R v Marshall
[2014] SASC 92
•11 July 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MARSHALL
[2014] SASC 92
Reasons for Decision of The Honourable Justice Kelly
11 July 2014
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
The applicant, who is detained in custody until further order on the basis that he is unwilling or unable to control his sexual instincts, withdrew his application for release on licence under s 24 of the Criminal Law (Sentencing) Act 1988 (SA).
Whether this Court has power to refuse to accept the withdrawal of an application under s 24 for release on licence.
Held:
(1) The Supreme Court possesses inherent jurisdiction to control and supervise proceedings before it and to take appropriate action to prevent injustice. An aspect of the Court’s inherent power is to stay proceedings that constitute an abuse of process.
(2) The applicant’s withdrawal of the application does not amount to an abuse of process.
(3) The applicant is permitted to withdraw the application for release on licence.
Criminal Law (Sentencing) Act 1988 (SA) s 7B, s 23, s 24, s 25; Criminal Law Consolidation Act 1935 (SA) s 269P, referred to.
Draoui v District Court of South Australia [2010] SASC 151, not followed.
R v MARSHALL
[2014] SASC 92Criminal
KELLY J.
This was an application by Mark Trevor Marshall for release on licence under s 24 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) however, the only matter before the Court at this stage of these protracted proceedings is an application by Mr Marshall to withdraw that application. Given the multiple turn of events which occurred between the date the applicant first sought release on licence and the date when he sought to withdraw the application, it is necessary to set out the history of the proceedings before me.
Background
On 18 September 2009 a Judge of this Court made an order under s 23 of the Act that the applicant be detained in custody until further order on the basis that the applicant was unwilling or unable to control his sexual instincts.
Prior to 2009 the applicant had a lengthy history of sexual offending the details of which it is necessary to record below:
Date
Charge
Sentence
5 June 1987
Sentence imposed with respect to 13 counts indecent assault (all involving children)
3 months imprisonment suspended and simple bond imposed
4 April 1990
Sentence imposed with respect to seven counts of indecent assault (relating to female children aged between five and seven years)
4 years imprisonment, non-parole period 16 months to date from 30 August 1989
9 July 1990
Applicant released on parole
4 September 1992
Sentence imposed with respect to three counts of indecent assault (the victims were one female child aged 11 and one male child aged six)
5 years, 7 months, 5 days, non-parole period 4 years (sentence included unexpired portion of parole)
On 13 October 1995 due to a breach of a designated condition that he not have contact with children and also due to re-offending the applicant’s parole was cancelled.
28 June 1996
Sentence imposed with respect to one count of indecent assault and one charge of procuring a child to expose her body (the victim was a female child aged six years)
5 years, 3 months, 12 days, non-parole period of 4 years. (Other offences not of a sexual nature also included in this sentence)
On 8 January 2001, the Applicant was released from prison. He served the whole of the sentence imposed in 1996, as his earlier release on parole was refused by the Parole Board.
September 2001 – January 2002
Applicant committed two offences of causing a child to expose part of her body to gratify a prurient interest (victims aged two and three)
2 years commencing 4 March 2002
After the Judge made the order under s 23 of the Act, barely one year elapsed before the applicant applied for release on licence under s 24 of the Act.
Two psychiatrists provided reports to the Court in respect of that application, namely Dr Jennings and Dr O’Brien.
In his report of 21 January 2011 Dr Jennings opined:
It is from my understanding of the concerns raised by Dr Andrea Louis, Director Owenia House, that most of these appear to have been improved significantly following his treatment through the Sexual Behaviour Clinic while incarcerated at Yatala Labour Prison. In view of this I believe it is a reasonable course of action for Mr Marshall to be Released on Licence with very strict conditions, with ongoing treatment through Owenia House. Obviously he would need to have close supervision through his parole officer and ideally accommodation where there is supportive assistance as well as ongoing monitoring and supervision. He would also need ongoing psychiatric reviews with regard to his mental state and medication which can be provided through the Community Corrections Centre psychiatric clinics. As far as I am aware Mr Marshall cooperated with the Sexual Behaviour Clinic programme, and appears to have made significant progress. Mr Marshall feels he has been in prison for an extended period despite his efforts to improve his insight and understanding into the consequences of his past behaviour. I believe there is a real risk that if he is not given a chance of further progress in the community, this will result in him feeling the work he has done to date has been pointless, resulting in demoralisation and a potential return to regressed and victim identification behaviour. This would make the chance of Mr Marshall reaching a more improved level of functioning while in prison in the future increasingly remote.
In his report of 2 February 2011 Dr O’Brien opined:
In summary, therefore, they are arguments both for keeping Mr Marshall in custody for further treatment/intervention as distinct from releasing him into the community supported by very stringent conditions of supervision and treatment/management. Whilst it is for the court to determine what action to take, should the court elect to, on this occasion, release him back into the community I would strongly argue that any breach of a mandated condition should immediately result in his licence being rescinded and his return to custody (at which point I would further recommend and early review by staff of the Sexual Rehabilitation Clinic and by a consultant forensic psychiatrist well versed in this matter).
Subsequently on 15 April 2011 the Judge indicated that it was appropriate to release the applicant on licence conditional upon appropriate accommodation being located and approved by the Parole Board.
On 15 July 2011 a formal order releasing the applicant on licence under the provisions of s 24 of the Act was made. The release was subject to appropriate accommodation being found and approved by the Parole Board.
Before any accommodation could be found, the Director of Public Prosecutions filed an application before the Court seeking a reconsideration of the order for release on licence made on 15 July 2011. That application was based on further information coming to light. An interim stay on the operation of the order was granted on 26 September 2011. That information was eventually filed in court in an affidavit of the social worker, Ms Brooks, sworn on 5 October 2011. Ms Brooks detailed concerns which she had about a number of interviews with the applicant in the gaol and expressed the view that if released the applicant’s past behaviour suggested that he may well regress and engage in child-like behaviours at which time he would be at a greater risk of reoffending.
In due course the psychiatrists Dr O’Brien and Dr Jennings were asked to provide further reports in light of the social worker’s concerns. On 18 November 2011 Dr Jennings opined:
The interview with the social worker followed the current affairs coverage and a demonstration against his pending release which has distressed and angered Mr Marshall. It appears that he has again increasingly identified with a victim position, with little acceptance of his role or responsibility in his interaction with his ex-partner’s children. The risk is with further publicity and social disquiet about his release, this would further exacerbate his regressed ideation with heightened risk of re-offending.
...
However as stated in my previous report I believe there is a risk that if Mr Marshall is not given a chance of further progress with treatment in the community, this will result in him feeling the work he has done to date has been pointless, resulting in demoralisation and a potential to further regress to the victim identification behaviour. This would make the chance of Mr Marshall further improving his level of functioning while in prison increasingly remote.
On 12 January 2012 Dr O’Brien provided a further report in which he dealt with the information from the social worker as well as a further issue which had arisen when the applicant was found with images of children on his computer in the education centre and in his cell in around November 2011. While those images were not pornographic in nature Dr O’Brien nevertheless opined:
[T]hese are behaviours inconsistent with a man who is being considered for release on licence at this time.
...
… I have reached the conclusion that it is inappropriate to release him into the community at this juncture.
On 17 February 2012 the Court adjourned the application for a period of three months for further consideration and to enable the applicant to undertake further treatment with a psychologist.
On 14 May 2012 Dr O’Brien provided an updated report about the counselling sessions that the applicant had been having and indicated that a further three month period was needed before an adequate assessment could be made for court purposes. Both Dr O’Brien and Ms Warne, then the Principal Clinician at the Rehabilitation Programs Branch in the Department for Correctional Services, indicated that progress had been made by the applicant.
In further reports obtained later that year, Dr Jennings expressed the view that there had been a significant improvement in the applicant’s mental state since starting the Sexual Behaviour Clinic in December 2009 and that the applicant’s mental state and level of function had continued to improve with his individual psychotherapy with Ms Warne. In his report of 20 July 2012 Dr Jennings opined:
[T]he best chance of significant ongoing rehabilitation for Mr Marshall would be for him to continue with individual psychotherapy based in the community with very strict conditions on his licence outlined by Dr O’Brien, and that any breach of a mandated condition would immediately result in his licence being rescinded.
In her report of 10 August 2012, Ms Warne stated that the applicant had cooperated with the counselling regime and had progressed significantly in terms of rehabilitation.
In his further report of 14 August 2012 Dr O’Brien noted that the applicant had made valuable gains in his work with Ms Warne and opined as follows:
In my opinion, there will never be an ideal time for Mr Marshall to be returned to the community. His therapy, by necessity, will be on an ongoing basis, irrespective of its location. The pivotal question always has been, and will continue to be, his risk to the community. Ultimately, the court has to take that decision and I trust, again with respect, that this decision will be taken on the grounds of an acceptable and reasonable risk rather than any absolute guarantee of safety (which would be impossible to give).
I am now of the opinion, having been reassured by more recent contact with Mr Marshall and coupled with my reading of Ms Warne’s detailed report, that it would be a proper time to again seriously consider his release on licence.
There were further hearings concerned with the issue of accommodation appropriate for the applicant and on 20 September 2012 the Parole Board provided to the Court suggested draft conditions of licence.
On 28 September 2012 the Court was informed of the further difficulties experienced in finding appropriate accommodation in the Offender Management Program pilot area. There followed further adjournments and appearances in court when the Court was updated on the progress of attempts to find suitable accommodation.
Finally, on 15 November 2012 the Judge made a further order that the applicant be released on licence subject to suitable accommodation approved by the Parole Board being found.
The Judge presiding in the matter up to then retired in 2012, and the matter next came before another Judge on 25 January 2013 on which date suitable accommodation had still not been found.
On 22 February 2013 the prosecutor informed the Court that 34 houses had been checked and dismissed as unsuitable.
On 5 April 2013 when the matter came before me I was informed that another seven houses had been considered and they too were deemed unsuitable. I was also informed by the prosecutor on that day of a further report by another case worker (Mr Mercer) who was assigned to visit the applicant in prison. He had submitted a report to the Parole Board expressing his concerns about whether or not the applicant should be released. Mr Mercer opined that the applicant displayed minimal empathy towards his victims and shifted responsibility for his offending.
The applicant’s counsel requested a further report from Ms Warne who had also been working with the applicant on a regular basis. That report was requested on the basis that there was said to be instant hostility between Mr Mercer and the applicant and the applicant was concerned as to the objectiveness of Mr Mercer’s comments.
On 26 April 2013 the prosecutor again informed the Court that no suitable accommodation had been found. On 7 June 2013 the prosecutor informed the Court that another five homes had been checked. Each was deemed unsuitable. By this date some 41 homes had been checked. The prosecutor’s comments on that date were “it’s not a lack of funding, it’s not a lack of will, it is a lack of suitable accommodation”. The matter was then adjourned for another eight weeks.
On 9 August 2013 the prosecutor informed the Court that accommodation had been identified and was being considered by the Parole Board. At this time, conversations between the applicant and detectives investigating an historical allegation of sex abuse reactivated some concerns about the appropriateness of his release on licence. In light of these comments by the applicant, the Court ordered addendum reports from Dr O’Brien and Dr Jennings and adjourned for another six weeks to allow those reports to be provided and for the Parole Board to comment on the housing identified.
In his report dated 16 September 2013 Dr O’Brien opined:
At a clinical level, I remain satisfied with Mr Marshall’s continuing clinical progress. With respect, I believe it is now an opportune (if not an ideal) time to progress with his release arrangements.
In his report dated 16 September 2013, Dr Jennings recommended that the applicant should not live alone if released on licence:
If Mr Marshall is to be released I have recommended that he should not live alone, but with someone who could monitor his mental state and behaviour on a daily basis, and any concerns be quickly alerted for early assessment and intervention if needed.
On 20 September 2013 I requested a report from the Parole Board setting out in detail the minimum and maximum levels of supervision and support that could be provided by the various agencies to the applicant if he were released back into the community. In a report dated 10 October 2013 Presiding member of the Parole Board Ms Nelson QC concluded:
Both the minimum and maximum level of supervision requires an intensive use of available resources. My understanding is that such level of supervision, even at a minimum level, cannot be guaranteed beyond 6 months after Mr Marshall’s release.
The matter was then set down for an oral hearing.
On 13 November 2013 Dr O’Brien and Dr Jennings gave oral evidence to the Court. Both doctors supported the release of the applicant into the community. Their opinions were similar in most respects, except insofar as Dr Jennings held the view that the applicant should not live alone.
Dr O’Brien stated:
[I] would also share Dr Jennings’ view which I have read in his reports and which I heard him say just a few minutes ago, is that I think it is now or never really. I cannot envisage a more opportune time for him to be released. If he’s not released I am fearful of the consequences, in the sense that I think there’s a real danger that he might psychologically give up in terms of all the hard work he has put into his rehabilitation and I think if that were to happen, I would think we’re back, I wouldn’t say to square one, that would be a too dramatic statement to make, but certainly there would be a regression in terms of his risk and how that risk would be managed. So that’s the reason why I feel that it’s as good as it’s going to get at the same time.
Transcript from the hearing was provided to the Parole Board in order for it to reconsider the conditions of licence. At this stage I was in a position to review the draft conditions for release on licence which had been approved by the Judge on 15 November 2012 and determine the matter.
The Criminal Law (Sentencing) (Sentences of Indeterminate Duration) Amendment Bill 2013
On 26 November 2013 the Criminal Law (Sentencing) (Sentences of Indeterminate Duration) Amendment Bill 2013 was passed by both Houses of Parliament. It was proclaimed to come into effect on 12 December 2013. The Bill was directly relevant and applicable to this matter as it retrospectively amended s 24 of the Act. The amended Act directs that the paramount consideration of the Supreme Court when dealing with an application for release on licence of a person declared a recidivist sexual offender must be the safety of the community.
The amendments required me to obtain from the Parole Board an opinion as to effect that the applicant’s release on licence would have on the safety of the community, a report canvassing the applicant’s probable circumstances if released on licence, and a recommendation as to whether he should be released. I must now also consider any evidence tendered relating to the costs of releasing the applicant on licence. Given the views expressed by the Parole Board Chair this was an important matter for me to consider in light of the amendments to the legislation.
On 4 December 2013 I formally recalled the order of the Judge made on 15 November 2012 ordering the applicant’s release on licence and determined to treat the application as an ongoing application which must now be decided in terms of the amended legislation.
On 20 December 2013 after the Act became law I made formal orders in light of the amendments and requested further reports from Dr Jennings, Dr O’Brien and the Parole Board.
In two reports of 10 December 2013 and 21 March 2014 the Parole Board reiterated its concerns about the proposed release of the applicant on the basis of the totality of his conduct including his most recent conduct, indicating that he is at high risk of reoffending and therefore at risk to the community.
In his further report of 13 December 2013 Dr O’Brien reiterated his earlier opinion that the time for release on licence for the applicant was opportune if not ideal and concluded as follows:
Previously, I have expressed an opinion on this matter and I have no reason to alter my opinion even within the context of the new legislation. I reiterate, my current opinion is based on my utilization of community protection as being the paramount consideration.
In his report of 10 December 2013 Dr Jennings was somewhat more equivocal than Dr O’Brien. He concluded:
As previously reported, I would not anticipate any further treatment or prolonged incarceration would assist in improving Mr Marshall’s mental condition nor further improve his capability of controlling his “sexual instincts”. However his vulnerability to regressing to his previous level of mental functioning remains, most likely in response to the intensity of community and media reaction to his release, and this cannot be pre-determined.
I believe Mr Marshall is currently in the best mental state to be able to control his “sexual instincts”, which would likely decline with further prolonged incarceration, however the amendment specifies “paramount consideration to the safety of the community” as opposed to balancing this with the interest of the person in pursuing further rehabilitation within the community.
On 3 April 2014 I heard further submissions from the Solicitor-General who by this stage had intervened on behalf of the Attorney-General and counsel appointed to act on behalf of the Commissioner for Victims’ Rights as well as from counsel for the Director of Public Prosecutions and counsel for the applicant.
Although the Commissioner for Victims’ Rights sought to file a Social Impact Statement pursuant to s 7B of the Act, in the end I received that document as submissions under the provisions of s 25 of the Act. Later in written submissions provided, the Solicitor-General took issue with the reception of the submissions made on behalf of the Commissioner for Victims’ Rights pursuant to that section, however in light of the subsequent developments it has become unnecessary to resolve that particular collateral issue in the context of this application. I add however, and wish to record, that I was greatly assisted by submissions made by all parties in respect of this application, but particularly by the submissions made by the Solicitor-General, counsel appearing for the Commissioner for Victims’ Rights and counsel for the Director of Public Prosecutions.
The matter was ultimately set down for further oral submissions on 3 April 2014, however before that date on 17 March 2014 a large number of prohibited and gravely concerning items were found in the applicant’s cell at Yatala Labour Prison. They included a large number of enemas as well as a section of a syringe attached to a razor with masking tape, a large quantity of photos of children clipped from magazines and newspapers, articles relating to missing children cases, information pertaining to the sale of camera and surveillance equipment, a list of names of women and children, and addresses and maps of various areas of Adelaide. Photographs and photocopies of those items exhibited to the affidavits of Ken Dalton, Security Manager of Yatala, dated 28 March 2014 and Paul Dickson, Assistant Commissioner of SA Police dated 28 March 2014.
In an addendum report by the Parole Board dated 21 March 2014, Ms Nelson QC wrote:
In our view, the totality of Mr Marshall’s conduct, including most recent conduct, is indicative that he is at high risk of re-offending and the Parole Board remains of the view that he is not suitable for release on licence, because of the risk that he presents to the community.
On 3 April 2014 I ordered further reports from Dr Jennings, Dr O’Brien and Ms Warne. I ordered that the reports comment on the material recently filed in court.
In her report dated 14 May 2014, treating psychologist Ms Warne commented on the applicant’s explanation of the materials located and the relationship between those materials and his risk of reoffending. In relation to the materials located in the applicant’s cell, Ms Warne said:
[I]t appeared that the material located in Mr Marshall’s cell may have been evidence of his developed strategy to manage his own victimisation, assert some control over his environment and to satisfy his need to collect information that could assist him on his release.
She concluded:
His level of risk to reoffend will remain in the Very High risk range due to a combination of his static and dynamic risk factors, however, with ongoing intervention, appropriate case management, regular reviewing of his conditions, open and honest discussions about relationships developed or exposure to children, and support to challenge his current belief system, his risk to the community could be managed sufficiently.
Dr Jennings interviewed the applicant on 4 June 2014 and prepared a report dated 10 June 2014. He said:
I find the documentation found in Mr Marshall’s cell extremely concerning, and in particular, the fact that he accessed the White Pages in order to obtain home addresses and phone numbers of people referred to in the media articles. Mr Marshall stated that he did not understand the implications of this at the time, but only was aware of it when it was pointed out to him by his treating psychologist. At best, the documents obtained from Mr Marshall’s cell indicate a profound lack of insight into his current situation, and the community attitude to his past offences and his potential pending release. At worst it indicates a premeditated plan to contact those people in the articles or have his friend contact them “to ask what it is all about”. Either case raises deep concerns about Mr Marshall’s risk for re-offending, which now must be rated as extremely high. Even if the best scenario is accepted, that is of a profound lack of insight into his behaviour, this itself must raise serious concerns and would significantly increase his risk for re-offending.
Dr O’Brien also interviewed the applicant on 19 May 2014 in preparing his report dated 17 June 2014. He concluded:
[I] cannot support the release of Mr Marshall at this juncture. I anticipate that this may well lead to destabilisation in his mental health presentation and with respect to undoubted improvements that Mr Marshall has made to his pathologies in recent times, I am fearful that, at least at a certain level, he may be tempted to “give up”. Therefore, every effort should be made by DCS, and particularly intervention services, to re-engage him in therapy so that in time he may achieve greater insights and acquire a greater appreciation about the legitimate concerns that the community feel about him.
Withdrawal of the application
On 27 June 2014 the applicant withdrew his application for release on licence.
Counsel for the first intervener, the Attorney-General, submitted that the applicant should not be permitted to withdraw his application but the application should be dismissed with the consequence that s 24(4) of the Act is engaged.
Section 24(4) of the Act provides that any person who has been refused release on licence may not further apply for release for a period of six months, or such lesser or greater period as the Court refusing the application may have directed.
I note in passing that I was not asked by any of the parties to consider the exercise of the discretion in s 24(4) of the Act to prohibit the applicant from applying again before any period greater than six months.
During argument an issue arose as to whether this Court has power to refuse to accept the withdrawal of the application. I was referred to a decision of a single Judge of this Court Draoui v District Court of South Australia.[1]
[1] [2010] SASC 151.
In Draoui, David J held: [2]
In the absence of any statutory requirement or rule for the withdrawal of the application, an oral statement in court to that effect must be enough to withdraw the application before the court. In addition, there can be no requirement that permission is required of either the Director of Public Prosecutions or the Court without express statement in the Act or in the Supreme Court Rules. In my view, the time limit does nothing to imply that either permission or good reason must exist to withdraw the application. Since the application had been withdrawn, the judge was unable to refuse an application which was not before him. He therefore committed jurisdictional error by asserting jurisdiction on a matter which was not before him.
[2] Draoui v District Court of South Australia [2010] SASC 151 at [15].
I respectfully disagree with the approach adopted in Draoui. The Supreme Court possesses inherent jurisdiction to control and supervise proceedings before it and to take appropriate action to prevent any injustice. An aspect of the Court’s inherent power is to stay proceedings that constitute an abuse of process.
The submission made on behalf of the Attorney-General that this Court does have the power to refuse the application for withdrawal must therefore be accepted.
However, the Solicitor-General went further than that and urged me to refuse to accept the application for withdrawal. Although the Solicitor-General did not go so far as to submit that the purported withdrawal by the applicant at this late stage actually constitutes an abuse of process, he did submit that to deny “the Executive” an order dismissing the application under s 24(4) would be to permit the applicant to obtain a collateral advantage that would be unjust for him to have. The Solicitor-General submitted that the only inference available from the timing of the applicant’s decision to withdraw his application is that he realised that his application was foredoomed to failure. In all of the circumstances surrounding the history of this matter, that basis does not justify him being permitted to withdraw his application and thus retain the consequent benefit of being able to institute a fresh application at any time with the consequences being quite possibly labour intensive for this Court and the governmental authorities charged with duties under the Act in respect of a further application.
I accept that in light of the developments which occurred earlier this year in March and April the applicant’s application for release on licence was foredoomed to failure. However that has not always been the case. Contrary to the Solicitor-General’s submission, far from being foredoomed to failure, the applicant initially succeeded in persuading at least one Judge of this Court to order his release on licence (albeit on strict terms and conditions) as long ago as 15 November 2012. Further, subsequent to that date and notwithstanding the events of 2011 and 2012 which gave rise to further reports to the Court, the applicant was, until very recently, supported in his application by all of the medical practitioners engaged by the Court to report under s 24 of the Act.
On the question whether I should accept the withdrawal of the application I am persuaded by the submissions made by counsel for the Director. A recognition of the inevitable outcome if the current application was to have been pursued does not mean that the actions of the applicant in light of the medical experts’ recommendations that he not be released, necessarily amount to an abuse of process. The purpose of the powers vested in this Court under s 23 and s 24 of the Act is the protection of the public. That protection is to be obtained by the detention for an indefinite period of persons who are incapable or unwilling to control their sexual instincts. The detention is not imposed for the punishment of the person. It is not a sentence. An order resulting in the deprivation of liberty of a person for an indefinite period is a serious matter with very grave consequences for that person. Such an order is not to be made lightly.
In these circumstances the function of the Court to review an order for indeterminate detention is important in ensuring that the person indefinitely detained is deprived of his liberty only for as long as is necessary to protect the public.
What may well amount to an abuse of the Court’s processes would be for example, where the application was clearly foredoomed to failure at the time it was lodged or was continued beyond the point where there was an arguable case before the Court.
The applicant plainly has a long period of rehabilitation ahead of him before he is likely to be supported again by his treating medical professionals to make a fresh application. A fresh application for release on licence is only likely to amount to an abuse of this Court’s processes if it is lodged prior to that further period of rehabilitation having been successfully undertaken. Common sense informs me that that period of rehabilitation is not likely to have been completed within a few months.
For these reasons I have concluded that the applicant should be permitted to withdraw his application and accordingly I make that order.
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