Kelly v R

The Common Offence

1. The same agreed statement of facts concerning the common offence was placed before both Judge Pickering and Judge English. The agreed facts reveal that on Saturday, 15 November 2015 the applicant, Steven Kelly and another co-offender, Thomas Kelly, attempted to rob a butcher shop located within the Moorebank Shopping Complex.
2. At approximately 1:25pm, the applicant and Steven Kelly alighted from a motor vehicle outside the butcher shop. Steven Kelly entered the butcher shop and enquired about meat products and then left the shop without purchasing anything. He said he would return. The applicant waited outside while he did so. About five minutes later the applicant and Steven Kelly returned to the shop. Steven Kelly approached the counter while the applicant stood near the front door. Steven Kelly asked one of the shop's employees "How much for the sausage". This employee lent under the counter to retrieve sausages. Steven Kelly then jumped on the counter and produced a large 30cm carving knife. He held the knife in his right hand with the blade facing downwards and raised the knife above his shoulder so that it was in line with his head. He yelled "Money, money".
3. According to the agreed facts there were about four to five other customers in the store at this time. They and the shop employees were terrified. The customers fled the store. One of the victims, who was the owner of the shop, obtained a large butcher's knife and began screaming back at Steven Kelly "You go, you go". Steven Kelly quickly jumped down from the counter. Both he and the applicant left the store. The applicant was overheard saying to Steven Kelly "What are you going to do mate". They ran to the vehicle which was driven away by Thomas Kelly.
4. The agreed facts state that Thomas Kelly's mobile telephone was the subject of surveillance in the period prior to the commission of the common offence. Those intercepts revealed that in a number of telephone calls between Thomas Kelly and another co-offender who was given the pseudonym, "Mr Peach", Thomas Kelly stated that up to $50,000 might be obtained from the robbery.
5. At about 11:51am on 14 November 2014, the applicant and Thomas Kelly were seen on CCTV footage at the Moorebank Shopping Complex. Thomas Kelly was seen to enter the butcher shop and look around for a few minutes. Judge Pickering drew the inference that the applicant was "effectively scoping the scene of the robbery that was going to be attempted and subsequently was attempted". The agreed facts also state that at 12:30pm on the day of the attempted robbery the applicant, Steven Kelly and another male, hired the vehicle that was used in the attempted robbery. Judge Pickering found that the applicant "was involved with Thomas [Kelly] in planning and assisting in getting this particular getaway vehicle".
6. The applicant was arrested on 22 November 2014. In an interview with the police held on the following day, he refused to answer any questions about the offence).

The Sentences Imposed on the Co-offenders

1. Mr Peach was sentenced on 5 February 2016 by Judge English for the offence of being an accessory before the fact to an armed robbery in company (Crimes Act, s 97(1), s 346). Mr Peach was sentenced on the basis that his involvement was limited to the provision of information which enabled his co‑offenders to attempt to commit the robbery. Judge English found there was no evidence that he sought to obtain any financial gain and instead found he was "acting under duress". Judge English also found that he provided sufficient assistance to warrant a discount. Mr Peach was sentenced to 18 months' imprisonment which was suspended pursuant to the provisions of s 12 of the Sentencing Act. The applicant did not seek to rely on the sentence imposed on Mr Peach to support his parity argument.
2. As stated, Steven Kelly was sentenced on 7 March 2016. The aggravated enter dwelling and larceny offences related to an incident on 13 December 2013 when he entered a home and threatened the victim with a screwdriver before tying him up with an electrical cord. He stole the victim's wallet, watch, iphone and $100 in notes. The armed robbery offence was committed on 4 November 2014. Steven Kelly approached the victim who was carrying $10,000 to pay suppliers for his butcher's shop and produced an object that resembled a handgun. Steven Kelly pointed the object at the victim's face and a struggle ensued. The victim was pushed to the ground. Steven Kelly stole the cash in the bag as well as the victim's wallet containing $600 in cash, his driver licence and other identity documents. The victim suffered scratches to his ear and forearm, an injury to his ear and pain to his neck and shoulder. A DNA swab taken from the victim led to Steven Kelly's arrest on 30 April 2015.
3. Judge English noted that Steven Kelly was 46 years old at the time of sentencing and had an extremely lengthy criminal record that had resulted in him spending "his entire life in and out of gaol". Her Honour allowed a ten per discount for the aggravated enter dwelling and larceny offences and a 25 per cent discount for the robbery and common offence on account of Steven Kelly's plea of guilty.
4. Steven Kelly sought leave to appeal. This Court found that Her Honour erred in taking into account his prior criminal history when assessing the objective seriousness of his offences but concluded that no lesser sentence was warranted in law (Kelly v R [2017] NSWCCA 82 at [65] and [72]).
5. As noted the applicant was sentenced on 23 September 2016. I have already referred to some of Judge Pickering's findings in relation to the applicant. His Honour noted that the offence was committed while the applicant was on conditional liberty. His Honour also noted that at the time he was sentenced the applicant was 31 years of age with a criminal record that meant he had "spent a long time in custody" although Steven Kelly had a "more significant" record (21.1). His Honour was "guarded" about the applicant's rehabilitation prospects. His Honour determined that the applicant was entitled to a 15 per cent discount on account of his plea.
6. Judge Pickering did not accept that the sentence imposed on Mr Peach was "any kind of guide on parity of the sentence" to be imposed on the applicant. In considering parity with Steven Kelly, his Honour identified the indicative sentence specified by Judge English in sentencing Steven Kelly for the common offence. His Honour stated that he gave "limited weight to reducing what would otherwise be the appropriate sentence merely because it was Steven Kelly who held the knife during the robbery". However his Honour concluded that, because of the age difference between them, Steven Kelly's "more significant criminal history" and that Steven Kelly was on a "far more serious conditional liberty" than the applicant when the common offence was committed, he would not use the "same starting point" for determining the applicant's sentence although those differences did not justify a "radical difference in the starting point". His Honour made a finding of special circumstances for the purposes of s 44(2) of the Sentencing Act because the applicant's age and psychological background warranted his being subject to an extra period of supervision while on parole.

Application for Leave to Appeal: Parity

1. The sole ground of appeal is that the applicant has "a justifiable sense of grievance as a result of the sentence imposed on his co-offender, Steven Kelly".
2. The written submissions in support of this ground of appeal did not complain about any disparity between the indicative sentence for the common offence as stated by Judge English and the sentence imposed on the applicant. To the contrary, the submissions embraced those sentences as reflecting a proper assessment of their respective roles in the commission of the offence and their subjective cases. However, the applicant contends that a comparison of the "actual effect of the co-offender's sentence for the common offence" reveals that the applicant has a justifiable sense of grievance. The applicant relied on a passage from the judgment of Macfarlan JA in El-Helou v R [2014] NSWCCA 209 at [30] ("El-Helou") which refers to the need to compare the "actual period" that an offender and a co-offender "is to serve by reason of his commission of the common offence". I address this passage below.
3. The applicant purports to ascertain this "actual period" from Steven Kelly's aggregate sentence by assuming, supposedly in the Crown's favour, that within the aggregate sentence all of the sentences for the robbery, aggravated enter dwelling and larceny offences were subsumed into the indicative sentence of 7 years and 6 months for the robbery offence. On this approach a period of 2 years of the aggregate sentence is solely referable to the common offence. The applicant then seeks to compare this to the "actual period" of his sentence, namely 5 years and 11 months. He contends that this comparison reveals a marked disparity, especially as his role in the commission of the common offence was lesser and his subjective case was (marginally) superior. The applicant submitted that a similar analysis would demonstrate that the "actual period" of Steven Kelly's non-parole period referable to the common offence is considerably less than the 3 years and 6 months he must serve.
4. In addressing this argument, I will assume without deciding that an aggregate sentence can be analysed in this way. However, as the following reasons endeavour to show, the premise of the argument, namely that a determination of whether there is a lack of parity between the applicant's sentence and Steven Kelly's sentence exclusively turns upon a comparison of the actual period of imprisonment that each will serve that is solely referable to the common offence, is not correct.

Totality and Parity

1. The parity principle is an aspect of equal justice before the law. It holds that as between co-offenders there should not be a marked disparity between the sentences imposed such as to give rise to "a justifiable sense of grievance" in one of them (Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 610 per Gibbs CJ, at 613 per Mason J and at 623 per Dawson J; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ). The totality principle requires that sentencing judges ensure that the aggregation of sentences for multiple offences is a "just and appropriate" measure of the total criminality involved in their commission (D A Thomas, Principles of Sentencing, (2nd ed 1979, Heinemann) at 56-57, as cited in Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 63).
2. The difficulties that can arise in comparing sentences for different offenders for the purposes of applying the parity principle where those sentences are affected by the application of the totality principle were addressed in Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 ("Postiglione").
3. Postiglione had previously been convicted of being knowingly concerned in the importation of heroin. For this offence he was sentenced to 12 years' imprisonment with a non-parole period of 9 years (at 306.10). While in custody, Postiglione entered into two conspiracies with another prisoner, Savvas, to import prohibited drugs, one concerning heroin and the other cocaine. In May 1993, Postiglione was sentenced to 18 years' imprisonment with a non-parole period of 13 years and 10 months in respect of the conspiracy to import cocaine and 10 years' imprisonment in respect of the conspiracy to import heroin. Both sentences were to be served concurrently and were fixed to commence from the date the sentence was imposed. As at that date Postiglione had served 6 years and 2 months of his existing sentence. He had 2 years and 10 months of his existing non-parole period to serve. Thus, the sentence for the two conspiracies Postiglione entered into with Savvas (and others) increased his non-parole period by 11 years (at 307.1).
4. At the time he entered into the two conspiracies with Postiglione, Savvas was serving a sentence of 25 years' imprisonment with a non-parole period of 18 years for an unrelated offence. For the two conspiracies he entered into with Postiglione, Savvas was sentenced in June 1994 to two concurrent sentences of 25 years' imprisonment with a non-parole period of 18 years. His sentences were also fixed to commence from the date they were imposed. However, at that time, Savvas had only served 5 years and 10 months of the non-parole period of his existing sentence. He was still to serve 12 years and 2 months of the non-parole period for his existing sentence and the entirety of his parole period (at 307). Thus, the further sentences imposed on Savvas for the two conspiracies he entered into with Postiglione only served to extend his non-parole period by 5 years and 10 months.
5. One of the reasons for the differences in head sentence between Postiglione and Savvas for the two conspiracies was that Postiglione had cooperated with the authorities and agreed to give evidence against his co-conspirators. Postiglione contended that he had a "justifiable sense of grievance" arising from the sentence imposed on Savvas because, even though he received a significantly lesser head sentence than Savvas, he would serve more than double the period in custody than Savvas would referable to the two conspiracies they entered into together.
6. By a majority the High Court upheld Postiglione's appeal (Dawson, Gaudron and Kirby JJ; McHugh and Gummow JJ dissenting). The judgments of the majority can be taken as establishing two related principles. First, in comparing two or more sentences for the purposes of applying the parity principle all the component part of the sentences must be compared, not just the head sentence (at 302 per Dawson and Gaudron JJ). Second, the fact that the application of the totality principle has resulted in one offender receiving a lesser sentence for a common offence or receiving extra gaol time for a common offence is not a complete answer to a claim by another offender that he or she has a justifiable sense of grievance (at 304.5 per Dawson and Gaudron JJ; 343 per Kirby J; cf McHugh J at 314 and Gummow J at 326; see Bell v R [2008] NSWCCA 206 at [37] per Price J; "Bell").
7. However, it is important to note that in determining whether Postiglione had a justifiable sense of grievance arising from the sentence imposed on Savvas, Kirby J on the one hand and Dawson and Gaudron JJ on the other adopted different approaches. Kirby J found that the difference between the extra time that each of Postiglione and Savvas were due to serve in custody for their common offences was "offensive to the sense of justice" (at 343). Dawson and Gaudron JJ accepted that a comparison of the 'extra period" served by each of Postiglione and Savvas for the common offence was the "real punishment" they suffered such that a "due proportion" between their sentences could not be determined without "taking it into account". However, their Honours held that that was not the only matter to consider (at 303.2). Instead, as the sentences were set having regard to the previous (unrelated) sentences that both were serving, their Honours determined that the "proper course … is to have regard to the total effect of the sentences imposed on them, not merely the period by which their prior sentences were increased" (at 303.8). Their Honours continued (at 303 - 304): "The aggregate of the sentences imposed on Savvas is fifty years. Putting aside the question of parole, his sentence for the conspiracies to which he and Postiglione were parties operates so that he will spend a total of thirty years and ten months in prison. Or to put the matter another way, the total time he will spend in prison amounts to a little more than three-fifths of the aggregate of his sentences. Postiglione, on the other hand, was serving a sentence of twelve years and received a further sentence of eighteen years. Again leaving aside the possibility of parole, the consequence is that he will spend twenty-four years and two months in prison, or just over four-fifths of the aggregate of his sentences… ….. the difference between the effective total sentences - thirty years ten months in the case of Savvas, twenty-four years two months for Postiglione - and the different proportions that they bear to the aggregate sentences - three-fifths and four-fifths respectively - are, in our view, such as to give rise to a "justifiable sense of grievance." (emphasis added)
8. The figure of 30 years and 10 months referred to in this passage is to the sum of the 5 years and 10 months that Savvas had already served for his unrelated offence at the time he was sentenced for the two conspiracies he entered into with Postiglione and the further 25 years he received for those offences. The fraction three-fifths is a reference to the ratio of that number to 50 years being the sum of the total sentences imposed on Savvas for the unrelated offence of 25 years and the sentence of 25 years he received for the conspiracies he entered into with Postiglione (see [23]).
9. The figure of 24 years and 2 months referred to in this passage is to the sum of the 6 years and 2 months that Postiglione had already served for his unrelated offence when he was sentenced for the two conspiracies he entered into with Savvas and the 18 years he received for those offences. The fraction of "just over four-fifths" is a reference to the ratio of that number to 30 years being the sum of the total sentences imposed on Postiglione for the unrelated offence of 12 years and the sentence of 18 years he received for the conspiracies he entered into with Postiglione (see [22]).
10. Thus, the conclusion of Dawson and Gaudron JJ that there was a breach of the parity principle was not reached by comparing the extra period in custody that each of Postiglione and Savvas received as a consequence of committing the two conspiracies they entered into with each other. That was considered but only as an indicator that something was askew. Instead, Dawson and Gaudron JJ considered all the components of the sentences they received for the common offences and the sentences they were serving when they were sentenced for the common offences. The ultimate conclusion that there was a breach of the parity principle flowed from the very different application of the totality principle to each offender at the time they were both sentenced for the common offences. Savvas received a far more generous benefit from its application than Postiglione. It was this differential which led to the conclusion that Postiglione had a justifiable sense of grievance.
11. Two matters should be noted. First, the analysis of Dawson and Gaudron JJ has no application to a case such as this where a co-offender such as Steven Kelly receives the benefit of the application of the totality principle because he committed multiple offences and another offender, such as the applicant, is only sentenced for the common offence.
12. Second, it follows that Postiglione is not authority for the general proposition that a justifiable sense of grievance is established by merely identifying a substantial difference between the extra sentences that are served for the commission of a common offence by two equally culpable offenders where either both or one are also imprisoned for other unrelated offences. It was only Kirby J in Postiglione who approached the parity argument in that way and that was only in a context where both offenders were serving sentences for prior unrelated offences.
13. A number of cases in this Court have considered the circumstance under consideration here, namely a claim of a lack of parity between a sentence imposed on a co-offender who was sentenced for multiple offences and received the benefit of the totality principle and another offender who did not, including Bell, Tran v Regina [2006] NSWCCA 266 ("Tran"); Ayik v Regina [2013] NSWCCA 119 ("Ayik") and El-Helou. Consistent with Postiglione in each of these four cases the Court took into "account" the actual gaol time served by each of the offenders solely referable to the common offence. However, the weight attributed to that factor varied, none of the cases considered that it was determinative and in each case, the Court did not engage in a strict mathematical comparison between the time served by the co-offender that was solely referable to the common offence and the non-parole period imposed on the applicant for leave to appeal (Bell at [40]; Tran at [24]; Ayik at [33] to [36]; El-Helou at [30]). Instead, the Court considered all the components of the sentences that were being served including the sentences being served for unrelated offences committed by the co-offender. This is illustrated by considering Ayik and El-Helou.
14. In Ayik the applicant for leave to appeal was sentenced to imprisonment for 9 years with a non-parole period of 5 years and 6 months for knowingly taking part in the supply of a large commercial quantity of heroin. His co-offender was sentenced for the same offence and an unrelated supply that took place the previous day (at [8] to [9]). The co-offender's role was less significant than that of the applicant, he received a 50 per cent discount for his plea and assistance and had a strong subjective case (at [8]) to [12]). The co-offender was sentenced to 4 years and 6 months imprisonment with a non-parole period of 3 years for the unrelated offence and 6 years' imprisonment with a non-parole period of 3 years and 6 months for the common offence. The sentences were only accumulated by 6 months such that the overall effective sentence imposed on the co-offender was 6 years and 6 months imprisonment with a non-parole period of 4 years (at [12]). In contending that there was a lack of parity between the sentences imposed for the common offences the applicant submitted that the sentencing judge was required to have regard to the structure of the sentence imposed on the co-offender (at [27] to [28]). It was further submitted that a lack of parity was demonstrated by the circumstances that all of the co-offender's non-parole period for the common offence, bar 1 year, was served concurrently with the unrelated offence and that period of 1 year was far less than the applicant's non-parole period of 5 years and 6 months.
15. Hoeben CJ at CL did not accept that the sentencing judge was obliged to structure the applicant's sentence to "have regard to some concept of proportionality" based on the actual time that the co-offender would spend in custody "attributable to the offence" (at [33]; with whom Hall and Davies JJ agreed). His Honour rejected an approach that focussed upon the "additional time" that the co-offender would spend in prison solely referable to the common offence (at [36]). Instead His Honour found that the "more logical way" of analysing the structure of the sentence imposed on the co-offender was that the sentencing judge (at [36]): "….determined that only six months of the sentence imposed for the first and lesser count [ie the unrelated offence] should be served by [the co-offender] with the remainder of the sentence for [the unrelated offence] being subsumed by the sentence imposed for the second, more serious, count [ie the common supply offence]. In other words, her Honour concluded that a level of partial accumulation of six months was sufficient to reflect the additional criminality of the less serious offence [ie the unrelated offence]."
16. Otherwise Hoeben CJ at CL held that in determining whether there is a lack of parity consideration must also be given to the parole period to be served by the co-offender which was attributable to the common offence (at [37]).
17. In El-Helou the applicant was sentenced to imprisonment for 12 years with a non-parole period of 8 years for taking part in the supply of pseudoephedrine (at [2]). The co-offender was sentenced to imprisonment for 12 years and 9 months with a non-parole period of 8 years and 6 months for supply of pseudoephedrine consisting of two distinct acts of supply, one of which was the same as that engaged in by the applicant (at [3]). The sentences were fixed to run concurrently with other sentences for importing pseudoephedrine and dealing with the proceeds of crime which totalled 11 years with a single non-parole period of 6 years and 6 months (at [17]). Thus, the additional sentence for the supply offence which embraced the act of supply which was common to both the applicant and the co-offender only added an additional term of 1 year and 9 months and an additional non-parole period of 2 years to the existing sentence (at [23]). In upholding a parity complaint Macfarlan JA stated as follows (at [30]): "In comparing the sentences imposed upon the appellant and the co-offender regard must be had to the actual period that each is to serve by reason of his commission of the common offence (Postiglione at 301-2, 303 and 343). This does not mean that there should be a simple comparison between the appellant's head sentence of 12 years imprisonment and the additional period of 1 year and 9 months that the co-offender is required to serve by reason of the common offence. Such a "merely arithmetical comparison" would not be appropriate (Tran v The Queen [2006] NSWCCA 266 at [24] and see Ayik v R [2013] NSWCCA 119 at [33]). Nevertheless, the limited length of the additional sentence imposed upon the co-offender is a significant matter to consider in assessing whether the appellant would have a justifiable sense of grievance by reason of the sentences imposed upon him and the co-offender (see R v Freeman [2005] NSWCCA 460 at [20]-[23]; Bell v The Queen [2008] NSWCCA 206 at [37]-[40])" (emphasis added)
18. As noted, the applicant's written submissions relied on this passage, especially the emphasised portion. However, that statement only reflects the effect of Postiglione and, as I have explained, Postiglione only requires that the actual period to be served by each offender for the common offence be "taken into account". Such a consideration might suggest that something is askew but it is not determinative. This is illustrated by the balance of the reasoning in El-Helou. In El-Helou the conclusion that there was a justifiable sense of grievance was reached by noting that the two offenders were serving roughly comparable sentences overall even though the co-offender had been convicted of a separate importation and his supply offence included a separate act of supply to the one committed by the applicant (at [31] to [32] and [39]).
19. In my respectful opinion, the approach and outcome in each of Ayik and El-Helou were consistent with the above analysis of Postiglione. In the end result what must be compared is all the components of the sentence for all the offences that each of the offenders is serving and the circumstances of the common and unrelated offending of the co-offender. In Ayik, Hoeben J found that the unrelated offending of the co-offender was "lesser" than the common offence such that it was artificial to isolate out that part of the sentence of the co-offender that was solely referable to the common offence and ignore that part of the sentence for the common offence that was running concurrently with the sentence for other offences. In El-Helou the unrelated offending was significant when compared to the common offence such that a comparison of the applicant's criminality in committing the common offence with the co-offender's criminality in committing the common offence and the unrelated offences against their respective sentences led to the conclusion that there was a justifiable sense of grievance.

Conclusion on ground of appeal

1. It follows that the applicant's contention that a comparison of the "actual effect" of the co-offender's sentence for the common offence with the applicant's sentence demonstrates a lack of parity must be rejected. That is a matter which must be taken into account and it may, but not necessarily will, indicate that something is askew. However, consistent with Ayik and El-Helou, what must ultimately be considered is all the components of the sentence imposed on the co-offender including the facts and circumstances of the related and unrelated offences.
2. Of the offences that Steven Kelly was convicted, the indicative sentence stated by Judge English reveals that the robbery on 4 November 2014 was the worst. His commission of the common offence involved less culpability and the combination of the larceny and aggravated enter dwelling was undoubtedly serious but did not involve as serious a criminality as the two robbery offences. Steven Kelly's aggregate non-parole period was just over twice as long as the applicant's non-parole period. While Stephen Kelly's overall criminality for the four offences he was convicted of was in excess of twice that of the applicant's, it was not markedly so. When allowance is made for the application of the principle of totality to Steven Kelly's sentences as well as the greater discount he received for the armed robbery and common offence on account of his plea, the non-parole period of his aggregate sentence is proportionate to the non-parole period of the applicant's sentence even taking into account the differences in their roles in the commission of the common offence and their subjective cases. While the discrepancy is greater with their head sentences, it is not marked and not enough to give rise to a justifiable sense of grievance.
3. It follows that I do not accept that this applicant has a justifiable sense of grievance arising from the sentence imposed on his co-offender Steven Kelly.
4. I would reject the sole ground of appeal.

Conclusion

1. As at the date of the application for leave to appeal Thomas Kelly has not been sentenced. As there is the possibility that a parity argument may arise from his sentencing it is not appropriate to grant leave but dismiss the appeal. Instead leave to appeal should be refused.
2. Accordingly, the order that I propose is that the application for leave to appeal be refused.
3. FAGAN J: I agree with Beech-Jones J and add only the following brief observations.
4. The applicant has submitted that one can isolate and quantify a portion of Steven Kelly's aggregate term of imprisonment as the portion "solely referable to the common offence". He purports to do this by deducting from the aggregate the longest of the indicative sentences for the non-common offences, in which he submits lesser indicative terms would have been subsumed. Assuming that one can calculate in this manner a portion of the co-offender's sentence which is "solely referable to the common offence" (which I do not accept), that portion would not validly be compared with the applicant's sentence on a parity appeal. The comparison would have to take into account so much of Steven Kelly's aggregate sentence as was attributable (not solely attributable) to the common offence, albeit that aggregation has had the practical effect that part of the time required to be served in respect of the common offence is concurrently served by him for other offences as well.
5. In practical terms in the present case the parity comparison is properly made between the applicant's sentence and Steven Kelly's indicative sentence for the common offence. That reveals no basis for justifiable grievance. Any appearance of lenience or advantage inferred from Steven Kelly's overall sentence on his several crimes, resulting from the process of aggregation, does not engage the parity principle

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