R v Pota

[2007] VSCA 198

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 207 of  2006

THE QUEEN

v

TONGA POTA

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JUDGES:	MAXWELL P, BUCHANAN JA and KAYE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 August 2007
DATE OF JUDGMENT:	17 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 198

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CRIMINAL LAW – Sentencing – Assault resulting in death of victim – Appellant acquitted of manslaughter and intentionally causing serious injury, and convicted of recklessly causing serious injury – Sentenced to 6 years’ imprisonment with non-parole period of 4 years – Whether appellant sentenced on basis consistent with jury verdicts – Relevance of death of victim – Whether excessive weight given to appellant’s three previous convictions for violence – Whether sentence manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Gamble SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr C B  Boyce	Patrick Dwyer & Associates

MAXWELL P:

1. I have had the considerable advantage of reading in draft the reasons for judgment of Kaye AJA.  I agree that the appeal should be dismissed, for the reasons which his Honour gives.

BUCHANAN JA:

1. For the reasons stated by Kaye AJA, I consider that the appeal should be dismissed.

KAYE AJA:

1. At about 11.00pm on 17 June 2004, the appellant participated in a violent incident at the Holmesglen Railway Station.  In the course of that incident he struck Bruce Barnett, causing him to fall to the ground.  Subsequently, as a consequence of head injuries sustained from that fall, Barnett died.  The appellant was charged on presentment with the manslaughter of Barnett (Count 1), alternatively, intentionally causing serious injury to Barnett (Count 2), alternatively recklessly causing serious injury to Barnett (Count 3).  At his trial, he was acquitted on the first two counts, and convicted by the jury on the third count.  After hearing a plea on behalf of the appellant, the trial judge sentenced him to a term of imprisonment of six years, with a minimum non-parole period of four years.  The appellant, by leave, appeals against that sentence. 

1. During the evening on which the incident occurred, the appellant had been drinking alcohol with a number of his friends in the car park near the Holmesglen Railway Station.  There they came to the attention of the police, who spoke to them.  The appellant and his colleagues then left the car park.  They walked on the roadway alongside the railway line past the station.  Two persons were standing on the platform waiting for a train.  One was Mr Barnett, and the other was Mr Tat Keung Kwan.  Mr Barnett had also been drinking heavily, and was subsequently found to

have a blood alcohol content of .275%.  Mr Barnett was disabled, and walked with the aid of a walking stick.

1. As the appellant and his friends walked along the roadway, they were making some noise.  Barnett told them to “shut up”.  A verbal exchange commenced between him and the appellant and his friends.  As a result, three members of the group, including the appellant, jumped over the fence separating the roadway from the railway line.  They crossed the train tracks and came up to the platform.  The appellant approached Barnett.  The other two turned to Kwan.  They threw rocks which struck Kwan and caused him to take evasive action. 

1. In the meantime Mr Barnett had moved towards the front of the railway platform.  He was standing very close to the edge of the platform leaning forward, with the upper half of his body almost horizontal to the ground.  In his record of interview, the appellant stated that they were “pretty much face to face”.  Barnett continued to engage in the verbal exchange, and the appellant was responding.  The appellant was able to smell the effect of liquor on Barnett but, at his interview, stated that he could not see Barnett’s walking stick.  In fact the lighting at the scene was not good.  When Barnett’s face was approximately 30 to 40 centimetres from the appellant’s face, the appellant punched him in the chin with his right fist.  The appellant told the police that he punched Pota “because he had got up in my face and was swearing at me.”  Barnett fell backwards and struck his head on the platform. 

1. The appellant then desisted from attacking Barnett, and turned to where the other two young men were giving Kwan a beating on the train tracks.  He intervened and brought a halt to the assault on Kwan.  He also helped to lift Kwan back onto the railway platform.  As a result of the fall, Barnett sustained a fracture to the occipital region of the skull with associated brain damage.  He was admitted to hospital, but his condition deteriorated, and he died 13 days later.

1. The appellant was born in 1982 and was therefore 24 years of age at the time of the offence.  By that age, he had already accumulated what the sentencing judge aptly described as an “appalling” record of previous convictions for violence.  On 10 May 1999 the appellant was involved in a brutal affray, in which he and other young companions attacked three people in a motor car in Glen Iris.  The incident involved the repeated pursuit of, and assaults on, one particular individual.  The assaults involved punching, kicking and hitting the victim with poles and other weapons, while the victim was on the ground.  In the aftermath of the incident the victim was killed when a motor vehicle accidentally ran over him. 

1. Less than six weeks later, on 22 May 1999, the appellant was involved in a further incident at a party in Ashburton, when he smashed a beer stubbie on the face of a woman.  After the victim fell to the ground, the appellant continued to attack her by punching her repeatedly to the head.  He then attacked her boyfriend, punching him to the ground, and punching and kicking him while he lay on the ground. 

1. Six months later, on 3 December 1999, the appellant became involved in an argument between two groups of youths in Ashburton.  The appellant and other offenders pursued one member of the opposing group, set upon him, and punched and hit him with pieces of wood while he was on the ground. 

1. As a result of the second incident, involving the assault at the party on 22 May 1999, the appellant was convicted at the Magistrates’ Court at Ringwood in November 2000 on a number of charges, including assault with a weapon, causing serious injury recklessly, and causing injury intentionally.  He was sentenced to be released on a community based order for a period of 12 months.  He subsequently breached that order, and on 5 July 2001 the Ringwood Magistrates’ Court imposed a suspended gaol sentence on him, and also fined him. 

1. On 13 September 2001 the appellant pleaded guilty in the County Court to charges of causing seriously injury recklessly, and affray, arising out of the first incident in Glen Iris in April 1999.  He was sentenced to a community based order of 12 months.  Subsequently he breached that order, and on 7 February 2002 was dealt with by the judge.  In lieu of the community based order, he was placed on a 12 month bond with a conviction, and fined. 

1. Finally, on 22 July 2002, the appellant came before the County Court on a charge of recklessly causing serious injury arising from the incident in Ashburton of December 1999.  The judge sentenced the appellant to nine months’ imprisonment, which was wholly suspended for 18 months.  The operational period of that suspension expired on 22 January 2004, four and a half months before the incident at the Holmesglen Railway Station which was the subject of this case. 

1. The appellant’s background is set out in some detail in the sentencing judge’s reasons.  The appellant left school having completed Year 10, and then commenced an apprenticeship as a carpenter.  He worked in that capacity for two years, but did not complete his apprenticeship.  Subsequently he worked for one year with a furniture manufacturer, and then for a period of some six months with another employer making portable rooms.  After his arrest in June 2004, he remained in custody for 12 months.  He was released on bail in June 2005, and worked for Linfox until his sentence on the present charges in July 2006. 

1. There was evidence before the sentencing judge that the appellant had undergone a process of maturation after his release on bail.  His Honour credited that process to the work of the Youth Unit at Port Phillip Prison, in which the appellant was located during his period in custody.  During that time he undertook a number of programmes, and participated in two courses relating to anger management.  The Youth Development Officer at the prison, Ms Hooker, stated that while the appellant was in the unit his behaviour was beyond reproach.  He was identified early on as a potential prison mentor because of his positive attitude and conduct.  Shortly after his arrest, the appellant and his brother had been attacked by three other prisoners, and the appellant had played a constructive role in seeking to defuse the situation. 

1. After the appellant’s release, he was placed on the CREDIT Bail Support Programme.  The appellant attended a number of sessions with the counsellor allocated to him.  A report from the programme was tendered to the sentencing judge.  That report concluded that the appellant reported that he had not consumed alcohol since the events, and that he had remained busy by working, spending time with his family and playing sport.

1. Between January and June 2006 the appellant participated in the Personal Support Programme of Centrelink.  A report of his case manager stated that the appellant was highly motivated towards change, and that he had demonstrated his ability to set and attain desired goals in a short period of time.  The case manager stated that the appellant had altered his lifestyle by withdrawing from his previous cycle of drinking. 

1. The sentencing judge delivered his reasons for sentence on 7 July 2006.  On that day his Honour handed down written reasons, which contained, inter alia, a number of references to case law.  His Honour also gave oral reasons, which were consistent with the written reasons, but which omitted some of them.  For the purposes of this appeal it is convenient to refer to his Honour’s written reasons.

1. His Honour commenced by noting the jury verdicts.  His Honour noted that the acquittal of the appellant on Count 1 indicated that the jury was not satisfied that a reasonable person in the position of the appellant would have realised that there was an appreciable risk of causing serious injury.  On the other hand the conviction of the appellant on Count 3 indicated that the jury was satisfied beyond reasonable doubt that the appellant realised that his action would probably cause serious injury, but that he went on regardless of that fact.  His Honour observed that, while the two issues are different, nonetheless it is not easy to reconcile the two verdicts.  One explanation was that counsel for the appellant had made a concession before the jury by which, it would seem, counsel effectively invited the jury to convict his client on Count 3. 

1. His Honour then related the circumstances of the offence. He noted that the head injuries sustained by the victim were extremely serious. The punch was thrown without premeditation. Barnett was in a vulnerable position bending forward on the edge of the platform, so that any act of violence such as a punch might well result in him falling to the rail tracks. The punch was of sufficient force to alter Barnett’s centre of gravity, so that he fell backwards. His Honour stated that he considered that this was a serious example of an offence under s 17 of the Crimes Act.  He further stated that the appellant’s antecedent’s history “illuminated” his moral culpability.  On three previous occasions the appellant had had it brought home to him that this type of conduct was wrong. 

1. The judge further noted that counsel for the appellant had conceded that general deterrence was significant, because of the prevalence and the undesirability of the type of conduct indulged in by the appellant.  His Honour expressed the view that personal deterrence was a significant consideration because of the “appalling nature and pattern” of the appellant’s prior convictions.  His Honour outlined the appellant’s background, which I have summarised.  His Honour accepted that the appellant had exhibited genuine remorse, and that he had gained maturity since his arrest.  He considered that while personal deterrence remains relevant, the evidence suggested it was not a major concern. 

1. His Honour then proceeded to characterise the offending.  In paragraph 46 of his written reasons, his Honour said:

A major difficulty in determining an appropriate sentence in this case is the fact that, while Pota’s reckless act resulted in the death of Barnett, he is not to be sentenced on that basis.  Further, he is not to be sentenced on the basis that he intended to cause a serious injury.  The conviction of recklessly causing serious injury involves a finding by the jury that Pota punched Barnett knowing that doing so would probably cause a serious injury but went ahead regardless of the probable consequences of the punch.  In this instance the serious injury should be described as head injuries of a kind likely to kill Barnett.  It is difficult to imagine a more serious kind of injury.

1. His Honour then referred to the principles of punishment, general deterrence, denunciation and rehabilitation. Having done so, he imposed a term of imprisonment of six years, with a non-parole period of four years. 

1. The appellant relies on five grounds of appeal, namely:

(1)The learned sentencing judge erred in imposing a sentence which was inconsistent with the verdicts of not guilty on Counts 1 and 2.

(2)The learned sentencing judge erred in the view he took of the nature of the intention involved in the offence (in respect of which the appellant was convicted).

(3)The learned sentencing judge erred in placing too much weight upon the appellant’s prior criminal history.

(4)The learned sentencing judge erred in failing to place sufficient weight on:

(a)the age of the appellant at the time of the offence;

(b)the appellant’s remorse;

(c)the offer to plead guilty to the offence; and

(d)the appellant’s prospects of rehabilitation.

(5)The learned sentencing judge imposed a sentence which was manifestly excessive in all of the circumstances.

1. Those grounds of appeal may be conveniently dealt with in the context of the three main submissions advanced on behalf of the appellant, namely:

(1)The sentencing judge sentenced the appellant on an impermissible basis, namely, that, at the time at which the appellant struck Barnett, he foresaw that as a probable consequence Barnett might sustain fatal head injuries (Ground 2).

(2)The sentencing judge placed undue weight on, and gave undue emphasis to, the appellant’s previous convictions (Ground 3).

(3)The sentence was manifestly excessive, and failed to take sufficiently into account a number of mitigating factors. (Grounds 1, 4, 5).

1. The first submission, which reflects Ground 2, was based on the second‑last sentence of paragraph 46 of his Honour’s written reasons for sentence, which I have quoted above.[1]  It was submitted that his Honour sentenced the appellant on the basis that he had foreseen the probability that his punch would cause head injuries of a kind likely to kill the victim.  Such an intention amounts to the intention required for reckless murder and not for recklessly causing serious injury.[2]  Such a finding is inconsistent with the fact that the appellant had not been charged with murder, and had been acquitted of manslaughter.  By sentencing the appellant on such an impermissible basis, his Honour had made an error in the exercise of his discretion.[3]  Further, it was submitted, there are a number of “levels” of serious injury, ranging from the “lowest” type of serious injury to the most catastrophic version of that type of injury.  Where, as here, a judge proposes to sentence an appellant on the basis that the offender foresaw the probability of serious injury of the “highest” level - that is, injury which will probably result in death – the sentencing judge must be satisfied beyond reasonable doubt that the appellant had that degree of foresight at the time at which he struck the fatal blow. It was submitted that no such finding was made by his Honour in this case, nor was such a finding open to his Honour.

   [1]Para [20].

   [2]R v Crabbe (1985) 156 CLR 464, 469-70.

   [3]R v Toms [2006] VSCA 101, [6] – [7].

1. Both of those arguments are based, wholly, on one sentence in paragraph 46 of the judge’s written reasons.  In my view, that submission misconstrues that part of his Honour’s reasons. As I have stated, his Honour commenced his reasons by reciting the verdicts pronounced by the jury, and by correctly identifying the implications of those verdicts as to the state of mind of the appellant when he punched Barnett.  As his Honour stated, the finding of guilt on Count 3 meant that the jury was satisfied beyond reasonable doubt that, when the appellant punched his victim, he realised that his action would probably cause serious injury but went on regardless of that fact.[4]  Later in his reasons, his Honour noted that there had been much debate in the course of the trial as to the actual force of the punch.  His Honour concluded that the punch was of sufficient force that Barnett, who had previously been bending forwards, was propelled backwards beyond the line of the centre of gravity of his body.[5]  Having made those findings, and having referred to the background and antecedents of the appellant, his Honour then returned to the characterisation of the offence at paragraph 46 of his reasons.  In the passage quoted above, his Honour again noted that the appellant was not to be sentenced on the basis that he intended to cause serious injury.  Rather, as his Honour noted, the finding of guilt on Count 3 meant that the appellant punched Barnett “knowing that doing so would probably cause a serious injury but went on regardless of the probable consequences of the punch”.  His Honour there characterised, correctly, the state of mind of the appellant.  The next sentence is that on which counsel for the appellant relies on this appeal – “In this instance the serious injury should be described as head injuries of a kind likely to kill Barnett.”  In the context to which I have just referred, it is clear that his Honour was not referring to what the appellant had foreseen, but, rather, to the injury which actually occurred as a consequence of the appellant’s act.  In other words, in that passage, his Honour was not finding that the appellant foresaw that Barnett would probably sustain fatal head injuries; rather, his Honour correctly stated that, as a consequence of the appellant’s act, Barnett sustained head injuries of a kind which were likely to kill him. 

   [4]Reasons for Sentence [4].

   [5]Reasons for Sentence [17].

1. Accordingly, counsel for the respondent was correct in submitting that, in the passage on which the appellant relies, the sentencing judge was referring to the “actus reus”, and not to the mental state of the appellant.  The offence of recklessly causing serious injury consists of two principal elements.  First, the appellant must have caused really serious injury to the victim.  Secondly, at the time at which the appellant caused that injury, the appellant must have realised that his action would probably cause serious injury and have acted regardless of those consequences.  On its proper construction, the passage in paragraph 46 of the reasons, on which the appellant now relies, was directed to the first element of the offence, namely, identifying the injury actually sustained by the victim as a result of the appellant’s act.  While, as the sentencing judge noted, the appellant was not to be sentenced on the basis that he intended or foresaw the death of his victim, nonetheless the consequences of the appellant’s act were material in determining the sentence to be imposed on the appellant.[6]  Thus, it was relevant for the sentencing judge to identify the nature of the injuries sustained by Barnett as a consequence of the appellant’s reckless act. 

   [6]See for example R v Mallinder (1986) 23 A Crim R 179, 180, 187-8; R v Fevaleaki [2006] VSCA 212, [15].

1. That finding by the sentencing judge was, in fact, a response to a question which had been discussed in the course of sentencing submissions.  At the commencement of those submissions, the prosecutor identified the serious injury which was “caused” to the victim.  He proceeded to describe it as “the very top end” of the scale of serious injury, contending that it was a “catastrophic injury” from which there was no prospect that Mr Barnett could recover.  In response, his Honour suggested that the injury could be categorised “as a potentially fatal injury and therefore very serious”.  He expressed reservations whether it could be described as a “catastrophic” brain injury. The prosecutor replied that his Honour should sentence the appellant on the basis that “his actions caused serious injury and the serious injury was of a type that has been discussed.” [7]   In response, the appellant’s trial counsel referred to the prosecutor’s submissions, and said:

First of all, the injury itself.  To a large extent I agree with what my learned friend has said about the injuries save for the categorisation that it is a catastrophic injury.  Clearly, the injury is or was a fractured skull and the injury was the attendant brain damage, though to what extent the latter can be seen to be foreseeable, given the conviction, is debateable.  In any event he did have a fractured skull and he did suffer serious brain damage.[8]

[7]T455.

[8]T469.

1. It was in the context of that discussion that it fell to the sentencing judge to characterise, in his reasons for sentence, not only what was foreseen by the appellant, but also the injury actually sustained by the victim.  In that context, it is clear that, in the passage on which the appellant now relies, the sentencing judge was referring, not to the appellant’s foresight, but, rather, to the consequence of the appellant’s act, namely, that the injury sustained consisted of head injuries of a kind likely to kill Mr Barnett.

1. For those reasons, I consider that the first submission by the appellant is based on an erroneous construction of the findings by the sentencing judge.  Contrary to that submission, the sentencing judge correctly identified the basis on which he should sentence the appellant.  His Honour correctly described the nature of the serious injury caused by the appellant, namely, injury which was likely to cause death.  Secondly, his Honour noted that he was to sentence the appellant on the basis of the finding by the jury, namely, that he foresaw that by his act he would probably cause serious injury, but went on regardless.  For those reasons, Ground 2 should not succeed.

1. The second submission – reflecting Ground 3 – was that the sentencing judge placed excessive weight on the appellant’s previous criminal history.

1. As I have stated, the sentencing judge described the appellant’s previous offending as “appalling”.  Defence counsel had conceded as much on the plea.[9]  His Honour found that that previous history illuminated the appellant’s moral culpability in this case.  It was submitted that his Honour erred in treating the previous offending in this way, because there were substantial differences between the circumstances of this case and the previous cases.  Unlike on the previous occasions, in this case the appellant struck only one blow to Barnett, and then went to the assistance of Kwan, bringing to a halt the beating which his colleagues were inflicting on him.  It was submitted, further, that the sentencing judge failed to take into account the appellant’s youth at the time of his previous offending, his subsequent remorse after this offence, and the evidence of his progress towards maturation and rehabilitation.

   [9]T467.

1. In Veen v R,[10] Mason CJ, Brennan, Dawson and Toohey JJ, in their joint judgment, stated that, while an offender must not be given a further penalty for his or her past offences, nevertheless the previous convictions of an offender are relevant as to issues of specific deterrence, moral culpability, and general deterrence.  In the present case, the appellant had a deplorable history of previous offending involving wanton, alcohol-fuelled violence on hapless victims.  His previous offending showed that he had little or no control over his anger, and was of a dangerously violent disposition.  All of those characteristics were present in his current offending.  True it is that, in this case, the appellant only struck one blow to his victim, and, as distinct from his previous offending, then desisted from further violence, and indeed played a commendably constructive role in preventing any further injury to the other victim, Mr Kwan.  Those circumstances were noted by the sentencing judge and taken into account by him.  Nonetheless, the fact remains that the appellant came before the sentencing judge in this case with a previous record for wanton violence which necessarily reflected on his moral culpability, on his attitude to obedience of the law, on his likelihood of re‑offending, and on the need to impose a sentence sufficient to deter other like-minded individuals, who also persistently engage in the same type of conduct.

   [10](1988) 164 CLR 465, 477.

1. It was correctly accepted on the plea, and recognised by the sentencing judge, that the mindless violence which characterised this offence is all too common in our community.  The tragic consequences of the type of conduct engaged in by the appellant are far from rare.  It is the duty of the courts to impose sentences of sufficient severity, in order to give a clear message to the community, and in particular to young persons of similar disposition to the appellant, that if they engage in the type of cowardly conduct which occurred in this case, then they will receive substantial sentences of imprisonment.  Where, as in this case, the offender, by his record, has shown himself to be consistently engaging in the same sort of conduct, then not only was it appropriate, but indeed, necessary, for the sentencing judge to take the previous offending into account.  For those reasons I consider that Ground 3 is without substance.

1. The third principal submission on behalf of the appellant comprised a combination of Grounds 1, 4 and 5.  It was submitted that the sentence was manifestly excessive (Ground 5).  In particular, it was submitted that the sentence was inconsistent with the acquittal of the appellant on Counts 1 and 2, and that the sentence was more appropriate for an accused person convicted of manslaughter or intentionally causing serious injury (Ground 1).  In addition, it was submitted that the sentencing judge gave excessive weight to the appellant’s previous convictions and to the consequences of the offence, and gave insufficient weight to the appellant’s age at the time of the offence, his remorse, his offer to plead to the offence charged in Count 3 of the presentment, and his prospects for rehabilitation    (Ground 4).

1. In his reasons for sentence, his Honour carefully and comprehensively detailed the background of the appellant, and identified each of the circumstances to which reference has been made in support of Grounds 1, 4 and 5.  However, the fact remained that the conduct by the appellant in this case was serious.  He had approached the victim over some distance.  There was little, if any, provocation offered to the appellant.  At the time the appellant struck Barnett, the latter was in a particularly vulnerable position, bending forward on the edge of a railway platform.  The blow was struck with some force.  The appellant’s act had tragic consequences.  The appellant had had previously brought home to him, in no uncertain terms, that the type of conduct in which he engaged on the night in question was completely unacceptable to society.  He had previously been given, repeatedly, opportunities to reform, and had turned his back on them.  (This was also conceded on the plea.[11])  As I have stated, the type of offending in this case is all too prevalent.  So, too, are the tragic and irreversible consequences which ensue when young men, often fuelled by alcohol, roam the streets, and turn on defenceless victims. 

   [11]T468.

1. The judge expressly acknowledged that the appellant, at last, has shown some remorse, and has, hopefully, begun to turn the corner towards reform.  However, those circumstances cannot, in a case such as this, set at nought the obligation of the Court to impose severe sentences, in order to play a necessary role in setting appropriate standards of conduct for the community, and in deterring the type of conduct which occurred in this case.  Notwithstanding the mitigating factors discussed by his Honour, the circumstances of the case called for the imposition of a substantial custodial sentence.  Accordingly, in my view, the sentence imposed on this case could not be said to be manifestly excessive.

1. Nor do I accept that the sentence in this case could only have been appropriate had the appellant been convicted of manslaughter or intentionally causing serious injury.  There have been recent observations by this Court relating to the range of sentences which may be appropriate in cases of manslaughter and intentionally causing serious injury.[12]  However, and in any event, comparison between cases involving the same, or different, offences is of limited use.  Each case, necessarily, depends on its own particular facts and circumstances.  For the same reason, it is recognised that sentencing statistics are of limited utility.  Statistics say nothing about the individual circumstances of each case, including the seriousness of the offending, the antecedents of the offender, and the circumstances of the offender.  In this case, the sentencing judge carefully identified the basis upon which the appellant had been convicted.  His Honour’s reasons for sentence contain no misunderstanding as to that basis.  The maximum sentence for the offence of which the appellant had been convicted was 15 years’ imprisonment.  It was conceded on the plea that this was a serious instance of recklessly causing serious injury.[13]  In my view, the Crown’s contention that it was a very serious instance[14] was more accurate.  I do not accept that the sentence imposed on the appellant could only have been appropriate in a case of manslaughter or intentionally causing serious injury, particularly given the appellant’s previous criminal history, the gravity of the offence, and the tragic consequences to the victim.

   [12]See for example DPP v. Arney [2007] VSCA 126, [14] (Nettle J.A.); DPP v. Zullo [2004] VSCA 153, [10] (Nettle J.A.).

   [13]T536.

   [14]T565-6.

1. Accordingly, for the reasons which I have given, I consider that the appeal should be dismissed.

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