Director of Public Prosecutions v Egel
[2022] VCC 645
•11 May 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00460
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL EGEL |
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JUDGE: | HER HONOUR JUDGE BLAIR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 April 2022 |
DATE OF SENTENCE: | 11 May 2022 |
CASE MAY BE CITED AS: | DPP v Egel |
MEDIUM NEUTRAL CITATION: | [2022] VCC 645 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence; Culpable Driving Causing Death; Possession of a Drug of Dependence; Possess Proceeds of Crime; Methylamphetamine; Driving Whilst Drug Affected; Standard Sentencing; Drug Addiction; Bugmy; Moral Culpability; Physical Ill-Health; Rehabilitation; Plea of Guilty; Genuine Remorse; Standard Sentence
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Brown v R [2019] 59 VR 462; DPP v Lim [2018] VCC 2166; Bugmy v The Queen [2013] 249 CLR 571; R v Verdins & Ors [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169
Sentence: 7 years and 9 months Imprisonment with a 4 year and 9 month Non-parole Period, Cancellation of any Permit or Licence Held, Disqualification from Obtaining a Licence for a 5 year period.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Champion | Office of Public Prosecutions |
For the Accused | Mr B. Nibbs (plea) Ms N. Valos (sentence) | Valos Black & Associates |
HER HONOUR:
1Tragically, on 27 October 2019, 22-year-old Demi Walters died as a result of injuries she sustained in a car crash. Michael Egel, you were the driver of the vehicle, and Ms Walters was your front seat passenger. The collision occurred as a result of your gross negligence and your incapacity to have proper control over the car you were driving. As a result, you were charged with culpable driving causing death.
2On 28 April 2022, you were arraigned on Indictment K13087531, which contained one charge of culpable driving causing death and one charge of possession of a drug of dependence. You also consented to this court hearing one related summary charge of dealing with property suspected of being proceeds of crime. You have pleaded guilty to each of those charges.
3At the outset, I acknowledge that the death of Demi Walters has caused deep and profound grief to her family and all those who knew and loved her, including you. It is my duty to sentence you in accordance with the criminal law. The sentence I impose is not a measure of the worth of Demi Walter’s life nor could it ever be.
Circumstances of offending
4The agreed facts and circumstances of your offending are set out in the prosecution opening, which was tendered as Exhibit 1 on your plea. What follows is a summary of this document.
5On the evening of Wednesday 23 October 2019, you were driving a white Kia Cerato on Marretts Road at Hernes Oak. Marretts Road is a pretty typical country road that has a single lane running each way, separated by painted broken white lines. The road runs in a generally southeast to northwest orientation, with one lane for vehicles to travel in each respective direction. You were travelling in a generally northwest direction. In the car with you was Demi Marie Walters, who was 22 years old.
6At around 8.50 pm that evening, Dean Mills was driving an empty 84-seat Latrobe Valley Bus Lines coach, heading the opposite way. He was travelling from Traralgon back to the depot in Morwell in the southeast-bound lane. Mr Mills noticed your car driving directly towards him, in his lane, with high-beam lights turned on. As the distance between you and Mr Mills lessened, he realised you were not returning the Kia to the correct side of the road, and he applied emergency braking.
7You collided ‘head-on’ with Mr Mills, causing extensive damage to the front of both vehicles. Mr Mills, fortunately, was left uninjured by this incident. Ms Walters, tragically, suffered life-threatening injuries and was taken to the Alfred Hospital. As I have said, tragically, on 27 October 2019, Ms Walters died. A post-mortem examination conducted by Dr Michael Burke concluded that Ms Walters' death was as a result of a head injury she sustained in the collision.
8Mr Egel, you also suffered life-threatening injuries in the course of the collision and were taken to the Royal Melbourne Hospital. The concentration of methylamphetamine in your blood at 12.30 am on 24 October 2019 was within the range of 0.58 and 1.1 milligrams per litre.
9Dr Angela Sungaila, a senior forensic medical officer at the Victorian Institute of Forensic Medicine, was provided with the circumstances of the collision and a copy of both your toxicology report and certificate in regard to the analysis of your blood samples. Her expert opinion is contained in her report dated 10 March 2020 and includes the following[1]:
[1]Report of Dr Angela Sungaila dated 10 March 2020.
(a) Drivers of motor vehicles who are intoxicated with methylamphetamine are more likely to drive erratically, speed and take risks compared to the non-drug-affected state;
(b) Cognitive effects such as disinhibition, alienation of reality, risk-taking, agitation, confusion, psychosis and decreased attention can cause significant impairment in the ability to control a motor vehicle properly;
(c) Methylamphetamine has profound effects on sleep/wake cycles. This is because neurotransmitter interactions are intrinsically bound to sleep/wake cycles. The rebound sleep after use of amphetamines is sudden and irresistible, often referred to as a 'crash';
(d) Impairment may be due to the stimulant effects of the drug or exhaustion at the end of the methylamphetamine 'binge'. The exhaustion or 'crash' has been compared to the effects of sedative drugs. The 'crash' after heavy stimulant use has been considered by some authors to be more of a threat to traffic safety compared to driving after an acute dose;
(e) . A 'crash' can occur in the presence of high blood levels of methylamphetamine. This is in situations where the use of methylamphetamine repeated over a period of time for the purpose of staying awake has so depleted the neurotransmitters responsible for alertness and cognitive functioning that sleep becomes inevitable;
(f) You had a blood methylamphetamine level in the range of 0.58 to 1.1 milligrams per litre. The values in this range represent recreational use of methylamphetamine at an unknown time prior to the collision;
(g) It is possible that the impairment shown by the crash caused by veering onto oncoming traffic was due to the stimulant effects of methylamphetamine or sleep in the withdrawal phase;
(h) It is inconceivable that the effects of such levels of methylamphetamine would be so minimal as to allow you to maintain optimal control of your vehicle;
(i) She was of the opinion that you would not have been able to maintain proper control of your motor vehicle.
10Investigation of the collision site found that Marretts Road is of bitumen construction and in good condition. No mechanical fault could be found to either the Kia Cerato you were driving or the bus operated by Mr Mills. There is no evidence you attempted to brake or change your direction in the moments before collision. Further, you should not have been driving, as you have never obtained a driver licence in any Australian state or territory. Ms Walters was not wearing a seatbelt at the time of the collision.
11Within the car, police found a total of $18,091.40 in cash, a white crystalline substance in plastic bags, a small set of digital scales and two ‘Goliath’ brand Ziploc bags, both of which also contained a white crystalline substance. In total, there was 36.6 grams of white crystalline substance in the car. These findings give rise to summary Charge 5 and to Charge 2 respectively.
Arrest and procedural history
12You were interviewed by detectives from both the Major Collision Investigation Unit and Eastern Region Crime Squad on 29 November 2019 at the Royal Melbourne Hospital. You exercised your right to silence. It is apparent that you have no memory of the events leading up to the collision or of the collision itself.
13You have been in custody since the date of your arrest. This was firstly whilst in hospital when you were transferred to St Vincent’s and from then when you were discharged to Ravenhall Correctional Centre. In total, you have been in custody for 894 days.
Victim Impact
14In this case, I received three victim impact statements from Ms Walter’s mother, Kirsten Marie Cookman-Walters, her father, Dean Walters, and her sister, Kellie Walters. They convey the devastation and complete and utter loss they feel as a result of the death of their beloved daughter and sister.
15Dean Walters describes how Demi was larger than life and at the very centre of his life. Demi's death has had massive impacts on every aspect of his life. He has been unable until recently to sleep at his home and he feels no longer reliable in his business. It is his hope that his statement can make someone stop and reconsider a poor choice and save another person - well, save another person's life but also save another person the utter grief and despair he has and still experiences.
16Kirsten Cookman-Walters describes that the world is a much darker place for everyone without Demi’s light shining bright. Although Demi will live on in her heart and in her memories, she will be forever longing to hold Demi one more time. Ms Cookman-Walters ends by saying that her life changed forever when she lost Demi and that she has changed forever because she has lost herself. She is left with the biggest injury of all: a world of pain and a heart broken forever.
17Kellie Walters says:
For me, seeing so much of Demi in my daughter is bittersweet. It breaks my heart that Demi isn't here to see it, and even more than that, that she won't experience it. She was taken so young, before she found her place and purpose in life, and it breaks my heart every single day. There isn't anything fair about it[2].
[2]Victim Impact Statement of Kellie Walters dated 22 February 2022.
18I take the entire contents of these statements into account when sentencing you.
Objective gravity of offending
19Culpable driving causing death is an inherently serious offence. This is because it involves the loss of life and because it is punishable by a maximum penalty of 20 years' imprisonment. The maximum penalty is a clear indicator of the seriousness with which Parliament and the community views this type of offending.
20In your case, you were driving whilst drug affected. You were driving wholly on the wrong side of the road at night. You had never held a driver's licence. Your passenger was not wearing a seatbelt and she was only 22 years of age.
21At the time of your offending, you were subject to a community correction order imposed for a variety of offences, including two charges of unlicensed driving. I accept that this aggravates your offending.
22In the circumstances, I consider this to be a serious example of the charge of culpable driving.
Standard Sentencing
23The charge of culpable driving causing death is a standard sentence offence. The standard sentence is eight years' imprisonment. Standard sentences are to be taken into account as legislative guideposts in the sentencing process.
24In considering the impact of standard sentencing in your case, I have considered the decision of Brown v R [2019] 59 VR 462[3]. In particular, when sentencing for a standard sentence offence, I must take the standard sentence into account as one of the factors relevant to sentencing. The standard sentence is not to be viewed as a starting point and it does not affect the established instinctive synthesis approach to sentencing. It does not require or permit two-stage sentencing and does not otherwise affect the matters which I may or must take into account in sentencing. Accordingly, I have taken the standard sentence detailed above of eight years into account as one of the factors to consider in my instinctive synthesis of all relevant factors and will reflect this in the sentence I impose.
[3]Brown v R [2019] 59 VR 462.
25Further, so far as consideration of current sentencing practices are concerned, s5B(2)(b)[4] of the Sentencing Act requires a court, when considering current sentencing practices for a standard sentence offence, to only consider sentences previously imposed where the relevant offence was subject to the standard sentencing scheme. In your case, the prosecutor referred to the case of
DPP v Lim [2018] VCC 2166[5] as a comparable case. I have read this case and taken it into account to the extent it is relevant.[4]Sentencing Act 1991 (Vic) s 5B(2)(b).
[5]DPP v Lim [2018] VCC 2166.
Personal circumstances
26It is appropriate at this point to describe your personal history. You are 34 years old and presently remanded in Port Philip Prison.
27Your childhood was one marked by significant deprivation. When you were two years old, your parents separated, and both you and your then four-year-old brother, Bradley, were left in the care of your mother in Adelaide. You describe your mother as having suffered significant psychological issues and as being negligent towards you, rejecting her maternal role. This prompted you to run away from home at the age of seven and to move in with your father. You had no contact with your mother until you were 18 and you only saw her occasionally until you were 25. Your mother never accepted you, and it is almost 10 years since you last had contact.
28Your relationship with your father was also problematic. You were severely and regularly beaten by him for a variety of misdemeanours and lived in fear. Despite this, you idolised your father. Tragically, he died when you were aged 12 years.
29You had nowhere to go and were unwanted by your mother. Consequently, you and Bradley were housed with your paternal aunt, and it was not long before you were kicked out for smoking.
30At the age of 13, you were homeless. You turned to ‘couch surfing’ and left school in Year 10 to support yourself. At age 16, you experienced the significant trauma of discovering a friend with whom you were staying hanging in the shared home. Your response was to attempt suicide yourself.
31Up to this point in your life, you had attended three primary schools and two secondary schools. At your first secondary school, you describe being assaulted without reason on your first day. It was only two months later that your father passed, and you then transferred to a different high school where you ‘tried to become a bully’ to avoid being victimised yourself. You were often beaten by your peers.
32Not surprisingly, you have battled with drug addiction from an early age, firstly alcohol, then cannabis, amphetamine, ecstasy and cocaine and later methylamphetamine. Eventually, you escalated to daily use of methylamphetamine as well as regular use of ecstasy. Drug addiction has clearly fuelled many of your mistakes in life.
33When you were 18 years old, you inherited approximately $60,000 left to you by your father. With this money, you bought a house in Elizabeth and entered what seems to be a period of some stability in your life. You resided with your then partner Stephanie, with whom you sold roller doors. Together you had a daughter, Isabella, who was born deaf and is now 12 years old. Sadly, your relationship with Stephanie came to an end only five months after the birth of your daughter. You were denied contact with Isabella for two years. Financial mismanagement and non-payment of the mortgage meant the bank foreclosed, your home was sold, and you lost everything. You relapsed into drug use and were once again homeless. It was around this time you moved to Melbourne.
34Once in Melbourne, at 25 years of age, a ‘casual encounter’ led you to fathering a second daughter, Harper. You were unaware of her birth for five years. Upon becoming aware, you became involved in Harper’s life. This involvement came to an end violently, as you were assaulted and shot whilst in her presence. You have not had contact with her since. The attack left you with broken teeth, nerve damage in your leg and a five-day hospitalisation.
35Your time in Victoria has not been happy or productive. Most likely as a result of this history I have described, you have a substantial criminal record including prior convictions for numerous driving-related offences, some including dangerous driving. In addition, you have prior convictions for possession of proceeds of crime and handling stolen goods. In 2016, you began engaging in crime again, which ranged from property damage to deception, kidnapping to assaults with weapons. In 2017, you were placed on a drug treatment order. You disengaged from the DTO swiftly, owing to your debilitating drug addiction.
36You have attempted three separate periods of abstinence from drug use. Upon both the birth of, and recommencing contact with, your first daughter, Isabella, you enjoyed a six-month period of sobriety on each of those occasions. When you were 25, you started your own sales company and had a period of 18 months where you were drug free.
37Your relationship with your brother, Bradley, is virtually non-existent. Owing to your lifestyle and abuse of illicit drugs, you have had very limited contact since you relocated to Melbourne. Despite this, Bradley flew to Melbourne whilst you were in a coma because of the collision. You maintain that although he does not approve of you or the lifestyle you maintained prior to the collision, he is someone who would help if ever you called for it.
38Ms Jennifer Temby both attended court and wrote a testimonial on your behalf, and I understand that she is present today via a video link. You enjoy a close relationship with her, and I can see that she is a very important person in your life. I take some comfort that you have a solid connection to such a good woman, who obviously sees the good in you and is very supportive.
Application of Bugmy principles
39Mr Nibbs, on your behalf, submitted that the principles of Bugmy[6] applied in your case and are a significant mitigatory factor that I should take into account. In this regard, he relied upon the psychological report of Sandra Cokorilo dated 23 May 2021, which was tendered on the plea as an exhibit. The case of Bugmy stands for the proposition that profound childhood deprivation is directly relevant to sentencing in and of itself. This is so because it is likely that moral culpability will be reduced for someone whose early years have been marked by such disadvantage. The effects of such hardship do not diminish over time, and full weight must be given to those matters in sentencing. Bugmy principles are relevant to the court’s assessment of moral culpability for the offence itself and also for the court’s consideration of the weight to be given your prior criminal history.
[6]Bugmy v The Queen [2013] 249 CLR 571
40In your case, I accept that your childhood involved significant deprivation as a result of the neglect and abandonment by your mother, exposure to significant family violence at the hand of your father, persistent homelessness in the context of your father’s death at the age of 13 and the significant loss you experienced upon the discovery of your friend’s suicide at age 16.
41Ms Cokorilo, in her report, makes the following relevant findings[7]:
(a) She says, 'There is no doubt that these early adverse and traumatic experiences have impacted negatively on [your] emotional and behavioural outcomes and contributed to the ensuing pattern of instability and maladjustment'. Further, in her view, you 'present with generalised anxiety disorder, recurrent episodes of major depressive disorder and polysubstance abuse'. [77]
(b) 'Adolescents with histories of experiencing maltreatment are at increased risk for developing antisocial behaviours and are at a particularly high risk of early initiation of substance abuse. Indeed, [your] early onset of substance abuse is thought to have developed in the context of [your] severely compromised mental health, as a way of coping with and escaping traumatic stress. [You have] never received psychological treatment to address [your] trauma and maladjustment and [have] had very limited familial and social supports throughout [your] life. It appears that [your] use of substances increased at ties of emotional distress, suggesting a self-medicating function and poor coping mechanisms. Further, [your] chronic self-medication with substances would have reduced your insight into [your] own mental health and limited [your] help-seeking behaviours'. [79]
(c) 'Whilst methamphetamine intoxication caused the impaired driving, [your] early life characterised by instability, rejection and adversity is thought to have predisposed [you] to substance abuse, which serves a self-medicating function for [your] untreated chronically ill mental health'. [80]
[7]Report of Ms Sandra Cokorilo dated 23 May 2021.
42I accept the opinion of Ms Cokorilo that there is both a foundation and a nexus between your experience of significant childhood deprivation and the current offending. As a result, I find that your moral culpability should be somewhat reduced. I also consider that these same factors would have been in operation at the time of your prior matters and, therefore, put your prior convictions in context. It is still my view that there is a place for general and specific deterrence in your case although it is reduced as a result of my findings pursuant to the Bugmy principles.
43Ms Champion, on behalf of the prosecution, did not oppose the submission that the principles in Bugmy were enlivened in your case. However, she submitted that moral culpability should not be eliminated but rather moderated. I accept her submission.
Mental health
44Mr Egel, although undiagnosed at the time, Ms Cokorilo is of the view that you have suffered compromised mental health for many years. She also gives the following opinions:
(a) You currently continue to manifest severe post-traumatic stress disorder, major depressive disorder and generalised anxiety disorder symptomatology [89].
45She says that despite your current participation in psychological counselling, which you deemed helpful, you still continue to suffer those diagnoses. Further, she says:
(b) The unpredictable, volatile and tense prison environment is likely to cause exacerbation of your hyperarousal and anxiety symptoms [89];
(c) From a psychological perspective, you would benefit from continued access to trauma-focused psychological interventions to minimise further deterioration of your mental health [90].
46Further, she says that it is her view that imprisonment will weigh more heavily on you than a person without these conditions.
47It is my view, in light of these findings, that limbs 5 and 6 of Verdins[8] are enlivened, and as such your sentence should be suitably moderated.
[8]R v Verdins & Ors [2007] VSCA 102.
Physical ill health
48The principles in relation to ill health and its impact on sentencing are well established. Poor physical health or disability may be relevant to sentencing where imprisonment will be a greater burden to the person as a result of their health, or where there is a serious risk of imprisonment having a grave effect on the person’s health. If either of these circumstances exist, then the court should mitigate the penalty imposed. The degree of mitigation depends upon the circumstances of the particular case. The greater the burden on the accused person or the greater the likelihood their health will deteriorate, the greater the allowance that should be made by the court.[9] Of course, this does not allow the court to impose an inadequate sentence.
[9]R v Eliasen (1991) 53 A Crim R 391, R v Van Boxtel (2002) 11 VR 258, Smith v The Queen VSCA 208
49In your case, although no specific medical material was filed, it was clear from the prosecution opening that you suffered life-threatening injuries and you were in a coma and hospital for some time as a result of the collision. The neuropsychological report tendered on the plea and marked as an exhibit detailed aspects of your medical situation at p4, including that you were in a wheelchair for some time post collision.
50Your counsel, in his written submission, described your injuries as half your bowel having been removed and your ankles having been fused. You have plates in your hip, a fractured jaw that is misaligned that causes you ongoing problems, and you have difficulties with rods that have been inserted in your arm. I note you have required extensive periods of hospitalisation and rehabilitation and you require ongoing care.
51In these circumstances, given the serious nature of your injuries and the fact that there have been and will be ongoing issues, I accept that imprisonment will be a greater burden for you than someone in good health. I take this into account in mitigation of your sentence. There was no evidence before me that would indicate that your health is likely to deteriorate in custody, and I note that you have been in custody for almost three years, or approaching three years, and your state of health has actually improved somewhat.
Rehabilitation
52I find that your prospects of rehabilitation are somewhat guarded, given the extent of your previous drug addiction and your extensive prior history.
53I do take into account, though, the following factors that give me some hope that you will be able to make some positive changes in the future. The most significant of those is your stated desire to change and the reasons for that. Also:
(a) The support you have from Ms Temby;
(b) The courses you have undertaken in custody, which include: the Ice and Me program; Building Better Relationships; drug education, Know the Score; Check Your Thinking program; Cannabis and Me; Inside Out program; sign language; Certificate III in retail baking; forklift licence; high-touch cleaning; warehousing; IT, maths and English.
54I should also say that there have been clean urine screens which have been tendered, and that is important.
Plea of guilty and remorse
55I accept that your plea of guilty was entered at an early stage albeit post committal. Further, I accept that your plea is an indication of genuine remorse.
56Your remorse is further detailed in the report of Ms Cokorilo, the reference of Ms Temby, your letter to the court and the neuropsychological report.
57There is significant utilitarian benefit in your plea of guilty. You did not unnecessarily prolong proceedings and you have spared the court from what would have been a time-consuming and emotional trial.
58
In addition, I note what the Court of Appeal recently said in the case of
Worboyesv The Queen [2021] VSCA 169 at [39][10], and that is:
'A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation thana similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effect. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any discount, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence'.
[10]Worboyes v The Queen [2021] VSCA 169, 39.
59In these circumstances I propose to allow a significant discount for your plea of guilty.
Harsh conditions in custody
60You have experienced significant and direct consequences for your offending whilst on remand for the last 894 days. You went straight from hospital to custody in circumstances where you had sustained serious injuries, both physical and psychological. I have no doubt that this would have been a very difficult period of time for you. In addition, you are now in custody at a time where custody is more onerous as a result of the COVID-19 pandemic. Quarantine, lockdowns, no visits and limited programs have all been commonplace in the current regime.
Sentencing principles
61I consider that the relevant sentencing principles that must be applied in your case are general and specific deterrence, denunciation and just punishment. I accept that your moral culpability, and therefore general deterrence, should be somewhat moderated as a result of the application of Bugmy[11]. I also take into account the principles of proportionality and parsimony.
[11]Bugmy v The Queen [2013] 249 CLR 571.
Sentence
62So this is the sentence I intend to impose. On Charge 1, of culpable driving causing death, I sentence you to seven years and six months' imprisonment; on Charge 2, possession of a drug of methylamphetamine, I sentence you to 12 months' imprisonment; on the related summary offence of possess proceeds of crime, I sentence you to six months' imprisonment. The sentence on Charge 1 will be the base sentence. Two months of the sentence on Charge 2 will be cumulative and one month of the sentence on the related summary offence will be cumulative, making a total effective sentence of seven years and nine months. I order that you serve a period of four years and nine months before being eligible for parole.
63I declare 894 days of pre-sentence detention as reckoned as time served under my sentence.
64I cancel any permit or licence you hold, which is none, and I disqualify you from obtaining another licence or permit for five years.
65I intend to make the disposal order that is being sought and the forfeiture order that has also been sought. So the disposal order is in relation to the drugs, and the forfeiture order in relation to - sorry, and the forfeiture order in relation to the money and the scales.
66Absent your plea of guilty, I would have sentenced you to 10 and a half years' imprisonment with a non-parole period of seven and a half years.
67My sentence is less than the standard sentence for the offence of culpable driving. by three months. Although I have found this to be a serious example of the offence of culpable driving, I accept that your moral culpability is somewhat moderated by the application of the principles in Bugmy, that custody will be more difficult for you than others in good physical and mental health and the discount for a plea of guilty. And those are the orders that I propose to make. Is there anything further?
68MS VALOS: No, Your Honour.
69MS CHAMPION: Nothing else, Your Honour.
70HER HONOUR: All right, all right. We will adjourn the court.
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