Director of Public Prosecutions v Wilson
[2018] VCC 228
•8 March 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL JURISDICTIONCR-17-01706 & CR-17-01758
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DYLAN WILSON |
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| JUDGE: | HER HONOUR JUDGE GAYNOR |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 8 March 2018 |
| CASE MAY BE CITED AS: | DPP v Wilson |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 228 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr. P. Bourke | Office of Public Prosecutions |
| For the Accused | Ms. J. Pisasale |
HER HONOUR:
1Dylan Wilson, you have pleaded guilty before me to a number of offences contained in two indictments. On Indictment G12613669B, you have pleaded guilty to six charges of theft and one charge of attempted armed robbery. On Indictment G12613669A, you pleaded guilty to one charged of armed robbery. The facts underlying your offending are as follows, beginning with the offending relating to Indictment G12613669B.
2At about 7.30 on 5 June 2016, a grey Hyundai was stolen from the owner, Kelly Huismann in Pakenham. You drove, or were a passenger in this stolen vehicle while you were committing further offences between 5 and 11 June 2016. Your use of this car underlies Charge 1 on the indictment, theft.
3At about 6.13 pm on 5 June 2016, you were a passenger in this Hyundai when it was driven by a co-accused to the Coles Express Service Station in Narre Warren. You were one of four people in the car. You were sitting in the rear driver's side passenger seat. One of the people in the car got out and began filling it with petrol.
4While this was happening, David Donovan drove his blue Ford into the service station and parked near the store entrance, turning the car off, but leaving it unlocked with the keys in the ignition when he went into the store to use the ATM. When you saw this, you got out of the Hyundai, walked over to the Ford Falcon and got into it and turned the car on. You then drove quickly out of the service station, screeching the tyres.
5The Ford Falcon was later found abandoned in Berwick at about 8.50 pm that night. Those actions underlie Charge 2 on the indictment, theft.
6At about 4.40 pm on Tuesday 2 June, the victim, Cleon Hatzidimitriou parked his black Audi sedan at the Casey Central Shopping Centre, near the Coles Express Service Station in Narre Warren.
7You were seen on CCTV footage walking along the shopping strip outside the Casey Central Shopping Centre carrying a thin silver object and looking into parked cars.
8You put the silver object in your right pocket after a while then walked around the area with two other people before going to the Coles Express Service Station where you looked through the window of the car parked at a petrol bowser. You then walked back to the shopping centre.
9At about 9.05 pm Mr Hatzidimitriou returned to his car, and as he was about to get in, he saw you come up to him from the direction of the service station. You came up to Mr Hatzidimitriou and said, "Give me your keys." He said, "No." You repeated the demand and showed him what Mr Hatzidimitriou thought was a sharp object which you were holding at waist height.
10Your actions in doing this underlie Charge 3 on the indictment, attempted armed robbery. Mr Hatzidimitriou was scared and ran away, locking his car by remote control as he did. He rang his father who came and picked him up, and soon after, Mr Hatzidimitriou was driving in the area with his father when he saw you sitting at a bus stop with two other men. You recognised Mr Hatzidimitriou and began running after the car.
11At about 10.46 pm on Wednesday 8 June 2016, you drove the stolen Hyundai into a BP service station in Narre Warren, Cranbourne Road, Cranbourne North. You parked the car at a bowser and put $41.12 worth of petrol into the car then drove off without paying. Those actions underlie Charge 4 on the indictment, theft.
12At about 6.09 am on Thursday 9 June, you were in the front passenger seat of the stolen Hyundai when it was driven by a co-offender into the Coles Express Service Station. You put $48.55 worth of petrol into the car and then you and your co-offender drove off without paying. Those actions underlie Charge 5 on the indictment, theft.
13About two hours later on the same day, you were in the stolen Hyundai when it was driven into a car park at the Hunt Club Village Shopping Centre near the Woolworths store in Cranbourne East. You and another male, Jason Phelps, walked into the Woolworths store where you filled a plastic trolley with about $150 worth of clothing and walked out without paying. Woolworths staff members followed the two of you out to the car park where you got into the car with the stolen items and drove off. Your actions in stealing that clothing underlie Charge 6 on the indictment, theft.
14At about 7.40 pm on 11 June 2016, you were in the front passenger seat of the stolen Hyundai when it was driven by a co-offender into the Coles Express Service Station in Narre Warren. You put $30 worth of petrol into the car and then got back in and the car drove off without paying. Those actions underlie Charge 7 on the indictment, theft.
15The Hyundai was found abandoned in a street in Berwick on 12 June 2016. On 27 July 2016, you were sentenced to detention in a Youth Training Centre for nine months on other matters.
16On 24 August 2016, you were interviewed at Malmsbury Youth Justice Centre, and answered "no comment" to the allegations. You were eventually charged with these matters on 15 September 2016.
17I now turn to the offending contained in Indictment G12613669A, a charge of armed robbery.
18At about 3.45 pm on 10 June 2016, you were walking along Golf Links Road in Berwick, then stopped and asked a woman called Amanda Hennam for a cigarette. She said no, it was her last cigarette, and she walked off. Ms Hennam then noticed a car drive nearby, which was a grey hatchback, and saw you get into it.
19At about 4 pm on 10 June, the victim Elly Merlot, drove to the Eden Rise Shopping Centre, parking in the car park near O'Shea Road. She stayed in the car using her phone. While she was sitting there, you approached the driver's side door and opened it and told her to get out. She asked who you were and you said, "Get out the fuckin' car." Ms Merlot said, "Can I get my bag?" At the time you had a metal object in your right hand, which you tried to cover with your sleeve but it was poking out. Ms Merlot believed the metal object was a firearm.
20You said to her, "Leave your fucking bag" and kept saying, "Get out" and then asked her, "Are there keys in your bag, is it a push-start?" She replied, "Yes, I just want to take my phone" and you said, "Leave your fuckin' phone." You then kneed her softly in the face and pointed the metal object at her shoulder.
21A second man approached the driver's door, although Ms Merlot could not see him properly. She got out of her car and you got in. The other man went back to the grey hatchback which, it appears, was the grey Hyundai in which you had been committing other offences which I have already outlined.
22Ms Merlot walked away from her car after you got in and screamed out for help and kept looking back at her car. It appeared you could not work out how to start it - and Ms Merlot saw you stay in the car for about a minute, but then you got out taking her handbag.
23This bag was a Marc Jacobs leather bag containing about $145 in cash, her Samsung Galaxy mobile phone, car and house keys and a driver's licence. Only the car keys were ever found. You actions in stealing the bag underlie a charge of armed robbery.
24Ms Merlot saw you get back into the grey hatchback which drove away, and she saw there were about five people in the car. The victim was extremely scared about what you were going to do to her and was later very scared that you had all her personal details and that people would come to her house.
25Ms Hennam had gone back to the Eden Rise Shopping Centre and noticed Ms Merlot running around the car park screaming and panicking, crying out, "Somebody help me?" and she called 000.
26Ms Hennam noticed you walk around the back of Ms Merlot's car and she recognised you as the man who had asked her for a cigarette earlier. She saw you get into the grey car that she had seen earlier. She comforted Ms Merlot while police arrived. Ms Merlot was extremely distressed.
27You were interviewed in relation to other offences to which you made no comment and you made no comment in relation to this matter.
28There was an amount of to-ing and fro-ing insofar as a final hearing of these matters was concerned. You offered to plead guilty to the charges contained on Indictment G12613669B on 9 August 2017, after two committal hearings. This offer was accepted by the prosecution later in August.
29There was a committal hearing in relation to the armed robbery although the matter was partially resolved. You pleaded guilty to the charges on Indictment G12613669B, which were then listed for hearing in the County Court and the armed robbery charge was listed for trial.
30This matter first came before me on 6 November 2017 at which time I ordered a neuro-psychological report. On 31 January 2018, the matter came back, but there were outstanding matters in the Magistrates' Court and the armed robbery matter was still outstanding. These matters were finally resolved on 12 February 2018 and the armed robbery plea was set down before me on 19 February 2018.
31Eventually I heard the plea in relation to that matter on 1 March 2018, and the matter was further adjourned to today for the sentencing hearing. You have been held in Youth Justice at Malmsbury since your arrest. I now turn to your personal history.
32You are aged 20 and have had an extremely difficult life. You were placed in care when you were aged six weeks being the third child born to your parents. You have two older brothers who have intellectual difficulties. Your parents were both chronic substance abusers and you were in fact born with foetal alcohol syndrome.
33You were returned to, and taken from your parents 15 times until you were 19 months old. Whilst at home you were subjected to violence, in particular from your older brothers. Eventually you were placed with your foster mother, Nicole Caden, when you were 19 months. She has written a letter to the court in which she detailed the difficulties that you presented with when you first came to live with her.
34She said that you presented with malnutrition, repeated head-banging on the floor and walls, that you had large callouses on your forehead from this, you engaged in smearing, spitting, hitting, silent crying, drooling when you were distressed, and had an extreme reaction to access visits with your family. You had a fear of visitors and you experienced severe separation anxiety from Ms Caden.
35From the very start, Ms Caden was provided with therapeutic intervention on an on-going basis, although there was not a great deal of change in your behaviour over the years.
36Unsurprisingly, you experienced a great deal of difficulty at school. You had severe behavioural problems and you could not function without the presence of Ms Caden as an aide. You had experienced numerous suspensions and expulsions from primary school. You were diagnosed with a low IQ, Attention Deficit Hyperactivity Disorder, an Oppositional Defiance Disorder, and you were medicated for ADHD.
37Eventually, you attended Kambrya Secondary College, but were expelled from there, eventually attending a second high school in Narre Warren, but ultimately left in Year 7, after repeatedly school-refusing.
38Ms Caden wrote that your teen years were marked by an inability to be a full-time family member. There was a big argument involving some violence with Ms Caden and her partner Mr Wilson, when you were 13, and so you were sent to several foster placements over the next several years. Ms Caden said this resulted in constant feelings of you of inequality and low self-esteem.
39She described a range of problematic behaviours that you exhibited in your teen years such as impulsivity, thoughtless response, low frustration and tolerance, extremely literal interpretation of what others were saying, leading to frequent conflict, difficulties with focus and inability to appreciate the consequences of your actions, and she noted that you were prone to addictions and were vulnerable due to your small size and violence and bullying from your peers.
40Ms Caden begged for proper testing to determine the level of any acquired brain injuries you may have suffered over the years.
41A report as to your suitability for placement in Youth Justice by persons who had been dealing with you in the Youth Justice system did not make for entirely satisfactory reading.
42I should, at this stage, refer to your prior criminal history. That began in 2013 in the Children's Court where you were placed on a bond for burglary, theft, and shoplifting. There was a second bond that year for shoplifting.
43You were placed on a 12 month youth supervision order in September of 2014 for assaults, thefts, shoplifting, engaging in reckless conduct endangering serious injury, offensive behaviour, motor theft, unlicensed driving and possession of methyl-amphetamine.
44In August of 2015, you were placed on a six month CCO for motor car theft, unlicensed driving and offending whilst on bail.
45On 9 November 2015, you were placed in Youth Justice Centre for breach of the youth supervision order and you were also dealt with for charges of motor vehicle theft, theft, attempted robbery, unlawful assault, being drunk and bail offences. You have since been dealt with for other matters for which you received a nine month youth justice centre.
46Returning to the Youth Justice report, it was noted that you had been held at Malmsbury Youth Justice Centre since your arrest in 2016. Your behaviour there was described as unpredictable and of concern, and you had been involved in a number of assaults, as well as being the victim in a number of assaults.
47You were also described as targeting vulnerable young people on the unit at Malmsbury. You spent some time in adult custody at Marngoneet Correction Centre where you were targeted by a gang and forced to organise illicit drugs being brought to the centre and it was noted that you were concerned about your safety if you were sent to adult gaol as a result of that previous activity.
48The report noted destructive behaviour by you at the foster home, meaning that you could no longer live there on a full-time basis and that subsequent placements had broken down, until you eventually returned to live with Ms Caden. However, she cut off contact with you after you were dealt with for the drug dealing at Marngoneet until you proved yourself. Telephone contact and other visits have been re-established, and she does remain supportive of you.
49You have a long history of self-harm including head-banging and self-stabbing to your neck and stomach. You refused to take your ADHD medication from the age of 13. Unsurprisingly as well, you have a long history throughout your teens, of alcohol, cannabis and ice use, particularly ice use, at its' peak smoking about 17.5 points of this a day which is a very big habit indeed.
50It was noticed that your ice use was a significant contributing factor to your current offending. Indeed, it was noticed that most of your offending occurred when you were substance-affected and that you predominantly engage in motor car theft.
51Youth justice has been involved with you since you were about 15. You underwent a seven day detoxification program in that year but subsequently fell back into ice use.
52However, very much on the bright side, whilst in custody at Malmsbury, you have begun your Year 11 Intermediate VCAL. In fact, you have completed most of it, and begun working towards your Year 12 VCAL. This is most surprising, and most encouraging, given that you left school in Year 7.
53Ultimately, the recommendation from Youth Justice that you were not suitable for placement in a Youth Justice Centre. The following positive factors were noted that, (1) you are now taking some responsibility for your offending and recognise the link between your drug use and your offending behaviour. Secondly, your offending behaviour did take place in the context of being under the influence of drugs. Thirdly, you were once again supported by your adoptive family.
54However it was noted that this last offending occurred whilst you were on Youth parole which you had breached. While on Youth parole, you failed to attend as directed and kept using drugs. Since your return to Malmsbury, you have been involved in several altercations, as I have mentioned, with peers and your behaviours were considered unpredictable. You have also targeted vulnerable young people on the unit, and because you are at the upper end of the age range available for placement in a Youth Justice system it was felt that your failure to respond to Youth Justice detention in the past, your persistent serious offending, your substance-abuse and negative impact on other vulnerable young people meant that you were unsuitable for further placement.
55I had adjourned the matter, as I said, to obtain a neurological report and that report dated 28 December 2017 made for surprising and very welcome reading.
56I should add that since you have been in custody, you have been placed on a medication regime where you take Seroquel for auditory hallucinations which developed because of how much ice you were using, an anti-depressant, a mood stabiliser and appropriate ADHD medication.
57In summary, the neuro-psychologist, Dr Sarah Frati, found that your intellectual functioning since you were placed in Malmsbury has very much improved. What she said was that:
"I am pleased to say that against a pre-morbid estimation of borderline to low average range, Mr Wilson's current performance showed intact abilities and relative strengths, low average to average, in a number of cognitive domains. In other words, he performed at the best of his capabilities."
58She stated that:
"Overall, Mr Wilson's current performance showed a relative improvement compared to his performance almost seven years ago. Specifically he showed intact skills in his non-verbal reasoning, memory, speed of processing and most of his executive functionings.
"Most positively, his immediate attention span and working memory ability which were at the severely impaired range in 2010, now fall within normal limits and are in the average range. Qualitatively, Mr Wilson showed a reasonably good insight. He was able to remain focussed and engaged throughout his session."
59It was her opinion that your cognitive profile was not showing any clear moderate to severe impairments that were typically seen in Acquired Brain injuries due to traumatic brain injury or alcohol and substance abuse. She stated:
"Despite his past history of significant substance abuse, his overall performance did not demonstrate a decline in his ability, in comparison to his own pre-morbid estimates or his previous cognitive assessment.
"In other words, he performed at the best of his cognitive potential, showing relative good skills in a number of domains.
"Most positively, his attention and working memory which were expected to be reduced due to his ADHD diagnosis, were some of his best skills. As such Mr Wilson's profile appears not consistent with any specific neuro-psychological syndromes."
60She said:
"It is important to say that over the past 13 months he did not engage in any alcohol or substance abuse, and was reportedly compliant with his medication regimes. These factors, together with the possibility for
Mr Wilson to feel safe and engage in meaningful activities of a systemic basis, could be considered key factors in this positive outcome."
61She made the point that because you started using drugs and alcohol at a very young age, that together with your history of severe head-banging, if you relapse into heavy drug and alcohol use, for risk for an acquired brain injury is high. Do you understand that Mr Wilson, does that make sense to you?
62OFFENDER: Yes, yes Your Honour.
63HER HONOUR: She is saying that you are performing, that your intellectual function is performing really well, but that if you fell back into drug or alcohol use, the risk of brain injury occurring would be really high, okay.
64OFFENDER: Yeah, yes Your Honour.
65HER HONOUR: So overall, what she is saying is, that despite the problems you have had in Malmsbury, you have really improved. You have not used drugs or alcohol, you have been on a good medication regime, and most importantly, you have undertaken study
66OFFENDER: Yep.
67HER HONOUR: And because of all that, your brain function has improved greatly. All right? This is very, very welcome news.
68What I have gone on to say, is that in other words, your stay in Malmsbury has had a most positive effect. Despite a number of problems whilst there, you have desisted from further drug and alcohol use, you have undertaken study and your brain functioning has improved.
69This is a remarkable turnaround. The court very rarely sees something like this. Additionally, it was reported to me that your behaviour at Malmsbury has improved. I specifically asked for a report on your behaviour at Malmsbury in the adjourned period before giving this sentence, and my understanding was that that behaviour has improved.
70Your offending, you have to understand, was extremely serious. It involved much violence, much dishonesty, and it went on and on over a number of days. You have caused terrible distress to your victims.
71In particular, Ms Merlot who was absolutely terrified by this incident, who went on to be terrified that because you had the details of her home, that people would visit her there and would commit further offences. She has developed anxiety and insecurity and that is entirely in line with what victims of violent crime do experience. It is not just that they lose their possessions, they lose their sense of safety, they experience terror, they have ongoing difficulties for many years and you caused that.
72However, it is my view that you would be vulnerable to exploitation and abuse in adult custody. The important educational opportunities offered to you at Malmsbury would not be available in adult gaol. This extremely welcome and long-awaited improvement in your future capacity to operate safely in the community, indeed your whole future prospects, would almost certainly be destroyed in adult gaol.
73For these reasons, I have decided to sentence you to a term of detention in Youth Justice Centre rather than adult gaol. In other words, I am sentencing you to a Youth Justice Centre term because of the improvements that you have shown, because I want them to continue.
74In my view, adult custody has the capacity to destroy those improvements. You must remember, Mr Wilson, that this is the last time a court will ever be able to place you in Youth Justice.
75Next month you will turn 21, and you will therefore be too old to be placed in a Youth Justice Centre ever again. Do you understand that?
76OFFENDER: Yes, Your Honour.
77HER HONOUR: Your previous criminal history is now so bad, that any offending by you in the future will result in adult gaol time, and you know that if you start abusing drugs and alcohol, you will absolutely re-offend. So essentially, you have got to remember, if you use drugs and alcohol, they are ultimately going to result in a gaol sentence for you.
78I also need to say, is that even though you have had a long history of offending and have been offered many opportunities by the courts, none of which you have taken advantage of, that in the current offending you have continued to abuse drugs and alcohol and then to offend.
79People can have a lot of sympathy for the terrible circumstances of your birth and early years and the mental and physical injuries done to you.
80There comes a point, however, where enough is enough, and all the court is left with, despite your young age and the need for rehabilitative measures, is protection of the community.
81So you have got to understand this. You have come to the end-of-the-line Mr Wilson, about being given opportunities by the court.
82OFFENDER: Yes, Your Honour.
83HER HONOUR: Okay? This is it. You have got to make this work; if you do not make this work, if you do not stick to the conditions on Youth Parole, your life is just going to be one of in and out of gaol, which I know you do not want. All right?
84OFFENDER: Yes, Your Honour.
85HER HONOUR: And it is going to be adult gaol. However, as I have said, your rehabilitative prospects seem to be the best that they have ever been, and I need to make the point, the comment, that no doubt the fact that you have reached this point is largely due to the great love shown to you over the years by Ms Caden and her family. Indeed, you told me at the last hearing that you wanted to make your mother proud.
86OFFENDER: Yes.
87HER HONOUR: So your aim is to undertake eventually a bricklaying apprenticeship. Again, as I have said, I am most reluctant to interrupt this improvement which has come at last, by placing you in adult custody.
88I therefore sentence you as follows:
89On Indictment G12613669B, on Charges 1 and 2, 4,5,6, and 7, you are sentenced for four months' detention in a Youth Justice Centre, and on Charge 3 you are sentenced to two years in a Youth Justice Centre.
90On Indictment G12613669A, armed robbery, you are sentenced to two years detention in a Youth Justice Centre. The base sentence will be the sentence imposed on the armed robbery, on Indictment G12613669A.
91I order that six months of the sentence on Charge 3 on Indictment G12613669B and one month on each of the sentences on Charges 1, 2, 4, 5 and 6 of that indictment, be served cumulatively to all other sentences and to each other.
92The total effective sentence is therefore three years' detention in a Youth Justice Centre.
93Okay? Now, as you know what that will mean is, you will probably be placed on Youth Justice parole, okay, after a period of time.
94OFFENDER: Yep.
95HER HONOUR: So it is really important that you abide by the conditions of that parole. Okay?
96OFFENDER: Yes.
97HER HONOUR: The other thing is this; it is my comment that I note that the last time you were on Youth Justice parole you were living independently. For what it is worth, it is my comment that I do not think you are a person who handles independent living well, and hopefully you can be set up when you are released on Youth parole, in some sort of structured setting. It may, hopefully it will be with Ms Caden and her family, but if not it is my belief that you need a structured environment where you have got some support in the community.
98Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of four years in adult gaol and order that you serve a minimum term of two years.
99All right? So that is how serious your offending got, Mr Wilson.
100OFFENDER: Your Honour, does it run concurrent with my sentence that I'm doing now?
101HER HONOUR: Yes, because it starts today, so it will run from today.
102OFFENDER: So today starts three years, yeah?
103HER HONOUR: Yes, yes.
104OFFENDER: All right, thank you.
105HER HONOUR: Is there any PSD?
106MR BOURKE: No, Your Honour.
107HER HONOUR: There is no PSD. So it starts from today. Now 24 is the oldest anyone can be held in a Youth Justice Centre. I do not expect you will serve the whole of the three years in Youth Justice, you will get Youth parole and you have really got to work to managing for yourself in the community. It is all very well being in Malmsbury where there is lots of structure around you and things like that. You are going to have to take responsibility for yourself at some stage Mr Wilson. Do you reckon you are going to be able to do that?
108OFFENDER: Yes, Your Honour.
109HER HONOUR: What do you reckon is going to happen if you do not? Just tell me so I know you know?
110OFFENDER: I'll go to gaol.
111HER HONOUR: Yes, and what do you think is going to be the biggest cause of you going to gaol?
112OFFENDER: If I use drugs or alcohol.
113HER HONOUR: Exactly. Exactly. You have done so well this time. You have just moved out of a terrible place into a really bright place, and a big part of that also is the medication that you are on. You need to keep going with your medication regime when you are back in the community, okay?
114OFFENDER: Yep.
115HER HONOUR: So I wish you well Mr Wilson.
116OFFENDER: Thanks Your Honour.
117HER HONOUR: I hope you get your Year 12 VCAL and I hope you get that bricklaying apprenticeship, all right?
118OFFENDER: All right, thanks Your Honour.
119HER HONOUR: Thank you very much.
120OFFENDER: Thank you.
121MR BOURKE: Your Honour, it's agreed at the Bar table, it may have just been a slip by Your Honour, the cumulations that you announced, would only be - - -
122HER HONOUR: Yes.
123MR BOURKE: - - - would be one month shy of three years. I think Your Honour failed to announce a month in relation for Charge 7 on the first indictment.
124HER HONOUR: I'm sorry, it's meant to be - yes it's Charge 7 as well - thank you for that.
125MR BOURKE: And the other - the only other thing that occurs to me Your Honour, is that whether it's necessary for Your Honour to order that this sentence is concurrent with his present sentence.
126HER HONOUR: All right, well I will order that, for safety's sake. This sentence is to run concurrently with all other sentences you are undergoing.
127MR BOURKE: Thank Your Honour.
128HER HONOUR: All right. Thank you. So your counsel will explain all that to you. Is there anything that I've left out?
129MR BOURKE: No, Your Honour.
130HER HONOUR: Thank you very much. Good luck Mr Wilson, all right?
131OFFENDER: Thank you.
132HER HONOUR: Thank you.
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