Director of Public Prosecutions v Josevski
[2018] VCC 306
•16 March 2018
jun
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-17-02106
CR-17-02107
Indictment No: H10533580
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Christopher JOSEVSKI |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March 2018 | |
DATE OF SENTENCE: | 16 March 2018 | |
CASE MAY BE CITED AS: | DPP v JOSEVSKI | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 306 | |
REASONS FOR SENTENCE
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Subject: ICI, Common assaults, kidnapping, threat to kill and others
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Kapitaniak | Office of Public Prosecutions |
| For the Accused | Mr Freckelton QC | Armstrong Legal |
:
HIS HONOUR:
1 Christopher Josevski, you have pleaded guilty to 12 charges laid on the indictment that has been filed before me. Those offences include intentionally causing injury, common assaults, criminal damage, kidnapping and threat to kill as well as dishonesty and drug offences. Additionally there are four summary matters relating to property suspected of being proceeds of crime, firearms and ammunition. The maximum penalties have been correctly stated in the opening, and I am not going to restate them again here in my reasons.
2 You were born on 9 June 1992. You are now 25 years of age. You are turning 26 in June of this year. You have a short and not particularly relevant criminal history. There are no matters of violence in that criminal history.
3
This matter was opened to me earlier this week by Ms Kapitaniak, who appeared on behalf of the Director of Public Prosecutions of this State. A written opening, dated 1 March 2018, was tendered on the plea and marked as
Exhibit A. There were also some photographs marked as part of that same exhibit, and additionally, since the plea, as you are aware, some CCTV footage and mobile phone footage has been placed before me. Attempts had in fact been made on the last occasion to play the CCTV footage earlier this week, but the disc apparently was defective and it would not play on the court system. That has now been rectified and it and the mobile phone footage has been played in open court now, and that is now marked as part of Exhibit A. As to the written opening, your counsel Mr Freckelton told me that this was an agreed summary. In those circumstances, I just see no need to descend to the full factual basis as the full factual basis is contained in that agreed summary. It is a lengthy document. I will not go beyond the agreed facts here.
4 This was serious offending against your then girlfriend. You know that. Your counsel described it as unedifying and disgraceful. Well, it was that and much more than that. A nasty enough assault on an undetermined date in November 2016 with a nasal fracture being caused, and that is captured by Charge 1 on the indictment, intentionally causing injury. Then offending on 22 February 2017 and then 23rd February running into the 24th. It was pretty extraordinary stuff. It included a prolonged assault (Charge 5) leading in to the kidnap. There was a threat to kill occurring in the currency of that kidnap. Your conduct involved, as we have seen, pretty extreme violence in a public place, perpetrated against your then girlfriend, dragging her physically by the hair, punching and kneeing her whilst she was on the ground. It was incredible behaviour actually, and the CCTV footage captures only some of it. The summary contains a much fuller description of what you did on this night. Members of the public who observed this were stunned by your behaviour. It is no wonder your conduct has achieved some level of notoriety. The footage is most unpleasant. In any event I am not going to set out the summary in greater detail. It is lengthy and it is agreed.
5 You were arrested on 24 February and then lied about your partner’s whereabouts. She was found at your property and attended to by police. She was taken to the Royal Melbourne Hospital and treated for shock and for her injuries. Now it is agreed that the end point of the kidnap cannot be pinpointed with any precision. The victim ultimately went to sleep in the caravan. On any view though, the kidnap ran from the point of her being dragged to the car just before midnight (see paragraph 58), until at least arrival at your premises in Gordon at around 1.30 am, and I sentence on that basis. Some of the other charges on the indictment and in the summary matters result from the search later that same morning and also on the occasion of the later search upon your being re-arrested on 1 March. Those searches uncovered firearms, ammunition and a motorbike and also a large amount of cash. Your first interview with the police really does you no great credit. Though you did tell police that you were remorseful, you then went on to lie repeatedly about much of your conduct. You told police that it was not a kidnap, that she had been assaulted by others, not by you, that she wanted to be with you and that she was free to go and that you had never assaulted her previously. Whilst there were some admissions mainly to things you probably thought were observable on the footage, it was a fraction of the truth and it happened to coincide with an incomplete version which your victim had provided to the police. She had been too scared to tell the truth and she spoke to the police of having been assaulted by another person, not by you. In your second interview you chose not to comment, which I must say was probably a wiser course, actually. Anyway your conduct in answering as you did, that is not an aggravating feature. I want to make that very plain. Nor am I in any way dealing with you for encouraging or forcing her to provide a false version to the police. She did that as she was scared of you, and you are not charged with attempting to pervert the course of justice and of course I must not sentence you for such a crime.
6 The injuries sustained by your victim are set out in paragraphs 101 through to 103. I am not going to re-state them here now.
Impact.
7 There is no victim impact statement in this matter. It would seem that the physical injuries that she sustained would be of the type that would heal relatively swiftly. Your counsel acknowledged that this is only part of the impact. That your victim would never forget these incidents. It has obviously directly impacted upon her on the days of the offences and, in my judgment, will be remembered by her with dismay for many years.
In Mitigation
8 Mr Freckelton conducted a plea on your behalf and he relied chiefly upon the following mitigatory matters:
· Your early guilty plea;
· The presence of some remorse;
· The fact that this was your first time in custody and it had already been for a sizeable period;
· He spoke of your limited criminal history, your good work record and the presence of family support;
· He relied upon some personal references and course certificates, a letter of apology that you had authored as well as an expert report from a psychologist and he argued that one could have ‘guarded optimism’ as to your prospects of rehabilitation;
9 He made some very brief submissions as to the background to the offending and for whatever reason was wishing to place material before me dealing with the context of the offending. I will return to that shortly. He was conceding the inevitability of individual prison terms, leading to a head sentence requiring the fixing of a non-parole period. He conceded that you would inevitability be required to serve additional time in custody over and above your pre-sentence detention before becoming eligible for consideration for release on parole.
Prosecution
10 Ms Kapitaniak, who appeared on behalf of the Director of Public Prosecutions of this State, made submissions also. She made submissions as to the seriousness of the offending and the importance of general and specific deterrence in a case such as this. She told me of some outstanding matters that you have, though, as you have not determined what course to adopt in relation to those matters, and they are listed on 28 March of this year, I believe that I am obliged to put them aside altogether, which is what I do.
Background
I turn then to your background. I accept what I have been told about your family background and, again, I just see no need to restate it in full here. It does not explain your offending at all.
Briefly, you were born on 9 June 1992. So you are now 25. You had very little contact with your father. You have two half siblings. You were educated to mid-way through Year 11 and apparently you excelled at sport at school. You worked quite consistently from a young age in a variety of occupations as diverse as panel beating, forklift driving and warehouse duties in factories. More recently you worked in your own business as a painter and carpenter. You bought a house in Melton when you were only 20. You sold that property and then bought the property in Gordon. You have an interest in breeding dogs, as I understand it. As an adolescent, you had attention deficit hyperactivity disorder and you had been prescribed with drugs for that condition. Non-prescribed drugs have been problematic for you over a number of years, including cocaine, cannabis and ice, though no submissions have been made nor material placed before me to suggest that you acted under the influence on these particular occasions. As I have said already, there is a brief criminal history and it is of no great relevance to my task. There is after all no past violence offending. There is some dishonesty and property offending and some traffic offences. You have received a community corrections order in the past which evidently you complied with, so it is a very brief history.
You were bailed on 24 February 2017 and that bail was revoked a short time later upon your re-arrest following the more complete statement made by your victim and you have been in custody all up now for some 380 days.
Guilty plea
I turn then to the matters raised in mitigation. Firstly your guilty plea. You have pleaded guilty. Your counsel did not suggest it was at the earliest stage. It was not and the matter settled at the committal in circumstances where the victim had actually attended. Happily, neither she nor any other witness were actually called. So whilst not the earliest of pleas, it is still a guilty plea and at an early stage and I must reward you for your guilty plea and the stage at which that plea was entered. You have facilitated the course of justice. You have taken responsibility for your crime and at that early stage. It follows then that witnesses have been spared the experience of actually giving evidence in a court. The community likewise has been saved the time, the cost and the effort associated with a contested hearing, either up in this court or a committal in the court below, so I take those matters into account in your favour as I am obliged to.
Remorse
15 Your counsel argues that there was remorse here, and he relied upon the personal references, the observations of the psychologist and also your letter of apology. He relied also upon your early guilty plea. Well, ultimately it is a matter for me to determine. It always is for the court to determine. Experts such as the psychologist, well, they are not experts in gauging remorse or making judgments as to whether it is genuine or not, and I have concerns as to those sorts of views being expressed especially where the basis of the opinion is not detailed. As I say, it is actually a matter for the court to determine. Here, for instance, the expert saw you over the weekend just gone. He received from you your account of the tumultuous nature of the relationship, of the various failings of your partner. He, though, was not in possession of your first interview where you posed as a remorseful person whilst continuing to lie repeatedly about your own offending. Nor am I overly impressed by personal references that have been prepared to some extent from a template with a particular and unusual or distinctive spelling error present in four of them. However, that does not then compel me to reject the entire references and I will not. I have also your letter of apology. One could easily enough have doubts as to the genuineness of those words given your earlier false version. It is easy enough to write out the words that you think a court will want to hear and I infer that that letter has been written quite recently and by a man who evidently could look the police in the eye and pretend to be fully remorseful and who yet, at the time, was falsely denying a number of the actual crimes to which you have now pleaded guilty. In addition, in your apology you seem to focus on your conduct on “that day”. Well, your conduct was spread over a number of days with quite separate assaults the subject of Charge 1, 3 and 5 on the indictment. At the end of the day though, I accept that you have had a fair amount of time to think about your conduct and to reflect on it, and to consider what you have done to another person.
16 A guilty plea is also often indicative of there being some remorse and, as I have said, your guilty plea was entered at an early stage.
17 Ultimately I am prepared to find that you do harbour a level of remorse here and I do take that into account in your favour.
Rehabilitation
18 Your counsel argues that you have some decent prospects of rehabilitation into the future. He spoke of this concept of ‘guarded optimism’ and he was basing that on your age, your good work history, the presence of family support and the absence of violence offences in your past, also the absence of any mental health problems that might impede your future progress. Well, it is a bit hard not to be guarded given the extraordinary and callous offending on display here. As I said a moment ago, it did not all occur on one day, so claims as to your acting out of character have to be seen in light of the true context of this offending.
19 You have taken some steps in custody with the courses and certificates spoken of in Exhibit 3. Also it is a lengthy period already that you have been in custody, and that is something of a circuit breaker and no doubt also something of a salutary lesson to you already.
20 You have been arrested, you have been charged and you have been brought before the courts. You pleaded guilty at an early stage and you do exhibit some remorse, so I judge your prospects into the future as being relatively good. My main reason for holding reservations is the nature of this offending and the absence of any features in any way reducing your culpability for this offending. It was quite deliberate, serious, sustained and violent offending and it was violence not occurring in isolation. It was not occurring just on a single day. It also was occurring at an early stage in a relationship. In addition, it would seem that you have had long-term issues with drugs. If you continue to use drugs, of course, you will have almost no prospects of a useful life. It is very difficult sitting up here to meaningfully assess your future risk of offence as it is nigh on impossible to understand why you came to commit these offences. As I say, though, ultimately I judge your prospects as being relatively good.
Expert reports
21 I have already spoken of the report of the psychologist, Mr Grech. It was relied upon principally as demonstrating the absence of matters which might impede your rehabilitation such as the existence of a serious mental illness, that and as containing opinions as to your level of remorse and your prospects into the future. Mr Freckelton made clear that he was not relying upon any of the principles from the case of Verdins v R in this case. That is, there was no reduction of your culpability at all and none of the other principles from that case had application.
General remarks
22
I turn now then to make some general remarks about your offending. This was dreadful offending targeting a woman. That woman was your intimate partner. You told the police she was pregnant. You seemingly told Mr Grech the same thing and only recently. You have provided different instructions to
Mr Freckelton. It is a bit hard to know what to make of that shifting position. I do note, however, that in her third statement she says that she was not pregnant at the time, so I will not sentence you on the basis of her being pregnant at the time of this offending. Nor does it seem to me that I can sentence you on the basis that you believed she was pregnant at the time of the assaults. It is all just too uncertain. Your counsel started to place before me some details of what he said was the toxic nature of the relationship, of the way your victim was perceived by your mother, of what she, the victim, had said and done to you and of issues of claimed lies and infidelity and drug use on her part. If I may say so, this was not the high point of the plea. In fact I queried at the time if the plea had actually started. Even as Mr Freckelton said he was not seeking to justify or excuse your conduct, there was then a silent “but.” It was implied. And what was implied? That you acted in this way but this is what she did. Well, your account to Dr Grech over the weekend had a similar theme. Professed non justification whilst pointing to justifications, excuses or reasons.
23 What context could ever justify or explain or excuse conduct such as yours? There can be no justification or excuse for conduct such as this. I have no doubt the relationship was problematic and maybe it was not all one way. Often enough troubled relationships arise from a combination of facts and circumstances. However, it was a quite new relationship and one obvious reason that it was problematic was that you believed that you could assault your partner at will. I do not know why you thought you could or should do so but you evidently did. You had started to assault her violently within two months of forming this relationship. The setting of the offences demonstrates that you had for whatever reason a sense of power and ownership and entitlement. You were jealous. You were suspicious. You were unhappy that she would deign to spend time with someone other than you. Time with her friends. Well, she was terrified and humiliated in public. Dragging her by the hair, punching to the face, kicking her whilst she was down. It was terrible stuff. The threat was a most serious example of that offence. It was accompanied by actions and words designed to make her fear the worst and she did. She thought you would kill her, and that is hardly surprising, coming as that threat did after an awful physical assault and in the midst of a kidnapping. The second of the common assaults (Charge 5 on the indictment) was a particularly serious instance of that offence. It was sustained conduct committed upon this young woman. You monstered her, as the footage and summary makes plain enough. So too the kidnapping was a serious offence. As to the conduct on the 23rd February running into the 24th, you had very many opportunities to desist, to think about what you were doing and to rethink what you were doing. You chose not to. There was seemingly no reason for your offending targeting this woman other than jealousy, and a heightened need to control and possess. Get it into your head. You do not possess, you do not control others. Conduct yourself in this way and you must expect a very sizeable spell in custody. It is conduct that simply will not be tolerated by the courts in this day and age. In fact it never has been.
24 This was serious offending. I must have regard to the nature and the seriousness of the offence. Now obviously some of these offences are plainly more serious than others. Some involve property damage, to mobile phones. Some involve dishonesty. Some involve drugs of relatively small quantities. Others, though, as you know, involve physical violence or threat. They are far more serious. I must have regard to the maximum penalties. Though the kidnap has the highest maximum penalty here, being 25 years, the common assault the subject of Charge 5 which has only a five year maximum term was a sustained and quite dreadful attack. I judge it to be deserving of the highest sentence imposed here not withstanding that it only has a five year maximum. It is an extremely serious example of such an offence in my judgment.
25 Sentencing always involves the balancing of a number of purposes or principles. I have to take into account your prospects of rehabilitation. I have already commented on those. I think they are actually quite good for the reasons that I have pronounced.
26 I must consider, though, the need for specific deterrence, that is, deterring you from committing crimes in the future. Well, that is a sizeable feature in this sort of case in my judgment. I must deter you from any such offending into the future against intimate partners. You are still a young man and likely there will be future intimate partners. I accept that there is no relevant criminal history, however, this offending itself spells out a disturbing chronology of your having a sense of entitlement, control and a desire to impose violence and dominance. You must be deterred from ever doing this again. Community protection is also a relevant purpose here.
27 General deterrence is a very important sentencing purpose in this style of case.
Domestic and intimate partner violence is a massive issue in our community. We have had a Royal Commission. We have had our Court of Appeal comment often on the need for strong deterrent effect. In passing sentences in these courts we must strive to deter not just the offender before the court but others in the community. Punishment is also, by the way, a very sizeable purpose of sentencing in this case. Your conduct must be strongly denounced. It was, as your counsel suggests, really quite disgraceful. This court must also seek to deter others, others who might be minded to commit this type of serious violence. The courts must send a loud and unequivocal message to those who may think that violence is open in the face of a relationship deteriorating or having issues or even being ended. Women must be protected by the courts. Men, it is not always men but most often it is, men must understand that violent acts committed upon intimate partners out of anger or resentment or rage or punishment, jealousy or resignation, they will simply not be tolerated by the courts.
The courts must make plain to others that such conduct as yours will be dealt with very sternly. It is not conduct that can be tolerated in a civilised society. People must clearly understand that serious violent conduct committed upon a domestic or intimate partner will be met with immediate punishment. That unequivocal message must be sent to would-be perpetrators of domestic violence.
Scarcely a week goes by without some serious act of violence committed in a domestic setting in this State. The courts need to play a role. The courts need to inform would-be perpetrators in the community that there is nothing at all mitigatory to be found in such violence occurring in a domestic or relationship setting. It is not mitigatory at all.
The existence of a relationship will provide no protection to the offender, and the offender will be exposed to the full weight of the law. Let us remove the word “domestic” and call it what it is: violence. Violence committed upon your girlfriend.
Current sentencing practice
28 I pay regard to current sentencing practices, as I must.
29 But each case is very different. Statistics and other cases, well, they are only of very limited value. That is because, of course, each case is so very different. Statistics, for instance, say nothing as to the existence or otherwise of aggravating features. I have to pass an appropriate sentence in your case for your crimes.
30 Now your counsel sensibly was not suggesting that a combination prison/community corrections order-type disposition was open in this case. He conceded that you would need to serve additional time before even becoming eligible for release on parole. He was right to make that concession. It was a sensible one.
31 You will still have a significant period to serve before being eligible for possible release. The Adult Parole Board will be in a strong position to make a judgement at that time. Of course, I cannot assume that you will be paroled or even let that enter my mind. I must proceed on the footing that you will serve every day of the head sentence which I will soon pronounce. That is because, of course, I have no power over the Adult Parole Board and nor am I even permitted to take into account their possible action. That is as a result of s.5(2AA) of the Sentencing Act. They, and only they, will decide if you will be released prior to the end of the head sentence. No doubt that would depend to some extent on your behaviour in custody and the extent to which you attend and complete programs and courses whilst in custody.
Totality
32 There are 12 offences on the indictment. Also the four summary matters. I have to pay regard to the principle of totality. I clearly have to pay regard to the close timing of many of these offences. That demands, in my judgment, a level of concurrency. However, I cannot ignore the existence of separate crimes with separate elements and some even on separate days. What I must do is pass appropriate individual sentences and I pay regard to the principle of totality in moderating the level of cumulation here.
33 However, the reality is this. If you commit a spree of offences such as these, with a number of serious offences of violence committed upon an intimate partner, you cannot have any legitimate expectation of total concurrency as between sentences imposed for differing offences. You must expect a level of cumulation with a sizeable head sentence being achieved in that process. I have looked at the sentence that I am about to impose to guard against the imposition of a crushing outcome and to ensure that it is commensurate with the overall gravity of your crimes and your culpability. Your culpability was high and this was serious offending.
34 Let me deal with the ancillary orders, if I might.
Disposal.
35 Firstly, a disposal order was sought pertaining to the various items in the schedule, which include, amongst other things, the loose cannabis and the cannabis plants.
36 These orders are all unopposed. Indeed, they are consented to, as I understand it.
Forfeiture
37 Pursuant to s.78 of the Confiscation Act, I make the forfeiture order of the property referred to in the schedule to that order that I have signed. I direct that it be held and dealt with in accordance with the directions in the signed order.
38 There is a forfeiture order that pertains to the firearms and the ammunition. Again, it is consented to. I am satisfied it is appropriate to make the order for the reasons set out in the document, and I have signed that order, and I order, pursuant to s.151 of the Firearms Act that the property referred to in that schedule be forfeited to the Minister.
39 Finally, there is a forfeiture order in relation to a mobile phone. Again, it is not opposed. That is sought pursuant to s.33(1) of the Confiscation Act, and I am satisfied that that order is appropriate to be made. I have signed it and the property likewise is forfeited to the Minister.
40 I will have you stand up now, please, Mr Josevski, and I will then pass sentence upon you.
Sentence
On Charge 1, that is, the intentionally causing injury, you are convicted and sentenced to 18 months' imprisonment.
On Charge 2, criminal damage, that was to the mobile phone, you are convicted and sentenced to seven days' imprisonment.
On Charge 3, common assault, you are convicted and sentenced to two months' imprisonment.
On Charge 4, criminal damage, again to a mobile phone, you are convicted and sentenced to seven days' imprisonment.
On Charge 5, the sustained common assault disclosed in the summary and in part captured in the footage shown to the court, you are convicted and sentenced to two and a half years' imprisonment. That will be the base sentence.
On Charge 6, kidnap, I convict and sentence you to two years' imprisonment.
On Charge 7, making a threat to kill, I convict and sentence you to 20 months' imprisonment.
On Charge 8, criminal damage, again to a mobile phone, you are convicted and sentenced to seven days' imprisonment.
On Charge 9, obtaining property by deception, you are convicted and sentenced to seven days' imprisonment.
On Charge 10, cultivation of cannabis, and Charge 11, possession of that same drug, I believe it is open and appropriate to impose an aggregate sentence in relation to those two offences. I convict and fine you the aggregate sum of $1000. I make plain that I treat you as falling into the lesser offence maximums in relation to the three plants and the loose cannabis. The prosecution summary and its treatment of the available maximum penalty suggests that they view the loose cannabis as being a small quantity and that has been confirmed in the discussions that occurred earlier this morning.
On Charge 12, handling stolen goods, being the road bike, you are convicted and sentenced to three months' imprisonment.
Summary matters
On the summary matters, on Charge 6 (possession of a firearm), Charge 27 (possession of a firearm) and Charge 34 (possession of cartridge ammunition), again I believe an aggregate sentence is both open and appropriate in relation to those matters. You are convicted and sentenced to pay an aggregate fine of $1500. On the summary offence Charge 7 (possession of property suspected of being stolen), I convict and fine you $500.
Cumulation
The base sentence, therefore, is the two and a half years imposed on Charge 5. I direct that six months of the sentence imposed on Charge 1, that is, the intentionally causing injury, five months of the sentence imposed on Charge 6, that is, the kidnap, and five months of the sentence imposed on Charge 7, threat to kill, and one month of each of the sentences imposed on Charges 3 (common assault) and 12 (handling) are to be served cumulatively upon the base sentence and upon each other. The other prison sentences that I have imposed will be served concurrently upon these various other sentences, the base sentence and upon each other.
Total effective sentence.
This results in a total effective sentence of 48 months or four years' imprisonment..
Non-parole period.
I fix a non-parole period of two and a half years.
Section 18 pre-sentence detention.
You have already served 380 days by way of pre-sentence detention, and that declaration is to be entered into the records of the court.
Section 6AAA.
41
I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these many offences by a jury, I would have convicted and sentenced you to six and a half years' imprisonment. I would have fixed a
non-parole period of four and a half years, and that statement likewise is to be entered into the records of the court.
42
Just have a seat for a moment, please. All right. So, Ms Kapitaniak and
Mr Freckelton, I have rattled off those various individual sentences. I have dealt with the levels of cumulation. Are you confident that you have recorded the details? I will provide my sentencing remarks in due course, but in terms of the arithmetic, is there any issue in terms of it all or not?
43 MS KAPITANIAK: I have got six months on one, Your Honour, five months on Count 6, five months on Count 7, one month each on three and 12. On my calculations 18 months on top of two and a half is four years.
44 HIS HONOUR: Get us to 48.
45 MS KAPITANIAK: Yes.
46 HIS HONOUR: All right. Are there any other matters then that I need to deal with at all or not?
47 MS KAPITANIAK: No, Your Honour.
48 HIS HONOUR: No. Mr Freckelton?
49 MR FRECKELTON: No, thank you, Your Honour.
50 HIS HONOUR: Thank you very much. Will you go down and see your client downstairs, Mr Freckelton?
51 MR FRECKELTON: Yes, thank you, Your Honour.
52 HIS HONOUR: Yes, all right. Thanks very much for that. All right. That completes the matter then, Mr Josevski. So Mr Josevski can be removed. Thank you.
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