R v Charters

R v Charters - [2021] NSWDC 425 - NSWDC 2021 case summary — Zoe

[3]

Facts

During the course of the trial, the jury was assisted by a statement of facts agreed between the parties, which was marked Exhibit A. A number of these facts related to matters which were peripheral to the substantive offences, and were relied upon by the Crown in order to assist with the proof of a circumstantial case.
Although the full statement was relevant to the jury as part of their deliberations during the trial, it contains a number of facts which are not relevant to the determination of an appropriate sentence.
For the purposes of sentencing the Offender, I make the following factual findings.
In January 2019, a dating service called "PlentyOfFish" was available on the internet.
From 26 January 2019 to 30 January 2019 (inclusive), Ashley Homann (the victim) was in contact with a person who was using the "PlentyOfFish" user account named "highvoltagesophie". On occasions during this period, The victim communicated with the person using his mobile phone. In this period, the victim's mobile phone number was ending 271. On occasions, the victim spoke with a person who was using the account. When he spoke with that person, he believed the person had a woman's voice. He believed he was communicating with a woman.
The person who was using the "PlentyOfFish" user account called "highvoltagesophie" provided a mobile phone number to the victim ending 756.
On the evening of 29 January 2019, the victim and the person using the "highvoltagesophie" user account communicated by text messages. They arranged to meet later that night at 169 Penshurst Street in Beverly Hills NSW. The victim believed he had arranged to meet the woman he had spoken with, when he had spoken on the phone.
Later that evening, after arranging to meet with the woman, the victim drove from Canberra (ACT) to Beverly Hills (NSW), in order to meet with her.
In the early hours of 30 January 2019, the victim parked his car on the street in the vicinity of 200B Penshurst Street, in the Beverly Hills/Narwee area.
After parking his car, the victim crossed the street, and walked to a building at 169 Penshurst Street. The victim then communicated with the woman on phone number ending 756. The woman told the victim to walk down an alleyway, next to the building, to meet her. The victim walked down the alleyway to meet her.
As the victim was walking along the footpath, he was confronted by Perger and a woman found by the jury to be the Offender.
The victim was robbed by Perger and the Offender of items of his property including his car key, wallet and car.
When the victim was robbed, the offenders were armed with a weapon, namely a taser, which was held by Perger. For the purposes of s 97(2) of the Crimes Act, it was agreed between the parties that a taser was a 'dangerous weapon'.
In the course of robbing the victim, Perger and the Offender, with intent to deceive the victim, impersonated police officers who were exercising police powers, stopping and detaining the victim, and otherwise purporting to exercise police powers by questioning him, threatening to arrest him, threatening to search his car, directing him to sit on the ground, and later directing him to stand against a nearby wall.
Perger and the Offender were not wearing police uniforms. During the confrontation with the victim, they did not show the victim any police identification.
In the course of the confrontation, the following dialogue occurred: Perger: "NSW Police, stop walking." Victim: "What's going on?" Perger: "Are you carrying any weapons or drugs?" Victim: "No. I'm supposed to be meeting someone." Perger: "How did you get here?" Victim: "I drove." Perger: "Where's your car?" Victim: "It's parked on the road down there." Perger (pointing the taser in the victim's face): "Do you want to get tasered? Co-operate or else." Victim: "I will co-operate." Offender: "Sit on the ground."
The victim then sat on the ground. Perger stood in front of the victim, shining a torch in the victim's face. The dialogue continued: Perger: "Have you got your car keys on you?" Victim: "Yes." Perger: "Stand up." Offender: "We need to search your car." Victim "What for?" Perger: "You're not co-operating so we are going to chuck you in cuffs, stand up against the wall."
The victim then stood up. Perger then said words to the effect of "Turn around. I will take you in". At this time the Offender and Perger were standing next to each other. Perger then said "hand over your phone".
The victim took his phone out of his pocket. The Offender then took the victim's phone from him and handed it to Perger. The dialogue continued: Offender: "Is there a lock on this phone?" Victim: "No. is this really necessary?" Perger: "Shut up, do you want to get tasered and taken in?" Offender: "Do you have any ID?" Victim: "I do in my wallet." Offender: "Get it out."
The victim took his wallet out of his pocket, and the Offender took the wallet from him. At this time Perger was acting in an agitated and aggressive manner. Perger stated "give me your keys, we need to search your car or we are taking you in".
The victim took his car key from his pocket, and the Offender took the car key from the victim, at which time Perger told him to face a nearby wall.
Perger and the Offender walked away towards the victim's car. Shortly after walking away from the victim, Perger and the Offender located the car, which they both got into. Perger got into the driver's seat of the car, and the Offender got into the front passenger seat of the car. Shortly after Perger and the Offender got into the victim's car, Perger drove away from the area, along with the Offender in the passenger seat.
After Perger and the Offender drove away, the victim ran through the area trying to 'wave down' a passing car. When the victim was in the vicinity of Morgan Street and Gloucester Road in Kingsgrove, a car stopped. The victim told the driver that he had been robbed. This individual used his mobile phone to contact and report the matter to police.
I note that in the trial the jury were provided further facts which detailed that the victim's car was located sometime after the robbery, and also that a number of transactions were made on the victim's card. The evidence does not permit a finding which would implicate the Offender to any use of the car or the victim's card at any time after she left the scene of the robbery.

[7]

Report of Kim Dilati

A forensic psychology report authored by Kim Dilati and dated 25 June 2021 was marked Exhibit 1 in the sentence hearing.
Ms Dilati recounted the brief personal background provided by the Offender during the course of their interview, including the following points: 1. the Offender was born in New Zealand and migrated to Australia during her teenage years; 2. her mother remarried when she was 3 years old, and she maintains limited contact with her biological father; 3. at age 17 the Offender returned to New Zealand to attend university while her parents moved to Qatar for work, though she did not finish her course; 4. the Offender reported "a history of transience and instability", and stated that "there was never a sense of home", with her parents continuing to move around Australia to this day; 5. the Offender denied any history of harsh upbringing, exposure to domestic violence or antisocial behaviours during her childhood; and 6. her maternal grandfather was diagnosed with Bipolar Affective Disorder, and her stepfather suffered from depression due to financial difficulties.
In respect of relationships, the Offender reported a "complex relationship history", the longest of which is with her current partner, with whom she remains in a "healthy" relationship. Prior to her current relationship, the Offender was in a long-term relationship with the co-offender in this matter, Perger, during which she "noted the presence of heavy drug use" and believed she was a victim of domestic violence, verbal abuse, financial control, infidelity and psychological coercion.
The Offender also reported a "chronic" drug and alcohol history, commencing with heavy cannabis and alcohol use from age 15. From age 18 she began using methamphetamine and gamma hydroxybutyrate on a regular basis, and MDMA and cocaine recreationally from age 19. The Offender also reported abusing prescription medication from age 21 to aid her withdrawal from other illicit drugs, and stated that she used drugs to "numb" herself. The Offender reported 3 unintentional drug overdoses with MDMA, methamphetamine and 'G' between ages 19 and 20, all of which required hospitalisations.
The Offender denied a history of hospitalisations for mental health difficulties, although reported being prescribed antidepressants in 2017 to combat a panicked depressed mood after having "just became sober after 6 months of using drugs", which made her feel "very down" and "really alone". She also reported a history of drug-induced psychosis and sleep paralysis in 2018, including auditory and visual hallucinations, paranoia and delusions.
Ms Dilati administered the DASS-21 test, which measures an individual's depression, anxiety and stress levels, in which the Offender scored in the normal range. The Offender also returned results in the PCL-C examination, which assesses Post-Traumatic Stress Disorder. While she exhibited "a few symptoms such as avoidance symptoms", her symptoms "were not suggestive of a diagnosis of PTSD".
Ms Dilati administered the HCR-20 v3 to determine that the Offender scored within the low range of future violence, however also acknowledged that such a risk is "dynamic and changeable, dependent on the risk and protective factors present".
Overall, Ms Dilati was of the opinion that the Offender "previously suffered from Major Depressive Disorder for several years" and that she currently suffers from stimulant use disorder.
Ms Dilati also stated that there is evidence to suggest that the Offender was suffering from mental health conditions at the time of the alleged offending conduct, however this is somewhat complicated by her denying any involvement in the conduct. She also noted the Offender's statement that her co-offender, Perger, "encouraged her to take illicit drugs as a method to control her". The Offender stated to Ms Dilati that Perger was setting her up, and the female implicated in the offending was likely to be his sister.
In order to ameliorate the Offender's current mental health difficulties, the following recommendations were made: 1. that the Offender attend drug and alcohol counselling; 2. that the Offender undergo psychiatric assessment in relation to her "psychological functioning and behavioural disturbances"; and 3. that the Offender develop a suitable weekly plan to manage her physical and mental health.

[11]

Crown Submissions

In respect of objective seriousness, the Crown submitted that the subject offending was "very serious, involving a high level of criminality", in respect of both the impersonate police and armed robbery offences. It was later clarified in oral submissions that each of the 2 offences must be "middle of the range at least".
It was submitted that "considerable public harm is done" when an offender impersonates a police officer and purports to exercise their powers, as it risks undermining the public's trust in the police. I accept this submission. Purporting to exercise the powers of a police officer is a serious offence which requires stern condemnation.
Specifically considering the armed robbery offence, the Crown submitted that the following facts may be considered in determining the objective gravity: 1. there was significant sophistication and planning, including identifying and luring a victim to the scene. In respect of the latter part of that submission, the evidence does not permit a finding beyond a reasonable doubt that it was in fact the Offender who lured the victim to the scene; 2. the offence was committed in company, noting that 'in company' is not an element of the offence, and may therefore arise as an aggravating factor under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the CSP Act"); 3. the dangerous weapon was activated and pointed in the victim's face; 4. by reason of the geographic isolation, the victim was vulnerable; and 5. the value of the property stolen, being the victim's car and wallet, was significant.
In respect of the Offender's role, the Crown submitted the following: 1. the Offender played an active role in the offending, including in luring the victim to the scene. I note my previous observations in that regard; 2. the Offender was a participant in the robbery itself, including making demands to the victim; and 3. the Offender was acting "in accord with her own choices" during the offending, despite whatever influence Perger may have had over her at the time.
In oral submissions the Crown maintained that this offending was not one in which the Offender was "merely present", but rather was actively participating and assisting in the commission of the offence.
The Crown acknowledged that, on the one hand, Perger had a more serious criminal history and was on parole at the time of the offence (while this Offender was on bail). However, the co-offender also had "apparent attendant difficulties growing up", and suffered from Attention Deficit Hyperactivity Disorder, which attracted some considerations of leniency. On this basis, it was submitted, that a similar sentence ought to be imposed on this Offender as was imposed upon Perger, insofar as the various competing factors of both offenders might cancel each other out. This submission was maintained, while acknowledging that it would result in "a severe sentence on a person with limited criminal history", however "the objective seriousness of the offending calls for that condign punishment".
The Crown referenced the guideline judgment of R v Henry (1999) 46 NSWLR 346 ('Henry'), and submitted that the subject offending is "significantly more serious" than the typical category of case identified in that guideline judgment. It was also noted that an offence under s 97(2) is a more serious offence than that dealt with in Henry, further adding to the increased seriousness of this offending.
It was conceded by the Crown that, by limiting the trial issue in dispute to the identity of the female co-offender and agreeing to the many facts in the Agreed Facts document, the Offender facilitated the administration of justice "to a significant extent". Accordingly, she should be entitled to an appropriate discount pursuant to s 22A of the CSP Act. I accept this submission, and intend to allow a discount which reflects this assistance.
The Crown submitted that, while the Offender may have been under the influence of Perger at the time of the offending, she was not at the time of the trial. Accordingly, whilst she would not be punished for pleading not guilty, her maintenance of her innocence prohibits a finding of remorse or contrition. In oral submissions it was maintained that, having regard to the "things done, actions and words" of the Offender, the Court would find that she was actively participating rather than doing so under duress, and that findings should be made accordingly.
It was also submitted that the Offender's record of prior convictions does not aggravate the subject offending, but rather disentitles her to any finding of good character. The Crown also noted that 3 sets of prior offences involved the co-offender, Perger.
Overall, the Crown submitted that the Court would be satisfied that no penalty other than one of imprisonment, to be served by way of full-time custody, is appropriate in the circumstances.

[12]

Offender's Submissions

Counsel for the Offender conceded that, by virtue of their maximum penalties, the subject offences are serious. However, by comparison to the co-offender, counsel submitted that this Offender's role was "far less serious", due to her more limited role, although it was nonetheless accepted that both offenders were in a joint criminal enterprise to rob the victim.
In respect of conduct leading to the offence, counsel for the Offender submitted that there is no evidence definitively linking the Offender to the 'PlentyOfFish' account, and highlighted the victim's description of talking to someone with "an Australian accent" on the phone, which the Court might find to be at odds with the Offender's New Zealand accent. Given the lack of definitive linking evidence, I am not prepared to find beyond a reasonable doubt that the Offender was the person who spoke to the victim on the phone and lured him to the scene, and am sentencing the Offender on the facts as previously found.
Counsel for the Offender conceded "in company" as an aggravating factor.
Counsel referred to the Henry guideline judgment in both written and oral submissions. In submitting that these should be regarded as instructive, rather than prescriptive, counsel made the following observations: 1. the Offender's criminal record is not comparable to that contemplated in the guideline judgment; 2. the weapon was "of a class less objectively serious" than that used in Henry. In oral submissions it was submitted that while a taser is a dangerous weapon, it is not designed to be fatal, therefore decreasing the seriousness as opposed to an offence involving a knife or firearm. I accept this submission; 3. there was some limited degree of planning; 4. there was no actual violence, and any threat thereof was made by the co-offender; 5. it was conceded that the victim was somewhat vulnerable by virtue of geographical isolation, but not vulnerable "such as was the case in Henry"; 6. the items were conceded to not be of small value; and 7. despite there being no guilty plea, limiting the scope of the trial and agreeing to many facts facilitated the course of justice.
I accept this characterisation of the offending as it relates to Henry.
In respect of the Offender's subjective case, counsel referred to the remarks in the report of Ms Kim Dilati, Exhibit 1, to contend that her childhood upbringing was "transient and unstable", although it was later conceded in oral submissions that it might not rise to the degree of deprivation contemplated in matters such as Bugmy v The Queen [2013] HCA 27. I do not intend to make a Bugmy-type finding in respect of this Offender's upbringing.
On the question of parity, counsel for the Offender contended that the role played by Perger was clearly the leader in the offending. It was submitted that, despite Perger's early guilty plea which resulted in a head sentence of 5 years, this Offender's role was "of such difference" and the combination of other matters relative to the instinctive synthesis "are so much more favourable" to this Offender, that an aggregate sentence of 3 years or less "would be necessary to avoid an appropriate disparity". I accept that the co-offender played a more significant individual role in the commission of this offence than the Offender, though I also acknowledge that is but one factor relevant to the instinctive synthesis.
In support of this submission, counsel noted that the co-offender had a more significant criminal record, and posited that his role in the offending was greater than that of this Offender, as well as maintaining the submission that this Offender remained "to a very real degree subservient" to Perger around the time of the offence.
In oral submissions counsel referred to the remarks of Simpson J in Henry in pointing to the Offender's maintained abstinence while in custody, as well as her being "largely abstinent" since her arrest for these matters. Counsel also noted the support from a "pro-social partner", and the Offender's insight into her addictions (as evidenced in the latest Sentencing Assessment Report).
Coupling these factors with the positive assessment by Community Corrections, her lengthy period on bail without reoffending, and her "significant steps towards rehabilitating", counsel submitted that the Court would find her risk of re-offending to be low, and that an enhanced emphasis may be placed on fostering her rehabilitation, over other factors such as retribution or general deterrence, in determining an appropriate sentence. I accept this submission, and intend to find that the Offender has strong prospects of rehabilitation and is unlikely to reoffend.
Counsel also pointed to the Offender's circumstances as: a young offender, with an entrenched drug addiction brought about not by conscious choice but by the circumstances she found herself in, who, since the date of her arrest has made significant and tangible strides towards rehabilitation to submit that a deviation from the Henry guideline to an aggregate sentence of 3 years, served by way of an Intensive Corrections Order, would be appropriate.

[13]

R v Henry Factors

The guideline judgment of Henry is directed at the offence of armed robbery pursuant to s 97(1) of the Act. The rationale and impetus for the guideline judgment was "the inconsistency in sentencing practice and systematic excessive leniency in the level of sentences" for s 97(1) offences: per Spigelman CJ at [110]. In particular, the judgment expressed concern regarding the prevalence of first instance judges finding exceptional circumstances warranting the imposition of a non-custodial sentence.
At the outset, I accept that the guideline judgment is to be considered as instructive. I also note the remarks of Spigelman CJ in Legge v R [2007] NSWCCA 244, who stated at [59] that "a guideline is not a tramline", and that it is not the case that exceptional circumstances must be demonstrated before a sentence of less than the guideline promulgated in R v Henry may be imposed (see Legge at [44]). Such an approach impermissibly confines the exercise of sentencing discretion. It is also inconsistent with the nature of guideline as a check, a guide or an indicator or as a sounding board (see Legge at [59]).
I note that this offending is more serious than the offence contemplated in Henry, as it concerns a breach of s 97(2) rather than s 97(1), which attracts a maximum penalty of 25 years (as opposed to 20 years for s 97(1)).
At [162] Spigelman CJ identified the 7 factors which comprise a "sufficiently common" category of cases, and for which a sentence should "generally fall between four and five years for the full term". Having considered the facts for sentence, as well as the submissions from the Crown and counsel for the Offender, I make the following observations, pursuant to the 7 'Henry factors': 1. the Offender was young, with a limited criminal history; 2. the weapon, while capable of inflicting injury, was less likely to cause serious injury or death than a firearm or knife; 3. I cannot find, beyond a reasonable doubt, that the Offender participated in the planning to more than a limited degree; 4. the threat of violence was limited, however there remained a real threat thereof, particularly as the taser was pointed in the face of the victim; 5. the victim was vulnerable in the sense of being geographically isolated, but not by reason of profession (such as a shopkeeper or taxi driver); 6. the amount stolen was not insignificant; and 7. the Offender did not plead guilty, although she is entitled to a small discount for her assistance in streamlining the trial.

[14]

The Offender's Drug Addiction

The Offender's history of addiction must be given consideration in the exercise of the sentencing discretion, as to both the length of the sentence itself, and in determining the extent to which the Offender would benefit from serving all or part of the sentence in the community.
Generally speaking, drug addiction is not a mitigating factor, as clarified in the decision of R v Valentini (1989) 46 ACR 23 at [25], as well as the remarks of Spigelman CJ in Henry at [206].
I am cognisant of the remarks of Gleeson CJ in R v Engert (1995) 84 A Crim R 67, most significantly in his observation, at [68], that it is erroneous in principal to approach sentencing: …as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.
In Dang v R [2013] NSWCCA 246, Basten J considered the concept of moral culpability in the context of mental illness and addiction. At [25] his Honour stated: The law recognises the inappropriateness of convicting a person unable to distinguish right from wrong and, indeed, a person who is unable adequately to understand the process of a plea and trial. Further, even where the criminal law has run its course, the law recognises the relevance of mental illness in diminishing culpability for the purpose of assessing an appropriate sentence. But the distinction between mental illness and mental health is not a bright line, nor is the assessment of moral culpability based on freedom of choice transparent. … [29] The circumstances of addiction is also accepted as potentially relevant to moral culpability. A person in the grip of an addiction has less freedom of choice than would otherwise be the case. Moral culpability is a function of perceived freedom of choice.
In the matter of Henry, Simpson J observed at [336] that in some cases drug addiction may have its origins in arrogance, in an antipathetical attitude to the laws of society, or in weakness of character. She also noted, however, that addiction may have originated in deeply seeded sociocultural or socioeconomic factors such as poverty, social deprivation, sexual assault, exploitation or unavoidable exposure from a young age. In the latter examples, her Honour noted that "drug addiction is not always the disease; it is, as often as not, a symptom of social disease".
At [344] her Honour further remarked that in circumstances such as these, it may be appropriate for rehabilitative aspects of sentencing to assume a more significant role than might otherwise be the case, to the extent that rehabilitation may indeed outweigh other sentencing factors. However, she also cautioned at [344]: In order for those circumstances to provide a reason for reduction of sentence, there would need to be strong evidence of real progress towards actual rehabilitation. I would not wish to be understood to be saying other than that leniency of the kind to which I refer depends heavily upon demonstrated (as distinct from theoretical) rehabilitative prospects.
In Henry, Wood CJ at CL remarked at [272] that the origin or extent of a drug addiction, or any attempts to overcome it, may be relevant in the sentencing process, particularly in relation to subjective considerations, where an addiction might: 1. impact upon the prospects of recidivism; 2. impact upon the prospects of rehabilitation; or 3. suggest that the addiction was attributable to some other event for which the offender was not primarily responsible thereby removing personal choice.
These such considerations may all contribute to a finding that a particular offender may be positioned at "a crossroads", which may justify special consideration in determining an appropriate sentence: R v Osenkowski (1982) 5 A Crim R 394. I accept that this Offender is at a crossroad.
I accept that the Offender commenced her drug addiction at an age where she was not of rational choice and was influenced in the offending by Perger, as well as her work in an unconventional environment. I intend to give appropriate weight to her addiction in arriving at an appropriate sentence. It is but a factor to which regard must be had in the court's performance of instinctive synthesis. In doing so I am mindful that self-induced intoxication is not a mitigating factor.
Further, I find that the Offender has taken prominent and visible steps towards rehabilitating herself, and therefore intend to make a positive finding which accords with the principles contemplated by Simpson J in Henry.

[22]

Parity

This applies to the s 97(2) offence only as, for Perger, the other offence was placed on a Form 1.
From the facts, it is apparent that Perger was the individual who held the weapon and did the majority of the talking, effectively leading the way in the commission of the offence. While there was some dialogue between the Offender and the victim, her contribution appears to have been less of a driving one, and more one in support of Perger.
Perger received a head sentence of 5 years with a non-parole period of 2 years and 6 months. This sentence incorporated a discount of 25% for that offender's early guilty plea and the Form 1 offence. As this Offender was found guilty by a jury, that discount does not apply in this exercise.
Before discount, the co-offender therefore received a head sentence of roughly 6 years and 8 months.
In determining the sentence, Hock DCJ made the following observations about Perger: 1. he committed the offences whilst on parole for previous offending; 2. he had an extensive criminal history, which "does not entitle him to leniency"; 3. he had a strong subjective case, including suffering from a deprived childhood, which reduced his moral culpability; 4. his youth was considered a "significant aspect of the sentencing exercise", causing her Honour to give "considerable emphasis" to Perger's rehabilitation; 5. he had diagnoses of drug use disorders and Attention Deficit Hyperactivity Disorder; and 6. his prospects of rehabilitation were found to be 'guarded'.
I make the following observations in relation to this Offender: 1. the offences were committed while the Offender was on bail for other matters; 2. this Offender's criminal history, while more limited than Perger's, disentitles leniency; 3. the Offender's subjective case, while reflecting some childhood disruption, does not rise to the same degree of deprivation as Perger; 4. the Offender's youth warrants a similar emphasis on rehabilitation; 5. the remarks of Ms Dilati suggest that the Offender may have been suffering from psychological and stimulant use disorders at the time of offending; 6. the Offender's prospects of rehabilitation, including demonstrable steps already taken, appear far more positive than those of her co-offender; and 7. given the influence that Perger had over the Offender, I consider that her moral culpability is less than his.
It was submitted by the Crown that, on the question of parity, the Court might find a similar head sentence similar to that imposed on Perger to be appropriate.
Counsel for the Offender submitted that, having regard to the reduced role of this Offender, compared with Perger, as well as the fact that she was "in the thrall" of her co-offender, a lower sentence was justified.
In my opinion, imposing a sentence on this Offender which is significantly lower than that imposed upon her co-offender would give rise to a justifiable sense of grievance on behalf of Perger. This is particularly so given that Perger was afforded a 25% discount for his early guilty plea and was sentenced for a single offence.
If I were to be sentencing Perger and the Offender, I would have imposed a harsher sentence for Perger than the Offender, given their respective roles. The factors which warranted a reduction in Perger's sentence (25% discount and a single offence) are, in my opinion, counterbalanced by the factors which justify a reduction in this Offender's sentence. Those factors include her lesser role, her strong subjective case and the very promising steps taken by her in rehabilitation. Although not amounting to duress in a legal sense, the control which Perger exercised over this Offender warrants a more lenient sentence for this Offender.

At a glance

Court

Decision date

Source

Judgment (25 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)