SUPREME COURT OF QUEENSLAND

1. THE COURT:  After a trial in the District Court the appellant was convicted on 31 March this year on one count of entering the dwelling house of Norman Robbie Elsom in the night time with intent to commit an indictable offence and one of assaulting Elsom with intent to steal, using actual violence whilst armed with an offensive instrument and in company, both on 12 February 1997.  He was sentenced to five years imprisonment on each count.  He appeals against his conviction and seeks leave to appeal against his sentence.

2. The sole ground of appeal against the conviction is that the learned trial judge erred in inadequately directing the jury in relation to identification of the appellant. His Honour gave directions with respect to identification but the submission is that these did not adequately isolate and identify for the jury matters of significance which might reasonably be regarded as undermining the reliability of the identification evidence.^[1]  In order to understand that ground it is necessary to describe the circumstances of the offences.

3. At about 3.30 am on 12 February 1997 three people entered a home unit occupied by Mr Elsom. He was alone in the unit at the time and was asleep in his bed. He awoke to find one person straddling his chest with his hands around his throat. Another who was wearing a balaclava with odd shaped holes in it was beside the bed holding Elsom down and a third person, who had a silver metal torch in his hand, the light of which was on, was striking him about the legs with it. The lights in the complainant's unit were off but there was light coming in the window, probably from the outside light of units opposite his but also probably from moonlight. Although the torchlight was on, because of the way in which the torch was being used, first as already mentioned to strike the complainant on the legs but later to strike him on the head, its light flashed about. None of the offenders was previously known to the complainant.

4. The man straddling the complainant's chest demanded money and jewellery. The complainant described the man's voice as a "very raspy, rough sort of voice. I felt that it had an Islander trait in it, in its – in a sort of guttural sort of tone".

5. There was a violent struggle which the complainant thought lasted about 20 minutes during much of which time the principal assailant was sitting astride the complainant's chest with his hands around the complainant's throat and his face close to the complainant's. The disturbance attracted the attention of two neighbours one of whom noticed a mature person getting into a sedan motor vehicle which he thought was a late 80's model Holden or Ford Falcon, of boxy shape, white in colour, which then drove away. The complainant was left with substantial bruising to his cheek, throat, chest wall and knees.

6. The prosecution case was that the appellant was the offender who straddled the complainant and demanded money and jewellery. That was the only issue at the trial, the appellant claiming that he was in Sydney on the night in question and calling some of his relations as alibi witnesses.

7. The complainant described his principal assailant as thick set, having "sort of matted hair, very strong body odour, about 14 stone, 5 foot 10, of Maori ... some sort of Islander ... ". He said he thought that because of the darkness of his skin and a particular body odour. He also described him as wearing "a leather vest or jacket ... I thought it was a jacket ... leather tassels on it". On the same day he was able, with police assistance, to prepare a comfit likeness of his assailant's face which became an exhibit before the jury.

8. A leather vest with leather tassels was found in the appellant's possession which the complainant identified as the one he saw the assailant wearing. It had a distinctive and strong body odour which the complainant identified as the odour he smelt on the night in question. Also in the appellant's ownership was a 1988 model white Falcon sedan which could accurately be described as being of boxy appearance. Also found at the appellant's premises were a beanie with holes cut in it of a kind similar to the balaclava described by the complainant as having been worn by one of the other offenders and a metal torch, silver in colour, similar to the one described by the complainant as having been wielded by the third offender.

9. On two occasions after the commission of these offences, on 4 March and 27 March the complainant received anonymous phone calls in which the caller mentioned, amongst other things, diamonds, money and the name Ginarelli. The caller threatened "We'll be back in touch with you". The complainant said that he immediately recognized the voice of the caller as that of the person who had straddled him in his bed. The appellant admitted to making those telephone calls from his mobile phone. He is of Maori descent.

10. On 24 September 1997 the complainant identified the appellant as his principal assailant from a photo board of 12 photographs. The process of identification was video recorded.

11. It was not argued in this Court that the evidence was insufficient to enable the jury to be satisfied that the appellant was indeed the offender. On the contrary it was conceded that the case against the appellant was a strong one. Moreover this is not a case^[2] in which, though there is other evidence implicating the appellant, the identification evidence is weak.  On the contrary it was the identification evidence which was conceded to be strong, consisting as it did of visual identification of the assailant's face, hair, colour of skin, height and build, voice identification, a distinctive odour and identification of a jacket or vest.  There was also the supporting evidence of the beanie, the torch and the car.  The complaint was, nevertheless, that the learned trial judge did not identify a number of significant matters which, it was said, might reasonably be regarded as undermining the reliability of the complainant's identification of the appellant.  These were said to be:

1. that the appellant was not previously known to the complainant;

2. that the incident occurred in a dark bedroom with only moonlight, lighting from another building and intermittent torch light;

3. the complainant's apparent lack of confidence in clearly seeing the offender's face in his statement that "so I did get to sort of see his face";

4. that the opportunity for visual identification occurred in a stressful and violent atmosphere;

5. that the only specific identification of the appellant's face was that he had matted hair and dark skin;

6. that the photo board identification was approximately seven months after the incident;  and

7. that the garment described by the complainant was said to be a jacket, that is one with sleeves, whereas that found in the appellant's possession was a sleeveless vest.

No redirection was sought at the trial in respect of any of these matters.

12. Before turning to the significance of these matters and the extent to which, if at all, the learned trial judge dealt with them, something should be said about the principle, derived from Domican v The Queen^[3] upon which this submission was based and its application.  The majority judgment in that case stated that where identification evidence represents a significant part of the proof of guilt and its reliability is disputed:

1. the judge must warn the jury as to the dangers of convicting on such evidence;

2. the terms of that warning need not follow any particular formula but must be cogent, effective and appropriate to the circumstances of the case;

3. consequently it is not sufficient to give a warning in general terms;  the 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.^[4]

13. Whilst these principles are not in doubt their correct application continue to attract argument on appeal. One reason for this appears to be a failure to distinguish between matters which a jury, at the time of trial, might reasonably have considered significant as showing weaknesses in the identification evidence and matters which, with time and reflection, may appear significant by the time of appeal.^[5]  As will appear most of the matters referred to above are, at best for the appellant, in the latter category only.

14. In addition to the significance of the above matters, questions also arise as to their correctness in fact and the adequacy of the warning in respect of each. We shall consider the matters in turn.

That the appellant was not previously known to the complainant.

15. It is true that the learned trial judge did not, in terms, say to the jury that the appellant was not known to the complainant. But that was self-evident; it was of the very essence of the prosecution case and of the trial judge's summing up. There could be no question of the jury thinking that this was a recognition rather than an identification case and his Honour pointed out to the jury the difference between somebody recognizing a person they knew and identifying a person not known to them. We do not think that, in the circumstances of this case and that distinction made by his Honour, it was necessary to add that this was a case of the latter kind. That fact was so obvious and so essential a part of the prosecution case as to make a specific statement of it unnecessary.

That the incident occurred in a dark bedroom with only moonlight, lighting from another building and intermittent torchlight.

16. His Honour described as obvious the fact that the circumstances in which the complainant had an opportunity to look at his assailant were not ideal. The light he said was not particularly good. And he went on to say that it was not a situation in which he could calmly observe his assailant; that he was moving his head about trying to shift his assailant's hands from round his neck. His Honour was plainly saying, though he did not say so expressly and did not need to, that the state of light, as well as the other circumstances, made the complainant's task of visual identification more difficult. We do not think that anything more was required in this respect. The question must be considered in the light of the directions as a whole including some of those referred to below.

The complainant's apparent lack of confidence in clearly seeing the offender's face in his statement that "so I did get to sort of see his face".

17. It is unclear whether this was a statement intended to express some limitation in the complainant's effective vision of his assailant's face or a mere manner of speech. His Honour told the jury that the complainant "told you that he was able to get some sort of look at the man who was sitting astride him", which expressed the complainant's evidence in this respect no less favourably to the appellant than the evidence which the complainant in fact gave. And his Honour went on immediately to tell the jury about the state of the lighting. Even if the statement expressed some impairment in the clarity of the complainant's vision it did not, in our opinion, show any lack of confidence in the correctness of his identification. On the contrary, his evidence, on the whole, showed considerable confidence in that respect. We do not think that there was any inadequacy in this respect.

That the opportunity for visual identification occurred in a stressful and violent atmosphere.

18. We have already referred to his Honour's saying that it was not a situation in which he could calmly observe his assailant and that he was rolling his head around trying to shift the hands off his neck. His Honour had also earlier said to the jury that it "no doubt would have occurred to you that if you are in bed asleep and you are awoken in the early hours of the morning with a heavy man sitting on your chest and his hands around your throat and other men in the room, one holding you in some way and another hitting you from time to time with something that hurts, your ability to calmly assess the situation and lay down accurate memories of just what is occurring at what time and how long for may be under some stress." These were, in our view, sufficient directions on this aspect of the evidence.

That the only specific identification of the appellant's face was that he had matted hair and dark skin.

19. That is not correct. It is true that that was the extent of his oral evidence about his assailant's face. He also gave evidence, it will be recalled, about his assailant's size, weight and shape, of his distinctive smell and of his voice. More specifically with respect to his face he was able to give a sufficient description to the police on that morning to enable the preparation of the comfit picture which was before the jury. We do not think it would have been correct in the light of these identifications, to say, as contended on the appellant's behalf, that the identification evidence was in equivocal terms.

That the photo board identification was approximately seven months after the incident.

20. In the first place his Honour's directions made this lapse of time clear. His Honour said, admittedly in general terms, that the fact finding tribunal needs to keep in mind the period which has elapsed between the time the complainant saw the offender and the time he later made the identification because, his Honour said, it is quite notorious that memory fades over time. Then, within several sentences of saying that, his Honour said to the jury that the identification occurred on 24 September 1997 and, within a few further sentences, referred to the alibi evidence for 11 February 1997.  Moreover it is necessary to consider these directions in the context of a summing up in which his Honour had earlier taken the jury through the sequence of events after the commission of the offence on 12 February 1997;  the phone calls, admittedly from the appellant, on 4 and 27 March;  a search of the appellant's premises which located the leather vest, balaclava and torch;  the identification of this property by the complainant on 12 August and then, on 24 September, the photo board identification.  This reference to the dates on two separate occasions in the course of his Honour's summing up, which was not long, could have left the jury in no doubt of the time which elapsed between the commission of the offence and the identification of the appellant on the photo board.

21. Secondly we would not accept that the fact that the photo board identification was seven months after this terrifying event, kept in the complainant's mind by the sequence of events we have related, was, in the circumstances of this case, a matter of significance reasonably to be regarded as undermining the reliability of that identification.

That the garment described by the complainant was said to be a jacket, that is one with sleeves, whereas that found in the appellant's possession was a sleeveless vest.

22. The garment which the jury saw was produced in Court before us. Its visual significance is that it is leather with leather tassels. Its other significance was its distinctive smell. Whether or not it had sleeves is, in our opinion, of minor significance only.

23. We would therefore dismiss the appeal against conviction.

24. As the appellant's counsel outlined them there were three grounds of appeal against sentence. They were that the learned sentencing judge took into account an irrelevant consideration, that he placed too much weight on matters of personal and general deterrence and that he failed to place sufficient weight on a number of identified mitigating factors.

25. The irrelevant consideration which it was submitted his Honour took into account appears, it was submitted, in the following sentencing remarks by his Honour:

"You very clearly were one of the persons who were in that unit that night.  There is more to this than came out in the trial.  I am satisfied about that.  There is something in the background that led to your taking part in this."

26. There is no doubt that his Honour's statement was accurate. In one of the telephone conversations to which we have already referred the appellant referred to a man called Ginarelli and to diamonds. The complainant had known a man called Ginarelli slightly some years earlier when he lived in Melbourne and, when he lived in Melbourne, had been a diamond dealer. He said in evidence that his former wife, from whom he was now divorced, and who now lived in Noosa not far from where the offences occurred, would be the only person who would know that he had known Ginarelli or that he had been a diamond merchant in Melbourne.

27. More importantly his Honour's statement did not appear to be one which he thought necessitated more severe punishment. It was no more than one of puzzlement that there were facts which might in some way be relevant to this offence which had not emerged. This ground in our opinion has no substance.

28. Turning to the second ground, in cases of this kind personal and general deterrence are generally the most important factors in sentencing. This was a violent, unprovoked and terrifying attack on a defenceless person in his own home. The appellant was plainly the principal offender and although, in the end, the complainant suffered no serious injury, he might reasonably have thought, as he apparently did, that the appellant intended to throttle him. We do not think that anything which his Honour said indicated that he placed too much weight on deterrence.

29. The factors which, it was submitted, should have been given more weight in the appellant's favour by the learned sentencing judge were the appellant's maturity with no previous convictions, his very solid work history over 22 years, his stable domestic situation, the fact that he has leg and back injuries with partial disabilities, the limited nature of the actual injuries inflicted, the absence of weapons and that no property was stolen. It is true that all of these are relevant factors in sentencing. Their importance in the context of a case such as this, however, is another matter.

30. There is one further aspect of this case which, in our opinion, makes it a very serious one. This concerns the phone calls which the appellant made to the complainant after the commission of these offences in which he made implicit threats. This has significance in two ways. The first is that it indicates that the appellant knew who the complainant was and consequently makes clear that these offences were premeditated. The second is in indicating his defiance of the law and preparedness to continue in his intimidatory conduct towards the complainant after the commission of these offences.

31. The best argument for the appellant against the length of the sentence imposed on him lies in counsel's reference to previous decisions of this Court which he submitted were comparable. Those to which he referred were R v Anderson CA No 434 of 1995, R v Brelsford CA No 301 of 1995, R v Wardrop CA No 141 of 1996, R v Austin, Liddell and Townend CA No 133, No 134 and No 135 of 1997, R v McCrea and Robbins CA No 272 and No 291 of 1994, R v Houghton and Genrich CA No 424 and No 425 of 1997, R v Palmer CA No 181 of 1998, R v Stephens CA No 462 of 1997, R v Suthern CA No 69 of 1998 and R v Fatnowna CA No 259 of 1999.

32. Although all of these cases involve home invasions the facts in none of them are closely comparable to those in this. However the point made by Mr Moynihan for the appellant is that in each of them weapons were actually taken by the assailant or assailants to the premises which they entered, the injuries inflicted were more serious than those inflicted here and yet in none of those cases were sentences longer than four years imprisonment imposed. However only two of those cases, Suthern and Fatnowna, were decided under the Penalties and Sentences Act 1992 as amended by the amendments which came into effect on 1 July 1997.  Relevantly those amendments required a sentencing court in a matter of this kind to have regard, amongst other things, to the need to protect members of the community from the risk of physical harm, the nature or extent of the violence used, any remorse or lack of remorse of the offender and anything else about the safety of members of the community that the sentencing court considers relevant.^[6]

33. Suthern pleaded guilty to housebreaking with actual violence in company and armed with an offensive instrument, two of assault occasioning bodily harm while armed with an offensive instrument and in company and some other lesser offences. He was sentenced to three years imprisonment. He used a plastic pipe to strike one of the complainant's twice on the arm as the latter shielded his head. The applicant in that case was only 21 at the time of commission of these offences. The sentence was not overturned on appeal to this Court.

34. Fatnowna was convicted after a trial for offences the major one of which was an assault causing bodily harm whilst armed with a wooden club and in company. Fatnowna struck the complainant a number of times with the club breaking his nose and causing some bruising to his arms and chest. The appellant was, like the appellant here, a mature man. He was 41 years of age. He had a minor criminal record but no previous offences of violence. The sentence imposed which was one of three years suspended after six months was described by this Court on an Attorney's appeal as being light but, with apparently some hesitation, this Court declined to interfere with it.

35. The respondent relied principally on the cases of Palmer already referred to, and McBride, CA No 48 of 1995.  Neither of these cases assists greatly in the determination of the appropriate sentence here although in McBride the Court thought that a four year term of imprisonment was an appropriate head sentence for an offence committed by a young man of 21 years of age which was arguably less serious than the offence committed here.

36. As already mentioned a significant element of the seriousness of the appellant's conduct here was the threatening phone calls made by him to the complainant after the commission of these serious offences. That is a factor not present in the other cases referred to us. Having regard to all of the matters to which we have referred we are of opinion that the sentence imposed was a high one but we do not think that it was so high as to be manifestly excessive. We would therefore refuse the application for leave to appeal against that sentence.