Director of Public Prosecutions v Elkharraz
[2024] VCC 1405
•6 September 2024
At appr
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-02054
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ILYAS ELKHARRAZ |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 August 2024 | |
DATE OF SENTENCE: | 6 September 2024 | |
CASE MAY BE CITED AS: | DPP v Elkharraz | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1405 | |
REASONS FOR SENTENCE
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Subject:Criminal law - sentence
Catchwords: Guilty plea – Recklessly causing serious injury – Affray – Accused part of a group that engaged in violent, public scuffle with the victim – Accused struck victim to head with glass bottle causing significant facial lacerations – application of Verdins – no prior convictions – good prospects of rehabilitation – sentencing considerations of general deterrence, denunciation and public safety
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Winch v The Queen [2010] 27 VR 658; DPP v Russell [2014] 44 VR 471; R v Verdins [2007] VSCA 102; Hasan v The Queen [2010] 31 VR 28; Boulton v The Queen [2014] VSCA 342
Sentence: Nine months’ imprisonment combined with an eighteen-month community correction order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Allan | Office of Public Prosecutions Victoria |
| For the Accused | Ms P. Marcou (for Plea) Ms Z. Garde-Wilson (for Sentence) | Garde Wilson Lawyers |
HER HONOUR:
1Ilyas Elkharraz, you have pleaded guilty to one charge of affray contrary to s 195H of the Crimes Act 1958 (‘the Act’), the maximum penalty for which is five years' imprisonment and one charge of recklessly causing serious injury contrary to s 17 of the Act, the maximum penalty for which is 25 years’ imprisonment.
2You were 25 years old at the time of the offending. You have no prior criminal history.
Circumstances of offending
3On the night of 13 August 2023, you and your friends, co-accused Ziad Dijidi and Fail Ibrahim, aged 19 and 20 respectively, had been at Crown Casino, where you had consumed a considerable amount of alcohol. At approximately 2.10 am, your group travelled to Chapel Street to purchase more alcohol from the 24-hour bottle shop at the Railway Hotel in Windsor.
4While you were in the store, you asked for some ice to place on a small wound to your left cheek, while Mr Dijidi purchased a bottle of Belvedere vodka. The three of you then left the store and proceeded to walk north on Chapel Street.
5At approximately 2.15 am, the 30-year-old victim, Oliver Browning was standing on Chapel Street, Windsor outside a convenience store with his friends, Jana Wussman and Joppe Hellemans. Ms Wussman had purchased a bag of lollies from the store. Mr Browning and his friends were standing on the footpath on Chapel Street discussing where to go from there. Mr Browning tried to order an Uber, but it was taking some time to arrive.
6What occurred next was captured on CCTV footage.
7You, Mr Dijidi and Mr Ibraham walked past the victim's group. The victim and his friends were not known to you.
8As you walked past, you asked Mr Hellemans for some of his lollies, but he refused. You held out your hand in anticipation, but Mr Dijidi grabbed you and ushered you away. The three of you then proceeded to walk away, continuing north on Chapel Street.
9Mr Browning then gave a 'thumbs up' signal to your group, and made a comment directed at you and Mr Dijidi, which caught your attention. The three of you then turned and walked back towards Mr Browning, making comments directed towards him. At this point, Mr Dijidi placed the bottle of vodka on the footpath. Seeing this, you then picked up the bottle.
10The three of you continued to approach and confront Mr Browning, partially surrounding him. Mr Browning had his hands behind his back as he was speaking with you. The conduct giving rise to the charge of affray commences when the three of you begin to push and verbally intimidate the victim. At one point, you thrust the vodka bottle towards Mr Browning and pushed him. Mr Browning tried to defend himself, but in response, you, Mr Dijidi and Mr Ibrahim threw multiple punches at him, as the group of you spilled onto Chapel Street. Taxis travelling along Chapel Street were forced to swerve and then stop to avoid the group of you.
11As the assault continued, Mr Browning tried to defend himself, at one point grabbing your clothing. However, you slipped out of his grip and in the process, your jacket and shirt came off, leaving you topless.
12
Mr Ibrahim and the victim continued to scuffle on the road. At this point you
re-entered the fray, raising the vodka bottle over your head before striking the victim with considerable force to the head. The glass bottle struck the left side of the victim's face, causing the bottle to smash and spray glass and liquid over the road. Your offending caused significant lacerations to the victim's face and right forearm, which I will detail later in my reasons. Your conduct in striking the victim with the glass bottle is the subject of Charge 2 – recklessly causing serious injury.
13At this point, the victim was unaware of the extent of his injuries and gave chase to you as you fled north along Chapel Street. You then turned and ran south along Chapel Street, holding the top of the vodka bottle in your hand. You then threw the top at the victim,[1] which deflected off him, hitting a parked vehicle. This action was also captured on CCTV footage.
[1]An uncharged act.
14The victim continued to pursue you, Mr Dijidi and Mr Ibrahim for a short period, before the three of you ran down James Street, Windsor. Soon after, the victim became aware that he was bleeding profusely from his facial lacerations. One of the victim's friends called Triple zero, as did other onlookers.
15The police arrived at 2.27 am and rendered first aid to the victim until paramedics arrived. I have viewed the photographs taken of the victim by paramedics at that point in time. The photographs depict horrific facial wounds, and a deep laceration to the victim's right forearm.
16The victim was taken to the Alfred Hospital where he underwent plastic and reconstructive surgery, under general anaesthetic. He had suffered extensive lacerations to his left cheek leaving a gaping skin flap and a full thickness laceration to his lower lip, although the lacerations had left the facial nerve intact. He also had an open 4 centimetre laceration to his right forearm, with underlying muscle belly and fat tissue exposed. The wounds were washed out and repaired during surgery, and the victim was discharged from hospital on 15 August 2023.
17Dr Jason Schreiber, a forensic physician with the Victorian Institute of Forensic Medicine examined the injuries sustained by the victim and concluded that although they were not life threatening, without treatment in hospital, the extensive wounds were likely to become infected, which could have had life-threatening implications. Although the lacerations did not directly impact on vital bodily structures, Dr Schreiber noted the sharp trauma injuries had caused skin wounds in direct proximity to the eye. Dr Schreiber concluded that the victim is likely to have significant facial scaring with long-term cosmetic implications. In his opinion, the extensive nature of the victim's injuries are likely to necessitate further surgical management.
18You were arrested on 14 August 2023 and interviewed by police. In accordance with your rights you provided 'no comment' in response to questions asked by the police when you were interviewed.
Nature and gravity of the offence
19I turn now to make some comments about the nature and objective gravity of your offending.
20In pleading guilty to the charge of recklessly causing serious injury, you have accepted that in using force to strike the victim to the head with the glass vodka bottle, you were aware that your conduct would probably cause him serious injury, but continued anyway. You also accept that you acted without lawful justification or excuse, no matter how you may have perceived the situation at the time.
21There are a number of features that aggravate your offending.
22
This was alcohol-fuelled offending, that erupted spontaneously. It involved a
fast-moving, violent, and completely unprovoked attack on the victim, in the early hours of the morning, and on a busy public street.
23It took very little before you and your group pivoted towards violence. The victim and his friends had refused your request for lollies, followed by a perceived slight when the victim motioned towards you and made some comments directed at you. Things then happened very quickly. At this point you picked up the glass vodka bottle, which had been abandoned on the ground. The victim was then surrounded by the three of you and was clearly outnumbered. Together, you and your group began to push the victim before throwing multiple punches at him. You thrust the vodka bottle at him, pushing him. The affray then spilled out onto the road, without any apparent concern for traffic on busy Chapel Street, causing taxis to swerve to evade you and the others. Having viewed the CCTV footage, I accept that bystanders that night might reasonably be expected to have been terrorised witnessing these events. This was more than a minor melee.
24It is your use of the bottle as a weapon to strike the victim with force to the head that is the most serious aspect of your offending. The bottle smashed immediately, causing the glass to shatter, resulting in multiple lacerations to the victim's face and a deep cut to his forearm.
25In the case of Winch v The Queen,[2] the Court of Appeal explained why using a glass bottle to strike a blow to the face is so serious, stating:[3]
…the court’s assessment of the seriousness of a particular instance of recklessly causing serious injury will involve considering both the degree of probability that serious injury will result, and the degree of seriousness of the injury thus foreseen. What makes glassing a serious instance of recklessly causing serious injury - almost by definition - is the obvious dangerousness of a glass or bottle (whether broken or not) when used to strike a blow to the face or head. Hence, the offender who is convicted of this offence of recklessness is to be taken to have foreseen a high probability of serious injury.
[2]Winch v The Queen [2010] 27 VR 658
[3]Winch v The Queen [2010] 27 VR 658, at 665 [36]
26In this case, the risks inherent in using a glass bottle as a weapon to strike another to the head are self-evident, with a correspondingly high probability of serious injury being sustained, that you must have foreseen. Fortunately, notwithstanding the proximity of the lacerations to the victim's eye, he suffered no damage to that eye or to any facial nerve. However, the injuries required plastic surgery to repair multiple wounds, leaving the victim with life-long facial scaring. By your plea, you accept the injuries suffered by the victim are substantial and protracted. The injuries do not however, fall within the most egregious category of being catastrophic or immediately life-threatening.
27
Nonetheless, the physical scaring suffered by the victim is not the only long-term ramification of your offending. As the victim impact statement provided by
Mr Browning attests, your acts on that night have had other enduring consequences. He speaks of being traumatised by your offending, leaving him with recurrent nightmares and flashbacks. He experiences depression and anxiety, with suicidal thoughts. Significantly, he says he no longer feels safe going out, and now avoids people and social events, leaving him feeling isolated. As to his physical injuries, Mr Browning describes the pain he experienced as 'unbearable at times', leaving him with 'physical scars for life'. He says he feels as if he is judged because of the scars on his face, which he finds ugly, leaving him 'incredibly self-conscious' and which 'deeply undermine [his] confidence'[4].
[4] Exhibit C – Victim Impact Statement of Mr Oliver Browning sworn 1 August 2024.
28Mr Elkharraz, you can be in no doubt that your offending has had a profound impact on many facets of the victim's life. You bear a high level of moral culpability for your conduct however, your moral culpability is also informed by your personal circumstances to which I now turn.
Personal circumstances
29You were born in Melbourne in March 1998 and are one of four siblings, and two half-siblings. Your father was a dual Australian and Moroccan citizen. At the age of seven, your family travelled to Morrocco. While there, your parents separated and your mother returned to live in Australia. You remained in Morocco and were raised by your father, paternal aunts and your sister, with only irregular telephone contact with your mother.
30You enjoyed a stable and loving upbringing in Morocco, with a close relationship to your father, siblings and extended family. You completed schooling from Grades 1-9, studying Arabic and French, with English as a second language. You then transferred schools to complete Years 10-12, before the family returned to live in Australia, when you were 19 years old.
31When you returned to live in Melbourne, your brother found employment in the construction industry, and you lived with him for a short period. You then moved to Perth to reconnect with your mother, intending to complete the equivalent of Years 11 and 12 in Western Australia. However, you report that your relationship with your mother was not a close one, and after half a semester, you returned to Melbourne to take up an apprenticeship in building construction.
32In 2019, you and your brother secured apprenticeships with a company, Jaden Commercial Windows, to work as carpenters. Your brother resigned after two weeks, citing bullying as his reason for leaving. However, you remained with your employer in an attempt to complete your apprenticeship.
33In this workplace, you were subjected to repeated acts of bullying; reporting being verbally berated, assaulted, and called racially offensive names. You sustained an injury after a fall in your second year, following which your employer threatened you with dismissal. You report using cocaine, at the urging of your employer, during this period. Your experience of victimisation in the workplace culminated with an incident in December 2020, when your employer directed your co-workers to suspend you from a crane, upside down, with your feet held together by duct tape. You had been stripped of your shirt. You feared the tape would not hold you, and that you would fall headfirst onto the concrete floor. The incident was filmed and placed on social media. I have viewed the footage of this disturbing event provided by your counsel.
34The company was subsequently prosecuted by WorkSafe and was fined $60,000 for workplace bullying.
35Following this incident, you travelled to Morrocco, before returning to the same workplace. However, when you sought time off work to attend TAFE, your employer dismissed you in March 2021.
36You were on WorkCover payments from March 2021 for a number of years and are now in receipt of a job seeker allowance. You received psychological counselling from Dr Michael King for 'traumatising physical and mental abuse in the workplace leading to a status of significant mental fragility'. In Dr King's brief report dated 16 May 2024[5], he states that the consequences of this trauma led to a 'range of dysfunctional decision-making, including alcohol abuse, thoughts of self-harm and the like'.
[5] Exhibit 2 – Dr King’s report dated 16 May 2024.
37Then, on 25 July 2021, you made a report to police that you had been the victim of an assault by unknown males the day prior, during which you were kicked, punched and stabbed multiple times. Records from the Royal Melbourne Hospital dated 24 July 2021 confirm that you presented with five puncture wounds to your lower back and buttocks, requiring sutures under anaesthetic, before being discharged.
38I return to the impact of these traumatic events on your mental health and their relevance to my sentence later in my reasons.
Matters in mitigation
39On your behalf the following matters were advanced in mitigation of your sentence.
40First and foremost, you entered a guilty plea at the earliest opportunity. In doing so, you saved the court and the community the time and resources associated with a trial. Significantly, by pleading guilty before a contested committal hearing, you saved the victim the trauma often associated by having to relive his experiences when giving evidence in court. There is significant utility in your plea, through which you acknowledge responsibility for your offending. I have given full weight to your early guilty plea in mitigation of sentence.
41In addition to the remorse inherent in your plea, when you were assessed by psychologist, Mr Luke Armstrong for the purposes of the plea on 22 and 23 May 2024, you acknowledged the seriousness of your offending, stating you 'could have killed the victim' and reporting being shocked and upset when you were shown photographs depicting the victim's injuries.[6]
[6] Exhibit 1 – Psychological Report of Mr Luke Armstrong dated 10 August 2024.
42Secondly, you have no prior criminal convictions, and are to be sentenced as a person of otherwise good character.
43Thirdly, at the age of 25 you are still a relatively youthful offender. The law recognises that youthful offenders are more prone to rash, ill-considered decisions and that the youth of an offender, particularly a first time offender, should be a primary consideration for a sentencing judge where it properly arises. In the case of youthful offenders, rehabilitation is usually far more important than general deterrence; recognising that the rehabilitation of youthful offenders benefits the community as well as the offender. The law also requires the court to balance the youth of the offender against other factors, including the seriousness of the offence. In sentencing you, I am mindful that this is a serious example of the offence of recklessly causing serious injury.
44Fourthly, in his report, Mr Armstrong concludes that you meet the diagnostic criteria for a Post Traumatic Stress Disorder ('PTSD') arising from your experiences of workplace bullying, which he states was 'most probably further aggravated' following the alleged assault in July 2021. You told Mr Armstrong that in the months following this assault, you began gambling, your use of cocaine also escalated to every second day, up to 2 grams, and you began to isolate yourself from family and friends.
45You commenced psychological treatment in 2022, despite which suicidal thoughts remained. You report making a suicide attempt, where you were found unresponsive having overdosed on MDMA, in 2023.
46In the lead up to your offending on 13 August 2023, you told Mr Armstrong that you had been at Crown Casino with your friends that night, where you had consumed 'at least five standard drinks' before leaving. You said that you had 'shared and/or "skulled" a further 750 mil bottle of vodka’ before going to the bottle shop on Chapel Street to purchase another bottle of vodka.
47As to the offending, you told Mr Armstrong that the reason you picked the vodka bottle up off the ground, was because you were concerned it may be stolen. You said that when the victim had his hands behind his back, you feared he had a knife and, at the point you pushed him away with the vodka bottle, you believed you may be stabbed, describing feelings of intense fear at that time, and flashbacks to your own experience of assault. You told Mr Armstrong that you feared being overpowered by the victim at the time you struck him with the glass bottle, particularly at the point the victim grabbed at your clothing leaving you shirtless.
48In Mr Armstrong's opinion, you were 'battling PTSD, anxiety and depression at the time of the offending'. He states that the 'victim probably, inadvertently triggered a disproportionate level of fear in [you], secondary to [your] PTSD disorder'. He further states that your previous traumatic experiences left you prone to hypervigilance, which in turn, triggered a 'distorted, disproportionate belief that [you] would be seriously harmed'.
49Mr Armstrong explains that disproportionate thinking is a feature of PTSD, commonly leading to irrational thinking and 'potentially volatile' behaviour. He concludes that 'these mental state features were most probably a feature which preceded his decision to push his victim away initially with the bottle, and were present in the moments before he struck the victim with the bottle'.
50On your behalf, it is submitted that the opinions expressed by Mr Armstrong enliven the principles enunciated in the decision of Verdins[7] to reduce your moral culpability for your offending, and correspondingly, the weight that ought to attach to the sentencing principles of general deterrence and denunciation.
[7] R v Verdins [2007] VSCA 102
51The difficulty with this submission is in discerning the extent to which your disinhibited, volatile response was realistically connected to your underlying PTSD or was otherwise affected by your level of intoxication. You had consumed a significant amount of alcohol in the hours preceding these events and there is no dispute that you were drunk at the time.
52I also accept some, but not all of the explanations you provided Mr Armstrong. It is clear from the CCTV footage, that at the time you took possession of the vodka bottle, your group had returned to confront the victim. By the time you struck the victim with the glass bottle, you were well able to see he was unarmed, and was surrounded and outnumbered by you and your co-offenders.
53
I accept that you experienced significant incidents of trauma in the years prior to this event, resulting in a diagnosis of PTSD. You had sought treatment well prior to this incident from Dr King, who notes your 'mental health fragility' and consequent increase in alcohol abuse, in addition to other dysfunctional
decision-making, prior to your offending.
54Mr Armstrong refers to your intoxication, noting you did not report being so intoxicated so as to have lost perspective, but says you did tell him you were drunk at the time. Intoxication itself is never a mitigating circumstance, unless it can be shown that the offending conduct was wholly out of character because the person could not have anticipated the effect of alcohol on them.[8]
[8]Hasan v The Queen [2010] 31 VR 28, at 33 [21]
55In my view, it is relevant that you are to be sentenced as a person of otherwise good character with no prior criminal history and no history of violent offending whether intoxicated or otherwise. Dr King's report notes an increase in alcohol abuse arising from a decline in your mental health since the events in 2020/2021. I am satisfied that your underlying PTSD is 'realistically connected' to your impulsive, violent response to the rapidly unfolding events to some extent. However, your offending was not caused by your PTSD. Undoubtedly, your level of intoxication also contributed to a level of disinhibition and contributed to your offending conduct on the night. However, your moral culpability is not as great as an offender with underlying mental health issues who knows from experience that they may act in such a way when intoxicated.
56I have given some weight to limbs 1-4 of the principles in Verdins in reducing your moral culpability for your offending conduct, and in reducing, but not excluding the weight I attach to general deterrence.
57I also consider that you have good prospects of rehabilitation. You have no prior convictions for offences of violence, you have engaged in psychological treatment for your PTSD, and have been assessed by Mr Armstrong as being a low risk of reoffending. You have engaged positively with the CISP bail program whilst on bail. You remain supported by a network of family and friends and are motivated to engage in ongoing psychological treatment.
58I consider that your risk of reoffending will be further reduced if you significantly moderate your consumption of alcohol into the future. I note that you have not consumed alcohol since this offending as a condition of your bail. Given my positive assessment of your future prospects, the need for the sentence I impose to deter you specifically from future offending is correspondingly reduced.
Other sentencing considerations
59Unprovoked acts of violence, committed by young people under the influence of alcohol on public streets, has aptly been described as a 'scourge on society' that can have a devastating impact on the lives of victims,[9] as this case clearly demonstrates. The sentencing principles of general deterrence, denunciation and community safety are considerations of utmost importance. There is a clear need to deter others from engaging in random, late night, street violence.
[9]DPP v Russell [2014] 44 VR 471, at 473.
60It is relevant that the two charges for which you are to be sentenced arise from the one incident. Although the separate criminality of the offence of affray cannot be overlooked, the sentencing principle of totality must be given weight. Because the entire incident happened so quickly, and as part of a single incident, it is appropriate there be substantial concurrency between the sentences I impose. I have been careful to avoid double punishment.
61Ms Marcou, appearing on your behalf, submitted that all relevant sentencing considerations could be adequately met by the imposition of a community correction order. In particular, Ms Marcou argued significant weight should attach to the utility of your early guilty plea, your remorse, youth and the application of Verdins principles in tempering the need for general and specific deterrence. Ms Marcou referred me to the guideline judgement in Boulton[10] in support of her submission, particularly urging some mercy in the sentencing exercise, noting you are being sentenced for the first time and have no prior history of violent offending.
[10] Boulton v The Queen [2014] VSCA 342
62The prosecution submissions acknowledge the various matters that operate in mitigation of your sentence, in particular the benefit of your guilty plea, your youth (albeit at the outer reaches for a youthful offender), the likely burden of your imprisonment, absence of priors and good future prospects. However, the prosecution submissions highlighted the 'objectively high seriousness' of the offending and the corresponding role to be played by general deterrence. In the submission of the prosecution either an immediate term of imprisonment with a non-parole fixed or a combination sentence of imprisonment and a community correction order would be within range.
63I have considered these submissions carefully, and reviewed the cases to which I was referred by both counsel, including the sentencing statistics for the offence of recklessly causing serious injury provided by your counsel. As always, current sentencing practices are no more than a guide, and each case must be determined having regard to its own facts and circumstances, including matters personal to the accused.
64Having regard to the objective gravity of the offending, most specifically the circumstances giving rise to the offence of recklessly causing serious injury, I am not satisfied that anything less than an immediate term of imprisonment would be justified here. However, I consider that a sentence of imprisonment combined with a community correction order is appropriate to give effect to all sentencing considerations, including the matters in mitigation of sentence and providing a focus on your future rehabilitation with treatment directed to your mental health, drug issues and alcohol use.
65You have been assessed as suitable for a community correction order and consented to one being made.
66
Finally, I am conscious that a term of imprisonment will be difficult for you for a number of reasons. You are a relatively youthful person experiencing custody for the first time. In addition, your diagnosed PTSD will add to the burden of your time in prison. Mr Armstrong considers that the volatile and unpredictable environment in a prison is likely to 'trigger or reactivate' symptoms of PTSD; such as intrusive memories, negative alterations of cognition and mood, and exacerbate alterations in arousal and reactivity. He states that an escalation in these symptoms would likely to worsen your depression and anxiety. The prosecution concedes that
Mr Armstrong's conclusions enliven limbs 5 and 6 of Verdins in further moderating your sentence. I have had regard to the additional burden of your imprisonment arising from your diagnosed PTSD in sentencing you.
Sentence
67Balancing the matters to which I have referred, while guided by the maximum penalty for each offence, I now sentence you as follows.68On Charge 1 – affray, you are convicted and sentenced to four months' imprisonment.
69On Charge 2 – recklessly causing serious injury, you are convicted and sentenced to eight months' imprisonment. This is the base sentence.
70I order that one month of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2. This gives a total effective sentence of nine months' imprisonment. Upon completion of this term of imprisonment, you are sentenced to an 18 month community correction order subject to the following conditions:
(a) That you be subject to supervision;
(b) That you be assessed for drug, alcohol and mental health treatment, and if found suitable, that you engage in all treatment as directed; and
(c) That you be assessed for any other offence-specific programs to reduce your risk of violent offending.
71You should be aware that the community correction order can be breached if you fail to comply with the conditions of the order or further offend by an offence punishable by imprisonment during its operation. Depending upon the nature of the breach, you may be resentenced for this offence as well as being sentenced for breaching the order.
72Pursuant to s 18 of the Sentencing Act 1991, I declare one day of pre-sentence detention as already served under the sentence I have imposed.
73I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to a total of 26 months' imprisonment with a non-parole period of 18 months.
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