Blum v Clifton
[2012] WASC 469
•4 DECEMBER 2012
BLUM -v- CLIFTON [2012] WASC 469
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 469 | |
| Case No: | SJA:1074/2012 | 9 NOVEMBER 2012 | |
| Coram: | ALLANSON J | 4/12/12 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Leave to appeal against conviction refused Appeal allowed against sentence | ||
| B | |||
| PDF Version |
| Parties: | STEVEN JAMES BLUM DARREN ROBERT CLIFTON |
Catchwords: | Criminal law Appeal against conviction Identifying information Request for destruction Whether illegally retained Fresh evidence Forensic reports not disclosed Lack of legal representation Turns on own facts Criminal law Appeal against sentence One transaction rule Totality principle Failure to consider pre-sentence report Failure to allow submissions as to sentence Whether breach of natural justice Turns own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 14, s 40, s 41 Criminal Investigation (Identifying People) Act 2002 (WA), s 49, s 67, s 69, s 84 Criminal Procedure Act 2004 (WA) Evidence Act 1906 (WA), s 50B Sentencing Act 1995 (WA), s 20 |
Case References: | Allen v Gittos (1995) 13 WAR 560 Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 Beamish v The Queen [2005] WASCA 62 Blum v The State of Western Australia [2011] WASCA 73 Butler v The Queen (1989) 44 A Crim R 215 Castlecity Pty Ltd v Newvintage Nominees Pty Ltd [2003] WASCA 30 de La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 DPJB v The State of Western Australia [2010] WASCA 12 Eastough v The State of Western Australia [No 2] [2010] WASCA 88 Fowler v The Queen [2002] WASCA 296 Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 Gavin v The Queen (1992) 6 WAR 195 Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 Morris v Lapsley [2005] WASC 151 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v White [2002] WASCA 112 Stead v SGIC [1986] HCA 54; (1986) 161 CLR 141 The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165 Walgar v The State of Western Australia [2007] WASCA 241 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
DARREN ROBERT CLIFTON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE K T FISHER
File No : BU 3949 of 2010, BU 3950 of 2010
Catchwords:
Criminal law - Appeal against conviction - Identifying information - Request for destruction - Whether illegally retained - Fresh evidence - Forensic reports not disclosed - Lack of legal representation - Turns on own facts
Criminal law - Appeal against sentence - One transaction rule - Totality principle - Failure to consider pre-sentence report - Failure to allow submissions as to sentence - Whether breach of natural justice - Turns own facts
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 14, s 40, s 41
Criminal Investigation (Identifying People) Act 2002 (WA), s 49, s 67, s 69, s 84
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA), s 50B
Sentencing Act 1995 (WA), s 20
Result:
Extension of time granted
Leave to appeal against conviction refused
Appeal allowed against sentence
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr L M Fox
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Allen v Gittos (1995) 13 WAR 560
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Beamish v The Queen [2005] WASCA 62
Blum v The State of Western Australia [2011] WASCA 73
Butler v The Queen (1989) 44 A Crim R 215
Castlecity Pty Ltd v Newvintage Nominees Pty Ltd [2003] WASCA 30
de La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
DPJB v The State of Western Australia [2010] WASCA 12
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
(Page 3)
Fowler v The Queen [2002] WASCA 296
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Gavin v The Queen (1992) 6 WAR 195
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13
Morris v Lapsley [2005] WASC 151
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v White [2002] WASCA 112
Stead v SGIC [1986] HCA 54; (1986) 161 CLR 141
The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165
Walgar v The State of Western Australia [2007] WASCA 241
(Page 4)
1 ALLANSON J: Between the close of business on 7 September 2009 and the opening of business the next day someone entered Johnson Quality Bakeries' shop at Eaton and stole the money from the till float, and also a small amount of the previous day's takings. When employees arrived at work on 8 September, they found two fragments of a blue rubber glove: one in the drinks fridge, and one immediately under a hole in the ceiling. Later, the police removed the pieces of rubber glove and sent them to Pathwest for DNA analysis.
2 The only evidence identifying who committed the offence was the DNA analysis carried out on the glove fragments. The fragment from the fridge did not provide a DNA profile, and the other provided a mixed profile. The major component of the mixed profile matched the results from a DNA sample that had been obtained from Mr Steven Blum seven years earlier, in October 2002.
3 Mr Blum was charged with burglary and stealing.
4 At trial, the evidence for the prosecution included a report from Pathwest, dated 14 January 2010. The author of the report, Ms Anna-Marie Ashley, was called and testified and was cross-examined.
5 The magistrate accepted that the DNA evidence identified Mr Blum as the person who entered the shop and stole the money. His Honour found him guilty and sentenced him to imprisonment for 8 months. The sentence was cumulative upon a sentence then being served by Mr Blum for another offence committed less than a week after the burglary.
6 Mr Blum applies for leave to appeal against both his conviction and his sentence. He has put forward six proposed grounds of appeal. Grounds 1, 2 and 6 relate to conviction, and grounds 3, 4, and 5, to sentence.
7 The notice of appeal was filed on 16 July 2012, approximately 15 months out of time. Mr Blum applies for an extension of time. He advances several reasons for the delay:
1. Legal aid was refused;
2. Ongoing medical treatment for psychosis has 'interrupted and caused some difficulty in comprehending what is necessary by way of the appeal process';
(Page 5)
- 3. It has taken him some time to understand the appeal court procedure;
4. He has limited access to a computer terminal which has resulted in delays;
5. Further delay was encountered in obtaining the necessary court forms.
8 Except for the assertion regarding his ongoing medical treatment (which is not otherwise supported by evidence), none of these matters is any real explanation for a delay of 15 months in lodging the appeal notice. On many occasions the court has stressed the importance of complying with time limits. An applicant who seeks a favourable exercise of the court's discretion to extend the time limit needs to give a cogent explanation for the delay. The failure to give a satisfactory explanation can result in a refusal of an extension of time, even where the prospective appeal appears to have merit: see, for example, Butler v The Queen (1989) 44 A Crim R 215; Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [97] - [114]; and Eastough v The State of Western Australia [No 2] [2010] WASCA 88.
9 I will, however, consider the merits of the application and return to whether time should be extended in the light of that consideration.
The appeal against conviction
Ground 1
10 Mr Blum contends that the magistrate erred in allowing the DNA report to be admitted when it was 'illegally kept evidence'. His submissions explain what he means by this ground.
11 Under pt 7 of the Criminal Investigation (Identifying People) Act 2002 (WA), and in particular s 49, a police officer may request a person who has been charged with an offence, but not dealt with by a court, to consent to an identifying procedure being done for the purpose of obtaining identifying particulars. Where the offence is a serious offence, the identifying procedure may include obtaining the suspect's DNA profile.
12 Part 9 of the Criminal Investigation (Identifying People) Act provides for the use and destruction of identifying information. A person may, in circumstances set out in various sections of the Act, request the destruction of identifying information: s 69. The request is made to the
(Page 6)
- Commissioner of Police. Section 67(1)(c) provides that identifying information obtained under pt 7 must be destroyed if the charge against a suspect is finalised without a finding of guilt and the suspect requests destruction. Evidence of identifying information that is kept after it should be destroyed is not admissible if adduced by the prosecution: s 84.
13 Mr Blum was charged with offences that are indictable, although they may be dealt with summarily. The State initially proceeded on indictment in the District Court, but then discontinued on the indictment and proceedings were brought in the Magistrates Court.
14 On 28 February 2011, after the indictment was discontinued, Mr Blum wrote to the Commissioner of Police and requested destruction of all identifying information held in relation to him. He argues that the effect of this letter is that the report of the DNA analysis, which the prosecution relied on at his trial, was not admissible.
15 Had the identifying information used in the report been obtained under s 49, in relation to the burglary, Mr Blum may have been entitled to request its destruction when the prosecution was discontinued. I say 'may' because it is not necessary to decide how s 69 applies when the indictment is discontinued but the prosecution continues in relation to the same offences in another court.
16 But the evidence adduced was a report comparing DNA recovered from the glove fragments with a DNA sample obtained from Mr Blum in 2002. There is no evidence in the appeal about the circumstances in which the sample was obtained in 2002, and in particular whether it was obtained in circumstances in which Mr Blum could request its destruction. Mr Blum has several previous convictions. If the sample was obtained in relation to one of the matters on which Mr Blum was charged and convicted, he was not entitled under s 67 to request that it be destroyed. He has not shown that the sample was used illegally and the DNA report was inadmissible.
17 The respondent also relies on the fact that Mr Blum did not object to the tender of the evidence, when the magistrate gave him two opportunities to do so: when the relevant witness referred to it in oral evidence (ts 29); and when the report itself was tendered (ts 31). Nor did he object to the evidentiary certificate, which was part of the report, within the time limited by s 50B of the Evidence Act 1906 (WA). It is not necessary to decide on this appeal whether that failure to object would
(Page 7)
- overcome the specific prohibition in s 84 of the Criminal Investigation (Identifying People) Act.
18 Ground 1 has not been made out.
Ground 2
19 Under this ground, Mr Blum seeks to rely on 'fresh evidence' to show that the DNA evidence relied on at trial was unreliable and inconclusive. He further asserts that this information had been sought prior to the trial, but was not disclosed by the police. The court has discretion whether to receive the evidence: Criminal Appeals Act 2004 (WA) s 40.
20 The respondent submits that the evidence is not fresh evidence. The distinction between fresh evidence and new evidence is significant. Evidence is fresh if it did not exist at the time of the trial or could not have been discovered with reasonable diligence: Beamish v The Queen [2005] WASCA 62 [9]; Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 [411]. As McLure P explained in DPJB v The State of Western Australia [2010] WASCA 12 [61] - [62], the rationale for allowing an appeal based on fresh evidence is that the absence of the evidence from the trial was, in effect, a miscarriage of justice: Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 301; Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 395, 402 and 410.
21 I am satisfied the evidence is fresh evidence. In determining what evidence Mr Blum could, with reasonable diligence, have produced at trial, the court will give him great latitude, recognising that he may have been disadvantaged in various ways, including in the financial and legal resources available to him in the conduct of the case: de La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [152]. Not only was he unrepresented, but he had been in custody since 19 September 2009, before any of this evidence came into existence. And, as will be apparent in the discussion of the evidence, he applied for disclosure of specified categories of prosecution evidence which should have resulted in at least one of these documents being made available to him. It is not clear what more he could have done.
22 Mr Blum wishes to rely on three documents which he obtained by a freedom of information request to Pathwest in May this year. The documents came into existence between September 2009 and January 2010.
(Page 8)
23 The first is Pathwest Forensic Biology Link Report No 04DBH0598 dated 22 September 2009. It is addressed to the Divisional Superintendent, Forensic Division, Western Australian Police. It states that the DNA profile recovered from the reference sample obtained from Mr Blum in October 2002 matched the DNA profile from the crime scene samples (specified as 'part of rubber glove on floor'). It does not mention that the crime scene sample showed a mixed DNA profile. Mr Blum had this document at the time of the trial, and based his request for disclosure on it.
24 The second is a Pathwest Forensic Biology Intelligence Information No 04INT0598 dated 2 December 2009, which replaced the 'link report'. It is addressed to the same police officer, and states:
The DNA information recovered is not sufficient strength (stringency) to be actioned as a DBH link and the link may be coincidental.
There may be value in further investigating the individual named. (emphasis in original)
25 The third, dated 1 December 2009 and 11 January 2010 (the later date appears to be a 'sign off' following review and verification of corrective action), is a Corrective Action Request form. On its face, it is a document internal to Pathwest. It identifies the problem leading to retraction of the link report in this way:
04DBH0598 Addendum report 1 issued 22/09/09 linking sample A095252 to DNA62083038. IIO has requested court report. On writing the report, PLC has noticed profile for A095252 is partial low level mixture, and cannot be reported as per the link.
26 Other documents identify the acronym IIO as a reference to the police investigating officer. The evidence does not show who PLC is.
27 In an affidavit (filed 17 July 2012) in support of his application for leave, Mr Blum annexes a request for disclosure that he made under the Criminal Procedure Act 2004 (WA), in which he specifically asked for all forensic laboratory documentation pertaining to the Forensic Biology Link Report 04DBH0598. He says he did not have the other two documents. The respondent does not accept that is so, although it relies on inferences from the fact that in Ms Ashley's cross-examination, reference was made to 'some summaries' that were compiled at Pathwest. I think it is more likely that Mr Blum did not have the intelligence information. He asked no questions about it, and I will consider this ground on the assumption that the documents were not disclosed.
(Page 9)
28 Where the evidence is fresh, in order to allow the appeal the court need only be satisfied that in the light of all the admissible evidence (including the evidence at trial) there is a significant possibility that the magistrate, acting reasonably, would have acquitted the accused: see de La Espriella-Velasco [157].
29 Mr Blum has not been able to demonstrate that, had the evidence of the Pathwest documents been available, there is a significant possibility that the magistrate would have found differently. No direct evidence has been put forward about what the link report and the intelligence information mean, and in particular what it means to say that the information may not 'be actioned as a DBH link'. The best evidence available is in the evidence of Ms Ashley at trial. On her evidence, the link report is about a database search. It was not about the later analysis which resulted in the report used at trial (ts 34).
30 The report that was adduced in evidence at trial was dated 14 January 2010, about six weeks after the request for corrective action, and says the relevant items were examined between 8 October 2002 and 14 January 2010. The report specifically deals with the finding that there was a mixed DNA profile, consistent with having come from at least two individuals. Ms Ashley also gave oral evidence about the process followed. In particular, she described the process when there is a mix of profiles found (ts 40). She concluded that Pathwest had been able to determine the major contributor to that mixed DNA profile and match it to Mr Blum's sample at each of ten points. Mr Blum was unable to challenge that evidence. The documents now produced would not enable him to do so.
31 Ground 2 also has not been made out.
Ground 6
32 Mr Blum asserts in this ground that because he was self-represented, he lost a chance which was fairly open to him, or a real chance of acquittal, which resulted in a miscarriage of justice.
33 In some circumstances, a lack of legal representation may result in a miscarriage of justice. The proper inquiry is whether the absence of legal representation, given the accused's intellectual capacities, gave rise to a miscarriage of justice: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 311, 343 and 356.
(Page 10)
34 At the commencement of the trial, there was this exchange between the magistrate and Mr Blum (ts 2):
His Honour: Today has been listed a trial of the matter.
Mr Blum: Yes, please, your Honour.
His Honour: You're here without a lawyer?
Mr Blum: Yes, your Honour.
His Honour: I take it you're going to conduct your own defence.
Mr Blum: If I may, please, your Honour.
35 Mr Blum did not seek an adjournment or a stay, and did not complain about his lack of legal representation.
36 I have carefully read the whole of the transcript. Mr Blum at times showed some ability in representing himself at trial, as he did on the appeal. That apparent facility can be deceptive. For example, he attempted to cross-examine Ms Ashley about the continuity of exhibits delivered to Pathwest, which was something outside her knowledge, and when he had not complied with the requirements of the Evidence Act s 50B. If there was a serious question about continuity, it did not emerge in any cogent shape at trial (or on appeal). Mr Blum was more comfortable questioning the non-expert witnesses, although even then some of his questions were confused and hard to understand. And his final submissions were difficult to follow (not helped by occasional passages marked as indistinct on transcript).
37 Mr Blum was obviously not able to conduct his defence as effectively as a competent practitioner. But that is not the test. Mr Blum needs to demonstrate that the lack of legal representation in this case gave rise to a miscarriage of justice, and he has not done so.
The appeal against sentence
38 The sentencing process followed immediately on conviction. The prosecutor handed up a copy of Mr Blum's criminal record. Mr Blum was then a sentenced prisoner, and the magistrate adjourned briefly to enable the prosecutor to obtain advice about the earliest eligibility date for his release on parole. When the court resumed, the prosecutor provided the information he had, and made submissions on sentence. In effect he asked for a cumulative sentence to reflect the need for personal deterrence.
(Page 11)
39 The magistrate did not hear from Mr Blum, other than to ask him his age, before he proceeded to sentence. His Honour did not seek a pre-sentence report because he considered a custodial sentence for the offences was 'the only penalty, given the seriousness of it and your present circumstances'.
40 Accordingly, the information available is limited. The sentencing remarks set out some matters relevant to sentence. Mr Blum was then serving a sentence of 3 years, with parole, imposed by the District Court on 6 August 2010, but effective from 20 September 2009 (ts 18). He had been in custody from 19 September 2009. The present offence was Mr Blum's seventh conviction for burglary, the last being on 10 February 2006, when he was imprisoned for two concurrent periods of 16 months and 12 months.
41 The magistrate referred to the circumstances, including the plea of not guilty, and said 'the appropriate disposition is a custodial sentence of 20 months' imprisonment'. His Honour then referred to the fact that Mr Blum had not offended since his last offence on 10 February 2006, and said this would result in a reduction of the sentence to 16 months.
42 Finally, the magistrate referred to the time Mr Blum had spent in custody, and that he was becoming institutionalised by reason of his persistent offending. He considered that Mr Blum should be eligible for parole. He summarised his views, balancing the need for personal deterrence and 'the principle of enough is enough', resulting in a sentence of 8 months for the offence of burglary, to be served cumulatively on the sentence then being served. His Honour imposed a sentence of imprisonment for 1 month for the offence of stealing, to be served concurrently.
43 Mr Blum challenges his total sentence on three grounds. First, he submits that the magistrate erred in failing to apply the 'one transaction rule' in making the sentence cumulative on the sentence Mr Blum was then serving. Second, the sentence was manifestly excessive 'having regard to the totality and concurrency of the offence in time and character to the previous offence for which [Mr Blum] was then serving a term of imprisonment'. Third, Mr Blum says that he suffers from mental illness, and a psychiatrist's report should have been made available, and that the magistrate erred by not seeking to have those matters known prior to sentencing.
(Page 12)
44 In submissions, the first two grounds tended to merge, and they are both aspects of the one question: see, for example, Walgar v The State of Western Australia [2007] WASCA 241 [9] (McLure JA); The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165 [14] (Steytler P). The 'one transaction rule' has been described as a working rule rather than a principle of law. It is part of the more general question whether the total sentence imposed results in an appropriate measure of the total criminality involved in the conduct: R v White [2002] WASCA 112; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308.
45 The magistrate clearly had regard to questions of totality evidenced, in practical terms by the reduction of the sentence he considered appropriate from 16 months to 8 months, and by his reference to 'enough is enough'. It is not possible to say whether this resulted in a total sentence appropriate to Mr Blum's conduct, however, because of the procedure followed at trial. The magistrate did not call for a pre-sentence report, and perhaps one might not have been necessary. But he also did not call on Mr Blum to say what he wanted to in mitigation, and did not obtain any information about the relationship between the current offences and the offence for which Mr Blum had been imprisoned. The only things asked of Mr Blum were whether he admitted his record, and his age.
46 There are some sentences which may not be imposed without the court having obtained a pre-sentence report. Otherwise, the court may order a report if it considers it would be assisted in sentencing an offender: Sentencing Act 1995 (WA) s 20. A pre-sentence report is not required in all cases, and failure to obtain one would not, in itself, constitute a ground of appeal: see Fowler v The Queen [2002] WASCA 296 [9]; Gavin v The Queen (1992) 6 WAR 195, 211; Morris v Lapsley [2005] WASC 151.
47 The decision not to order a report must be considered, in the circumstances of this case, together with the failure to ask Mr Blum whether he had anything to say in mitigation. What the rules of natural justice require will depend on the circumstances. The failure to allow a party to make submissions may amount to a denial of natural justice: Stead v SGIC [1986] HCA 54; (1986) 161 CLR 141; Allen v Gittos (1995) 13 WAR 560. In Castlecity Pty Ltd v Newvintage Nominees Pty Ltd [2003] WASCA 30 [11], the decision to impose imprisonment for contempt of court, without affording to the contemnor or to his legal representatives an opportunity to make submissions in that respect, was held to be a failure of procedural fairness sufficient, of itself, to require
(Page 13)
- that the sentence imposed be set aside. I am satisfied the same result should follow in this case. Natural justice required that Mr Blum have the opportunity to be heard both as to whether he should be found guilty, and on the sentence to be imposed.
48 Mr Blum has made out the general complaint in ground 5: the magistrate erred in not seeking to have matters that may be considered mitigatory known prior to sentencing. Despite the delay in instituting the appeal, I consider such a breach of natural justice is a miscarriage of justice sufficient to justify an extension of time. Whether Mr Blum has a mental illness which affected his ability to lodge his appeal on time, and would affect his culpability and result in a different sentence, is not presently known.
49 To some extent, ground 5 affects my consideration of ground 3 and 4. It is impossible to assess the appropriate sentence for the total criminality involved without some information about the earlier offence for which Mr Blum was then serving a term of imprisonment. I am in a better position than the magistrate, in that the details of the other offence are set out in the decision of the Court of Appeal in Blum v The State of Western Australia [2011] WASCA 73. But I have not heard what Mr Blum might wish to say in mitigation.
50 The sentence should be set aside and he should be resentenced.
51 The court has been informed that Mr Blum has been eligible for release on parole since 20 July 2011, and his total sentence expires on 19 May 2013. Were it not for the sentence imposed by the magistrate, he would be entitled to be released immediately. He should be resentenced as soon as practicable, and it may be more expedient for that to be done by this court, rather than to remit the matter to the magistrate. To the extent that the sentencing may require regard to events which have occurred since Mr Blum was convicted, including any diagnosis made while he was in prison, I can have regard to them under s 14(5) and s 41(4) of the Criminal Appeals Act.
The result of the appeal
52 I grant Mr Blum an extension of time to commence the appeals.
53 I am not satisfied that any of the grounds of appeal against conviction have been sustained. I would refuse leave to appeal in relation to each ground of the appeal against conviction and dismiss the appeal.
(Page 14)
54 I am satisfied that the appeal against sentence should be allowed on ground 5, and the sentence set aside. It is not necessary to determine grounds 3 and 4. I grant leave to appeal on ground 5 and allow the appeal. I will hear the parties as to appropriate orders, but my preliminary view is that I should impose sentence after receiving a pre-sentence report and hearing any plea in mitigation, either from Mr Blum or from counsel should he be successful in obtaining representation for that purpose. I have already requested a report.
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