Director of Public Prosecutions v Forti; Director of Public Prosecutions v Hargreaves
[2018] VCC 938
•21 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTIONCR-17-02305
CR-17-02306
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAX ANTHONY FORTI WESLEY HARGREAVES |
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| JUDGE: | HIS HONOUR JUDGE SMITH |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 6 June 2018 |
| DATE OF SENTENCE: | 21 June 2018 |
| CASE MAY BE CITED AS: | Director of Public Prosecutions v Forti; Director of Public Prosecutions v Hargreaves |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 938 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence - Arson
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Director of Public Prosecutions v SJK & GAS [2002] VSCA 131; Azzopardi v The Queen [2011] VSCA 372; R v Renzella [1999] VSCA 85.
Sentence:Forti: 2 years and 6 months’ imprisonment with a non-parole period of 2 years – Hargreaves: 14 months’ imprisonment and a 3 year community correction order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Sharpley | Office of Public Prosecutions |
| For Accused Forti | Mr B. Lindner | Stary Norton & Halphen |
| For Accused Hargreaves | Ms A. Burt | Valos & Black |
Pages 1 - 18
HIS HONOUR:
1Max Forti, you have pleaded guilty to one count of arson and one count of theft.
2Wesley Hargreaves, you have pleaded guilty to one charge of arson. In addition, Mr Hargreaves, you have pleaded guilty to the offence committing an indictable offence whilst on bail. You have consented to this court sentencing you in relation to that offence.
3The circumstances of your combined offending are as follows. On
29 March 2017, the two of you were passengers in a vehicle driven by one Max Corey. The vehicle stopped at an address in McKenna Street, Bannockburn, and you, Mr Forti, stole a petrol container from a boat parked outside a premises in that street. That conduct constitutes Charge 2 against you, Mr Forti, namely theft; that is a charge brought against you only.4The three of you then proceeded to a premises known as Golden Plains Self Storage facility at 18 Holder Rd in Bannockburn. You arrived there shortly after 4 am. The two of you gained access to the front reception area of those premises, splashed the contents of the petrol container over the benches and the office area and ignited it.
5The fire took hold quickly, causing an explosion in the office area. It spread to the kitchen and storage room and extended into the adjoining storage sheds. The two of you left the scene in the vehicle driven by Mr Corey. That conduct constitutes the offence of arson, being Charge 1 against both of you.
6Damage caused to the storage premises has been assessed at approximately $300,000. Damage and loss relating to the items stored in the storage units has been assessed at approximately $150,000. Fire brigade units arrived at the scene shortly after and extinguished the fire. Forensic analyses indicated that the fire had been deliberately lit.
7On 10 April 2017, Mr Corey was arrested and made some limited admissions relating to the offences. The following day, on 11 April 2017, you,
Mr Hargreaves were arrested and made a "no comment" interview with police. On 3 April 2017, you, Mr Forti, had been arrested and interviewed by police. You denied any involvement in the offences for which you have pleaded.8The maximum penalty for theft is ten years' imprisonment. The maximum penalty for arson is 15 years' imprisonment.
9I will deal with you first, Mr Forti. You are aged 42, which is considerably older than both of Mr Hargreaves and Mr Corey. You were born and raised in the western suburbs of Melbourne. You attended Sunshine High School up to Year 9, leaving school when you were 15 years old. Between the ages of 12 and 19 you worked in your father's bread-making business.
10After that, you purchased a tow truck and moved to Geelong, where you lived with your girlfriend for two years before separating. I was informed that you had run that business successfully from 1994 until 2005. You married in 1997 and have four children aged between 13 and 23.
11In 2005, you sold your tow truck business and purchased a fish and chip shop in Geelong. In 2008, your marriage broke down and you sold that shop as a part of a property settlement with your former wife. You appear to have developed problems with illicit drug use from about that time. You were sentenced to custodial sentences reasonably soon after your separation.
12It appears that you had been addicted to amphetamines from about 2013. From about 2016, you worked purchasing cars from auctions, fixing them up and reselling them. In January 2017, shortly prior to your arrest in relation to these offences, you purchased another tow truck and it was your intention to return to work in the tow truck industry. It remains your intention to work in that capacity again when that becomes possible
13You appear to be in reasonable health, save that you have recently been diagnosed with type 2 diabetes. You met your co-offenders, Mr Hargreaves and Mr Corey in connection with your use of illicit drugs.
14You have a number of prior convictions that have relevance to your sentence, going back to 1992. Just bear with me please. You have a number of convictions relating to dishonesty, including theft of a motor vehicle, handling or receiving stolen goods, fraudulently altering engine ID numbers, possession of suspected stolen goods, possession of counterfeit money, dishonestly receiving stolen goods, dealing with property suspected of being proceeds of crime, dishonestly disposing of stolen goods, and knowingly making a false statement.
15In addition, you have many convictions connected with illicit drugs, including possession, using, trafficking, and these relate to methylamphetamine, cannabis, ecstasy and amphetamines. Further, you have a number of convictions relating to violence, including wilfully damaging property, possessing firearms, unlawful assault, possessing an imitation handgun, possession of a prohibited weapon, and possession of cartridge ammunition.
16You have been in custody for just over 14 months. You have instructed your counsel that you have been drug free during that period and that you are hoping to return to gainful employment with your tow truck in the future. You have support from your family and I was told that your children have visited you whilst you have been in custody.
17Your counsel submitted that if you can maintain a drug free existence, your prospects for rehabilitation are reasonable. This may be so but your lengthy criminal record, much of it involving use of illicit drugs, makes it difficult to be overly optimistic about your prospects of remaining drug fee.
18I accept that you pleaded guilty to these offences but note that this occurred on the day that your trial was due to commence; it was not an early plea. Nevertheless, the plea does have utilitarian benefit, in that witnesses were not required to give evidence at a trial, even though two of them had given evidence at your committal last November. Further, valuable court resources will be saved as a consequence of your plea.
19It was submitted by your counsel that you have shown remorse for your conduct, as demonstrated by your plea. I note from the depositions filed in the matter that the prosecution case against you in relation to these offences was, in my view, a very strong one. I consider it is likely that the strength of the prosecution case, rather than remorse, was responsible for your plea.
20Mr Corey pleaded guilty to the offence of arson and his plea hearing was heard on October 2017. He was 23 at the time of the offending. He was convicted and sentenced to one years' imprisonment, to be followed by a “three year community correction order” with conditions in relation to supervision, assessment and treatment, including testing for drug abuse and participation in offence related programs.
21It is noted that both Mr Corey and Mr Hargreaves are some 20 years younger than you. It is difficult to avoid the conclusion that you would have been the principal in this arson offence. I note that both Mr Corey and Mr Hargreaves also had a significant number of prior convictions. All of you appear to have had a significant background in illicit drug use.
22Your counsel submitted, and I accept, that the theft of the petrol from the power boat was part and parcel of the arson offence and should attract a period of at least partial concurrency. Your counsel also submitted that a term of imprisonment would satisfy the requirements of both general and specific deterrence, together with a non-parole period which should not be a crushing term.
23My investigation into current sentencing practices indicates that circumstances relating to the criminal of arson vary considerably. There are a number of instances at the upper end of severity, involving the deliberate lighting of fires which have resulted in bush fires, often involving major property damage and, in a regrettable number of instances, loss of life. I accept that your offending is at the mid to lower end of the range of gravity for the offence of arson.
24Taking all of the circumstances into account, I have come to the conclusion that for the purposes of which I am to sentence you, as set in s.5(1) of the Sentencing Act, can only be achieved by a sentence that does involve your immediate incarceration.
25I consider that the principle purposes for which I am to sentence you are:
· To punish you to an extent and in a manner which is just in all the circumstances.
· To deter you and other persons from committing offences of further character.
· To manifest the denunciation by the court of the type of conduct engaged in by you.
· Finally, to protect the community from you.
26On the charge of arson, you are convicted and sentenced to imprisonment for a term of two years and six months; this shall be the base sentence. On the charge of theft, you are sentenced to term of imprisonment of three months. I direct that such a term of imprisonment be served concurrently with the base sentence. It follows that the total effective sentence is one of two years' and six months' imprisonment. I direct that you not be eligible for parole until you have served two years of that total effective term. Now, pre-sentence detention,
Mr Sharpley?27MR SHARPLEY: Yes, it is 444 days, Your Honour.
28HIS HONOUR: Yes, thank you.
29MR SHARPLEY: Not including today.
30HIS HONOUR: Mr Lindner?
31MR LINDNER: That is agreed.
32HIS HONOUR: The parties are in agreement that you have served 444 days by way of pre-sentence detention. I order that such a period shall be reckoned as time already served pursuant to this sentence and that this shall be recorded in the records of the court. Pursuant to s.6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty to these offences, I would have sentenced you to a term of three years and six months with a non-parole period of two years and six months. Now what, if any, ancillary orders are sought in respect of Mr Forti?
33MR SHARPLEY: Compensation orders, Your Honour. There are eight of them in total and I think they are there before Your Honour already.
34HIS HONOUR: Yes. Well, they may well be. Well, if they are, they are hiding from me, Mr Sharpley. Mr Norris is denying all knowledge.
35MR SHARPLEY: Yes, Your Honour. Well, they were forwarded to me by email and I was on the understanding they had been forwarded to the court. Similarly, I can indicate the names of the people to whom they are - in whose benefit they are made. But my instructor may have copies.
36HIS HONOUR: Is there a lengthy list of them?
37MR SHARPLEY: There is eight of them, Your Honour, yes.
38HIS HONOUR: I see. Well, perhaps you could read them out. You have seen these proposed ‑ ‑ ‑
39MR LINDNER: Your Honour, I am ashamed to say that I am a bit bereft at the moment, I do not think I have them in hardcopy. If my friend says they were emailed to me, they may well have been.
40HIS HONOUR: Yes, in any case, you have not got them now and you cannot ‑ ‑ ‑
41MR LINDNER: But I have not got them in front of me and I do not think I have - and I have not got instructions from my client in relation to them so I ‑ ‑ ‑
42HIS HONOUR: Well look, I will refer - can I just return to those in a moment?
43MR LINDNER: Yes, Your Honour.
44HIS HONOUR: In the meantime, if your instructor could gather them together and if copies need to be made, we can probably do that here, if not - in any event, I will return to that shortly.
45MR LINDNER: I am grateful.
46HIS HONOUR: There is compensation. Anything else other than the eight ‑ ‑ ‑
47MR SHARPLEY: Nothing else for Mr Forti, Your Honour.
48HIS HONOUR: Yes, I now turn to you, Mr Hargreaves. You are aged 23. At the time of your offending, you were aged 22, the same age as Mr Corey. I was only provided with limited details concerning your background. I was told that you left high school when you were 15 and then attended alternative schooling for Years 10 and 11 at school.
49You then worked as a roof tiler for approximately ten months and later worked with your father, performing rendering work. I was informed by your counsel that you encountered problems with methamphetamine, or ice, from about the age of 18. You were diagnosed as suffering from attention deficit hyperactivity disorder as a child.
50An undated handwritten letter for your mother was tendered on your behalf. She advised that you had had a difficult upbringing, principally because of your father's conduct. She described your father as both mentally abusive and physically controlling.
51I was informed that, from time to time, you were placed in foster care - yes, you were placed in foster care from time to time but, in due course, came home to look after your mother who by then had been diagnosed with breast cancer and who underwent surgery and chemotherapy. I was informed that you intend to live with your mother when you are released from prison. Your sister also lived with her.
52A further reference was tendered from your brother, Tony, who is a self-employed bricklayer. He has stated that when you are released, you would have full-time employment available with him.
53Your counsel submitted that you were a youthful offender. She referred to the 2011 Court of Appeal decision of Azzopardi v The Queen. In that judgment, the Court of Appeal stated that young offenders, being immature, were therefore more prone to ill-considered or rash decisions and they may lack the degree of insight, judgment and self-control that is possessed by an adult. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct, as would an older person.
54Whilst I accept that submission, I also note the judgment of Vincent JA in the Director of Public Prosecutions v SJK & GAS, where he said:
"In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity."
55Your counsel further submitted that courts recognised the potential of young offenders to be redeemed and rehabilitated, and I accept that submission.
56You have obviously had an ongoing problem relating to illicit drug use for a number of years. It is likely that your addiction has been linked to many of your prior convictions. In fact, you have a number or prior convictions that are relevant to my sentencing considerations. These go back to 2014 when you were aged about 19.
57These include convictions for using, cultivating and possessing illicit drugs, convictions involving or relating to violence, namely reckless conduct endangering life, criminal damage, threat to destroy or damage property, making threats to kill, unlawful assaults, recklessly causing injury, possessing a prohibited weapon, theft of a motor vehicle, and resisting an emergency worker on duty. Your problems with illicit drugs appear to be centred on the use of methylamphetamine and cannabis.
58I was informed by your counsel that on the night in question, you did not know or appreciate the plan of your co-accused was to commit arson at the storage facility. I was informed that that plan was not discussed with you, and further, that you played no role in the actual lighting of the fire. Whilst this information was conveyed to me by your counsel, you made no mention of it to police at any time after your arrest. You were invited to participate in a record of interview and elected to make a "no comment" interview.
59The summary provided by the prosecution, which is taken to be admitted by you, puts you inside the storage facility at the time the petrol was spread and ignited. You would have had no misunderstanding, by that stage, I consider, as to what was about to happen.
60You pleaded guilty to this offence. However, as I said in relation to Mr Forti, it must be said that the plea was entered at the last moment on the day your trial was due to have commenced. Nevertheless, it too has utilitarian benefit, as does Mr Forti's. I accept that it is possible that your capacity to exercise proper judgment may have been affected by your use of illicit drugs, although there is no evidence that you were affected by any such drug on the night of your offending.
61Whilst you may not have physically lit the fire at the storage facility, it is clear to me that you were present in the motor vehicle when your co-accused, Mr Forti, stole the tank of petrol earlier that night and you were in the immediate vicinity and inside the storage facility when the petrol was spread and lit. I accept that you were part and parcel of the arson of the premises.
62In all, you have been sentenced to community correction orders in Mach 2014, March 2015, September 2015 and January 2016. Each of those community correction orders were breached by you by commission of further offences. On the most recent of those dates, 29 January 2016, a community correction order was cancelled and you were re-sentenced to prison for a number of offences for a total effective period of four months.
63Nevertheless, I am conscious that a person of your age is unlikely to be assisted in rehabilitation by spending any significant period of time in an adult prison. On the date of your plea arraign, I arranged for you to be assessed by Corrections Victoria for suitability for a further community correction order. I am in possession of a report from Corrections Victoria dated 6 June 2018 indicating that, notwithstanding your prior breaches of such orders, you are assessed as suitable for a further community correction order.
64The author of that report stated that you had been assessed as being suitable, despite your appalling criminal record and your appalling history of compliance with such orders or similar community based orders in the past. It would seem the author has reached her opinion on the basis primarily of your youthful age and further, that you have the support of your mother and brother. The author of the report assessed you as being, what she described as "at medium risk of reoffending."
65I consider that for a person of your age, your convictions are a little short of astounding. It is extremely difficult for me to have confidence that you would comply with the terms of any community correction order to which you were sentenced and it is difficult to have confidence that you will not reoffend in the future.
66The parties are in agreement that on 29 August 2017, you were sentenced by the Magistrates' Court to three months' imprisonment in respect of unrelated offences, which term you served during the period over which you were on remand for the offences for which you are currently before this court. I have taken that period into account when fixing the base sentence in accordance with the principles laid down in R v Renzella.
67Nevertheless, principally because of your age and, hence, the possible prospects of rehabilitation, I have concluded that an appropriate sentence for you is one where you are sentenced to a term of imprisonment of 14 months, to be followed by a three year community correction order. I note that this is similar to the sentence handed down in relation to your co-offender, Mr Corey.
68However, I am only permitted to sentence you to a community correction order if you consent to it. Before enquiring of you if you do consent to such an order, I should, in fairness, tell you what conditions I intend to attach to such an order. Pursuant to s.45 of the Sentencing Act, there are a number of conditions which are mandatory. I will not go through them in full right now but they contain conditions, effectively, that you will follow directions given to you by Corrections Victoria.
69Further, you are not permitted to leave the state of Victoria, so that if you cross the border and leave Victoria, you are in breach of the order. Further, you will be in breach of the order if you fail to adhere to and follow appropriate directions given to you by Corrections Victoria.
70In addition to those mandatory conditions, I impose additional conditions. Firstly, that you be subject to supervision throughout the three year term of the community correction order, pursuant to s.48(E) of the act. That means that you will be required to attend at the Corrections Victoria office whenever you are directed to do so by your case manager who will follow your progress, or lack of, and generally supervise you.
71In addition, you will be subjected to assessment and treatment, including testing for drug use and also you will be required to participate in what are described as offence-related problems. The latter two would largely, one expects, deal with or attempt to deal with your drug or your use of illicit drugs problem.
72I need to know, Mr Hargreaves, if you consent to the community correction order that I have indicated I would impose, and I will give you time to discuss that with your counsel if you would find that preferable. I should tell you also that I am sentencing you to - I intend to sentence you to 14 months' imprisonment. But I believe the parties will be in agreement that you have already served some days by way of pre-sentence detention. I have got 272,
Mr Sharpley.73MR SHARPLEY: That is correct, Your Honour.
74HIS HONOUR: Thank you. Do you agree with that?
75MS RUSSELL: Yes, Your Honour.
76HIS HONOUR: Thank you. You will be taken to have served 272 days of that 14 month term already. Do you wish to speak to your counsel about the prospect of the ‑ ‑ ‑
77MS RUSSELL: I will just briefly, if I may.
78HIS HONOUR: If you would.
79MS RUSSELL: My client does concede and agree to those conditions, Your Honour.
80HIS HONOUR: Yes, thank you.
81MR SHARPLEY: Just one matter, Your Honour, that concerns me.
82HIS HONOUR: Yes.
83MR SHARPLEY: My understanding is that under s.44 of the Sentencing Act, it is a maximum of 12 months if it is associated with a corrections order. It used to be a much longer term was available.
84HIS HONOUR: Just bear with me, Mr Sharpley. I will just get Mr Norris to bring up s.44 of the Sentencing Act, if you would.
85MR SHARPLEY: Yes, Your Honour. It may be that it is a given that nine months has been served already, that that complies with the section. Sub-s.1 seems to indicate that the combination sentence may be imposed only if the sum of all the terms of imprisonment to be served after deduction of any period of custody is one year or less. Well, the effect of Your Honour's order is that Mr Hargreaves has five months to serve, so that may comply with that section.
86HIS HONOUR: I think that is the way I would read it.
87MR SHARPLEY: Yes, Your Honour.
88HIS HONOUR: Do you want to say anything about that, Ms Russell.
89MS RUSSELL: No, Your Honour.
90HIS HONOUR: Thank you. I will not alter that. Now, I will therefore formally sentence you, Mr Hargreaves on the charge of arson to a term of imprisonment of 14 months, and upon your release - I am sorry - and also to a three year community correction order to commence on the date of your release from prison. I should tell you that one of the mandatory terms of the community correction order is that you report to community corrections at level 5, 30A Little Malop Street, Geelong, within two working days of your release, so whatever date that happens to be, within two working days, you must report there. If you are in any doubt as to the date, then you should contact Corrections Victoria upon your release, make sure you are not immediately in breach. If you did not turn up within those two working days, that would be a breach right at the commencement of your corrections order.
91I will formally sentence you to a community correction order commencing upon your release from prison and subject to the mandatory conditions and other conditions to which I have previously referred.
92Now, with regard to the offence of committing an indictable offence whilst on bail for other offending, you are convicted and sentenced to one months' imprisonment to be served cumulatively to the head sentence, so the result of that is it is 14 months plus a month, less the 272 days that you have already served.
93Pursuant to 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty to these charges, I would have sentenced you to a term of imprisonment of 20 months. Now, are there an ancillary orders sought in relation to ‑ ‑ ‑
94MR SHARPLEY: Yes, there is a forensic sample order sought for
Mr Hargreaves, Your Honour.95HIS HONOUR: Yes, I will make that - could you just seek instructions from
Mr Hargreaves to whether he consents to that order?96MS RUSSELL: Yes, Your Honour.
97HIS HONOUR: This is an order that you provide to police a sample.
98MS RUSSELL: Yes, Your Honour, my client understands and consents to the order.
99HIS HONOUR: Thank you. Mr Hargreaves, it is a swab that is taken from the inside of your cheek. As I understand it, it is essentially non-evasive and not painful but I should tell you that notwithstanding your indication of consent today, that if when the taking of the sample is to be made, if you do not consent to it, then police may use reasonable force to take a blood sample from you. Now, if you will just bear with me a moment.
100You will shortly be given a document entitled "Community correction order" to sign, it sets out the terms and conditions and also sets out the address that I advised you of in Little Malop Street where you have to report to in due course.
101Now, would I be right in thinking that that takes care of ancillary matters for
Mr Hargreaves?102MR SHARPLEY: Yes, Your Honour.
103HIS HONOUR: Yes, and that leaves the compensation orders in relation to
Mr Forti.104MR SHARPLEY: The compensation orders, Your Honour has those now?
105HIS HONOUR: Sorry?
106MR SHARPLEY: Does Your Honour have those now?
107HIS HONOUR: Yes, I do.
108MR SHARPLEY: There should be eight of them.
109HIS HONOUR: Well, we will go through them. First is in relation to ‑ ‑ ‑
110MR SHARPLEY: John Cressick, the first on my list. Perhaps if Your Honour gives me the names of the one who have ‑ ‑ ‑
111HIS HONOUR: Yes, it might be easier. I have the first being orders against
Mr Forti and Mr Hargreaves in relation to Emily Jackson.112MR SHARPLEY: Yes.
113HIS HONOUR: In relation to compensation in the sum of $15,000.
114MR SHARPLEY: Yes, Your Honour.
115HIS HONOUR: You need three of each, do you? Is that the ‑ ‑ ‑
116MR SHARPLEY: Yes, I believe so, Your Honour.
117HIS HONOUR: Just bear with me. I have got July Dwyer, it does not sound like a likely Christian name to me but ‑ ‑ ‑
118MR SHARPLEY: Julie, I think that should be, Your Honour; I have J-u-l-i-e.
119HIS HONOUR: Well, let me just alter that; Julie Dwyer.
120MR SHARPLEY: That should also be $15,000.
121HIS HONOUR: $15,000, yes.
122MR SHARPLEY: Yes.
123HIS HONOUR: June Clarke in the sum of $2050.
124MR SHARPLEY: Yes, Your Honour.
125HIS HONOUR: A future reference - your instructing solicitor might know but it would save a lot of time in court if the date could be completed perhaps before we ‑ ‑ ‑
126MR SHARPLEY: Yes, Your Honour.
127HIS HONOUR: ‑ ‑ ‑ proceed.
128MR SHARPLEY: I will pass that on.
129HIS HONOUR: Shay Clarke, in the sum of $10,290.
130MR SHARPLEY: Yes, yes, Your Honour.
131HIS HONOUR: I note the time. I think I might complete these orders. Now, can I ask counsel, firstly, have you seen the orders and are they the subject of consent or are they the subject of opposition.
132MR LINDNER: I have just been provided with them, Your Honour. I will seek some instructions, if I might.
133HIS HONOUR: Yes.
134MR LINDNER: I have not shown them to my client. I note it is probably the least important thing on them but my surname is spelt incorrectly under the attendance.
135HIS HONOUR: Well, it certainly is spelt incorrectly.
136MR LINDNER: On each of them, it should be ‑ ‑ ‑
137HIS HONOUR: Yes?
138MR LINDNER: But apart from that I will - may I approach my client briefly?
139HIS HONOUR: Well, I might stand the matter down till an ‑ ‑ ‑
140MR LINDNER: Yes.
141HIS HONOUR: See, you will have time to not only approach your client but probably get yourself a cup of coffee or more. It is just that we have got a part heard jury trial and the jury has been the subject of considerable delay in the last few days. I am not keen to keep them out any longer than we need to.
142MR SHARPLEY: Can I say on the record, Your Honour, just in defence of my instructor, that the orders were emailed on 12 June 20 Mr Lindner and obviously an oversight on his behalf.
143MR LINDNER: I have not criticised them, Your Honour.
144HIS HONOUR: Yes.
145MR LINDNER: I obviously did not pick it up.
146HIS HONOUR: Well, I should also say - no, I do not want to say anything more. Are you planning to rush back to Melbourne ‑ ‑ ‑
147MR LINDNER: Yes, I was.
148HIS HONOUR: ‑ ‑ ‑ when your business had finished here?
149MR LINDNER: Yes, I was.
150HIS HONOUR: Well look, we will try and get this - what I might do is get my associate to fill in all the dates and what not, it just requires signatures.
151MR LINDNER: Yes.
152HIS HONOUR: I will give you the opportunity of telling me, both of you, if they are the subject of dispute or otherwise.
153MR LINDNER: If it is by consent from my client's point of view, may I be excused at that point, Your Honour.
154HIS HONOUR: Yes, I can indicate to you that if they are not disputed, then I will make the orders at some stage during the course of the day in that form.
155MR LINDNER: If Your Honour pleases, thank you. And could I be excused in that context?
156HIS HONOUR: Yes, you may be.
157MR LINDNER: Thank you so much.
158HIS HONOUR: Likewise for you, Ms Russell.
159MS RUSSELL: Thank you.
160HIS HONOUR: Thank you. You are excused from the Bar table.
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