D v Visser
[2002] TASSC 8
•22 March 2002
[2002] TASSC 8
CITATION: D v Visser [2002] TASSC 8
PARTIES: D
v
VISSER, Claas
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 1/2002
DELIVERED ON: 22 March 2002
DELIVERED AT: Launceston
HEARING DATE/S: 5 and 6 March 2002
JUDGMENT OF: Crawford J
CATCHWORDS:
Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Discretion to exclude evidence - Failure to exercise discretion - Admission by magistrate of videotape interview between the police and the accused - Accused under the influence of alcohol - Young offender - Claimed error in law on grounds of voluntariness - Claimed error in fact and law on grounds of unfairness - Finding of fact reasonably open to the magistrate - No error in law.
MacPherson v R (1981) 147 CLR 512, applied.
House v R (1936) 55 CLR 499, followed.
Aust Dig Magistrates [272]
Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Whether sentence manifestly excessive - Youth sentenced to twelve months' detention for wounding - Victim stabbed seven times to the thigh - Sentencing principles - Rehabilitation and general deterrence - Sentence within permissible range.
Whittle v McIntyre [1967] Tas SR (NC 6), followed.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: C Robinson
Respondent: J P Ransom
Solicitors:
Applicant: G A Richardson
Respondent: Director of Public Prosecutions
Judgment ID Number: [2002] TASSC 8
Number of paragraphs: 33
Serial No 8/2002
File No LCA 1/2002
D v SERGEANT CLAAS VISSER
REASONS FOR JUDGMENT CRAWFORD J
22 March 2002
A complaint charging the applicant with wounding, contrary to the Criminal Code, s172, was found proved by a magistrate in the Youth Justice Division. On 18 December 2001, he was convicted and sentenced to 12 months' detention, together with a 12 month probation order to commence upon release. He has moved the Court to review the finding that the complaint was proved and the making of the detention order.
The charge arose out of an incident in Paterson Street, Launceston, in the early hours of 6 January 2001. The applicant, who was 17 years of age, was in an intoxicated state when walking with his friend, Ben Jackson. They came upon another young man, Nicholas Gibson, who was the complainant, and two young women. There were a few other people in the vicinity. The complainant's evidence was that the applicant accused him and his companions of stealing his carton of beer from a place in George Street. The complainant said that he told the applicant to stop being a "dickhead" and leave it alone. At the time the complainant was sitting on a large flowerpot. The complainant's evidence continued that the applicant commenced to walk away, but then turned around and commenced to yell abuse. One of the complainant's companions, Belinda Stacey, said that she was being abused and the complainant stuck up for her. It was his evidence that he asked the applicant what his problem was and went toward the applicant until he was about a metre from him. He said that he was being abused and would not stand for it. When they were face to face, the applicant started to throw punches at him. He took hold of the applicant in a headlock and started to hit him to the head. He accepted that he may have hit the applicant in the face "probably a couple of times". The applicant was fighting back as well, throwing his arms up over the top of his head. Because of the headlock, the applicant was bent over at the waist. The complainant accepted that he probably administered five or six punches to the applicant and, at the same time, it felt to him that he was being punched in the thigh. Someone nearby called out that there was a knife and he looked down and saw that there was a lot of blood. The applicant had in fact stabbed him seven times in the left leg. The complainant let him go and lay down on the footpath. The applicant ran away.
The police happened to come upon the scene and gave chase. The applicant was apprehended and arrested. He was taken to the police station at 2.45am. He was bleeding from a wound to his left little finger, which was probably caused when the knife closed on his finger when he was stabbing the complainant. At the police station he was handcuffed to the railing on a seat, where he fell asleep. One police officer, Detective Constable Vermey, baulked at describing him as drunk, but said he was definitely intoxicated. Another police officer, Detective Sergeant Parker, described the applicant as obviously drunk. At 3.47am he was taken before a custody officer and then placed in the cells. Detective Sergeant Parker telephoned the applicant's parents, who came to the police station. A video recorded interview with the applicant, lasting 18 minutes, commenced at 5.41am. The interviewing officers were Detective Sergeant Parker and Detective Constable Vermey. The applicant's father was present.
In the course of the interview, his version of the events was, in summary, as follows. Somebody had stolen his carton of beer. He met up with the complainant, who attacked him with a knife. He managed to take the knife from him and put it in his pocket. He denied inflicting wounds to the complainant. The interview concluded when he lost his temper and up-ended the table upon which the video camera was standing.
As expressed, the first ground of the motion is that the learned magistrate erred in law by purporting to exercise his discretion to admit into evidence the video recorded interview before considering whether or not the interview was voluntary. It was not submitted to the learned magistrate by the applicant's counsel that the statements made by the applicant in the course of the interview were not made voluntarily. What she submitted was that his Worship should exercise his discretion to exclude the video from evidence "on the basis that it has been unfairly obtained". She raised four bases for that submission. Firstly, that the applicant's father had requested the police officers to obtain a lawyer, but the request was refused. Secondly, that the applicant was so drunk that he should not have been interviewed. Thirdly, that the applicant's father, who was present throughout the interview, was not advised prior to the commencement of the interview of his rights or of what role he was entitled to play in the course of the interview. Fourthly, the questioning by the police officers was conducted belligerently. The learned magistrate heard evidence on the voir dire and declined to exercise his discretion to exclude the evidence.
In the course of cross-examination when giving evidence on the voir dire, the applicant conceded that he had been interviewed by police before and that he had understood that he had the right to remain silent. When the interview commenced, Detective Constable Vermey stated that she reminded him of the caution, telling him that it was that he was not obliged to say or do anything, but anything he did say or do would be recorded and might be given in evidence. When all of the evidence on the voir dire had been given, submissions were made to the learned magistrate by the applicant's counsel and the prosecutor. No suggestion was made by the applicant's counsel that his utterances in the course of the interview were not made voluntarily. In the course of giving reasons for exercising the discretion in favour of the prosecution, the learned magistrate referred to the applicant's evidence that he knew he had a right to remain silent. His Worship found that the applicant "knew that he did not have to answer any questions but apparently chose to do so". To some measure, that was an expression of the learned magistrate's satisfaction that the applicant had participated voluntarily in the interview. His Worship later referred to the commencement of the interview when "the defendant, in the presence of his father, was properly cautioned and assented to having understood the caution".
There is authority against the first ground of the motion. If there is nothing to suggest that statements were not voluntary, the presumption is that they were made voluntarily. Hough v Ah Sam (1912) 15 CLR 452 at 457; R v Williams (1992) 8 WAR 265 at 271. In MacPherson v R (1981) 147 CLR 512 at 523, Gibbs CJ and Wilson J only expressed the obligation of a judicial officer to inquire into voluntariness if it appears that there is a real question concerning that issue. In this case there was no suggestion of threats or inducements being made to the applicant by the police officers and he acknowledged that he knew that he had the right to remain silent. In the circumstances, there is no merit in the ground. I comment, however, that in some cases it might be incumbent on a magistrate, particularly if a juvenile defendant is not represented by a legal practitioner, to inquire into voluntariness notwithstanding that it is not otherwise raised as an issue.
The second ground of the motion is that the learned magistrate erred in law and fact when he failed to exercise his discretion to exclude the evidence of the video interview. The onus was upon the applicant to persuade the learned magistrate to reject the evidence. To succeed with the ground before this Court, the applicant had to persuade it that insofar as it is alleged that the learned magistrate's decision was based on an erroneous finding of fact, no magistrate acting reasonably could have found such a fact or, to put it another way, that the finding of that fact was not reasonably open on the evidence. Concerning the exercise of the discretion itself, it is not enough if this Court considers that it would have taken a different course. The applicant must be able to establish that some error was made in exercising the discretion. House v R (1936) 55 CLR 499 at 505. Counsel for the applicant accepted those principles.
One basis for unfairness, as submitted for the applicant, was that his father requested the police to obtain a lawyer but the request was refused. Evidence on the voir dire was given by the father that during the course of a conversation at the police station between the applicant's parents and Detective Sergeant Parker, prior to the commencement of the video, the mother (not the father) asked that they see a lawyer or that they have a lawyer represent the applicant, and Detective Sergeant Parker said that they had no hope of obtaining a lawyer at that time of the morning. The mother was not called to give evidence. Detective Sergeant Parker's evidence was that it was the father who asked him whether or not he should get a lawyer and he responded that he could do so if he wished, it was his right. The parents asked whether the applicant would be released on bail and he replied, because he had made a decision about it, that the applicant would be so released, whereupon one of the parents said that in that case they did not need a solicitor. Detective Constable Vermey gave evidence that the applicant's father asked Detective Sergeant Parker if he required a lawyer and was advised that it was his decision to make, it not being the practice of police officers to give advice of that kind. She confirmed that the parents said that if the applicant would be going home, they did not require a solicitor.
Detective Sergeant Parker also gave evidence that earlier, when the applicant was taken before the custody officer (at 3.47am), he advised him that he could contact a solicitor if he wanted, although the officer accepted that the applicant was intoxicated at that time. The custody officer gave evidence that the applicant was asked if he wished to communicate with anyone and he indicated only that he wanted his mother contacted. Detective Sergeant Parker attended to that request.
The learned magistrate reviewed the evidence and concluded that he was not satisfied that there was a request for a lawyer which was, in effect, refused as claimed for the defence. His Worship found that the applicant's parents were aware of their son's right to a lawyer and that there was no issue concerning that, the effect of the father's evidence being that he and his wife were dissuaded from trying to contact one at that time of the morning, but his Worship was not satisfied of that fact and he said that, in any event, the parents were adults capable of making their own independent and mature judgment. The learned magistrate's findings, and unpreparedness to make findings, were supported by cogent evidence. Nothing was put to the Court by the applicant's counsel which leads to a conclusion that the learned magistrate's findings were not reasonably open on the evidence.
Another factual basis asserted for the applicant as justifying a rejection of the interview, was that he was so affected by the consumption of alcohol as to render it unfair to admit the interview, paying particular regard to his youthfulness (he was aged 17 years 11 months). Like the learned magistrate, I have had the advantage of watching the interview and my conclusion is that although the applicant showed some signs of intoxication, including the slurring of some words, he had his wits about him, understood the questions and had no difficulty responding, apart from his difficulty in maintaining what were clearly lies.
Detective Sergeant Parker's evidence was that the applicant was drunk when he arrived at the police station some three hours earlier, but at the time of the interview he was certainly not drunk, although intoxicated to a degree. Detective Constable Vermey's evidence was that in the course of the interview, only a couple of the applicant's answers were slurred, that the degree of his intoxication had definitely lessened and that he was quite coherent. The custody officer, Constable Godfrey, gave evidence that (about two hours before the interview) the applicant was certainly affected, but he was not drunk, and he understood what was going on. On a Prisoner Admission and Assessment Form, Constable Godfrey recorded at the time that the applicant was (inter alia) not unable to stand up without help, not unable to speak sensibly and coherently, not unable to understand where he was, not excessively agitated and not highly intoxicated.
The applicant's father gave evidence that at the time of the interview, his son was extremely drunk, incoherent and agitated. My observations of the video recording forces me to conclude that the applicant's father was exaggerating the state of his son's level of intoxication. The applicant's evidence was that he remembered almost nothing from the time he arrived at the police station until after the interview, when he was standing with his father having a cigarette. However, when pressed, he admitted to remembering some of the events at the police station. He referred to the suggestion that he gave a sensible and logical answer to every question as a lie, although maintained that he had little memory of the interview and could speak only from having seen the video recording. He gave evidence that he was "way too intoxicated" and exaggerated his condition by saying that "if anyone in this room here today had the amount of alcohol that I had that night they wouldn't be sober for three or four days straight".
In his reasons for admitting the interview, the learned magistrate referred to a great deal of the evidence concerning the applicant's level of intoxication and concluded that the applicant and his father had exaggerated his condition. His Worship was not satisfied that the applicant was intoxicated to such a degree that he should not have been interviewed when he was. The findings were plainly open on the evidence and cannot be described as unreasonable.
It was also submitted by the applicant's counsel that evidence of the interview should have been excluded because there was a failure by the police officers to comply with police standing orders. The only evidence the learned magistrate had relevant to the point was that there was compliance with the standing orders, although the contents of them were not put in evidence.
It was submitted for the applicant that the learned magistrate should have ruled that there was unfairness in admitting the evidence of the interview because there was a failure on the part of the police officers to properly advise the applicant's father of his rights and his role when present at his son's interview. The applicant's father said nothing in the course of it. He merely sat in the room and observed. His evidence on the voir dire was that his role was not explained by a police officer. He did not know what his role was, other than to be present because his son was under 18 years of age and needed the presence of an adult. He did not know whether he could intervene and thought that he must remain mute, otherwise he would certainly have spoken up. Detective Sergeant Parker's unchallenged evidence was that he advised the applicant's father of the form the interview would take, that they would sit down with the applicant who would be at the end of the table with the police officers either side, that the allegation against the applicant would be outlined to him and that he would then be cautioned and told that whatever he said would be used in evidence. The officer's evidence continued that the applicant's father said that he understood and he was told that he could sit next to the applicant and be present with him. The detective agreed that he did not explain to the father that he could interrupt or ask that the interview be suspended, although he accepted that a parent was entitled to do so when a child was being interviewed. He pointed out that a right to have a solicitor and to notify the Aboriginal Legal Service had been explained and he considered that he had no obligation to do more.
The learned magistrate found that the applicant's father had remained mute, not because he believed that he must remain silent, but because he was satisfied that he had no concerns about his son's fitness to be interviewed and was content to allow his son to speak for himself. His Worship was not satisfied that the applicant's father was unaware that he could voice concerns or make objections if he wished, nor that there was any unfairness to the applicant because of the alleged deficiencies in what the police had said to the father. The learned magistrate pointed out that the father was present when the caution was administered and spoke up when his son up-ended the table, thereby bringing the interview to an abrupt end. His Worship held that there was no specific requirement that the father should have been advised in the way claimed by the applicant's counsel and that in any event, the failure to so advise "does not translate vicariously into unfairness to a defendant who knows he can remain silent if he chooses".
The only so-called authority on the point relied on by counsel for the applicant was a reference to an obiter dicta of Kneipp J in the Townsville Supreme Court on 14 August 1980 in R v McIntyre which is referred to in an article called "Interrogation of juveniles Rules for police" by Margaret Allison, published in a Legal Service Bulletin, volume 9 number 3, at 113 - 117, the article being based on a 1983 workshop at a national conference of social workers. Kneipp J was reported as saying:
"There is little point in bringing a person, an adult, to the interrogation of a child if all that happens is that the adult comes in, sits down, listens to the interrogation, and goes away. What the child wants in such circumstances is advice which, for instance, an adult might get from a solicitor if he were so minded, and it seems to me that it should be a requirement that when the presence of an adult is arranged, the situation should be explained to the adult."
Although I do not know when it was first introduced into Queensland law, there is an express legislative provision in that State (see the Juvenile Justices Act 1992, s9E) that in a proceeding for an indictable offence, a court must not admit into evidence against a child his or her statement to a police officer, unless the court is satisfied that there was present at the time and place the statement was made, the child's parent or one of certain other persons. It may be that the dicta of Kneipp J arose out of a consideration of such a provision, I do not know. However, there is no such legislative requirement in this State. Counsel for the Crown conceded that there is a provision in police standing orders that an independent person should be present when a child is interviewed, but the contents of the standing orders were not before the learned magistrate. In any event, the issue for determination here is whether the learned magistrate made a finding of fact which was not reasonably open on the evidence or whether he erred when exercising his discretion not to exclude the evidence of the interview. In my opinion, the learned magistrate made no appealable error of fact and his views and determination were reasonably open. It should not be forgotten that the applicant was less than a month away from legal adulthood, that he had been interviewed by police before and that he understood that he had no obligation to answer questions. He demonstrated that he was able to assert himself in the course of the interview. In all the circumstances, the learned magistrate's conclusion that it would not be unfair to admit the interview into evidence, is unassailable.
I did not understand the applicant's counsel to pursue the submission made originally to the learned magistrate that in the exercise of his discretion, the learned magistrate should have excluded the evidence of the interview because of belligerent questioning by the police officers. However, I am satisfied that the submission was not a sound one. If anyone was belligerent, it was the applicant.
The third ground of the motion to review is that the learned magistrate erred in law because he failed to state that the prosecution bore the onus of establishing beyond reasonable doubt that the applicant was not acting in self-defence. There is no doubt that the onus does rest with the prosecution to exclude lawful self-defence beyond reasonable doubt, if it is raised as an issue in the course of the hearing. O'Rourke v Boxhall [1958] Tas SR 8 at 13. However, counsel cited no authority for the proposition that if a magistrate does not expressly state that proposition in his reasons, or state that he is satisfied beyond reasonable doubt that the defendant was not acting in lawful self-defence, the finding that the complaint was proved cannot stand. I adhere to what I said in Casey v Filz B41/1995 at 7, that although judges are required to give directions of law to juries in criminal trials, there is no rule of law that requires a magistrate to state in the reasons for his or her decision such directions of law as would need to be given to a jury if it was the tribunal of fact. See also Burr v Strickland A67/1995 at 4, 5. Accordingly I hold that the ground has no merit.
At the outset of his reasons, the learned magistrate pointed out that although the applicant had initially (in his interview) denied the stabbing, he had admitted it in his evidence and had raised the issue of self-defence. After a comprehensive review of the evidence, his Worship stated that "I do not accept anything the defendant says supportive of what I view as a fiction of self-defence", adding that "he would say anything in my assessment of him to escape conviction on this charge". The learned magistrate accepted that the complainant got the better of the applicant when he had him in a headlock, but he rejected the applicant's assertion that he thought he was going to die and that it was scary. His Worship referred to the applicant's "varying and inconsistent accounts" and his "seeming compulsion to exaggeration, extravagance even, an overstating of whatever position he might see as giving him an advantage in these proceedings". His Worship concluded that "I place his stabbing of Gibson in the same category, that is an excessive response to the situation in which he found himself". He then concluded that he found the complaint proved. There is no reason to think that he applied the wrong onus or standard of proof when doing so.
The fourth ground of the motion to review is that the learned magistrate erred by failing to make a finding that the applicant had acted in self-defence. The ground was argued by the applicant's counsel as if I was sitting as a tribunal of fact at first instance. However, the only question for this Court was whether a magistrate, acting reasonably and properly instructed as to the law, could have rejected self-defence. In my opinion, there was ample evidence justifying the magistrate's conclusion. It was the evidence of the complainant that the applicant threw the first punch. In his interview with the police, the applicant did not raise self-defence, choosing instead to deny that he even stabbed the complainant. The learned magistrate was justified in not believing his evidence at the hearing and rejecting self-defence as a fiction. The finding that the stabbing of the complainant was an excessive response to the situation in which the applicant found himself, was plainly justified by the evidence. There is no merit in the ground.
The fifth ground of the motion to review is that the sentence imposed by the learned magistrate was manifestly excessive. It was the twelve months' detention which was attacked by the applicant's counsel, not the twelve months of probation which was ordered to commence upon release.
The offence was committed less than a month before the applicant's 18th birthday. At the time of the sentencing on 18 December 2001, he was aged 18 years 10 months. Significantly, on 19 September 2000, only 15 weeks prior to this assault, he was sentenced by a magistrate in the Youth Justice Division for one charge of assault under the Police Offences Act 1935, committed on 29 July 2000, and one charge of assaulting a police officer. Without convictions, a probation order was made for six months under the Youth Justice Act 1997 for the assault charge and for the other charge, he was released under s47(1)(d) on condition that he be of good behaviour and commit no offence of violence for 12 months. He breached conditions of both orders when he committed this assault. In the circumstances, a sentence of personal deterrence was plainly demanded.
The learned magistrate was told that he lived with his parents. He was educated to Grade 10 level and since leaving school had been in regular employment, although the information presented suggested that there were periods of unemployment as well. He had casual employment at the time of sentencing and was seeking to establish his own business as a gardener. He had been detained for a week for the offence and then released on bail, which included a condition that he abstain from the consumption of alcohol. He accepted that he had an anger management problem and had sought counselling for it. His counsel asked the learned magistrate to adopt an individualised approach to sentencing "given his age, his obvious efforts at rehabilitation and his … first taste of detention".
A Youth Justice report was obtained by the learned magistrate. It disclosed that the applicant was lacking in remorse for what he had done and continued to justify his actions upon the basis of self-defence. Of course, lack of remorse is not an aggravating factor for the purpose of sentencing. The officer who was the author of the report, said that she was "encouraged by positive changes" the applicant appeared "to have made to his life, most noticeably his much altered views regarding his present and future consumption of alcohol" and also by "his efforts at seeking full time employment and his plans for the future". The officer expressed concern regarding the applicant's maintenance of his continued belief that he had no option other than to use the knife as a weapon.
In his comments on passing sentence, the learned magistrate said:
"Yes thank you. Well I take into account all the claims made by your counsel for individualised treatment and it is said that you have made obvious attempts at rehabilitation and those who know you well speak well of you in regard to the efforts you have made in relation to the employment that you've had and so forth. But those obvious efforts at rehabilitation do not include the first step and that is to acknowledge your criminal responsibility for this crime.
You appear for sentence upon a charge of wounding. A crime committed when you stabbed one Nicholas Gibson seven times to the leg with a knife. It is serious case of its type, involving as it did the use of a knife, in inflicting significant puncture wounds with the potential for fatal consequences had any one of those seven blows punctured the femoral artery. It was your aggression which had led to this when you had accused Gibson of stealing your carton of beer and started throwing punches at him before he got you in a headlock. It was whilst in this headlock that you used your knife upon him. It was an extreme and altogether disproportionate response on your part.
You, however, maintain your denial of criminal responsibility saying as far as the pre‑sentence report indicates, that you had no option but to use the knife as you did. I reject that completely. You have shown no remorse at all for what you did or for you [sic] victim. Indeed you maintained a quite extraordinary hostility towards your victim and you refused to take responsibility. You have not even taken the first step therefore towards rehabilitation despite what may be indicated by the various references tendered up and by your counsel's claims.
You are an older youth, indeed when this crime was committed about a month short of your 18" birthday. Just over three months before you had been dealt with in court for offences of assault police and common assault, which together with the way you handled the police interview, shows you to be a person of violent temperament and propensity. It is, of concern, being illuminating of your character that you had brought a knife with you to town this night which in itself suggests a preparedness to use a weapon in a violent situation.
I have regard to all the sentencing material before the court and to your claims for individualised treatment, but you must be taught to take responsibility for your actions and to discard violence. A penalty which in all the circumstances is appropriately responsive and which encourages this should be imposed.
You are convicted and sentenced for a period of 12 months' detention. I make a probation order to take effect upon your release, that order will commence upon your release and will continue in force for 12 months. It will contain all the usual conditions which will be explained to you by your probation officer together with the recommended special condition, namely, that you must undergo medical, psychiatric, psychological and drug counselling and treatment ‑ drug and alcohol counselling and treatment as directed by the assigned Youth Justice worker."
To what was said by his Worship, I would add that an aggravating factor was that the crime was committed on a public street in the Central Business District. Considerable concern has been expressed over recent years by citizens of Launceston, and judicial officers, concerning the prevalence and extent of street violence, particularly at night, committed by drunken youths and young men.
Counsel for the applicant referred me to some records of sentences for wounding she had selected and I have perused considerably more than she produced. So far as a general range is concerned, they reveal that the sentence imposed in this case was within it. Otherwise, the precedents provide me with little assistance. In the end, each case has its own facts and circumstances, and a judicial officer has a wide sentencing discretion to exercise.
In considering whether the sentence was manifestly excessive, I have borne in mind that the applicant is not entitled to have this Court simply substitute its opinion for that of the magistrate, who was entrusted by the law with a very wide discretion. The Supreme Court may only allow a motion to review sentence if it is satisfied that the one imposed was so manifestly excessive that it is only explicable upon the view that the magistrate erred in some way. Whittle v McIntyre [1967] Tas SR (NC 6). While I have some sympathy with the submission of the applicant's counsel that his rehabilitation was of prime importance, a factor which is emphasised by the Youth Justice Act 1997, I am left being unsatisfied that what the learned magistrate ordered amounted to the imposition of a manifestly excessive sentence. Without his prior offences of violence, the applicant deserved a period of detention for what was a very serious offence indeed, although a period of detention for 12 months may well have been correctly categorised as manifestly excessive. However, having regard to his recent court appearance for offences of violence, to the nature and extent of his violence on this occasion and the aggravating features surrounding the offence, I am not persuaded that the punishment exceeded a proper exercise of the learned magistrate's discretion to the extent that it was manifestly excessive.
For these reasons, the motion will be dismissed.
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