Director of Public Prosecutions v Lambert (a pseudonym)
[2024] VCC 353
•22 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHARLES LAMBERT (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2024 | |
DATE OF SENTENCE: | 22 March 2024 | |
CASE MAY BE CITED AS: | DPP v Lambert (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 353 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: producing child abuse material - possession of child abuse material - persistent contravention of a Family Violence Intervention Order - intentionally capture genital anal region - more than 100,000 files -
Legislation Cited: Summary Offences Act 1966 (Vic); Sex Offenders Registration Act 2004 (Vic).
Cases Cited:Bugmy v The Queen [2013] HCA 27.
Sentence: Total effective sentence of 4 years and 6 months imprisonment. Non-parole period of 3 years. Sex offenders registration for life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Mr J. Brancato | Gallant Law |
HIS HONOUR:
1Charles Lambert,[1] you have pleaded guilty to two charges of producing child abuse material, one charge of possession of child abuse material, and one charge of persistent contravention of a Family Violence Intervention Order. The maximum penalties for producing child abuse material and possession of child abuse material are 10 years' imprisonment; and for persistently contravening a Family Violence Intervention Order five years' imprisonment. You have also pleaded guilty to two charges of intentionally capture genital anal region an offence against the Summary Offences Act for which the maximum penalty is two years' imprisonment.
[1] A pseudonym
2The facts of the offences are agreed and are set out in the Prosecution Opening which was tendered as an exhibit on the plea and I sentence you on the basis of that opening which I will summarise.
3In 2015 you started a relationship with Angela Lambert[2] and the two of you married in 2020. You lived together at Waterways with your biological daughter from a previous relationship. Your daughter Darcy Lambert[3] was born in 1998. Angela Lambert’s daughter, Alexa Silva[4] was born in 2009. Alexa lived with you and Ms Lambert half the time and the other half with her father.
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
4At that time, you were working as a disc jockey and a master of ceremonies, mainly hosting and working at weddings. You did this through your company.
The Victims
5There are four direct victims of your offending: your stepdaughter Alexa Silva; a friend of hers Mia Holden[5] born in 2009 who on sleepovers stayed in Alexa’s bedroom; and two friends of your daughter Darcy: Sara Quigley[6] who in 2016 – 2017 was a regular visitor to your address, which at that time was in Elwood and another friend of Darcy’s , Thea Smart[7] who was also a regular visitor around the same time. Alexa and Mia were children at the time off the offending; and Sara and Thea were 18-19 years old.
[5] A pseudonym.
[6] A pseudonym.
[7] A pseudonym.
6The police investigation into your offending was triggered by an incident which occurred between April and June 2022. You were with Alexa in your car. She was using your mobile phone. In the picture gallery recycle bin she saw what appeared to be a thumb nail video of herself in the lounge room. In the clip she was partially undressed. She recognised the clothing in the clip as what she had worn the day before. You snatched the phone away from her. There was no conversation between you about what was on the phone.
7About a month later Alexa mentioned the phone incident to Darcy Lambert who encouraged her to tell her mother. She did so and Angela Lambert contacted Bayside SOCIT on 15 June 2022.
8That day Alexa made a VARE describing what she had seen on the video in the car. Alexa told police that in approximately June-July 2021 she found a smartphone hidden in a box for an electric toothbrush. The box had a hole cut in it and the camera of the phone was facing out of the hole. She pulled the phone out noticing that it was recording. She turned it off.
9Police applied for a Search Warrant which was executed on 16 June 2022. They seized various items including electronic devices belonging to you which involved mobile phones, laptops, a desktop computer, and external hard drives.
10You were placed under arrest for producing child abuse material in relation to Alexa. You made admissions in an interview to the production and possession of a small amount of child abuse material and then you were released pending Summons.
11A Family Violence Safety Notice was served on you with Angela Lambert named as the affected family member and Alexa as a protected child. Angela Lambert was removed at her request when the final order was made but Alexa remained covered by the Order which was due to expire on 17June 2023. On 9 June 2023 the Order was extended, and an Interim Family Violence Order was made which included Angela Lambert and Alexa as the affected family members. A final Family Violence Order was made on 10 July 2023, which was to be in place until 3 July 2028.
Charges 1 and 2
12Police examined a Toshiba external hard drive they had seized. On the hard drive were 266 images and videos of Alexa stemming from 11 separate incidents. There was a further video relating to the victim Mia Holden. At the time of the offending both Alexa and Mia were under the age of 13.
13The incidents relating to Alexa mainly occurred in 2020 and 2021. One incident took place in 2022. The video of Mia was taken on 8 August 2021.
14The videos are described in the prosecution opening. The first video shows her in the backyard and shows her exposed breasts. You can be heard on the video telling her you would fix her top up for her and then grabbing the fabric with one hand whilst continuing to record with the other hand. Other videos show her getting undressed in her bedroom and the bathroom. Some of the videos in the bathroom show Alexa getting out of the shower. There are occasions where you enter whilst she is getting dressed. You are shown zipping up her dress on one of the videos and she is uncomfortable with your behaviour.
15Other videos seem to have been taken with hidden cameras inside the house. The video of Mia shows her with her breasts exposed in Alexa's bedroom. She was 11 years old at that time. You also took stills from the videos and saved them to the external hard drive as well. So that is a summary of Charges 1 and 2. However, I sentence you on the basis of the full descriptions in the prosecution opening.
Charge 3
16A very large amount of child abuse material (CAM) including videos and still images was found on the Toshiba hard drive. The images and videos ranged from the most serious category showing very young children being sexually penetrated by adults to less serious examples of child abuse material involving teenagers posing sexually. Some of the files appear to be homemade photos and videos and others seemed to have been produced by professional studios.
17Most of the children depicted in the CAM were pre-pubescent females.
18There is a chart in the prosecution opening which breaks down the images that were found. Some 70,978 images were of pre-pubescent children, that is under the age of 13. I enquired today as to broadly how many of those involved penetrative behaviour by an adult male and I was told that around 50 per cent of those files involved such acts. The balance, which is 44,436, falls into the category of other illegal content relating to children under the age of 18. I have read and this morning discussed with counsel the statement of the informant, Senior Constable Cara Dalwood, in which she describes having to look at some of the material to categorise it. She describes one video file which showed a baby boy being penetrated by an adult and there were other penetrative videos she looked at as well. furthermore, the chart indicates that the bulk of these files were unique files, which I take to mean they were not duplicate files within the hard drive. Breaking it down a little further, of the child abuse material that related to children under the age of 13, 68,975 of those files were unique images and 1,077 of those files were unique videos.
Summary Offences
19The two summary charges relate to images and videos located also on the Toshiba hard drive. The victims were Sara Quigley and Thea Smart, and they were adults at the time the videos were taken. Nine of the incidents involved Sara Quigley and one involved Thea Smart. All incidents occurred in the bathroom at of your home. All incidents appear to have been recorded on a camera hidden behind a mirror. The victims were not aware they had been recorded.
20The videos largely capture Sara Quigley in the bathroom naked. Her genitals, breasts and buttocks are exposed.
21The video relating to Thea Smart which is Charge 28 is of a similar nature to the videos and images relating to Sara Quigley. Again, you had saved screenshots from the videos to the external hard drive.
Persistent Breach
22In July and August 2023, you breached the Family Violence Intervention Order that was in place. Your daughter, Darcy Lambert, noticed on one of her visits to your house that you had your Google location services linked with Angela Lambert’s devices, revealing her location. You told Darcy that your love for Angela Lambert 'transcends any of your past mistakes'. You told her that you had been using a hire vehicle to drive around and keep Angela Lambert under surveillance. You further contravened the Order on 7 August 2023 by approaching Angela Lambert at a café in Mordialloc; on 9 August 2023 by sending her a text message essentially telling her you loved her; on 10 August 2023 by further text message which simply said you loved her; on 14 August 2023 by leaving a voice mail asking Angela Lambert to call you; by attempting to call her on 22 August 2023 and 23 August 2023; and by emailing her on 25 August 2023.
23You were interviewed for the additional offending on 31 August 2023. The prosecution summary describes you as having made a partial 'no comment' interview.
Procedural History
24The filing hearing in this matter took place on 6 September 2023. That was more than a year after these offences had first come to light and the search warrant had been executed. The matter then proceeded quickly, and you pleaded guilty at a committal mention on 23 November 2023. My understanding is you have been in custody since the second Record of Interview took place on 31 August 2023.
25No doubt the analysis of your devices took a long time. It does not seem to me to be an inordinate period for analysis. However, the fact is you have had to wait for a reasonably lengthy period since you were first interviewed for these matters, knowing you faced a period of imprisonment. So in mitigation I take into account the burden of having these matters over your head for that period. Of course you did reoffend by the persistent breach in July and August 2023.
26Your plea of guilty was indicated an early opportunity. You have spared the court and the prosecution and the police the time and resources involved in running a trial. Perhaps even more significantly, you have spared the victims of your offending the experience of reliving these matters by having to give evidence. The utilitarian value of your plea is substantial. A trial in this matter would have occupied a not inconsiderable period. You also indicated a plea at the tail end of the pandemic trial backlog, so you made a minor contribution to the reduction of that backlog, and I take that into account in assessing the utilitarian value of your guilty plea. Of course, the prosecution case for some of the offending here was pretty much overwhelming given what was located on the Toshiba hard drive, but nonetheless you must be given a discount for your guilty plea.
27I am satisfied you have shown a willingness to facilitate the course of justice and that your plea is indicative of some remorse for your offending.
28In addition to your guilty plea, I have had regard to the contents of the psychological report from Mr Simon Candlish which was tendered, and the letter of apology you wrote.
Victim Impact Statements
29Two Victim Impact Statements were tendered, and both were read aloud by Angela Lambert.
30Your stepdaughter Alexa describes experiencing issues with trusting men including her teachers and even her father. She feels uncomfortable with hugging and kissing and being alone with her father. This is a consequence you caused by your behaviour. She says it will be hard to trust new people.
31Angela Lambert said that your offending had brought back painful memories of her own experiences of abuse as a child. She says you were aware of her history and still chose to commit these offences. That made your crimes seem especially cruel to her. She said the breach of the Intervention Order offending felt obsessive to her, and she was constantly in a heightened state feeling like she was being watched, and she had difficulty sleeping.
32The emotional impact on her of the offending against Alexa has been substantial. Alexa went through panic attacks, was unable to get to school independently and was scared and anxious about sleeping in her own room. There were other emotional impacts on Alexa described by Angela Lambert.
33Ms Lambert has not been able to return to work full-time because she has needed to spend extra time with Alexa. She says that the transition to a single income was also very difficult.
34Your offending has caused her to become socially isolated because some friends cut contact with her after the offending. She also finds it difficult to deal with pity from others and says that what happened looms over any social gathering she goes to. These are all significant matters that I take into account in formulating the sentences in this case.
Seriousness of Offending
35By quantity alone this is obviously a high-end example of a possession of child abuse material. The number of files containing child abuse material you amassed was more than 100,000. This is a very large amount. Over 70,000 of those files involved a real child under the age of 13. A good deal of that material involved penetrative conduct by adult males towards female children in videos and photographs. Some of those children were very young and as I said earlier there is a video of a baby being penetrated. Much of the material on description is entirely repulsive. These are not victimless crimes. Real children were involved in the production of this child abuse material. Children were sexually abused to supply the market and you were part of that market. Because of the prevalence of such offending, the ease of access to such material on the internet as well as the difficulties of detection, general deterrence (which is the need to send a message to like-minded offenders that significant punishment will be the result of such offending) is the primary sentencing consideration. This offending went on over years and your aberrant interest in child abuse material goes back two decades. You must have spent a huge amount of your time accessing this repulsive material and then saving it to your hard drive. My sentence must also send a message to you that if you revert to this type of behaviour and you are again detected the punishment will be substantial.
36Just punishment and denunciation of such offending must also be emphasised. You will be a serious sexual offender for this offence and therefore the Sentencing Act requires me to regard community protection as the most significant sentencing principal. I will return to the application of those provisions.
37Looked at from an overall perspective Charges 1 and 2 of producing child abuse material and the two summary offences involved offending across years that was planned and premediated. You hid cameras and placed them strategically in bathrooms and bedrooms to record children and young women undressing and naked. You invaded the privacy of your stepdaughter and her friend Mia, just children, by recording them undressed; and a few years earlier you had engaged in the same behaviour in respect of your daughter Darcy's friends. You did this for your own gratification. It seems to me this was an extension of your obsession with child abuse material. Alexa and her friend Mia were only 11 -12 years old, which is an aggravating feature in respect of the production of child abuse material charges.
38These offences involved a breach of trust. The breach was particularly acute in respect of your stepdaughter Alexa Silva and of course her mother, your partner Angela Lambert. As Alexa's stepfather it was your responsibility to protect and nurture her, but by your conduct you profoundly breached that responsibility. You also breached the trust of the other victims in this case who were entitled to use your house without being covertly recorded by you.
39Charge 1 which is the offending against Alexa is a rolled-up count relating to 11 different incidents. You also took the time to isolate screen shots and save them to the external hard drive. You did this in relation to Mia Holden, Sara Quigley and Thea Smart as well.
40You did not produce this material for public consumption a factor which would have aggravated the offending but the breach of trust and the premediated, planned nature of your conduct underpin the seriousness of this offending.
41Furthermore, the offending in Charge 1 has had a substantial impact on Alexa and Angela Lambert as evidence by their victim impact statements. Again, for this group of offences general and specific deterrence are significant, as too is just punishment and denunciation of this offending.
42I regard your moral culpability for all these offences as substantial, although reduced to an extent by difficulties in your upbringing to which I will return. The breach of the Family Violence Intervention Order offending was also serious. Your conduct indicates an unwillingness to recognise, or an inability to understand, that the relationship with Ms Lambert was over because you had destroyed it by your disgraceful behaviour. You had no regard for the orders of the court breaching the restrictions imposed on you. You offended even after you had been earlier interviewed for the other offending and whist an investigation against you was ongoing. This conduct also had a significant impact on Ms Lambert. This offence also merits a prison sentence.
Personal Circumstances
43You were born in England in November 1964. You are now 59 years old. You are the middle child of three. You have a younger and an older brother who live in New Zealand. You do not speak to them because of a dispute in 2007 relating to the will of your late grandmother.
44Your mother died in 2007 and your father in 2011. When you were growing up, they owned a takeaway food store. Apparently, you worked long hours in the family business.
45On your account, you had a very difficult childhood. You witnessed your father physically assaulting your mother. You were personally assaulted by your father regularly. You left home at the age of 16 when your father gave you an ultimatum to either remain working in the family business or leave. You were then placed in a foster home for two years.
46You told the psychologist who assessed you, Mr Simon Candlish, that you believe your parents were paedophiles. You also say your mother abused you sexually for several years from an early age. You told him you were sexually assaulted by an adolescent when you were in foster care and you were further sexually abused by a male friend of your foster parents.
47You have no positive memories of childhood other than some occasions with your grandparents.
48You completed Year 11 in New Zealand. You found school unpleasant, and you were bullied. Overall, you did not perform well academically which you attribute to working long hours in your parent's business.
49You have worked from a young age. You have been a fruit picker, you have worked in a timber mill, and you had various factory jobs.
50In 1988, in Sydney, you worked in recruitment and customer service. That role led you to leave Sydney for Melbourne in the 1990s.
51In 2005 you turned your hobby as a DJ into a career. You started your own business as an MC and DJ at weddings. You found this work very enjoyable.
52You have had four long-term relationships with adult women. You have three daughters from those relationships. You now have no contact with your former partners or your daughters.
Psychological Report
53A psychological report was tendered from Mr Simon Candlish.
54He diagnosed you as having a persistent depressive disorder with a current major depressive episode. You have exhibited suicidal behaviour, particularly after detection for these offences. The Monash Health documents tendered from August 2023 indicate suicidal ideation.
55Mr Candlish also says you have a generalised anxiety disorder and a mild personality disorder. He says you were likely experiencing depression at the time of your offending which was masked to some extent by your chronic alcohol abuse. He says your depression has created a susceptibility towards alcohol abuse and sexual arousal to cope and your personality impairment has contributed to alienation, exacerbating your low mood.
56Mr Candlish says that without psychological treatment you are likely to continue to experience problems with your self-worth and your lack of social confidence and you are likely to rely on dysfunctional coping strategies such as alcohol abuse. In the risk assessment section of his report, he describes you as having a moderate-low risk for sexual offending in respect of accessing and viewing CAM, and a low risk of taking sexual images of females. You are said to be a low risk for a contact sexual offence against a child. I do not place substantial weight on this risk assessment because as discussed, this morning with Mr Brancato, in my view you minimised to Mr Candlish your involvement with the more serious CAM images involving penetrative conduct by males, telling him that you found such images disgusting. I find this very hard to reconcile with the fact that you had in the order of 30,000-odd such images on your hard drive at the time it was detected by police. It seems to me there is a significant ongoing risk and that you would revert to again accessing and viewing child abuse material, but that risk may well be reduced by appropriate treatment.
57He said this. You may be able to reduce the severity of your symptoms and improve your coping skills and social confidence with sustained involvement in treatment and active attempts to address your personality and mood issues. He says your anxiety and depression and 'chronic suicidality' will impact your ability to cope with the prison environment. You will be vulnerable to deterioration in the context of a lengthy period of incarceration. You are more likely to experience standover behaviour and bullying due to your lack of social confidence. You are anxious and susceptible to greater levels of depression. There is, therefore, an increased risk of suicide.
58Mr Candlish says that your physical and sexual abuse as a child and emotional neglect has left you with strong feelings of defectiveness and has damaged your sense of trust in people and the world around you. Your sexual abuse has severely impacted your sense of self, leaving you vulnerable to depression and anxiety. You were prematurely sexualised which has affected your identity. He says your sexual abuse might have contributed to distorted views about the harm of child sexual abuse and may have contributed to the development of deviant 'sexual scripts' at a vulnerable and impressionable age.
59He says you have coped with your psychological deficits through masturbation and pornography use. In that context you encountered child abuse material, and rather than experience revulsion you became aroused due to your sexualised identity and distorted views. You told Mr Candlish you were viewing and storing child abuse material as far back as 20 years ago for a few years and then you started looking at it again in 2018. You progressed to the offending involving 'known victims' perhaps because of a need for greater stimulation and arousal.
60He says your risk is perpetuated by ongoing issues managing deviant arousal. Further, your risk is perpetuated by chronic self-worth issues, low mood, and social alienation. Your risk would be exacerbated by excessive internet pornography use.
61Based on the psychological evidence, Mr Brancato submitted that that the burden of your prison sentence will be greater than someone without your psychological conditions. It is clear that there is a foundation in the psychological evidence for that submission. The prosecutor, Ms Holmes, took no issue with that submission and I have taken into account principle 5 of Verdins as a mitigating factor in this case. Broadly also your psychological issues, seem to me such that they will increase the weight of this your first prison sentence.
62
Furthermore, based on your account of your childhood years, Mr Brancato submitted that the well-known principles in the case of Bugmy apply to reduce to an extent your moral culpability and the weight to be given to general deterrence.[8] The history you have given about your upbringing is not supported by any other evidence; however, I accept that your upbringing was unsatisfactory and unstable and involved incidents of sexual abuse. On the plea I asked the prosecutor,
Ms Holmes, whether I could act on this material, and she submitted that it was open to me to do so. In those circumstances I accept those formative experiences have left you with personality and psychological deficits that contributed to your descent into this offending. In those circumstances, I have moderated to a degree the assessment of your moral culpability, which is nonetheless substantial, I have also moderated the weight to be given to general deterrence to an extent, but it remains a significant principal in deciding the appropriate sentences in this case.
[8] Bugmy v The Queen [2013] HCA 27.
63In the time you have remanded in custody you have been working and doing what you can through courses to further your rehabilitation. I take into account the letter from Mr Brian Cabo who was your case manager at Hopkins Correctional Centre between October 2023 and January 2024. He regards you as a hardworking, responsible, and reliable person. It is unusual to receive such a letter from a prison officer.
64As to your prospects of rehabilitation, I take into account that you are now nearly 60 years old, and you have no prior convictions of any relevance. Against that, this offending was committed over years and the amount of child abuse material found indicates an obsessive interest in such material. Moreover, you moved from accessing child abuse material to creating it yourself. Your patterns of behaviour in relation to accessing and storing child abuse material and producing such material seem entrenched. Additionally, it is clear you have psychological and personality issues that indicate an ongoing risk for reoffending. Mr Brancato submitted that you have reasonable prospects of rehabilitation. In my view there is need for caution, but I accept that if you can meaningfully access psychological counselling and assistance, when you are released from the prison sentence I must impose, you have reasonable prospects of rehabilitation but I do not discount in particular that there is an ongoing risk of you further accessing child abuse material.
Totality
65The total sentence I impose must be just and proportionate to the overall criminality of the offending; this is the totality principle and to comply with it I have ordered substantial concurrency between the charges in this case.
66However, you have been convicted of three sexual offences and for each of those offences you will be sentenced to a term of imprisonment. You therefore fall to be sentenced as a serious sexual offender on Charge 3. The law requires me to consider protection of the community as the principal sentencing purpose for that offence and the totality principle is modified but not excluded by the statutory presumption of cumulation in relation to offences for which an accused is a serious sexual offender, although in this case Charge 3 will be the base sentence. Your serious offender status in respect of Charge 3 will be noted in the court records.
67The non-parole period mitigates punishment in favour of rehabilitation. It must reflect the objective gravity of the offending. It is the minimum period of imprisonment that justice requires to be served. Having regard to the absence of prior convictions, your comparatively advanced age, the fact that this is your first sentence and in my view that you have some reasonable prospects of rehabilitation I have decided to allow for a reasonably significant period of supervision, if you are granted parole at the expiration of the minimum sentence. In my opinion the supervision of parole, if granted, should assist your rehabilitation and act to deter you from further relapsing into like offending. In sentencing you, I have taken into account the need to facilitate your rehabilitation and I have done that through the non-parole period that I have fixed. For this serious offending the sentences that I impose are as follows.
Principles
Sentences
68In relation to Charge 1 – producing child abuse material in respect of Alexa, the sentence I impose is you are convicted and sentenced to 24 months' imprisonment.
69In relation to Charge 2 – production of child abuse material in respect of Mia, you are convicted and sentenced to imprisonment for 6 months.
70In relation to Charge 3 – possession of child abuse material, you are convicted and sentenced to 3 years and 6 months' imprisonment.
71In relation to Charge 4 – persistent breach of the family violence intervention order, 4 months.
72In relation to Summary Charge 20 – relating to Sara which involved multiple videos, 6 months' imprisonment.
73In relation to Summary Charge 28 – 3 months' imprisonment, that is the one video in relation to Thea.
74The base sentence is for Charge 3, 8 months of the sentence on Charge 1, one month of the sentence on Charge 2, one month of the sentence on Charge 4, one month of the sentence on Summary Charge 20, and one month of the sentence on Summary Charge 28 are cumulative on the base sentence and on each other, which makes a total effective sentence of 4 years and 6 months.
75I fix a minimum non-parole period of 3 years.
76I allow pre-sentence detention to be deducted from the sentence that I have imposed of 204 days.
77MS HOLMES: That's correct, Your Honour.
78HIS HONOUR: I will make an order under the Sex Offenders Registration Act for life to multiple class 2 offences, results in a registration period of life. That's correct, isn't it?
79MS HOLMES: Yes, Your Honour.
80HIS HONOUR: Yes. There are forfeiture orders here, isn't there?
81MS HOLMES: Yes, there's a disposal order for the CAM.
82HIS HONOUR: Yes, I will make all those.
83Section 6AAA, but for your plea of guilty, I would have imposed a sentence of 6 years and 4 months with a minimum of 4 years and 2 months.
84Any questions about any of that?
85MR BRANCATO: As Your Honour pleases, no.
86MS HOLMES: As the court pleases.
87HIS HONOUR: No, all right. Yes, all right. That is the sentence that I order in this matter. I will now adjourn, thank you.
88MR BRANCATO: It please Your Honour.
89MS HOLMES: May it please the court.
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