Director of Public Prosecutions v Beaton
[2024] VCC 1993
•6 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01196
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIAM BEATON |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING | 22 October 2024 (Plea), 3 December 2024 (Further plea) | |
DATE OF SENTENCE: | 6 December 2024 | |
CASE MAY BE CITED AS: | DPP v Beaton | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1993 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Grooming for sexual conduct with a child under 16, involving a child in the production of child abuse material, sexual penetration of a child under 16. Complainant 14 at the time of the offending. Accused 24 years of age. Delay. 28 years of age at time of sentencing. Application of Mills and Azzopardi. Verdins and Bugmy. Plea of guilty. Standard sentence regime. Prospects for reform. Risk assessment and prospects for rehabilitation. Serious offender. Totality. Sex offender registration.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited:Clarkson v The Queen (2011) 32 VR 361. R v Mills [1998] 4 VR 235. Azzopardi v The Queen (2011) 35 VR 43. Bugmy v The Queen [2013] HCA 37. Baroch v The Queen; Ater v The Queen [2022] VSCA 90. R v Verdins (2007) 16 VR 269. DPP v Drake [2019] VSCA 293. DPP v Hermann [2021] VSCA 160. Stewart v The Queen [2015] VSCA 368. Worboyes v The Queen [2021]. VSCA 169. R v Merrett, Piggot and Ferrari (2007) 14 VR 392. Brown v The Queen (2019) 59 VR 462. DPP v Dalgliesh (a Pseudonym) (2017) 262 CLR 428. Bouris v The Queen [2021] VSCA 245. DPP v Pan [2022] VSCA 98. DPP v Spottiswood [2021] VSCA 146. R v LD [2009] VSCA 311. The Queen v Frank (a pseudonym) [2021] VSCA 163. Hogan v Hinch (2011) 243 CLR 506.
Sentence: Total effective sentence of 4 years and 2 months imprisonment with a non-parole period of 2 years and 3 months.
PSD of 3 days.
s.6AAA: 6 years with NPP of 4 years.
SORA registration for life.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Albert | Office of Public Prosecutions |
| For the Accused | Ms E. Strugnell | Slades and Parsons |
HIS HONOUR:
Introduction
1Liam Beaton, you have pleaded guilty to the following charges which carry the accompanying maximum penalties:
# Charge Legislative Provision and Maximum Penalty 1 Between 29 June 2021-
22 August 2021,
Grooming for sexual conduct with a child under 16.49M(1) Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
Level 5 imprisonment (10 years maximum).2 On 22 August 2021,
involving a child in the production of child abuse material.51B(1) Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
Level 5 imprisonment (10 years maximum).
3 On 22 August 2021,
sexual penetration of a child under 16.49B(1) Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
Level 4 imprisonment (15 years maximum).
* Standard Sentence- 6 years
+ Serious sexual offenderOver a period of around two months in 2021, when you were 24 years of age, you communicated with, and otherwise engaged in conduct with, a 14-year-old boy in order to facilitate his involvement in sexual conduct with you. Not only did you groom him for that purpose but you were successful in doing so on a single date in late August that same year. You produced child abuse material while with him and involved yourself in an offence of sexual penetration with him.
2This is grave, vile and exploitative offending. Your conduct involves sustained predation on a particularly vulnerable child. The effect on him and his stepmother are profound.
3You have never offended before, nor since. Your offending now occurred more than three years ago. A substantial delay has occurred which is not your fault and has a real impact on the sentence I impose.
4The offending appears to arise at a time when you were struggling to come to terms with your own sexuality and sought out an experience with a similarly emotionally underdeveloped male. You are socially alienated, your lifestyle was destabilised because of substance abuse and you have a chronically low self-esteem and sense of self-worth. This is an important context and gives rise to some application of the principles in cases such as Verdins and Bugmy.
5Despite those matters in mitigation, the gravity of this offending demands you be imprisoned. You will be sentenced to a head sentence with a non-parole period. The duration of that sentence and the setting of a non-parole period are explained in the reasons that are to follow.
THE OFFENDING
The parties and context for meeting
6The victim in this matter is David Cooper[1]. He was born in June 2007 and at the time of the offences, he was between 14 and 15.
[1]A pseudonym.
7You, Liam Beaton, were born in January 1996 and were between 24 and 25 years of age at the time you offended. At the time you were an acquaintance of the victim.
8You first met at the home of Michelle Cole[2] in Oakleigh. Michelle was a friend of yours and it was towards the end of 2020 when you met. At that time the victim was living between the home of his grandmother in Oakleigh and the home of his father Ronald Cooper[3] and stepmother Erica Harris[4] in Pakenham.
[2]A pseudonym.
[3]A pseudonym.
[4]A pseudonym.
9Because of previous instances of online and in-person bullying, Erica monitored David’s mobile phone use. He was on a talk and text plan only and his access to data and the internet had been removed.
10Sometime in 2020 the victim met you at the home of Michelle. He was 14. The two of you exchanged mobile numbers and added each other to social media platforms. Thereafter you messaged each other frequently.
11At around that time, and early in the friendship, you drove the victim to a Hungry Jack's restaurant to collect food for Michelle and during the trip you and the victim discussed the latter’s age. At that part of the conversation you asked the victim, 'How old are you?', to which he replied, 'I'm like, 14'. You exclaimed, 'Jeez'. That is to say, you were on notice about how young David was very early on.
Grooming
12You and the victim regularly communicated by text as well as on Snapchat, Facebook and Messenger. In June 2021 you commenced to send text messages to the victim offering him alcohol, cigarettes and vapes in exchange for sexual favours. By way of illustration, you sent messages to him saying, 'If you suck my dick, I'll give you $200', and, 'I'll give you weed so that you can have fun at mine'.
13Many messages were exchanged where you offered things to the victim as well as the victim asking you to get things for him. In several messages, you asked the victim what sexual favours you would get in return for supplying drugs.
14An example of what I would call that type of 'transactional' message sent is: 'Let us know if you wanna go for a ride and have a cone while I do that thing'. That was a reference to the victim performing oral sex on you in exchange for drugs.
15In another message you stated: 'I could get you cruisers, bring me billy for a mix and I'll give you maybe one or 200 bucks - plus you get a BJ as well while you have a cone'.
16When the victim sent messages to you indicating he wanted something, such as cigarettes, you would tell him what to do in exchange. It was always something sexual. These types of messages continued and became more frequent over time.
17On 22 August 2021, the victim sent a message to you stating: 'Can you bring me cigarettes, I need some bad'. And you replied: 'What's in it for me?'.
18Amongst other messages you sent that day were:
(i) 'Do u cum a lot or a little bit';
(ii) 'Then get your big cock out';
(iii) 'I wanna make you cum bro. I’ll deep throat you';
(iv) 'Bro, if you're gonna show me you may as well let me suck it';
(v) 'You don't have to do me today';
(vi) 'C'mon bro, you just gotta lie back and enjoy';
(vii) 'We can have a drink and then I'll suck you'; and
(viii) 'If you let me suck you I'll give you my whole pack'.
19All of the messages sent by you of that type between 29 June 2021 and 22 August 2021 constitute grooming. That is to say between those dates in June and August 2021 you engaged in communication with a child, David, in order to facilitate sexual activity with him. That constitutes Charge 1, grooming.
20On the evening of 22 August 2021, you sent messages to the victim saying: 'Can you send us flicks', and, 'As soon as you send the pics I'll leave'. The victim then took a photo of his penis and attempted to send it to you but he had no mobile data and therefore the photo did not send.
21When Erica later inspected the victim’s telephone she discovered the photo the victim had taken of his penis at your request (which are included in the screenshots she provided to police).
22A short time later you drove to Pakenham in the van you used for work as a courier, and as you did so you sent the victim messages saying you were on the way, and when you arrived in the area you sent messages asking the victim where you should park. After a brief exchange of messages, you sent texts saying: 'I’ll park on', location redacted, 'Drive', and, 'Cya soon, Get Keen, U hard'.
23At 7:20 on the evening of 22 August you parked close to where the victim lived. When you called the victim to let him know you arrived, he went and got into the van. You gave him a cigarette and then drove around the Pakenham area in search of a secluded spot to park.
24As you drove around the victim became apprehensive. He asked: 'Can we do it on a different night, maybe?'. You responded: 'Nuh, I'm pretty keen to do it tonight'. The victim then stated: 'I don't really want to', followed by, 'Whatevs'. You continued to drive for about 10 to 15 minutes before travelling along a dirt road and parking under some powerlines.
25When you asked the victim 'Are you ready?', he replied 'I dunno'. You and the victim got into the back of the van through one of the sliding doors and once inside the victim sat at the back of the van leaning against the back door.
Produce child abuse material
26You pulled the victim's pants down so that they were around his ankles and at that point, you used his mobile phone to take a picture of his penis.
27You positioned yourself on your knees in front of the victim and commenced to suck the victim’s penis. You continued to perform oral sex on the victim for some time. At one stage you commented on the state of the victim’s penis saying: 'You're hard, really hard'. After sucking the victim’s penis for about 10 to 15 minutes, he said 'Stop, I need to go home'. That constitutes Charge 3, sexual penetration of a child under 16.
28You stopped and told the victim that it was good. You both got into the front of the van and you drove back to the victim's house.
Complaint and VARE
29On the evening of 27 August, the victim, Erica and Ronald were at home in Pakenham and due to some of David’s negative behaviour Erica decided to confiscate his phone. Later that night she checked his mobile phone as she thought he had obtained vapes from someone at school.
30As she searched through the phone, she located some messages from a person known as 'Liam' and those messages spoke of your desire to meet the victim. When Erica continued to search the phone, she located numerous messages where you had offered the victim cigarettes, vapes, alcohol and money in exchange for sexual favours.
31Upon reading those messages, she went to the lounge room and asked the victim about 'Liam'. David immediately became distressed and started crying. As he went to leave the room, Erica told him he was not in trouble. He then said to her and Ronald that 'He didn't know if he wanted to do those things', and he thinks he 'might be gay', and he thought he might be in trouble if they found out because he wanted the vapes and money.
32He then referred to a night that you had met him around from the house and that it made him feel 'yuck'. At that stage, the victim did not fully divulge what had occurred. The following day Erica checked the list of friends the victim had through Facebook and discovered your name 'Liam Beaton' and showed Ronald. She took screenshots of everything that she had located on the victim's mobile phone.
33On 31 August the victim went with his father and stepmother to the Dandenong police station. There he spoke to police and David disclosed numerous instances of grooming. He then also told them about a recent occasion where you performed oral sex on him in Pakenham in exchange for cigarettes. Erica gave the police the screenshots she had taken from the phone. They included numerous messages between you both.
34On 29 September 2021, David made a VARE to police and during that statement, he disclosed numerous instances of grooming. Those occasions included offering vapes, cigarettes and alcohol in exchange for sexual favours. The victim stated you also asked him for photos of his penis.
35The victim told police you performed oral sex on him in Pakenham on 22 August 2021. He said that you did that in exchange for cigarettes which you had given to him.
Arrest and interview
36After the complaint was made on 31 August, police applied for a warrant and they were granted one. On 19 October 2022, that warrant was executed at your house. You were not present, but your brother was. Nothing relevant to the investigation was located.
37At 9:30 that morning, police telephoned you and you agreed to meet them. Within the hour you attended the police station where you were arrested by Detective Senior Constable Jacinta Sheridan, and you then participated in a record of interview.
38During that Interview you made various admissions to grooming the victim, involving the victim in the production of child abuse material, and sexually offending against him.
39Amongst other things you said:
(a) 'He's a kid that I came to know, like through, I dunno, I met him through one of my old dealers'; and
(b) He knew 'Just his name and what he looks like, but I dunno anything about him. Like, I didn't get to be his friend, like, because he was too young';
(c) 'I know that sounds stupid, but like, I'm not gunna be friends with a 15-year-old, like, it's not smart';
(d) the victim was, 'Oh, like, under 16';
(e) the victim, '…messaged me and he sorta wanted me to get him vapes, or something. He wanted me to buy him drinks or fuckin', what it was, vapes or drinks, and those messages sorta - they weren't very often, like, maybe once or twice a week…';
(f) he would respond, 'Yeah, yeah, bro, whatever, yeah';
(g) '…But I had no intention of getting them. But then those messages sorta started - so, honestly, I probably made the first suggestion but I sorta - I dunno how to put it - I dunno how to put it…';
(h) '…I'd tell him that I'd get him the vapes and he sends me a photo, like, it’s easy, like, you know, shirtless, like, you know, in front of the mirror, that sort of stuff';
(i) 'And then as it progressed, I started asking, like, if, you know, send me photos with no shorts on and stuff like that';
(j) you admitted sending the text messages to the victim and asking him to send naked photographs of himself to you;
(k) you masturbated to the naked photographs of the victim; and then
(l) 'It's just, like, when I'm - obviously I'm messaging him there, you know, I'm obviously in an aroused mood…'
40When asked in the Interview about meeting with the victim, you said:
(a) Question: 'Earlier you said you'd never met up. I've got some text messages that have been provided and that's in late August you sent him a message in regard to meeting up and asked him what street to park on.' He says - Court name - 'Don't park in that one, okay?' And you say: 'Yeah, you'll park on' - Street name - 'Drive.' He says: 'Yeah, man, leave in two minutes'. Do you know what comes next? Answer: 'Yep.'
(b) Question: Tell me about that; Answer: 'No comment.'
(c) Question: …Jacinta's asked about you performing oral sex on him. You started to clam up a bit and say 'no comment' a couple of times - why is that? Answer: 'I just don't wanna talk about it.'
(d) Question: Yeah. Well, why? Answer: ' 'Cause it's fucked.'
(e) Question: What do you mean? Answer: 'It's wrong, it's disgusting, it's horrible, like, I regretted it straight away.'
(f) Question: Yep. Answer: ' 'Cause it wasn't even fuckin' worth it.'
(g) Question: Yep. Answer: 'And, honestly, I'm sitting here thinking that you guys have to go through this and it's just - I don't wanna be associated with it.'
(h) Question: Yep, well, what part of that do you mean? Answer: 'All of it.'
(i) Question: Being gay or… Answer: 'No, [David], I just wish I'd never messaged him.'
(j) Question: Because why? Answer: 'Because this has happened - not because I got caught but because I did it.'
(k) Question: Yep. Answer: 'Like, I don't know how to explain it, but…'
(l) Question: Try. Answer: 'It’s not – I thought that's why it was weird and why I haven't had a girlfriend, and all that, because I was into kids…'
(m) Question: Yep. Answer: 'But I'm not.'
(n) Question: Okay, tell me about that. Answer: 'Well, I'm not because ever since it happened - like, that's fucked, I just really wish I could go back and not do that and probably should've addressed how I was feeling in a different way.'
41Towards the end of the Interview, you were asked the following questions and answers:
(a) Question: And in what regard, what's happened with [David], being exchanging of penis photos and talking about sexual things and saying you'd provide him with things for sexual acts and photos, and then performing oral sex on him, being you using your mouth to suck his penis, is that right or wrong? Answer: 'It's wrong.'
(b) Question: Yep. And why is that? Answer: 'Because he's a child.'
(c) Question: And how are you feeling about it now? Answer: 'Numb, I dunno yet.'
42You were released from custody after that Interview. You were later charged with the offence on summons. The course the matter took form that time of your interview is the subject of further discussion and considerations to follow.
Gravity of offending
43How it is that you came to offend in such a way is apparent from your record of interview and the psychological report of Simon Candlish[5] where you appear to be struggling to come to terms with your own sexual identity and sought out an experience with a similarly emotionally underdeveloped male. You yourself are very socially isolated, your lifestyle has been destabilised due to substance abuse, you have chronically low estimate of your own self-worth, and as I said earlier, this is important contextual information.
[5]Exhibit LB2: Report of Mr Candlish dated 18 November 2024.
44Mr Albert on behalf of the Director says the following factors are relevant in my assessment of the gravity of the offending.[6]
(a) The complainant told you he was 14 at the time after soon meeting you;
(b) You were 10 to 11 years older than him;
(c) You offer inducements for sexual activity; drugs, cash, vapes, cigarettes, alcohol. This was persistent, which in my view accentuates the gravity of the offending;
(d) The offending was premeditated and planned;
(e) The sucking of the complainant’s penis continued for 15 minutes; and
(f) You took a child abuse material photograph whilst doing so.
[6]Exhibit C: Submissions on plea dated 2 December 2024,[6].
45Ms Strugnell acknowledges many of those aggravating features as well as sensibly conceding the following are also relevant:[7]
(a) Your awareness of the vulnerability of the victim because of his age and difficult family circumstances[8], but that awareness does not extend to the knowing of any of the victim’s cognitive deficiencies; and
(b) The duration of the interaction with sexualised messaging for a period of over a month prior to Charge 1.
[7]Exhibit LB1:Outline of submissions dated 27 November 2024.
[8]Exhibit LB2: Report of Mr Candlish dated 18 November 2024.
46The countervailing features I was invited to consider by her were:
(a) The victim was not undeveloped but rather a post-pubescent adolescent male;
(b) The sexual activity the subject of Charge 3 occurs on a single occasion, as did the Charge 2; and
(c) The offence of sexual penetration of a child under 16 encompasses a variety of sexual acts. In this instance the nature of those acts, being oral-penile penetration of a young male, can be distinguished from some of the more objective serious examples of the offence which involve either anal-penile penetration or offending involving pubescent females who are capable of falling pregnant.
Victim Impact
47David himself did not provide a victim impact statement. I can readily infer that David was harmed by this offending. It is well recognised in cases such as Clarkson v The Queen[9] that under the legislative scheme a child under 16 cannot consent to sexual penetration. The law in effect recognises sexual offences are crimes of violence that cause appalling and often irreparable psychological and physical harm to victims. It is also well established that the harm caused by sexual abuse of children and young people is severe and long-lasting, and this case is no exception.
[9]Clarkson v The Queen (2011) 32 VR 361, 364 [1], 367–68 [23]–[24].
48When assessing the relative seriousness of an offence, it is necessary to consider the nature and extent of the offending conduct, its frequency and duration, the circumstances in which it occurs, and the culpability of the offender and the damage to the victim and the victim’s family.
49Here, David's stepmother, Erica, provided a heartbreaking victim impact statement. [10]
[10]Exhibit B: Victim impact statement of Ms Harris dated 29 November 2024.
50The effect on her has been profound. She is sickened by the thought of your crimes. She feels that she did not do enough to protect her son and blames herself for what occurred - I add, as those who are often deeply compassionate and caring often do. She was devastated, angry and sad. She must know that none of this is her fault. You alone, Mr Beaton, are the architect of all of this misery.
51David slept in her room on a mattress for months after the offending came to light. She observed him break down and question himself, his own identity and his sexuality, making him feel dirty and guilty for what had happened to him. David became anxious. His teenage independence was crushed and he does not comprehend his mother’s worry and concern about him and the restrictions that she now understandably places on his behaviour, freedom and exploration of the world. She is worried that this offending against him has somehow broken him, and he may not be fixed.
52This is a shameful legacy to leave a child and his family. In search of your own sexual gratification, you have caused such grief and misery.
Case history
53This matter has a long history that I will set out now:
Date
Event
29 June 21 – 22 August 21
Offending
31 August 21
Complaint made
29 Sept 21
VARE made
19 Oct 22
Warrant executed
ROI
Released without charge
12 March 24
summons issued
5 April 24
Filing hearing
19 July 24
Committed for trial
SHUB PG
17 Oct 24
Crown opening filed
22 Oct 24
Arraigned and PG
3 Dec 24
Plea
6 Dec 2024
Sentence
54As I said, you were originally charged on summons. Eventually, when you were committed for trial to this court, you were placed on bail with the most modest of conditions.
MATTERS PERSONAL TO YOU
55I was greatly assisted by the provision of written submissions filed by your counsel,[11] along with the report of Simon Candlish.[12]
[11]Exhibit LB1:Outline of submissions dated 27 November 2024
[12]Exhibit LB2: Report of Mr Candlish dated 18 November 2024
Age
56You were aged between 24 to 25 at the time of the offending. You are now 28. As Mr Candlish observes, you appear younger than your stated age, you have marked immaturity, particularly insofar as that relates to sexual experience.
57At the time of the offending you were youthful, and the sentencing principles as espoused in R v Mills[13] and Azzopardi[14] which prioritise rehabilitation of young people, would have more potency then than they do now.
[13]R v Mills [1998] 4 VR 235, 241
[14]Azzopardi (2011) 35 VR 43, 55 [37] and 57 [44]
58A serious delay has been occasioned since you offended, which is not your fault, and must be acknowledged in the sentence that I impose.
Family and Background
59You have a childhood in which you have been subjected to significant instability, dysfunction and disruption, such as the principles in Bugmy[15] are enlivened and play a significant role in the assessment of your moral culpability.
[15]Bugmy v The Queen [2013] HCA 37. See also Baroch v The Queen; Ater v The Queen [2022] VSCA 90 [28].
60You are the second of two children born to your biological parents, Lisa Beaton and Allan Duncan. They never married or cohabited. They appear to be casual intimate partners.
61Your father was an intravenous heroin addict as well as an alcoholic, as well as using other substances. He passed away from an overdose when you were just 14. Your father had spent time in custody for robbery, drug use and dishonesty offences. He was occasionally violent. You report that you witnessed a number of such incidents of violence.
62Your mother has a longstanding diagnosis of schizophrenia and depression, requiring psychiatric admissions all throughout your childhood, as well as suffering from alcoholism.
63To your knowledge the Department of Fairness Family and Housing never intervened, although you are aware of your mother needing case workers.
64Your younger brother attended a special school in Caulfield and has a history of intravenous heroin addiction, self-harm and aggression. He is formally diagnosed with a personality disorder as well as opiate addiction.
65In this context, you describe multiple traumatic incidents involving family members, witnessing self-harm by your brother when he cut his wrists, in one case severing tendons, and another incident where your brother fell unconscious after ingesting GHB and overhearing your mother’s rape.
66You report longstanding anxiety about your physical appearance, resulting in self-consciousness, low self-worth, symptoms of depression, shame and difficulties in self-acceptance. No one in your family is aware that you are same-sex attracted.
67Your serious drug dependency appears to have developed as a coping mechanism in this traumatic background which has only further undermined your social and emotional development. That has endured right up until the time that you were remanded earlier this week,
68Mr Candlish opines:
'Mr Beaton has experienced neglect and a sense of abandonment as a child. He was exposed to serious mental health issues through both parents, as well as anti-social and other problematic attitudes. He coped through emotional detachment and avoidance. He experienced a lack of emotional atonement and nurturance which left him vulnerable towards seeking dysfunctional ways to cope and self-soothe.'
Psycho-sexual history
69You deny being a victim of sexual offending by adult family members.
70It is notable there were two instances of premature sexualisation that involve inappropriate behaviour in your life. You report being sexually touched by an older female in early childhood. In late primary school, you reported being assaulted by a peer when asleep. This led to some form of 'mutual' experimentation.
71You have never had an adult intimate relationship of any duration and crave a connection with someone rather than simple physical intimacy.
72Mr Candlish says there is no indication of sexual deviance or antisociality, or overt problematic attitudes that support sexual offending behaviour.
Current Circumstances
73While you remain in contact with your mother and brother, and resided with them in Caulfield for two nights a week, neither is aware of the current charges before the court or of their nature. They will find out the result of this plea in the most shocking of ways, I expect.
74Your mother now receives NDIS and is reliant on a DSP. She has assistance with basic tasks such as cleaning provided by the NDIS. This is a testament to her lack of independence.
Education and Employment
75You attended Huntingdale Primary School and then a secondary school in South Oakleigh, leaving mid-way through Year 11 after being offered a job at McDonalds.
76You were bullied for your weight but had no academic or behavioural difficulties.
77You have a long and strong employment history which bodes well for your future:
(a) You have worked at McDonalds between the ages of 15 and 19;
(b) You worked in construction and demolition for three and a half years;
(c) You obtained a Certificate II in Hospitality, a Certificate II in Retail;
(d) You were until very recently working as a truck driver or courier which you had done so for the last seven or more months, having previously worked for the same employer for 18 months from 2022 to mid-2023.
78You were residing at your place of employment in your car during the week, between Sunday to Thursday nights.
79Not one person close to you knows of your offending. Not one person attended the plea in support of you. Not one reference or letter of support was tendered either.
Substance abuse
80You have a long history of substance abuse commencing at the age of 15, being alcohol and cannabis by the age of 16. Your primary drug of choice since the age of 21 has been heroin, and you report smoking one to one and a half grams a week.
81You were introduced to heroin by a female dealer or friend who I will call 'M'. She passed away some years ago.
82You continue to feel significant shame about your substance abuse but seem unable to stop because of a feeling of hopelessness about your future, particularly in the current legal context.
83You do meet the criteria for severe opiate disorder. You have been using until very recently out of fatalism because of the outcome, or potential outcome of this plea. You will now detoxify in custody.
84Your substance abuse is relevant to the offending in that it has resulted in lifestyle instability, destabilisation with impairment in consequential thinking with increased social alienation related to your drug use. That is not causative of the offending, of course, but contextually that rings true.
Mental Health
85Even in your late 20s you are, as I said, very socially isolated and have few, if any, confidants.
86Your only period of psychological intervention was 10 weeks of counselling through Centrelink in 2022.
87You meet the diagnostic criteria for persistent depressive disorder. This condition, as well as substance abuse, were present at the time of the offending
88All six limbs of Verdins[16] were relied on, which I will come to in a moment.
[16](2007) 16 VR 269.
Matters of Sentencing Principle
General
89In Clarkson v The Queen, the Court of Appeal held that under the legislative scheme, a child simply cannot consent to sexual penetration.
90And I will repeat, the law recognises that sexual offences are crimes of violence that cause appalling and often irreparable psychological and physical harm to victims. It is well established that the harm caused by sexual abuse of children and young people is severe and long-lasting.
91When assessing the relative seriousness of an offence, it is necessary for me to consider the nature and extent of the offending conduct, its frequency and duration, and the circumstances in which it occurs, the culpability of the offender and the damage done to the victim and their family.
92I have already addressed those matters earlier when specifically dealing with the offending.
Youthful offenders
93You were a youthful first offender at the time you committed these crimes. Ordinarily, the principles espoused in Mills[17] and Azzopardi[18] will have had real primacy in the sentencing calculus, especially given that young offenders have the capacity to reform. Because of the delay occasioned in this case, you are now 28 and no longer a particularly youthful offender, but yet you still have not re-offended. I consider your age and other circumstances at the time of the offending to be very important in the sentencing synthesis here.
[17](1998) 4 VR 235.
[18][2011] VSCA 372.
Verdins
94It is submitted on the basis of the assessment of Dr Candlish, that the opiate use disorder and persistent depressive disorder (mild severity) at the time of the offending means that you were suffering from a mental disorder or abnormality or impaired mental function at the time the offences were committed that falls within the scope of 'the wide variety of conditions' contemplated by the leading judgment in R v Verdins.[19] There, the Court of Appeal said impaired mental functioning, whether temporary or permanent, is relevant to sentencing. As I said, all six limbs are relied on in your case. Turning now to their application:
[19](2007) 16 VR 269
Limb 1:
95It was submitted the above conditions impaired your consequential thinking, which is likely to be true, though it is hard for me to disentangle the interaction between drug use and the impaired decision making due to depression. You clearly knew your behaviour was wrong. In terms of moral blameworthiness, I do not consider your moral culpability is reduced under this limb, though that is not to say it has not been reduced under the separate head of Bugmy.
Limb 2:
96The possibility of a combination sentence was floated but without much conviction. Nothing about your psychological makeup would compel a conclusion that such a sentence was warranted. Your treatment needs and other aspects of your prospects for reform will be accommodated in what I consider to be a meaningful parole period.
Limb 3:
97Your counsel accepted that general deterrence usually has a significant role to play in offending of this kind. Your isolation, persistent depressive disorder and opiate use are said to moderate the application of this important sentencing principle. I find your conditions are not of such a magnitude that you are not a suitable vehicle through which to deter others.
Limb 4:
98And in a similar vein when dealing with Limb 4, I have found your conditions are not of such a magnitude that you are not capable of being specifically deterred by the sentence I impose. I want to stress, though, I have found that you are specifically deterred and to that extent, I place less weight on this sentencing consideration generally, but I decline to reduce its applicability further on the basis of your mental health alone.
Limb 5:
99Mr Candlish considers a custodial sentence is likely to weigh more heavily on you and is likely to be particularly damaging to your mental health and reform.
100He also notes you are likely to be vulnerable as you are likely to be self-conscious in social interactions and are not skilled and very uncomfortable in asserting yourself. You are, of course, a first-time prisoner. He is of the view that others will probably view you as passive, humble and unassuming.
101Based on the cogent and unchallenged evidence in this regard, I will appropriately reduce your sentence under this limb.
Limb 6:[20].
[20]Exhibit LB1: Outline of submissions dated 27 November 2024, [32].
102There also appears to be little doubt your mental health will deteriorate in prison, particularly given your depressive nature and extreme isolation. I am prepared to reduce your sentence here under this limb too.
Bugmy
103It is submitted that there is a causal connection between the deprivation experienced by you in your formative years and in the offending.
104In Bugmy v The Queen[21] the High Court considered the sentencing principles applicable to an Aboriginal man whose early years of background have been beset with alcohol use and violence. It considered the experience of growing up in such an environment surrounded by alcohol and violence may leave its mark on a person throughout their life. Amongst other things, a background of that kind may compromise a person’s capacity to mature and to learn from experience. It is a feature of the person’s make up and it remains relevant to the determination of the appropriate sentence, notwithstanding that the person may have a long history of offending.
[21]Bugmy vThe Queen [2013] HCA 37, [43]
105Similarly, our Court of Appeal in Drake[22] applied Bugmy in the following way:
'In particular, the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of moral culpability. As recognised in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses. As a consequence, his subjective culpability for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, these factors constituted an important mitigating circumstance in the determination of the respondent’s sentence.'
[22][2019] VSCA 293.
106The impact of disadvantage is complex, it is multilayered, non-linear and not easily diagnosed or measured.[23] It was submitted that your moral culpability should not be assessed in the same light as someone who did not experience the disadvantage you did.
[23]DPP v Hermann [2021] VSCA 160, [45].
107The principles outlined in the abovementioned cases are applicable here, and your moral culpability is diminished as a result.
108The crown accepts the necessary evidentiary foundation for the application of Bugmy principles is made out, and what is more, there is a basis to reduce your moral culpability generally.[24]
[24]DPP v Herrmann [2021] VSCA 160 at [44]
109Like other legal principles in this case, the application of Bugmy involves questions of fact and degree. Your deprivation was not of the magnitude of Bugmy, but then again, thankfully, very few people’s experiences are, but it still has application in shaping you for the worse. The principle applies in reducing your culpability in a general way.
110It is interesting to observe that despite this deprivation you never before offended - nor since. To that extent, the double-edged nature of the Bugmy principles, which require considerations of issues such as the need to protect the community, a principle that might need to be elevated because of the way in which an offender’s formative years have established entrenched criminal behaviours that are difficult to curb,[25] do not apply in your case.
[25]Stewart v The Queen [2015] VSCA 368 at [5].
Plea of Guilty
111You indicated an intention to plead guilty at the first committal case conference and you will receive the benefit of this early plea.
112It demonstrates a willingness to facilitate the course of justice and an acceptance of responsibility.
113Your plea is particularly valuable as it saves the victim in this matter from having to give evidence.
114Your remorse is evident, from your self-disgust evident in your interview and what you said to Mr Candlish.[26] I found your remorse is, as you say in your record of interview, not as a result of being caught but rather as a result of what you did. [27]
[26]Exhibit LB2: Report of Mr Candlish dated 18 November 2024, [20].
[27]See Record of Interview dated 19 October 2022.
115I attach a great deal of weight to your plea.
Delay
116When the matter was reported to police on 31 August, you were not interviewed for more than a year later, until October 2022, where you made full admissions.
117Then another 18 months passed before you were charged in March 2024.
118The prosecutor explained that this regrettable delay was because of the overwhelming workload of the informant, which I accept unreservedly. Nonetheless, none of this delay is your fault.
119The delay meant that you would now not be sentenced as a youthful offender. It means that had the matter proceeded in a timely way, and it would have only realistically proceed as a plea given your complete admissions, it is very likely that you would have been sentenced at a time when some of the principles of Worboyes[28] would have been of real application, specifically those that relate to relieving the court’s pressures during the pandemic which itself warrant a reduction in sentence. One only needs to look at how quickly you pleaded guilty once you were charged to confirm that what I said is not speculative.
[28]Worboyes v The Queen [2021] VSCA 169.
120Before August 2021, you had never offended, and after August 2021, you did not re-offend either.
121In R v Merrett, Piggot and Ferrari, Maxwell P explained the relevance of delay in this way:[29]
'On a proper analysis … the significance of delay as a sentencing factor cannot depend on whether or not there is a satisfactory explanation for delay. There is, of course, a strong public interest in criminal conduct being investigated and prosecuted as quickly as reasonably practicable …
The relevance of delay lies rather in the effect which the lapse of time – however caused – has on the accused. Delay constitutes 'a powerful mitigatory factor'. In particular, it focuses attention on issues of rehabilitation and fairness.'
[29](2007) 14 VR 392, 400.
122And I have given delay the focus that Maxwell P, advises. [30]
[30]The way in which you have stalled in life over that time, awaiting the outcome of this matter is noted elsewhere.
Standard sentence regime
General principles
123The standard sentence is a numerical guidepost for courts when sentencing specified offences. It is a guidepost not unlike the maximum penalty. Here, the standard sentence is six years with respect to Charge 3.
124The period specified for the standard sentence is the sentence for an offence that takes into account only the objective factors affecting the relevant seriousness of that offence in the middle range of seriousness.[31]
[31]Sentencing Act 1991 s.5A(3).
125The objective factors affecting the relative seriousness of the offence are to be determined-
(a) without reference to matters personal to the offender; or
(b) wholly by reference to the nature of the offending.
126The court must give reasons for imposing the sentence, any non-parole period fixed under the Act which is shorter than that specified in s11A(4), and state how the sentence imposed relates to the standard sentence.[32] This requires me to identify facts, matters and circumstances bearing upon my judgment so as to apply the appropriate sentence.
[32]Sentencing Act 1991 s.5B(5).
127The principles bearing on the application of the standard sentencing regime were authoritatively considered in Brown v The Queen, which I will not recite here.[33]
[33] Brown v The Queen (2019) 59 VR 462.
128I emphasise, the standard sentence is just one of many factors I am to consider under s5(2) of the Sentencing Act, many of which pull in different directions. It does not represent a starting point for a sentence from which I add or subtract depending on various factors in aggravation or mitigation as the case may be.
129As I said, I am not required, nor will I, classify the subject offending on a scale of seriousness. My interpretation of the standard sentence regime is to fully identify the facts, matters and circumstances which bear on my judgment I have reached as to an appropriate sentence, and I have very much endeavoured to do so in these reasons earlier when dealing with the offending and the accompanying matters of principles concerning it.
Comparable Sentences and Current sentencing practices
130Current sentencing practices are but one factor I have to take into account. They are not a 'controlling factor' and do not set a numerical limit on the upper or lower limit of an appropriate sentence in any particular case. Therefore, in coming to a decision about the appropriate sentence in all the circumstances, a sentencing court should not consider itself limited by the numerical length of past sentences, a sentencing judge should impose a sentence that is just in all the circumstances and clearly articulate the reasons the sentence was imposed.[34]
[34]DPP v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
131Acknowledging the limitations of comparable cases, and that each matter turns on its own facts, counsel between them, after a diligent search, could only find one case they jointly submitted was of any real assistance to me. [35]
[35]Noting when dealing with standard sentences I have am to have regard to cases that also have regard to that regime.
132In Bouris v The Queen[36] - this was a case in the Court of Appeal dealing with a 62 year old male who engaged in sexualised texting followed by oral-penile penetration with a victim aged 12; further sexualised texting or transmission of an indecent image. He had a prior criminal history, although it was not sexual in nature. He was sentenced to three years and nine months with a non-parole period of two years and six months. As an example of just how fraught it is to find a case on all fours, in Bouris
(a) the sexual penetration offence was, firstly, a rolled-up one, secondly, involved putting the complainant's penis in his mouth for three to four seconds;
(b) inserting his penis into the complainant’s mouth for about seven seconds.
[36][2021] VSCA 245
133He was not charged as being a serious sexual offender and his sentence took into account
(a) the custody conditions at the time because of Covid; and
(b) additionally, the abuse on Facebook towards his children following media reports.
134Conversely, Bouris is infinitely older when you were youthful. You made full admissions and endured a three-year delay until the matter was finalised. Principles of Bugmy and some aspects of Verdins apply.
135Obviously one case does not a range make. I note that Sentencing Snapshot 282[37] was provided to assist me in this exercise and I have read that and considered it.
[37]Exhibit D, sentencing snapshot 282 from September 2023, sexual penetration of a child aged 12 to under 16.
136I have had regard to decisions of this court and the Court of Appeal generally in order to give appropriate weight to current sentencing practices. [38]
[38]Specifically those involving standard sentences.
137While other sentences of other courts are not binding, they are merely historical statements of what has happened in the past,[39] and current practices represent, as I said, just one factor I need to be aware of.
[39]See Dalgliesh [83].
138In formulating an appropriate sentence in your case, I have had regard only for the purposes to which sentences must be imposed.
Prospects for Reform
139Mr Candlish considers you to be a low risk of future sexual offending. His recommendation is community treatment. It was said that that might be achieved by an onerous CCO, whether or not in combination with a term of imprisonment. I have not acceded to the request for such a penalty to be imposed, though it may be of utility for the Adult Parole Board (APB) to know of this suggestion.
140Your case has unusual features because of your own social isolation, discomfort in your own self-identity and sexual identity, and substance abuse. You have remained in the community without incident since the index offending. You have shown insight into your criminality, as evidenced in your record of interview and your comments to Mr Candlish.
141General and specific deterrence, and denunciation, obviously play roles in the sentencing exercise, as does community protection.
142However, as a first-time offender, who offended when youthful and who has not re-offended, these considerations ought not overshadow a community’s interest in your reform.
Risk Assessment and Prospects for Rehabilitation
143Mr Candlish assessed you as representing low risk of further similar offending based on the RSVP and low to moderate on the SAPROF tests.
144You do not present with problems related to sexual deviance or antisociality, or problematic attitudes that support sexual offending behaviour. There are no signs of paraphilic disorder.
145You exhibit remorse and self-disgust. You have not re-offended in more than three years. I find, as I said earlier, that you are specifically deterred.
146While there are some risks present, including substance abuse and social adjustment issues, these are considered indirect risk markers.
147That you have resided in the community unrestricted and without incident since your arrest bodes well for your rehabilitation and drives down the prospect of future risk. This risk may also be reduced with time through the pursuit of pro-social goals in the wider community.
148You appear to show good prospects for reform based on your presentation and history. Mr Candlish recommends in the community that you be treated with:
(a) Pharmacological intervention;
(b) Psychological intervention;
(c) Treatment for substance abuse; and
(d) Intervention by way of psychological intervention.
Non-parole period
149The foregoing informs many aspects of the sentencing exercise but has real utility in assisting me in setting a non-people period.
150Section 11A(4)(c) of the Sentencing Act 1991 provides the following:
…'(4) Unless the court considers that it is in the interests of justice not to do so, the court must fix a non-parole period of at least—
(c) 60 per cent of the relevant term if it is a term of less than 20 years.'
151Ms Strugnell submitted that it is in the interests of justice there be a greater disparity than 60 per cent of the head sentence in fixing the non-parole period in your case. That phrase is not identified or defined in the Act, nor does it appear to be a threshold of the kind such as exceptional circumstances, for instance. It is submitted that the promotion of rehabilitation, and by rehabilitation, community protection, should be central to the considerations of the 'interests of justice' test.[40]
[40]See DPP v Pan [2022] VSCA 98, DPP v Spottiswood [2021] VSCA 146.
152I have had regard to the provisions of s11A(4)(c) as well as the broader considerations that inform the setting of a non-parole period.
153I concluded a non-parole period of greater than 60 per cent of the head sentence represents a meaningful disparity between the head sentence and minimum term in this case that properly reflects the minimum term that justice demands the accused serve before being eligible for release on licence.
154This period pays due regard to your prospects for reform, which I repeat I found to be very good, whilst maintaining an appropriate weight to be given to the necessary and important countervailing factors when sentencing. I find it is in the interests of justice to set a non-parole period this way
Serious offender
155Charges relating to the 'serious offender' provisions relate this way:[41]
[41]Sentencing Act 1991 6B “sexual offence” means an offence to which clause 1, Schedule 1 applies Schedule 1 s.1
156Once you are sentenced to a term of imprisonment of two of the offences, and you will be, then you will be sentenced as a serious sexual offender on the third. [42]
[42]Sentencing Act 1991 (Vic) Part 2A and Schedule 1, cl. 1(a)(i) and cl. 1(a)(ii), s. 6B(2), 6C.
157In sentencing a 'serious offender' to imprisonment for a 'sexual offence', I must regard the protection of the community as the principal sentencing focus.[43]
[43]Sentencing Act 1991 (Vic) s.6D(a).
158That does not mean, however, that other sentencing purposes have been excluded - they are still applicable and operative. The legislative intent is that the prison term is long enough to protect the community of the risk posed by the offender, but how long that is depends on the assessed risk of re-offending. If it is considered the risk of offending low, and I do find it so, the protection of the community will weigh less heavily than it would if it was otherwise assessed as high.
159The aim of the requirement that a court regard the protection of the community as the predominant purpose is to ensure that it gives proper consideration to the question and undertakes a 'requisite risk assessment'.[44]
[44]R v LD [2009] VSCA 311 [27]
160So when sentencing a serious offender to imprisonment for more than one offence for relevant offending, I must have regard to the fact that each sentence is to be served cumulatively, unless directed otherwise.[45] That is a prima facie rule, not just a rule of mere interpretation, and there must be good reason, not couched in terms of clearing a threshold of exceptional circumstances or the like, to order concurrency.
[45]Sentencing Act 1991 (Vic) s.6E.
161There is a tension between the requirement of cumulation and the principle of totality, but as the objective gravity of the total offending increases, so too will the degree of cumulation, thereby producing a total effective sentence that meets both.
162In this case the crown does not submit in order to achieve community protection, a sentence longer than that which is proportionate, needs to be imposed.
163In all the circumstances of the case, the protection of the community would be best served by facilitating your reform. It follows I find you a low risk of re-offending. Your reform would best be achieved by imposing a low minimum non-parole period, making you eligible to return to the community under 'conditional supervision'. I agree the community will be best protected this way and I impose what I consider to be an appropriate low non-parole period.
164I have considered the serious offender provisions carefully and I do not consider total cumulation of terms of imprisonment on offences to be appropriate, but nor do I consider total concurrency appropriate either.
165I have ordered cumulation on the sentence between all counts as necessary and appropriate, reflecting each act overall adds to the violation and degradation of your victim, and I have done so in a way to comply with the principle of totality.
Totality
166I am mindful of the significance in this case in the application of the principle that requires me, when sentencing for multiple offences, to ensure that the aggregate term I impose is a just and appropriate measure of the criminality involved. There must be an appropriate relativity between the totality of all the criminality and the total sentence I impose, and that is true when I consider the interaction on the charges of the indictment, noting that grooming is an extended process leading up to the contact offending and the contact offending itself represented by Charges 2 and 3 effectively occur in the same transaction.
167I have determined an appropriate length of imprisonment for each charge, taking the applicable sentencing considerations into account, designated the highest term as the base sentence and then determined the extent to which there should be any cumulation regarding each count. Finally, I stood back and considered in light of totality what the appropriate sentence ought to be.
Synthesis of sentencing objectives and considerations
168Given the objective gravity of the offending in this case, it is recognised that denunciation, general deterrence and just punishment are all important sentencing considerations.[46]
[46]The Queen v Frank (a pseudonym) [2021] VSCA 163] (Emerton JA).
169The mitigating matters set out above, together with the application of parsimony and totality, operate to moderate the length of the sentence, both head sentence and non-parole period, I impose.
170Having regard to your prospects and the absence of any prior matters, I decreased the weight needed to be given to specific deterrence and am reasonably confident I can fashion a sentence that promotes your reclamation, as observed by French CJ in Hogan v Hinch,[47] ‘Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest’.[48] In that way, due regard is also had to the statutory emphasis on community protection.
[47](2011) 243 CLR 506.
[48]Ibid [32].
SENTENCE
171Having carefully considered, balanced and weighed all of the many sentencing considerations in this case, I have decided to convict you on each charge and sentence you as follows:
Charge Offence Max Sentence Cumulation*
On base and each other1 Between 29 June 2021-
22 August 2022, Grooming for sexual conduct with a child under 16
49M(1) Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016Level 5 imprisonment (10 years maximum) 1 year 2 months 4 months 2 On 22 August 2021,
involving a child in the production of child abuse material
51B(1) Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016Level 5 imprisonment (10 years maximum)
4 months 1 month 3 On 22 August 2021,
sexual penetration of a child under 16
49B(1) Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016Level 4 imprisonment (15 years maximum)
* Standard Sentence- 6 years
+ SSO
3 years 9 months BASE Total Effective Sentence: 4 years 2 months Non-Parole Period: 2 years 3 months [49] [49]Approximately 55%
Other matters
PSD
172I declare three days as having already been reckoned as served in satisfaction of the sentence.
173Following the plea on 3 December, with input from your counsel, custody notes were made as follows:
(i)That you were vulnerable;
(ii)You will suffer from heroin withdrawal;
(iii)That you were vulnerable due to the nature of the offending;
(iv)There was a request to be transferred to Hopkins as soon as possible;
(v)You were a first-time prisoner;
(vi)You were particularly concerned about remaining at the MAP given the nature of the offences and you cannot disguise or withhold information from others; and
(vii)Requesting transport as soon as possible.
174I cannot help but notice that you still remain at MAP.
175I will reiterate those endorsements on the remand warrant.
Serious offender status
176For the sake of clarity, you are sentenced as a serious sexual offender on Charge 3 and that declaration will be entered into the records of the court.
Section 6AAA Sentencing Act declaration
177Pursuant to s6AAA, Mr Beaton, I am required to tell you what sentence I would have imposed had you pleaded not guilty and were found guilty after trial. Had that occurred, I would have sentenced you to a term of imprisonment of six years with a non-parole period of four years.
SORA
178Finally, you will be the subject of Sex Offender Registration Act for life.[50]
[50]s. 34(1)(c)(ii) Class 1 offence and 1 or more class 2 offences. Class 1 offence: Sexual penetration of a child under 16. Class 2 offence: x 2 Grooming for sexual conduct with a child under 16. Involving a child in the production of child abuse material
179Those obligations will be produced by my associate and sent to the relevant parties.
180Give me a few hours, counsel, I have just picked up another case. You will have an unrevised copy of my reasons that won't have quite as many typos as that version did. Are there any matters that arise?
MR ALBERT: No, just, Your Honour, I didn't quite get the cumulation. It was four months on Charge 1 and one month on Charge 2 - have I got that right?
HIS HONOUR: Yes.
MR ALBERT: Thank you, Your Honour.
HIS HONOUR: Ms Strugnell.
MS STRUGNELL: Nothing arising, Your Honour.
HIS HONOUR: Counsel, can I genuinely thank you for your considerable assistance in this case. I will leave you, Ms Strugnell, your instructor and your client on the link for the next five minutes, we have to head off for another hearing. You can debrief quickly - - -
MS STRUGNELL: Thank you very much, Your Honour.
HIS HONOUR: Thanks. Thanks Mr Brown.
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