Director of Public Prosecutions v Portelli
[2023] VCC 2436
•21 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00857
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANTE PORTELLI |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Mildura (Plea); Melbourne (Sentence) | |
DATE OF HEARING: | 21 November 2023 | |
DATE OF SENTENCE: | 21 December 2023 | |
CASE MAY BE CITED AS: | DPP v Portelli | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2436 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Home Invasion; Armed Robbery; Aggravated Burglary; Theft; Contravening Personal Safety Intervention Order;
Legislation Cited: Sentencing Act 1991;
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins & Ors (2007) 16 VR 269
Sentence: 5 years and 10 months' imprisonment with a non-parole period of 4 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O'Doherty | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr R. Thyssen | Hilton-Wood Solicitors |
HIS HONOUR:
1Dante Andrew Portelli, on 21 November 2023 you pleaded guilty before me to an indictment containing one charge of home invasion which carries a maximum penalty of 25 years' imprisonment, one charge of armed robbery which carries a maximum penalty of 25 years' imprisonment, three charges of aggravated burglary which carries a maximum penalty of 25 years' imprisonment, and one charge of theft which carries a maximum penalty of 10 years' imprisonment. You also pleaded guilty to three related Summary Offences, involving contravention of a Personal Safety Intervention Order, which carries a maximum penalty of two years' imprisonment.
2You also admitted your criminal record.
Circumstances of offending
3The circumstances of your offending were set out in the Summary of Prosecution Opening for plea dated 30 October 2023, Exhibit 1 at your plea hearing. Your counsel confirmed that this document sets out the agreed factual basis of your offending.
4Your offending can now be briefly summarised.
5On 24 January 2023 you were aged 27 and living in Mildura. That evening, Timothy Knight was asleep at his residence at Sharland Street, Mildura. At about midnight, he was abruptly woken to the sound of movement coming from within his home. He observed you standing in the middle of his bedroom wearing a black and white face covering and holding a kitchen knife about 20 centimetres long, with a wooden handle, which belonged to Mr Knight. Also present in the house at the time was your co-accused Lyndon Johnson, who was dressed in a black face covering. You asked Mr Knight about the whereabouts of Trent Martin, who had previously lived at this address.
6Earlier that month, a Final Personal Safety Intervention Order protecting Trent Martin from you was issued at the Mildura Magistrates' Court. One of the conditions on this order prohibited you from attending or remaining within 50 metres of the address at Sharland Street, Mildura. By attending at the home on 24 January 2023, you contravened this Personal Safety Intervention Order, related Summary Charge 3. When Mr Knight advised you that Mr Martin no longer lived at this address, you stated 'Trent owes me money so I'm going to take his stuff'. Your entry as a trespasser to the home located at Sharland Street, Mildura with an intention to steal, whilst in company with Mr Johnson, whilst Mr Knight was present in the home, forms the basis of Charge 1 on the indictment, home invasion.
7You then essentially demanded that Mr Knight open his bank account whilst holding the knife, and you told Mr Knight that if he did not comply with your demands, you would kill him. Understandably, this left Mr Knight frightened for his life. Between 12.30 am and 12.44 am Mr Knight utilised his mobile phone to gain access to his banking application, at which point you took possession of the phone and proceeded to make three transactions from Mr Knight's online banking account into your bank account, in the amounts of $22, $52, and $200. Your conduct in this regard forms the basis of Charge 2 on the indictment, armed robbery. Both you and Mr Johnson remained in the house for a short period of time. At one point you stated 'if you call the police we will come back and kill you.' Your co-accused then took a photo of Mr Knight and stated 'if you go to police, we'll send this to our club, and they'll come around and kill you.' You and Mr Johnson then left the property.
8A short time later at 1.18 am, your second victim, Yit Chi, was at home at his address at Thirteenth Street, Mildura with other residents. Mr Johnson and yourself attended at this address, with you walking into the rear yard of the address where you began knocking on the back door. You then gained entry to the property through an unlocked rear door and whilst Mr Johnson remained outside, you walked inside the property and began looking for money. Your entry as a trespasser to this property in these circumstances forms the basis of Charge 3 on the indictment, aggravated burglary. You knocked on a bedroom door which was opened by one of the occupants of the property. You were confronted and produced a kitchen knife from your bum bag which you had previously taken from the Sharland Street property. You then ran away through the rear door and both you and Mr Johnson exited the address.
9Sometime later at 4.00 am, your third victim, Zeb Preiss, was asleep at his home at Thirteenth Street, Mildura. Some weeks earlier on 3 January 2023, you had been issued with an Interim Personal Safety Intervention Order at the Mildura Magistrates' Court where the protected person was Mr Preiss. That order contained conditions which included a prohibition on you going to or remaining within 50 metres of this address at Thirteenth Street, Mildura. You gained access inside the property through a glass entrance door. Once inside, you stole a pair of Nike Air Max sneakers belonging to Mr Preiss before leaving the address. Your conduct in attending at the property in contravention of a Personal Safety Intervention Order, entering as a trespasser in the circumstances that I have described, and stealing the sneakers, forms the basis of Charges 4 and 5 on the indictment, aggravated burglary and theft, and related Summary Charge 7, contravening a Personal Safety Intervention Order.
10A short time later, at 4.50 am, having left this address, you returned. Mr Preiss was awoken by you rummaging through his bedside drawers. He observed you to be wearing a black and white face covering which covered the lower half of your face. Mr Preiss confronted you, stating 'what the fuck are you doing in my house?' You shone a flashlight in his face before running from the address in possession of a black bum bag belonging to Mr Preiss. Your conduct in again attending at this property, entering as a trespasser in the circumstances I have described, and stealing the bum bag, forms the basis of Charges 5 and 6 on the indictment, theft and aggravated burglary, and part of related Summary Charge 7, contravening a Personal Safety Intervention Order.
11Later that morning at approximately 10.30 am, police attended at a property in Mildura and found you hiding in the laundry of the house where you were arrested. You were conveyed to the Mildura police station for interview where you made full admissions to the offending.
12You co-accused Mr Johnson was subsequently arrested on 26 January 2023. His matters remain outstanding, with an administrative hearing listed on 20 February 2024 in the Melbourne County Court.
13You have remained in custody since the date of your arrest, a period of 331 days up to but not including today.
Victim Impact
14In total, there were three victims to your offending. Your victim in relation to the first incident, where you committed the crime of home invasion and armed robbery, Timothy Knight, completed a Victim Impact Statement on 20 November 2023, which was tendered at your plea hearing and marked Exhibit 2. Mr Knight's statement was read out at your plea hearing by Mr O'Doherty who then appeared on behalf of the prosecution. As I indicated at your plea hearing, Mr Knight's statement eloquently describes the various ways in which crimes of this nature can impact adversely upon innocent parties. Those impacts extend beyond the physical and emotional, to social and economic consequences. As a result of your offending upon Mr Knight, he has had to relocate away from Mildura due to not feeling safe. He had to leave his place of employment. He lost a positive peer network. He has essentially had to start a new life in his new location. Whilst no Victim Impact Statements were provided by your other two victims, it can be readily assumed that they too have been adversely impacted by your offending.
Nature and gravity of your offending and your level of culpability for it
15In the early hours of 24 January 2023, you engaged in an intense spree of serious offending. As is often stated in relation to crimes of this nature, people are entitled to feel safe and secure in their homes, particularly at night when they are asleep. To be awoken by the realisation that the sanctity of the home environment has been breached by a trespasser would be a terrifying experience.
16In relation to the first incident, you did so in company with another, this conduct constituting the crime of home invasion, a serious version of aggravated burglary. You wore a black and white face covering, demonstrating in my view a degree of premeditation and planning with regards to concealing your identity. You were holding a bladed implement, a kitchen knife, self-evidently a dangerous item which would no doubt have increased the fear and apprehension on the part of Mr Knight.
17In your exchange with Mr Knight, you revealed your interest in Mr Trent Martin who had previously resided at Mr Knight's address. In that regard, by virtue of a Personal Safety Intervention Order issued at the Mildura Magistrates' Court earlier in January 2023, you had been prohibited from attending at this address, and your conduct in attending this address in breach of a Court Order constitutes an aggravating feature of Charges 1 and 2 on the indictment.
18The crime of Home Invasion was complete upon your entry as a trespasser into Mr Knight's property. However, your criminality in relation to this first incident did not end there. Upon being advised that Mr Martin no longer resided at the address, you then proceeded to steal money from Mr Knight whilst armed with the knife, thereby committing the additional crime of Armed Robbery. Upon demanding that Mr Knight open his bank account, whilst holding the knife, you threatened to kill him if he did not comply with your demands. The money obtained through the three banking transactions from Mr Knight amounted to less than $300, and by virtue of the money being transferred into a bank account registered in your name, there was clearly an element of lack of sophistication with regards to this particular crime. However, the fact remains that your conduct in committing the Armed Robbery, soon after committing the crime of Home Invasion, makes this a serous example of this particular crime. Furthermore, the threats made by you and your co-offender with regards to returning to the property to kill Mr Knight should he go to the police, and ominous references by your co-offender to sending a photograph of Mr Knight, taken by your co-offender, to a club who would come around and kill Mr Knight, further highlights the seriousness of the crime of Armed Robbery, given the menacing nature of the dialogue with Mr Knight. In analysing the objective gravity of these crimes, I have concluded that the offences of Home Invasion and Armed Robbery referable to incident one represent serious examples of those particular offences.
19The second incident took place just over one hour later, highlighting the intensity of your criminal endeavours on this evening. On this occasion you entered the property of your second victim alone, as a trespasser, hence the charge of aggravated burglary as opposed to home invasion. Whilst there was no forced entry on your part to obtain entry to the property, upon being confronted by a resident of this second property, you produced a kitchen knife from your bag before running away. Whilst not as serious as the first incident, nevertheless your conduct represents a concerning example of the crime of aggravated burglary, given that your conduct encompassed invading the sanctity of your victim's home in the middle of the night.
20The third incident took place a few hours later, and involved your third victim who was at the time asleep at his address in Mildura. As was the case with regards to the first incident, by way of a Court Order from the Mildura Magistrates' Court on 3 January 2023, you had been prohibited from attending at the property referable to the third incident, and your conduct in doing so represents an aggravating feature of the criminality associated with this third incident. Again, you invaded the sanctity of someone's home in the middle of the night, thus forming the basis of Charge 4, Aggravated Burglary. Upon gaining entry to the property, your conduct in stealing a pair of Nike sneakers constitutes additional criminality, encompassed by Charge 5 on the indictment, which also includes a bum bag that was later stolen by you.
21In relation to this third incident, upon leaving the address, you returned some 50 minutes later. You again entered the property as a trespasser with an intention to steal, forming the basis of Charge 6, Aggravated Burglary. Your conduct in returning to the property represents in my view determined criminality, increasing the seriousness of this particular Aggravated Burglary. Furthermore, on the second occasion your conduct in rummaging through the bedside drawers awoke your victim, who observed you to be wearing a face covering. You shone a flashlight in your victim's face before stealing a bag belonging to your victim and leaving the property. Your conduct in relation to your (recording malfunction confrontation with your victim overall increases the seriousness of incident three, and leads me to the overall conclusion that Charge 6 on the indictment, Aggravated Burglary, represents a serious and concerning example of this particular offence, given the circumstances in which it was committed.
Moral culpability
22In terms of your moral culpability, your counsel did not submit that your culpability was reduced by virtue of the Verdins’ principles. For the purposes of your plea hearing, you were assessed by psychologist Gina Cidoni, with her findings set out in her report dated 12 November 2023, Exhibit B at your plea hearing. According to Ms Cidoni, your substance use, particularly methamphetamine, played a significant role in shaping your offending behaviour through heightened agitation, impaired judgement and increased impulsivity. Furthermore, according to Ms Cidoni, your mental health diagnosis, which included persistent depressive disorder and post-traumatic stress disorder, may have influenced your offending behaviour. In particular, according to Ms Cidoni, your symptoms of post-traumatic stress disorder could have intensified your emotional reactivity in high stress situations and overall your mental health conditions likely exacerbated your impulsive behaviour and impaired judgement, making you more susceptible to engage in the offences, especially when combined with your substance use history.[1]
[1]Psychological report of Gina Cidoni dated 12 November 2023, paragraphs 80-81.
23As I have stated, your counsel did not submit that your culpability for the offending was reduced by way of any mental impairment. Particularly having regard to your admitted use of methylamphetamine at the time of the offending, and given your counsel's concessions, whilst your mental health diagnoses provides context for your offending, they do not justify a reduction in your culpability. As I have stated, your offending was intense, sustained, and determined. This was not reactive behaviour on your part, rather it was assertive behaviour with a degree of premeditation. In all the circumstances I regard your level of culpability for this offending to be high.
Personal circumstances
24Your personal history and circumstances were set out in your counsel's plea submissions dated 15 November 2023, Exhibit A at your plea hearing, and in the aforementioned psychological report from Ms Cidoni, Exhibit B.
25You are now 28 years of age, and you were born in Mildura and have resided in this area all of your life. You have reported to Ms Cidoni that your parents separated when you were three and a half years old, and that after the separation, your father played no role in your upbringing. You have had no contact with him since the age of 13. Whilst your mother re-partnered, that relationship has apparently ended with your stepfather moving to Western Australia leaving your mother struggling to cope. Your mother resides in Mildura and has significant physical ailments leaving her at times wheelchair bound. You have reported being extremely worried about your mother's welfare, with the property currently being on the market, and you have reported that your mother has been your strongest support.
26You have been educated to partway through Year 11 and your education experience was apparently problematic, with you experiencing social anxiety and bullying with associated physical assaults. You have commenced but not completed it seems an apprenticeship in plumbing, and you have also pursued a Certificate II in Building and Construction. You have been involved in plumbing and paving work as well as removals and some bricklaying labour. Your most recent job was as a removalist, a position you held for some 12 months from January 2020.
27You have had two significant relationships. Your first relationship with Emily deteriorated in your early 20s following you and Emily discovering her uncle who had died from suicide, which understandably deeply affected the both of you. Your second relationship with Amy ended in your mid-20s in the context of Amy's reported infidelity, with that breakup taking a toll on your mental wellbeing and as you have reported to Ms Cidoni, triggering a downward spiral on your part.
28You have reported to Ms Cidoni a previous diagnosis of generalised anxiety disorder from the age of seven, and you have reported previously being prescribed an antipsychotic medication, Seroquel, which you continued for some four years. You have reported receiving counselling in Mildura both during your youth and as a young adult and have reported an overnight psychiatric admission in Mildura at one point.
29In terms of your alcohol and substance use, you apparently began using alcohol in 2014, following the death of Emily's uncle, and that use escalated to the point of consuming an entire bottle of spirits in one sitting. After experimenting with other substances, your use of methamphetamine began in 2021 and continued until your arrest, often in the company of peers.
30
After conducting various tests and assessments upon you, Ms Cidoni concluded that you meet the diagnostic criteria for persistent depressive disorder,
post-traumatic stress disorder, and substance use (alcohol and methamphetamine) disorder. Your post-traumatic stress disorder apparently stems from a history marked by witnessing domestic violence in your childhood, experiencing the traumatic death of a family friend by suicide, being a victim of physical assaults and enduring severe bullying during your youth. You also experienced long lasting depressive symptoms which are further exacerbated by the use of substances like alcohol and methamphetamine. According to Ms Cidoni, your adverse childhood experiences have left a profound imprint on your psychological wellbeing.[2] They have it seems played a significant role in your substance abuse history. According to Ms Cidoni your risk of reoffending falls into the medium category, with risk factors including your adverse childhood experiences together with your history of substance abuse and prior criminal offences.
[2]Psychological report of Gina Cidoni dated 12 November 2023, paragraph 82.
31You have a criminal history dating back to 28 August 2013. On that date you received a significant Community Correction Order from the Mildura Magistrates' Court for offences which included affray. Your most recent prior conviction dates from 8 December 2020, where you received a conviction and fine for offences which included recklessly causing injury. You have not, it appears, been previously sentenced to a term of imprisonment.
Sentencing factors
32In formulating an appropriate sentence in your case, the Sentencing Act 1991 requires me to have regard to various factors.
33I have already referred to the relevant maximum penalties for the offences for which you now fall to be sentenced. The significant maximum penalties reflect at a general level the seriousness of these crimes. In particular, the crime of home invasion is a Category 2 offence, meaning that pursuant to s5(2H) of the Sentencing Act 1991, I must impose a custodial order unless a relevant exception applies. Whilst at your plea hearing your counsel indicated that a mandatory three year non-parole period was required unless the exceptions set out in s5(2H) were established, this is not the case, given that you have pleaded guilty to home invasion as opposed to aggravated home invasion. This error was communicated to the parties subsequent to the plea hearing by the court but prior to sentencing.
34You entered pleas of guilty at the committal mention stage on 24 May 2023, and in those circumstances I accept that your plea must be seen as an early plea of guilty, warranting a significant discount for utilitarian reasons. Through your plea of guilty, contested proceedings have been avoided, and witnesses have been spared the trauma of cross-examination. Your indication of a preparedness to plead guilty was given in the context of the COVID-19 pandemic and its now well‑known adverse impacts upon the administration of justice in this State. Accordingly, the utilitarian value of your plea is enhanced, warranting a Worboyes discount.[3] Certainly, your early plea of guilty reflects your acceptance of wrongdoing and willingness to facilitate the course of justice. To a degree, your early plea can indicate a degree of remorse on your part, however, there is an absence in my view of any evidentiary foundation for a meaningful sentencing discount on the basis of remorse. By way of example, the psychological report from Ms Cidoni is silent on the issue of remorse on your part.
[3]Worboyes v The Queen [2021] VSCA 169
35I have already referred to your personal circumstances and previous character. I have little doubt that your difficult childhood experiences have impacted adversely upon you, and it appears to me that you have sought to self-medicate with regards to your psychological fragilities through illicit substances. As I have stated, whilst not meaningfully reducing your culpability for your offending, your background does contextualise the circumstances of your offending. You are still a relatively young man, and whilst your criminal history is somewhat concerning, it does not represent a significant criminal history. In particular, this will be your first sentence of imprisonment.
36You have been in custody since your arrest on 24 January 2023. This is, as I have stated, your first significant period of imprisonment. In one sense, your confinement has contributed to some positive outcomes. Your substance use disorder is now in remission, due to you being in this controlled environment. You have undergone various courses and training whilst incarcerated, including Safe Food Handling, working on the food line as a billet, and financial planning courses.[4] As described by Ms Cidoni, the imprisonment environment has offered a structured and controlled environment for you.
[4]Psychological report of Gina Cidoni dated 12 November 2023, paragraph 31.
37However, according to Ms Cidoni, the triggers within the prison environment remind you of your past traumatic experiences, and these reminders can be physical, such as confined spaces resembling past situations, or emotional, such as witnessing violence or aggression. According to Ms Cidoni:
“when exposed to these triggers, he re-experiences the emotions and distress associated with his trauma, intensifying his depressive symptoms and emotional distress. The challenging conditions of prison, combined with these triggers, create a hostile environment that significantly impacts his mental wellbeing.”[5]
In these circumstances, and whilst not explicitly relied upon by your counsel, I am prepared to make a modest mitigatory allowance pursuant to Verdins’ principle five,[6] as I am satisfied that your experience of the custodial setting, given your history of depression and post-traumatic stress disorder, will likely be more onerous than that of a prisoner in otherwise good health.
[5]Ibid, 87.
[6] R v Verdins & Ors (2007) 16 VR 269.
38Whilst neither counsel provided or relied upon previous sentencing decisions, I have taken into consideration current sentencing practices for the offences of home invasion, armed robbery and aggravated burglary in particular, when formulating an appropriate sentence in your case. Whilst each case is necessarily fact specific, it is clear from previous decisions that the commission of these offences frequently results in significant sentences of imprisonment.
Principles and purposes
39Due to the nature of your offending, there is a need to reflect the important sentencing purposes of general deterrence, denunciation, and community protection. Given your relatively limited criminal history and your early pleas of guilty, the need for specific deterrence to feature in the sentencing discretion is reduced. Given your relatively young age, any sentence I impose must appropriately seek to facilitate your rehabilitation. As I have described, you have a level of psychological fragility, and you have a history involving significant illicit substance use. These matters will require careful and tailored interventions upon your release from custody, and in my view your prospects for rehabilitation must be seen as heavily dependent upon your willingness and ability to participate in these interventions. Your progress whilst in custody appears to have been largely positive, and overall, I regard your prospects for rehabilitation to be reasonable.
40There is in my view a need to reflect the distinct criminality involved in your offending through a measure of cumulation, subject as always to the overarching principle of totality. In particular, there are three victims to your offending, and any penalty I impose must appropriately do justice to the impacts of your offending upon them.
Submissions
41The prosecution in this case submitted that your offending represented high end seriousness, warranting a sentence of imprisonment incorporating a head sentence and non-parole period. Likewise, in written submissions your counsel conceded that the offending will attract a sentence of imprisonment of some duration. It was submitted on your behalf that a significant parole eligibility component should feature in the sentence imposed, to reflect your positive progress whilst in custody, your previous completion of a lengthy Community Correction Order, and your ongoing family supports, all of which were said to constitute enhanced prospects of rehabilitation.
Sentence
42Having carefully considered all of the relevant matters, I have concluded consistent with the parsimony principle that the only appropriate sentence in your case is a sentence of imprisonment of some length. Whilst a measure of cumulation is required, I have moderated the degree of cumulation given that your offending all occurred within a matter of hours, and having regard to the totality principle in the circumstances of your case. In particular, whilst I regard your breaches of the Personal Safety Intervention Orders to be serious, I have not ordered any cumulation with regard to those charges, as I have taken the breaches into account with regard to my assessment of the gravity of the substantial offences that you committed whilst in breach of those Orders. It is hoped that, should you be granted parole, you grasp the opportunities afforded to you with regards to your reintegration back into the community.
43Mr Portelli, in relation to all charges, you are sentenced as follows:
(a) On Charge 1, home invasion, you are convicted and sentenced to three years and six months' imprisonment. This is the base sentence.
(b) On Charge 2, armed robbery, you are convicted and sentenced to two years and nine months' imprisonment.
(c) On Charge 3, aggravated burglary, you are convicted and sentenced to two years and six months' imprisonment.
(d) On Charge 4, aggravated burglary, you are convicted and sentenced to two years and three months' imprisonment.
(e) On Charge 5, theft, you are convicted and sentenced to six months' imprisonment.
(f) On Charge 6, aggravated burglary, you are convicted and sentenced to two years and nine months' imprisonment.
(g) In relation to each of the three related summary offences of contravening a Personal Safety Intervention Order, you are convicted and sentenced to three months' imprisonment on each charge.
44I order that six months on Charge 2, eight months on Charge 3, six months on Charge 4, and eight months on Charge 6 be served cumulatively upon each other and upon the base sentence imposed with regards to Charge 1, making a total effective sentence of five years and ten months' imprisonment. I order that you serve a period of four years' imprisonment before becoming eligible for parole.
45Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 331 days' pre‑sentence detention has been served, and I order that this be administratively deducted from your sentence.
46
Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty but been found guilty of these offences, I would have imposed a total effective sentence of seven years and nine months' imprisonment with a
non-parole period of five years and nine months.
47There being no applications on the court file for any ancillary orders – that completes the sentencing remarks.
48Any issues or ambiguities, Mr Thyssen, from your perspective?
49MR THYSSEN: Thank you.
50HIS HONOUR: Yes, thanks. Likewise from the prosecution?
51MS STEWART: Nothing, Your Honour.
52HIS HONOUR: Yes, thanks. Now Mr Thyssen, I am going to leave the court and have the link left open so that you can speak with your client in privacy in due course, to ensure that he understands the sentence that has been imposed.
53MR THYSSEN: Thank you, Your Honour.
54HIS HONOUR: Yes, thank you.
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