls, one of whom had come into his shop earlier kissing a young man. That man was skinny, tall, and with short dark hair and was wearing jeans. Mr Peterson was outside his store with Mr McEwan. All of a sudden the same man, who had previously been kissing the girl, sprinted past them. He came from the direction of the nappy shop. In cross examination at the committal Mr Peterson stated that he had been shown photo boards by Mr Bacon within days of the robbery, but he was unable to identify or recognise anyone.

13 The other evidence at the trial was given by members of the police. The applicant did not give evidence.**

14 The applicant's full statement of grounds contains seven grounds of appeal. The applicant did not present any submissions on grounds 1 and 7.

15 It is convenient to turn first to grounds 5 and 6, which relate to the directions given by the trial judge relating to the identification evidence. Those grounds are in the following terms:

1. The learned trial judge erred by failing to put the defence case sufficiently or at all.
2. The learned trial judge erred by failing sufficiently to warn the jury about the dangers of relying on evidence of identification (namely, give a proper Domican warning), and, in particular the learned judge erred by:

(a) failing to draw to the jury's attention the matters that affected the reliability of the identification evidence and warn the jury of these matters with the authority of the judge's office, and,

(b) inviting the jury to consider as identification evidence, evidence that could not serve this purpose.

**16 In support of grounds 5 and 6(a) it was submitted that the trial judge failed to direct the jury on the inherent deficiencies of identification evidence obtained from photo boards. It was submitted that, as the evidence of Ms Jovicic as to the identification of the applicant's photograph on the photo board was a major part of the Crown case, his Honour should have warned the jury that photographic evidence can be unreliable due to the differences between the photographs and real life; that the photograph used to identify the accused may have been taken in very different circumstances to those in which the offender was observed; that the process can increase the risks of mis-identifying the offender, who may look like the accused as seen in a photograph, but may look different when viewed face to face; and that therefore the jury should treat photographic identification evidence with special care. In addition, it was submitted that the judge failed to direct the jury properly as to the possibility that the identification evidence of Ms Jovicic had been tainted by the discussions which she had had with Constable Tzounos before she was shown the photo board.

17 The judge directed the jury at some length in relation to the identification evidence by Ms Jovicic. He commenced those directions by giving the orthodox warning about the experience of the law as to the dangers of honest mistakes being made by witnesses in identifying the accused as the offender. His Honour cautioned the jury that no matter how confident the witness may appear, it was necessary that the jury should scrutinise the evidence most carefully. He then pointed to a number of matters which the jury should take into account in assessing the evidence of Ms Jovicic. His Honour told them that Ms Jovicic had only seen the offender once before, and that was some ten or fifteen minutes before the robbery, and then only for a few minutes. He told the jury they should consider what opportunity there existed for Ms Jovicic to make an accurate observation of the offender. On the first occasion she spoke to him very briefly, but she spoke to him for about 5 minutes on the second occasion. The judge told the jury that they should consider what aspect of him she had seen. In other words, was she looking at his face, or at his profile. The judge also told the jury they should consider whether Ms Jovicic was close enough to make an accurate observation. She said she had been very close. He also said that the jury should take into account whether there were any peculiar factors which affected the situation. In this case the man went from being a customer to a robber, and she was personally involved with the offender in the robbery. Next the jury should consider whether there were any apparent and obvious peculiarities of the person. His Honour said that the accused relied on that matter, and that his Honour would "come back to what he said about that in a minute."

18 The judge also told the jury that they should consider whether the witness was in a state of stress when she made the observation. His Honour pointed out, that until the robbery occurred, she was not in such a state, but certainly she was placed under a state of stress when the knife was produced and the demands were made. At that time the offender was closer to her, but she was then under stress, and the jury would need to consider whether that affected her memory. Further, the judge instructed the jury that they were entitled to take into account the time which elapsed between the initial observation at the shop and the police showing her the photographs. He told them that they should take into account that the length of the time between the initial identification and the further identification can be important, because memories can fade over time. In this case there was a 4½ month delay between the robbery and the day upon which Ms Jovicic identified the accused from the photo board. He referred to the fact that Ms Jovicic was shown photographs from a photo album by the police on the day after the robbery, but no photograph of the accused was in it at that time. She was thus subjected to early testing of her memory. The accused relied on the fact that she positively identified another person from the albums and therefore was unreliable. The judge pointed out that the prosecutor responded that the witness did select another person, but she gave him a rating of eight out of ten, yet she was most definite when she identified the accused on the photo board. His Honour told the jury that another matter which they should take into account was to consider the description of the offender given by the witness to the police, and to consider how that description coincided with the later identification by the photograph. His Honour pointed out that both parties sought to rely on this aspect. His Honour concluded by reiterating that the jury should consider the matter carefully, and where possible should look for some feature or features of the evidence which tended to make it reliable.

19 The judge then turned to the evidence of McEwan and Peterson. His Honour directed the jury that they must not aggregate the two imperfect identifications made by McEwan and Peterson. He told the jury that they must look at each witness in isolation to determine whether they found the evidence of the particular witness sufficiently reliable that the jury was satisfied beyond reasonable doubt as to its accuracy.

20 Where a jury is asked to rely on evidence which purports to identify the accused as the person who committed the crime in question, and where the reliability of that evidence is in dispute, the trial judge is required to warn the jury of the dangers of which it must beware in assessing the reliability of that evidence. There is no set formula as to the terms of any such warning. It must be appropriate to the circumstances of the case, and must be sufficient to bring to the attention of the jury the factors which may affect the consideration of the particular evidence which is in dispute in the case. Further, it is insufficient for the direction to be given simply by reference to counsel's arguments. Rather, the jury must be given a direction which bears the authority of the judge's office.[5]

21 There are a number of disadvantages involved in the process of identification from photographs, which have been discussed in the authorities. In particular, identification from photographs generally occurs in the absence of the accused, who will have no means of knowing whether there was any unfairness in the process, nor of knowing whether the witness was convincing in the way in which he or she made the identification. Further, the presence of a photograph of the accused in a group or booklet of photographs in the possession of the police may, if produced to the court, have a prejudicial effect on the accused, by being presented to the jury in the context of a "rogues gallery".[6] Furthermore, the presentation of a book or group of photographs to an identifying witness may place that witness under some subconscious pressure to pick out a photograph of a suspect who looks like the offender, notwithstanding that the witness is unable to positively identify the subject of the photograph as the offender.[7] Finally, a photograph may be an inaccurate representation of a subject. Thus the witness may make a "false" identification by selecting a misleading photograph of the accused as depicting the offender. Photographs are two dimensional and static. The features of the subject can be affected by the colour of the photograph, and the lighting in which the photograph was taken.[8]

22 The authorities suggest that, ordinarily, a trial judge should draw to the attention of the jury the type of deficiencies in photo board identification to which we have just referred.[9] However, there is no rigid formula requiring that such a direction be given in each and every such case. Rather, as the High Court stated in Domican, the direction which is required in each case depends, necessarily, on the particular circumstances and issues of the case at hand.[10] What is necessary is that the trial judge, in the course of giving such directions, must draw to the attention of the jury the particular weaknesses involved in the identification which is in issue. Thus, in Domican, the High Court held that the trial judge had misdirected the jury by failing to draw to its attention a number of important weaknesses in the identification by the witness of the accused as the man whom she saw shooting at her husband.

23 In this case, the trial judge twice directed the jury, correctly, that it must not draw any adverse inference against the applicant arising from his refusal to participate in an identification parade. Accordingly, it would have been counter productive for the judge to have pointed the jury to some of the limitations involved in the photo board evidence, and in particular the absence of the accused as a witness to the identification process which was involved. Nor would it have been appropriate for the judge to have instructed the jury on the comparison between the two processes of identification.[11] Furthermore, the judge did not need to give any direction to the jury that they must not draw any adverse inference against the applicant arising from the fact that his photograph appeared on the photo board. The jury had heard evidence that the applicant's photograph had been taken on the day on which he was arrested, and thus the jury would not have been tempted to draw an inference that the applicant had been previously known to the police.

24 There was no suggestion that Ms Jovicic had been under any form of subconscious or other pressure to identify one of the photographs, on the photo board, as depicting that of the offender, when she viewed the photo board in April 2005. On the contrary, Ms Jovicic had already made an identification of the man who she thought was the offender, albeit that it was - on the Crown case - an erroneous identification, when she looked at the three booklets of photographs on the day after the robbery. Moreover, there was no suggestion that the photograph of the applicant on the photo board differed in any material respect to his appearance at the relevant date. The only point made in cross examination of Senior Constable Bacon was that the photograph of the applicant on the photo board was clearer than the other photographs on the photo board, because it had been taken with a digital camera. Thus, while it might have been preferable for the trial judge to have cautioned the jury that a photograph may not be an accurate depiction of a subject, there was no necessity for the judge to have given that direction in this case, since that aspect of the identification was not a live issue at the trial. Further, it might have been preferable for the trial judge to have reminded the jury that a photograph is two dimensional, and static, and to that extent it has its limitations. The colour of the photograph, and the lighting in which the photograph was taken, can affect the accuracy and reality of its depiction. However, in our view there was no necessity for the judge to have given such a direction, since those issues were not agitated at the trial. For those reasons we do not accept the argument advanced on this appeal that the trial judge's direction was deficient because it failed to direct the jury on the inherent deficiencies of identification evidence obtained from photo boards, and in particular those to which we have just referred.

25 It was also argued on behalf of the applicant that the direction of the trial judge was deficient because it failed to draw to the attention of the jury the fact that Ms Jovicic may have been tainted in her identification of the accused because of her discussion with police member Tzounos concerning the nature of the ears of the offender.

26 As we have stated, in the course of giving directions concerning the identification evidence, the trial judge specifically referred to the question whether the person observed by Ms Jovicic had any particular peculiarities. His Honour said this:**

Were there any apparent and obvious peculiarities of the person? The person's face or body or clothing or whatever that assisted the identification and then we have this question of the ears of the offender. Mr Just (counsel for the applicant) relies on that and I will come back to what he said about that in a minute.

27 His Honour then continued to give detailed directions concerning the identification evidence. Having completed that part of his charge, his Honour gave directions to the jury about the elements of the offences with which the applicant was charged. His Honour then returned to the competing submissions on behalf of the Crown and the accused in relation to the issue of identification. His Honour summarised the prosecutor's submissions, that Ms Jovicic was a reliable witness, and that the jury should be satisfied beyond reasonable doubt that she made a correct identification. His Honour then said this:

[Counsel] throws cold water on that. He says no. He says that in fact the very next day after the robbery when shown the album [she] picked the wrong man and he says that by the time she comes to do the exercise again it's five months later and by that stage she has had a conversation with a policeman where, when asked about whether the offender's ears stuck out, she said she never noticed and then he says that as a result of that conversation she was influenced when it came to the selection of the photo board in April 2005, but then he says to you if you look carefully at that photograph no. 5 in fact his client's ears do not stick out that much when you look at it and study it for a lengthy period of time. He says in effect that the damage was done to Ms Jovicic's recollection before she looked at that photo board and you should not be satisfied beyond a reasonable doubt about her reliability.

**28 The discussion between police member Tzounos and Ms Jovicic about the offender's ears was an important issue in the trial. It would not have been sufficient for the judge to have referred to that issue only in summarising counsel's submissions. Rather, the issue relating to the shape of the offender's ears, and in particular as to what the witness had been told by the police member about them, was an issue in respect of which it was necessary for the judge, with the authority of his office, to give appropriate direction to the jury. The question is whether the judge did so in this case.

29 As we have set out above, the judge identified the question whether there were any apparent or obvious peculiarities of the offender, and in that context stated "we have this question of the ears of the offender." In doing so, his Honour, certainly, with the authority of his office, identified that topic as an issue which the jury must take into account, in carefully considering the question whether the identification by Ms Jovicic of the accused as the offender was an accurate identification. Further, his Honour, at that point, foreshadowed that he would return to that matter, and in particular would identify to the jury how the applicant's counsel relied on it.

30 The relevance of the discussion between Ms Jovicic and the police member, about the ears of the offender, was such as might have affected Ms Jovicic's mental picture of the offender. In other words, as submitted by the applicant, there was a possibility that that conversation had the effect of tainting Ms Jovicic's memory and recall of the features of the offender. Certainly it would have been preferable for the trial judge to have identified that issue, in those terms, at the point at which he referred to the question relating to the "apparent and obvious peculiarities" of the offender observed by the witness Ms Jovicic. The question is whether the fact that he did not do so has the result that the direction given to the jury was inadequate.

31 In this respect it is important to bear in mind two matters. First, the trial was particularly short. The jury was empanelled on Friday 3 March 2006, and the prosecution case closed shortly after 3.00 pm on that date. The trial resumed on Monday 6 March. Counsel's addresses, and the judge's charge, were complete by lunch time. In other words the judge's charge was given at a time quite proximate to Ms Jovicic's evidence. In that situation the issue raised by the cross examination could not have been lost to the jury. It did not require elaborate explanation by the judge to the jury.

32 Secondly, when discussing the apparent and obvious peculiarities of the offender observed by Ms Jovicic, the judge expressly stated that counsel for the applicant had relied on the issue relating to the ears of the offender, and that he would return to that matter "in a minute". Shortly afterwards, his Honour summarised, reasonably fully, the point made by the applicant's counsel relating to the conversation which Ms Jovicic had with police member Tzounos. In that context, in our view, his Honour went further than simply reciting the point made by the applicant's counsel. Rather, by referring to it, albeit briefly, in the context of his reference to the peculiarities of the offender's face, his Honour sufficiently identified to the jury the relevance of the particular issue relating to that conversation, namely, its capacity to have influenced Ms Jovicic before she selected the applicant's photograph from the photo board in April 2005.

33 Accordingly, in our view, the direction given by the trial judge to the jury concerning identification was not inadequate. It is important to bear in mind that the applicant was represented at his trial by experienced counsel, who specialises in criminal law, and who has practised in that area for more than 30 years. It is significant that counsel did not take any exception to the trial judge's charge. The charge was given in quite short compass, and counsel could not have overlooked, or adventitiously omitted, to raise any exception. The issue of identification was the only live issue at the trial. It must be remembered that counsel at trial are far better attuned to the issues and atmosphere at the trial, than it is possible for a court of appeal to be, simply by reading the transcript of the trial. In our view, it is significant that counsel did not perceive that the judge had failed to direct the jury adequately on the relevant issues as to identification. His failure to do so fortifies our conclusion that his Honour's directions were not inadequate.[12]

34 We turn, then, to appeal ground 6(b), which was that the trial judge, in directing the jury about the dangers of relying on the identification evidence, erred by "inviting the jury to consider as identification evidence, evidence that could not serve this purpose."

35 In support of this ground, two principal propositions were advanced on behalf of the applicant. First, it was submitted that the judge, incorrectly, characterised the evidence of the witnesses McEwan and Peterson as evidence of identification. Thus, it was submitted that the judge elevated the evidence in its status beyond its true evidentiary value. Secondly, it was submitted that the judge failed to direct the jury on the use which it might make of the evidence of McEwan and Peterson, which, it was submitted, was no more than "similarity" evidence.

36 Neither Mr McEwan nor Mr Peterson identified the applicant as the person who they had observed in the vicinity of the Nappy Land Store at the time of the robbery. Each of them was able to give a description of the man who they saw outside that store. In that respect their evidence was materially different to that given by Ms Jovicic. Plainly, their evidence did not involve the same danger as the evidence of Ms Jovicic, namely, the risk of error in equating a mental image of an offender to the image of the applicant in the photograph on the photo board. Nonetheless, it is recognised that evidence of the type given by Mr McEwan and Mr Peterson may be susceptible of error, particularly depending on the circumstances in which they made their observations of the features of the offender.

37 No hard and fast rule has been established in the authorities requiring a specific direction to be given for the evidence of any witness who, like Mr McEwan and Mr Peterson, gives evidence which is confined to describing one or more features of an offender observed by them.[13] Generally it is recognised that it is desirable that a direction be given by the judge, cautioning the jury as to any particular weaknesses involved in the observation, and recollection of the observation, made by such a witness. However the question whether such a direction is essential depends on the particular circumstances of the given case. For example, in Festa v R[14] McHugh J considered that where a witness gives evidence claiming that the facial features of the accused are similar to those of the offender, it is usually appropriate that such a warning be given. In R v Benz[15] Deane J expressed the view that where the description given by the witness of the offender is so vague that it could apply to a limitless number of persons, and where the prosecution had led the evidence in order to adjust the description to fit the accused, it may be necessary that the judge give an appropriate warning to the jury.

38 In this case, the judge did not give a separate direction to the jury concerning the evidence of McEwan and Peterson. He commenced the part of the charge, which dealt with identification evidence, by describing it as a direction relating to the central issue in the trial "and that is the personal identification." After warning the jury as to the experience of the law relating to errors of identification, he cautioned them that no matter how confident a witness such as Ms Jovicic might be, nonetheless the evidence must be scrutinised most carefully. His Honour then proceeded to outline the various matters to which the jury ought to pay attention, with particular reference to the evidence of Ms Jovicic. On three occasions his Honour also, in that context, referred to the evidence of Mr McEwan and/or Mr Peterson. First, when referring to the question whether the witness had seen the offender before, the judge stated that Ms Jovicic, unlike Mr McEwan, had not seen the offender previously. Secondly, when referring to the question what aspect of the offender had been observed by the witness, the judge said that both Mr Peterson and Mr McEwan said that they had had a good look at the offender, and then asked whether Ms Jovicic was close enough to make an accurate observation herself. Thirdly, when his Honour referred to the question whether the witness was in a state of stress at the time of the identification, he noted that, unlike Ms Jovicic, Peterson and McEwan were not under such a state of stress.

39 It is difficult to assess whether the judge, in referring to Peterson and McEwan in that way, intended to attach to their evidence the same directions, mutatis mutandis, which he specifically gave relating to the evidence of Ms Jovicic. In our view, on reading that part of the judge's charge as a whole, it is probable that the jury may not have understood the judge to have been giving to them any specific directions relating to McEwan and Peterson, but, rather, had referred to them simply to emphasise points of which they were to beware in relation to the identification evidence given by Jovicic. However, if, contrary to that view, the jury did understand the directions to be given relating to the evidence of Peterson and McEwan, we do not consider that, in doing so, his Honour elevated the evidence of those two witnesses to "identification" evidence. As we have already remarked, the trial was a short trial. Neither Peterson nor McEwan gave evidence which, in any form, could have been understood to be "identification" evidence, in the sense that it was evidence by which they equated the mental picture they had of the person they saw near the Nappy Land Store with the applicant. It is, we consider, fanciful to suggest that, by referring to McEwan and Peterson in the context of the identification directions, his Honour would have been understood, by the jury, to be, in some way, transforming their evidence into "identification" evidence. Such a proposition, in our view, does not do justice to the common sense and intelligence of juries. There is nothing to suggest that the jury in this case was misled into considering that the evidence of either such witness went beyond describing particular features which the witness had observed about the person who was seen outside the Nappy Land Store on the day of the robbery.

40 Further, we do not consider that the evidence of either McEwan or Peterson was such that it required the giving of any specific form of direction. As we have stated, Mr McEwan gave evidence about the height, build and clothing of the person who he observed. He also stated that that person had a very drawn face, and his hair was dark. None of that evidence was put in issue in cross examination. Indeed, the cross examiner invited Mr McEwan to agree with the proposition that he had a reasonable view of the person's face on the day of the robbery, and that he took a particular extra look at the person because he was worried that something might occur. Obviously, the intent of that questioning was to demonstrate that, notwithstanding that McEwan had had a close look at the offender, he was subsequently unable to identify him on the photo board. However, for our purposes, the point which is relevant is that McEwan's evidence was not put in contest at all in cross examination but, rather, was sought to be bolstered by cross examination. In those circumstances, no issue having been taken with it by the cross examiner, there was, no need for any particular warning to be given about it to the jury.

41 The evidence given by Mr Peterson, in the statement read to the jury, was of shorter compass. Mr Peterson simply stated that the person he observed was skinny, about 6' 2" tall, and had short dark hair. Mr Peterson also stated he had a grey windcheater, runners and jeans on. The only cross examination of Mr Peterson at the committal, which was read in evidence to the jury, related to the circumstance that Peterson was unable to identify the offender in the photo boards or book of photographs which was shown to him by the police. Again, there being no issue taken with Mr Peterson's evidence at the trial, there was no need for any particular direction to be given about it to the jury. For those reasons we consider that ground 6(b) should fail.**

42 The other grounds which were the subject of submission on behalf of the applicant are grounds 2 and 4. Those grounds are as follows:

1. The learned trial judge erred by ruling that the applicant's counsel cross examine the witness Jovicic in a manner that was calculated to give the impression to the jury that the applicant was in custody as a result of having committed offences similar to those alleged in the instant case; T20 - 26.
2. The verdicts of guilty are unsafe and unsatisfactory by dint of an aggregate of defects.

**43 The issue which was the subject of ground 2 arose during the course of cross examination of Ms Jovicic by counsel for the applicant. Counsel had commenced to put to that witness questions asked of her, and answers given by her, at the committal proceeding. Those questions and answers related to the issue whether the witness had recalled anything distinctive about the ears of the offender. In the course of those questions it was suggested that the police officer had told the witness that the robber's ears stuck out a lot. At that point the prosecutor interrupted the cross examination, and raised a matter in the absence of the jury. The prosecutor pointed out that the section of the depositions, put to Ms Jovicic in cross examination, had omitted the fact that the policeman had said to Ms Jovicic that there had been another attack in another suburb, and that he was referring to the distinctive ears of the offender in that context. Upon hearing from counsel for the applicant, the judge ruled that he ought to put to the witness that additional part of the depositions. On the return of the jury to the court, counsel for the applicant put the totality of the questions and answers at the committal, including the section he had previously omitted. On appeal it was submitted that the requirement that counsel put the particular portion of the depositions to Ms Jovicic created the risk that the jury might speculate that the police had obtained his client's photograph as a consequence of his having been taken into custody for having committed an almost identical offence in a nearby area.

44 In our view this point is without merit. The evidence was that the photograph of the applicant on the photo board was taken on the same day on which he was arrested and interviewed by the police. Thus, the part of the depositions which counsel was required to put to Ms Jovicic in cross-examination did not convey any suggestion that the applicant was hitherto known to the police, or that he had been photographed in the context of the other robbery. Clearly, counsel for the applicant at the trial was not concerned about this matter. When the issue was raised in the absence of the jury, it was put that counsel for the applicant might have misled the jury into believing that the police were suggesting that the man who robbed the Nappy Land Store had protruding ears, whereas the policeman was referring to another robber who committed a robbery in another suburb. When the matter was thus explained, counsel for the applicant stated that he had not intended to mislead the jury, but that he could "understand the objection". Thereupon he agreed that he should put to the jury the part of the depositions which he had hitherto omitted, while cross examining Ms Jovicic. It is plain from the transcript that counsel for the applicant took no exception to that course; rather, he was content to correct any false impression he might have given to the jury by including, in the section put to Ms Jovicic, the part which he had hitherto omitted.

45 It was also submitted that the judge erred by failing to properly direct the jury in order to allay any "rogues gallery" effect of that evidence. Again we consider that that point is misconceived. There was no "rogues gallery" effect in the evidence which was directed and read to the jury. It did not refer to any photograph held by the police. Thus, there was no risk that the jury might wrongly speculate that the police already had a photograph of the applicant. Once again, if counsel for the applicant at trial had any apprehension that the part of the depositions which he had been required to read to the jury might have had such an effect, he would no doubt have sought a direction to allay any such impression. It is significant that he did not seek any such direction, either before the judge commenced his charge, or by way of taking exception to it subsequent to the giving of the charge.**

**46 The final ground which was argued was ground 3, which is that of the verdicts of guilty are unreasonable and could not be supported having regard to the evidence. It was submitted that the evidence of Ms Jovicic was so weak and tainted that the jury, properly instructed, ought to have entertained a reasonable doubt about it.

47 In our view, there is no merit in that ground. Ms Jovicic's evidence as to her identification of the accused's photograph on the photo board was quite unequivocal. The evidence of Senior Constable Bacon was that the witness reacted spontaneously and emotionally upon seeing the applicant's photograph. She had reason to remember and features of the offender, having observed him at close quarters in the course of what would have been an unforgettable experience. As we have already concluded, there was no error in the instruction given to the jury concerning that evidence. The jury had the opportunity to observe Ms Jovicic in the course of her evidence-in-chief and under cross examination. Plainly the jury was satisfied beyond reasonable doubt as to the accuracy of her evidence. There is no basis for concluding, in those circumstances, that the verdict of the jury was unsafe and unsatisfactory. Accordingly ground 3 should fail.**

**48 The applicant specified eight grounds of appeal against sentence. But early on in the course of argument it became apparent, in our opinion, that there had been an error in the sentencing process which meant - regardless of the merits of any of those grounds - that the application must be granted, the appeal allowed, and the applicant re-sentenced.

49 On the first presentment, the judge sentenced the applicant as follows:

• Count 2 (false imprisonment) - 6 months' imprisonment.

• Count 4 (reckless conduct endangering a person) - 1 year's imprisonment.

50 The judge cumulated 6 months of the sentence on count 4 on the sentence imposed on count 1. The total effective sentence was thus 5 years and 6 months' imprisonment.

51 On the second presentment, the judge sentenced the applicant as follows:

• Count 2 (false imprisonment) - 6 months' imprisonment.

• Count 3 (false imprisonment) - 6 months' imprisonment.

• Count 4 (reckless conduct endangering a person) - 1 year's imprisonment.

• Count 8 (false imprisonment) - 3 months' imprisonment.

52 His Honour cumulated 3 months of the sentence on count 4 and the entire sentence imposed on count 7 on the sentence imposed on count 1. The total effective sentence was thus 5 years and 6 months' imprisonment.

53 Then his Honour ordered that 3 years of the sentence imposed on the latter presentment be cumulated on the sentence imposed on the former. The overall total effective sentence thus amounted to 8 years and 6 months' imprisonment. To this point, no criticism could be made, in a technical sense, of the path which the judge followed.

I order that you serve a minimum of 6 years and 6 months before becoming eligible for parole. I further order that 6 years of such sentence be served cumulatively on the sentence imposed on 4 October 2004 ...

**55 On 4 October 2004 the applicant had been sentenced, on a count of robbery, to imprisonment for 2 years, with a non-parole period of 1 year. Presumably because there had been a lengthy period of pre-sentence detention, he had been released on parole on 19 October 2004.

56 On 10 November that year, however, the Adult Parole Board had ordered that the applicant's parole be revoked. He had not complied with a condition of his parole relating to residence.

57 The applicant remained at large, for that order had not been effectuated by his apprehension, until 25 November 2004. He was then arrested following commission of the offences which gave rise to the second presentment. He remained in custody until his trial for the offences the subject of the first presentment - which was in March 2006 - and thereafter until his sentence on the counts on both presentments on 5 April 2006.

58 The learned judge made a declaration that the applicant had served 144 days pre-sentence detention in respect of the instant offences. That could only have been the situation if the first 11 months of his incarceration from 25 November 2004 had been treated as service of the unexpired portion of the 2004 sentence.

59 If that was the correct way to approach the applicant's incarceration from 25 November 2004, then at time of sentence in April 2006 there was no "uncompleted sentence . . . of imprisonment" for the purposes of s 16(1) of the Sentencing Act 1991 (Vic) ("the Act"). In that event, s 16(1A)(d) and (3B) were irrelevant to the sentencing process.

60 But if the entirety of the period of incarceration from 25 November 2004 should have been treated as pre-sentence detention referable to the instant offences, two consequences would ensue: first, the declaration was incorrect; and second, there was at time of sentence an uncompleted sentence in respect of the October 2004 conviction - in which case s 16(1A)(d) and (3B) were relevant.

61 The learned judge made orders which did not reflect one position or the other. His declaration implied that there was no uncompleted sentence. But it is apparent - we shall return to this matter - that he sentenced the applicant on the footing that s 16(3B) applied; this requiring the opposite situation to be the case.

62 Assuming for the moment that conviction for the instant offences attracted the operation of s 16(1A)(d) of the Act, the applicant had to be sentenced having regard to s 16(3B), which says this:**

Every term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment (the parole sentence) must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order.

**63 So, if s 16(3B) was applicable, it was necessary, absent exceptional circumstances, for an order to be made cumulating the unexpired portion of the October 2004 sentence on the total sentence imposed for the instant offences.[16] Then it was necessary - see s 14 of the Sentencing Act - that a new, single non-parole period to be fixed.

64 Further, regardless of the way in which s 16(3B) was given effect, on the assumption that the October 2004 sentence was uncompleted as at April 2006 it was still necessary to fix a new non-parole period which addressed both the instant offences and the 2004 sentence.

65 The judge said in his sentencing remarks that "(t)he offences for which you are now before the Court were all committed whilst you were on parole ..."; and that "the effect of this is that you lose the presumption of concurrency under the Sentencing Act." Regardless whether the former statement was correct - the applicant submitted that it was not - there is no doubt that these statements addressed s 16(1A)(d) and (3B) of that Act.

66 In the event, we consider it is clear that the order which we cited at [54] was an attempt to apply s 16(3B). But, still assuming that the subsection was relevant, the attempt surely failed. For it appears that what his Honour did was to cumulate 6 years of the non-parole period fixed in respect of the instant offences on the 2004 sentence, rather than cumulate the total effective sentence for the instant offences on the 2004 sentence. Cumulation had to begin from a starting point of 8 years and 6 months' imprisonment. But in fact, it did not cumulate at all on such period; and the only effect of cumulation was, arguably, to extend the non-parole period fixed for the instant offences by about 5 months.

67 Further, if there was an uncompleted sentence as at April 2006, the judge had to fix a new, single non-parole period in respect of the instant offences and the 2004 offence. Cumulation had nothing to say in that connection.

68 So, if there was an uncompleted sentence as at April 2006, the learned judge fell into error in one way or another.

69 If, however, there was no uncompleted sentence as at April 2006, his Honour also fell into error. For he evidently sentenced the applicant on the footing that s 16(3B) was in point - albeit that his application of the provision miscarried.

70 Having outlined the alternative positions, each involving error in the sentencing process, it is clear that the correct analysis is that the applicant must be taken to have served out the unexpired portion of his 2004 sentence from the time of his apprehension on 25 November 2004. That was the basis upon which this Court proceeded in R v Smith.[17] The circumstances of the present case are closely akin to, though not identical with, the circumstances which arose in Smith.

71 It follows from what we have just said that the judge erred by taking s 16(3B) into account. It matters not that his attempt to apply the provision was itself faulty. What his Honour should have done was to allow for the fact that the period of the applicant's incarceration of about 11 months' from 25 November 2004 was "dead time," which could not be brought to account under s 18(1) of the Act. The correct approach was described by Chernov JA in Smith as follows:**

In my view . . . the non-parole period as well as the head sentence should be set aside for at least two reasons. First, this Court in Renzella and Stares considered that the pre-sentence detention, although not giving rise to the making of a formal declaration under s.18(1) of the Sentencing Act, nevertheless must be taken into account as a matter of justice in determining the total effective sentence and the non-parole period. Secondly, the non-parole period is the minimum time that the sentencing judge determines that justice requires the offender to serve, having regard to all the circumstances of the case, and one of the 'circumstances' is, I think, the length of 'dead time' served by the offender prior to sentence. In any event, any change in the period of the head sentence will plainly effect that of the non-parole period.[18]

72 As we said earlier, there was specific error in the sentencing process. Counsel for the Crown rightly conceded that this was so; and that the sentencing discretion was re-opened. In the circumstances there is no need to address the grounds of appeal.[19] [20]

**73 It is now necessary to say something more about the offences and the offender.

74 The applicant was aged 26 when he committed the instant offences. He had left school at an early age, at time of offending was a poorly educated man without any developed employment skills. He was a man who had entered into relationships. But none of them seems to have persisted. He was not a father.

75 Between 1 July 1997 and 4 October 2004 he had repeatedly been before the courts - 14 times in all; and in respect of many offences - 74 in all. Many of his offences related to the use and misuse of motor vehicles. There were also drugs offences involving both trafficking and possession, multiple instances of failure to answer bail, and property offences. Under cover of the last-mentioned category we include attempted theft, theft, being in unlawful possession of house breaking implements, being equipped to steal, being found on premises without lawful excuse, handling stolen goods, attempting to obtain property by deception, obtaining property by deception, robbery, attempted armed robbery and armed robbery.

76 The applicant had been shown very considerable leniency over the years in the sentences passed upon him. He had been sentenced to detention in a youth training centre, partly suspended; to combined custody and treatment orders; and to terms of imprisonment wholly and partly suspended. He had breached combined custody and treatment orders and suspended sentence orders. He had continued to offend. His history of robbery/armed robbery, having begun with a conviction in December 1997, had continued with convictions in September 2001 and October 2004.

77 In all, although he was aged only 26 at the time of committing the instant offences, the applicant had exhibited much evidence of recidivism, and of failure of rehabilitation. These features were set against a background of long-term drug use, which gave some explanation for, but did not excuse, the applicant's constant offending.

78 On the plea, notwithstanding the very negative picture so far described, some evidence was adduced of the applicant having attempted to rehabilitate himself. Evidence was given that he had attended many courses whilst in prison - in order to complete a basic education, and to address his drug abuse. The judge concluded that the applicant's progress since his arrest had been pleasing, but that it was obvious that he still had a long way to go. We see no reason to doubt the reliability of his Honour's assessment made upon the material then available.

79 In this Court, counsel tendered a batch of drug screening reports referable to his client. There were 17 in all, and they embraced the period 31 August 2005 to 18 June 2007. In each instance screening revealed no signs of any of six groups of drugs. We agree with counsel's submission that this demonstrates real progress in the applicant's attempts to rid himself of his drug abuse.

80 Counsel informed us from the Bar table, without objection by the Crown, that since sentence in April 2006 the applicant has continued with his education, and with making himself useful within the prison. Again, we accept that these are positive indications of the applicant's rehabilitation.

82 We have already described the substance of the offences committed on 19 November 2004.[21] We must add a few details. First, as he was leaving the premises, the applicant told Ms Jovicic not to scream or he would kill her. Second, Ms Jovicic described herself as having been absolutely terrified during the course of the robbery. Third, in a victim impact statement made in March 2006 Ms Jovicic said, inter alia, that she had been diagnosed as suffering from post traumatic stress disorder, that she had been attending a psychologist and a psychiatrist, that her condition had affected herself, her family and her marriage, and that she had changed occupations.

83 These various matters reinforce a conclusion which we would reach in any event; that is, that the offences which the applicant committed on 19 November 2004 were extremely serious. It is no small thing that the isolated victim of an armed robbery should have a knife blade put at her throat by a man embarked upon a robbery.

84 We go to the offences committed on 25 November 2004.

85 Between 2.00 pm and 2.30 pm that day, two women were on duty at the Spotswood Newsagency in Hudson's Road, Spotswood. The applicant entered the shop. Ms Frances Toeng was working at the counter. Ms Lorraine Tomlinson was at the rear of the store.

86 As Ms Tomlinson returned to the front of the store, the applicant seized her from behind. He held her with one arm. With his other hand he held a knife with an open blade in front of her face. Then he placed the knife against the right side of her neck.

87 The applicant pushed Ms Tomlinson towards a door which led to the counter area. He told her that he did not wish to hurt her, but only wanted money.

88 Ms Toeng fell to the floor. Ms Tomlinson helped her up. They felt fearful, and stepped back. The applicant entered the area behind the counter. He tried to open the till with his knife, but could not do so. He told Ms Tomlinson to open the drawer. She did so. He pushed her out of the way, took some $1,600, and fled.

89 A man named Matthew Matovic, passing by the shop, was alerted by Ms Toeng's cry for help. She had run out into the street. He took off after the applicant. The latter entered a vehicle, and was driven off. There followed a pursuit in which Mr Matovic showed very considerable persistence and bravery, for which he should be commended.

90 After a time, the applicant got out of the vehicle in which he had been a passenger, and ran off. Mr Matovic and police officers followed. The chase led over backyard fences.

91 At one point, the pursuers lost contact with the applicant. He made his way into premises occupied by an elderly couple, Mr and Mrs Messina, and their middle-aged, intellectually disabled daughter.

92 When the applicant first entered the house, only Mrs Messina and her daughter were there. The applicant told Mrs Messina that the police were looking for him, to let him stay, and that he would not hurt her. She told him that her husband would soon be home, and that he should leave. But he did not do so.

93 Soon, police officers arrived in the vicinity. Mrs Messina told the applicant to go outside. He refused.

94 Then Mr Messina arrived home. He noticed that his wife was very upset. He saw the applicant. He told him to leave. The applicant then attempted to leave, but by a route that would avoid the police. He scuffled with the 87 year old Mr Messina. Mrs Messina screamed for help. The police approached, and entered the house. They apprehended the applicant. The stolen money was retrieved from the applicant's underwear. The applicant said that he had thrown the knife away.

95 Victim impact statements were made by each of Ms Toeng, Ms Tomlinson, and Mr and Mrs Messina. Ms Toeng said that she was not sleeping well, often had bad dreams, and had become more suspicious and cautious with customers, particularly customers wearing glasses, hats or beanies. Ms Tomlinson stated that she lived in constant fear in the workplace. She provided instances of circumstances which particularly upset her. She said that she became anxious if people were behind her. Mrs Messina stated that she walked with difficulty, and that the applicant had forced her to move around, which had been extremely uncomfortable. She said also that she believed the incident had traumatised her, that she had felt helpless and frightened for herself and her daughter at the time, and also scared. Mr Messina stated that he had become very security conscious. At the time of the incident he had felt outrage that at his age he had to defend his wife. His struggle with the applicant had caused scratches on his forearm. He had attended his general practitioner. There were no ongoing problems in that connection.

96 The first five counts on the second presentment related to events at the shop. Counts 6-8 related to events in the Messina home.

97 The applicant pleaded guilty to the offences on the second presentment. The case against him was overwhelming. Nonetheless, his plea must be adequately reflected in the sentence imposed. It was indicative of some remorse. It saved community expense and court time, and it relieved the potential witnesses - particularly the elderly Mr and Mrs Messina - of the burden of giving evidence.

98 The offences the subject of the second presentment were, in our opinion, more serious again than the offences the subject of the first presentment. In all, there were four victims - as against only one on 19 November 2004. Again, more direct force was involved - both in the shop and in the Messina home. Still further, the offences comprised by the sixth to eighth counts on the presentment took place in the context of a home invasion.

99 We can accept that the applicant meant what he said when he told Ms Toeng and Ms Tomlinson that all he wanted was money, and that he did not want to hurt anyone. But the situation created by the applicant was dangerous indeed. In our opinion, the offences which the applicant committed on 25 November 2004 were extremely serious. The learned sentencing judge, considering on the one hand the relative seriousness of the offences committed on 19 and 25 November 2004, and the pleas of not guilty on the one and guilty on the other, concluded that it was appropriate to impose the same total effective sentence in each instance. We do not disagree.

100 In re-sentencing the applicant, the seriousness of the offences is of importance. It calls for appropriate punishment and condemnation. General deterrence is a consideration of considerable importance. So also, in light of the applicant's past criminal history, is specific deterrence - even allowing that the applicant has made steps on the path towards rehabilitation. On the other hand, the applicant's rehabilitative progress needs to be recognised, as does the totality principle. Again, allowance should be made for the "dead time" to which we have earlier referred.

101 In the event, we would re-sentence the applicant as follows:**

Cumulate 6 months of the sentence imposed on count 4 on the sentence imposed on count 1. The total effective sentence is thus 5 years and 6 months' imprisonment.

Cumulate 6 months of the sentence imposed on count 4 and all 3 months of the sentence imposed on count 7 on each other and on the sentence imposed on count 1. The total effective sentence is thus 5 years and 6 months' imprisonment.

Cumulate 2 years of the total effective sentence imposed on Presentment S02769109.3 on the total effective sentence imposed on Presentment S02769109.2. The overall total effective sentence is thus 7 years and 6 months' imprisonment.

Fix a new, single, non-parole period of 5 years' imprisonment.

**102 We would make an appropriate declaration in respect of pre-sentence detention; and would confirm the ancillary orders made below.

103 We add two things: First, the consequence of the orders which we would make is that, if the applicant was to serve the full period of the sentence, the actual period of incarceration, from time of arrest in November 2004, would be almost 8 and a half years; and if he was released on the earliest parole date, the period would be almost 6 years. In our view, such outcomes sit comfortably with application of the totality principle. Second, the length of the potential parole period is, we think, such as should enable proper supervision of the applicant's return to the community, and his continuing rehabilitation.**

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

[2] cf. Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, 409 (Stephen J, in diss.)

[3] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 333-4; Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, 18 [60].

[4] As to which, see [48]-[72] below.

[5] Domican v R [1992] HCA 13; (1992) 173 CLR 555, 561-2.

[6] Alexander v R [1981] HCA 17; (1981) 145 CLR 395, 400 (Gibbs CJ), 428 (Mason J), 436 (Murphy J).

[7] Pitkin v R [1995] HCA 30; (1995) 130 ALR 35, 38 (Deane, Toohey and McHugh JJ).

[8] Alexander v R (above), 409 (Stephen J).

[9] See for example R v Southon [2003] SASC 205; (2003) 85 SASR 436, [47], [51] (Sulan J).

[10] See also R v Burchielli [1981] VicRp 61; [1981] VR 611, 618; R v Conci [2005] VSCA 173, [56] (Eames JA).

[11] Cafaro v R [2002] WASCA 208, [37] (Malcolm CJ).

[12] See, for example, R v Defrutos [1998] 2 VR 589, 600 (Callaway JA); R v MAG [2005] VSCA 47, [25] (Winneke P).

[13] R v King (1975) 12 SASR 404, 410; R v Marijancevic (1993) 70 A Crim R 272, 278 (Teague J, with whom Brooking and Coldrey JJ concurred); Festa v R [2001] HCA 72; (2001) 208 CLR 593, [56]-[57] (McHugh J); cf [218]-[219] (Hayne J).

[14] [2001] HCA 72; (2001) 208 CLR 593, [57].

[15] [1989] HCA 64; (1989) 168 CLR 110, 126.

[16] We leave to one side the possibility that s 16(3B) calls, prima facie, for cumulation of all sentences imposed in respect of offences committed whilst a person is on parole.

[17] [2006] VSCA 23.

[19] Including the ground, which as presently advised we would have been minded to reject, which proposed that s 16(1A) and (3B) of the Act do not apply to convictions for offences committed at a time when an offender, having previously been released under a parole order, remains at large despite the making of an order cancelling or revoking his parole.

[20] The grounds did not require amendment. The error was sufficiently comprehended by ground 3.

[21] At [7].