Director of Public Prosecutions v Villa
[2024] VCC 531
•24 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01200
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RONALD VILLA |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 November 2023, 15 April 2024 | |
DATE OF SENTENCE: | 24 April 2024 | |
CASE MAY BE CITED AS: | DPP v VILLA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 531 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Rape, fail to answer bail
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen [2013] HCA 37, Clarke (a pseudonym) v The Queen [2022] VSCA 89 and R v Khem [2008] VSCA 136
Sentence: 5 years and 3 months imprisonment, with a non-parole period of 3 years and 4 months, 350 days reckoned as served. Convicted and fined $250 on each summary charge.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Fisher Ms T. Stokes | Office of Public Prosecutions |
| For the Offender | Ms M. Grant | Stary Halphen Norton |
HER HONOUR:
1Ronald Villa, you have pleaded guilty on indictment to a single charge of rape. This is a rolled-up charge.
2You have also pleaded guilty to two related summary offences of failing to answer bail.
3In sentencing you for these crimes, I must have regard to the maximum penalties for the offences you have committed. The offence of rape carries a maximum penalty of 25 years' imprisonment and the bail offence carries a maximum penalty of 2 years' imprisonment. These maximum penalties reflect the seriousness with which Parliament regards each offence.
4In addition, rape is a category one offence pursuant to the Sentencing Act 1991. Section 5 (2G) of that Act requires the imposition of a custodial order for this offence unless an exception applies.
5The offence of rape is also one which is subject to the standard sentencing scheme. The standard sentence for the offence of rape is 10 years' imprisonment. I will return to this at a later stage.
The offending
6The circumstances of your offending were set out in a document entitled 'Amended Summary of Prosecution Opening for Plea' dated 2 April 2024. This is an agreed document and represents your acceptance of the elements of the offences to which you have entered your guilty pleas, as well as the factual basis on which I am to sentence.
7I will not repeat the entire summary as it is a matter of record, but in brief terms, the offending that gives rise to these charges occurred on 21 June 2020. The victim in this matter is Isla Moore[1]. You met the victim through mutual friends.
[1] A pseudonym.
The Offending
8On 20 June 2020, Ms Moore was at home with her friend Ms Grace Harris[2]. After consuming some alcohol, they went to the city. At about 8.30 pm, they arrived at the Salvation Army centre in Melbourne, where you were.
[2] A pseudonym.
9You all later travelled back to Ms Moore’s home, arriving at approximately 11 pm. You all smoked some marijuana and continued to drink alcohol. At some stage, Ms Moore placed a mattress on the loungeroom floor. She felt drunk from the alcohol which she had consumed.
10At about 3 am the following morning Ms Harris left the house. At that time, you and Ms Moore were asleep on the mattress on the floor and were both fully clothed.
11A little after noon, Ms Moore felt you cuddle up to her from behind. She did not resist as she believed that you only wanted a cuddle. She pretended to be asleep.
12A short time later, you touched Ms Moore on her thighs. Ms Moore froze. You attempted to touch her vagina by putting your hands between her legs, however, you were unable to do so because of her position. Ms Moore moved her body in the hope that you would realise she was awake and then desist with the touching.
13From a 'spooning' position, you put your hand on top of her vagina over her underwear. You then moved inside her underwear and pushed your fingers inside her vagina. Ms Moore remained frozen and did not react. [Charge 1 - Rape (as part of a rolled-up charge)]
14A few moments later, you unzipped your pants and pulled out your penis. You then pushed your penis into her vagina. You thrust your penis backwards and forwards inside her vagina for about two to three minutes in what was described as a 'rough and forceful' manner. You ejaculated inside her vagina and then withdrew your penis. [Charge 1 - Rape (as part of a rolled-up charge)]
15Throughout the entire episode, Ms Moore remained frozen in a state of shock. She was worried that if she confronted you, you would hurt her. Consequently, she wanted you to think that she was still asleep.
16Ms Moore fell asleep and upon waking at about 5 pm that afternoon, she spoke with you and neither of you referred to the sexual penetration. Feeling very uncomfortable, she asked you to leave the house. Shortly afterwards, she rang her sister and Ms Harris. She told them both what you had done.
The Report to Police and Investigation
17At about 9 pm that night, Ms Moore called the St Kilda police station. She attended the police station that night and reported the incident.
18At about 2.05 am on 22 June 2020, police accompanied her to the Royal Woman's Hospital for the purpose of a Forensic Medical Examination.
19At about 4.42 pm on 25 June 2020, Ms Moore contacted you by text message and asked if you had 'hooked up'. You responded that you did. She told you she was too drunk to consent and that she did not recall giving you permission to have sex with her. You then recanted and stated that, 'we didn't hook up'. Despite saying that, you apologised to her and asked her not to go to the police or tell anyone.
The Record of Interview
20At 12.20 am on 17 September 2020, you were arrested and taken to the St Kilda police station where you participated in a Record of Interview.
21During that interview, you denied raping the victim and, when asked if you had ever had sexual intercourse with her, you stated, 'Never, I never have, and I never would'. At the conclusion of the interview, you provided a voluntary DNA profile sample to the police.
22Forensic samples also taken from the victim were subsequently analysed. The analysis revealed spermatozoa on the high vaginal swab that matched your DNA. It was determined that the likelihood ratio of you being a contributor to that sample was 100 billion, which provides extremely strong support that you were a contributor to the DNA.
23On 21 January 2022, bail orders to which you were subject were extended by the Melbourne Magistrates' Court. You subsequently failed to appear at that court on 4 March 2022 in accordance with those orders.
24After being remanded in custody on 13 November 2022, you appeared before a Magistrate in the Melbourne Magistrates' Court on 17 November 2022. You were granted bail on that day. On 13 December 2022, you again failed to appear at the Melbourne Magistrates' Court.
25By not appearing at court as required on 4 March 2022 and 13 December 2022, you failed to answer your bail – the subject of summary charges 3 and 4.
Victim Impact Statement and offence gravity
26Yours is serious offending.
27Your offences against the Bail Act show a disrespect for Court orders and in effect prolonged these proceedings.
28It is obvious, however, that the focus in your sentencing is for the charge of rape. Rape is correctly described by the prosecution as a crime of violence. Whilst it covers a broad range of circumstances, it inherently involves the physical invasion of the victim's person and security.
29There are two events which are part of the single charge of rape. Whilst rolled-up charges can only occur with the consent of an accused person, such a charge does represent more than one occasion of separate criminality and therefore represents greater criminality than a charge involving a single episode. I accept that in all likelihood, each offence was relatively spontaneous, to a degree opportunistic, and occurred within close proximity to each other in timing. In the facts outlined to me, the circumstances were not attenuated with violence in addition to the acts themselves. You made no overt threats, nor did you ignore pleas to stop or did you cause physical injury.
30However, your offending was without the use of a condom, exposing Ms Moore to the risk of disease and/or pregnancy which is an aggravating feature to your offending.
31In addition, you had spent the hours before the rapes occurring in the victim's company and would have been aware of her level of intoxication. Your own drug and alcohol ingestion provides you with no excuse. In addition, you breached the trust of a friendship of some three years standing and you offended against Ms Moore in her own home, an environment in which she was entitled to feel both safe and secure. You took clear advantage of Ms Moore and her vulnerabilities.
32Ms Moore has chosen not to provide a Victim Impact Statement. This does not equate to her being unaffected by your wrongdoing. She attended your plea hearing and is present for your sentencing today. Your counsel conceded that your offending must have been a profound and frightening experience for her. I accept that this is likely to be so.
33Sentencing principles of general deterrence, denunciation and protection of the community are of significance to the sentencing task.
Plea of guilty
34The Sentencing Act obliges me to take into account the stage at which you entered your pleas. This matter resolved at committal mention indicating a plea at the earliest opportunity.
35There is clear value in saving the victim the need to give evidence at either committal or trial and relive traumatic events and utilitarian value in saving the community the expense of contested proceedings.
36
In addition, it would appear that you formally entered your plea in July of 2023 which therefore occurred at a time when the court was still responding to the
COVID-19 pandemic. It therefore has some additional utilitarian value in providing certainty and finality to parties in circumstances where the court's operations had been significantly disrupted.
37Remorse is not pressed on your behalf but I accept that you have taken responsibility for your offending.
38These factors will be taken into account in your favour.
Personal Circumstances
39I turn now to your personal circumstances, which have been outlined helpfully in Defence Submissions and the Report of Forensic Psychologist Marlese Bovenkerk dated 20 November 2023.
40You are currently 29 years of age, having been born in New South Wales in October 1994 to your parents Amanda and Norman.
41You are an aboriginal man, with your father descending from Yorta Yorta country and have three siblings: one sister, one half-brother and one stepbrother.
42Growing up, your life was characterised by trauma, instability and neglect.
43Your parents separated when you were 12 months old. Following their separation, you had little contact with your father and as a result have experienced a disconnect from your aboriginal culture. You have tried to contact him over the years, yet have often been unable to locate him due to his frequent changing of address and contact information. You told Ms Bovenkerk that on one occasion your father told you that you were an 'accident' and said that you were 'dead to him'. Your relationship with your mother is also strained at times and you often have gone lengthy periods without contact.
44Growing up, you report that you lived 'all over the place' although you were primarily raised in New South Wales and Queensland. You have mainly lived a transient lifestyle and estimate that you have been homeless for approximately 15 years.
45When you were 5 years old, your mother re-partnered. Her new partner sexually and physically abused you repeatedly.
46You report an occasion when you were eight years old where your mother's partner strangled you and shoved a pillow in your mouth causing you to swallow four of your own teeth. You told your mother of the abuse, however, were met with disbelief.
47It was at this age that you started to live on the streets to avoid the abuse at home. You would leave the house for days at a time and sleep in stair wells and shopping centres, returning home every few days for food or a shower.
48When you were 10 years old, your mother re-partnered once more. Her new partner was also abusive, and sexually and physically assaulted you for a period of some five years.
49I accept that your childhood as was made known to me gives rise to application of the Bugmy principles. In the decision of R v Bugmy the High Court said:
'Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision.'
50The application of these principles reduces your moral culpability for the offending before me. The application of these principles was conceded by the Crown.
51When you were aged 10 years, you began to spend time living with your grandfather. Life was relatively stable during this period, however you eventually left when you were around 15 years of age due to ongoing conflict with your half-brother who also resided at the home. You described your grandfather as your main support. He is now unfortunately deceased.
52In terms of your education, you found school challenging and struggled to concentrate. You report that you were persistently bullied for being different and that teachers did not intervene, which perpetuated the problem. You also found attendance difficult during period of homelessness and were often truant, however, you did engage more positively when living with your grandfather.
53At school you preferred more ‘hands-on’ activities and for a time were permitted to assist the grounds keeper in their duties when you were in Grade 5 or 6. However, you were ultimately asked to leave school in Year 9 due to consuming alcohol on school grounds. You reported that you would sometimes consume a litre of alcohol whilst at school, leading to 'blackouts'. In addition to consuming alcohol, you experimented with a variety of illicit substances throughout your teenage years.
54After school, you returned to living on the streets. You did experience brief periods of employment and had a job testing hot water systems for two months, however remained largely unemployed. As referred to earlier, you have been on the streets for in excess of 15 years.
55In terms of substance use, you started smoking cigarettes when you were 10 years of age. You commenced using cannabis at 11 years of age and found it helped to improve your mood and focus. You began using methamphetamine at the age of 13, Psilocybin ('magic mushrooms') at age 15, Opioids (heroin) at age 16 and LSD when you were 17.
56I accept that your early resort to drug use is linked to your experience of childhood trauma.
57Your primary substance abuse has mainly been related to heroin and cannabis and you report that you would use them on a daily basis, at one stage spending $350 a day to support your drug habit. You also report significant problems with alcohol, often using it to 'block out' and 'forget' your childhood trauma.
58You disclosed to Ms Bovenkerk that during your period of remand you have continued to use illicit substances approximately three times a week.
59You had been released from custody for about two months at the time of your offending. Once released you were living in transient accommodation and report that you had given up on life. You were drinking 3-4 litres of alcohol a day and consuming a cocktail of illicit substances every few hours. You report having been awake for three days at the time immediately prior to your current offending.
60In terms of your mental health, Ms Bovenkerk assessed you as 'a psychiatrically complex individual, presenting with a number of mental health conditions, impairing [your] functioning across a number of domains related to cognition, affect and behaviour'. You were diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Autism Spectrum Disorder (ASD) when you were approximately six years of age and were medicated at that time with Ritalin and Catapres. You did not like taking pills and ceased taking your medication when you were 15 years of age. You were also assessed by her as having low average range for general cognitive ability consistent with your diagnosis. Ms Bovenkerk confirmed your childhood diagnosis of ADHD and clinically significant traits consistent with your pre-existing diagnosis of ASD.
61Ms Bovenkerk assessed you for the presence and severity of Post-Traumatic Stress Disorder and found you have developed PTSD with comorbid depression and anxiety from your adverse childhood experiences. She also opines that leading up to your offending, you would have met the diagnostic criteria for Alcohol Use Disorder and Unspecified Stimulant-Related Disorder (due to varied substance use).
62Ms Bovenkerk does opine that imprisonment would likely weigh more heavily on you than a person without ASD, ADHD and PTSD. There is risk of inappropriate of disproportional responses in that environment and she opines that you are unlikely to be adequately treated. I take these findings into account in a general sense as to your experience and likely experience of the custodial setting but not such as to enliven Limb 5 of the decision in Verdins & Ors.
63
You have little contact with your family. You do keep in contact with your
stepbrother and with your mother and speak to her approximately every four to six weeks whilst in custody. You have also met a cousin whilst incarcerated, which has been a positive relationship for you.
64In terms of personal relationships, you have had one previous serious relationship that spanned about 18 months. You planned to marry, however broke up after relocating to Melbourne. You have had other short-term relationships that have often been marred by mutual drug use and ended badly. Prior to going into custody, your main social circles consisted of your 'street family': a group of peers who also experience homelessness and use illicit substances. You do not expect to resume those social connections upon your release.
Criminal history
65Your prior criminal history does form part of your personal circumstances.
66Your criminal history from New South Wales and Victoria has been tendered.
67Turning firstly to your New South Wales priors, you first appeared before the Toronto Local Court on 28 August 2013 for charges of enter enclosed land without lawful excuse, destroy or damage property and fail to appear in accordance with an undertaking of bail. You were fined $150 and received a s10A conviction and a six-month bond.
68On 25 November 2013, you appeared before the Broadmeadow Childrens' Court for a single charge of possess housebreaking implements and were sentenced to a 12-month probation order.
69On 7 January 2015, you appeared before the Maitland Local Court for a range of offences, which included possess unauthorised firearm, destroy or damage property, possess ammunition without a licence, custody of a knife in a public place, goods in personal custody suspected of being stolen, possess unregistered firearm, possess equipment for administering prohibited drugs, possess prohibited drug and breaking and entering into a house. Your penalties included community service orders, bonds, probation and fines.
70On 9 July 2015, you again appeared before the Maitland Local Court for offences which included custody of a knife, possessing goods suspected to have been stolen, destroy property and possess firearm. You were sentenced to a term of imprisonment for a period of two months.
71On 6 August 2015, you appeared before the Toronto Local Court in relation to charges of possess prohibited drug, custody of a knife in a public place and goods in personal custody suspected of being stolen. You were sentenced to a bond for a duration of two years.
72
You again appeared at the Toronto Local Court on 22 November 2016 for possession of a firearm and break and enter a house. You were sentenced to a term of imprisonment for four months, which was suspended upon entering a
four-month s12 bond.
73There was then a four-year gap in your criminal history. This is linked to you travelling to Victoria pursuing a relationship and a new life.
74You first appeared in the Victorian jurisdiction at the Melbourne Magistrates' Court on 20 April 2020 for charges of possess methylamphetamine and robbery. You were sentenced to a term of imprisonment for five months, with 145 days reckoned as served. You also received a nine-month community corrections order with therapeutic conditions for assessment and treatment for mental health and drug abuse and dependency.
75You would have been subject to this corrections order at the time of your offending on 21 June 2020, which is an aggravating feature to your offending.
76On 22 February 2021, you again appeared at the Melbourne Magistrates' Court for charges of possess cannabis, possess methylamphetamine, and possess controlled weapon without excuse. You were sentenced with conviction to an adjourned undertaking for a period of 12 months and ordered to obtain a mental health care plan from your GP and participate in counselling and treatment as recommended by your counsellor or psychologist.
77While you are not to be punished for your criminal history a second time, it is relevant to assess the weight to be given in sentencing to specific deterrence, denunciation and protection of the community. It is also a mechanism with which to assess your moral culpability and prospects for rehabilitation.
78Your offending of the past has not attracted significant terms of imprisonment indicating that it is not at the higher end. You do not have a history of sexual offending, and, apart from a charge of robbery, you do not appear to have a history for violence.
Prospects of rehabilitation
79At the time of her assessment of you in November of 2023, Ms Bovenkerk was of the opinion that you posed a moderate risk of sexual recidivism linked to your difficulties with social adjustment, and ongoing problems with your mental health and substance abuse contributing to a lack of coping and poor self-awareness. She was also of the opinion that if these considerations were addressed, then it is likely to have a mitigating effect of your risk profile.
80Do we still have the prosecutor here? I am sorry. She is? I just cannot see the tile. I do not see Ms Stokes as physically being present. I will just adjourn temporarily.
(Short adjournment.)
81Ms Stokes, I am sorry, I do not know when we lost you.
82MS STOKES: Apologies, Your Honour. You were going through the accused man's criminal history so I don't think I missed anything too important hopefully.
83HER HONOUR: Did you want me to go backwards?
84MS STOKES: No, that's fine, Your Honour.
85HER HONOUR: All right. I am about to address the prospects of rehabilitation and I will start at the first aspect of that.
Prospects of rehabilitation
86At the time of her assessment of you in November of 2023, Ms Bovenkerk was of the opinion that you posed a moderate risk of sexual recidivism linked to your difficulties with social adjustment, and ongoing problems with your mental health and substance abuse contributing to a lack of coping and poor self-awareness. She was also of the opinion that if these considerations were addressed, then it is likely to have a mitigating effect on your risk profile.
87I observe the four-year gap in your criminal history where I presume you were complying with community expectations and that the offences before me are your most serious to date.
88You have been on remand since your arrest, a total of 350 days, including today.
89This is the longest period of time which you have spent in custody to date.
90Whilst in custody, you have worked in the bakery, engaged with your Aboriginal Case Worker and have participated in cooking and aboriginal art classes. You have now taken on a new role as a carer for another prisoner.
91An email form Bryce Taylor, Key Worker with Aboriginal Programs at Ravenhall Correctional Centre, confirms that you are “engaged in our cultural hub participating in group programs and activities with other aboriginal clients and he is also engaged with one-on-one catch ups with myself where we discuss concerns, goals, coping strategies and so forth”'. I am told that you are also linked in with The Torch Project, which provides arts industry and cultural support to First Nations Offenders and the ability to earn some income through art work.
92This is of some significance in circumstances where you have otherwise been disconnected from culture and have now had the opportunity to see what it offers you.
93Noting that you told Ms Bovenkerk you had continued to use drugs in custody, you have more recently commenced a Buprenorphine program. This is the first time which you have accessed drug replacement therapy. Since November of 2023, you have been active in Narcotics Anonymous.
94You seem to be taking the opportunity to address issues, which would otherwise contribute to your future risk and I encourage you to continue to do so.
95Positively, you have been approved for housing in the community and upon your release you seek to participate in the National Disability Insurance Scheme (NDIS) and hope to obtain employment after receiving the benefits of the structure and routine of working whilst in prison.
96Whilst your prospects otherwise appear somewhat guarded, your prospects are capable of considerable improvement with appropriate treatment, support services and a willingness to engage.
Sentencing Principles
97I have had regard to the decisions of Clarke (a pseudonym) v The Queen [2022] VSCA 89 and R v Khem [2008] VSCA 136 as referred to me by the Crown to assist with relevant principles. They were not said to be comparative cases.
98I have also referred to the standard sentencing scheme which operates in relation to the charge of rape which carries a standard sentence of 10 years.
99The standard sentencing scheme became effective on 1 February of 2018 and applies to offences committed after that date.
100The period specified as the standard sentence is 'the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness'.
101In determining the objective factors, the court must consider only the nature of the offence and not your personal circumstances. This determination is only intended to give content to the hypothesised mid–range offence. Nothing in the scheme circumscribes the manner in which the court is to assess the seriousness of the offence.
102Pursuant to s11A(4)(c) of the Sentencing Act 1991 the court is required to set a non-parole period of not less than 60% of the head sentence, if the court is sentencing the offender to a head sentence of not less than 20 years, unless it is not in the interests of justice to do so.
103The Court of Appeal has said that the key requirement for the court is for the court to take into account the standard sentence as a relevant sentencing factor but, as with the maximum penalty, it is a legislative guidepost. It does not affect the instinctive synthesis, it does not permit 'two-stage sentencing', or otherwise affect matters the court may or must consider when sentencing. A court does not start by asking whether or not the standard sentence should be imposed and then work its way up or down.
104Consideration of current sentencing practices is necessarily limited by the sentences previously imposed if the offence in question was subject to the standard sentencing scheme.
105Your Counsel submits that your offending is below the mid-range for the offence of rape. In written submissions, the Crown argue that the objective seriousness of the offending and your moral culpability are 'very high'.
106For Charge 1, I have had regard to the standard sentencing scheme. The sentence that I intend to impose for this charge will be lower than the standard sentence proscribed in consideration of s5(2) of the Act, taking into account the nature and gravity of your offending and the lack of aggravating features. Otherwise, I have also had regard to your personal circumstances, the expert report, other mitigatory matters to which I have been referred and relevant sentencing principles.
107Now, this is the moment where I check in with each of you, Ms Stokes, and, Ms Grant, whether there are any matters that you need to raise or any factual errors.
108MS GRANT: None that I need to raise, Your Honour.
109HER HONOUR: All right. Ms Stokes?
110MS STOKES: No, Your Honour.
111HER HONOUR: Thank you.
112The basic purposes for which a court may impose sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim. I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and reintegrated into society. I do express my denunciation of your behaviour.
113I have taken into account the sentencing purposes referred to in section 5 of the Sentencing Act where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty.
114In relation to Summary Charges 3 and 4, fail to answer bail you are convicted and fined the amount of $250 on each charge.
115In terms of the offences subject to the indictment, I see merit in an extended period of supported transition to your return to the community.
116In relation to Charge 1, rape, you are convicted and sentenced to 5 years and 3 months imprisonment. This is with a minimum of 3 years and 4 months before you are eligible for parole.
117I reckon 350 days as having been served noting that includes today and I am sentencing in the afternoon.
118Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 7 years and 6 months' imprisonment with a minimum of 5 years 4 months' imprisonment before being eligible for parole.
119Thank you to the parties for their assistance. If there is nothing further, I will close the court until tomorrow and give you the opportunity to speak privately with your client.
120MS GRANT: As the court pleases.
121MS STOKES: If the court pleases.
122HER HONOUR: I will amend that. Friday, not tomorrow. Thank you.
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