Director of Public Prosecutions v Baea
[2023] VCC 2235
•18 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00031
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAGIRAGH BAEA |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Geelong & Melbourne | |
DATE OF HEARING: | 25 September and 30 October 2023 | |
DATE OF SENTENCE: | 18 December 2023 | |
CASE MAY BE CITED AS: | DPP v Baea | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2235 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence.
Catchwords: Causing Injury Intentionally – Assault Custodial Officer on Duty.
Legislation Cited: Crimes Act 1958, ss 18, 31(1)(b); Sentencing Act 1991, ss 5(2G), 10AA(4), 16(1A)(b), 16(3); Corrections Act 1986, s 48; Corrections Regulations 2019, reg 65(1)(a) and (b).
Cases Cited:Roach v The Queen [2020] VSCA 205; R v Devries [2005] VSCA 95; Shau v The Queen [2020] VSCA 252; Phillips v The Queen [2017] VSCA 313; DPP v Milson [2019] VSCA 55; Gommers v The Queen [2021] VSCA 258; Hope v The Queen [2018] VSCA 230; DPP v Arvanitidis (2008) 202 A Crim R 300; The King v Hall [2023] VSC 151; DPP v Ahmed and Yat [2023] VCC 1638.
Sentence: Total effective sentence of 2 years and 6 months to be served cumulatively on the sentence the accused is already undergoing.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr R. Pirrie (Plea) Ms H. Baxter (Further Plea) Ms V. Hoskin (Sentence) | Office of Public Prosecutions |
| For the Accused | Ms B. East | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Mr Baea, you have pleaded guilty to an indictment containing one charge of causing injury intentionally[1] and one charge of assault custodial officer on duty,[2] for which the maximum penalties are 10 and five years’ imprisonment, respectively.
[1] Charge 1 on Indictment N12158302 laid pursuant to s 18 of the Crimes Act 1958.
[2] Charge 2 on Indictment N12158302 laid pursuant to s 31(1)(b) of the Crimes Act 1958.
2The offences were committed by you on 15 February 2022, while a prisoner in the Banksia Unit of the Barwon Correctional Centre.[3] Each of your victims was a custodial officer; Shaye Burns (nee Scetrine) was a senior prison officer, while Steve Goodes was an emergency response group member. The incident was captured on CCTV footage and played to the court during the plea hearing.[4]
[3] Banksia Unit was a management unit in which the prisoners were kept separate from mainstream prisoners.
[4] Exhibit B.
3At the relevant time, you were serving a lengthy sentence of imprisonment, the background to which is as follows. On 28 February 2017, you were sentenced in the Supreme Court for murder, to a term of 22 years’ imprisonment, with a non‑parole period of 17 years.[5] A period of 375 days of pre-sentence detention was declared. Subsequently, on 26 September 2018, you were sentenced in the County Court, for intentionally causing serious injury, to a term of five years and nine months’ imprisonment, two years of which was ordered to be served cumulatively on the earlier sentence.[6] That produced a new global total effective sentence of 24 years’ imprisonment, for which a new non-parole period of 19 years was fixed. You were undergoing that sentence at the time of committing the offences for which you now fall to be sentenced.
[5] [2017] VSC 40 (Elliot J).
[6] [2018] VCC 1580 (Gwynn J).
4A year or so after committing the current offences, you were sentenced in the Geelong Magistrates’ Court, for recklessly causing injury and unlawful assault, to an aggregate term of nine months’ imprisonment, of which five months was ordered to be served cumulatively upon the sentence that you were already serving.[7] So from that date, the global total effective sentence was 24 years and five months’ and the new non-parole period was 19 years and five months.[8]
[7] That sentence was imposed on 23 February 2023.
[8] Counsel acknowledged this to the court via email correspondence.
5I note that at the time you committed the current offences, you were 27 years of age. You are now aged 29, having been born in May 1994.
Circumstances of the offending
6The circumstances in which the current offences were committed is outlined in a prosecution opening[9] which your counsel acknowledged could be treated as an agreed statement of facts for sentencing purposes. The basis on which you fall to be sentenced was also discussed, during the course of the plea. I have had regard to that opening and to those discussions when determining the appropriate sentence in your case.
[9] Dated 18 September 2023 (Exhibit A).
7On 15 February 2022, Ms Burns and Mr Goodes were working in the Banksia Unit.
8At about mid-day, you used the intercom system in your cell to ask Mr Goodes where your ‘run out’ was, the term used for the short period that each prisoner in the Banksia Unit was allowed to spend each day in an exercise yard. A prisoner must first request a run out before it will be facilitated by a member of the prison staff. In response to your query, Mr Goodes told you that there would be no issue about facilitating a run-out even though there was no record of you having requested one that morning.
9Approximately ten minutes later, Ms Burns told Mr Goodes that she had been advised by you earlier in the day that you had no requests. She then offered to assist Mr Goodes with the run-out and to explain to you why there had been no earlier run out.
10Mr Goodes then advised you via the intercom, that you would be permitted to have a run out. As he assessed the situation at that time, you seemed receptive to that indication, rather than angry or upset.
11A minute or so later, Ms Burns and Mr Goodes attended at your cell to facilitate the run-out. As Ms Burns opened the cell door, she said 'I heard that you’re not happy with the staff about your run out, would you like to talk about that?'. Without responding, you picked up a few items, including a Quran and water bottle, exited your cell and then walked a few steps to a kitchenette in the corridor. While standing with your back to Ms Burns, you asked her whether she had been on duty earlier that morning. When she confirmed she had been, you put your belongings down and then turned and swung a clenched fist ‘windmill style’, in an attempt to punch her to the side of her head. She managed to avoid being struck by ducking and then used her hands to cover her face. Despite this, you continued to punch at her head with a clenched fist. In response, Ms Burns crouched down, but then lost her footing and fell onto the floor. Your conduct as just described, forms part of the basis for the offence of intentionally cause injury alleged in Charge 1.
12When Mr Goodes responded by yelling 'code blue', you moved towards him and tried to punch him. He ducked your first two punches but was then pushed by you into the railing barrier of a staircase. He then managed to spray you in the face with his OC spray. Your conduct as just described, forms the basis for the offence of assault custodial officer on duty alleged in Charge 2.
13Although concussed, Ms Burns managed to get to her feet. Upon noticing that you were trying to punch Mr Goodes, she ran over and tried to restrain you by the arm. In response, you struck her with a clenched fist to the side of her head, causing her to feel pain and then black out. This conduct on your part also forms part of the factual basis for the offence of intentionally cause injury alleged in Charge 1.
14Other prison officers who were in a nearby office had heard the commotion and came to assist. On stepping out of the office, Acting Senior Prison Officer Daniel Spicer saw you punching Ms Burns, as Mr Goodes was trying to assist her. As Mr Spicer made his way to the staircase, he saw you turn and direct your attack to Mr Goodes, who deployed his OC spray a short time later.
15Mr Spicer and Mr Hinkley managed to force you to the ground to stop the attack. You refused to place your hands behind your back as directed. Multiple prison officers were required to restrain you until such time as Ms Burns could be safely relocated and you could be moved to an observation cell by a response team.
16Ms Burns had a laceration to the back of her head and was bleeding. On regaining consciousness, she immediately complained of feeling pain in her ankle. After being moved to an office, Ms Burns was attended to by Barwon Prison nursing staff, until ambulance staff arrived at approximately 12:35 pm. About an hour later, she was transported to hospital for further treatment.
17As a result of this offending, Ms Burns sustained the following injuries:
·A concussion/head injury, which is currently being treated by a clinical neuropsychologist in the ABI Rehabilitation Team at Barwon Health. She has experienced ongoing persistent post-concussion symptoms, with mild problems for which she has required ongoing monitoring and intervention. Whilst it is unlikely to result in permanent neurological damage, there is a risk of permanent structural and functional brain damage in the context of post-traumatic stress disorder (‘PTSD’) symptoms.
·An ankle injury, which is currently being treated by an accredited exercise physiologist, in the ABI Rehabilitation Team at Barwon Health. The fracture to her ankle has caused ongoing pain for which she has required medication. Ms Burns was confined to a wheelchair for six weeks and experienced a restricted ability to progress to high impact physical activity. She has needed ongoing review and physiotherapy.
·An injury to her hand and ring finger, which is currently being treated by an occupational therapist. The ruptured tendon in her right ring finger, required corrective surgery and the wearing of a splint. Therapy and pain management is ongoing. It is unlikely she will regain a full range of movement in that joint.
·A psychological injury in the form of a PTSD which requires ongoing assessment and treatment by a psychologist at McKeller Rehabilitation Centre.
18As a result of the incident, Mr Goodes sustained a laceration to his forehead, bruising to the top of his head and soreness to his neck, shoulders and upper back. He was assessed by medical staff but required no further medical intervention.
Victim impact
19I have had regard to the contents of the victim impact statements which were declared by Ms Burns and Mr Goodes on 29 March and 13 April 2023, respectively.[10]
[10] Exhibits D and C, respectively.
20In her statement, Ms Burns eloquently describes the significant physical and psychological consequences of your offending. She remains bewildered as to why you, a stranger, would assault and hurt her when she was only trying to show empathy. She no longer feels safe or confident in her ability to protect herself, even in a social setting. She has not yet been able to resume the active social and sporting life she once enjoyed. Her earnings have been significantly impacted and her once promising career has stalled, as she has not been able to return to work in a Correctional environment due to her PTSD. That condition and what she describes as ‘mental scarring’ has significantly impacted on her lifestyle and relationships, including those with her husband and son.
21In his statement, Mr Goodes indicates that he has been affected emotionally, on many levels, by what you did. He regularly experiences flashbacks about the events of that day and wonders what he could have done differently. He required an extensive period of psychological counselling. He could not return to work for a considerable period with attendant financial consequences.
Charged and remanded
22Mr Baea, I note that you were not charged for this offending until seven months after the incident. As was your right, you declined to be interviewed by police. You were then charged and remanded in custody.
23A filing hearing was conducted in the Magistrates Court on 14 October 2022.
Early plea
24I note that this matter resolved before the first committal mention hearing, which the prosecution acknowledged was at an early stage of the proceedings. It is appropriate to treat your plea as an early one for sentencing purposes.
Prior criminal record
25Mr Baea, whilst your prior criminal record is confined to two court appearances, it is nonetheless a very relevant and concerning one.
26On 28 February 2017, you were sentenced to a term of 22 years’ imprisonment for a murder you committed on 18 February 2016. A non-parole period of 17 years was fixed. The period of 375 days you had spent on remand awaiting sentence was declared as pre-sentence detention. The murder involved the repeated stabbing of a woman that you barely knew, in her own home, and in circumstances where she had been nothing but courteous and hospitable towards you. In his sentencing reasons, the sentencing judge described your offending as brutal and unprovoked. He also considered it to be lacking in pre-meditation and as essentially remaining unexplained.
27Then, on 26 September 2018, you were sentenced to a term of five years and nine months’ imprisonment for an offence of intentionally causing serious injury that you committed on 2 October 2017.[11] In effect, two years of that sentence was ordered to be served cumulatively on the sentence you were already undergoing and a new non-parole period of 19 years was fixed. As a result, from that date you were serving a sentence of 24 years with a non-parole period of 19 years.
[11] [2018] VCC 1580.
28That offence was committed against a fellow prisoner who followed you as you walked back to your cell at Port Phillip Prison. You turned and punched him approximately four times to the face, causing him to fall to the ground unconscious. You then stood over him and delivered a further 13-15 punches, before prison staff were able to intervene. That assault caused the victim to sustain a severe head injury that included multiple facial fractures and bleeding in and around the brain, for which he required medical intervention and ongoing rehabilitation. At the plea hearing for that matter, the prosecution did not seek to dispute your claim that the victim had made an unwelcome advance towards you on the previous day, although the sentencing judge noted that you had absolutely no justification for assaulting the victim as you did on the following day. The sentencing judge accepted that your offending was spontaneous, but nonetheless, found it to be a serious example of the offence of intentionally causing serious injury.
Subsequent criminal record
29Mr Baea, you also have a very relevant subsequent criminal record.
30On 23 February 2023, you were sentenced in the Geelong Magistrates’ Court for two offences; one of recklessly causing injury and another of unlawful assault. Each of those offences were committed against a fellow prisoner at Barwon Prison on 19 March 2021. For those offences, you were sentenced to an aggregate term of nine months’ imprisonment, of which five months was ordered to be served cumulatively upon the sentence that you were already serving.[12]
[12] See Police LEAP Criminal Record (Exhibit K).
31The essence of that offending is set out in a police summary which was tendered, without objection, on this plea.[13] You approached your first victim from behind and punched him three times to the side of his face, causing him to fall to the ground unconscious. You then punched him again as he lay unconscious. He sustained a fractured jaw from the assault. You then jogged over to the second victim and punched him in the face. Prison staff then intervened and brought the situation to an end. When interviewed, you exercised your legal right to make no comment.
[13] Exhibit J.
Personal circumstances
32I now turn to consider your personal circumstances, Mr Baea.
33As I have already noted, you were 27 at the time of this offending and are now 29.
34You were born in Papua New Guinea and have four sisters.
35You completed a Year 12 schooling and consider yourself to have been an average student. You have no real work history to speak of. You harbour aspirations of attending university when eventually deported. You have had several relationships over the years but have never lived with any partner.
36Although you have spent various periods living in Australia, you have never become an Australian citizen or a permanent resident. In all likelihood, you will be deported to Papua New Guinea at some point during or at the expiration of your sentence. Your counsel advised the court that you were served with papers foreshadowing that fact by the relevant Government department in 2018.
37Your family moved from Port Moresby to Australia when you were aged six. The family then returned to Papua New Guinea when you were 13. Against a background of domestic violence, your parents separated not long afterwards. Your mother and one of your sisters then returned to Australia, where your mother re-partnered, while you and a younger sister remained living in Port Moresby with your father, who re-partnered not long afterwards. It was a difficult time for you as a young teenager, as you remained separated from your mother and your father left you to look after your younger sister for the majority of the time.
38You travelled to Australia in 2012 for a short time, with the aim of having your mother assist you to become an Australia resident. The attempt was unsuccessful, however, as she could not afford to sponsor you.
39You made another trip here in 2015, on a visitor’s visa. You committed the offence of murder approximately 10 weeks later. You have remained in custody here since being charged with that offence.
40Currently, your mother lives in Geelong with two of your sisters who are aged 24 and 18. Another of your sisters lives with her father in Melbourne. Your father continues to live in Port Moresby, together with your younger sister who is now aged nine and a half-sister. You have regular phone contact with your mother and sisters, but none with your father, although he is aware of your current situation.
41You have never used illicit drugs. Whilst you have consumed alcohol on occasion, it does not seem to have played any part in the offences that you have committed while here in Australia. You do not take any medication.
42After being taken into custody, you were first assessed by a psychiatrist in June 2016 and later by a psychologist, in February 2023. For understandable reasons, your counsel did not seek to rely on any of the principles in Verdins.
43The psychiatrist, Dr Danny Sullivan, assessed you for the purposes of your Supreme Court case. You impressed him as of average intelligence. At interview, you expressed concern about having a mental health problem. By reference to the prison health records, Dr Sullivan noted that there was a suggestion of a possible adjustment disorder. He did not believe that you had a mental impairment defence open in relation to the murder charge. He noted that the offence was difficult to understand and that to that point, you had not provided an understandable motive for committing it. Dr Sullivan saw no need for mental health treatment, although he was of the view that clinicians should continue to monitor you in the future.
44In light of the absence of any obvious mental disorder and given the lack of an understanding of the motivation underlying the offence, Dr Sullivan recommended that you be assessed for high intensity offence-specific treatment focussed on violence.
45More recently, on 9 February, you were assessed by the psychologist, Jeffrey Cummins, at which time you were charged with, but yet to be sentenced for, assaulting two of your fellow prisoners on 15 February 2022, and the two custodial officers, Ms Burns and Mr Goodes.
46At interview, you presented as being moderately depressed and mildly anxious. Mr Cummins diagnosed you with a major depressive disorder, which was associated with feelings of anxiety, hurt, resentment and traumatisation. In his view, you had been suffering from that condition since your parents separated when you were aged 13/14. You remain resistant to taking any medication or antidepressant or any other mood stabilising medication. Mr Cummins assessed you as having average intelligence and some remorse for your offending. You demonstrated an emerging level of insight into your offending history and pending matters. You candidly acknowledged that you still had 'a way to go before I know how to look after myself in a legal way, if I was to ever leave my current situation in a single cell in Exford Unit'. You also acknowledged that throughout your life, you had difficulty understanding and successfully managing your emotions.
47Mr Cummins noted the fact that since shortly after being transferred to the Exford Unit in MRC, you had been participating in weekly consultations with a Forensicare psychologist who has been assisting you to develop insight into your past and current mental health, and into the genesis of your anger management problem. As noted by Mr Cummins, this mental health treatment represents the first time that you have received any mental health treatment/anger management counselling since being incarcerated.
48At the time he interviewed you, Mr Cummins assessed your overall risk for committing a further offence of violence as moderate, noting that on your own admission, you require further mental health treatment and further input in relation to anger management issues, before you would feel 'safe' and feel that you could appropriately manage your own behaviour if and when you are shifted out of your current situation in Exford management.
Conditions in custody
49Whilst you were already being housed in a management unit at the time you committed the current offences, the commission of those offences resulted in you being moved to a single cell at the Melbourne Remand Centre’s Exford Unit, where you are subjected to a higher level of management. Until a few months ago, you were shackled whenever outside your cell. However, about four to five months ago, this was downgraded to the wearing of handcuffs only.
Forensicare Moroka Program
50Until last year, you had declined to engage in any clinical support on offer in custody.
51However, following a referral process which commenced in March 2022, you voluntarily commenced seeing a psychologist as part of the Forensicare Moroka Program. The senior clinical psychologist, Dr Simsion, conducted the first session on 2 September 2022, and has been seeing you on a weekly basis since. It would appear that you have benefited from your participation in this program to date, as demonstrated by the following excerpts from the Justice Health notes that your counsel sought to emphasise during the plea hearing.
52On 5 July 2022, you presented as intelligent, goal focussed and motivated to move out of long term management.
53On 7 June 2023, an occupational therapist noted that you were making progress in positive activities, including learning Japanese. You had been able to talk about managing your emotions and had reflected on previous interactions with staff and on the shame you felt about this event. You gave a specific example of using mindfulness techniques to manage your emotions in a challenging situation, for which you were provided with positive feedback. You had noted benefits such as decreased anxiety, less distractibility and greater time spent in the exercise yard. At the end of this session, you expressed gratitude for the assistance you had been receiving and commented that you wished you had engaged in such services on first entering custody, as things may have been different if you had.
54On 17 July 2023, Dr Simsion noted that your engagement had been very good. You had been engaging well with the program’s content and had shown a good uptake of the skills. You impressed as motivated to address your behaviour and to work towards being housed in an open unit in a safe way.
55I also note that when you were interviewed by Mr Cummins, you expressed gratitude for the mental health treatment that you had been receiving in custody. You told him that you trusted Dr Simsion who was helping you to address the issues to do with your behaviour.
Matters in mitigation
56Your counsel was able to rely on the following matters in mitigation, Mr Baea.
57You pleaded guilty to these charges at an early opportunity. That spared the victims from the ordeal of giving evidence and saved the community from the cost of a trial. The greater utilitarian value of your plea must be recognised, as it was entered during the course of the pandemic when this court was experiencing trial listing pressures.
58I am prepared to accept that your plea and the observations of Dr Simsion and Mr Cummins, demonstrate that you are remorseful.
59The fact that you have now sought and continue to engage in professional counselling for your anger management issues and offending behaviours, is a positive sign in terms of you being able to ultimately transition into a less stringent form of custody and for your prospects of rehabilitation more generally. I accept that you are genuinely trying to get as much benefit as you can in the weekly consultations that you are receiving via the Moroka Program, which have now been taking place over a period of more than 15 months.
60Whilst it is still very early days and you have not yet been tested by having to again mix in a more open type of custodial environment, the fact that you have not re-offended in the 23 months or so since you committed the current offences on 15 February 2022, is also to your credit.
61You are still relatively young and have the ongoing support of your family.
62You were not charged for seven months after committing these offences and that contributed to a delay in this matter being finalised, during which you had to deal with the uncertainty of what charges would be laid and what penalty you would receive.
Gravity of the offending
63One of the matters to which this court must have regard is the objective gravity of each of the offences for which you now fall to be sentenced. I will commence that assessment by reference to the most serious of the two offences, namely, intentionally causing injury
Intentionally causing injury
64As reflected by the relatively high maximum penalty, the offence of intentionally causing injury is an inherently serious one.
65This fact is further illustrated by the combined effect of ss 5(2G) and 10AA(4) of the Sentencing Act 1991. Where, as here, an offender falls to be sentenced for a Category 1 offence of intentionally causing injury to a custodial officer on duty,[14] the court must impose a term of immediate imprisonment of not less than six months. Whilst this mandatory sentencing regime is subject to an exception, if the court finds under s 10A that 'a special reason exists', it has not been suggested by either party in this case, that such a reason exists and I can see no basis for coming to any contrary view.
[14] A Category 1 offence is defined in s 3 of the Sentencing Act 1991 and includes, inter alia, an offence against s 18 of the Crimes Act 1958 (causing injury intentionally or recklessly).
66This minimum term of imprisonment was introduced in this State in 2014, in order to 'recognise the very special role played by Victoria's emergency workers, and the need to ensure that they receive the full protection of the law when treating, caring for and protecting Victorians at times of emergency'.[15]
[15] Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2014, 2397 (Robert Clarke MP, Attorney-General).
67In the Second Reading Speech, the Attorney-General said:
The longer sentences reflect the opprobrium that the community attaches to acts of violence against emergency workers who put themselves on the line in emergency situations on behalf of the community. It sends a clear message to perpetrators of these acts, that violence against emergency workers will not be tolerated and will be met with strong penalties.[16]
[16] Ibid.
68In assessing the seriousness of any offence of causing injury, whether it be intentionally or recklessly, the court must consider the type, severity and extent of the injury caused. As was noted in Shau v The Queen (‘Shau’),[17] 'the physical and mental consequences of the offender's conduct on the victim will generally assume significance in any assessment of the gravity of the offending'.[18] Although that case involved a charge of recklessly causing injury, I can see no logical basis for any different approach when dealing with an offence of intentionally causing injury.
[17] [2020] VSCA 252.
[18] Ibid, [42] (Niall JA).
69It is, however, also important to remember that any assessment of the seriousness of an offence of causing injury is not to be gauged only by reference to the injury itself. The circumstances and method or manner by which it was inflicted, is another important consideration. The correctness of this approach has been made clear in a number of recent Court of Appeal cases, including Phillips,[19] Milson,[20] Shau,[21] and Gommers.[22]
[19] Phillips v The Queen [2017] VSCA 313, [54] (Osborn and Priest JJA).
[20] DPP v Milson [2019] VSCA 55, [62] (Priest and Weinberg JJA).
[21] Shau, [44] (Niall JA).
[22] Gommers v The Queen [2021] VSCA 258, [44] (Priest and Kaye JJA).
70The fact that this offence was committed against a prison officer who was performing her duty in an entirely appropriate manner is an aggravating feature of this offending.[23] In Hope v The Queen,[24] the Court of Appeal observed that what it had earlier said in Director of Public Prosecutions v Arvanitidis (‘Arvanitidis’)[25] in relation to assaults on police officers while performing their duty, applied with equal force to prison officers undertaking the essential public duties that they perform.
[23] See for example, R v Schneidas (No 1) (1980) 4 A Crim R 95, 100; Hope v The Queen [2018] VSCA 230, [73]-[74] (The Court, comprising Priest, Beach and Kaye JJA).
[24] [2018] VSCA 230, [73]-[74].
[25] (2008) 202 A Crim R 300, 314 [50].
71In my view, this is a serious example of the offence of intentionally causing injury, for which you must bear a high level of moral culpability, Mr Baea. In coming to those conclusions, I have been very mindful not to over-react to the CCTV footage of this incident. Whilst it clearly captures and depicts what is, on any view, a very nasty assault on a defenceless woman, the following cautionary observations of Niall JA in Shau appear to me to be apposite to this case:
The CCTV footage is confronting. However, the attack is not made worse because it was filmed, and it is important that the images are not given undue weight. Nevertheless, they allow an appreciation of the severity of the attack and the vulnerable position in which Lee [the victim] was placed.[26]
[26] [2020] VSCA 252, [45].
72The fact remains that you chose to launch a savage attack upon a female prison officer without warning. She was totally unprepared for what occurred initially and then in no position to put up any effective defence to your later aggression. Your actions were cowardly and totally unprovoked. And, they have had a very significant physical and psychological impact on the victim, whose quality of life has been significantly diminished. The fact that you considered it appropriate to behave in this way, merely because you believed that the victim was responsible for you not having a run out earlier that day, is very concerning to this court.
Assaulting Custodial Officer on Duty
73Assaulting a custodial officer on duty must also be considered as an inherently serious offence, albeit not as inherently serious as intentionally causing injury in light of the differing maximum penalties. Your actions in attempting to punch this victim, coupled with your pushing of him into a railing, and the context in which those actions occurred, make this offence a relatively serious example of its type. Again, I consider your moral culpability to be significant.
74You appear to have attacked Mr Goodes because he raised an alarm so as to get help to deal with the situation that you had created by attacking his colleague. Again, your reason for acting as you did troubles this court.
75And, in assessing the gravity of this offence, the adverse emotional impact that it has had on this victim, should not be overlooked. It has been significant.
Current sentencing practices
76I have had regard to current sentencing practice.
77As the High Court has noted, this is not determinative, but rather only one of a number of sentencing considerations that a sentencing court needs to take into account when determining the appropriate sentence.[27]
[27] DPP v Dalgleish (a pseudonym) (2017) 262 CLR 428.
78In respect of intentionally cause injury, the most serious of these two offences, I have had regard to resources from the Sentencing Advisory Council and the Judicial College of Victoria, while noting their inherent limitations.[28]
[28] See Victorian Sentencing Advisory Council's ('SAC') Sentencing Snapshot No 265 for causing injury intentionally published in December 2021; SACStat Higher Courts – Causing injury intentionally; and Judicial College of Victoria's Sentencing Manual Case Summaries for this offence (4.5.1-online).
79To varying degrees, such resources are limited in the information that they contain, including as to the circumstances of any given offence and of any given offender. Their utility is, accordingly, limited.
80And, it is important to bear in mind, that individualised justice is what is ultimately called for; that is, a decision informed by the particular circumstances of the offending and of the offender in the case at hand.
Relevant sentencing principles
81This court must also have regard to the relevant sentencing principles that arise for consideration in this case.
82To adopt and adapt the observations made in Arvanitidis, which the court later found to apply with equal force in respect of custodial officers, it is a serious offence to assault custodial officers performing their duty and ordinarily requires a significant element of deterrence in the sentence to be imposed.[29] The purpose of sentencing offenders is to deter others and thereby protect custodial officers.[30]
[29] (2008) 202 A Crim R 300, 314, [50] (Redlich JA).
[30] Ibid, at [4] (Buchanan JA).
83Clearly, general deterrence and denunciation are very important sentencing considerations in this case. By the sentence it imposes, this court must, on behalf of the community, make very clear that criminal behaviour of this kind is reprehensible and to be deplored. The sentence imposed must also strongly discourage any prisoners who might be contemplating assaulting others in a custodial environment, from doing so. Those would-be offenders must be made to pause and contemplate the cost-benefit equation of the situation and, in particular, the likelihood that the stern response from a sentencing court will outweigh any reason they may have, for contemplating engaging in violence against another while in custody.
84In this case, specific deterrence is another significant sentencing consideration. Not only does Mr Baea have a prior conviction for the most serious of all offences of violence, murder, he has also been convicted of assaulting three other prisoners in a custodial setting. He deliberately caused serious injury to the first of those victims in October 2017, and he recklessly caused injury to another victim in March 2021. In respect of all three victims, he launched an assault without warning and used his fist as a weapon. The assault on each of the two victims who were injured continued notwithstanding that they had already been rendered unconscious. That history provides a very relevant context to this sentencing task when it comes to assessing the need for, and weight to be attached to, specific deterrence as a sentencing factor. In my view, the nature and seriousness of the current offending, together with the antecedents of the accused, warrant a sentence that provides a meaningful level of personal deterrence to Mr Baea who, even on his own account, has some way to go before being able to feel confident about mixing with other inmates without incident.
85For similar reasons, protection of the community from Mr Baea is also relevant in this court’s assessment of the appropriate sentence.
86This court must also have regard to Mr Baea’s age and prospects of rehabilitation. Whilst not a youthful offender, he is still a relatively young man with much of his life still ahead of him and it cannot be said that he is without prospects. And, despite the fact that this is the fourth occasion on which he has chosen to engage in disturbing violence, without warning, towards a vulnerable victim, it cannot be yet said that he is entrenched in a criminal lifestyle. On a positive note, he seems to have seized and benefited from the opportunity that Corrections have recently afforded him by engaging in psychological counselling. While it is still very early days, the fact that he has grasped that opportunity and remained out of any further trouble in custody since being charged with the current offences, provides some basis for thinking that Mr Baea may at least be starting to reassess his situation with a view to trying to curb his anger and volatile nature, by adopting alternative strategies if and when he feels frustrated, stressed or challenged.
87Parsimony and totality are further sentencing considerations.
88In respect of the latter, for example, it must be borne in mind that when determining the appropriate punishment for this offending, the two offences were committed during the same rapidly unfolding incident. However, it must also be remembered that there were two victims not one and that each offence involved a separate degree of criminality on Mr Baea’s part. Accordingly, whilst it is appropriate to effect some measure of cumulation as between the sentences imposed for those offences, a sensible measure of concurrency is also warranted.
89Ultimately, this court must sentence Mr Baea for these offences in a manner and to an extent that is just in all the circumstances. All relevant matters considered, it is clear that only a relatively significant period of imprisonment will satisfy that requirement. To do otherwise, would risk undermining some of the very sentencing principles that require emphasis in this case, including denunciation and deterrence (both general and specific).
Sentencing submissions
90In her sentencing submissions, your counsel acknowledged that your offending was serious and involved an entirely unprovoked assault on two innocent victims. However, she also urged the court to take care when sentencing you so as to avoid a crushing sentence, or one that effectively punished you for a more serious offence than those on which you have been indicted.[31]
[31] Counsel specifically mentioned offences involving serious injury for Ms Burns and any injury offence for Mr Goodes.
91For their part, the prosecution submitted that this offending was very serious and warranted the court giving real weight to deterrence, both general and specific.
92The parties were agreed that in light of the nature and seriousness of the offending, nothing other than a term of imprisonment was appropriate for each of the charged offences. Nor was there any issue as between the parties, as to the need for a measure of cumulation between those individual sentences.
93The point at which the parties differed, and significantly so, was as to whether the total sentence imposed for these two charges must be served wholly cumulatively on the already lengthy sentence that you are presently undergoing. The answer to that question depends on whether s 16(3) of the Sentencing Act 1991 (‘the Act’) is engaged in the circumstances of this case. If it is, then the court must order that this sentence be served cumulatively on any uncompleted sentence unless exceptional circumstances exist. I will now turn to consider s 16(3) and the respective arguments raised by the parties as to its purported applicability to this case.
Is section 16(3) of the Sentencing Act 1991 applicable?
Relevant Acts and Regulations
94In its terms, s 16(1A)(b) of the Act states that the normal statutory presumption of concurrency between terms of imprisonment as contained in sub-s(1), does not apply for a prisoner in respect of a prison offence or an escape offence.
95However, s 16(3) goes even further and relevantly states as follows:
Every term of imprisonment imposed on a prisoner by a court in respect of a prison offence or an escape offence, must unless otherwise directed by the court, because of the existence of exceptional circumstances, be served cumulatively on any uncompleted sentence or sentences of imprisonment…imposed on that prisoner, whether before or at the same time as that term.
96A key starting point in any consideration of this section is the question of what constitutes a ‘prison offence’.
97Section 3 of the Act states that prison offence has the same meaning as in Part 7 of the Corrections Act 1986.
98Part 7 of that Act is headed 'Prison Discipline' and includes a definition section. Section 48 states that prison offence means 'a contravention of this Act or the Regulations'.
99Part 6 of the Corrections Regulations 2019, is also headed 'Prison Discipline' and contains a section which is headed prison offences and which prohibits various actions or conduct on the part of prisoners.[32] For the purposes of this case, it is sufficient to refer to only the first two of those prohibitions, which are stated in the following terms:[33]
[32] Regulation 65.
[33] Regulations 65(1)(a) and (b).
65 Prison Offences
(1) A prisoner must not-
(a) assault or threaten any person; or
(b) act in a disruptive, abusive, offensive, racist, discriminatory or indecent
manner, whether by language or conduct; or
…
100Thus, for the purposes of this case, it would be sufficient to engage s 16(3) of the Act, if either or both of the offences with which Mr Baea is charged on indictment, were an ‘assault’ as that term is used, in reg 65 of the Corrections Regulations.
101There is, however, no definition or clarification contained within those regulations as to what the word ‘assault’ means in that context.
Prosecution submissions
102The prosecution submit that the word assault should not be construed narrowly, but rather, given a wide meaning as was intended by Parliament. Thus, any offence which involves the deliberate and unlawful application of force to the body of another would be sufficient. It matters not, say the prosecution, that the accused is charged with the specific offence of intentionally causing an injury, as such an offence necessarily and inevitably encompasses an assault, even if of an aggravated kind. As for the charged offence of assault custodial officer on duty, that is clearly an assault of a very specific kind, but an assault, nonetheless.
103The prosecution’s principal argument, therefore, was that s 16(3) of the Act is engaged because the accused man has pleaded guilty to two offences on indictment, each of which constitute ‘prison offences’ committed while he was a prisoner.
104In the alternative, the prosecution submitted that the charged offences satisfied the requirements of reg 65(1)(b), as the conduct which forms the basis for those charges is clearly of a kind that meets the description ‘disruptive’ and/or ‘abusive’.
Defence submissions
105The defence did not take issue with the fact that each of the offences of intentionally cause injury and assault custodial officer on duty can be properly characterised as an assault, since each of those offences must involve the deliberate and unlawful application of force to the body of the non-consenting victim.
106However, the defence submit that while each of the charged offences are ‘assaults’ in the broad sense of the word, they are not prison offences in the sense that that term is being used in s 16(3) of the Act, because neither of the specific type of assault charges faced by the accused in this case, are a contravention of the Corrections Act or the Corrections Regulations. Rather, each of the offences of intentionally cause injury and assault custodial officer on duty is a contravention of the Crimes Act 1958.[34]
[34] Sections 18 and 31(1)(b), respectively.
107Accordingly, say the defence s 16(3) is not engaged, as when that section is properly understood in the context of the relevant provisions of the Corrections Act and the Corrections Regulations, it is clear that the fact that Parliament did not list and therefore include the specific offences here charged in reg 65 is deliberate.
No determinative case law on point
108Somewhat surprisingly, there does not appear to be any case in which the Court of Appeal or a judge of the Supreme or County Court, has been required to determine this issue in a context where it has been necessary for the purposes of the case to do so and where the parties were at odds as to whether the section applied or not. So, the meaning of ‘prison offence’ and/or ‘assault’ have not been the subject of detailed judicial analysis in that context.
109Whilst not determinative, the relevant observations by way of considered obiter in the Court of Appeal case of Roach v The Queen (‘Roach’)[35] are of some assistance.
[35] [2020] VSCA 205.
110In that case, the appellant successfully appealed a sentence imposed on him by a County Court judge for various offences, including trafficking in a drug of dependence in a commercial quantity, on the basis that the sentencing judge had erroneously applied s 5(2HC) of the Sentencing Act 1991, because she had believed that it was in force at the time of the offending, when in fact it had not come into operation until some months later. The sentencing error was conceded by the prosecution. The Court accepted that the sentencing error had been made out and so was called upon to re-sentence the appellant.
111As part of her oral submissions in relation to that resentencing exercise, the appellant’s counsel sought to raise, for the first time, a complaint about a sentence that had been imposed on the appellant by a magistrate subsequent to the County Court sentence which was being appealed. The appellant had received a sentence of six months’ imprisonment, which the magistrate made wholly cumulative upon the County Court sentence, for an offence of recklessly causing injury committed in the course of an altercation with another prisoner, by throwing boiling water at him. Appellate counsel sought to argue that the magistrate had erred in concluding that the offence which the appellant committed in custody was a ‘prison offence’ within the meaning of s 16(3) and, in the alternative, that the magistrate had erred in failing to find that there were exceptional circumstances within the meaning of that sub-section, such that total cumulation was not warranted.
112The Court of Appeal found that it had no jurisdiction to review the sentence imposed by the magistrate as it’s appellate jurisdiction was enlivened by the application for leave to appeal under s 278 of the Criminal Procedure Act2009, which related to, and only to, the sentence imposed by the originating court, being the County Court.
113However, the Court did not leave things there, as it could quite easily have done. Rather, after first noting the reasons for the court having no jurisdiction to determine the point relating to the magistrates findings,[36] the Court said this:
Nonetheless, in deference to the comprehensive written submissions filed by the parties and because the construction point may be of importance in the future, we consider it appropriate to deal briefly with the ‘prison offence’ question.[37]
[36] Ibid at [56]-[59].
[37] Ibid at [60].
114Clearly, the Court recognised the significance of the issue in terms of the future administration of criminal justice and so gave the matter detailed consideration with a view to providing some assistance, albeit not a concluded view, to those judicial officers who may have occasion to consider the same or a similar point in the future. Thus, it is important to note that the observations ultimately made by the court on this issue, while strictly obiter and couched in less than conclusive language, were considered and made after having had the benefit of detailed written submissions from the parties.
115In the immediately following paragraphs, the Court then set out in full, the terms of s 16(3) of the Sentencing Act 1991 and s 48 of the Corrections Act1986, and the relevant part of reg 65(1)(a) of the Corrections Regulations 2019, insofar as it refers to an assault.
116At paragraph 62, the Court made the following observation:
Both the Corrections Act and the Corrections Regulations 2019 create a number of distinct criminal offences. The appellant notes that recklessly causing injury is not one of those listed offences. Importantly, however, reg 65(1)(a) creates the ‘prison offence’ of ‘assaulting or threatening a person.
117The Court noted that the appellant’s counsel had properly acknowledged that absent a statutory definition, the expression ‘prison offence’ would encompass any offence committed by a prisoner in prison. The appellant’s counsel went on to submit, however, that the legislature had chosen to define that expression in narrow and specific terms, and that the offence of recklessly causing injury was distinct from the offence of assault, using as an example, the fact that an injury can be inflicted without the direct application of force, or even the mere apprehension of force.
118The Court went on to note that there was no appellate authority supporting the appellant’s preferred construction of the meaning of ‘prison offence’ and her submission in respect of the earlier case of R v Devries,[38] namely that the Court of Appeal had assumed (without the benefit of argument on the point) that recklessly causing serious injury, in a prison context, did amount to a ‘prison offence’.[39]
[38] [2005] VSCA 95.
[39] Ibid at [8], [18] and [24].
119After conducting that analysis, the Court of Appeal then made the following observations at paragraph 67:
Given the question does not arise for decision, we do not express a concluded view. As the respondent pointed out, those representing the appellant in the Magistrates’ Court accepted that s 16(3) was applicable. That was, in our view, unsurprising in the circumstances. For the reasons advanced by the respondent, there is obvious force in the proposition that the appellant’s offending conduct was properly characterised as ‘assaulting a person’ and hence was a ‘prison offence’ within the meaning of s 16(3).
120Whilst the parties referred this court to some other cases where s 16(3) was relevant, they provide no real assistance to the task that I have to undertake in this case. For example, in The King v Hall,[40] Jane Dixon J was prepared to assume that s 16(3) applied to an offence of intentionally causing serious injury in circumstances of gross violence committed in prison, but find, as both parties submitted she should, that exceptional circumstances existed so as to leave open the option of concurrency. Another case cited was that of DPP v Ahmed and Yat,[41] in which Judge Chambers sentenced on the non-contentious basis that the two offences of assault custodial officer on duty were ‘prison offences’ for the purposes of s 16(3), but that the delay in the matter being heard in the context of a lost opportunity for the matter to have been heard by the County Court some 14 months earlier, constituted exceptional circumstances so as to permit total concurrency with any uncompleted sentence.
Analysis
[40] [2023] VSC 151.
[41] [2023] VCC 1638.
121In order to determine the issue at hand, I must have regard to the language, context and purpose or policy of the relevant legislative provisions to which I have already referred.
122When one views the context in which the reference to ‘a prisoner in respect of a prison offence’ appears in s 16(1A) of the Act, it is apparent that Parliament was, to a significant degree, seeking to deter, through a reversal of the presumption of concurrency, offences involving violence against custodial officers or prisoners in custody and offences that exposed emergency workers, (such as police, custodial officers and protective service officers) to risk, be it by driving or by the discharge of a firearm.[42]
[42] Apart from sub-s (1A)(b) itself, see also sub-ss (1A)(d)-(j) and (l). Note: sub-s (1A)(k) refers to an offence of causing damage to an emergency vehicle by driving.
123However, s 16(3) goes even further than s 16(1A) does, in respect to the purpose of deterring prisoners from committing prison offences. Rather than simply reversing the presumption of concurrency between terms of imprisonment, to one of a presumption of cumulation for any term imposed for a prison offence as s 16(1A) did, s 16(3) essentially mandates, that any such sentence must be served cumulatively on any uncompleted sentence, unless otherwise ordered by the court because of the existence of exceptional circumstances. Thus, whenever such an offence warrants a term of imprisonment, Parliament has seen fit to mandate that it be served cumulatively, unless and until the high threshold of ‘exceptional circumstances’ exists. Clearly, the legislative policy behind such a provision is to strongly discourage prisoners behaving violently, or in other ways, endangering or disrupting the safety and good management of prisons and to thereby protect the safety and wellbeing of those persons who work or are forced to reside in such places.
124In my view, the arguments advanced by defence counsel, for interpreting the ambit of the expression ‘assault or threaten any person’ in reg 65(1)(a) of the Corrections Regulations should be rejected. In the context in which it appears, that is, alongside other listed offences which have the capacity to disrupt the good order, management and safety of prisons and those who work or reside there, it manifests a clear legislative intention, to prohibit and discourage through internal disciplinary measures or even through the criminal justice system, unlawful violence engaged in by prisoners against prison officers and other prisoners.
125The defence argument to the effect that the use of the expression ‘assault any person’ is deliberately phrased so as to exclude any offences that are committed in contravention of the Crimes Act cannot be accepted. Put simply, some offences included in that Act can also constitute a prison offence if it involves and encompasses conduct which would amount to an assault and was carried out by a prisoner while in prison.
126In my view, no other interpretation of ‘prison offence’ by reference to reg 65(1)(a) is open. To interpret it narrowly in the way suggested by the defence, would distort the clear and simple language of that regulation and would be illogical and tend to undermine rather than advance the legislative policy and purposes which underpin s 16(3) of the Act. It would make no sense to exclude the most serious of the forms of assault under the Crimes Act when trying to deter violence in prisons so as to protect prison staff and prisoners in what is a volatile and potentially dangerous environment. My view is only reinforced by the fact that under the relevant provisions of the Corrections Act, there are various options available to a nominated disciplinary officer or to the Governor, when dealing with a prison offence. Options include not just a reprimand or the withdrawal of privileges, but the charging of the prisoner with the prison offence.[43] In addition, that officer or the Governor can take steps to have the matter dealt with under the criminal law.
[43] See sub-ss 50 (5), and (5A) and ss 51 (c) and (d) and 53(4).
127I have also been assisted in reaching the conclusion that I have by the analysis undertaken by the Court of Appeal in Roach. Whilst the argument advanced by defence counsel in this case was not identical to that advanced by counsel who appeared for the appellant in that appeal, the considered observations of the court in that case are persuasive. Neither logic nor common sense would suggest a different result, merely because the charges here are different to the charge for which the appellant in that case was sentenced in the Magistrates’ Court.
128Accordingly, and for the reasons given, I have concluded that each of the offences in this indictment are ‘prison offences’ for the purposes of s 16(3) of the Act. Each such offence occurred in a prison and involved the accused, as a prisoner, applying unlawful force to the body of another. Accordingly, on each occasion, the accused engaged in conduct that satisfies the expression ‘assault against any person’, the specific type of prison offence listed in reg 65(1)(a) of the Corrections Regulations.
129Were it necessary, I would also have been prepared to find that the offences were also ‘prison offences’ based on reg 65(1)(b) of the Corrections Regulations as the underlying conduct involved disruptive and abusive acts on the part of the accused.
Are there exceptional circumstances?
130Defence counsel sought to rely on a number of circumstances in combination in order to try and persuade the court of the existence of ‘exceptional circumstances’. This was with a view to ultimately urging the court to order partial rather than complete cumulation as between this sentence and the uncompleted sentence which the accused is currently undergoing.
131First, it was important to recognise that any cumulation order in respect of the sentence imposed for these two offences, would need to be served by the accused in relation to an uncompleted sentence of considerable magnitude. Totality considerations assumed much greater force in such a situation than for one involving a significantly lower uncompleted sentence.
132Second, and related to the first point, unless the totality principle is accorded proper recognition, there is a real risk that any sentence imposed for the current offences would give rise to a crushing sentence overall, when combined with the uncompleted sentence.
133Third, the delay in the laying of charges and in the time it has taken to sentence the accused, whilst not inordinate or excessive, is an additional matter of relevance to the court’s task of assessing whether exceptional circumstances exist.
134And, finally, the accused has been voluntarily and enthusiastically engaging in psychological counselling and treatment through the Forensicare Moroka Program with a view to addressing his anger management and behavioural issues that seem to have played a part in all of the offending he has engaged in while in custody. A wholly cumulative sentence would risk diminishing or extinguishing that positive attitude on his part and consequently, his chances of successfully rehabilitating, which would not be in his or the community’s best interests.
135For their part, the prosecution submitted that the matters relied on by the defence were insufficient to establish the existence of exceptional circumstances, even when viewed in combination.
136In my view, the reference to ‘exceptional circumstances’ in s 16(3) connotes a high threshold test, in keeping with the context in which it appears, the clear language used and the legislative purpose behind the provision. On any view, it is a difficult thing to establish. But it should not present as an insurmountable barrier to the establishment of exceptional circumstances in an appropriate case, although those cases will not frequently arise. I accept that it could be possible for a court to determine that such circumstances exist, based on a single persuasive factor or on a combination of factors, neither of which when considered alone, would be sufficient.
137After giving careful consideration to the matters relied on by defence counsel in this case, I have ultimately concluded that this court cannot be satisfied of the existence of exceptional circumstances, even when the combined force of the individual circumstances relied on are considered.
138Accordingly, I have concluded, pursuant to the express and mandatory terms of s 16(3) of the Act, that the sentence imposed for the current offences must be served wholly cumulatively on the uncompleted sentence that Mr Baea is currently serving. The sentencing orders I make shortly will give effect to that fact.
Sentence
139After considering, balancing and weighing all relevant matters, I have decided to sentence you as follows, Mr Baea.
140On each charge, you will be convicted and sentenced to the following terms of imprisonment.
141On Charge 1, intentionally causing injury, two years and three months.
142On Charge 2, assault custodial officer on duty, nine months.
143The sentence imposed for Charge 1, will be the base sentence.
144I direct that three months of the sentence imposed on Charge 2 be served cumulatively on the base sentence.
145The total effective sentence imposed in respect of this indictment will therefore be two years and six months.
146For the reasons already described, as no exceptional circumstances exist, the mandate in s 16(3) of the Act requires that this sentence of two years and six months be served entirely cumulatively on the sentence of 24 years and five months with a non-parole period of 19 years and five months that Mr Baea is already undergoing.
147Accordingly, the new global total effective sentence for Mr Baea is one of 26 years and 11 months.
148In respect of that new global total effective sentence, I fix a new non-parole period of 21 years and 11 months.
Section 6AAA indication
149Pursuant to s 6AAA of the Act, I indicate that but for Mr Baea’s plea of guilty to the two charges on this indictment, he would have been sentenced to a total effective sentence of three and a half years for those two offences.
Other matters
150Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you Ms East?
151MS EAST: No, Your Honour.
152HIS HONOUR: Ms Hoskin?
153MS HOSKIN: No, Your Honour.
154HIS HONOUR: Ms East, you will be permitted to have a brief conversation with your client utilising the current video link, if you and he wish, immediately after I leave the Bench.
155MS EAST: Just a brief conversation would be appreciated, Your Honour.
156HIS HONOUR: Very well. Adjourn the court sine die please Mr Tipstaff.
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