R v Hutchison
[2015] VSC 405
•12 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT BALLARAT
CRIMINAL DIVISION
S CR 2014 0092
| THE QUEEN |
| v |
| STUART ANGUS HUTCHISON |
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JUDGE: | OSBORN JA |
WHERE HELD: | Ballarat |
DATE OF HEARING: | 10 August 2015 |
DATE OF SENTENCE: | 12 August 2015 |
CASE MAY BE CITED AS: | R v Hutchison |
MEDIUM NEUTRAL CITATION: | [2015] VSC 405 |
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CRIMINAL LAW – Sentence – Attempt to pervert the course of justice – Assisted a friend in aftermath of a known unlawful killing to dispose of the body of deceased.
CRIMINAL LAW – Sentence – Circumstances of offender – Plea of guilty – Did not give evidence against the killer – Remorse shown – Good prospects of rehabilitation – Psychiatric diagnosis relevant to rehabilitation and treatment – Sentenced to 21 months’ imprisonment with two year Community Correction Order with conditions.
CRIMINAL LAW – Sentence – Interaction of ss 11, 18 and 44 of the Sentencing Act 1991 – When Community Correction Order can be imposed in combination with a sentence of imprisonment – Effect of two year time limit on sentence of imprisonment when imposing a Community Correction Order – Power under s 18 to order time spent in custody not to be reckoned as served.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr J Lavery (10 August 2015) Ms J Swiney (12 August 2015) | Mr M G Wardell |
HIS HONOUR:
Stuart Angus Hutchison you have pleaded guilty to the charge of attempt to pervert the course of justice. The essence of your offending is that you assisted Jesse Willis to dispose of and conceal the body of Ricky Ganly shortly after Mr Willis had murdered Mr Ganly early on the morning of 29 April 2013.
The maximum penalty for the offence to which you have pleaded is 25 years’ imprisonment but the offence is one which embraces a wide range of criminal conduct.[1]
[1]R v Rogerson (1992) 174 CLR 268, 280 (Brennan and Toohey JJ).
Because of the wide range of conduct which may be caught by the offence, it is necessary first for me to say something about the objective gravity of your offending.
On the night in question, you were present at the home of your friend, Richard Peters, at Avoca, when Mr Willis came to the house and told you that he was being stood over in relation to weapons and that he was planning to ‘knock’, ie kill, the man who was standing over him. You offered to go with Mr Willis to meet the man who was standing over Mr Willis and tell him to ‘fuck off’. Mr Willis told you that he did not want your help and then left the house. He came back several hours later and told you that he had killed the man who had been standing over him and that he needed help to dispose of the body because his DNA was all over the man’s car. Mr Willis told you that he had shot the man in the back of the head.
You drove with Mr Willis out to the Bealiba Road where Mr Ganly’s car was parked on the side of the road. Mr Willis then drove Mr Ganly’s car to the Avoca Lead Dredge and you followed in Mr Willis’s car. At the dredge, Mr Willis put Mr Ganly’s car in neutral and pushed the car containing Mr Ganly’s body into the dredge. Prior to pushing the car into the dredge, Mr Willis had searched the car for drugs. You told police you could not remember actually seeing the body in the car and ‘don’t really remember’ whether you helped push the car into the water as you were ‘freaking out too much’. I doubt your recollection is as bad as you say but whatever you did or did not see, and whatever physical actions you did or did not undertake at the dredge, it is apparent that your presence and assistance was essential to enable Mr Willis to dispose of the car and body into the dredge. After disposing of the body, you and Mr Willis returned to Mr Peters’ house in Mr Willis’ car.
You ultimately told police that you knew you should not have helped Mr Willis dispose of the body and you would not normally get involved in such a thing but did so on this occasion to ‘help out a mate’.
I accept that you made the choices you did after having ingested drugs on the night in question. But they did not prevent you acting in a competent and coordinated way in assisting Mr Willis.
The consequences of your actions were terrible for Mr Ganly’s family. The remains of his body were not recovered until January 2014 and his fate was unknown until this time.
The Court has received six victim impact statements from Mr Ganly’s family members:
a) Peter Joseph Ganly — father;
b) Suzan Ganly — sister;
c) Peter Stephen Ganly — brother;
d) Debbie Soldaini — sister;
e) Ruth Ganly — sister; and
f) Veronica Alexander — partner.
Whatever his personal failings and difficulties in his life course, Mr Ganly was loved by his family. The protracted period during which his fate was unknown and the grizzly condition in which his body was found materially exacerbated the trauma and grief occasioned by his death. Understandably, the actions in which you were complicit have left lasting psychological impacts upon those to whom he was near and dear.
The victim impact statements that were read to the Court, and indeed all the victim impact statements are eloquent and anguish-filled documents. They reflect the emotional trauma suffered by Mr Ganly’s family as a result, not only of his death, but also of the concealment and desecration of his body, in which you were involved. They have been left with a permanent sense of overwhelming hurt and loss.
In assessing the objective gravity of your offending I must be satisfied of matters adverse to you beyond reasonable doubt. I am satisfied:
(a) that the evidence admissible against you, that is, legally admissible against you, demonstrates beyond reasonable doubt that Mr Willis committed murder;
(b) that you assisted Mr Willis knowing that he had committed a deliberate and unlawful killing;
(c) that you gave substantial practical assistance in disposing of and concealing Mr Ganly’s body in an effective manner within a quite limited timeframe;
(d) that you had no real regard for the probable effects of your actions on Mr Ganly’s family and friends;
(e) that your actions do not reflect just a split-second reaction, but occurred over an extended period of time during which you must have been conscious of what Mr Willis was asking you to do and what you were in fact assisting him to do; and
(f) that you maintained silence to the police about your actions for many months thereafter.
On the plea hearing, your counsel submitted that I should not be satisfied that, at the time you agreed to assist Mr Willis, you knew more than that he had unlawfully killed Mr Ganly. I am satisfied that, in addition, you knew that he had deliberately killed Mr Ganly. Before the killing, Mr Willis declared in your presence that he intended to ‘knock’ Mr Ganly and afterwards, when requesting your assistance, he told you that he had shot Mr Ganly in the back of the head. You told police of no statements by Mr Willis or circumstances observed by you which did, or could have, led you to believe that this was other than a deliberate killing.
In my view, this was a relatively serious example of the offence charged. First, because of the gravity of the underlying crime of murder and secondly, because of the means adopted to dispose of and conceal the body, knowing that Mr Willis had deliberately and unlawfully killed Mr Ganly. And thirdly, because the means that you assisted Mr Willis to adopt to dispose of the body displayed an inherent callousness towards the body and indifference towards the probable emotional trauma which would be inflicted upon Mr Ganly’s family and friends as a consequence of what was being done.
I turn then to your personal background. In this regard I have the benefit of the report of Dr Danny Sullivan, psychiatrist, dated 28 October 2014. You are 31 years old, having been born on 22 October 1983. You grew up in Avoca and did relatively well at primary school. However, you were a rebellious student and were expelled from secondary school in Year 9 after smoking cannabis at school. You have since had a life marked by sustained and self-destructive drug use. You have worked in various unskilled jobs but have not been able to maintain employment for long periods. At the time of the offending, you were working as a part-time tattooist.
You have a daughter who is now some 10 years old but you have lost contact with her since separation from her mother, and you have been unable to form stable personal relationships.
You have, however, had the ongoing support of your family, particularly that of your grandmother, who lived in Avoca but has now passed away. You have also had a positive relationship with an uncle and a younger brother who both live in Avoca. Apart from your family, it seems clear that your peer group and friends have been those immersed in a drug culture.
Because of the centrality of drug use to your personal history I will quote what Dr Sullivan says about it:
[17]He [Mr Hutchison] reported alcohol use first at the age of 8, more regularly from his early teens and heavily from 13 to his late twenties. He told me that over the last five years he had only drunk occasionally.
[18]Mr Hutchison told me of continuing cannabis use from the age of 12. He enjoyed the feeling of being stoned. He told me he would smoke ¼ oz or more per day. He denied adverse effects associated with this. He did not believe he was dependent.
[19]He told me of amphetamine use from the age of 14, using both ‘speed’ and ‘ice’ and enjoyed once more ‘getting high’. However, he felt that his head was ‘now a mess’ and felt that he had been addicted to ice. He had been injecting ‘grams’. Mr Hutchison told me that he should be around 100 kg in weight, currently weighed 80 kg and that his lowest weight had been 63 kg when he ceased eating because of fears that he was being poisoned.
[20]He reported heroin use first at the age of 15 and was dependent for 10 years. He had only been prescribed methadone for two weeks and had used this to cease heroin use. At the longest, he had been abstinent from heroin for two years. He also acknowledged intermittent pharmaceutical opiate use including oxycodone, codeine and morphine, as well as opium.
[21]Mr Hutchison reported frequent hallucinogen use including LSD, magic mushrooms, ecstasy, DMT, 2CB, mescaline and other hallucinogens. He had tried datura. He appeared to have knowledge of hallucinogens suggesting he had actively pursued different drugs.
[22]In the past, he had injected ketamine and used gamma-hydroxybutyrate (‘fantasy’), using this to ‘mull up ice’ rather than water. He told me that at the age of around 20 he used one cycle of anabolic steroids in the form of stanozolol but this sent him ‘crazy ... “roid rage” ‘.
[23]He had used other prescription pills including when younger, alprazolam and had been prescribed oxazepam for a significant period of time, although denied abusing these.
To similar effect, the pre-sentence report from Werribee Community Correctional Services says:
At the time of the offending Mr Hutchison stated that his drug of choice was methylamphetamine (ice) however described a long-standing history of poly-substance abuse. His amphetamine use commenced when he was 14 using speed and this soon progressed to ice, he enjoyed the feeling of ‘getting high’. At his peak, Mr Hutchison was injecting half a gram to a gram of ice a day with this use continuing for approximately two years. He reports current abstinence with no intention of returning to using.
Mr Hutchison’s father was a heavy alcohol and cannabis user; subsequently Mr Hutchison commenced his cannabis use from the age of 12. He reported that he would smoke up to a quarter of an ounce a day. He denies any recent use of cannabis. After 10 years of dependence, Mr Hutchison, with the assistance of the methadone program was able to cease his daily heroin use. When the drug was not available he also relied on oxycodone, codeine and morphine. Mr Hutchison commenced drinking alcohol at the age of eight however; this became more regular from his early teens into his late twenties. He describes his current alcohol use as social however limited. Mr Hutchison also described experimenting with ecstasy, benzodiazepines and hallucinogens.
During his Community Based Order in 2001, Mr Hutchison was referred to Youth Outreach counselling at the Grampians Community Health Centre. He failed to attend any scheduled appointments and make contact with the service and was subsequently exited. It is not known whether he has completed any further treatment programs.
The latter report also refers to your criminal history in the following terms:
Mr Hutchison’s criminal history dates back to 2000 where he first encountered the criminal justice system at age 17 for a theft offence. He was sentenced to a good behaviour bond which was successfully completed.
According to his criminal history report, Mr Hutchison’s offending has escalated over the years to include burglary, criminal damage and drug-related offences including trafficking. His prior matters were primarily dealt via terms of imprisonment, suspended sentences, fines, good behaviour bonds and one community-based disposition which was breached in 2002 due to non-compliance.
Since being remanded in custody on 5 July 2014 due to breaching bail conditions there have been no noted prison incidents.
This history demonstrates that a variety of sentencing penalties including two periods of imprisonment have had no material deterrent effect upon your ongoing behaviour. It may also be said to demonstrate a continuing disregard for, and willingness to breach, the law. This said, I accept the submission of your counsel that none of the offending is of comparable seriousness to that to which you have now pleaded and the majority of the offending is now more than 10 years old.
Dr Sullivan ultimately gave the following psychiatric opinion and made the following recommendations concerning you:
[30]Mr Hutchison is a 31 year-old single man, father of one, who is charged with assisting to dispose of the body after his friend shot a man. His background was of a rural upbringing in a family with a substance-using father, and despite good academic achievement he commenced substance use early and in secondary school had increasing behavioural problems and exited prematurely. He has engaged in limited work since.
[31]Mr Hutchison has a primary diagnosis of polysubstance abuse/dependence. He has abused multiple substances, and perhaps of most relevance are chronic high dose cannabis use and more recent high dose stimulant abuse: both are associated with inducing psychosis.
[32]Mr Hutchison did not show evidence of mental disorder in the past, with first presentation in mid-2014. He has since then reported persecutory ideation and auditory hallucinations. This appears associated with substance use. While there may be an underlying mental illness such as schizophrenia, the most likely diagnosis is of drug-induced psychosis. His symptoms have arisen in the context of heavy substance use. Persistence of methamphetamine psychosis for some months is not infrequent.
[33]There is no indication of underlying personality disorder, cognitive impairment, or other mental illness.
…
[36]There is no indication that mental disorder is implicated in the alleged offending.
[37]Mr Hutchison has experienced a sustained psychotic illness which has resulted in his cessation of bail and he has since been maintained in the Melbourne Assessment Prison. I think it likely that his incarceration will be more burdensome due to residual psychotic symptoms. These may reduce his opportunities for placement in the correctional system. Furthermore, if he continues to experience ongoing paranoia this will potentially have a detrimental impact on his adjustment and capacity to cope. Mr Hutchison should remain under psychiatric monitoring wherever he is maintained in the correctional system, even if his symptoms have resolved.
[38]Mr Hutchison’s treatment needs relate to substance abuse. He should receive formal program input into substance [abuse], and thereafter further interventions may be warranted to address substance use.
[39]There is no indication that he currently warrants any further treatment. His symptoms are apparently reducing. His clinical treatment should involve further medication although if his symptoms resolve, he should not need to continue treatment for more than a year or two (although might do so).[2]
[2]Emphasis in original.
The following matters have been advanced on your behalf by Mr Lavery in mitigation of the sentence that I might otherwise impose:
(a) firstly, you have pleaded guilty to the offence charged and have done so effectively at the earliest available opportunity after continuing discussions about the appropriate charge, during which you expressed ongoing willingness to accept responsibility for what you did to assist Mr Willis;
(b) secondly, as that plea indicates, and as you stated to investigating police, you have acknowledged that what you did was wrong and have expressed remorse for it and for its consequences;
(c) thirdly, it is apparent that your offending occurred in the context of heavy ongoing drug use and ingestion of drugs on the night in question. It is probable that your capacity for balanced judgment and consequential thinking was affected by this. Although such drug use cannot reduce your moral culpability, it points to a critical factor bearing on your prospects of rehabilitation;
(d) fourthly, you are not without some potential prospects of rehabilitation if your drug addiction can be addressed. It might be said, given your history, that this is a big ‘if’. Nevertheless, I accept Dr Sullivan’s opinion that your substance abuse is capable of treatment and implicitly that your future in this regard is not entirely hopeless;
(e) fifthly, your incarceration has been, and may well continue to be, more burdensome than in the ordinary case because of your mental illness and fragility;
(f) sixthly, because of your psychiatric condition, you were placed in protective custody following your remand and the practical reality of prison life is that you are likely to remain there with constrained opportunities for personal development in a number of respects; and
(g) seventhly, since going into custody you have successfully completed various occupational health and safety courses and employment programs, and have applied yourself to improving your prospects of success on your release.
I accept that each of the above matters must be weighed in favour of reduction of the sentence I might otherwise impose. You have had the benefit of a very careful plea on your behalf.
It was also submitted that the stress associated with your offending was a significant precipitator of increased drug use, which in turn led to the episodes of psychosis described by Dr Sullivan. I accept that this hypothesis may be correct but I am not positively persuaded of it on the balance of probabilities. It seems to me that it is equally probable your drug use simply reached a point towards which it had been travelling for a long period of time. I do, however, accept that your bail ended because of psychotic delusions and that these were a product of a mind affected by ongoing substance abuse.
Purposes
Mr Hutchison in sentencing you I must impose a sentence that is just in all the circumstances of the case and that reflects the gravity of your offending and its consequences for others. By that sentence I must denounce the conduct in which you have engaged in terms which make clear that the community cannot tolerate behaviour of this kind. I must also, of course, take due regard of your personal background and characteristics.
Your case also raises issues of both personal and general deterrence. I doubt that your prospects of rehabilitation are positive at all unless you can learn to control your drug use and think consequentially, or in other words, think about the results of your actions.
The sentence I impose must bring home to you the seriousness of your offending and the fundamental need to permanently change your way of life.
In terms of general deterrence, the sentence I impose must send a clear message to the community that assisting another person to conceal and dispose of the body of a murdered man is a very serious offence.
I am required to have regard to current sentencing practice and I have been referred to other sentences imposed on other offenders who have pleaded guilty to attempt to pervert the course of justice in respect of the offence of murder. These vary in the nature of the assistance initially given to the principal offender but, perhaps even more significantly, those to which I have been referred involve cases in which the offender in your position not only pleaded guilty but undertook to give evidence against the principal offender. Because of the great potential significance of such evidence in homicide cases where the victim is never able to give evidence, the courts have adopted a relatively pragmatic approach in such cases. You, however, did not follow this course, although you were in a position to give devastating evidence against Mr Willis and, in particular, evidence of his declaration of intention to kill Mr Ganly before he left the home of Mr Peters. In the circumstances, I do not find the sentences imposed in the other cases to which I have been referred particularly helpful. Nor have I been able to identify a directly comparable case to yours by way of my own research.
Moreover, this is a case in which, subject to your consent, I can make a Community Correction Order (‘CCO’), which is itself a relatively new sentencing option.[3] You meet the statutory requirements for such an order, having been convicted of an offence punishable by more than five penalty units and I having received a pre-sentence report to which I have had regard under s 37 of the Sentencing Act 1991 (‘Sentencing Act’). That report concludes as follows:
[3]Sentencing Act 1991 (Vic) s 37.
Mr Hutchison is a 31-year-old male who presents with a sporadic criminal history dating back to the age of 17 years old. Mr Hutchison engaged well throughout the assessment, providing in-depth answers to any question asked of him.
Mr Hutchison was able to identify that he needed to ‘grow up, and moved [sic] on’ from old associates and consequently his drug use. He stated that that he stayed out of prison for 12 years and not intended to return, this goal remains the same today. It appears that Mr Hutchison has the pro-social support from his mother and uncle and will be relying on this support upon his release. He presented as motivated to engage in drug and alcohol counselling to assist him in reducing his risk of re-offending. He noted his willingness to comply, if he was to be sentenced to a Community Corrections Order.
Ultimately, Mr Hutchison is found suitable for a Community Correction Order.[4]
And there follows a series of special conditions of which you have been advised.
[4]Emphasis in original.
In all the circumstances of your case, taking account not only of the gravity of your offending, but also the matters in mitigation which your counsel has raised, and the purposes of sentencing to which I must have regard, I propose to impose a term of imprisonment upon you together with a CCO for a further two years. In the course of the plea made on your behalf, your counsel expressly invited me to impose a sentence which combined both these elements. In acceding to that course I have concluded that the purposes of just punishment, denunciation and deterrence cannot be adequately served by a CCO alone.[5]
[5]Sentencing Act 1991, s 5(4C).
As I have said, I have received a pre-sentence report stating that you are suitable for a CCO and, in my view, the joint penalty I propose will maximise your chances of rehabilitation. On the one hand, the term of imprisonment is necessary by way of a base punishment, but, on the other hand, the CCO will provide a framework within which you may hopefully transition to a more positive way of life. As your counsel put it, a CCO will provide for your structured release into the community and the provision of appropriate support programs. It will also, of course, have a continuing punitive element because of the restrictions it will impose.[6]
[6]Boulton v The Queen [2014] VSCA 342 [91]-[93].
Section 44(1) of the Sentencing Act constrains the length of the prison term I may impose in conjunction with a CCO, but both your counsel and the prosecutor submitted that I might, in this case, direct that your pre-sentence detention not be treated as time served pursuant to s 18. That course could be adopted to facilitate the making of a CCO in circumstances where I would not regard a total term of imprisonment of no more than two years to be adequate.[7] Although the terms of s 44(1) themselves discount pre-sentence detention from the maximum term of imprisonment imposed in conjunction with a CCO, more significantly, the course proposed also enables a sentence which avoids the significant practical and conceptual difficulties inherent in imposing both a non-parole period and a CCO that would otherwise be required under s 11(1) of the Sentencing Act.[8]
[7]Ibid [238].
[8]Cf Deng-Mabior v The Queen [2015] VSCA 179.
I am prepared to make a CCO despite the fact that you have been assessed as having a high risk of re-offending and despite the fact that you have previously failed to comply with a community-based order. The reality is that the risk of re-offending is directly linked to the risk of your return to future heavy drug use.
In my view, a CCO is the best way to address this risk both in your own interests and in the interests of the community.
If you agree, the CCO will be subject to certain standard conditions and certain special conditions. They are as follows.
First, the order will set out the mandatory terms provided for in s 45(1) of the Sentencing Act:
(a)the offender must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(ab)the offender must comply with any obligation or requirement prescribed by the regulations;
(b)the offender must report to, and receive visits from the Secretary [to the Department of Justice (‘the Secretary’)] during the period of the order;
(c)the offender must report to the community corrections centre specified in the order within 2 clear working days after the order coming into force;
(d)the offender must notify the Secretary of any change of address or employment within 2 clear working days after the change;
(e)the offender must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
(f)the offender must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that the offender complies with the order.
Secondly, I will attach a condition under s 48C, requiring you to perform 300 hours of unpaid community work.
I will direct under s 48C(9) that this condition apply for a period of one year after your release from imprisonment.
I will order under s 48CA that all the hours satisfactorily undertaken for treatment and rehabilitation under the further conditions of the order are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
Thirdly, having regard to the matters specified in s 48D(2), I will order under s 48D:
(a) that you are required to undertake assessment and treatment in respect of drug abuse or drug dependency as directed by the Secretary; and
(b) that you undertake any programs in respect of drug abuse and drug dependency which address factors relating to your offending behaviour in accordance with the directions of the Secretary.
Fourthly, I will impose a condition under s 48F that you must not contact or associate with Richard Peters of Avoca during the duration of the CCO.
Fifthly, in order to ensure to compliance with the order, I will attach a condition under s 48E that for the period of the CCO you be supervised, monitored and managed as directed by the Secretary.
You will be required to report within two clear working days after release from imprisonment to the Bendigo Community Correctional Service, 18-20 St Andrews Avenue, Bendigo, Victoria, 3550 (phone 03 5440 6100).
In imposing these conditions, I have had regard to the considerations set out in s 48A and, in particular, to the principle of proportionality having regard to the combined burden imposed by the sentence of imprisonment and the CCO. The CCO and the conditions it contains are intended to provide an appropriate structure for a community-based sentence.
Before I can make the order, you must consent pursuant to s 37(c) of the Sentencing Act. The pre-sentence report to which I have referred (received under ss 8A and 37(b) of the Sentencing Act) indicates that you are willing to comply with the terms proposed in that report which are reflected in the conditions which I have just stated, but it is necessary for you now to formally consent, in writing, if you are prepared to do so.
Having confirmed your consent to the proposed CCO, I sentence you to 21 months’ imprisonment and a two-year CCO on the conditions to which you have agreed. I order that the pre-sentence detention of 405 days which you have served not be reckoned as a period of imprisonment or detention already served pursuant to s 18(1) of the Sentencing Act. So you will serve a further 21 months in custody, followed by a two-year CCO.
I make this order in the terms I have just stated to avoid the difficulties of both setting a non-parole period and making a CCO if I were to sentence you to more than two years’ imprisonment and rely on the discounting provision s 44(1). I have, of course, taken your pre-sentence detention into account in fixing both your term of imprisonment, and the length and terms of the CCO.
I further declare pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have sentenced you to seven years’ imprisonment with a non-parole period of four and a half years.
I have signed the disposal order sought by the Crown.
Lastly, can I say this to you Mr Hutchison. You have a chance to chart your course from now until you get out under the CCO. When you do get out under that order you will be tested. It will be difficult for you, I know, not to return to heavy drug use. Perhaps for the first time in your adult life, you have a significant time free from drugs in which to prepare for that test. It is both in your interests and in the interests of the public that you come through it.
But it will be apparent to you that if you fail to comply with the conditions, you will be facing a further significant period of imprisonment. In other words, if you do not comply with the conditions, you will be going back in. So it is a pretty stark choice.
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