R v El Ali
[2013] VCC 1958
•2 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-02237
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMED EL ALI |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 27 November 2013 | |
DATE OF SENTENCE: | 2 December 2013 | |
CASE MAY BE CITED AS: | R v El Ali | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1958 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Fisher (Plea) Mr J. Ong (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr P. Morrissey S.C. (Plea) Ms J. Fayman (Sentence) | Grigor Lawyers |
HIS HONOUR:
1 Mohammed El Ali, you have pleaded guilty to an indictment containing one charge of trafficking in a drug of dependence, one charge of cultivation of a narcotic plant, and one charge of being a prohibited person in possession of an unregistered firearm. The maximum penalty for each of those offences is 15 years’ imprisonment. You have also consented to this court hearing a related summary charge of dealing with property suspected to be the proceeds of crime. You also pleaded guilty to that offence, which carries a maximum penalty of 2 years’ imprisonment.
2 The circumstances of your offending were opened on the plea and are contained in the typed prosecution opening which was tendered as Exhibit A on the plea.
3 In November of 2011, you were living with your then partner, a lady named Evangelia Christou, at an address in Bond Street, Hadfield.
4 At around 10:00 p.m. on 26 November 2011, the police attended at your house. Whilst at the front of the premises, they identified themselves as police on two occasions. On each such occasion, a male inside the house told them to “Fuck off”. The police then heard the sounds of a commotion coming from inside the premises as well as the sound of a female voice. Based on what they heard, the police believed that the female was in distress.
5 A short time later, you exited the back of the house and then approached the police at the front. After a brief conversation, police asked you where the female was. You refused to answer that question. When they told you that they had concerns for her welfare and that they needed to enter the house to check on her, you called out the name “Ange” a number of times.
6 At that point, the police knocked on the front door. Ms Christou opened the door but was seen to be continually looking over her shoulder to the inside of the house and she appeared to be concerned about something. Fearing for her safety and the safety of others who may have been inside, the police then entered the house.
7 Upon entering, they discovered an active clandestine laboratory and various chemicals in the living room. The set up and chemicals caused the police to have very real concerns about the safety of anyone who was present at the house. Ms Christou was immediately arrested and taken from the house. You were also arrested and moved away. Police then cordoned off the area and requested the assistance of the Metropolitan Fire Brigade and Ambulance Victoria.
8 Police searched you and found a round of ammunition. You were then taken to the Fawkner Police Station.
9 Members of the Victoria Police Clandestine Laboratory Squad attended at the house. The house was made safe and a crime scene guard remained there until the scene was processed the following morning.
10 At about 9:20 a.m. on 27 November 2011, members of the Disaster Victim Investigation Team along with a chemist from the Victoria Police Forensic Services Centre arrived at the house. A search of the house was conducted during which numerous items and materials were located including glassware, safety goggles, plastic gloves, gas cartridges and various chemicals. It is alleged that these items were used in or associated with the manufacture of a drug of dependence.
11 A number of other items were also located during the search including:
· A loaded .357 Magnum handgun;
· Approximately 1000 rounds of ammunition;
· A fully loaded magazine from a semi-automatic pistol;
· Two cannabis plants (total weight of 5.3 grams);
· A set of scales;
· A snap lock bag containing a small amount of cannabis;
· Horse steroids; and
· Prescription medication.
12 The ammunition found on you matched some of the ammunition located inside the house, although I note that it was not designed for use in the .357 Magnum handgun.
13 The offence alleged in Charge 1 on the indictment, that of trafficking, is put on the basis of your manufacture of the drug methylamphetamine on 26 November 2011. The quantity of the drug involved was very small. In this context, the two statements of the forensic scientist, Dr Neely, are of importance.[1]
[1] See at pages 103 – 106 of the depositions.
14 As he noted, the apparatus in your house was set up in an active reflux configuration. Refluxing is commonly used in the manufacture of controlled substances, including methylamphetamine. Results of the testing of a substance found in part of that apparatus, and its general appearance, were consistent with the substance being a reaction mixture for the manufacture of methylamphetamine by reaction of ephedrine(s) with iodine and hypophosphorous acid. But, as he also noted in his statement, the concentration of methylamphetamine (<0.5%) in the substance mixture was such that it would not be viable to refine to a useable form.
15 Dr Neely further noted that the results of analysis and appearance of a number of the exhibits were consistent with waste materials generated from the process of extraction of pseudoephedrine from pharmaceutical products. Such extraction is a process commonly used in the manufacture of controlled substances. The purpose of the process is to obtain a component from a mixture. Pseudoephedrine can be extracted from pharmaceutical preparations for use as a precursor in the manufacture of methylamphetamine. A number of the pharmaceutical blister packets that were found at your house were identified as preparations which contained a total quantity of 2.3 grams of pseudoephedrine. Using a method of manufacture that included iodine and hypophosphorous acid, that amount of pseudoephedrine was capable of producing in the order of 1.72 grams of methylamphetamine.
16 Your counsel, Mr Morrissey SC, explained your offending by saying that you were a drug user at the relevant time and intended to use the entirety of any methylamphetamine that you were able to produce. Not without some hesitation, I am prepared to proceed on that basis, largely because there is no clear evidence to the contrary. I also note that the Crown did not seem to directly challenge that assertion at the plea.
17 The offence alleged in Charge 2 on the indictment, that of cultivation of a narcotic plant, is based on the two small cannabis plants found at your house on 26 November 2011. As I have already indicated, their combined weight was only 5.3 grams. I accept what was put on your behalf at the plea, namely, that you were cultivating those plants with a view to using the cannabis once harvested.
18 The final charge on the indictment, Charge 3, alleges that you, as a prohibited person, were in possession of an unregistered firearm on the day that the police attended at your home and discovered the operational drug laboratory. The firearm concerned is the .357 Magnum handgun, which, as I have already indicated, was loaded at the time that it was found in your house. Any doubt that there might have been in relation to the identity of the person who possessed that firearm at the relevant time, was extinguished by the implied admission that you made when later speaking to Ms Christou on the telephone.
19 In a candid and realistically pitched plea, your counsel, Mr Morrissey SC, informed the court that you had been in possession of that firearm for about a week leading up to your arrest. He explained your possession of that firearm by reference to the following matters. You were a heavy drug user at the time and were in the habit of mixing with similarly motivated persons, you were feeling somewhat paranoid, and the firearm provided you with a measure of security for your methylamphetamine manufacturing operation.
20 Once you had been taken back to the Fawkner Police Station on 26 November 2011, you were interviewed by the police in a formal record of interview. During the course of that interview, you answered “no comment” to their questions and allegations, as was your legal right.
21 Subsequently, police listened to a number of telephone calls made by you to Ms Christou. You were unaware of that at the time. In the course of those conversations, you dropped your guard and made a number of important admissions, in particular, in relation to the firearm offence and the related summary charge.
22 At about 11:02 a.m. on 5 December 2011, you asked her what was taken during the search of the house. You also asked her if a bottle of vodka was taken from the fridge. When she told you that it was taken, you stated that it had contained an unknown chemical.
23 At about 11:58 a.m., you called her again. During that conversation, you told her that you were upset because the police had taken your favourite ‘gat’. It is undisputed that you were there referring to the handgun that the police had earlier found when searching your home. Ms Christou told you that the police had seized some electrical equipment during the search and she asked you about the receipts. You told her that those items were not ‘legit’ and that she should just let the police keep them. It is those items that are the subject of the related summary offence. The charge sheet lists those items as consisting of various phones, laptops, and other electrical equipment. The court has not been advised of what the likely total value of those items is. I simply not that it would not have been insignificant.
24 On the date that the police attended at your house, there were three final Family Violence Intervention Orders in force against you. By reason of those orders, you were a prohibited person for the purposes of possessing any firearm and ammunition.
25 A number of items seized from the house were subsequently tested for fingerprints. As a result of that analysis, your fingerprints were found on glassware that was part of the clandestine laboratory that had been operating inside the house when police attended.
26 Forensic analysis was also conducted on the glass flasks that were part of that laboratory. That analysis revealed the presence of a number of substances, including:
· Methylamphetamine;
· Iodine;
· Hypophosphorous acid;
· Pseudoephedrine;
· Ephedrine;
· Phenylalanine; and
· Safrole.
27 Methylamphetamine is a drug of dependence while the other materials are all precursor chemicals pursuant to the Drugs, Poisons and Controlled Substances (Precursor Chemicals) Regulations 2007. The quantities of iodine and hypophosphorous acid exceeded the quantities prescribed by the Regulations.
28 At the further plea hearing of this matter, I raised with counsel the potential for the accused to be doubly punished if the fact that the accused was in possession of the firearm, in part because he was using it as a means of protecting his drug manufacturing operation, was treated as an aggravating feature of the offending in both of Charges 1 and 3 on the indictment. In the end, counsel for each of the parties were in agreement, and their view accorded with my own. In the particular circumstances of this case, therefore, I propose to consider the reason for the possession of the firearm as a proper matter to consider when assessing the relative seriousness of the offence of being a prohibited person in possession of an unregistered firearm (Charge 3) but not in undertaking that same assessment in relation to the offence of trafficking (Charge 1).
29 The offences alleged in the indictment are considered intrinsically serious because of the relatively high maximum penalty that has been prescribed by Parliament, namely 15 years’ imprisonment.
30 The particular instance of trafficking alleged here is, in my view, one that falls towards the lower end of the range of seriousness for this type of offence. The criminality encompassed by the charge relates to a single day and a very small amount. The offence was committed by Mr El Ali from a desire to obtain methylamphetamine for his own use. On the other hand, it was an offence that clearly would have required a moderate level of planning and preparation.
31 The offence of cultivation with which this case is concerned, must be viewed quite differently. The number, size and weight of the plants was very small, and the offence was committed by Mr El Ali solely in order to obtain cannabis for his own use. Viewed in that light, it is an offence that falls at the very bottom of the range of seriousness for offences of this type.
32 The instant offence of being a prohibited person in possession of an unregistered firearm is, in my view, a relatively serious example of its type, one to be properly viewed as falling in the mid-range of seriousness for offences of this type. My reasons for coming to that conclusion are essentially these. The firearm was real, operational and fully loaded. It was possessed, at least in part, because you wanted to better ensure the success of the manufacturing operation in which you were then involved. The inherent dangers of that weapon being possessed in those circumstances, particularly by someone who was a heavy drug user and prone to feeling paranoid, is obvious.
33 Finally, I am of the view that the related summary offence is one that is to be viewed as a relatively serious example of its type, given the nature and quantity of the items dealt with by Mr El Ali.
34 Mr El Ali, I now turn to your personal circumstances.
35 You were born on 27 October 1980 and are now 33 years old. You were 31 at the time that you committed these offences. You are the eldest of six children and enjoyed a positive upbringing.
36 You successfully completed Year 12 and then a four year apprenticeship in carpentry. On completion of your apprenticeship, you have continued to work in that field and plan to return to that type of work when you are ultimately released from custody.
37 You have two young children from your previous and longstanding relationship with a woman named Rebecca Kelly. You met her at age 18 and it was a relationship that had its ups and downs, although the two of you were sufficiently committed to each other to purchase a house, largely from the proceeds of a payout that Rebecca received after she was injured in a motor vehicle collision. The relationship broke down after it became particularly problematic in late 2010. I note that she has been bringing your children in to see you whilst you have been in custody and that she attended the plea hearing to support you. I was told by your counsel that you are hopeful of a reconciliation in the near future.
38 In the past six to seven years you have abused both alcohol and illicit drugs. On a daily basis, you have used up to 3.5 grams of methylamphetamine or ice, 3 grams of cannabis and up to a bottle of spirits.
39 You have an eight year history of depression characterised by poor sleep, low mood and reduced appetite. You are currently not being treated with any antidepressant medication. More recently, you have been suffering from physical health problems such as stomach and chest pain, the cause of which has not been identified.
40 You were assessed by the forensic psychiatrist, Dr Anthony Cidoni, on 16 October 2013. His report, dated 17 October 2013, was tendered as Exhibit 1 on the plea. I have had regard to the contents of that report when determining the appropriate sentence in your case.
41 You had previously been assessed by Dr Cidoni, and his diagnosis of you remains unchanged. In his opinion, you suffer from a major depressive disorder as well as polysubstance abuse. He is of the view that, to some degree, your drug related offending arose in a context where you were self medicating for your untreated depression. To some degree, that is relevant to an assessment of your level of moral culpability. He notes also that your condition had deteriorated in the preceding 13 weeks or so in the context of your perceived health problems. He states that you had experienced significant anxiety in that regard. Dr Cidoni acknowledges that those health problems may have an anxiety component to them. He considers that you are at serious risk of further deterioration in your depression whilst in custody, particularly because it is at present untreated and the level of medical intervention is limited. The fifth and sixth principles in Verdin’s case appear to have been enlivened here. Finally, Dr Cidoni considers the accommodation being offered at your parents home on your release to be a supportive arrangement.
42 In terms of any future prognosis, Dr Cidoni is of the view that you need to do the following if you are to have a strong chance of rehabilitating yourself. You must undergo follow up specialist counselling and treatment in the community in relation to your substance abuse problems. You must also ensure that there is an appropriate level of monitoring of your physical and mental health via your GP and a psychiatrist. In the event that you were able to succeed in those endeavours, Dr Cidoni is of the opinion that you would have good prospects of rehabilitation.
43 Mr Eli Ali, there are a number of other matters to which I must have regard.
44 You have pleaded guilty to these offences. Although your plea was not entered at an early stage in these proceedings, the community has nonetheless been spared the expense and time of a trial. You are therefore entitled to, and will receive, a discount in your sentence on account of your plea.
45 Whilst you were far from remorseful on your arrest and in the immediate aftermath, as demonstrated by the intercepted calls between you and Ms Christou, I am prepared to accept that your decision to plead guilty to these charges is some evidence of remorse on your part. Additional evidence can be found in your concerted efforts to make the most of your time in custody and your drug free status whilst on remand and serving your previous sentence.
46 As Exhibit 4 illustrates, you have made positive use of your time in custody by successfully completing a number of courses. In particular, you have completed a number of courses over many hours relating to the risks and harm posed by alcohol and drug abuse, which have included education as to lifestyle change and relapse prevention strategies. Other useful programs in which you have participated have centred on anger management and improving communication skills and employment prospects.
47 As the assay results that were tendered as Exhibit 2 demonstrate, you have returned negative assay results on 6 occasions when required to provide a urine sample for drug analysis whilst in custody.
48 I must also have regard to your age and prospects of rehabilitation, which I have concluded are good. You have a good work history and good family and community supports. At 33 years of age, you are still a relatively young man.
49 For someone of your age and with your ongoing problems with substance abuse, your criminal record is a very limited one. You appeared in the Broadmeadows Magistrates’ Court on 7 May 2008 in respect of a charge of knowingly dealing with the proceeds of crime, for which you were fined $2000 without conviction. In that same court, on 21 April 2011, you were convicted and fined $5000 for a charge of contravening a family violence intervention order.
50 You also have a subsequent conviction. On 25 July 2012, you were sentenced to a term of 525 days with a non-parole period of 165 days by His Honour Judge Stuart in respect of one charge of recklessly causing serious injury. That offence occurred during the course of an argument with Rebecca Kelly. She had found messages on your mobile phone that called into question your fidelity to her and she confronted you about those concerns. You reacted quite inappropriately and became angry. You used a paint roller to strike her once to the head, causing a laceration for which she needed 8 stitches. One of the aforementioned intervention orders arose from this incident, another was taken out by your father as the result of a physical struggle between the two of you, which was precipitated by him raising his concerns with you about the direction in which your life was heading.
51 In your case, the fact that you have finished serving both the non-parole period and head sentence imposed by Judge Stuart while waiting for the current charges to be finalised, is an important matter for this court to consider when determining the appropriate sentence. It raises obvious and important totality considerations. Ultimately, I must ensure that the sentence that I impose on you, when viewed against the background of that other sentence, is an appropriate one. Put another way, I must ensure that when viewed globally, the sentences imposed by Judge Stuart and I represent an appropriate overall penalty or punishment for your overall offending. Since you have already completed the sentence imposed by Judge Stuart, there is no ability for this court to effect a degree of concurrency between that sentence and the sentence that I impose. Nor do I have the power to make a formal order as to pre-sentence detention in respect of the charges for which I must sentence you for the period during which you have been both on remand for those charges as well as serving the sentence imposed by Judge Stuart. Accordingly, the only means by which I can ensure that you are treated fairly and appropriately is to moderate the individual sentences that I impose and give careful consideration to the question of whether those sentences should attract a measure of cumulation, and, if so, the extent of any such orders for cumulation.
52 In order to better understand those matters, I will give a brief overview of the nature and extent of the period that you have spent in custody.
53 You committed the offence for which Judge Stuart sentenced you in the early part of 2011. You then committed the offences for which I must now sentence you on 26 November of 2011. Upon your arrest for those offences, you were charged and remanded in custody. You remained in custody on those charges until 25 July 2012, the date on which Judge Stuart sentenced you for the offence of recklessly causing serious injury. You completed that sentence on 12 November 2013. From that date, you have been on remand for the current offences. So, as will be apparent from the above chronology, you have spent two periods in custody on remand solely in relation to the charges on which I must now sentence you. The total period of that declarable pre-sentence detention is 211 days, not including today’s date. It is a somewhat unusual situation, which appears to have been brought about by the late stage at which you entered guilty pleas to the current charges.
54 You continue to enjoy the support of your family and friends. Your parents attended the plea to support you. A number of personal and work references were tendered on your behalf at the plea. Your younger brother, Walid, is prepared to employ you as a carpenter on your release from custody. Khaled El Ali is also able to offer you a job in his car towing business on your release. He speaks highly of your work history. Mohamed Ramaihi has known you for some years on both a work and personal level. To his observation, you have shown honesty, loyalty and integrity in the work place, as well as a very good building knowledge and excellent organisational and management skills. Bill El-Khoder’s parents were friends with your parents. He speaks of your close ties with family and friends and your devotion to your children. To his mind, you have shown yourself to be a caring member of the community in which you have lived. He believes that your drug abuse problems and association with some unfavourable people has led to your exercising poor judgement.
55 You intend to move into your parent’s home after your release from custody, and to commence working as a carpenter with your brother.
56 In the end, I have assessed your prospects of rehabilitation as good. Much will depend on your ability to abstain from drug use in the future as well as you being able to seek assistance for your depression. If you were to participate in regular mental health and substance abuse treatment, your risk of further re-offending would be greatly reduced, in my mind.
57 There are a number of other matters to which I must have regard.
58 The nature and gravity of some of your offending means that general deterrence and denunciation must play an important role in my sentencing task. You engaged in relatively serious offending for which you must be justly punished. The community has a legitimate expectation that those persons who commit those type of offences will face serious consequences if they are caught.
59 Specific deterrence is another relevant consideration. Whilst you only have a limited criminal history, it is nonetheless relevant, in particular in relation to the related summary offence. Your current offending, and by that I mean the offences alleged in Charges 1 and 3 on the indictment, represents a significant escalation in the gravity of your criminal conduct. You must therefore be personally deterred from re-offending.
60 As was properly emphasised by your counsel, Mr Morrissey S.C., during the plea, the sentencing principle of totality assumes considerable significance in your case.
61 The prosecution submitted that a sentence of immediate imprisonment was appropriate in your case, and, judging by the range they proffered, one that should result in you spending a considerable further period in custody.
62 By contrast, whilst your counsel, Mr Morrissey, properly conceded that a term of imprisonment is warranted in this case, he submitted that any such sentence should be a moderate one and include a non-parole period that allowed for the possibility of your release on parole, if not immediately, then in the near future.
63 In my view the range offered by the prosecution was far too high. Without any disrespect to Mr Fisher, counsel who appeared on behalf of the Director, this court was unassisted by any comparable cases or detailed submissions as to why such a range was open and appropriate in this case, particularly given the strength of some of the matters in mitigation, foremost among them being the importance of the principle of totality. I must say, that I found the instructions received by Mr Fisher of little assistance given they were confined to the bare numerical range absent any transparent analysis.
64 Mr El Ali, having balanced and weighed the competing sentencing considerations in your case, you are convicted of each charge and sentenced as follows.
65 On Charge 1, traffick in a drug of dependence, 9 months imprisonment.
66 On Charge 2, cultivation of a narcotic plant, a fine of $300.
67 On Charge 3, being a prohibited person in possession of an unregistered firearm, 18 months’ imprisonment.
68 On the related summary charge of dealing with property suspected to be the proceeds of crime, 3 months’ imprisonment.
69 The sentence of 18 months which I have imposed in respect of Charge 3 is to be the base sentence.
70 I make the following limited orders for cumulation. Three months of the sentence imposed on Charge 1 and one month of the sentence imposed on the related summary charge are to be served cumulatively with that base sentence and on each other.
71 The total effective sentence is therefore 22 months’ imprisonment.
72 I fix a non-parole period of 10 months before which you are to be eligible for release on parole.
73 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty to these offences I would have imposed a total effective sentence of 27 months and fixed a non-parole period of 14 months.
74 In respect of the sentence that I have imposed, I direct that you have served a period of pre-sentence detention of 211 days, not including today’s date, and I further direct that that declaration and its details be entered in the records of this court.
75 Pursuant to s.77(1) of the Confiscation Act 1997, I grant the Crown’s application for a disposal order in relation to the items listed in the schedule attached to that order.
76 Counsel, are there any matters which either of you wish to raise at this stage in relation to the sentence or sentencing reasons?
77 MR ONG: Your Honour, just with respect to the summary charge of dealt with proceeds I understand that it was to do with property, namely two computer monitors only.
78 HIS HONOUR: Where is the basis for that understanding?
79 MR ONG: Your Honour, I've got a copy of the actual charge that I understood has been filed with that amendment made on it and I understand it was also in paragraph 22 of the opening, Your Honour. I can hand up a copy of this notice of related summary offences, Your Honour.
80 HIS HONOUR: Yes. I must say that I was going by a copy of a charge sheet that I had as being referable to a related summary charge. I am not saying that you are wrong in that regard but there you go.
81 MR ONG: Your Honour, I was not at the plea hearing, I understand he was arraigned on that amended summary charge.
82 HIS HONOUR: Very well. I accept what you say in that regard. Just give me a moment, please.
83 MR ONG: Yes, Your Honour.
84 HIS HONOUR: I might just leave the Bench briefly while I reconsider my sentence in this matter.
85 MR ONG: As Your Honour pleases.
(Short adjournment.)
86 HIS HONOUR: Counsel, it is appropriate that I make an adjustment to the individual sentence to be imposed in respect of that related summary charge and to the level of cumulation in respect of it. That will result in an adjusted total effective sentence and non-parole period and an adjusted head sentence and non-parole period by way of the 6AAA indication. Unfortunately, the only way that I can readily and expeditiously indicate that is to refer on some occasions to a sentence by reference to months and weeks as opposed to a whole number of months or just a reference to the number of days. I hope that does not create any difficulties in terms of those who have the responsibility of interpreting sentences and applying them. But I would simply ask each of the parties in the very near future, in the next day or two, to ensure as best you can that there will not be any difficulties created with those in the Office of Corrections who have to apply these sentences. If there is to be any difficulty then I may need to reconsider the matter and impose a sentence by reference to days. I do not think it will create any problems but I am just alerting the parties to it.
87 MR ONG: As Your Honour pleases.
88 HIS HONOUR: On the related summary charge of dealing with property suspected to be the proceeds of crime I propose a sentence of two months' imprisonment. The part of that which I order to be served cumulatively on the base sentence and on the sentence imposed in respect of Charge 1 is to be one of two weeks, not one month. The total effective sentence is therefore one of 21 ½ months imprisonment. I fix a non-parole period of nine months and three weeks before which Mr El Ali is to be eligible for release on parole.
89 By way of a 6AAA indication, the head sentence would have been 26 ½ months and the non-parole period would have been 13 months and three weeks.
90 Is there anything else, counsel?
91 COUNSEL: No, Your Honour.
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