Director of Public Prosecutions v Silao
[2015] VCC 1601
•12 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01397
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL SILAO |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 November 2015 | |
DATE OF SENTENCE: | 12 November 2015 | |
CASE MAY BE CITED AS: | DPP v Silao | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1601 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – attempted armed robbery – armed robbery – assistance to authorities – Community Corrections Order imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Henderson | Vaille Anscombe Acting Solicitor for Office Public Prosecutions |
| For the Accused | Belinda Franjic | Lewenberg & Lewenberg |
HER HONOUR:
1 Paul Silao, you have pleaded guilty before me to one charge of attempted armed robbery and one charge of armed robbery.
2 Those offences are serious and that is reflected in the maximum penalty prescribed for each of these offences, which is as follows:
· Attempted armed robbery – 20 years' imprisonment.
· Armed robbery – 25 years' imprisonment.
3 The offending, the subject of the charges on the indictment, took place on Thursday 7 May 2015. The attempted armed robbery was committed at the Reggio Calabria Club on Brunswick Road, Parkville. The armed robbery was committed at the Keilor Hotel on Old Calder Highway, Keilor. Both are established commercial gaming venues.
4 At the time of the offending, you were aged 23.
5 Each of the offences were captured on CCTV footage that was exhibited at the plea hearing and has been viewed by the court.
6 Charge 1 concerns you entering the Reggio Calabria Club at approximately 10.07 pm with your co-accused - because he is a juvenile, I will identify him as "FR". He was aged 15. Another co-accused, Rami Khoshaba, who I will refer to hereonin as "Rami", who has been identified as the principal offender, remained outside of the venue in an awaiting car.
7 The background to your participation in the events is that you knew Rami’s cousin, Royal, and through Royal you had met Rami earlier that day. Your first contact was made following a call that you had received from Royal, inviting you to meet him and Rami at Roxburgh Park. After you arrived, Rami told you he wanted to rob a poker machine venue and that it was an “inside job” and he was going to obtain a toy gun and a motor vehicle and he wanted you to join him.
8 Coincidentally, your vehicle in which Royal and his cousin, Rami, were travelling with you, was intercepted by police and a search of the vehicle revealed an imitation 9 millimetre Beretta M9-P semi-automatic pistol in the rear seat pocket of the front passenger seat. You were spoken to about the pistol and released pending a summons.
9 Later that day, at about 7 pm, you responded to another telephone call from Royal. You drove, as requested, to a carpark at Roxburgh Park and collected both Royal and Rami. You then drove to another location where you picked up FR. FR was not known to you.
10 Your group then travelled to a Toyota Orion that had been previously stolen from premises in Oak Park. At that stage Royal departed with both your and FR's mobile telephones. Rami then handed out blue rubber gloves, which you both put on and then you were handed some keys and told to drive the vehicle. You drove Rami and FR to the Brunswick area. You pulled over and Rami tied dark T-shirts around the heads and faces of both you and FR. He then swapped places with you and drove to the Reggio Calabria Club.
11
Rami provided you with a black pistol, which may have been an imitation. Armed with that weapon, you entered the Reggio Calabria Club with the younger man, FR. It was approximately 10.07 pm. You approached the bar and demanded the barman give you money. You were holding the pistol and your co-accused was holding the bag for the money. The barman,
Mr Martino, pointed and said, “There are cops over there. Come here quick”, following which both you and FR quickly exited the club, returning to the vehicle and you were driven away. Those facts constitute the attempted armed robbery, Charge 1.
12 The CCTV footage of that event shows you brandishing the pistol. There were some patrons that were present, as well as staff members at around the time of the offending.
13 Some distance from the club, Rami pulled the car over and directed you to drive to Keilor. At about 10.28 pm you arrived at the Keilor Hotel. Rami parked outside the entrance to the gaming section of the hotel and remained in the vehicle whilst you, together with FR, approached the entrance. You had both tied dark T-shirts around your heads to disguise yourselves and on that occasion, FR was armed with a pistol. FR confronted the security guard with the pistol, yelling, “Open the door. Open the fucking door.” The employee complied and was told to get on the floor, following which your co-accused, FR, demanded his wallet and asked him where the safe was kept.
14 FR removed the employee’s mobile telephone from his hands and smashed a radio that fell from his pants. You then entered the gaming room and went behind the cash counter, where you confronted three staff members, yelling, “Give me the cash. Give me the cash.” You produced a bag for the staff to place the money in. Cash was handed over from the day’s takings at the bottle shop. Your co-accused then ushered his victim into the gaming room and made him get on the ground. You left him in control. He is seen brandishing his weapon on the CCTV footage. You left and returned to the awaiting car and told Rami there was no money. Then he told to go back into the hotel to get more money.
15 FR then told one of the employees to open the safe. She was unable to fully open it, but was able to remove $1,000, which he took, together with a Casio watch belonging to another employee. You then returned to the gaming room and then are seen later leaving the hotel with the co-accused. You returned to the waiting vehicle and drove away. Some distance from the hotel, Rami pulled over and exited the vehicle. You then drove away from the scene with your co-accused. That is the facts constituting Charge 2, the armed robbery.
16 Thirteen days later, on 20 May 2015, you were arrested and interviewed by the police. You made full and frank admissions to the offending and gave a detailed statement to the police and also identified FR in a photo board. You were charged and remanded in custody and remained there until granted bail on 28 May 2015.
17 On 3 June 2015, you gave a second detailed statement to police.
18 The Crown concedes that you have provided valuable assistance to authorities and that without this assistance, there would have been insufficient evidence to prosecute Rami Khoshaba.
19
Rami Khoshaba has a contested committal hearing listed at Melbourne Magistrates’ Court on 25 November 2015. Leave has been granted to
cross-examine you at that hearing. You are the only civilian witness.
20 Your co-accused, FR, pleaded guilty to one charge of attempted armed robbery, and one charge or armed robbery, and was sentenced at Broadmeadows Children’s Court on 4 November 2015. On that occasion, a total of 119 charges were dealt with, as part of a consolidated plea hearing. There were six informants and a total of 31 burglary charges; 30 theft charges; 11 intentionally damage property charges; eight obtain property by deception charges; four theft from a motor vehicle charges; one charge of contravention of bail conditions; one charge of go equipped to steal; one charge of attempted theft of a motor vehicle. In addition, there was the offending, the subject of this indictment and another armed robbery of a similar nature.
21
FR, who was aged 15, had no prior criminal history and was sentenced to
18 months' in a youth detention centre.
22 Rami Khoshaba is aged 23. He has an extensive criminal history, spanning the period from 26 November 2007 to 23 January 2015. In total, there are 11 court appearances, including many appearances for the dishonesty offences including robbery; armed robbery; burglary; theft; theft of motor vehicle; assaults; and other drug related charges; recklessly cause injury; possess prohibited weapon without exemption or approval and he has received a variety of dispositions from courts, including community corrections orders, fines, probation and adjourned undertakings.
23 Your matter resolved on 13 August 2015 at the committal case conference and the Crown conceded that the plea was entered at the earliest opportunity.
24 Mr Silao, this offending is very serious, as I have already told you. I accept that it did involve a course of conduct on the one night, and after this night, you have not re-offended. There are a number of aggravating features and it was evident from viewing the CCTV footage, that you played an equal role with your co-accused, FR. On the first occasion, when you entered the Reggio Calabria Club, you were brandishing the pistol, and on the second occasion, when you entered the Keilor Hotel, your co-accused, FR, was brandishing the pistol.
25 The offending has impacted those who were present at both venues and their victim impact statements were read during the plea hearing.
26 Mr Martino, the barman whom you confronted at Reggio Calabria Club, stated he has had trouble sleeping following this incident. He ruminated about what happened, particularly given he had had a gun pointed at his face during this episode. He was very worried that you would come back and it could happen again and this affected him for a few weeks following the incident. He did feel relieved and felt safer once he knew that you had been arrested. He is now a little more suspicious of people following this incident.
27
Leonie Trabert, the staff member at the Keilor Hotel, confirmed that following the incident, she has suffered from anxiety. She has been prescribed
anti-depressant medication and is seeing a psychologist. She is having difficulty with mood changes and that has dramatically impacted on her family life. She no longer work nights. She suffers ongoing nightmares and has also been adversely affected by having the gun pointed in her face. She is very depressed.
28 Mr Hyunga, the security guard at the Keilor Hotel, confirmed he suffers flashbacks, feels very anxious and nervous, especially if he hears a bang or a noise. He stopped working at the hotel because he did not want to relive his experiences. He no longer feels safe and is angry because of the discomfort and distress that you have caused him. He ruminates about these events, he just cannot get them out of his mind.
29 Mr Thompson, another member of staff at Keilor Hotel, confirms following the armed robbery, he was in shock and he did not want to go back to work again for fear of a similar event occurring. He has had problems with his sleep and anxiety and remains fearful about the events.
30 On your behalf, Ms Franjic put a number of matters in mitigation. She emphasised that at law, you are still a relatively youthful offender. You are aged 23. You come from a close-knit Samoan family. Both your parents and various family members and friends were present in court for the plea hearing and they are very supportive of you.
31 You were born in New Zealand and came to Australia as a one year old. You are one of four siblings. You have three older sisters. Your family is very religious. They initially settled in Sydney and then moved to Victoria. Both your parents and three sisters live here in Victoria.
32 As an adult, you have moved between Melbourne and Sydney. In both cities, you are very fortunate in that you have extensive supports and networks.
33 Whilst your childhood has been described as being one of a strict upbringing, you have very decent parents who are very supportive and have provided well for you.
34 You have an excellent work history. You did leave school, having completed Year 11 and your work history was outlined to me. You have completed an apprenticeship with Timber Walls and Trusses. You have worked as a tyre fitter and you have also done some construction work.
35 In 2013, you returned from living in Sydney to Melbourne and were living with your parents. Initially you had some employment with a pest control company, which you did not enjoy and thereafter you went back to Sydney and returned to work with a former employer, Readiform, where you worked for about a year and a half.
36 You came back to Melbourne in 2015. At around that time a long-term relationship with a girlfriend broke down. You were unable to find work and were effectively unemployed between February and May of 2015.
37 Shortly prior to these events, you obtained a job as a forklift driver in May 2015.
38 It was said that this was the first period of unemployment that you had ever experienced and you were living off your modest savings and managed to get by by living with your parents, who remained supportive of you, to some extent, financially.
39 Ms Franjic said it was in that context and background that you took the rather inexplicable and foolish step to become involved with the attempted armed robbery and armed robbery, the subject of these charges.
40 During the course of the plea hearing, I was told the motivation for the offending was the enticement of the promise of money. It was said that you did not receive any money for this venture.
41 Ms Franjic specifically stated there was no involvement of drugs, alcohol or mental health issues and she submitted that this abberrant behaviour is indicative of an immature attitude on your behalf and a willingness to be led by others.
Having carefully reviewed all the CCTV footage, I am unable to accept that your involvement in these crimes was as a consequence of your being led by others. It is apparent to me that you played an active role in both the attempted armed robbery and the armed robbery. I consider your role to be equal to that of your co-accused.
42
You group was well organised. You had disguises. You deliberately targeted the two gaming venues late at night with the intention of stealing money, knowing that you were armed and there was likely to be others present. You brandished the gun on the first occasion and on the second occasion, your
co-accused, FR, brandished the gun and ordered people about.
43 The impact of your combined presence at both venues was to engender fear and make the employees submit to your demands. I consider that these are serious examples of both this sort of offence of attempted armed robbery and armed robbery. In sentencing you, there is a need to emphasise both general and specific deterrence.
44
However, there were a number of mitigating factors that were put on your behalf, which I accept. Ms Franjic submitted the offending was out of character and it is the only aberration in an otherwise unblemished record.
I accept that you are a person who comes before the court with no prior criminal history.
45 Following your release on stringent bail conditions, you have adhered to those conditions.
46 At the time of the plea you were not working, but you had done some voluntary work.
47
At the plea hearing you gave sworn evidence and adopted the three statements that you made previously to the police. The first one, taken on
20 May 2015. A second, made 20 May 2015, where you identified the co-accused, FR, from a photo board, and the third statement made 3 June 2015.
48 In your statements, you comprehensively outline your involvement with the two co-accused, Rami Khoshaba and FR, in respect to these offences.
49 You gave an undertaking to the court, pursuant to s.5(2AB) of the Sentencing Act 1991. In that sworn undertaking, you agreed that you would give full and frank evidence for the prosecution, if called upon to do so in the future, and in particular, at the committal hearing for Rami Khoshaba. You agreed to confer with police and the prosecution in respect to any proceedings that you are called upon to give evidence at and you acknowledged that if you fail to adhere to the terms of your undertaking, that you may be re-sentenced and that you may receive a greater sentence.
50 Your assistance to the authorities has been accepted as being very valuable and without your assistance, there would have been insufficient evidence to prosecute the principle offender, Rami Khoshaba. In addition, your statements formed part of the prosecution's evidence led in respect to your co-accused, FR.
51 Following your arrest you have been fully co-operative. You made full and frank admissions to the police in your own record of interview. I have had regard to your co-operation with the police and the value of the assistance that you have given and your sentence has been significantly discounted.
52 There are good public policy reasons to encourage and reward co-operation of this type and I accept that the Crown would not have been able to proceed against Mr Khoshaba otherwise.
53
I have had regard to your plea of guilty entered at the earliest opportunity.
I accept is has significant utilitarian value. You have spared the State the expense and inconvenience of a trial and those witnesses who were exposed to your behaviour, the trauma of having to come to court to give evidence at your trial. By your plea, you have facilitated justice and therefore your plea will be discounted accordingly. I accept that the plea does demonstrate genuine remorse.
54
I have had regard in the general sense to the material set out in Dr Barth's report. He is a psychologist and his report is dated 12 October 2015. His opinion was that you present as a very immature and unsophisticated young man. He noted that you did not have any clinically significant symptoms of depression or anxiety and he assessed you as - your mental status as being normal. He estimated you would be a man of below average intelligence.
I do not accept his expressed opinion that you have yet to establish a clear direction in your life and that you have had considerable difficulty transitioning from being a teenager to an adult.
55 I further do not accept that your decision-making skills, coping strategies or broader views on life remain more at the level of a teenager. You are a twenty-three year old man, soon to be twenty-four, who has been in paid and regular employment for many years. Your referees, who have known you much longer than Dr Barth and whose opinion I accept, state that you are a mature person.
56 I do not consider that you were involved in these crimes because you were inappropriately influenced by a negative peer group. I consider that you made a very irrational, but thought-out decision to participate in each of these crimes.
57 You could have extricated yourself well prior to any of these offences being committed. There was no compulsion for you to attend at the requests of Royal, Rami’s cousin. You did not have any long-term association with him or with Rami. So it is really a mystery to this court as to why it was that you were motivated to commit this very serious offending. That is one aspect that remains of concern, in terms of your rehabilitation prospects.
58 In contrast, I have read the many references that were provided to me from people who know you well or have had dealings with you since your charges.
59 Maria Tuua, who works as a bi-cultural liaison officer for Pacific Island people, says that she has been supervising you since your release on bail. She says you have been exemplary in your conduct and that you appear to care for and respect your family and friends and your parents highly. You have often expressed to her your sorrow for your involvement, embarrassment and shame that you have caused to your well-known family and also the impact of your actions on the victims. She believes you are a good person and the offending is very out of character.
60 Abraham Veota, says in his reference, that he is your cousin. He has known you for most of his life. He works as a senior client service officer with a Government department and also a youth minister for the local church. He confirms you are very much a family-orientated man, kind, dependable and well regarded. He has been providing to you spiritual support and guidance. He believes that you now know what it is to be a good role model to younger people and the need to be a better person. He says you are truly remorseful and your actions are very much unlike you and that you are taking appropriate steps to make amends to both the victims and to the court.
61 Sharon Lalakobau, your aunt and an educator, confirms that she has known you since you were born and expresses her disappointment about your role in this offending is confirmed. She says you are a very responsible, proficient and talented and you have been brought up by a very respectful family. She confirms through the extensive network and support of the Samoan community and your family, you have made positive but progressive and steady strides towards reconciliation and rehabilitation, manifested in attending counselling, weekly church services and youth group meetings. That has offered you time to acknowledge and reflect on the consequences and negative impacts of the wrong choices that you made.
62 Mr William Leota, your uncle, confirms that you have been working in a voluntary capacity at Shield Security Services since your release and he has known you most of your life. He expresses great disbelief about your involvement in this offending.
63 I also have regard to what you wrote to the me, offering a true apology to the victims affected by your criminal behaviour. You acknowledge in your written apology that you have unfairly changed the victims’ lives and that you had no right, under any circumstance, to put anyone through such fear. You expressed in your words your true sorrow and remorse for the distress that you have caused the victims. You offer no excuses for your behaviour and take full responsibility for your action and you seek their forgiveness.
64 You stated that whilst in prison, you realised the wrong choices that you had made, that you had hurt a lot of people, especially the victims, your family and friends. You are now determined to change your behaviour so that you may never fall into this trouble in the future. You are committed to continuing to take steps to make a better person of yourself.
65 I accept that following your remand in custody, that you did take stock and now appreciate what you have done and have greatly reflected on your poor decisions and wrongful behaviour. By your actions and through your conduct in the post-release period, you have demonstrated your commitment to rehabilitation. I accept in those circumstances that your prospects for rehabilitation are excellent.
66 I note that you will be giving evidence against your co-accused, Rami Khoshaba, on 25 November 2015. He is the architect and principal offender. He provided the weapon and, the gloves, he told you which venues to attend, and put the disguises on both you and your co-accused. It is not suggested that you acted under duress, merely that you followed his example. He is a man with a very troubling prior criminal history. But for your statements and evidence, the prosecution would not be able to proceed with the case against him in respect to this very serious offending.
67 There is no other forensic evidence linking Rami to the armed robbery and attempted armed robbery and it is apparent from his conduct that he took every effort to avoid being potentially identified as being involved in this offending.
68 It is conceded by the Crown that your information is valuable and that there may be attendant risks, that is, that you may expose yourself to the potential for harm by reason of providing this information to the police. That risk was acknowledged through counsel in this proceeding. The informant confirmed there have been no threats to date, but nonetheless the police consider that the risk is still high.
69 It is accepted, following the successful bail application, you left Victoria and lived interstate in order to avoid contact with the other co-accused. Some consideration was given to placing you in a witness protection program.
70 On your behalf, Ms Franjic sought a Community Corrections Order, having regard to the combination of features that I have identified, namely, the fact that you are a youthful offender; your plea of guilty entered at the earliest opportunity; your remorse; your co-operation with the police, the need for the courts to encourage informants; and your excellent prospects of rehabilitation, and prior good character. She relied on the guideline sentencing judgment of Boulton. She conceded that the combination of the factors and in particular your assistance to the authorities, may be such as to keep you out of gaol. She confirmed that a term of imprisonment would have otherwise been appropriate.
71 On behalf of the Crown, Mr Henderson submitted that a lengthy Community Corrections Order would not be appealable. He confirmed that he had sought instructions from a permanent Crown prosecutor. He did, nonetheless, highlight the aggravating features of the offending that I have already emphasised.
72 The Court of Appeal in Boulton, did state, "A Community Corrections Order is intrinsically punitive and is capable of being highly punitive, depending on the length of the order and the nature and extent of the conditions imposed." It said that, "As a matter of principle, a Community Corrections Order can operate to deter others."[1] It can also effectively serve the purpose of specific deterrence, because it is real punishment. It should deter repeat offending and also the court referred to the mandatory conditions attached to every Community Corrections Order that I detailed earlier.
[1]Boulton v R; Clements v R; Fitzgerald v R [2014] VSCA 342 at para [124].
73 The Court, in that decision of Boulton, the guideline decision, also confirmed the application of the principles that relate to sentencing for young offenders, beginning with the well-known decision of R v Mills[2] and cases following, and it referred to another decision of Anderson[3] and stated,
"It is a ‘cardinal principle of sentencing law’ that when a young offender is to be sentenced, the sentencing disposition should be tailored so far as possible, consistently with other applicable sentencing principles, to promote the offender's rehabilitation. This serves the interest of both the individual and the community."
[2][1998] 4 VR 235, 241 (“Mills”)
[3](2013) 228 ACrimR 128, 140 [49].
74
In sentencing you, I have to have regard to the sentencing principles that apply. I have to impose just punishment. On behalf of the community, I must formally denounce your behaviour and tell you that it is not to be tolerated.
I must also have regard to the need to emphasise deterrence, both general and specific deterrence, and the need to promote your rehabilitation.
75 As I discussed with you earlier, Mr Silao, ultimately, I have been persuaded, having regard to the particular combination of features in your case, that a Community Corrections Order can adequately achieve all the relevant sentencing purposes.
76 You are still a relatively young man. You have demonstrated, through you post-offence conduct, that I have detailed in full, that you are receptive to change and you have taken steps to change. You have adhered to your strict bail conditions, you have remained offence-free and you are now demonstrating a more pro-social attitude in respect to your behaviours.
77
You do have real insight into the offending. You acknowledge how wrong it was, what you did and importantly and significantly, you acknowledged the harm that you caused to the victims. It is also significant in this case that you have co-operated with the authorities and enabled them, through you
co-operation, to charge the principal architect of this offending. You have given that very important undertaking to the court to assist the authorities.
78 In those circumstances, I consider to return you to prison would be counterproductive and would inhibit your further rehabilitation. I also consider that you would also be at real risk in prison, being known as an informant and prison would also have been more burdensome for you than other normal prisoner.
79 So all in all, I consider that all the sentencing purposes can be met in this case by the court fashioning a Community Corrections Order which can punish you for your offending and also provide for the conditions for your future rehabilitation and to deter you from further offending.
80 I confirm that you have been assessed as being suitable for such an order. You have and consented to the making of the order. You have been told about the consequences of the breach of such an order and therefore I will impose a Community Corrections Order in the terms outlined earlier.
81 So could you please stand, Mr Silao.
82 On the one charge of attempted armed robbery and armed robbery, I impose, with conviction, a Community Corrections Order for six years’ duration, with special conditions you perform 300 hours community work, to be performed over two years and undertake any offender behaviour programs as directed.
83 Pursuant to s.5(2)(a) of the Sentencing Act 1991, I direct that it be noted in the records of the court that I have imposed a less severe sentence than would otherwise have been imposed because of the undertaking given by you to assist after sentencing, law enforcement authorities in the investigation and prosecution of an offence. A copy of the transcript of your undertaking and the statements detailing the undertaking, will be kept by the court.
84 Pursuant to s.6AAA of the Sentencing Act 1991, I make the following declaration. But for your plea of guilty, I would have imposed a sentence of imprisonment of four years', to serve two and a half years' imprisonment.
85
I make the Compensation Order sought, pursuant to s.86 of the Sentencing Act 1991, in the following sums. Keilor Hotel, $700, Pupersh Katari, $250, and
Mr Hyunga, $700.
86 I believe that covers everything.
87 MS FRANJIC: Yes, Your Honour.
88 MR HENDERSON: Yes, Your Honour.
89 HER HONOUR: All right, so I will ask Ms Franjic, could you please accompany my associate and just get your client to acknowledged his consent to the order and a copy will be provided prior to you leaving. And I have signed the compensation order.
90
Mr Silao, all that remains for me is just to remind you that you have to attend Melton Community Corrections within two clear working days. It is at
83 to 85, Unit Street, Melton. Do you know where that is?
91 OFFENDER: Yes.
92 HER HONOUR: All right. The only other thing I need to remind you of, because this is an order that lasts for six years, your situation may change and it may be at some time you might need a variation, if, for instance, you become ill or otherwise. Things may happen to you that prevent you from adhering to any of the conditions. In those circumstances, just talk to the Community Corrections person. You can apply back to me for a variation in those circumstances. The worst thing you could do is put your head in the sand and pretend it is not happening and breach, all right? Because that is what some people do and they end up in a lot more trouble than they ought to, so be responsible and adhere to the order, all right?
93 OFFENDER: Yes, Your Honour.
94 HER HONOUR: All right, we can leave - can adjourn.
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