Director of Public Prosecutions v Bennett
[2018] VCC 1017
•29 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-01871
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMIE LEE BENNET |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 February 2018; 23 March 2018; 29 May 2018 | |
DATE OF SENTENCE: | 29 June 2018 | |
CASE MAY BE CITED AS: | DPP v Bennett | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1017 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: PLEA – Handling stolen goods – Aggravated burglary – Theft – Common assault – Reckless conduct endangering life – Resist police – Plea of guilty.
Legislation Cited: Road Safety Act 1986; Sentencing Act 1991
Sentence: 5 years’ and 5 months’ imprisonment with a non-parole period of 3 years’ imprisonment; 434 days pre-sentence detention; Fine; All licence and permits cancelled and disqualified for a period of 2 years; Section 6AAA declaration: 7 years and 6 months’ imprisonment with a non-parole period of 5 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Nibbs | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms M. Walker | Melinda Walker |
HIS HONOUR:
1 Jamie Bennett, you came before me on 8 February 2018 and pleaded guilty to Indictment No H11103284 as well as a number of related summary offences. You admitted your prior convictions.
2 The plea was adjourned part-heard to 23 March 2018 so that inquiries could be made of Corrections Victoria as to the conditions in which you have been imprisoned in recent years.
3 In respect to the indictment, you pleaded guilty to handling stolen goods (Charge 1), aggravated burglary (Charge 2), theft (Charges 3 and 6), common assault (Charge 4), reckless conduct endangering life (Charge 5) and resist police (Charges 7 and 8). The maximum penalty for Charge 2, aggravated burglary, is 25 years’ imprisonment, while the maximum penalty for Charge 1 is 15 years’ imprisonment. The maximum penalty for Charges 3, 5 and 6 is 10 years’ imprisonment and the maximum penalty for Charges 4, 7 and 8 is 5 years’ imprisonment.
4 In respect to the related summary offences, you pleaded guilty to two charges of failing to stop a vehicle after an accident (Charges 11 and 34), possess cartridge ammunition (Charge 26), possess controlled weapon (Charge 27), drive in a manner dangerous (Charge 35), drive a motor vehicle whilst impaired by a drug (Charge 40) and unlicensed driving (Charges 44 and 45). In respect to the offence of fail to stop after an accident, the maximum penalty in your case is 10 penalty units or a term of imprisonment of not less than 14 days and not more than 1 month; for possess cartridge ammunition, a fine of 40 penalty units; for possess a controlled weapon, 120 penalty units or imprisonment for 12 months; for driving in a manner dangerous, 240 penalty units or 2 years’ imprisonment or both; for driving a motor vehicle while impaired by drugs, for a second offence, 120 penalty units or 12 months’ imprisonment; and unlicensed driving, 25 penalty units or 3 months’ imprisonment.
5 Tendered as Exhibit A on the plea and read aloud in Court was a copy of the summary of prosecution opening. In summary, on 17 April 2017 at about 2.00am, you drove a dark coloured Commodore sedan bearing stolen registration plates into the car park of the Prince Mark Hotel in Doveton. You went inside the hotel and played on gaming machines. At approximately 4.15am, police patrolled the Prince Mark Hotel car park and observed your car and the stolen number plates that it bore. The registration plates were checked and were confirmed by police records to relate to a Holden Cruze sedan, the plates having been stolen between 14 and 15 April 2017. (Charge 1, handle stolen goods)
6 At about 4.30am, you left the gaming venue and as you exited you observed the police and ran to your motor vehicle and got inside it. Police ran towards your car in an attempt to arrest you. You started the car and reversed away from police who were attempting to gain entry into your motor vehicle and Senior Constable Pope, one of the attending police, was forced to jump out of the way of your motor vehicle to avoid being struck. (Charge 35, drive in a manner dangerous) You reversed into a parked maroon coloured Ford Falcon causing $1,000 damage to it. You continued on your way and reversed into another parked vehicle, then drove forward causing First Constable Sanzaro, who was moving towards your motor vehicle, to jump out of the way to avoid being struck. (Charge 35, drive in a manner dangerous). As you drove through the car park, Senior Constable Milligan was also obliged to move out of the way of your car to avoid being struck. (Charge 34, fail to stop a vehicle after an accident [both collisions] and Charge 35 drive in a manner dangerous).
7 You drove out of the car park turning right onto Power Road and disobeyed a traffic control signal at the intersection of Princes Highway and Power Road, Doveton. You turned right onto the Princes Highway and travelled west along the eastbound lanes of the Princes Highway at a fast rate of speed. (Charge 35, drive in a manner dangerous) You were not licensed to drive a motor vehicle at this time as your previous licence had expired on 10 March 2010. (Charge 45, unlicensed driving)
8 On 21 April 2017, you were driven by a friend to Prospect Hill Road, Narre Warren. You got out of the motor vehicle wearing an orange fluorescent workman’s jacket and knocked on the door of 20 Aberdeen Court, which adjoins Prospect Hill Road. You told the female occupant of the house that you were there to check a problem with the gas meter. She told you that she had not reported any problems and had not been advised of any problems by the gas company.
9 Unable to gain entry into that house, you moved to 19 Aberdeen Court and gained entry to that house by forcing open a sliding aluminium window to a spare bedroom. An occupier of the house was home at the time, in his bedroom. You ransacked a rear bedroom and stole a number of electrical items and games as well as personal tax and identification documents belonging to the occupier of that bedroom. The person, who was present at this time, opened the door to his bedroom to see you walking in the main living area. He called out to you to “Stop”. The occupant confronted you and you punched him, you then went to the kitchen and rummaged through a kitchen drawer, obtained a knife and confronted your victim by pointing the knife at him. Your victim went to grab the knife and you pulled the knife away, causing a small cut to the occupant’s thumb. Your victim ran to his bedroom, shutting the door and called “000”. (Charge 2, aggravated burglary; Charge 3, theft; and Charge 4, common assault)
10 Police having been notified of your activity, attended the area of Aberdeen Court. You returned to your friend, Rachel Reiger’s car and she drove away from the scene. The car was identified by police and they pursued you. It is your conduct during the pursuit that constitutes Charge 5, reckless conduct endangering life. During the pursuit, you changed seats with Reiger whilst your car was in motion. And as the driver, you continued to evade the police pursuit. You travelled onto the wrong side of the road, sideswiping a sedan that was stationary at the intersection of Frankston-Dandenong Road. You caused an estimated $1,000 damage to that car. (Charge 11, fail to stop after an accident) You were pursued from the Frankston-Dandenong Road into Kirkham Road with the police pursuing you operating their flashing lights and sirens. You did not stop.
11 During the course of the pursuit, a black bum bag was thrown from the front passenger side window of the car onto the road. Eventually you drove north on Hammond Road and came to a stop in traffic. Police attempted to box you in, however you mounted the kerb to avoid traffic and continued north along Hammond Road. You travelled onto Webster Street and approached a railway crossing and drove around the boom gates that were down to stop traffic. Your conduct forced the oncoming train to stop to avoid a collision with your motor vehicle. You continued onto the Princes Highway before executing a U-turn and returning to Webster Street where you again drove around the lowered boom gates at the railway crossing.
12 You turned onto Hammond Road and then right onto the Dandenong Bypass travelling in the eastbound emergency lane in a westerly direction for approximately 1.5 kilometres. Oncoming traffic was forced to stop or move out of your way to avoid collision with your vehicle. Thereafter, throughout the pursuit you were weaving through traffic. You eventually made your way onto Warrigal Road, narrowly avoiding cars at that intersection, and travelled approximately 100 metres south along Warrigal Road before doing a U-turn to travel north. You travelled through a 7Eleven service station on Warrigal Road and then drove back onto Warrigal Road. You turned onto Orange Street, which is a dead end street and police vehicles came to a halt and police got out of their vehicle in an attempt to intercept you. However, you executed a U-turn and once again evaded police. During the course of your escape, you collided with a police vehicle that was at the end of Orange Street where it intersects with Warrigal Road.
13 You crossed into the northbound lanes of Warrigal Road, narrowly avoiding colliding with oncoming traffic. You travelled through a red light appropriate to you at the intersection of Warrigal and Centre Roads. Police estimate you were travelling at a speed of 70 to 75 kilometres per hour in a 60 kilometres per hour speed zone. You continued south along Warrigal Road where police estimated your speed to be approximately 150 kilometres per hour in a 70 kilometre per hour speed zone. You turned left onto the Dingley Bypass and right onto Boundary Road, against red traffic signals.
14 You pulled into and stopped at a Liberty petrol station at Centre Road, Dandenong and stole $33 worth of petrol. (Charge 6, theft) At this time there were no police in the vicinity to intercept you. You left the petrol station and drove through various streets, eventually driving the wrong way down the slip lane of Centre Road adjacent to Shirlian Street. An unmarked police sedan was parked in the slip lane in an attempt to stop you. You collided with the rear of that police vehicle. You then drove into Derring Lane. A marked police vehicle attempted to intercept you. However, you accelerated your vehicle and collided with the right hand side of that police vehicle, causing it to spin out of control to 90 degrees to its line of travel. Your vehicle had come to a stop as a result of the collision and a second police vehicle crashed into your vehicle causing some $14,000 damage to that police vehicle.
15 You ran from the car and were eventually intercepted by police who deployed OC spray to stop you. However, this attempt failed and you were eventually restrained for a short period whilst you struggled and eventually broke free from police. (Charge 7, resist arrest) Police further pursued you for a short distance, brought you to the ground and handcuffed you during which you attempted to strike Acting Sergeant Perkins. (Charge 8, resist arrest)
16 A search of the vehicle that you had driven revealed a bum bag containing a proof of age card in the name of Jamie Wills, an alias used by you, together with some .22 calibre cartridge ammunition. (Charge 26, possess cartridge ammunition) Also located within the bum bag was a flick knife with a 100 millimetre blade. (Charge 27, possess a controlled weapon)
17 A blood sample was taken from you which was subsequently analysed to reveal the presence of methylamphetamine in your blood at a level of approximately 0.05 milligrams per litre. (Charge 40, drive a vehicle whilst impaired by a drug) Throughout the police pursuit, you were not licensed to drive a motor vehicle. (Charge 44, unlicensed driving)
18 You were taken to the Narre Warren Police Station where you were interviewed under caution and mostly made “no comment” answers to questions asked of you. You were charged and remanded in custody on 21 April 2017 and have been in custody since that time.
19 I will pause at this stage to check PSD please. By my calculations it is 340 days.
20 MR NIBBS: Four hundred and thirty four.
21 MS WALKER: Four, thirty, four.
22 HIS HONOUR: Four, thirty, four. That's what happens when you are dyslexic with figures.
23 Mr Bennett, you have 76 convictions from seven court appearances between 2010 and 2015. Amongst your prior convictions are:
(1)five convictions for driving whilst disqualified or whilst your licence was suspended;
(2)one conviction for driving in a manner dangerous;
(3)two convictions for failing to stop after an accident;
(4)one conviction for driving whilst under the influence of a drug;
(5)one conviction for reckless endangerment of life; and
(6)23 convictions for crimes of dishonesty including theft, burglary, robbery and armed robbery.
You have received sentences of imprisonment, both suspended and to be served immediately, in the past.
24 Tendered on your behalf as Exhibit 6 were four psychological reports from Dr Aaron Cunningham dated 22 September 2011; Ms Angeline Swan dated 28 January 2013; and Dr Fiona Best dated 2 June 2017 and 2 January 2018. Dr Cunningham reported in 2011 that you reported no family history of mental illness, that you were of average intelligence and that upon consultation there was no indication of intellectual impairment. In 2011 he assessed you as a low to moderate risk of reoffending. History has proved Dr Cunningham’s prediction to be erroneous. Dr Cunningham identified that your risk factors were your substance use disorder and negative peer associations coupled with some indicators of childhood instability in the form of exposure to domestic violence. Dr Cunningham opined that you presented in 2011 with insight into your risk factors of substance use disorder and negative peer associations.
25 Ms Angeline Swan, in her report of 2013, opined that you were of average intelligence, that your clinical profile suggested a tendency to act impulsively without consequential thinking and that you had difficulty with authority and conforming to social conventions. Testing suggested that you were a regular abuser of illicit substances and this was likely to impair your psychosocial functioning. She opined that you appeared to meet the formal criteria for a diagnosis of antisocial personality disorder.
26 In her report of June 2017, Dr Fiona Best, upon consultation, opined that there was no evidence of any psychotic illness. However, she observed evidence of mood disorder and at the time of her consultation you met the criteria for Major Depressive Disorder. As well, she opined that you exhibited symptoms of Post-Traumatic Stress Disorder, which she attributed to prolonged solitary confinement for a period of 36 months immediately prior to her consultation with you in June 2017. In her subsequent report of January 2018, Dr Best opined that you exhibited no evidence of depression, that you had a positive outlook on life and had developed appropriate and adaptive strategies to manage your current situation in custody. She maintained her opinion based, it would appear, upon your instructions that you had experienced prolonged solitary confinement for 36 months in your previous incarceration and that this had had a profound effect on your mental state. She diagnosed you as suffering from Post-Traumatic Stress Disorder.
27 Much was made on your plea of the period in which you had spent in custody in the last few years which upon instructions counsel put had been predominantly spent on 23 hour a day lockdown in solitary confinement. In support of this submission, Exhibit 1, being Corrections Victoria Sentence and Remand Report Comprehensive Prison History, was tendered. However, before I was prepared to act upon the submission and that document, I adjourned the matter so that Corrections Victoria could provide the Court with an accurate record of your history whilst in prison.
28 On 15 March 2018, Jennifer Ann Hosking swore an affidavit as Acting Assistant Commissioner, Sentence Management Division of Corrections Victoria, in respect to your history in prison. This affidavit was marked as Exhibit B on the adjourned date 23 March 2018. Submissions were made in respect to the contents of Exhibit B. Contrary to the submissions put to me on your behalf, both on day one of the plea and on the adjourned hearing you have proved over the years that you have been imprisoned to be a management problem due to your misconduct. Generally speaking, you have not been confined to 23 hour per day lockdown, nor have you been subject to solitary confinement in the manner you described to Dr Best or as put to me by your counsel upon instructions.
29 The matter was adjourned to 16 May then to 29 June so that Mr Brendan Money who holds the position of acting Commissioner Operations but whose normal role within Corrections is Assistant Commissioner Sentence Management Division Corrections Victoria could give evidence in respect to the contents of Exhibit B and explain the conditions that attached to the various management regimes that you had been under.
30 From 9 May 2011 to 18 October 2016 a period of five and a half years you were imprisoned. Of that period you spent two and a half years held in “management”. During your time in management the conditions that applied to you varied enormously, some more restrictive than others. You were held in management as a result of your own misconduct or because you may have been subject to reprisal because of your misconduct. You were released from prison on 18 October 2016 and arrested and remanded in custody for the instant offending on 21 April 2017. You enjoyed about six months of freedom.
31 You were born in Melbourne and raised by your biological mother and father until you were three years of age. Thereafter your parents separated and it seems that you had little or no contact with your biological father. You reported to Dr Cunningham that you met your biological father on one occasion when you were aged 16 years but thereafter you did not wish to have any further contact with him.
32 Between the ages of 3 and 12, you resided with your mother and stepfather and older stepsister. You reported to Dr Cunningham that your stepfather was a violent, abusive and hard old man. You informed Dr Cunningham that your stepfather was dependent upon speed, alcohol and cannabis and suffered from mental health issues. You told Dr Cunningham that you witnessed your stepfather “beat the shit out of Mum” on multiple occasions. You also instructed Dr Cunningham that your stepfather beat you on occasions. You described your mother as strong and supportive but that she had problems with speed and cannabis and suffered from depression. You described being exposed to drugs and violence from an early age.
33 While a perusal of Exhibit 6 and your counsel’s submissions demonstrate some conflict in your instructions as to your history, it appears that you were educated at Dandenong North Primary School and Dandenong High School, as well as Doveton Secondary School to Year 9 or 10 level. You reported to Angeline Swan, forensic psychologist, that you had learning difficulties at school and that you believed you suffered from Attention Deficit Hyperactivity Disorder (ADHD) and dyslexia. However, you were unsure whether any formal testing was conducted in respect of you. You reported ongoing difficulties with reading and writing.
34 You reported to Ms Swan that after leaving school you commenced a mechanic’s apprenticeship at the age of 16, but ceased after eight months or so as you got bored. Thereafter, you worked in a box factory and at a meatworks. However, again, you left these places after a period of eight months or so because of boredom.
35 It would appear that about the age of 18 you commenced to work at Viridian New World Glass, where you earned approximately $65,000 per year. This was the most money you had ever seen in your life. This employment ceased after a period of two years when you fell through a glass window when assisting your mother to move home. You have not worked since.
36 You first commenced to use alcohol at 14 years of age, Cannabis at 14 or 15 years, and Ice about the same time. You have used Heroin, Ecstasy and LSD as “one off uses” when you were about 20 years of age. You first used Benzodiazepines in the form of Xanax after it was prescribed for you following your fall through a glass window. Your view was that it was prescribed to you to assist you to sleep and, over time, you began to use more than the prescribed dosage. You instructed Ms Swan that after a period of three or four months you became dependent upon Xanax and thereafter obtained it illegally, using up to 50 tablets every three days or so.
37 You have had one significant intimate relationship when you were aged between 15 and 21 years. Your partner fell pregnant with your daughter four years into your relationship. At the time, you had secure employment and subsequently you purchased a home. After your fall through the glass window, it would appear that your life spiralled out of control, your relationship deteriorated, and, in 2001 you were imprisoned.
38 Upon release from prison, your partner had formed a relationship with another man and you separated. You were deeply affected by the break-up, became depressed, could not sleep or eat, were regularly tearful, and you recommenced to use Xanax and Ice to cope with your distress.
39 Tendered as Exhibit 2 were references from Luke Wilson, a Salvation Army case manager and your mother. Exhibit 3 was a letter from you. Mr Wilson wrote that he has had a very close friendship with you for the least nine years. He wrote as to the significant trauma that you suffered in your childhood and, although unqualified, he writes as to the significant negative effect on your mental health that this trauma had on you. Mr Wilson described you as a kind-hearted, loving and caring person.
40 Your mother wrote as to the changes that she observed in you because you were being held under “management conditions” whilst in prison. Further, she wrote of the effect that not being granted parole had on your mental health and you generally. As well, she wrote as to the traumatic situation in which you were diagnosed as being diabetic.
41 In your letter you wrote that during the period of your offending you were self-medicated and that you had no recollection of your offending. You wrote as to the support that you have received in prison in respect of your mental health and the various courses which you have undertaken, the certificates of which are Exhibit 5 on the plea. Further, you wrote as to the education that you have received in respect to managing your diabetes and that you are confident in your ability to control that illness through lifestyle and appropriate medication.
42 Tendered as Exhibit 4 were a number of urine analysis reports dated 8 May, 18 May, 22 May, 26 July, 19 November 2017 and 9 January 2018 – all of which proved negative.
43 Put plainly, Mr Bennett, your offending was appalling. When driving a motor vehicle with stolen numberplates attached to it, you were approached by police. You drove in a manner dangerous, colliding with a motor vehicle and causing damage to it. You caused three police officers on separate occasions to jump out of the road of your car, which gives rise to Summary Charge 34 and Charge 35 in part. Thereafter, you drove onto Power Road and away from the police in a manner that was dangerous to the public.
44 Some four days later, you attempted to talk your way into a house in Aberdeen Court, Narre Warren, but the female occupant of that house was wise to you. Thereafter, you committed the crime of aggravated burglary at a residence across the road when the occupier was at home. When challenged, you threatened and assaulted your victim. You also stole a number of items from that home.
45 Police were notified and thereafter a chase took place over a number of hours, where you put yourself and others at risk. Ultimately, when you were arrested, you were tested and found to have methylamphetamine in your blood, which gives rise to Summary Charge 40.
46 You have a long history of driving offences, including driving in a manner dangerous, driving whilst under the influence of a drug, failing to stop after an accident and reckless endangerment of life. To this should be added your convictions for crimes of dishonesty.
47
Much was made on your plea of the conditions in which you were imprisoned since May 2011. A perusal of Exhibit 2, combined with the evidence of
Mr Money, demonstrates to my satisfaction that your time “in management” comes as a result of your misbehaviour or the need to segregate you from others, either because of your misbehaviour or their attitude towards you.
48 Whilst I take into account the conditions in which you have been imprisoned and the length of time that you spent in prison since May 2011 in the application of the principle of totality, you have been the master of your own destiny in that respect.
49 I consider your prospects for rehabilitation as bleak unless and until you rid yourself of your addiction to drugs of dependence. It is plain that when you are not affected by drugs you are capable of work, and it appears that you have a desire to head north to the mines where you will be able to work and earn a substantial income. In the alternative, it appears that a roof tiling apprenticeship is available to you upon release from prison.
50 Whilst the prospect of employment is a matter that goes to your prospects of rehabilitation, it will amount to nothing until you rid yourself of drugs.
51 You entered your plea at an early stage and are entitled to the benefits that flow to you from that plea, being that it is some evidence of your remorse and that it has utilitarian value. You are an appropriate vehicle for the application of general and specific deterrence. Please stand.
52 By these sentences I must denounce your conduct. I must punish you and deter you, and others, from committing these crimes or crimes of a similar kind. I must look to the protection of the community. I must look to your rehabilitation. Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents. Endeavouring to produce sentences which reflect and promote the purposes of sentencing in a manner appropriate to you, I sentence you as follows:
53 On Charge 1, handling stolen goods, I sentence you to three months’ imprisonment.
54 On Charge 2, aggravated burglary, I sentence you to four years’ imprisonment.
55 On Charge 3, theft, I sentence you to six months’ imprisonment.
56 On Charge 4, common assault, I sentence you to 12 months’ imprisonment.
57 On Charge 5, reckless conduct endangering life, I sentence you to 18 months’ imprisonment.
58 On Charge 6, theft, I sentence you to three months’ imprisonment.
59 On Charge 7, resist police officer, I sentence you to six months’ imprisonment.
60 On Charge 8, resist police officer, I sentence you to six months’ imprisonment.
61 I order that one month of the sentences imposed on Charges 1, 3, 6, 7 and 8, together with three months of the sentence imposed on Charge 4 and six months of the sentence imposed on Charge 5, be served cumulatively upon each other and upon the sentence imposed upon Charge 2. This results, in respect of the indictment, in a total effective sentence of five years and two months' imprisonment.
62 In respect to all of the related summary offences save Charge 26, possess cartridge ammunition, I sentence you to an aggregate term of imprisonment of 12 months’ imprisonment.
63 In respect to Summary Charge 26, possess cartridge ammunition, I convict and fine you $100. I order that three months of the aggregate sentence of 12 months’ imprisonment to be served cumulatively upon the sentence imposed upon indictment. This results in a total effective sentence of five years and five months’ imprisonment, and I fix a period of three years’ imprisonment to be served before you will become eligible for parole.
64 I declare that you have spent 434 days by way of pre-sentence detention.
65 I cancel all licences and permits to drive under the Road Safety Act 1986 and disqualify you from obtaining any such licence or permit for a period of two years.
66 I declare, pursuant to s6AAA of the Sentencing Act 1991, that but for your plea of guilty I would have sentenced you to seven years and six months’ imprisonment with a non-parole period of five years’ imprisonment.
67 You may be seated. Are there any other matters to be dealt with?
68 MR NIBBS: Your Honour, a forfeiture order is being sought in respect of the knife - - -
69 HIS HONOUR: Yes.
70 MR NIBBS: - - - that was taken. I don't understand that to be opposed. I have copies of draft orders.
71 HIS HONOUR: Thank you. I've signed those orders. Are there any other matters?
72 MR NIBBS: No Your Honour.
73 MS WALKER: No Your Honour.
74 HIS HONOUR: Thank you. Remove the prisoner please. 10.30 start on Monday, is that right? 10.30 Monday morning.
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