DPP v Younan, Younan and Talj
[2001] VSC 402
•27 September 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1492 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SARGON YOUNAN MICHAEL ISHA YOUNAN MIREILLE TALJ |
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 August 2001, 4 September 2001 | |
DATE OF SENTENCE: | 27 September 2001 | |
CASE MAY BE CITED AS: | DPP v Sargon Younan, Michael Isha Younan and Mireille Talj | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 402 | |
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Criminal law – sentencing – murder – manslaughter – three offenders – plea of guilty to murder by one offender and to manslaughter by two offenders – manslaughter by agreement to assault less than inflicting serious injury – considerations applicable – recommendation to Adult Parole Board as to one offender that pursuant to s.244(1) Children and Young Persons Act 1989 the Board consider transferring offender to Youth Training Centre to serve sentence for manslaughter.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Morgan-Payler QC with Ms S. Pullen | OPP |
| For S Younan For M. Younan For M. Talj | Mr I. Crisp Mr P. D’Arcy Mr I. Hill QC | Geoffrey Tobin Galbally & O’Bryan McKean & Park |
HIS HONOUR:
Victoria Skidmore was a loving and loved member of the Skidmore family. She lived at home with her parents and her two brothers and sisters. She was the fourth child of a happy marriage. She was born on 9 January 1982 and was 18 years of age when she died.
Ms Skidmore had been educated at a leading girls' college in the eastern suburbs of Melbourne. In 1999 she completed year 12 and in the year 2000 she was undertaking a hospitality course at a TAFE college. Ms Skidmore was a young woman on the threshold of adult life. She lived life to the full. She made mistakes, as we all do. Tragically, she made one fatal mistake: she chose the wrong boyfriend.
In April 2000 at the Heat Nightclub at Crown Casino, Ms Skidmore met you, Sargon Younan. She and you immediately formed a relationship. You were devoted to each other. However, in June 2000, Ms Skidmore broke off the relationship because of your extreme jealousy and possessiveness. After persistent importuning by you, in July 2000 Ms Skidmore commenced seeing you again. However, the relationship did not regain its original fervour as far as Ms Skidmore's feelings were concerned. She started seeing another young man, Mr Martin Prouse. She finally broke up with you on 3 August. Within three weeks you had killed her.
During both periods of break-up you constantly pursued Ms Skidmore. Witness after witness has spoke of your pursuit of her. You parked off her home constantly.
You followed her. You telephoned her. Ms Skidmore became progressively alienated and afraid because of your conduct. Her parents were concerned for her welfare. Her mother spoke to her. Her father spoke to you. In June after the first break-up, you said to Mr Skidmore, "I want to give you a warning: if Victoria keeps hanging around a certain group of people, she's going to be in trouble." Mr Skidmore said to you, "What do you mean by that?" You replied, "You'll find out", and walked off. Mr Skidmore was concerned by what you said. He counselled his daughter against seeing you further, but neither Mr nor Mrs Skidmore had any way of knowing what dark contemplation was yours.
After the first break-up and even after the second break-up, Ms Skidmore still had some feeling for you. It is common for people to have mixed feelings about those they once loved and have been alienated by. But her concern grew, as also did your dark contemplation.
In July, you physically assaulted Ms Skidmore as you drove her and a friend Jessica Akopian home, calling her a liar and a cheat. After the first break-up in July, your behaviour so concerned Ms Skidmore that she attended the Melbourne Magistrates Court with a friend, Narelle Smith, and sought an interim intervention order against you. Unfortunately because she did not have your home address, the counter clerk sent her away to complete the application form. The day after you killed her, the almost completed form was found in her bedroom. It stated:
"He's been found outside my home on numerous occasions, made threatening phone calls, sent messages ..... He says if he can't have me, no one can. I am scared of what he might do or get someone to do."
That document is not proof against you of the facts she alleged in it, but it is proof of Ms Skidmore's apprehension and fear.
In mid 2000 when Ms Skidmore commenced to see her new boyfriend, Mr Martin Prouse, he observed that you would constantly ring her. She showed him text messages you kept sending her. One of them was, "If I can't have you, no one would." That is admissible evidence against you because the receipt of a text message is no different from hearing your voice once it is established that the message was sent by you. Here that is plainly established by implication from all the admissible circumstances.
On the Saturday before she was killed, Ms Skidmore was working at the MCG in promotion work, which she did part-time for income. Her employer, Mr Donald Drayton, observed the distress and fear she plainly was in. After discussion between them, he told her to take time off from work because of that distressed state.
In August 2000 you were attending a gymnasium in Preston. You told a client of the gym, Mr George Trifonos, whom you had befriended, of your complaints concerning Ms Skidmore. You then asked Mr Trifonos if he could get you a gun. Mr Trifonos replied, "What the fuck for?" You did not answer. The prosecution says that during August 2000 you were contemplating killing Ms Skidmore. That contemplation ultimately turned to intention.
Your younger brother Michael, as I shall come to, was wholly under your influence; and Ms Talj, as I shall come to, was close to you. Both of them now enter the narrative. One week before you killed Ms Skidmore, you, your brother Michael and Ms Talj were at Ms Talj's parents' restaurant in the eastern suburbs. You all sat outside the restaurant in your car. An acquaintance of yours, Mr David Suber, was in the car also. While he and Michael sat in the front, you and Ms Talj sat in the back and discussed giving Ms Skidmore a beating. Ms Talj, a willing party from the outset, said that she would get Tori (Ms Skidmore) out one night, call you up, and then you and Michael could meet them wherever she had Tori and beat her up. That plan was fulfilled one week later, except that you killed the victim.
Your intention to kill Ms Skidmore was finally formed on the night you killed her. On the night of Tuesday 22 August 2000, the three of you - you, Michael and Ms Talj - again met at the restaurant. There you, Sargon, wrote a note on a serviette. The note was found in the blood beside your victim hours later. You had left it there as a false trail, a decoy to defeat police investigation. The note stated:
"This is payback for insulting the Muslim religion and holy Koran, Allah Akbah. Also for the drug money you owed us."
The note was a falsity. You were not Muslim. You were Christian, and Ms Skidmore owed no drug money to you. The note was a deliberate and cynical attempt by you to avoid detection by deflecting blame falsely onto Muslims. The note also demonstrates that at the time you wrote it, you had formed the intention to kill Ms Skidmore; for she knew you were not Muslim, and you knew that if she lived, your cynical ploy would have been ineffective.
The reason you killed Ms Skidmore had nothing to do with the Muslim religion or the Holy Koran. You killed her because she exercised her right to say no. Men who kill women for exercising their rights shall be met with the full force of the law, in order both to punish them and to seek to prevent other men from doing likewise.
Your brother's and Ms Talj's expectations were that Ms Skidmore was to be assaulted. That was not the limit of your intention.
The plot hatched a week before was put into effect by Ms Talj on the night of Tuesday 22 August 2000. Ms Talj had been a long-time school friend of Ms Skidmore. They had had their differences and their arguments. Posing as a friend, Ms Talj telephoned Ms Skidmore at 8.45 p.m. that evening and said that after she, Ms Talj, had finished work at the restaurant, she would drive her car around to Ms Skidmore's and take her out of the city. Ms Skidmore agreed. Ms Talj then immediately telephoned you and then a military operation commenced. You and your brother, Michael, drove to the Talj restaurant, where operations were discussed. You were to follow Ms Talj's car in which the hapless Ms Skidmore was to be a passenger. Ms Talj was to communicate by flashing headlights and tail lights, and if necessary, using her mobile phone, until she lured the victim into the trap. You had a large hard length of wooden shovel handle in your car for your deadly purpose. It was at this operations meeting that you wrote the note. The other two did not appreciate the murderous implication of the note, even if they saw it.
Ms Talj left the restaurant after work, at about 10 p.m. and drove to Ms Skidmore's. Then they drove to the city, purchased some heroin that they intended to consume and drove ultimately to Doncaster Shopping Town. Ms Skidmore thought the purpose of the drive to that destination was to consume the small amount of heroin that had been purchased. You and your brother followed, aided at all times by light signals from Ms Talj and on two occasions by mobile text messages from her, surreptitiously made by Ms Talj from convenience stores on the way. Ms Skidmore did not suspect the plan which was being effectuated with such deliberation and precision. But on the way into the city she did suspect that you were following her, because you so often did. She telephoned your mobile, abused you and told you to stop following. On the way from the city Ms Talj received calls made by your brother Michael at your behest. She told Ms Skidmore they were calls from Ahmet.
Ultimately, after midnight, they arrived at Doncaster Shopping Town. You were close behind. They parked in the underground car-park. You drove up beside them. You and your brother alighted. You went over to the passenger door of Ms Talj's vehicle, got Ms Skidmore out of the car so that her head would not be protected, and you then got your wooden pole and you viciously attacked her. Soon she lay dying between the two cars.
Neither your brother nor Ms Talj did anything effective to defend Ms Skidmore. I shall come to their roles shortly.
You then placed your cynical note next to the dying girl and the three of you drove off, leaving her alone on the concrete in a pool of blood.
The two cars met briefly at the entrance to the car-park. Then you and your brother drove home to Craigieburn. You disposed of incriminating items of evidence into drains near your home. You both then went inside and watched a replay of the Simpsons.
While you were doing that, Ms Skidmore was taken by ambulance to Box Hill Hospital where she died that morning. The distressing sight of the prone victim is stated by the ambulance officer, Ms J. Einsiedel. I shall not repeat it. It appears at p.174 of the depositions. The report of Dr A. Daniel of the Box Hill Hospital, also appears in the depositions at p.869. Likewise I shall not repeat it.
Later that day, at the Coronial Services Centre, Southbank, a distinguished pathologist, Dr Matthew Lynch conducted an autopsy on the body of the deceased. He found that she had died from head injury. He found evidence of extensive blunt trauma with separate impacts noted on the head, upper limbs and back, many with tram tracking, indicating a round straight instrument. The minimum number of separate impacts was 24. There was a comminuted fracturing of the bones of the cranial vault of the skull. There were multiple complex facial fractures. There was brain swelling with cerebral contusions and lacerations. There was haemorrhage within the strap muscles of the neck, extending to the region of the greater hyoid bone, and numerous other fractures. Dr Lynch noted that the fracturing of the bones in the cranial vault was at that part of the skull where the bone is strongest and thickest. On the scale of mild to moderate to severe, the degree of force required to produce such injury was severe. Dr Lynch finally noted that the victim had injuries to her forearms and hands, including fractures of bones in her right hand, which were, he said, classical defence injuries.
Later that morning 23 August, at about 10.15 a.m. you and your brother Michael went to the shops in Broadmeadows. You there saw David Suber, who had been with you in your car a week before outside Ms Talj's restaurant when you and she were discussing the plan to assault the victim. At the Broadmeadows shopping centre, on that Wednesday morning, you told Mr Suber that you had bashed Tori really badly with your wooden pole. Michael said all he did was kick her in the back. Mr Suber told you both that you were stupid and would get caught and you both said there would be no proof you had done it. You told Mr Suber you had got rid of the pole and other items. Mr Suber said Michael looked pretty sick. The three of you then went back to Mr Suber's house and watched a movie on Optus.
Later that afternoon, you both went home to Craigieburn. At 5.52 p.m. a large number of police with a search warrant arrived at your home at Craigieburn. You and Michael were both arrested. Michael immediately cooperated with police inquiries and told police he would show them where the various items of proof were hidden. You then cooperated with police to the same effect. You, in police custody, took the police to the various locations near your home where in drains the pole, the deceased's mobile phone, the textas with which you had written the decoy note and various items of clothing had been hidden. Those items were recovered by police. The pole had been cleaned before it was hidden in the drain.
You were then taken to the Homicide Squad offices, where, upon legal advice, you declined to answer questions as was your right. You are not to be punished in any way for exercising that right. You were then charged with the murder of Ms Skidmore.
You, Ms Talj, having seen off the first two accused from Shoppingtown, went to a security guard, Mr Chandrasekera, blew your car horn twice and called out, "My friend has been bashed." You then took him in your car to the car-park. On the way he rang the police and he then handed the phone to you. When he and you arrived at the scene of the car-park, he saw the deceased unconscious, lying on the concrete. Two employees from Coles came running to assist. The ambulance arrived, and after them the police. A police officer, Senior Constable Morton of the Doncaster Police attended. He described, as appears at p.537 of the depositions, the sight of the victim on the ground. I shall not repeat it. You were standing next to your car in the immediate vicinity and the officer asked you this, thinking you were an innocent witness to a tragedy. He said, "Did you see who did this to him?" (because the victim was so badly injured the officer did not realise she was a woman). You replied, "It's a she. Yes, two men in balaclavas." Senior Constable Morton said, "Where did they go?" You replied, "They drove off that way", pointing towards Doncaster Road. After you being asked and providing your name and the name of the victim, the officer said, "Do you know who might have done this? Or can you tell me anything else about the car?" You replied, "No. They said, 'Don't fuck with Muslims' while they were bashing her." Even as the victim was lying beside you, you were adopting and promoting Sargon Younan's method of laying a false trail to defeat detection. The officer then led you to a police car and seated you in the back seat and had a further conversation with you. He said, "Do you know anyone who wanted to hurt her?" You replied, "The only person I can think of is this guy called Azzam from Broadmeadows. He did threaten to kill her about two months ago and he's Muslim. Victoria insulted his religion." You then described the two men whom you said wore balaclavas. You said one of them was taller than the other. The officer said, "Is he the one that said, 'Don't fuck with Muslims?'" You replied, "Yes, and when I tried to stop him, he said, 'Get the fuck out of here, you're not involved.'" That inventive answer was untruthful. You were centrally involved and you and the Younans knew it. But you had the presence of mind to lie to the police to distance yourself from the crime, as the victim lay nearby.
You were then taken back to the police station. You made a statement. Ultimately you told the police the truth voluntarily about who the two attackers were. It is to your credit, first, that you called for help as you did and second, that ultimately you told the truth about the other two offenders.
However, later that morning, at 6.00 a.m., to another officer, Detective Senior Constable Morrissey, whilst you were having a cigarette with him at the Doncaster Police Station, you asked: "How is Tori?" Detective Senior Constable Morrissey replied, "She is in a serious condition and may die." You replied, "No one will be upset. She got what she deserved. She was a bitch." He said, "That may be so, but nobody deserves what happened to her." You replied, "Maybe, but she had it coming."
You were interviewed by the Homicide Squad later that day and were not charged. Ultimately on 26 September 2000 you were charged, like the other two, with the murder of Ms Skidmore.
The prosecution has accepted pleas of manslaughter from you, Michael Younan, and you, Ms Talj, on the basis that each of you was a party to an agreement to assault Ms Skidmore less than inflicting really serious injury and that each of you was present for that limited purpose. I consider that is the correct approach in law and in fact.
You, Sargon Younan were born on 15 November 1974. At the time of the offence you were 25 years nine months of age. You are now 26 years of age, nearly 27.
You, Michael Younan, were born on 19 February 1982. At the time of the offence you were 18 and a half years of age. You are now 19 and a half years of age.
You, Mireille Talj, were born on 23 July 1981. At the time of the offence you were 19 years one month of age. You are now 20 years and two months of age.
At the time of the offences none of you suffered from any psychiatric illness, psychological disorder or cognitive impairment.
You, Sargon Younan, have had the benefit of a substantial plea on your behalf by your counsel. A psychiatric report of Dr Lester Walton of 12 September 2001 was tendered before me of an examination of you on 11 September 2001, and also oral evidence was given before me by Dr Walton. Oral evidence was also given before me by Mrs Molino, Fr. Toma and your aunt, Ms Marie Younan, a qualified interpreter, which evidence I take into account.
You were born in Beirut. Your family is orthodox Christian. You came to Australia at the age of seven years. In your childhood, by reason of family movement you had a disrupted upbringing. Your family is a good and supportive family. You have no prior convictions and that matter stands substantially to your credit and I take it into account in your favour. Your counsel submitted to me that you should be given substantial credit because you have pleaded guilty to the count of murder. He put further that you pleaded guilty because you "became fully aware of the terrible deeds that he (you) had done and the terrible consequences, and that was graphically brought home to him finally by looking at the photographs." It was also put on your behalf you did not wish any witnesses to be put through a trial. It was further put you pleaded guilty because of the distressing nature of the evidence and to spare the family of the deceased the matters which would need to be canvassed. Your counsel said you "would not in particular want a family in a trial to be subjected to that sort of evidence." I do not accept that submission. It is entirely hollow. You pleaded, as was your right, not guilty to the count of murder. As was your right, you applied for a separate trial on the count of murder from the other two accused. Far from not wanting the family of the deceased to endure a trial, you applied for two trials. You pleaded guilty because I refused to grant separate trials, and ruled as admissible powerful evidence against you, and you knew you were facing an overwhelming case of murder. You are not for one minute to be punished, Mr Younan, for exercising your lawful rights, and you are not, but your plea of guilty was not because of concern for the family of the deceased. You are to be given a reduction in sentence for the utilitarian benefit of a plea of guilty, but the plea does not signify remorse on your part. The remorse that you feel is for yourself: the fact of where you now are, the fact of the imprisonment that you face, and the fact that you have lost the woman you loved, lost by your own hand. On 11 September 2001, eleven days after you pleaded guilty before me to murder, you still were instructing the psychiatrist Dr Walton that it was Ms Skidmore's fault. The factual account of the events that you gave Dr Walton (and which he said he based himself on) was untrue and lessens the utility of the professional opinion it is based upon. It also demonstrates your continuing anger and that you continue to blame the victim.
In your case, Mr Sargon Younan, of the manifold elements of sentencing, especially important is punishment and deterrence: general deterrence, to seek to prevent other men from killing women when women exercise their rights; and specific deterrence in your case. Rehabilitation is always important and it is important in your case. But a substantial sentence of imprisonment is necessary to be imposed upon you.
Michael Younan, I have had the benefit on your behalf of a helpful and relevant plea by your counsel, a psychiatric report of Dr J. Barry-Walsh of 11 September 2001 as to an examination of you by him on 7 September and numerous certificates of achievement from Kangan Batman TAFE and Jesuit Social Services.
You have pleaded guilty to manslaughter, not murder. You have no prior convictions. You have genuine remorse for your crime. You cooperated throughout with the police investigation. Your demeanour, evident in the video of your Homicide interview which I have studied, demonstrates clear remorse. You looked sick after the events, according to Mr Suber. Your appearance in this court confirms those matters.
You are a young man, both in age and in lack of experience. You were, I consider, acting at all times under the thrall of your older and worldly brother. You have no prior convictions. You have pleaded guilty to manslaughter which is significant of itself and because it betokens genuine remorse. You have, I consider, excellent prospects for rehabilitation. In all the circumstances, especially the influence upon you of your older brother and your evident youth and inexperience and immaturity, a substantially reduced sentence is appropriate in your case for the crime of manslaughter.
Ms Talj, you have had the benefit of a careful and comprehensive plea by your counsel. You come from a loving, supportive and good family. Unfortunately, you are a very troubled young woman. You suffered alienation and rejection at school. You have suffered two sexual assaults which I will not detail here, but which are contained in the exhibits which were tendered before me and which had a significant effect upon you. You were born in Australia, your family being of Lebanese origin. I have had the benefit of a psychological report of Mr Jeffery Cummins, psychologist, of 17 September 2001, who has examined you on numerous occasions, and of oral evidence before me by him. I have found Mr Cummins' report and evidence perceptive and thorough. Also tendered on your behalf is a psychiatric report of Dr Mark Taylor of 12 September 2001, he having seen you on two occasions, and a psychological report of Ms Judy Saba of 11 September 2001 of an examination of you by her that day, and oral evidence from each of those persons. Tendered on your behalf are certificates of achievement in custody and clear Assay results in custody.
You have pleaded guilty to manslaughter. You have some remorse for your crime. That was expressed by your showing your feelings to your younger sister the night after the events, and its otherwise absence of expression is explained by Mr Cummins, namely that you keep it well within you. You have no prior convictions. You are suffering the burden presently of being in protective custody. You also are young, but not as young and certainly not as immature as Michael Younan. You were not acting under the thrall of a worldly and experienced older brother. Rather than being loyal to a brother, as Michael Younan was, you betrayed your friend. Further, it was the very trust in you by your friend which you deliberately used to lure her into the trap.
Your actions, Ms Talj, in this matter, were central and vital. They may be contrasted with the actions of Michael Younan, who was substantially unimportant in these events. Further, your actions were planned and they were persistent and they involved the deliberate and planned betrayal of your friend.
You are certainly a troubled young woman and I take that matter into account. I am persuaded by Mr Cummins' evidence that your apparent coldness in the comments that you made that I have quoted and in your demeanour to the Homicide officers under interview, is not a signification of psychopathy or anti-social personality disorder. Mr Cummins gave clear evidence on that matter and I do not draw that adverse conclusion of that condition about you, despite your conduct, because of the explanation Mr Cummins gave in his evidence. For that reason, your cold response to Detective Senior Constable Morrissey at 6.00 a.m. at the Doncaster Police Station, and your demeanour in the Homicide interview (which the learned senior prosecutor called "swaggering pride") do not translate into penalty under the principle of specific deterrence as would occur if that conduct evinced anti-social personality disorder.
However, I reject that your purpose that evening was a misguided notion of correction and education. Your purpose was not in order to persuade Ms Skidmore not to use drugs, because you were doing the very opposite: you were buying heroin with her and using it with her. It was not to knock some sense into her to avoid Sargon Younan, because you were doing the very opposite: you were encouraging and facilitating Sargon Younan pursuing her on that very night. Significantly, your lack of response and concern, in particular your continuing and promoting the plan to secure the escape of Sargon after the terrible assault on Ms Skidmore, unequivocally establish that your purpose was not concern for Ms Skidmore.
I consider your true motives were that you were currying favour with Sargon and that you were jealous of Ms Skidmore. A dangerous combination.
Finally, I refer to the victim impact statements filed in this court by the family of Ms Skidmore. They are moving and impressive documents. The family has been devastated by her loss and will always be afflicted by it.
In your case, Sargon Younan, you have served 401 days in pre-sentence detention and pursuant to the provisions of s.18(4) Sentencing Act 1991 I declare that period of 401 days as already served by you under the sentence I shall impose.
Likewise in your case, Michael Younan, you have served 401 days in pre-sentence detention and likewise I declare that period of 401 days as already served under the sentence I impose upon you.
In your case Ms Talj, you have served 367 days in pre-sentence detention and I declare that period of 367 days as already served under the sentence I impose upon you.
Michael Younan, you are now 19 and a half years of age, as I have said, and Ms Talj, you are now 20 years of age. In neither of your cases is an order for detention in a Youth Training Centre appropriate. Such orders can be made in relation to offenders who, at the time of the sentence, are under the age of 21 years: s. 3(1) Sentencing Act 1991. However, the maximum period of detention available under an order for detention in a Youth Training Centre is three years – s. 32(3)(b) Sentencing Act 1991 - which period is wholly inadequate for the crime of manslaughter you each committed.
In any event, Ms Talj, I do not consider it is appropriate for you to be directed to a Youth Training Centre because of your age, your maturity and your experience. I do recommend that you be given the fullest intensive support and assistance that your prison placement allows, both for your own sake and in order to seek to lessen the problem you face of institutionalisation.
In your case, Michael Younan, but for the limit of three years' detention which is inadequate, I would consider you an appropriate person to be directed to a Youth Training Centre. That is because of your age, your lack of maturity and your lack of experience. Accordingly I recommend to the Adult Parole Board that, pursuant to the provisions of s.244(1) Children and Young Persons Act 1989, the Board consider directing you, Michael Younan, be transferred to a Youth Training Centre there to serve your sentence for the crime of manslaughter.
For the reasons I have stated, Sargon Younan, for the murder of Victoria Skidmore I sentence you to 19 years' imprisonment. I direct that you serve a minimum term of 16 years before being eligible for parole.
Michael Younan, for the manslaughter of Victoria Skidmore, I sentence you to 5 years' imprisonment with the recommendation to the Adult Parole Board that I have stated. I direct that you serve a minimum term of 3 years before being eligible for parole.
Mireille Talj, for the manslaughter of Victoria Skidmore, I sentence you to 7 years' imprisonment. I direct that you serve a minimum term of 5 years before being eligible for parole.
Remove the prisoners.
Sine die.
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