Director of Public Prosecutions v Cetrola
[2018] VCC 1929
•22 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR 18-01733
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TROY CETROLA |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 2018 | |
DATE OF SENTENCE: | 22 November 2018 | |
CASE MAY BE CITED AS: | DPP v Cetrola | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1929 | |
REASONS FOR SENTENCE
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Subject: Sentencing.
Catchwords: Pleas of guilty; one charge of theft of $746,780 from employer company over 2 year period; one charge of false accounting; rolled up charges; no prior criminal history; first time offender at age 40; compulsive gambling; both physical and mental health conditions.
Legislation Cited: Sentencing Act 1991, s. 6AAA.
Cases Cited:R v Verdins [2007] VSCA 102; R v Grossi [2008] VSCA 51; 23 VR 500.
Sentence:Total Effective Sentence of 3 years and 2 months imprisonment, with a Non-Parole Period of 18 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms S Borg | Office of Public Prosecutions |
| For the Accused | Ms B Franjic (on Plea) Mr C Sher (on Sentence) | Dribbin & Brown Criminal Lawyers |
HER HONOUR:
1 Troy Cetrola, you have pleaded guilty to one charge of theft and one charge of false accounting.
2 The maximum penalty for each charge is 10 years imprisonment, which reflects the relative objective seriousness with which offences of these types are to be regarded.
3 Both charges arise from your conduct between July 2015 and June 2017. Over that period, you stole a total of $746,780 from your employer, and created false records in your employer's accounts to attempt to cover up the shortfalls. You did this from your position as retail manager of the Priceline Pharmacy in Carrum Downs Shopping Centre. You were in charge of the daily banking for the store.
4 Starting with approximately $29,500 in July 2015, you took portions of the daily cash receipts which ought to have been banked into the company's bank account. Over the next few months, the amounts taken were less, ranging from between $3,000 in August, to $17,000 in October 2015, and then reducing to about $12,000. However, from January 2016, the monthly amounts were all over $20,000, and from April 2016 until discovery of this offending in June 2017 (except when you were on leave), you stole sums averaging approximately $40,000 per month. To disguise the shortfalls, you created a false accounting record to offset the amount you were failing to bank into the employer's account for that day or week.
5 Although there has been a schedule produced of the amounts you stole over 24 months, it is impossible to calculate the precise number of individual acts of dishonesty by you over a near two year period. They have been included in what is called a “rolled up” charge, representing the total of the amounts stolen. It will stand on your criminal record as one charge of theft of that total amount, which is more than $746,000. In considering the seriousness of your offending, I take into account that it consisted of regular and systematic acts of dishonesty.
6 I am told that the reasons you engaged in this offending were a combination of personal problems, which had led to your becoming heavily addicted to gambling. Further, you felt underappreciated by your employer – a corporate group for which you had worked for 25 years in various roles - and apparently there had been some incidents towards the end of 2015 which caused you further distress and anxiety in the context of your work.
7 I must assess the objective seriousness of this offending, and your role in it. The total amount stolen, and period of some two years over which it occurred almost continuously, puts this at a serious level for the charge of theft. It was clearly planned, which involved you using your inside knowledge of the accounting system, first to take the cash, and then to disguise or cover it up, and was a flagrant breach of trust of your employer for a sustained period.
8 No amount has been repaid. Although you have consented to, or will not oppose, a compensation order being made for the full amount, you have no assets from which to attempt even partial repayment.
9 I accept that it was mainly prompted by your gambling addiction, and that the money was effectively all lost through gambling. That puts this theft context, but does not excuse the offending. It was still for personal benefit in that it was to feed your gambling addiction, but I accept the motivation was not to acquire luxury items, engage in a grandiose lifestyle, nor to amass a substantial capital sum for yourself directly from what you stole.
10 I am told that you were astounded that the total had reached nearly as much as it had. That is an explanation often heard in this court, when an employee starts stealing from an employer and continues to do so over an extended period. With most monthly totals exceeding $20,000, and many in the $40,000 or even higher range, you must have been taking at least several thousand dollars per week. As this was all in cash, and continued on a sustained basis over almost two years, I find it hard to accept that you did not realise that there were very substantial amounts accruing, reaching a total in the hundreds of thousands of dollars. Even if you did not realise that it had reached almost three quarters of a million dollars, I am satisfied that you must have been aware that you had taken very substantial amounts over the period.
11 Stealing from a large company may appear to have little impact - what is sometimes called “victimless crime”. I accept that you may have felt that the theft was impersonal and not harming any individual you knew, however, even though no individual may have suffered, or I have no information of any individual suffering, large companies still sustain loss when someone steals from them, and there is likely to be indirect impact on individuals in that a retail chain may reduce the number of outlets or jobs when certain stores are not making sufficient profit, and/or may pass on losses or reduced profits by increasing prices to customers.
12 There is no victim impact statement from your former employer, and I have no information about how the loss was eventually accounted for by your employer, nor even whether it was insured for loss through employee theft. If it were, then the ultimate indirect impact could be increased insurance premiums. Ultimately, I find that there would have been costs to your employer, as well as time spent in tracing this offending and dealing with it.
13 The amount stolen, involving many separate acts of dishonesty, regularly, over almost a two year period, reflects that this was not just a rash and short lived lapse in judgement by you, but one, once started, that extended in time and grew overall in amounts taken. In my view, these features place this example of this offence towards the upper end of the midrange of seriousness for the offence of theft. Nevertheless, there are much more serious examples of theft that come before the courts.
14 The nature and extent of the offending calls for a sentence that has, as its main purposes, general deterrence, just punishment, and denunciation. General deterrence means that a message should be sent to others who may be tempted to commit similar offending that it will attract serious punishment.
15 In relation to Charge 2 of false accounting, it seems to have involved your regularly creating one type of false document, or set of entries, to try to account for the cash discrepancy by reference to a previous day of takings. The examples I was shown were for a single day each, which indicates that there were very many such documents over a two year period. I find that this was not an elaborate scheme of false entries and, of course, it did not involve creating false identities, but it was one which indicates an intention by you to try to disguise the fact of the thefts, and in a way that you did not anticipate being traced to you.
16 There will be considerable concurrency in the sentence I impose on this charge, to reflect that I have taken into account when assessing the seriousness on Charge 1 that you had attempted to disguise or cover up your theft by creating false entries, which are the subject of Charge 2. As a separate charge, Charge 2 also calls for general deterrence, just punishment, and denunciation as the main sentencing purposes.
17 In the short term after the discovery of apparent discrepancies, you sought to deflect blame onto the accounting system. It is not alleged that you intended a co-worker to be blamed, but a consequence of you not making admissions when first confronted about the discrepancies, was that another employee was also placed under suspicion and, I believe, suspension from employment for a while. Obviously, extensive further investigation was needed, including into your personal financial accounts which ultimately showed cash deposits totalling well over $600,000, for which your salary of no more than $65,000 gross per annum could not possibly account. The investigation into your accounts also showed very large gambling expenditure, and less in winnings.
18 When interviewed by police, you still denied wrongdoing. That was after trying to evade them for a relatively short period on the day they attended your home. Nevertheless, I accept that once charged, there was prompt negotiation of a plea of guilty to these charges.
19 You are entitled to considerable leniency for your pleas of guilty, in saving the community the time and cost of disputed hearings, and witnesses the inconvenience and time of having to give evidence. Trials of this type of offending can take considerable time, as extensive accounting records are examined. By your pleas of guilty you also accept responsibility for your offending. I shall tell you after I impose sentence what it would have been had you not pleaded guilty, but been found guilty of the equivalent of these offences after a trial.
20 As to whether the pleas of guilty reflect true remorse, the issue of remorse seems a little complicated in your case. A psychologist whom you have been seeing since early August, considers your remorse was initially mostly self-serving, and although you have made good progress in your sessions with him, exploring the likely consequences of your offending, and have expressed remorse for betraying people's trust, he still regards your remorse as under-developed and requiring further treatment, for you to consider the long term implications of your betrayal, and your offending more generally.
21
Personal references from friends and family refer to you being remorseful.
I find that your remorse was not immediately fulsome, but that over time it has developed, since you are coming to realise and regret the impact of your offending, not just on yourself and your family, but also on the employer and the community.
22 I turn now to your personal circumstances. You are now aged 42, and were aged 39 to 41 during the period of offending.
23 I am told that you grew up in Melbourne in a stable family, where there was strong support and no link with criminal or antisocial behaviour. Your father worked, and your mother was a homemaker. You have one sister who was, together with your parents, in court to support you. I am told you have a good relationship with your family, and have had throughout your life, so it came as a considerable shock to all of them to learn, not only of the depth of your gambling addiction, but also of this offending.
24 I am told that you grew up in the Rowville area. You completed Year 12 at school. You describe yourself as average at school. I am told that you were always interested and active in sports, and particularly in playing cricket. I am also told that you have always struggled with keeping your weight under control, have been overweight since childhood, and were teased to a considerable extent for that as a child. Nevertheless, as I say, you engaged in sports and apparently were also keen on fishing. You finished school, and it appears from some of the character references that you have maintained some close and loyal friendships since school.
25 On leaving school, you obtained employment with a Priceline pharmacy, initially as a sales assistant, and gradually over the years you obtained promotions - no doubt through hard work and commitment. You became successively an assistant store manager, then store manager, and for the last 10 years of your employment with that chain of companies you were a retail store manager or multi-site manager. You had attended in-house training in several aspects of retail management. For the last seven years you were employed at the Carrum Downs Priceline pharmacy as retail manager.
26 As to your personal life, you have never married nor had children. Over the years, you have lived in share houses, at one of which you were living during this offending. A housemate’s reference confirms that you were reliable, and well regarded by those with whom you lived. I gather from the references of friends and family that you had a small but close circle of friends and, of course, family to whom you did not often reveal your personal concerns, but that you must have kept private the extent of your introversion and compulsive outlets of gambling and eating.
27 I am told you had struggled since childhood with controlling your weight, and with excessive weight had suffered from some other health conditions. You had apparently been diagnosed also with a hereditary condition involving deep vein thrombosis, for which you have had to take the blood thinner Warfarin. I gather from one of your friend's references that that led to your ceasing active playing of cricket, and also caused you to experience some depression and anxiety.
28 I was told by your counsel during the plea hearing, that underlying depression and anxiety increased as a result of two incidents - both of which were connected with your work. One was that a tragic death which occurred in the car park outside your store in September 2015, and you were one of the people who went to the aid of the victim. This was understandably very distressing and also, apparently, involved you recognising the person as a customer. You did not seek any treatment or counselling after that.
29 The second incident at the end of that year, and although you did not personally witness the event, it involved a staff member taking her own life. I accept that again that would have been distressing for you.
30 However, both of these incidents occurred after you had started stealing from your employer, so certainly did not cause your offending initially. There is no evidence of you suffering mental health conditions or deterioration as a result of these incidents, so nothing of that nature has been diagnosed. There is no evidence before me as to any contribution of these events to any change in your mental state, nor to causing any increase in your offending.
31 You have no prior criminal history - consistent with the references which say that this offending was totally out of character for you. You are entitled to be treated as having been of good character until this offending commenced, when you were aged about 39. However, while that is to your credit, it is not unusual when employees have stolen from employers that it was their previously good character, and lack of prior criminal record, that led to them being trusted by their employers, especially those with access to an employer's accounts or, as in this case, directly to cash receipts.
32 For this reason, prior good character and lack of prior offending carries less weight in sentencing considerations compared with sentencing purposes that are more relevant here of general deterrence and just punishment. I have, however, taken into account your previous good character as it also relates to your prospects for the future.
33 I have read the considerable number of very supportive character references provided.
34 Both of your parents, and your sister, have written of being shocked at learning of your offending, and having not known of your gambling. Your mother says you kept your gambling hidden altogether. Your father believed that you would have brought to his attention if you had a problem. Your mother outlines the health problems you have had, and believes that the help you have been receiving from a psychologist more recently is working.
35 I accept that you were raised in a close and supportive family with good moral values, and that each of your family members is genuinely shaken at what you had been doing, and deeply upset at knowing that you face a term of imprisonment for this offending. They all say that they will remain supportive to help you through what you are now facing. To have such support is not only likely to be helpful for you, but is also a reflection of your family's commitment to you and your future wellbeing.
36 There are also references from four friends, each of whom has known you for a long time, and some having lived with you. All express their surprise at learning of your offending, and describe it as being totally out of character for you. They describe your remorse as expressed to them. They variously describe you as being empathetic and supportive to friends, willing to give them your time and support, reliable, having a big heart, and being a trusted confidant. One refers to you having gone through ups and downs in life dealing with your weight issues and depression, and that the diagnosis of blood clots led to your depression, leading you down what he calls “this path”.
37 I am told that you had taken to gambling in many forms, and had been doing so over many years. However, by about 2015 you had become particularly and increasingly engaged in online gambling, which you were doing more and more compulsively and totally in private. Investigations of this offending revealed that you held betting accounts with CrownBet and Tabcorp in Melbourne, and SportsBet in Darwin. Tabcorp documents showed that during the period from July 2014 to July 2017, you made over 13,000 bets totalling $1.744m, and that your winnings were $1,415,830. While that period starts a year earlier than your offending, those figures from just one of the betting agencies you used, show that you were engaging in high volumes of bets, losing overall some hundreds of thousands of dollars, and this was in the context of your gross salary being around $65,000 per annum.
38 I accept that this gambling problem was the main cause of your commencing and continuing offending, although there is also mention of some resentment of your employer for undervaluing your commitment and efforts over so many years. As I have already said, gambling provides no excuse, but it does place in context what drove you to continue with this offending and confirms that you were not stealing to acquire luxury items or a luxury lifestyle[1].
[1]R v Grossi [2008] VSCA 51.
39 I am told that after this offending was discovered, you discussed with your general practitioner your mental health, and were placed on a mental health care plan. You were referred for counselling, but apparently did not establish a good therapeutic relationship with that counsellor, so I gather that counselling did not continue for long. It was more recently, apparently through your solicitors, that you were referred to a psychologist, Dr Matthew Barth. Under his supervision, you have attended counselling with Mr Geoffrey Burrows, whom you have seen on six occasions since early August of this year. A report outlines the counselling directed to your gambling compulsion. It is understood that you have not gambled since this treatment began, and have closed your betting accounts. Treatment has involved cognitive behavioural therapy to treat underlying symptoms of depression, anxiety and poor self-esteem, and to assist you to develop healthier coping mechanisms.
40 Although Mr Burrows felt your initial remorse was mostly self-serving, treatment has involved exploring the likely consequences of your offending behaviour in order to enhance your victim empathy and to develop remorse, and you have shown progress in this. He recommends further treatment to assist you to consider the long term implications of your betrayal and your offending more generally, but says that you have made good progress so far and have been positively engaged in this treatment. He says it is imperative for you to continue participation in psychological treatment to further enhance your insight, and victim empathy, but also your coping skills, so as to help prevent relapse, and to contain your gambling.
41 It cannot be submitted, and was not by your counsel, that from this report there is evidence that you suffer from any serious underlying mental health disorder which directly contributed to your offending, nor which would make your experience of imprisonment more onerous than for persons serving sentences of imprisonment for the first time. Some anxiety and trepidation about that prospect is natural, and especially for someone in your circumstances where you are facing imprisonment for the first time in your life after what had been a law-abiding and constructive and responsible lifestyle until your late 30s. I do not overlook that you have been concerned about the prospect of imprisonment, but those are not matters which attract mitigation of your sentence.
42 While the report from Mr Burrows and Dr Barth refers to your gambling compulsion, this is not a case, as I have said, of diagnosis of a mental health disorder contributing to the offending[2]. Even if it were, as has been explained by the Court of Appeal[3], examination of cases dealing with contributing mental health disorders when it involves a diagnosis of a disorder related to gambling will generally lead to the conclusion that the presence of a gambling addiction should not, on that ground alone, result in any appreciable moderation of the sentence. In the present case, as I have said, there is no evidence of such a formal diagnosis.
[2]R v Verdins [2007] VSCA 102.
[3]R v Grossi [2008] VSCA 51; 23 VR 500.
43 I am told that your physical health has been affected by your being greatly overweight. You had been suffering sleep apnoea. Apparently earlier this year your condition was regarded as so serious that gastric sleeve surgery to reduce your stomach capacity was strongly recommended. Medical opinion to the effect that your condition was life-threatening was given to support your applying for early release of some superannuation savings to pay for this surgery. That release was granted, and the money used to privately fund surgery, which I am told occurred in April of this year, and very considerably reduced your stomach capacity. As a result, I am told, you have lost over 45 kilograms. That has led to you completely changing your attitude to food and aspects of your lifestyle. I am told that you walk now to relieve stress, rather than eat for that purpose. Apparently both your sleep apnoea and gout have improved.
44 You still suffer the hereditary condition for which you need to take the blood thinner, Warfarin, to avoid clots or deep vein thrombosis. This requires monitoring regularly, and I extended your bail last week to enable you to attend a scheduled blood test due to recent unstable levels.
45 There is no medical evidence to indicate that your physical health conditions are likely to deteriorate if you are imprisoned, nor to make your experience of imprisonment more onerous for you, and, in general, it is to be assumed that prison authorities will maintain appropriate healthcare and treatment. I have taken into account as a likely general consequence of your weight issues and your need for medication such as Warfarin and the monitoring of it, that you are likely to be anxious until reassured that these conditions will be properly monitored and treated.
46 When the missing money was discovered you were initially suspended and then, once it was traced to you, your employment was terminated. As you had only ever worked for the one overall employer for some 25 years, and in the circumstances of your dismissal, it has been difficult for you to obtain further employment since. It is to your credit that you have tried to obtain alternative employment and, as I am informed, you did a few short term jobs and then maintained employment as an administrative assistant for a panel beating company for some six months. However, on being charged with this offending - which was not until June of this year - on informing your manager, your employment was terminated, and you have not been employed for the last four months.
47 Unfortunately, it is likely that you will again find it difficult to find employment when you are released from prison in light of these convictions. However, you will still have at least some 20 years of working life ahead of you, and hopefully will find employment that you find satisfying and are able to pursue without the stigma of having stolen from your previous employer.
48 You have, effectively, no assets to resume or restart your life on release from prison. However, if you can effectively address the reasons underlying your taking to gambling to such a compulsive level, and find a way to avoid gambling at least to any great extent, you have no underlying disabilities or conditions which would inhibit your being able to re-establish a stable and responsible life for yourself on your release.
49 While current sentencing practice is but one factor to take into account in determining an appropriate sentence, I have considered the range of other sentences brought to my attention involving thefts of substantial sums from employers. Each, of course, has its own particular circumstances and aggravating or mitigatory aspects.
50 In light of those cases, together with the circumstances of your case as I have outlined, and as was conceded by your counsel, no sentence other than imprisonment would be appropriate to meet all sentencing purposes and considerations.
51 At your age, rehabilitation is not regarded as a primary purpose of sentencing. However, taking into account that you had no prior criminal history, held steady employment for some 25 years (despite the last two being spent committing sustained dishonesty against your employer) and have strong, ongoing support from family, I regard your prospects of rehabilitation as reasonably strong. I consider that it is ultimately in the best interests of the community, as well of course, for you that your rehabilitation be encouraged, and for this reason the sentence I impose should not be such as to crush your hopes or the progress you have made towards addressing not only your long standing weight issues, but also the underlying depression, and your gambling compulsions. Rehabilitation prospects do not outweigh the other sentencing purposes I have mentioned of general deterrence, just punishment, and denunciation, but to give some weight to rehabilitation for these reasons, I have decided to fix a minimum term before you are eligible for parole that is lower than might otherwise have been warranted.
52 Finally, I have not given much weight to the need for specific deterrence - that is, to deter you from further offending - because, in my view, with your history a term of imprisonment is likely to be a very salutary experience and I do not think it is likely that you would repeat this type of offending the future.
53 Would you stand up now please.
54 Troy Cetrola, on Charge 1 of theft, you are convicted and sentenced to three years imprisonment.
55 On Charge 2, you are convicted and sentenced to nine months imprisonment.
56 I direct that two months of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1, making a total effective of sentence of three years and two months.
57 I fix a non-parole period of 18 months imprisonment.
58 I state for the purposes of s.6AAA of the Sentencing Act that but for your plea of guilty, and had all other circumstances been the same, I would have imposed a total effective sentence of four and a half years imprisonment with a non-parole period of three years and two months.
59 Application has been made for a compensation order for the total amount stolen of $746,780. That was not opposed by you. You have heard me say I am prepared to make that order in favour of the appropriate person or entity. But I will wait to be assured that it is to be to the particular name that has been provided to me, so that I can know that I am making it for actual loss incurred by that person.
HER HONOUR: I think that was the only ancillary order pursued. There were some draft notices filed that I don't think were pursued.
MS BORG: Yes, except for s.464.
HER HONOUR: That is pursued is it?
MS BORGE: Yes.
HER HONOUR: I can't recall whether that was opposed or not. That's an application for a forensic sample to be taken from you to allow your DNA to be placed on the State's database. Mr Sher, do you want to make submissions on that?
MR SHER: Your Honour, I - - -
HER HONOUR: You can take a seat Mr Cetrola, while your counsel - - -
MR SIM: I believe the 464 application is unopposed.
HER HONOUR: Unopposed, all right. I do take into account in making these orders the usefulness of DNA being on the database. This is not the type of matter where DNA and fingerprints might naturally lead to discovery, but I think given that the circumstances of the offending involved direct and deliberate attempts to cover up the offending, and it was not opposed, in those circumstances the making of that order is warranted. Mr Cetrola, I will make that order. That means that a sample will be taken from you to be placed on the DNA database. I limit that order to an order for what they call a scraping from the mouth. It's a cotton swab on the inside of the cheek. I don't extend it to a blood sample because I have been assured by scientific people that adequate DNA can be taken from the mouth swab. It should not be too intrusive unless you resist. However, I must warn you that if you were to resist the taking of that sample, authorised persons can use reasonable force to take it from you. I will sign an order in those terms. All right, is there anything else I've overlooked?
MS BORG: No.
HER HONOUR: I'll just see if those orders can be finished while I'm still in court so I can sign off on them, because I've got another matter proceeding. In the meantime there's to be no contact, because Mr Cetrola's to be taken into custody, but if his family want to speak to him or if you do Mr Sher, I give leave to approach the dock and speak to Mr Cetrola.
MR SHER: Thank you, Your Honour.
HER HONOUR: Mr Sher, I assume your client has a prescription for the Warfarin and whatever the doses are with him?
MR SHER: Yes, Your Honour, he has all of that with him and he's got that in his personal possession.
HER HONOUR: All right, I will attach a custody note that that is prescribed medication.
MR SHER: Thank you, Your Honour.
HER HONOUR: Just so that it – and that it's your client's first time in custody so that that's just noted.
MR SHER: Thank you, Your Honour.
HER HONOUR: I know it's a medication that can't be left too long before being renewed.
MR SHER: Yes.
HER HONOUR: It needs monitoring. You can take a seat if you like, Mr Cetrola, it's up to you. Because of timing it's easier if I do sign these orders now and everybody takes a copy away, it's just that - - -
MR SHER: Yes, Your Honour.
HER HONOUR: - - - drafts and watermarks and computers – emails and e-filing and all sorts of things interfere with –all take time to sort out.
MS BORG: That's being sent. Your associate should get it in a moment.
HER HONOUR: I hope it's been sent – I have an acting associate today who - - -
MS BORG: No, no, she provided the email. Yes.
HER HONOUR: Good. That's another complication when things are sent to email addresses where nobody's in attendance at the time. It is not coming through, and rather than keep everyone here waiting, I'll sign it when it comes through and my acting associate will email it to the parties. Mr Cetrola, it'll reach you at some stage, it's not going to be taken immediately, that sample. I think there'll have to be a four week wait before it's taken so there's time for it to come through, and I'm sure your lawyers will forward it to you. As I say, I'm limiting it to a swab from the inside of the mouth, but you have to be aware that if you resist there could be reasonable force used. All right, I've signed off on the other orders and I'll ask now that Mr Cetrola be taken from the courtroom please.
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