Director of Public Prosecutions v Mustafaa
[2017] VCC 1091
•9 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-02048
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAHMAD MUSTAFAA |
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JUDGE: | HIS HONOUR CHIEF JUDGE KIDD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 July 2017 | |
DATE OF SENTENCE: | 9 August 2017 | |
CASE MAY BE CITED AS: | DPP v Mustafaa | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1091 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sentence.
Catchwords: One charge of Riot – Metropolitan Remand Centre Riot June 2015 – Early plea of guilty – Role in offending – Lower half, but not lowest end - Youthful offender – Limited criminal history - Guarded prospects of rehabilitation.
Legislation Cited: Sentencing Act 1991.
Cases Cited:DPP v Luca [2016] VCC 1573; R v Caird (1970) 54 Cr App Rep 499; R v McCormack & Ors [1981] VR 104; R v Sari [2008] VSCA 137; DeCastres v The Queen [2011] VSCA 377; R v Mills [1998] 4 VR 235; R v Renzella [1997] 2 VR 88; El-Waly v The Queen (2012) 46 VR 656; Postiglione v The Queen (1997) 145 ALR 408.
Sentence: 19 months’ imprisonment, non-parole period of 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G Hayward | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr L Barker | Emma Turnbull Lawyers |
HIS HONOUR:
1
Mahmad Mustafaa, you have pleaded guilty to one charge of riot, which carries a maximum penalty of ten years’ imprisonment. Your offending occurred on
30 June 2015 at the Metropolitan Remand Centre (“MRC”). You were 20, nearing 21 years of age at the time of this offending. You are now 22.
Circumstances of the offending
2 A prosecution opening was tendered on the plea. There was no issue with the facts. It is therefore sufficient for me to provide an overview of the events.
Overview of events
3 I have previously sentenced some of your co-offenders, including Jonathon Luca[1], for their roles in this riot. The prosecution opening as to the overview of the events was in the same terms as that put on their pleas. I adopt the same remarks I made previously regarding the overview of events.
[1]Director of Public Prosecutions v Johnathon Luca [2016] VCC 1573 (‘Luca’).
4 On 30 June 2015 200 to 300 prisoners at the MRC were involved in the largest riot in Victoria’s correctional history. Evidence indicated the protest by prisoners on 30 June was planned with the intent of disrupting the routine of the prison, to force authorities to suspend, amend or reverse the “no smoking” policy.
A total smoking ban was due to commence in Victorian prisons on 1 July. Peaceful protests were held by prisoners at the MRC in the days leading up to the riot.
5 During the riot fences were breached, prison vehicles, including a tractor, were used to cause damage to gates and fences, the Central Movement Control (“CMC”) was stormed twice, the canteen was looted, and multiple accommodation and non-accommodation units were significantly damaged. That damage included the use of makeshift weapons to smash windows, damage equipment and fixtures inside the units, and the lighting of fires both inside and outside the units.
6 It took 15 hours for prison officers, police and fire brigade personnel to restore order to the prison and secure all prisoners. The riot appeared to have been in an acute state for a shorter period of time: from approximately 11.40 am when some prisoners began congregating and chanting for tobacco, through to the late afternoon when the CMC was breached for a second time. It had essentially ceased by 11 pm.
7 Prison officers and public servants were forced to flee the grounds for their own safety. A number of prison officers reported minor physical injuries, including inhalation of chemical agents, which were thrown back at them by prisoners. Other minor injuries occurred during physical clashes with rioting prisoners at the CMC. Some staff reported psychological injuries, such as recurring nightmares and ongoing stress, as a direct result of the threats and fear inflicted by the prisoners.
8 Following the riot a large number of the prisoners had to be relocated to other prison facilities due to large parts of the MRC no longer being operable.
9 As at April 2016 the Department of Justice had incurred $12.1 million worth of costs relating to the riot, of which approximately $6.89 million related to repairs and maintenance of the MRC. In all, some 102 offenders have been charged in relation to the riot.
10 There is evidence that the riot was planned, though I hasten to add that you,
Mr Mustafaa, were not involved in this planning.
Your specific role
11 I now turn to your specific role in the events of 30 June 2015. At the time of the riot you were housed in the Billingham Unit in area 2. You were on remand for two unrelated matters. At the 11.45 am routine muster you and a number of other prisoners from areas 1, 2 and 3 remained in the outdoor yard and refused to return to your cells, in protest to the impending cigarette bans. Prisoners who did not want to participate in any protests had already returned to their cells at this point.
12 Around midday you were loitering in the area 2 yard, standing close to the fence line between area 2 and 3. You walked up and down the fence line. Some of the other prisoners began to kick the fence this fence. You were cheering and clapping your hands. This kicking eventually resulted in a breach of the fence. You swung your arms in an upwards gesture when the fence was breached in an invitation to the prisoners in area 3. Some of these prisoners made their way into area 2. You and another prisoner threw your arms around each other’s shoulders.
13 You and a group of prisoners moved through the damaged fence into area 3 and started walking towards the CMC. You had removed your jumper and draped it over your head with the sleeves tied under your chin. This was in an effort to conceal your identity.
14 You were amongst this group of prisoners when they rushed and breached the CMC gate. You were gesturing for other prisoners to join in rushing the CMC. You eventually entered the CMC after the gate was breached. Once inside the CMC you progressed through to the canteen. Another prisoner had jemmied open a roller door and access was gained to the secure area of the canteen. You were among the prisoners that took some items from the floor of the canteen, including a single can of soft drink. You moved back through the CMC with other prisoners, while drinking from the can of soft drink. Some of the prisoners filtering through to the yard were carrying weapons, wearing prison equipment and were cheering.
15
At 12.43 pm two prisoners smashed the front doors of the Ballan Unit with
a metal pole and opened the automated doors. You were among the stream of prisoners to enter the Ballan Unit. You ran from the foyer area of the unit into Dayroom A. Prisoners around you were taking items and damaging property, including an internal CCTV camera. The internal CCTV camera ceased working.
16 Around 12.47 pm you were near to the entrance of the Ballan Unit. You met an unknown prisoner at the entrance. The prisoner was exiting the unit with a fire extinguisher and another item in his hands. The prisoner gave you the unknown item and you took it and walked back up the footpath in the direction of the Billingham Unit.
17 At approximately 1.37 pm two prisoners forced their way into the Billingham Unit and opened the automated doors. You entered this unit with a stream of other prisoners. You were now wearing your light grey jumper across your mouth and fastened it behind your head. You were also wearing a black glove on your right hand and a black beanie on your head. You walked around the Dayroom A to Dayroom B, while other prisoners damaged property. Eventually, the internal CCTV camera was damaged by a prisoner and ceased working.
18 Around 2 pm you were near a shed at the rear of the Chartwell Unit. A prisoner forced entry to the shed using the tractor. You approached the shed and loitered around the entry, looking inside. You then walked towards the Chartwell Unit and observed the prisoner driving the tractor.
19 At approximately 3.20 pm you had changed your clothing again. You had removed the beanie but now had a white cloth over your mouth. You were in the vicinity of the area 4 basketball courts as other prisoners were doing “donuts” on prison buggies and orange food tugs.
20 About half an hour later you were in front of the Burnside Unit, where numerous fires had been lit in the yard nearby. Prisoners were mulling around in this area, throwing things on to the fire from time to time. You walked through the yard and shook the hands of some prisoners and patted them on the back. You remained in this area for a time near one of the fires.
21 Shortly before 4.30 pm you were with a large group of prisoners in area 3 and outside the Burnside Unit. Along with the group, you slowly advanced on the CMC. You adjusted layers of clothing around your head and face. You were standing in front of the CMC with the group of prisoners as another prisoner rammed the CMC gate with a meal trolley. You clapped your hands while the gate was being rammed and you threw an item onto the CMC roof. You then began to pick up other items off the ground and throw them onto the CMC roof one at a time. The CMC gate was continuing to be rammed.
22 At around 4.30 pm the CMC gate was breached and you and a group of prisoners funnelled into the CMC. You entered the CMC and walked around briefly before quickly retreating with many other prisoners. That concluded your participation in the riot.
23 Subsequently, you were recorded on the ARUNTA prison telephone system discussing the riot with a woman you referred to as “Mum”. You stated that “there was no evidence ‘cause there was nothing I done wrong,” and that “because I had court the next day and didn’t want to be involved.”
24 You declined to be interviewed on 22 September 2015, as was your right. You were at the Malmsbury Juvenile Justice Centre at this time.
Victim Impact Statements
25
I turn to the victim impact statements. The prosecution tendered 14 victim impact statements on the plea. These statements have been made by Corrections officers who were working at the MRC on 30 June 2015. There were a number of common themes arising out the victim impact statements regarding the impact of this event on the officers. Primarily, that the riot had
a significant negative impact on those working on that day. Several have reported difficulties in both their professional and personal lives since the riot. Some have experienced flashbacks, which have disturbed their sleep. The stress has affected their satisfaction at work and has also affected their home life and relationships with their families. Some sustained physical injuries, although it is not put by the prosecution that you were responsible for inflicting any of these injuries directly. It has affected the way that they now interact with the prisoners on a day-to-day basis.
Legal principles
26 I now turn to the relevant legal principles with respect to the offence of riot. In Luca I detailed the relevant legal principles regarding the offence of riot, which emerge from both Victorian and interstate authorities[2]. I repeat those principles here:
[2]R v Caird (1970) 54 Cr App Rep 499, 505-508; R v McCormack & Ors [1981] VR 104, 108-109; R v Sari [2008] VSCA 137 [62]-[65].
·Riot involves an assembly of people intending to assist each other, by force if necessary, in pursuit of a common purpose;
·The offence of riot is a very serious offence. It derives its gravity from the simple fact that the persons concerned were acting in numbers and using those numbers to achieve their purpose. It involves public alarm because it is currently or potentially dangerous. It usually carries with it an inherent danger of injury to persons or property or both;
·The level of violence used, in relation to persons or property and the scale of the violence, are factors relevant to sentence;
·In assessing the culpability of an individual participant, it is wrong to take the acts of the individual participant in isolation. That is because the acts of the individual were not committed in isolation and this is the very fact that constitutes the gravity of the offence. A person who participates in a riot bears some responsibility for the collective damage and harm caused. The sentencing judge should nevertheless take into account the extent to which the offender was to blame for the offence and the part which he had played in the commission of the offence;
·Great weight should be given to the consideration of general deterrence for the offence of riot. The sentences must make it less likely in the future that others will follow in joining in a riot;
·The offence of riot is more serious where the rioters act against law enforcement officers in the execution of their duties;[3]
·The fact that the riot occurred in a prison setting, confirms the importance of general deterrence. Even though the authorities which support the proposition that deterrence assumes particular importance where offending takes place in a prison setting are generally concerned with prisoner upon prisoner assaults, the rationale behind this principle must apply with similar force to a prison riot. The courts cannot permit the law of the jungle to take hold in prisons.[4]
[3]R v McCormack & Ors [1981] VR 104, 109.
[4]De Castres v The Queen; Kent v The Queen [2011] VSCA 377 [1] [10] [26]-[36].
Gravity of the offending and your role
27
I now turn to my assessment of the gravity of the offending and your specific role. I am required to assess the gravity of the overall riot and your contribution to the riot in light of the above principles concerning the offence. I made
a number observations about the overall gravity of this riot in sentencing your co-offender, Luca. I adopt and repeat those observations now.
28 I consider this to be a very serious example of this type of offence. It is hard to make a comparison of riot offences, given there are so few. But the sheer scale of this prison riot makes this riot a very troubling disturbance of a very high order. That is so whether it is measured by the number of participants involved in the rioting group, 200 to 300 prisoners; its duration, many hours over the course of a day; the fact the rioters acted against law enforcement officers or prison officers in the execution of their duties; the breadth of personnel required to restore order to the prison and secure all the prisoners, namely prison, police and fire brigade personnel; the potential danger to which these officers were exposed; the level of harm which this riot generated; the sense of complete anarchy depicted in the CCTV footage; or the breathtaking scale of damage and loss actually caused.
29 While minor physical injuries and psychological harm were caused, thankfully this was not a riot which resulted in serious physical harm or injury. I take this into account but, self-evidently, a prison riot of this scale carried with it a very high degree of risk to the personal safety and security of the prison officers and other public servants involved. It caused significant fear.
30 As conceded by your counsel, the features of this offending warrant significant weight to be attributed to general deterrence.
31 As to your specific role, Mr Mustafaa, I accept that your participation was not pre-meditated and you were not involved in the planning of this riot. You did not physically attack any prison or police officer and you did not physically engage in violence against any person. Your actual contribution towards the collective damage was essentially limited to encouragement. Your period of involvement was from about midday through to approximately 4.30 pm.
32 However, as conceded by your counsel, your participation was substantial. You enthusiastically threw a number of items onto the roof of the CMC during the second breach phase. You were involved in looting the canteen. You sought to conceal your identity. You entered the Ballan and Billingham Units and you were involved in breaching the CMC twice.
33 Significantly, you actively encouraged other prisoners to commit acts throughout the period you were involved in the riot. This is a significant consideration, because it underscores the essence of the offence: weight in numbers.
34 I accept, however, that your role is more limited than Luca, the only co-offender to receive any attention at the plea. While you participated in the riot for a longer period of time than Luca, you were more of a follower than he was. His prosecution of the riot was more vigorous, involving as it did, directly damaging property, carrying a weapon, assisting others to disguise themselves and driving a “tug”.
35 Ultimately, I would characterise your overall participation in the riot as in the lower half, but not at the lowest end of the scale of seriousness.
Criminal history
36 I turn to your criminal history. You do not have long criminal history. You have one prior sentence imposed at the Children’s Court for dishonesty offending in 2013. You received a good behaviour bond without conviction. This has little relevance to my sentencing task. You present to me as a young offender, essentially with a previous good character.
Subsequent matters
37 However, you have a number of subsequent matters. I will briefly outline the chronology of your proven subsequent matters, as they are relevant to my assessment of your prospects of rehabilitation and the weight to be attributed to specific deterrence.
38 You were sentenced by Judge Maidment in the County Court on 17 August 2015 for charges including armed robbery and dishonesty offences to two years' in Youth Detention. [5] You committed those offences before the riot on 31 August 2014 and you were on remand for those offences at the time of the riot. You were released on Youth Parole on 8 February 2016. You remained on parole until your remand in May 2016.
[5]DPP v Elkhodr & Anor [2015] VCC 1106.
39 On 29 May 2016, you committed further offences and were remanded in custody. These offences involved unlawful assault, resist emergency worker on duty and being a prohibited person in possession of a firearm. You were on Youth Parole at the time. You remained in adult custody until you were sentenced to time served of 73 days’ imprisonment on 10 August 2016 at the Broadmeadows Magistrates’ Court. Upon your release, you were subject to the remaining period of your Youth Parole.
40
On 23 September 2016, you were sentenced on several dishonesty offences, including theft of a motor vehicle, being a prohibited person in possession of
a firearm, and possession of methylamphetamine. You were sentenced at the Broadmeadows Magistrates’ Court. These offences were committed in March and April 2016. You were placed on a 12 month Community Corrections Order, (“CCO”) with 120 hours of community work. You were thus on Youth Parole at this time.
41 On 1 April 2017, your Youth Parole Order expired.
42 I have received reports, subsequent to the plea hearing that was conducted, regarding your compliance with your Youth Parole Order and your CCO. Your compliance with these orders has been mixed.
43 In respect of your Youth Parole, you initially demonstrated satisfactory compliance with this Order. You were referred to specialist treatment services prior to your release. However, your level of engagement fluctuated after your initial release and you lacked motivation to engage with support services. After your release in August 2016, there was some improvement in your compliance, but this waned. You engaged with your psychologist, but only attended about half of your scheduled sessions. You received warnings about your compliance, but were not ultimately breached on your Parole.
44 You did not engage at all with the conditions of your CCO, failing to report at your initial meeting and failing to complete the 120 hours of community work ordered.
Failure to appear on this matter
45 Your plea in relation to this riot charge was first listed on 15 March 2017. You failed to attend this court on this date and a warrant was issued. That warrant was executed on 18 July 2017, remanding you to reappear on 28 July for your plea. There is no charge in relation to failing to appear. On the plea, your counsel provided a medical certificate for the period 14 March to 15 March 2017. While your counsel accepted that the medical certificate contained very limited information, he advised that you were suffering from severe gastroenteritis, which is the reason for your failure to appear. At most, your failure to appear might have been relevant to my assessment of your attitude or remorse and to your prospects. I have decided, however, to give you the benefit of the doubt in relation to this matter. I will ignore your failure to appear for the purposes of my sentencing you today.
Personal details
46 I turn to your personal details. As I have already stated, you are now 22 years of age. You continue to have the support of your family and partner. Your mother and partner attended at your plea hearing.
47 You grew up with your mother, step-father and siblings in the family home in Glenroy.
48 You commenced drug use at an early age. At age 14 years, you began using cannabis and by 16 years, you were using methamphetamine. Your history of offending has been related to your drug use.
49 You attended Box Forest Secondary College and completed Year 10. Around that time, your drug use was rampant and you left school. You were able to complete Year 11 while your served your sentence of Youth Detention imposed by Judge Maidment.
50 Immediately prior to your remand on this matter, you were residing with your partner. Your partner remains supportive of you. In May this year, you accessed supported accommodation through a referral to the Youth Support and Advocacy Service (“YSAS”) Wilum Youth Supported Accommodation Program. This is a specialist program that aims to integrate young people with substance use backgrounds into the community.
51 You engaged with YSAS from March this year, when you were referred by your housing worker. A letter tendered on your plea from YSAS outlines your engagement with this service and indicates that you appeared motivated to address your substance abuse issues and make significant changes in your life. I will return to this.
Youth
52 You were 20 years of age at the time of the offending and you are now 22 years of age. Your counsel referred to you youth as one of the “cornerstones” of your plea. Indeed it is. The youthful offender principles apply, moderating the need for general deterrence and emphasising the need to promote your rehabilitation.[6] That said, while your youth remains an important consideration and requires more weight to be given to encouraging rehabilitation than would be the case for an older offender, the nature of this offending means that the importance of youth must give some ground to the consideration of general deterrence. Your counsel accepted as much.
[6]R v Mills [1998] 4 VR 235, 242 (Batt JA).
Plea of guilty and utilitarian benefit
53 Your plea of guilty is an early plea.
54 There is a significant utilitarian benefit to the community for which you receive a discount. It shows a willingness to facilitate the course of justice.
Remorse
55 Your counsel also submitted that your plea of guilty is indicative of remorse and is to be given some real weight in mitigation. The prosecution accept that this is evidence of your remorse, but submitted that there is little other evidence of contrition.
56 I will allow that the entry of the plea of guilty exhibits some evidence of remorse and I take that into account.
Prospects of rehabilitation
57 I turn to your prospects of rehabilitation. There are number of matters which cause me concern about your prospects. You were on remand for charges, including armed robbery at the time of this offending. You committed offences in the three months immediately after your release on Youth Parole and a received a sentence of imprisonment in respect of some of these offences. They are the subsequent matters to which I have made reference. You had limited or mixed engagement with your Youth Parole Order and failed to essentially engage with your CCO.
58 On the other hand, your counsel submitted that there a number matters which weigh in your favour, including your youthfulness and your recent engagement with YSAS and their specialist programs. It is to your credit that you have more recently engaged with YSAS to address your substance abuse issues. Although drug use was not a factor in this offending, your rehabilitation prospects generally will be linked to your ability to manage your drug issues and to remain abstinent. The report from YSAS highlights your motivation to change your lifestyle and you have been assisted in that respect by accessing supported accommodation.
59
However, despite this and despite your age, I am guarded about your prospects. Indeed, your counsel in written submissions filed after the plea hearing, accepted that the best that could be said of you is that you have guarded prospects. It is, however, to your credit that you do not have
a substantial criminal history, like some of your co-offenders and you have not committed further offences since you were released from custody in August 2016. You are still young enough, Mr Mustafaa, to turn your life around. That is a decision for you, that is in your hands.
60 Any sentence I impose must also specifically deter you from re-offending in the future.
Subsequent sentences and totality
61 I turn to the issue of pre-sentence detention. You have served 22 days - is that correct, 22 days?
62 COUNSEL: Yes, Your Honour.
63 HIS HONOUR: Of pre-sentence detention, not including today, in relation to this matter, since your remand on 18 July 2017. And I will, in a moment, declare that as PSD served. However, you have undergone two periods of detention or custody since this riot offence: the two year Youth Detention sentence imposed by Judgment Maidment and the subsequent 73 day custodial sentence. These periods do not constitute pre-trial custody in relation to your riot matter and cannot be formally reckoned.
64 Your counsel submitted that I should take into account that you have lost the benefit of totality, more particularly concurrency, when sentencing you. This submission was primarily directed towards the sentence imposed for the charge of armed robbery by Judge Maidment, namely the two year Youth Detention sentence. I accept this submission. The Renzella principle, or the principle of totality, requires me to take this into account. I must give some consideration to what you would have received had you been sentenced to all of these matters at the same time. I will take it into account in a general way.[7]
[7]R v Renzella [1997] 2 VR 88; El-Waly v The Queen (2012) 46 VR 656 , 673-674 [107] – [114].
Onerous time in custody
65 Further, in the aftermath of the riot, conditions for prisoners were more restrictive with lockdown conditions. You were the subject of these more restrictive conditions for a short period of time after the riot. These conditions included restrictions to movement, lockdown times of up to 23 hours a day, isolating conditions and limited regimes. You were, of course, soon afterwards, transferred on a sentence to a Youth Justice Centre, pursuant to the Youth Justice detention sentence of Judge Maidment.
66 That period of time, in which you experienced the onerous conditions in custody, was served under a different sentence from the one I am about to impose today. It was essentially served under the Judge Maidment sentence. Even though that period of time was served under a different sentence, as I have said above, I will take that period of time served under the Judge Maidment sentence into account in a general way under the principle of totality. I will therefore give some weight to the fact that during some of that time, you were experiencing very difficult custodial conditions.
67
Having said that, for two reasons, the benefit you receive for having served
a period of time in onerous custodial conditions is limited, as was accepted on the plea.
68 First, while I accept that the restrictive conditions during this period have been onerous and I take that into account in mitigation to an extent, any mitigation must be balanced against the fact that in participating in this riot, you contributed to the circumstances that created the restrictive conditions.
69 Second, as you were transferred to Youth Detention on 17 August 2015, by reason of the Judge Maidment sentence, you only experienced these conditions for some six or seven weeks.
Parity
70 Parity is a relevant matter. A number of offenders have been sentenced for their roles in this riot. I must make due allowance for the respective criminality of each offender for their differing antecedents, personal circumstances and mitigating circumstances.
71 As I said, only the sentence of Luca received any attention on the plea and
I have already accepted your role was less serious than his. Your criminal history was also more limited than Luca's.
72 While your respective levels of remorse are similar, I have assessed your prospects of rehabilitation as less certain than Luca.
73 Further, where your co-offender is already serving a sentence, like Luca, I must also consider each component of the sentence imposed, including the extra period of imprisonment which he will be required to serve as a result of the riot offending.[8] As was noted on the plea, Luca got the benefit of some concurrency.
[8]See Postiglione v The Queen (1997) 145 ALR 408, 441.
Sentencing
74 Would you please stand, Mr Mustafaa.
75 Mr Mustafaa, on the charge of riot, I convict and sentence you to 19 months’ imprisonment.
76 I set a non-parole period of nine months, so that is the minimum term which you will be required to serve before becoming eligible for parole.
77 I formally declare that 22 days of this sentence is reckoned as having already been served and I direct that this is entered into the records of the Court.
78
Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty,
I would have sentenced you to 36 months’ imprisonment, with a non-parole period of 20 months.
79 You can be seated, Mr Mustafaa.
80 Is there anything else?
81 MR HAYWARD: As Your Honour pleases.
82 MR BARKER: No, Your Honour.
83 HIS HONOUR: If you could take the prisoner away please.
84 Adjourn the court please.
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