Director of Public Prosecutions v Cubbins
[2017] VCC 969
•18 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00396
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK CUBBINS |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 June 2017 | |
DATE OF SENTENCE: | 18 July 2017 | |
CASE MAY BE CITED AS: | DPP v Cubbins | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 969 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCING
Catchwords: Armed robbery and resist emergency worker on duty and related summary charge of unlawful assault with a weapon – offender recently diagnosed with schizophrenia – Verdins principles applicable
Legislation Cited: Sentencing Act1991
Sentence: Combined sentence imposed of 233 days and a 3 year Community Correction Order with special conditions
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Trotman | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr J Van Arkadie | Victoria Legal Aid |
HER HONOUR:
1 Jack Cubbins, you have pleaded guilty to one charge of armed robbery that took place on 8 December 2016 and the related summary charge of unlawful assault with a weapon that took place on that same day and you have pleaded guilty to resisting an emergency worker on duty, that arose following your arrest for the armed robbery and related summary charge.
2 The crimes are serious and that is reflected in the maximum penalties prescribed by Parliament:
·Armed robbery, that is 25 years’ imprisonment;
·Resisting an emergency worker on duty – 5 years’ imprisonment;
·And assault with a weapon – 2 years’ imprisonment.
3 In addition you have admitted your prior criminal history and that contains some 14 court appearances that span the period from 23 January 2013 until 13 May 2016.
4 I will now proceed to sentence you on the basis of prosecution opening that was read at the plea hearing and tendered as an exhibit and I have also watched the CCTV footage that shows the criminal offending.
5 At around 11.05 am on 8 December 2016 you entered the IGA Supermarket in Reservoir and walked towards register number 5 that was at the rear of the store. Ms Barbara Serratore, an employee of the supermarket, was operating the register and was about to serve some customers. You entered her cubical and stood in front of her. At the time you had a knife in your hand that was approximately 30 centimetres in length. You pointed that knife at Ms Serratore and yelled at her to open the till and give you the money. You told her that if she did not open the till, that you would stab her. She backed away from you until she was pressed up against the till, you kept coming closer towards her, pointing the knife at her stomach. You were holding the knife only millimetres away from her clothing.
6 Another employee, Dragana Georgioska, became aware of the incident and yelled at you to stop and get away from Ms Serratore. You then moved towards her and you were approximately 2 metres away from her still holding the knife and, whilst facing her, you said “I need the money.” She then ran off towards the loading bay in search of assistance. Ms Serratore then tried to open her till by pushing the button. She was yelling, “help, help”. The till opened. At the time Ms Serratore was able to get around you and escape from the cubicle. You were then approached by the store manager, Farook Moushi, you dropped the knife and pulled the cash drawer out of the register. Those facts constitute Charge 1, the armed robbery and Summary Charge 5, the unlawful assault.
7 You then started walking off towards the exit to the store at which stage you were jumped on by the store manager, Mr Moushi. You remained standing but dropped the cash drawer.
8 Another store employee, Mr Yousif, then approached you and grabbed hold of you and you tried to break free. You struggled and that struggle continued outside the store. You kept yelling to be left alone and that you were hearing voices in your head. You were taken to the ground by the employees and held until police arrived.
9 Police arrested you and took you to Reservoir police station that is located across the road from the IGA supermarket. You were placed in a holding cell where you complained your handcuffs were too tight and they were hurting your wrists. You were told by Leading Senior Constable Peter Barmby that he would loosen the handcuffs if you would behave. You told him that you would and so he removed the left handcuff from your wrist. You then grabbed hold of his firearm that was in his holster. Police attending upon you then yelled out, "Gun grab" and then you were overcome by other police officers and physically restrained, allowing police officer Barmby to release your hand from the firearm and you were again handcuffed. That constitutes the facts of Charge 2, resist an emergency worker on duty.
10 Mr Cubbins, the offending has had serious consequences, in particular for Ms Serratore and I have had regard to the contents of her Victim Impact Statement declared 31 May 2017. I have read the attached report from her psychiatrist, Associate Professor Damodaran that is dated 30 March 2017 and I have also had regard to her WorkCover claim material.
11 Your actions have caused her to be anxious and depressed. She is now seeing both a psychiatrist and a psychologist regularly and is taking antidepressant and anxiety medications. She has been unable to go back to work and that has had a pretty profound effect on her. She is an older person and she, from the age of sixteen, has always worked. She says she was petrified as a consequence of your actions and continually lives in fear that she will be involved in a similar incident or witness a hold up; so that she no longer goes to public places where she knows there are lots of people. She is irritable, has difficulty sleeping and has been deeply distressed by the effect of your actions. She has recurrent flashbacks and intense nightmares, ongoing panic attacks and constantly worries. She has become hyper-vigilant and has avoided going back into her workplace or the areas around where she previously worked. She has been diagnosed as suffering from Post-Traumatic Stress Disorder along with Major Depressive Disorder of mild severity.
12 In sentencing you, there is a need for the Court to formally denounce your behaviour. The offending is serious and that is reflected in the maximum penalties that are prescribed.
13 Overall, I consider that this is a serious form of armed robbery and it sits above the lower end in the range of seriousness for this sort of offending. Objectively, the offending is serious, you entered a busy grocery store and by your actions threatened two of the staff members, one of whom continues to be seriously affected by your actions, as I have previously described. The episode would have also been very frightening for other customers who were present and also other staff members who witnessed what was going on.
14 It was not sophisticated offending but there was a degree of planning and I noted that you were armed with a knife. It is said that you carried the knife for your own personal protection and I am not able to make any findings in respect to that aspect.
15 Fortunately you did not harm the victim physically but nonetheless she has suffered serious psychological and psychiatric consequences.
16 I noted that there was no attempt to disguise your appearance and you were easily apprehended. Insofar as the resist emergency worker on duty charge is concerned, I have had regard to the psychiatric difficulties that you were experiencing at the time and consider that your actions were ill thought out, as a consequence of your mental illness.
17 I have had regard to the matters put in mitigation on your behalf by Mr van Arkadie, which I accept. You did plead guilty at the earliest opportunity. The matter proceeded by way of straight hand-up brief. You entered a plea of guilty on 4 March 2017. Your plea has real utility, you spared the state the expense and inconvenience of a trial and in particular, you avoided exposing the witnesses, especially Mr Serratore and Ms Georgioska, to the trauma of having to come to court to give evidence on your trial.
18 Through your plea you accept that your actions were wrong and you demonstrate appropriate remorse. I noted that you have stated in open court that you are sorry. You have facilitated justice and the sentence will be discounted accordingly.
19 I have had regard to your youth, you were 20 at the time of the offending and you are now 21. I take into account that there is a need to allow for your rehabilitation in the sentence. That said, whilst your youth remains an important consideration and requires more weight to be given to encourage rehabilitation, the nature of this offending means that the importance of your youth must give some ground to consideration of general deterrence.
20 Your prior criminal history does demonstrate there are some convictions of relevance. You have had numerous court attendances, over the years, in respect to violence offences against the person and you have been dealt with on a number of occasions in the Children’s Court for such offending.
21 You have had a lot of opportunities in the past, having been given a variety of dispositions, including good behaviour bonds, probation, Youth Supervision Order, Youth Justice Centre Orders and as an adult you have been fined, placed on Community Correction Order and imprisoned.
22 To a large extent your past criminal record can be explained by reason of your deteriorating mental health and undiagnosed and untreated psychiatric condition. The evidence of your treatment shows that it has only been relatively recently that you have been diagnosed as being schizophrenic and received appropriate treatment and I will talk about your treatment shortly.
23 I have had regard to the report provided by Dr Fiona Best, consultant psychiatrist, whose report of 15 May 2017 sets out in comprehensive detail your background and history.
24 You are a person who presents as a loner, who is estranged from your family. Before being placed on remand, you had been granted a disability support pension on the grounds of mental illness and your finances were being managed by the State Trustees. You were living in a boarding house. You had been diagnosed with schizophrenia and been treated as a compulsory patient under the Mental Health Act 2014 (Vic) as an inpatient at the Austin Hospital and in the community through the Darebin Clinic, Northern Area Mental Health Service and you were being treated on a Community Treatment Order.
25
Your personal background is that you were born in Victoria, you have a
half-brother on your father’s side who is twenty years your senior, with whom you have no contact. Tragically your mother died in early June 2017 following the diagnosis of cancer. Your father, from whom you are estranged, has no contact with you. Your childhood was difficult, you were exposed to drug use at any early age. Your parents smoked cannabis and your mother was an amphetamines user. I have taken into account your dysfunctional childhood.
26 You were diagnosed with Attention Deficit Disorder, for which you were prescribed dexamphetamine, which you took between the ages of seven to fourteen. You struggled academically at school and you had difficulty with being bullied. You were expelled in Year 9 for poor attendance.
27 You have attempted some part time work at Bunnings but you were only able to cope for a few weeks and you also attempted a pre-apprenticeship course in carpentry, which you did not complete because of difficulties associated with poor literacy skills.
28 As a consequence of the tensions in the family over the years, you were placed into the care of the Secretary of the Department of Health and Human Services and you were in care between the ages of sixteen to eighteen.
29 I note that you have a history of poly-substance abuse; long term user of cannabis and meth amphetamines since your early teenage years.
30 You have a positive family history of mental illness in that your paternal grandmother had bipolar disorder and your father was also diagnosed with schizophrenia.
31 I noted before you were on a Community Treatment Order at the time of your offending. You were living in a boarding house that is managed by Angie Kennedy who gave some evidence today. You also had some support from Jessica Price, a worker with the Connections program at Jesuit Social Services, a voluntary program providing therapeutic counselling and support to young people who have mental health, drug and alcohol problems.
32 Ms Price was working with you to assist you with positive living skills and you were also being supported by the Darebin Clinic for mental health case management.
33 You were compliant with the conditions of the mandated Community Treatment Order, including prescribed medication.
34 Upon your remand, you have been held in the Acute Assessment Unit at the Metropolitan Assessment Prison. This is a special mental health unit that provides assessment and treatment for male prisoners with serious psychiatric conditions. Whilst there you have continued to have treatment by way of oral medication only. Unfortunately, depot injection are not mandated so they have not continued.
35 When Dr Best assessed you, she said you presented with symptoms of a resolving manic psychosis. Her formal diagnosis was schizophrenia, multiple episodes, currently in partial remission. Dr Best stated that you require immediate and ongoing psychiatric treatment to treat and manage your condition. She found you to be mildly thought disordered, restless, over familiar, mildly grandiose with mood lability. You were taking regular anti-psychotic medication. She recommended this continue. She further states that you would benefit from drug and alcohol counselling given your history of illicit drug use and that would assist you with reducing the risk of reoffending in the future. Her opinion was that there appeared to be a causal link between your impaired mental functioning because of your poor mental state and the offence.
36 I have taken into account the totality of the evidence concerning your mental condition at the time of the commission of these offences. I am satisfied that you were demonstrating symptoms of psychosis. I noted that you told the employees of the store, who apprehended you, that you were hearing voices in your head at the time of the offending.
37 You were examined within hours by Dr Maki Moller, a Forensic Physician, in the cells at Darebin Crime Investigation Unit. Dr Moller found you unfit for interview, pending psychiatric assessment based on the mental health examination that Dr Moller conducted.
38 The doctor recorded, whilst he was of the opinion you were alert and orientated, you indicated that your thoughts may have been disordered and the doctor found that there were indications that you may not be fully compliant with medication.
39 I have also had regard to the unchallenged evidence of Ms Jessica Price. She confirms in her letter to the court that she was working with you and noted an increase in your psychotic symptoms and a decrease in your level of functioning at the time leading up to this offending.
40 I have also reviewed the material that has been provided to the court, detailing your extensive treatment and management of your psychiatric condition, prior to the commission of this offence.
41 I noted the conclusion over the early period between January 2016 and to May 2016, that you were assessed by Forensicare in custody and you were found to be acutely unwell and schizo effective disorder diagnosed. Despite that finding, no further court orders were made, relating to supervision upon your release on 17 May 2016 and no supervision or treatment was ordered. On that date you were transferred immediately to the Austin Hospital, Acute Psychiatric Unit, pursuant to a Mental Health Act order. The order was based on your history of schizophrenia and schizo effective disorder and relapse in the context of non-compliance with treatment. The order continued and you received inpatient treatment for schizophrenia.
42 On 10 June 2016 you had confirmation of a need for a Community Treatment Order by your doctors, Dr Pamela Cook and Dr Clair Carnathie, who submitted a report to the Mental Health Tribunal in support of the application for a Community Treatment Order.
43 On 14 August 2016, the Mental Health Tribunal determined that you ought be subject to inpatient treatment order that had a 26 week duration.
44 On 5 August 2016, you were made subject to a section 58 variation of Temporary Treatment Order or treatment order, which varied your inpatient treatment order to a Community Treatment Order. It was noted that your psychotic symptoms, had improved and you no longer required inpatient treatment. At that stage responsibility for providing assessment and treatment to you was transferred to the Northern Area Mental Health Service.
45 From 5 August to 8 December 2016, your care was managed by Dr Jessie Gates, psychologist, in conjunction with Dr Gannison Duraiswamy, a consultant psychiatrist.
46 The psychiatrist made an application for a Community Treatment Order to be extended by a further six months on 21 November 2016. In support he provided further medical material and he diagnosed first episode psychosis, likely schizophrenia. He was concerned with your presentation on 21 November 2016, when you presented for your last depot injection. He considered immediate treatment was necessary for serious deterioration in your mental health, harm to yourself and to prevent harm to another. He considered that that recent deterioration had occurred in the context of increased substance abuse and it was noted that there appeared to be an increase in your psychotic symptoms, which is consistent with the evidence of Ms Price.
47 At that time, notwithstanding the concerns expressed by Dr Duraiswamy, you were not required to undergo further inpatient treatment.
48 Thereafter, this offending occurred on 8 December and you were taken into custody and following your remand the treatment order has since been revoked.
49 On the basis of all the evidence, therefore, I am satisfied in the lead up to 8 December 2016, you were displaying increasing psychotic symptoms and that your behaviour on 8 December 2016 was consistent with what had been observed, both by your treating psychiatrist, Dr Duraiswamy and also Ms Price. Therefore, I am satisfied that you are suffering from a deterioration in your mental health condition, with psychotic features at the time of the offending. I reject the prosecutor’s submission that there is no causal link between the offending and your known diagnosed psychiatric condition of schizophrenia.
50 I have had regard to your rehabilitation prospects. I remain cautiously optimistic about your rehabilitation prospects. There are, however, some factors that give me cause for some optimism.
51 Firstly, Ms Kennedy, who is responsible for managing the boarding house where you lived has given evidence that she is supportive of you and is willing to have you back to reside at the boarding house in Reservoir. She provides meals, cleans, performs laundry and services your room regularly and she is aware of your history of criminal offending, the current offences and your history of psychiatric treatment.
52 I am also satisfied that in addition to her support, you have the ongoing support of Jessica Price through the Connections Program at Jesuit Social Services. You seem to have an appropriate relationship with her and you have continued to engage with her, notwithstanding your current remand.
53 I am also satisfied that you have a good therapeutic relationship with the Darebin Clinic, Northern Area Mental Health Service, who will be able to provide you with case management and treatment, and that, in the past you have demonstrated compliance with their requirements and ongoing connections with them. But there will be a need to stress, for you, for the future that you cannot take any other drugs, other than prescribed medication. There will be a condition in your order that will try to support you in that regard.
54 Ms Price has indicated that she is willing to continue to work with you and you have also requested that she continues to work with you upon your ultimate release.
55 You have expressed a desire to work with the Reconnect Prison Transition Program, for extra support upon release from custody and you are currently pursuing a referral to this service, via the transition coordinator at the Melbourne Assessment Prison.
56 With their support and also with the support from State Trustees who continue to organise and arrange your finances, I consider that you have good supports in the community.
57 Though your counsel, Mr van Arkadie, you have indicated your willingness to undertake a Community Correction Order in the terms that I have outlined. That encompasses the conditions that were recommended by Alisha Eaves; Community Corrections Officer, in the Extended Pre-sentence Assessment Report. That includes assessment and treatment for drug abuse and dependency (including testing), mental health treatment and programs to reduce reoffending, supervision and judicial monitoring.
58 Overall, I consider that such an order combined with a gaol term, does provide you with an optimal chance of rehabilitation. It also provides for just punishment, having regard to the fact that I consider that your mental condition is such that each of the principals enunciated in the case of Verdins have been enlivened. Whilst there is a need for the court to emphasis general and specific deterrence, it has to be appropriately moderated, having regard to your psychiatric condition.
59 I have also moderated the terms of the sentence so as to provide for just punishment in all of the circumstances and to provide for you the best opportunity to rehabilitate in the community.
60 The provisions in the Community Correction Order enable you to continue your treatment in the community, where I consider that your treatment options are optimised. You can be reassessed and if required, depot injections can be recommenced.
61 Therefore, in my view, the Community Correction Order in combination with the gaol term offers you the best prospects for rehabilitation and ultimately, provides the best chance for the protection of the community in the future.
62 It is essential that you be properly monitored and supported and encouraged to fulfil the terms of this order. It is understood that you will be required to be taken for review to the Northern Hospital so that a Mental Health Assessment can be undertaken. Your situation will be monitored by those responsible for the management of the Community Correction Order whilst you are in that facility. If it is not possible for the Community Corrections Order to be undertaken, then this matter will be returned to this court in a timely and expeditious manner so that further orders can be made.
63 In his submissions, Mr Trotman indicated that the Crown position was that he had agreed that a combination sentence was within range.
64 In making the appropriate order I have also had regard to the report I received this morning from Janice Cheslin, Mental Health Court Liaison Service, Registered Psychiatric Nurse, employed through Forensicare, who examined you yesterday and was satisfied that all the criteria in s.29 Mental Health Act2014 applied. She was satisfied that an assessment could not occur in the community to make an inpatient assessment order and therefore she signed her certificate, noting that she based her opinion on high risk of non-compliance to follow up, high risk of IPV and high risk of reoffending as a result of the above. Also she noted that insight is a problem, with only partial compliance of medication, orals only.
65 In all the circumstances, having regard to the need to denunciate your conduct, to provide for appropriate punishment, in accordance with all the relevant sentencing provisions, I consider that a sentence that combines the time spent in custody to date and allowing for an extra day to enable your transfer to a facility, together with a three year Community Correction Order on the terms that I have outlined, is the appropriate sentence and I will announce that formal court order as follows.
66 In respect to the charge of armed robbery, resist emergency worker on duty and unlawful assault with a weapon, you will be convicted and sentenced to 223 days gaol, to be followed by a three year Community Correction Order on the terms that I have announced. That is that you will be the subject of supervision for a period of three years and that you must undergo treatment and assessment, including testing for drug abuse and dependency. You must undergo a mental health assessment and treatment and you must participate in programs or courses that address your offending behaviour, as directed by the regional manager. You must attend for review before this court, for judicial monitoring on 18 October 2017 at 10 am.
67 Your counsel has indicated that you are aware of the mandatory conditions of such an order and in addition to the mandatory conditions you have also agreed to adhere to the special conditions that I have outlined. You understand the effect and conditions of the order and consent to it being made and you also understand the consequences of a breach of such and order.
68 I make the following declaration of presentence detention. I note that you have served 222 days of presentence detention and direct that be entered into the records of the court.
69 I make the disposal order sought.
70 Further, I will make the forensic sample order sought, pursuant to s.464ZF of the Crimes Act 1958, on the basis of the seriousness of the offending and I note that it is not opposed and I consider such an order to be in the public interest.
71 Finally, I make the declaration, pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed a term of imprisonment of four years, to serve two and a half years.
72 The only other thing that I need to do, at this stage, is to just inform you about that order for the taking of forensic sample. I ask that you present to the officer in charge at Preston, given these events occurred at Reservoir, I don't think it's appropriate he goes there.
73 MR VAN ARKADIE: Yes, Your Honour.
74 HER HONOUR: Yes, so you have to go, within 28 days, to Preston police station and present yourself where they'll give you a little cotton bud to pop in your mouth and rub on the side of your cheek.
75 OFFENDER: They already explained it to me.
76 HER HONOUR: Yes, you understand?
77 OFFENDER: Yep.
78 HER HONOUR: And you're happy to do that. If you don't cooperate they can use reasonable force but hopefully that won't be an issue. All right, but I've got to advise you of that. I've signed all those orders and I've signed the Community Correction Order. We've just got to add something to the order. Once you sign the order that will complete the matters today. I think I've covered everything.
79 MR TROTMAN: Yes.
80 HER HONOUR: What we'll do, Mr van Arkadie, is we'll let Corrections know what's happening and has my associate got the contact details for Janice Cheslin? Yes. We’ll contact her as well.
81 MR VAN ARKADIE: And I'll - - -
82 HER HONOUR: And just inform her.
83 MR VAN ARKADIE: I'll also notify now for Mr Cubbins benefit, Ms Kennedy and Ms Price - - -
84 HER HONOUR: Yes.
85 MR VAN ARKADIE: - - - so that - - -
86 HER HONOUR: Thank you for that.
87 MR VAN ARKADIE: - - - one of them will, I imagine, if he's released tomorrow and there's no need for a longer inpatient stay, they will take him to his accommodation.
88 HER HONOUR: All right, so if they're informed that would be appreciated because the worst thing would be if he fails at the first hurdle. Mr Cubbins, hopefully you followed all of that. Tomorrow you'll be in a position, whereby people at the Melbourne Assessment Prison will make the necessary arrangements for your transfer to the hospital.
89 OFFENDER: What time will I leave, Your Honour.
90 HER HONOUR: Sorry?
91 I'm not sure. They'll just have to make the arrangements when you go back today. It'll depend on availability, I would imagine. You'll be taken to the hospital first and depending what they do, you may be admitted or not and then if you're not admitted you'll have to make arrangements to attend at the Community Correction Office in Reservoir. Can I have the address? Do you know where the Community Correction Office is in Reservoir?
92 OFFENDER: Andrew was going to show me where it was.
93 HER HONOUR: All right. On the ground floor, 909, High Street, Reservoir. So perhaps you can direct him.
94 MR VAN ARKADIE: I'll assist him with that, Your Honour.
95 HER HONOUR: Yes.
96
MR TROTMAN: Sorry, Your Honour, may I enquire. In relation to the judicial monitoring hearing, does Your Honour request the attendance of the
Crown - - -
97 HER HONOUR: No.
98 MR TROTMAN: - - - at that particular hearing.
99 HER HONOUR: Not at that, no.
100 MR TROTMAN: Thank you, Your Honour.
101 HER HONOUR: Yes. I will ask that there be notification immediately if there's any issues in relation to the Community Correction Order not being able to be implemented. For instance, if he's made an inpatient.
102 MR VAN ARKADIE: Yes, Your Honour - - -
103 HER HONOUR: Yes.
104 MR VAN ARKADIE: - - - as soon as there's any information that's received by myself or my instructor - - -
105 HER HONOUR: Right.
106 MR VAN ARKADIE: - - - that's of relevance to this proceeding - - -
107 HER HONOUR: Yes.
108 MR VAN ARKADIE: - - - I'll ensure to have your associate contacted.
109 HER HONOUR: Yes, all right.
110 MR VAN ARKADIE: And I'd also notify the Crown.
111 HER HONOUR: All right, that's good. Because everyone's got your best interests at heart, Mr Cubbins.
112 OFFENDER: Yep.
113 HER HONOUR: We'll keep an eye on things for the time being, just to see that you settle back into the community when you go home. But we'll have to watch it carefully, all right.
114 OFFENDER: Okay.
115 HER HONOUR: You're very fortunate, you've got some good people around you.
116 OFFENDER: Jarrod's so great, I've thanked him so much.
117 HER HONOUR: Thank you. And I must say a special thanks to your counsel too, Mr van Arkadie you've done a very good job. These are difficult cases, I think, they slip through the system often but you've made sure that proper attention has been given to the particular circumstances of your client so I appreciate that.
118 MR VAN ARKADIE: Thank you, Your Honour.
119 HER HONOUR: Can you get your client to sign the order for me and then once that's done we'll all be finished, we can all go home. All right, we can adjourn.
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