R v Rout; DPP v Rout [2008] VSCA 87

Court of Appeal (Vic)|2008-05-29|Before: WARREN CJ and ASHLEY JA and LASRY AJA

CRIMINAL LAW - Appeal against conviction - Identification evidence - Whether judge misstated evidence of identifying witness - Whether judge minimised differences between witness's description of offender and the applicant - Whether judge failed to properly warn jury of potential for unreliability of witness's identification of applicant - Application for leave to appeal refused.

CRIMINAL LAW - Sentence - Appeal by DPP - Whether total effective sentence of three years and six months' imprisonment with non-parole period of 15 months' imprisonment for offences of kidnapping, false imprisonment, threat to kill, robbery and theft manifestly inadequate - Whether aggregate sentence appropriate - Requirements of of the (Vic) - Prospect of rehabilitation - Appeal dismissed.

DPP v Felton [2007] VSCA 65; [2007] 16 VR 214 and DPP v Grabovac [1998] 1 VR 664 considered.

**1 For the reasons expressed by Ashley JA I would refuse the application for leave to appeal against conviction.

2 I turn then to the Director's appeal against sentence.

3 The underlying facts and circumstances and the pursued grounds of appeal are contained in the reasons of Ashley JA and which I gratefully adopt.

4 Under Ground 2 the central issue was whether the sentencing judge in imposing an aggregate sentence properly met the sentencing obligations that lay upon him. Relevantly, his Honour may be taken to be familiar with the principles in DPP v Felton.[1] Furthermore, the Prosecutor, upon the conclusion of the pronouncement of the sentence below of an aggregate sentence of three and half years' imprisonment with a non-parole period of 15 months, drew attention to the sentencing requirements directed in Felton. Unfortunately, his Honour did not take the opportunity to provide his reasons for the imposition of an aggregate sentence.

5 Whilst there is no issue that it was open to his Honour to impose an aggregate sentence the two critical components of the sentence were not articulated: first, the individual terms and secondly, the extent of concurrency and cumulation.[2] An offender, the public and an appellate court need to understand how the sentencing judge fixes the aggregate sentence. Hence the necessary reasoning process in this matter is absent, as analysed by Ashley JA. Ground 2 is made out.

6 So far as Ground 1 arises the offences of the applicant were very serious. While the victim was not detained for days or hours, he was imprisoned for a sustained period, his life threatened more than once and then he was robbed. The victim's level of fear is demonstrated by the errors he made when he twice entered**

the wrong PIN in the ATM and, later, his sense of fear when he saw the applicant at court to give his evidence. The applicant had a history of offending and notwithstanding his prospects of rehabilitation and his youth, an appropriate sentence was warranted to adequately reflect general deterrence.

7 I would consider it appropriate to sentence an individual in these circumstances as contemplated by Ashley JA. However, as occurs in Director's appeals, the court must weigh up the double jeopardy faced by the applicant and all the other aspects of such an appeal.[3] For the reasons stated by Ashley JA, I would dismiss the Director's appeal.

**8 Ben Rout was presented for trial in the County Court on 5 counts:

• False imprisonment, 1 count (Count 2).[5]

9 In the course of the trial, Rout having been acquitted by direction on the count of armed robbery, the presentment was amended to allege the alternative offence of robbery.[9]**

**10 On 23 October 2007 a jury found Rout guilty on all counts. On 26 October, an aggregate sentence of three years and six months' imprisonment was imposed upon him. The learned judge fixed a non-parole period of 15 months' imprisonment, made a declaration as to pre-sentence detention, and made several ancillary orders.

11 Now Rout ('the applicant') seeks leave to appeal against his conviction, whilst the Director of Public Prosecutions appeals against sentence.

12 The applicant relies upon three grounds in support of his application for leave to appeal against conviction:**

The Learned Trial Judge erred in that he misstated the evidence of Mr. Rudi, the identifying witness.

The error was in relation to the location of the tattoo of the offender.

The evidence of Mr. Rudi was that the tattoo was "on his upper left shoulder".

The Learned Trial Judge charged the jury to the following effect:

"It seems that Mr. Rout has a tattoo on the lower part of his left arm. Mr. Rudi said he saw a tattoo on the upper part towards the shoulder."

(a) failing to identify, with the authority of his office, the potential weaknesses in the identification evidence; and

(b) not sufficiently drawing to the jury's attention the matters which militated against the reliability of the identification evidence.

The reception of the identification evidence both F.A.C.E. and photoboard resulted in

13 For his part, the Director of Public Prosecutions relies on the following grounds in respect of the sentence appeal -

The aggregate sentence imposed and the non-parole period are each manifestly inadequate.

(a) In imposing an aggregate sentence of 3 years and 6 months and in fixing the non-parole period of 15 months imprisonment, the Learned Sentencing Judge:-

(i) failed to adequately reflect the gravity of the offences generally and in this case in particular;

(ii) failed to sufficiently take into account the aspect of general deterrence;

(iii) failed to sufficiently take into account the aspect of specific deterrence;

(iv) failed to adequately manifest the curial denunciation of the offending conduct engaged in;

(iv) gave too much weight to factors going to mitigation;

(v) gave too much weight to the Respondent's prospects for rehabilitation;

(vi) gave insufficient weight to the aggravating features of the offending;

(vii) gave insufficient weight to the maximum penalty applicable to these offences;

(viii) gave insufficient weight to the Respondent's prior criminal history;

(ix) gave insufficient weight to the effect of the offending upon the victim; and

(x) failed to punish the Respondent to an extent and in a manner which is just in all the circumstances.

The Learned Sentencing Judge erred in failing to identify the extent of concurrency and cumulation that had been employed as the components of the aggregate sentence.

14 In the early hours of 4 March 2006, Victor Rudi, a German student who was visiting Australia, was asleep in the rear of his van, which he had parked in St Kilda. He was awakened by noises close by his vehicle. He saw a face at the window. Soon afterwards the vehicle was invaded by three men. He was punched in the face and demands were made for money and drugs. He had no drugs, but he offered money which he could obtain by use of a Visa card. He was driven in his vehicle to the vicinity of an ATM. In the course of the journey he was again assaulted, and he was threatened that he would be taken to the bush and killed. At the ATM he twice entered, mistakenly, the wrong PIN number. The offender who had accompanied him to the machine told him, in substance, 'You've had you're your chances, but now it's about your life, make no shit'. He withdrew $500 and handed it to the man. The man and his co-offenders decamped.

**15 On 7 March 2006 the victim conferred with a police graphic artist. The artist prepared a computerised face image of one of the men. It was common ground that the face image was of the man whom the applicant described as 'the leader', and whom he later identified, by reference to a photoboard, as the applicant.

16 The photoboard identification was made on 25 March 2006 at Tullamarine Airport, prior to the victim returning to Germany. Mr Rudi was shown four photoboards, each containing 12 photographs. He identified a photograph of the applicant from one photoboard, and the photograph of a second man from another photoboard. The second man, Trent Styles, was presented together with the applicant. He, unlike the applicant, was acquitted.

17 The applicant was arrested on 29 March 2006. He made a 'no comment' record of interview.**

**18 Each of the applicant and Styles agitated a single issue at trial: identification. Viva voce evidence was adduced in that connection from each of Mr Rudi, the police artist, and the policeman who both observed the applicant on the day of his arrest showed Mr Rudi the photoboards. In addition, the face image and the photoboards were put in evidence.

19 Mr Rudi gave evidence that the leader had been the man whose face he first saw at the window had been the man who punched him a number of times soon after his vehicle was invaded, who had taken his car keys and driven his vehicle to the vicinity of the ATM, who had accompanied him to the ATM, who had threatened his life when he was at the ATM, and who had taken the money which he had withdrawn from the machine.

20 Mr Rudi described the face which he saw at the window as being 'white, Caucasian, curly [blond] hair'. He said that he had described the leader, when he first spoke to the police, as being 'about 85 kilos, one metre 80 long, curly hair - blond curly hair - Caucasian skin.' He said also that the offender 'had a tattoo on his left arm', and that 'I think there was a scar on his face, above his eyes, but I don't know which eye it was'.

21 The witness also described the way in which the computerised face image was produced and the circumstances of his photoboard identification of the applicant.

22 Mr Rudi was extensively cross-examined by applicant's counsel. He agreed that his police statement, made on the morning of the incident, could be relied upon 'as being the most accurate and complete account that he could give'. He agreed that he had stated that the offender 'had a cut around the right or left eyebrow and a tattoo on his upper left shoulder', but that he could not 'recall what the tattoo was of'. He adopted that description.

23 Mr Rudi was further cross-examined so as to disclose that when describing the particular offender to the police he had said nothing about a number of the man's facial features - the nose, ears, mouth, chin, cheeks and jaw line. He gave evidence, however, that he 'had a picture in [his] mind but [he] couldn't express it into words'. He said also that he was 'very satisfied' with the face image.

24 It was put to the witness that he had only a short time, in imperfect circumstances, to observe 'the leader'. He said that he was in the company of the men for about 20 minutes, for half of which he was with the leader. He had seen the man's face at the vehicle window for one to two seconds. He did not suggest that this would have permitted him to identify the offender. He next observed the offender when the latter entered the vehicle. There was a period of minutes, five, perhaps 10-12, when they were in the vehicle before it was driven off. During part of that time the particular offender made demands of him, punched him a number of times in the face and took the keys of the vehicle from him. The man whom he identified as the applicant, he said, 'was the most aggressive at this point ... so I concentrated mostly on him'. He said that he observed the man before and after the attack. He denied that the lighting within the van was poor, as would impair his observation of the offender. He described it as 'very lightful', by which he meant 'bright'.

25 The witness said further in the course of cross-examination that when he and 'the leader' were at the ATM, that being for about two minutes, he 'of course' looked at the man directly. He agreed that he was 'stressed and in fear of his life' when he attempted to withdraw cash from the machine. In the vicinity of the ATM, he said, there was 'enough light to see him, like [the witness could see counsel]'.

26 Then counsel returned to what he characterised as 'the more striking things' which the witness observed - that is, 'a cut above the eye, in the eyebrow of either the right or left eye', and 'the tattoo on the left shoulder', also described as 'the tattoo at or about the shoulder'. The witness agreed with the cross-examiner's characterisation.

27 Mr Rudi gave a description of the particular offender to the police artist when the face image was being prepared. He was cross-examined about what he had told the artist, presumably with a view of highlighting imperfections in his identification the offender.[10]

28 His description had included the following: eyes, unknown colour, average size; hair short, a little bit curly, blond; no facial hair; average Caucasian colour; wide face; red mark on eyebrow as if he had been punched earlier'. He said, however, that the injury to the eyebrow was a cut rather than a red mark.

29 Counsel for the applicant tendered the face image. I should say that this was a very dangerous forensic manoeuvre.

30 Mr Rudi was also cross-examined about his photoboard identification of the applicant. He said this:**

I had an image in my mind - I knew how he looked. That doesn't mean that I can describe exactly what I had in my mind, the picture of him'.

31 He agreed that the photograph of the face on the photoboard which he identified meant that 'the tattoo [was] out of the equation'; and that he could not point to any 'cut ... mark in the eyebrow' on any of the 12 photographs. But he said that -

I can only say when I saw him, I almost started shivering again because I knew it was him.

I can repeat that I have an image in my mind of his face and so this was the reason why I identified [the particular photograph].

**32 I should refer briefly to two aspects of the evidence of the informant, Senior Constable Thorp. First, he said that on 29 March 2006 - which was the date of the applicant's arrest - the applicant had a scar under his (left) eye. He, the witness, saw 'nothing in any eyebrow'. Second, he said that he observed a tattoo on the applicant's left arm between the wrist and elbow; but no tattoo 'at or about his left shoulder'.

**34 The learned trial judge gave quite elaborate directions concerning the dangers which lurk in identification evidence, and specifically in respect of photoboard identification. It was a charge which, consistent with authority, was much in favour of the applicant. His counsel conceded that the charge was not, in its general form, in any way erroneous. But counsel submitted that his Honour had erred in two respects. First, he had misstated the gist of Mr Rudi's evidence concerning the position of the tattoo and the facial blemish. Second, he had trivialised, or had in effect offered an apology on behalf of the prosecution, for the inconsistency between the applicant's recollection particularly of the position of the offender's tattoo and the observation as to its position made by the informant.

35 His Honour referred on a number of occasions to evidence concerning the tattoo and the cut of which Mr Rudi had given evidence.

36 First, in the course of a extensive direction in which the learned judge instructed the jury about the dangers which lurk in identification evidence, he identified four stages or steps in the process of identification. The first of them raised the question whether the person making the identification had sufficient observation of the person identified 'to adequately permit the forming of a picture' in the observer's mind. The second was whether an accurate picture was in fact formed in the observer's mind.

37 His Honour expanded upon the first of those questions at considerable length. In the course of doing so, he said this:**

Do you have a good reason to remember the fellow that you are identifying? Is the person that you are observing distinctive looking in some way, or a person with distinct features? Or is he an ordinary and indistinctive looking person who might well be mistaken equally for other ordinary and indistinctive persons**?** Were there any apparent and obvious peculiarities such as would have assisted the identification? For example, did you see if the person had a tattoo; did you see the tattoo? Did you see a tattoo? Here a lot is said about the tattoo. It seems that Mr Rout has a tattoo on the lower part of his arm. Mr Rudi said he saw a tattoo on the upper part towards the shoulder. So Mr Rudi saw a tattoo. It is not as if he did not see any tattoo, but he thought it was up there instead of down there, if this is the right person, and so on. Similarly the scar near his eye, he saw something. It is not shown in the photo thingummy because he could not do enough with the eye as to identify him.

Anyhow, these are the sort of things that you have to consider when you are considering step one of this process of identification.

Generally, therefore, in this context, you are asking yourselves are you satisfied that Mr Rudi saw clearly enough to form the basis of an accurate picture of the person in all the circumstances as you find them to be and you can test that, to some extent, by looking at the descriptions which he gave to the police that same day of what he saw of the person and whatever he could remember of him and you have those descriptions.

38 A little later, referring to what he had identified as the second step in the process of identification, his Honour said this:

Did Mr Rudi in fact form an accurate picture in his mind of the person that he saw? And as I have said, this overlaps a bit with what I have been dealing with. You can test this by reference to the descriptions given in respect of each of the persons he said he saw, and in the case of Mr Rout by the visual description, as it were, constituted by that face image.

39 Second, in the course of his review of the evidence, the learned judge said this about evidence given by Mr Rudi:

He said the leader had a cut on his left eyebrow and a tattoo on his left shoulder.

That account, so far as it concerned the position of the tattoo, was evidently drawn from the witness's answers in cross-examination.

40 Third, his Honour summarised evidence given by the informant this way:

He says that Mr Rout had a two centimetre scar under his left eye or cheek, but not in the eyebrows which is what Mr Rudy has said. And he found that there was a tattoo below the elbow but no tattoo at the left shoulder.

41 Fourth, his Honour identified what were submitted for the applicant to be inconsistencies between Mr Rudi's evidence and his earlier accounts,[11] and weaknesses in his identification of the applicant. In the latter connection, the learned judge noted submissions as follows:

He basically says that Mr Rudi had a limited opportunity for observation and that he could not have formed a proper picture, and these in dot form, as I understand it, what he relies upon. First of all he was half asleep, there was confusion, there was surprise, there was fear, there was stress. He was looking at a person he had never seen before, it all happened very quickly. He did not get close enough really to see the person, the lighting was not good, either inside or outside. He was distracted by the fact that he was being punched and so on.

All of those matters militate [counsel] says against a confident or reliable observation and when they got to the ATM, whilst it is conceded that it was better lit there than it was in the car-park they were only there for a couple of minutes. He was not really looking at the leader, it is urged. He was working the machine, and so on and then when you come to the photo-boards it is urged that you cannot be satisfied that he did not just pick the most similar person, that is, the one most closely resembling the offender, but you cannot be satisfied that he has picked a photograph of the very person. And he places great emphasis, [counsel] does, on the absence of a tattoo on his client's upper arm. He says that that is the clincher. If he had got this right, then that tattoo has got to be up here, and it is not. The Crown would say, "look, if he saw a tattoo maybe he is confused about where he put it, but there you are."

The other things I should mention to you, in relation to these alleged inconsistencies that [counsel] relies upon, they seem to be these. He did not tell the police that he saw a person for a second at the window of the car. He said something about seeing that person not through the window but through the mirror, at the committal. He did not mention in his statement to the police anyone saying anything about drugs. He has given different evidence, it is urged, about the lighting in the car-park. That he lied about the light being turned on in the van. That he is inconsistent about the time at which they spent in the car. He told you ten to 12 minutes. He told the committal, or he told the police five minutes. He got the tattoo wrong. His description of the person varied between curly hair and a little bit curly, and so on.

42 He concluded that part of his charge by summarising counsel's submissions this way:

In substance it is urged that you cannot be confident that Mr Rudi has reliably identified Mr Rout, for all of those reasons that have been put.

**43 The three grounds upon which the applicant relied all returned to the same point. Counsel submitted that, in the italicised parts of the passages in the charge which I have cited at [30] and [32]-[34], the learned judge -

• Misstated the evidence;[12] and counsel's closing address.

• Did so in a way which minimised the differences between Mr Rudi's account of what he had observed and the reality of the situation.

• Trivialised the differences, rather than warning the jury that they impugned, or were capable of impugning, the reliability of the witness's observations and hence his identification of the applicant.**

In consequence, counsel contended, a weakness in Mr Rudi's identification of the applicant was not exposed; for which reason, there being no forensic evidence - fingerprints or DNA material - to link the applicant with Mr Rudi's vehicle, and no sign of injury or resolving or resolved injury 'at any of the [applicant's] knuckles or knuckle area', the verdict was unsafe or unsatisfactory,[13] and a miscarriage of justice had thereby eventuated.

**44 I go first of all to the complaint concerning the position of the tattoo. Mr Rudi's evidence, at the end of cross-examination, was relevantly that the tattoo which he had observed was 'on' or 'at or about' the offender's shoulder; not 'on the upper part [of the arm] towards the shoulder'. So what his Honour said in the first impugned passage in his charge did not accurately reflect the witness's evidence. But as the charge proceeded his Honour did correctly state the import of that evidence. Further, he correctly stated the effect of the evidence given by the informant about the matter. On the other hand, when recounting the argument advanced by counsel for the applicant, the judge referred to 'the absence of a tattoo on [the applicant's] upper arm'.

45 To summarise, his Honour's initial description of the import of Mr Rudi's evidence was not accurate. Further, his account of the point made by applicant's counsel in his final address - although the Court has not seen a transcript of the address - was probably inaccurate. But elsewhere in his charge his Honour accurately stated the effect of the relevant evidence of Mr Rudi and the informant.

46 There must then be considered the related complaint that the learned judge erred by not specifically focussing the jury's mind on the difference between recollection and reality, as bearing upon the reliability of Mr Rudi's identification of the applicant. Counsel submitted that his Honour should have given such a direction in order to comply with requirements stated in the joint judgment in Domican v The Queen.[14] He particularly relied upon this passage:**

... the jury must be instructed "as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case". A warning in general terms is insufficient. The attention of the jury "should be drawn to any weaknesses in the identification evidence". Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.

47 Counsel also relied upon the following passage in the judgment of Hayne J in Festa v The Queen:[15]

The problem is more concrete than that. It is that witnesses may, with perspicuous honesty, give evidence that it was the accused they saw, or a person like the accused, or a person having particular physical characteristics (like those of the accused) and yet the painful experience of the law is that they may be mistaken. The duty of the judge is to draw the jury's attention in every such case, where the reliability of the evidence is disputed, to how and why the evidence may not be reliable. The trial judge did not do this sufficiently at the appellant's trial.

Of course, what is required will depend on the nature of the evidence that is given. If a witness says it was the accused that was seen, every element of the Domican direction will ordinarily be required.

**48 In the present case, Mr Rudi's stated recollection of the site of the offender's tattoo was far from central to his identification of the offender. Other matters were much more likely to have put the reliability of the witness's identification of the applicant in doubt: the applicant being a stranger, the period of observation, the fact that the witness was himself upset and fearful, the infliction of injury upon the witness, the state of the lighting, the intervention of other events, the particular dangers of photoboard identification. The learned judge raised all these matters for the jury's consideration.

49 So also, his Honour raised the question whether the witness had any good reason to remember the applicant. It was in that connection that his Honour first made mention whether the person observed had any distinctive features. He did so in making the point that an observer might be thought to have a reason for remembering the person observed if that person has some distinctive feature(s).

50 The presence of the tattoo was there being instanced as a reason why the witness would better remember the offender. In that connection, identification of the exact location of the tattoo as assigned by the witness was not central. This, in my view, explains why his Honour said :**

So Mr Rudi saw a tattoo. It is not as if he did not see any tattoo, but he thought it was up there instead of down there, if this is the right person ...

**51 I think that, understood in context, his Honour was not there trivialising, or apologising for, a variation between a characteristic of the offender as described and a characteristic of the applicant. Indeed, his Honour emphasised that the question whether the offender and the applicant were one and the same was a question for resolution - as he elsewhere explained, by proof to the criminal standard.

52 Having explained the context in which the impugned remark was made, I should add that in my opinion the presence of a tattoo on the offender's left shoulder was scarcely likely to cause the jury to think that Mr Rudi was more likely to 'remember the fellow that [he was] identifying'. The situation may be contrasted with one in which a stranger is seen by a witness running away from the scene of a crime. Here, Mr Rudi was remembering a man who had committed criminal acts against him. He had every reason to remember the man's face and general appearance.

53 The learned judge thereafter instructed the jury that the description of the offender given by Mr Rudi to the police soon after the incident provided a way of testing whether he had seen the man clearly enough to 'form the basis of an accurate picture'. There his Honour addressed the potential for unreliability in the witness's identification of the applicant. In other words, the same physical feature which might lead to a witness taking closer note of an offender might, by its description, illustrate the unreliability of the witness's later identification of the offender.

54 In the connection just mentioned, his Honour did not specifically advert to the variation between the site of the offender's tattoo - which he had misdescribed - and the site of the tattoo on the applicant's body. But his instruction immediately followed upon a passage in which he had noted a variation between what he had misdescribed and the reality of the applicant's tattoo. Whilst it would have been better for his Honour to have explicitly identified the matter as a possible weakness in Mr Rudi's identification of the applicant - although, for reasons later explained I think that any weakness was more apparent than real - the effect of what his Honour said was surely to point up a specific possible weakness in the identification evidence upon which the Crown relied.

55 Having identified the variation between Mr Rudi's recollection as (mis)described and the reality of the site of the applicant's tattoo, and having thereafter correctly stated the effect of Mr Rudi's evidence, the judge came to his summary of counsel's arguments. With respect to the arguments advanced for the applicant, he put to the forefront the variation between the site of the tattoo as described and the site of the applicant's tattoo. He did so by saying that counsel had placed 'great emphasis' upon the matter; and that counsel had said it was 'the clincher'.

56 In this Court, counsel complained that the judge had misdescribed the site of the offender's tattoo upon which counsel below had relied, and had not then endorsed counsel's submission. Rather, the judge had produced an answer to the submission, expressed as what the Crown 'would say' about the matter.

57 Assuming that the learned judge did misdescribe counsel's submission in the manner complained of, it is plain enough that his Honour did, and did not do, just what counsel submitted in this Court. But the question is whether he erred by not warning the jury at that point in his charge that the absence of a tattoo on the applicant's shoulder, or even his upper arm, constituted a weakness in Mr Rudi's identification of the applicant. I am not persuaded that his Honour did err. He had already instructed the jury, at very considerable length, about the problems of identification evidence. In that connection he had mentioned, by necessary implication, the variation between Mr Rudi's evidence as to the site of the offender's tattoo - even allowing that he had misdescribed the site in an inconsequential way[16] - and the site of the applicant's tattoo. I do not accept the proposition that, when summarising counsel's arguments, he was obliged to warn the jury again; or that he was precluded from stating an obvious riposte by the Crown to the point sought to be made for the applicant.

58 I have already noted[17] that ground 1, set out at [12], addresses only alleged misstatement by the judge of the evidence given by Mr Rudi as to the site of the offender's tattoo; but that, under cover of grounds 2 and 3 counsel for the applicant called in aid what he submitted were misstatements by the learned trial judge of evidence given by Mr Rudi as to a blemish on the offender's face; and failure by his Honour to tell the jury that Mr Rudi's evidence about the matter constituted a weakness in his identification of the applicant.

59 In my opinion, the judge did misdescribe the evidence; but it leads nowhere so far as the fate of the application is concerned.

60 Although in evidence in chief the witness said that he 'thought there was a scar on [the offender's] face, above his eyes, but [he did not] know which eye it was', he agreed in cross-examination that his police statement, made on the day of the incident, was the most accurate and complete account that he could give. There he had said that the offender had 'a cut around the right or left eyebrow'. He adopted that description in his evidence. Interviewed by the police artist a few days later, he referred to a 'red mark on eyebrow as if he had been punched earlier'. Cross-examined, he said that it was a cut rather than a red mark. In all, there was no doubt that the witness claimed to have seen a cut around one or other eyebrow of the offender.

61 Counsel cross-examined Mr Rudi to disclose that none of the photographs on the photoboard was of a man with 'a cut, a mark, in the eyebrow'. But if that was intended to imply that the witness's identification of the applicant was suspect, it necessarily failed because the witness was not constrained to approach consideration of the photographs on the basis that all of them, and specifically that of the applicant, had been taken at a time proximate to 4 March 2006. Indeed, had one of the photographs depicted a man with recent injury to his eyebrow area, there would have been room for complaint - even if the man so depicted had not been the applicant, and even if the witness had identified the applicant's photograph.

62 Counsel also cross-examined the informant to show that, when arrested on 29 March 2006, the applicant had what was described as a 2 cm scar 'under the left eye and cheek area' and 'a small scar under his eye somewhere'; but 'nothing [that the witness saw] in any eyebrow'.

63 To judge from his Honour's summary of the arguments advanced by applicant's counsel below,[18] no reliance was placed upon the absence, at date of arrest, of any injury in the vicinity of the eyebrow as a weakness in Mr Rudi's identification of the applicant. That is understandable. The absence at that time of recent injury to the eyebrow area could scarcely have been significant. The applicant was not arrested until more than 3 weeks after the offending conduct against Mr Rudi.

64 Further, his Honour's summary does not indicate that counsel relied upon any aspect of the injury described by Mr Rudi as constituting a weakness in his identification of the applicant. But in this Court, as I have said, counsel advanced such an argument, his starting point being that the judge had misdescribed the witness's evidence.

65 In his charge, the judge made two references to the injury now under discussion. First, when referring to matters which might have caused the witness to better remember the man whom he was identifying, he said:**

Similarly, the scar near his eye, he saw something. It is not shown in the [face image] because he could not do enough with the eye to identify him'.

66 Second, he summarised the relevant part of Mr Rudi's evidence this way:

**67 Counsel submitted that the first description was wrong because it referred to a scar near the eye rather than a cut in the eyebrow region; and that the second description was wrong because it referred to a blemish on the left side when the witness had said that he could not say on which side the injury was.

68 Counsel's submission was well-founded to the extent that his Honour referred to a scar, and to left-sided injury.

69 I do not, however, accept counsel's submission that the judge failed to draw attention to a possible weakness in Mr Rudi's identification of the applicant in that he had described the offender as having a cut in the area of one of his eyebrows whereas the applicant exhibited no such injury; or that he trivialised any difference between the offender as described and the applicant. Following his first reference to the particular injury, made in conjunction with his initial reference to Mr Rudi's observation of a tattoo, which references were made for the purpose which I earlier identified, the learned judge instructed the jury that descriptions which the witness had given could be used to test whether or not he had seen the offender clearly enough to form an accurate picture for identification purposes. He asked, rhetorically, '[d]o the descriptions ... match sufficiently the man that has subsequently been identified.

70 What his Honour said served, by implication, to draw the attention of the jury to the potential significance, when assessing the reliability of Mr Rudi's identification of the applicant, of variations between the witness's description of the offender and the applicant. In fact, by referring to a scar rather than a cut, the judge might well have advantaged the applicant. It is a commonplace that not every cut ends in a visible scar. All that could truly be said was that on 4 March Mr Rudi had observed a cut on the offender, and that on 29 March there was no cut. No inconsistency was thereby demonstrated. But his Honour's charge, by suggesting that a scar had been seen at the outset, created the possibility of there being a perceived inconsistency between the offender as described and the applicant. In all, I consider that his Honour needed to say nothing more about the significance of the injury in the eyebrow region than he did.

71 Thus far I have concluded that the judge did misdescribe, whether once or twice, Mr Rudi's evidence about the site of the offender's scar; that he twice misdescribed an element of the offender's facial injury as described by the witness; and that he gave a sufficient warning - though founded on misdescriptions - that variations between what Mr Rudi described as his observations of the offender and the applicant's characteristics could constitute weaknesses in his identification of the applicant. The question which remains is whether the guilty verdicts were unsafe or unsatisfactory.[19] In that connection, the question is whether upon the whole of the evidence this Court thinks it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.[20]

72 The Crown case against the applicant rose or fell on the identification evidence. So it did in the case of the co-accused Styles, who was acquitted.

73 Identification evidence apart, the evidence otherwise did not advance the Crown case against the applicant. There was no DNA link, there were no fingerprints, there were no resolved or resolving injuries to the knuckles of his hands. In a practical way, not only did the absence of such evidence not assist the Crown case, it advantaged the applicant's defence.

74 Then one comes to the identification evidence. I have earlier referred to most of it. Particularly, there was Mr Rudi's viva voce evidence and the face image.

75 It must not be forgotten that the jury was 'the body entrusted with the primary responsibility of determining guilt or innocence'; and that the jury had 'the benefit of having seen and heard the witnesses'.[21] Even so, the law recognises that a truthful witness - and Mr Rudi's truthfulness was not in substance attacked - may fall into error in identifying an offender. So it is not just a question of saying that the jury must have found Mr Rudi to be a credible witness; and that it accordingly found his evidence reliable and convincing.

76 Considering all the evidence, as I must do, it seems to me that for the reasons which follow it was well open to the jury to be satisfied of the applicant's guilt to the criminal standard.

77 First, Mr Rudi had an opportunity, over a period of quite some minutes, of observing the man whom he described as the leader.

78 Second, for at least for part of that time he and the man were in the vicinity of an ATM. Whatever might be said about the extent of lighting within the vehicle, he and the particular offender were in close proximity at a site where the light was evidently adequate for banking transactions.

79 Third, Mr Rudi explained why it was that he made special observation of the particular offender. He was the most aggressive towards the witness.

80 Fourth, consistently with Mr Rudi having made a closer observation of the particular offender than of either of the other men, he was able to give instructions which enabled a face image of that offender to be constructed.

81 Fifth, having viewed the face image and the photograph which Mr Rudi identified, I consider that it is readily explicable why Mr Rudi made that identification.

82 Sixth, the face image, given its lack of detail in two respects, also suggests to me that the witness had - as he claimed - a clear picture of the offender in his mind's eye. It was compatible with his evidence that he was unable to express the totality of what was in his mind's eye.

83 Seventh, the other alleged weaknesses in identification and inconsistencies in Mr Rudi's evidence upon which, it appears, applicant's counsel relied at trial - the judge referred to them in his summary of counsel's arguments which I have earlier excerpted - seem to me to be of little significance. For example, it is true that Mr Rudi was awakened by the offenders. If he had only observed them when he was half awake, that would have been one thing. But it was not the situation. Again, if Mr Rudi's only opportunity of observing 'the leader' had been when the latter was assaulting him, his ability to identify the man might have been compromised. But that was not the situation.

84 Eighth, I think that not much is to be made of the variation between the site of the offender's tattoo described by Mr Rudi and the site of the applicant's tattoo. Neither, in my opinion, should the jury's verdict be impugned because the judge on one or two occasions misdescribed the site observed.

85 In descending order of potential significance, I should think, most people would place (1) variation between a described feature critical to identification and the absence of that feature on the person identified;[22] (2) the person identified not having a described gross abnormality of the offender, notwithstanding that the abnormality was not pertinent to the identification made;[23] (3) the person identified not having a described physical characteristic of a lesser order of magnitude, notwithstanding that the characteristic was not pertinent to the identification made;[24] (4) the person identified having a variant of a described characteristic, such characteristic not being pertinent to the identification made.

86 I would place the actual variation between the site of the offender's tattoo as described by Mr Rudi and the site of the applicant's tattoo as falling into the last-mentioned category. I cannot exclude the possibility that, in a particular case, such a variation might lead a jury to not accept, to the criminal standard, identification of the accused. But in the present case I cannot accept that the actual variation meant, in the overall context of the evidence, that it was not open to the jury to be so satisfied. It is much more likely, I think, that the jury would have reasoned - permissibly, in my opinion - that the actuality of the applicant's left-sided tattoo told in favour of the identification made by Mr Rudi.

87 Neither do I consider that the judge's misdescription of the site described by Mr Rudi should lead to the jury's verdict being impugned. The point which applicant's counsel sought to make was that there was a variation between description and actuality; and that this bore upon the reliability of the identification. The geographical extent of the variation was not pertinent, except if the misdescription had compressed it to the point where it scarcely existed. That did not happen here.

88 It should also be remembered, when evaluating the complaint made in this Court, that counsel for the applicant below used variant language at times when cross-examining about the site of the offender's tattoo; and that no exception was taken to the charge, which had raised the particular issue at three different points.

89 Ninth, little more need be said about the described injury to the offender's eyebrow region. I make three observations. First, even putting aside the prospect that Mr Rudi simply misdescribed the site of something which he saw, the presence of injury such as he described on 4 March did not gainsay its absence on 29 March, and so would not lead me to conclude that there was doubt about the reliability of his identification. Second, the judge's misdescriptions of the observed injury do not lead me to think that the jury's verdict ought be impugned. For reasons indicated, one misdescription was likely to have worked, in the applicant's favour; whilst the other was unlikely to have caused the jury to think that the injury observed and the applicant's scar were one and the same. Third, it seems likely, as I said earlier, that no final submission was advanced for the applicant at trial about conflict between the injury observed and the absence of such injury to the applicant; still less that his Honour's charge had misdescribed Mr Rudi's evidence so as to conceal a weakness in the witness's identification of the applicant.

90 In the event, I would refuse the application for leave to appeal against conviction.**

**91 Counsel for the Director pressed ground 2. He also advanced ground 1, but did so 'faintly'. Albeit, he submitted, that the sentence had been quite inadequate, there was a serious question whether it was possible to clear the high hurdle which is necessary before a Director's appeal may be allowed.

92 In my opinion, each aspect of those submissions should be accepted. I must explain why that is so.**

**93 It was common ground that, in sentencing the applicant (as I shall continue to call him), it was appropriate for the learned judge to impose an aggregate sentence.[25] The judge agreed that such a course was appropriate.

94 Concerning the offences, his Honour concluded that the applicant and his co-offenders had commenced to break in to what was believed to be a vacant van. When they found that the van was occupied, they decided to engage in the course of conduct which gave rise, as things progressed, to the counts of which the applicant had been found guilty.

95 Against that general background, his Honour further evaluated the criminality of the offending. He said this:**

As indicated by the maximum respective penalties, these types of offences are serious offences. However, to evaluate the gravity of these specific offences I must consider all the facts and circumstances surrounding these specific offences. Relevant matters include that there were three of you, that it was Mr Rudi's own van which was broken into and driven off and eventually stolen, that physical force by way of punches were thrown, that a threat to kill unless he cooperated was made, that the episode lasted at least approximately 20 minutes, that a screwdriver, although not used in the robbery, was in the possession of one of the three during the early part of the episode, and that you were the leader of the group.
On the other hand, these offences were not planned nor premeditated. It was a spur of the moment decision to commence this offending. The offences of kidnapping and false imprisonment in the present circumstances overlap to a large degree, as the Crown agree. The threat to kill was part of the threat of force used to effect the robbery. So again there is what I call considerable overlapping.

96 The judge noted a concession made by the Crown:

As I have understood it, the Crown concedes that substantial concurrence would be required in these circumstances. It does not mean that this offence of kidnapping was not a serious offence, to say, as I do, that it is distinguishable from the more serious types of kidnapping and is at the lower end of the range of such offences.

97 His Honour then turned to the applicant's previous criminal history. He said this:

You have ... many prior convictions for dishonesty and violence. You have conceded a subsequent conviction for violence which was committed, however, prior to these offences. It was committed in March 05. Your prior convictions commenced when you were aged about 15. If my analysis is correct, there are only one prior conviction and the subsequent offence for violence since you turned 18. The latter of such offending is over two and a half years ago, and the other over five years ago.

**98 His Honour next identified, as prominent sentencing considerations, denunciation and deterrence both general and specific. He referred also to the relevance of prospect of rehabilitation, concerning which he noted that he had received a body of favourable and unchallenged material. He accepted that there were 'many signs that [the applicant] was progressing well along the rocky path to ultimate rehabilitation'.

99 In the course of his discussion of the applicant's prospects of rehabilitation, the learned judge referred to the applicant still being a young man. He said nothing elsewhere in his sentencing remarks to indicate whether he had taken the applicant's relative youth into account in the sentencing synthesis.

100 Although his Honour expressed the opinion that time spent in custody might 'well undo a lot of good work', he did not accede to the submission of applicant's counsel that time counted as pre-sentence detention - about five months - should be the non-parole period which he fixed. He did, however, conclude that the 'non-parole period should be as short as can properly be fixed'.

101 Then, without more, his Honour imposed an aggregate sentence of three and a half years imprisonment with a non-parole period of 15 months.

102 The prosecutor immediately drew his Honour's attention to the decision of this Court in DPP v Felton,[26] and submitted that his Honour was obliged to give reasons for the aggregate sentence. Then followed an exchange between his Honour and counsel which it would not be useful to recite. The upshot, assuming his Honour could have given the requested reasons after he had pronounced sentence, was that he concluded that he was not bound to do so, and would not do so.

103 In my respectful opinion the learned judge misunderstood what was said in Felton,[27] an authority which is of general application.

104 In Felton, Buchanan JA made the point, first, that -**

In cases where there are a limited number of counts, generally it will not be necessary to impose an aggregate sentence in order "to more clearly explain to the community the total sentence" that the Court is imposing. In fact, the imposition of an aggregate sentence may obscure how the sentencing judge has arrived at individual sentences and the manner in which those sentences have contributed to the total effective sentence.[28]

105 This case may be said to be an exemplar of that consequence. But accepting that it was nonetheless open to the learned judge to impose an aggregate sentence, the following observations by Buchanan JA were in point -

In such a case, in my opinion, it is still necessary for the sentencing judge to identify, at least in general terms, the components of the sentence, that is, the individual terms and the extent of concurrency and cumulation he has employed, in order that the public and appellate courts can discern how the sentencing judge has viewed the gravity of the offences committed by the accused.[29]

**106 Kellam AJA, as his Honour then was, extensively discussed the circumstances in which an aggregate sentence may be imposed, and what will be required in sentencing remarks if such a sentence is to be imposed.[30]

107 His Honour referred with approval to relevant principles of sentencing practice described by Ormiston JA in DPP v Grabovac,[31] and then said this:**

Accordingly, if an aggregate sentence is under consideration it is necessary for the sentencing judge to identify, in accordance with the above principles, separate events giving rise to specific counts, or groups of counts, and to order appropriate accumulation if appropriate, or alternatively to state specifically, as part of the reasons which are required by s.9(3) of the Sentencing Act for imposing an aggregate sentence, that all counts the subject of such a sentence are being treated as concurrent. To fail to do so would substitute aggregate sentencing for the existing law and practice relating to the structure of multiple sentences, an intention which was clearly not intended by the amended s 9 of the Sentencing Act introduced last year.

In my view, to include an unstated element of cumulation in an aggregate sentence does not provide for the transparency required in the sentencing process. It does not enable proper analysis by the community, the offender or an appellate court of the sentence and in particular of the unidentified components of the aggregate sentence. On the other hand, if the aggregate sentence is to comprise partially, or wholly, appropriate cumulation it will be necessary for the sentencing judge to identify the basis and nature of that. In effect the only safe course will be to approach the sentencing process in accordance with the general principles set out in Grabovac, and as one would do if the discretion provided for by s 9 of the Sentencing Act did not exist. It is necessary that the approach be similar to that suggested by Doyle CJ in R v Major. That is that if an aggregate sentence is imposed, using s 9 of the Sentencing Act, then the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process consideration must be given to whether the sentences imposed should be concurrent or should have some degree of cumulation. As Olsson J said in R v Major, when an appropriate aggregate sentence has been arrived at it is necessary to "stand back and review the result in light of the totality principle".[32]

108 His Honour explained why it was that there should be such requirements in respect of sentences imposed by higher courts:

As both Ormiston and Tadgell JJA observed in R v Bibaoui, it is necessary for an appeal court to understand not only the penalty imposed, but the reasoning behind the imposition of each penalty. As pointed out by Tadgell JA the position upon an appeal following conviction and sentence for an offence tried summarily is very different from an offence not tried summarily, in that an appeal to the County Court involves a rehearing of the proceeding.[33]

109 What Kellam AJA said in Felton has been reiterated in later decisions of this court.[34] The required task need not be unnecessarily burdensome. It is to be remembered, as Redlich JA observed in R v Wong[35] that:

The judgments of both Buchanan JA and Kellam AJA drew upon passages from a number of judgments of Doyle CJ which emphasise that no rigid formula need be followed when explaining the aggregate sentence. But some explanation is required that enables the offender, the public and an Appeal Court to understand the reasoning process by which the single sentence was fixed.[36]

**110 The learned judge evidently considered, probably correctly, that the prosecutor had made a number of unhelpful submissions at the plea hearing. It seems that counsel did not articulate, except for the concession that a measure - 'probably a very large measure' - of concurrency was appropriate to the sentences imposed on counts 1 and 2, how his Honour should, according to the Crown, approach sentence for the various offences.

111 Nonetheless, it appears that the Crown case at trial was advanced on the basis that the kidnapping (count 1) was constituted by the initial detention of the victim with the requisite intent, that the false imprisonment (count 2) embraced that whole period of detention, that the threat to kill (count 3) was constituted by the threat immediately antecedent to the victim withdrawing cash from the ATM, that the robbery (count 4) was the taking of the money which the victim had withdrawn, and that the theft (count 5) was the theft of the victim's vehicle.

112 So approaching the matter, counsel for the Director submitted that the two most significant offences were the kidnapping, which he described as relatively serious but at the lower end of offences of that kind, and the robbery, which he characterised as a second relatively serious offence. He submitted that the judge should sensibly have approached sentencing, had he undertaken a traditional sentencing exercise, by grouping together the kidnapping and the false imprisonment (and perhaps the theft), and by grouping together the threat to kill and the robbery. Within the two groups of offences, the judge might reasonably have considered that complete concurrency was justified. But he ought to have concluded that there needed to be some cumulation of sentence on one of the more serious counts upon sentence imposed on the other. Had such an exercise been undertaken, counsel submitted, an aggregate sentence would evidently have been arrived at which was much greater than the sentence actually imposed.

113 The short point, with respect to ground 2, is that an exercise such as counsel described was necessary; and it was not undertaken. This Court, in the result, has no idea what individual sentences his Honour considered would have been warranted on the various counts, nor whether his Honour considered that a degree of cumulation as between sentences passed on some and which of the counts would have been required when regard was had to considerations of totality and proportionality.

114 When imposing the aggregate sentence, the learned judge must have engaged in a mental exercise in which he considered what sentence he would otherwise have imposed. That this must be so is made clear by s 9(2) of the Sentencing Act. How could a judge know that the intended aggregate sentence did not infringe that subsection if the alternative exercise had not been undertaken, at least in general terms? What was required was that the mental exercise be revealed in the sentencing remarks.**

**115 I go, then, to ground 1. The alleged inadequacy of the sentence can be tested by undertaking the kind of exercise which the judge did not undertake.

116 I think that the sentencing facts which his Honour found established and to which I have referred are a proper starting point for the exercise.

117 If this was a greenfields exercise, a sentence which had regard to the principles described in Grabovac might reasonably be along these lines:**

Count 2, false imprisonment: 18 months' imprisonment.

Count 4, robbery: 2 years and 3 months**'** imprisonment.

I think, bearing in mind proportionality and totality, that one might cumulate 3 months of the sentence on count 2, 1 year and 2 months of the sentence on count 4, and 1 month of the sentence on count 5 on the base sentence imposed on count 1. That would yield a total effective sentence of 4 years and 6 months' imprisonment. Considering there to be a real prospect of rehabilitation, particularly for a still youthful offender, one might then fix a quite short non-parole period - say 2 years.

**118 The analysis which I have just undertaken shows that the aggregate sentence which the learned judge imposed was considerably inadequate. The requirement of s 9(2) that an aggregate sentence is not to exceed the total effective sentence which would otherwise have been imposed does not have as its corollary the proposition that an aggregate sentence is to be less than the sentence which would otherwise have been imposed.

119 What I consider to have been the inadequacy of the sentence imposed needs to be considered in light of the well-known authorities which have repeatedly stressed the limited circumstances in which this Court will intervene on a Director's appeal. Consonant with those authorities, I am not prepared to conclude that the sentence imposed ought attract this Court's intervention.

**121 I agree with Ashley JA that the application for leave to appeal against conviction should be refused.

122 I also agree with the sentencing analysis undertaken by Ashley JA concerning the Director's appeal against sentence and with the outcome his Honour proposes that the appeal should be dismissed.

[1] [2007] VSCA 65; [2007] 16 VR 214, having been the sentencing judge in that case.

[2] See R v Felton, ibid [2] and [46]-[47].

[4] Crimes Act 1958, s 63A, maximum penalty 25 years' imprisonment.

[5] Contrary to the Common Law; and see Crimes Act, s 320. Maximum penalty 10 years' imprisonment.

[6] Crimes Act, s 20, maximum penalty 10 years' imprisonment.

[7] Crimes Act, s 75A, maximum penalty 25 years' imprisonment.

[8] Crimes Act, s 74, maximum penalty 10 years' imprisonment.

[9] Crimes Act, s 75, maximum penalty 15 years' imprisonment.

[10] The man's eyes and eyebrows were blanked out in the image.

[11] In his police statement, and at the committal hearing.

[12] Ground 1 only proposes that the judge misstated Mr Rudi's evidence concerning the site of the offender's tattoo. But under cover of grounds 2 and 3 applicant's counsel also submitted that his Honour misstated the witness's evidence as to the nature and location of a cut on the offender's face.

[13] M v The Queen [1994] HCA 63; (1994) 181 CLR 487. The test formulated by Mason CJ, Deane, Dawson and Toohey JJ, 493-494 is to be applied: MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 614-615, [25]-[26] (Gleeson CJ, Hayne and Callinan JJ), 624, {59] (McHugh, Gummow and Kirby JJ).

[14] [1992] HCA 13; (1992) 173 CLR 555, 562 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

[18] With the possible qualification of what might be encompassed by the words 'and so on' at the end of his Honour's summary of the matters relied upon by applicant's counsel.

[19] In written submissions it was contended for the appellant, in effect, that a miscarriage of justice was the consequence of the verdicts being unsafe or unsatisfactory. It is unnecessary to consider miscarriage of justice discretely.

[20] Paraphrasing M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).

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