R v Marshall

District Court of NSW|2023-10-17

Judgment

The offender pleaded guilty in the Local Court and was committed for sentence in respect of three offences. The first two were offences of dangerous driving occasioning death contrary to section 52A(1)(c) of the Crimes Act 1900 (NSW). Each of these offences carries a maximum penalty of 10 years imprisonment. The third offence was one of failing to stop and assist after vehicle impact causing death contrary to section 52AB(1) of the Crimes Act 1900. That offence also carries a maximum penalty of 10 years imprisonment.
There is an additional matter before the Court pursuant to a certificate under section 166 of the Criminal Procedure Act 1986 (NSW), namely, driving having never been licensed contrary to section 53(3) of the Road Transport Act 2013 (NSW). That offence carries a maximum penalty of 20 penalty units in the case of a first offence and 30 penalty units or imprisonment for 6 months or both in respect of a second or subsequent offence. This is the second such offence for the offender.
Each of these offences also attracts a licence disqualification. I will deal with that at the end of my reasons.
The offender has maintained his plea before me. He is entitled to a discount of 25% to reflect the utilitarian value of that plea.
The offender is a young man. He was 18 at the time of the offence, which was 14 April 2022. The victims of his crimes, Malakai Williams-Rigby and Callan Newton-Swain were even younger. They were 15 years old. This is a tragic case and presents a very difficult sentencing process. The seriousness of these offences involving the loss of life of two boys and the consequences of that to their family, friends and the community require yet another young man to go to jail. The length of his sentence depends upon a balance of many factors that each pull in different directions. It is necessary to start with an analysis of the facts.

Facts

The offender was born in January 2004 and, in April 2022, he was 18 years old. The victims, who I will refer to by their first names without intending any disrespect, were both aged 15.
In the days leading up to the incident, the offender travelled from Dubbo to Merbein, Victoria. He was known to Malakai. A couple of days before 14 April 2022, Malakai and Callan were at the Mildura skate park. Malakai had a phone call with the offender that was on loudspeaker. Malakai: "Let's steal a car buddy." The offender: "I'm just in Merbein staying here."
On the evening of 13 April 2022, Malakai and Callan were hanging out at the Langtree Mall in Mildura, Victoria with other youths. From about 11:45 PM the group disbursed. Malakai and Callan were the last to leave and were there alone at 11:53 PM.
At some time between 11 PM on 13 April 2022 and 1 AM on 14 April 2022, the premises of a house at Baines Court Birdwoodton, Victoria was broken into. Car keys to a 2002 Holden HSV Senator with Victorian registration plates was taken. That car was then stolen.
The offender drove the stolen Holden Senator to Mildura and met with Callan and Malakai. At 2:08 AM Callan sent a Snapchat message to a group Snapchat which said: "About to get into a stolo."
When the offender met up with Callan and Malakai, Callan entered the rear of the vehicle while Malakai entered the front passenger seat. The offender had driven the vehicle from Victoria into New South Wales, a distance of about 30 km.
At about 3 AM a number of witnesses were working at McGuigan Wines Australia vintage winery. The winery is on Silver City Highway, Mourquong, New South Wales. The witnesses heard a vehicle travelling at high speed in a south-easterly direction from the Dareton region towards Buronga.
The witnesses heard tyres squealing and a bang. One of the witnesses, Keith McLean, said to the other witnesses: "shit, I think they've crashed."
The witnesses left the winery and went out onto the Silver City Highway. They observed thick dust in the air. They followed the direction of the dust and started searching through a citrus orchard inside the grounds of the Orange World tourist attraction.
The Silver City Highway, Mourquong, where the collision occurred, is a sealed main road that aligns in a north-east/south-west direction between the suburbs of Dareton and Mildura. The area of the road in which the collision scene was located was constructed of sealed bitumen.
The roadway consisted of two lanes of traffic in either direction separated by an unbroken double white line. The two lanes in each direction were separated by a painted double unbroken line. The edge of the road was delineated by a painted unbroken line, however there was no curb or guttering provided. The shoulder of the road was dirt and gravel and there were guideposts installed at regular intervals on both sides of the road.
The vehicle was travelling in a south-east bound direction on Silver City Highway, Mourquong when it was involved in a rotational event prior to leaving the road and rolling over a number of times.
The combined total of the series of speed loss events indicate that the vehicle was travelling not less than 137 kph when the rotation commenced.
The minimum critical curb speed for the section of road was approximately 197 kph. As such, the prevailing speed limit was more than suitable. Likewise, this indicates that the rotational event was provoked by some contribution of driver input.
The witnesses arrived on the crash scene and walked towards the hole in the fence that had been caused by the vehicle. The witnesses used the torches on their mobile phone to guide them into the orchard.
Upon finding the vehicle, the witnesses approached it from the rear driver's side. There were no windows on the vehicle and all of the doors of the vehicle were closed. McLean observed that the sunroof of the vehicle was busted out. When he approached 1 m away from the driver's side of the vehicle he observed that the vehicle was not running and that there were no persons seated in the vehicle. A green light from the stereo was illuminated.
One of the witnesses called 000 to report the crash. McLean walked back to the wrecked car and continued to look around and call out while another witness was on the phone.
McLean approached the passenger side of the vehicle and saw what he first thought was a car seat under the car near the rear passenger door. He realised that it was a pair of legs sticking out from under the car. This was the body of Callan. McLean then saw another pair of legs sticking out from under the car near the front. This was the body of Malakai.
Callan's body appeared to have the rear wheel across the neck and torso area. Callan's arms and ankles of the body were exposed. Malakai's body had the sill of the vehicle across his chest and the feet were buried in the dirt up to the ankles.
The witnesses did not observe Malakai or Callan to be moving and did not see anyone else in the area.
A crime scene was established, and New South Wales and Victoria police blocked the Silver City Highway at the intersection of Buronga Hill Road and further south on Silver City Highway near the entry to McGuigan winery.
On examination there was no key in the ignition and there was dust inside and around it. There were marks inside the ignition barrel indicating that the key had been removed after the vehicle had finished rolling. No airbags had been deployed.
Malakai and Callan were later able to be identified from a phone call received on Callan's mobile phone.
Shortly before 7 AM the offender was seen by a builder in Buronga. The offender asked him how to get to Merbein and the builder gave him a lift part of the way. The builder had noticed that the offender was a bit cut up and had a little bit of blood on his hands, mouth and cheeks, and when he asked the offender what happened he was told that he had crashed his motorbike and his mates had left him.
On 21 April 2022, the offender was arrested in Dubbo but denied driving the car when it crashed. On 16 May 2022, he was arrested and cautioned in relation to the car accident and admitted in an interview to driving around in the stolen car with Malakai and Callan but then said that he got out of the car and that Callan's mate took over the driving with the two deceased as passengers.
The prevailing speed limit for the relevant portion of the roadway is 100 kph. There is a speed limit sign 3.3 km north-west of the collision scene on the Silver City Highway advising of that fact.
Vehicles travelling in the south-west bound direction, being the direction travelled by the vehicle, are required to negotiate a long sweeping left-hand bend near the intersection with Buronga Hill Road. While there is a "road ahead curves" warning sign installed approximately 250 m prior, the bend itself does not have a displayed advisory speed limit sign nor are there related chevrons.
Following an examination of the crash scene, crime scene investigators located a series of tyre marks produced by the vehicle as it was in the process of leaving the road. This analysis found that immediately after entering the left-hand bend, the vehicle commenced a counterclockwise rotation with the rear tyres tracking outside the front tyres over a distance of not less than 40 m.
This period of counterclockwise rotation was immediately followed by a corresponding clockwise rotation which was maintained for a further 80 m. This pendulum motion of rotation and counter rotation is extremely common in an event such as this and are produced as a result of the driver's instinctive reaction to oversteer the vehicle in response to the first rotation.
In total, the tyre marks track the vehicle's motion over a distance of not less than 120 m with a further 10 m as the vehicle left the road. As the vehicle left the road, its tyre marks in the gravel shoulder suddenly ceased, indicating that it was airborne for approximately 12 m. The airborne period was due to the ground falling away from the vehicle during which time there was no measurable resistance acting upon the vehicle.
Once on the ground the vehicle continued to slide sideways for approximately 34 m while producing distinct burrows in the compact dirt and grass surface. This was immediately followed by the vehicle rolling over several times, an event that was provoked by the high drag factor associated with the burrowing, before coming to a rest after approximately 20 m.

Objective Seriousness

The factors relevant to the objective seriousness of the first two offences must be discerned from the evidence concerning the offending conduct. Critically, that involved driving at not less than 137 kph in a 100 kph zone through a corner. The speed limit was indicated a little over 3 km before the crash site and must have been ignored, but on any view the car was driven far too fast by somebody without either the skill or experience to handle the corner in the first instance or the subsequent loss of control.
There is no evidence that the offending occurred at any point long before the car entered its final corner or that the offender was intoxicated at the time.
There was no planning involved, or any intention to lose control or to have the car leave the road in the manner it did, or at all, and certainly no intention for the passengers to be killed; however, the speed was intentional and put the two young passengers at grave risk of serious injury or death. There was nobody else around on the road at that time of the morning, no pursuit and no racing. The speed indicates a level of showing off which is not uncommon between young males of any age, but I do not consider that that was the primary motivation for the offending or that the offending involved a complete abandonment of responsibility.
The offence of failing to stop to render assistance is a far less serious offence than the first two offences. Although fleeing the scene was morally reprehensible, there was sadly nothing the offender could have done for the young passengers. Further, the offender's actions slowed down the investigation but not to any significant extent.
It is difficult to isolate the section 166 offence from the first two offences, as the factors relevant to its objective seriousness are also relevant to those offences. However, I am satisfied that this offending was over a longer period of time. It is clear that the offender was driving the vehicle when the victims first got into it and I readily infer that he drove it the entire time until the accident, that is, for about 50 minutes. That was not, relatively speaking, an extended period.

Statutory Aggravating and Mitigating Factors

At the time of the offending, the offender was subject to a Conditional Release Order for the offence of possess prohibited weapon imposed at the Local Court at Dubbo on 7 March 2022. The fact that this sentence was imposed 5 weeks prior to the offending is indicative of the offender's continued disobedience of the law and provides a basis for questioning his prospects of rehabilitation.

Victims Impact Statements

A number of members of the two victims' families made statements about the consequences of the deaths of the two boys. These statements spoke of the enormous impact that their deaths have had on their families and the community in which they lived. It is important at several levels that their voices be heard. Part of the sentencing process is to address the impact of offending on the community. Sadly, there is no punishment that will adequately address the pain of these families or to make up for the young lives that have been lost.

Subjective Material

The evidence relating to the subjective circumstances of the offender appear largely from the psychosocial report prepared by Eliza Lazos, a senior caseworker/social worker at Legal Aid New South Wales. In short compass, that report shows that the offender, a young Wiradjuri man, grew up in circumstances reflecting gross dysfunction, transience, abuse and neglect.
The offender was born in Dubbo and is the second of three children to his parents. He has a 21-year-old brother and a 17-year-old brother. His father also has another child. Until the age of 4, the offender lived with his parents and brothers in Dubbo and then his parents separated. His father used ice and alcohol and was very short tempered. He was abusive to the offender's mother and the offender remembers visiting his father in jail.
One day after attending primary school he went to his auntie's house with his brother to wait to be collected by their mother. His mother was already there but his 2-year-old brother Stephen had been left in the car. The offender went outside with his brother and saw that the car was on fire and that his little brother Stephen was still inside it and had suffered 3rd degree burns to his body. After this, the offender and Stephen were removed from his mother and father's care by child protection services. Stephen was placed in the care of his paternal grandfather and has not been part of the offender's life since then. He feels guilty about, and responsible for, the injury to Stephen.
The offender and his brother were sent to live with their paternal great-grandparents, nan and pop, in Mildura. However, his brother Aaron could not be controlled and was placed into foster care. The offender lived with his nan and pop until he was 11, recalling the time fondly. There was no violence but his great-grandfather introduced him to alcohol at the age of 7 and his nan introduced him to smoking.
When he was in primary school he was bullied and started getting into fights. He was suspended frequently during those years, on one occasion after having assaulted the principal.
He returned to live with his mother at the age of 11 but by this stage his mother was using drugs, mainly ice and she rarely had any money to provide for the needs of the offender and his brother. Effectively they had to do whatever they could do to feed themselves and, eventually, to get drugs.
The offender returned to school only briefly upon return to Dubbo and instead hung out with boys who were older than him and effectively committed any offences that they asked him to do. He was smoking marijuana with them and committing break and enters.
At this time and up until the time he was arrested he was mainly living on the street, or couch surfing and staying with friends in the Dubbo or Mildura region. When spending time in the street the offender used ice to keep alert and awake when there was nowhere to sleep and he and his friends drank alcohol in order to get drunk. Everyone he knew in Sydney and Dubbo was on ice. At the age of 14 he met a woman in Sydney and went to stay with her for some time. He eventually had a child with her although they subsequently separated.
He has never had any drug and alcohol treatment nor any treatment relating to the trauma suffered after the severe injuries inflicted on his younger brother.
Josh Harvey, a youth justice caseworker who had worked with the offender for about 2 years from 2020 said that between 2004 and 2021 the Department of Community and Justice received risk of harm reports for the offender including concerns about his exposure to domestic violence, physical abuse, psychological harm, neglect, inadequate supervision, and risk of harm due to his own behaviour.
Mr Harvey said that the offender presented as a young man who is very vulnerable. He opined that the offender appeared to exaggerate his antisocial and 'gang' connections and behaviour, most likely to mask his trauma and vulnerability and the lack of safety and stability in life. He said that the offender had expressed to him his past suicidal ideation and attempts as well as his experience of depression.
Ms Lazos noted that the offender had experienced trauma at a very young age and that without adequate guidance he had not developed the psychological resilience required to cope in times of adversity. She further said that he had not sought or received mental health support but had used substances to subdue his feelings of distress and assist with his emotional and psychological regulation. She said that the links between adolescent substance abuse and vulnerability to alterations in brain functioning, cognition, and effects of behaviour were well-known and that those potential impacts may help to explain the offender's tendency towards impulsive poor decision-making and antisocial behaviours.
Ms Lazos says that while the prison environment is currently providing him with some stability, in order to make substantial change and true progress the offender needs to address his mental health issues and substance misuse and learn to implement routines and structures that will support him in the community long-term. While she is confident that, given the right guidance, the offender can create the foundation to address his mental health and substance misuse problems, he currently lacks a robust and pro-social support network in the community and that to achieve meaningful change he will need a comprehensive supervision plan through parole to ensure that he is linked to culturally appropriate transitional support services that address his isolation, his mental health and trauma, substance use, accommodation, and vocational needs.

Offender's History

In his brief time as an adult, the offender has had a number of convictions. First, prior to the offending he was convicted of possession of prohibited weapon which I have already referred to. Shortly after the offending, the offender committed the offence of drive never licensed and, on the same day, receive stolen property outside of NSW. Those offences are insignificant in comparison to the index offences and I do not consider that they deny him any leniency: see Moananu v R [2022] NSWCCA 85 at [169] per Hamill J.

Remorse

While the offender initially sought to avoid responsibility for his offending, denying his involvement in the first instance with the car and then placing responsibility for the accident on another person, he has pleaded guilty in circumstances where, absent his admission, the Crown's case was not overwhelming. Further, he has told Ms Lazos that he is ashamed of himself and that he has let his nan down. While, understandably, given his background, he says that he finds it very difficult to talk about what happened. He said that when he first found out what happened to the other boys: "It hit me hard, I was shattered."
He says that he feels bad for what had happened; bad about himself because the two boys lost their lives and that he cannot imagine with their mums are going through. He says that if he lost his son he would go on a rampage. I accept this as an expression of true remorse and a level of insight into the impact of his offending. In his letter to the Court, the offender expresses similar thoughts and extends his sorrow to the families of the two boys.

Rehabilitation

The offender's prospects of rehabilitation are guarded at best. While he has developed some insight into his offending, and realises that he wants to change his life, and that he must now, for the first time, reach out for help, his ability to deal with the very long and deep impact of his upbringing and drug dependency will be key to his rehabilitation and ability to play a useful role in the community.
In December 2023, having heard from the parties and considered the evidence before me up to that point, I decided that I would be better able to assess the offender's prospects of rehabilitation if he was able to undertake some form of rehabilitation program, more particularly, the Balund-a program that is run by Corrective Services. The offender expressed a desire to engage in the program, had been assessed as suitable for that program and a place was available for him in the near future. Accordingly, I granted him bail under section 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) on the condition that he be released into the custody of Balund-a and undertake that program.
Following my order, the officer in charge made a report which had the immediate effect that the offender was assessed to be no longer suitable for the program and I have had to revoke my orders. There are three things to say about the report. First, it was, in its terms, misleading. Whether that was the officer's intention and whether the officer's actions amounted to an attempt to pervert the course of justice or a misuse of public power is a matter to be decided elsewhere. For present purposes it is sufficient to note that the process of sentencing has been interfered with and the officer's actions have led to unnecessary waste of both the court's time and public money. Secondly, the information in the report is sensitive and cannot be disclosed; however, what I can say is that it was not anything about the offender's conduct, past or future and that it will make his time in custody more onerous. Thirdly, the attitude of the NSW Police and others in the community to the offender in these circumstances, especially where the offender has resided in remote parts of NSW, increases the need for extended supervision once the offender is released from custody.
It should be plain that, if it was the intention of anybody involved that the offender should be more harshly punished by serving a longer sentence in custody, they can be assured that their actions have in fact led to the opposite result.
The consequences of this for the purposes of the sentence to be imposed include that I am now confident that the offender does have a desire to seek help in rehabilitation, that his time in custody will be more difficult and he will need an extended period of supervision in the community. I will take that into account in determining whether there are special circumstances in setting the non-parole period.

Moral Culpability

There is no question that the offender's subjective case is compelling. The offending in question was brought about by a series of poor choices that were informed by the consequences of his dysfunctional and traumatic upbringing. While this does nothing to lessen the objective seriousness of his offending, it is plain that the punishment for that offending cannot be as severe for the offender as it would be for somebody who has had a so-called normal upbringing. In short, his moral culpability for the offences is far less than it would be for such a person and so the weight that should be given to general deterrence is considerably less. That is an important matter because the Court of Criminal Appeal consistently holds that general deterrence is a significant consideration in the sentencing of young offenders for offences such as these: see, for example, Byrne v R [2021] NSWCCA 185 ("Byrne"); Cahill v R [2021] NSWCCCA 185 at [48], [102], [120].
In Byrne, President Bell (as the Chief Justice then was) explained that it was uncontroversial that, in the case of youth, the law ameliorates the harshest punishment and takes account of the immaturity and less well-developed executive functioning that occurs in a physically underdeveloped mind. However, his Honour went on to say, at [102], that where, as in the case of driving of this kind, the Court is dealing with an offence that is perceived to be particularly prevalent amongst young persons who may see themselves as "bullet proof", general deterrence for such a group becomes a more significant factor. The two issues may well balance each other out in individual cases. In other cases, a degree of leniency may be shown; and in a third class of cases the need for general deterrence becomes such that the leniency afforded on the basis of youth and immaturity is substantially outweighed.
In other words, as in much of the sentencing process, in respect of offences of dangerous driving which often involves young people, there are considerations that pull in different directions.
Although he was 18, the offender's immaturity, including the impact of peer pressure on his decision making is clear from the fact that the venture was not his suggestion but that of his younger friend. That is not surprising given that the offender had little effective parenting or moral guidance in his childhood, and none at all since he was 11. In my view, this background leads to the conclusion that the ordinary principles relating to the offender's youth outweigh the need for general deterrence presented by the fact that it is most often young people who engage in dangerous driving offences. Similarly, his youth means that less weight is to be given to the need for retribution.
On the other hand, the consequences of the offender's deprived childhood will not easily diminish and are likely to affect the offender's choices well into the future. That means that there needs to be some additional weight given to the purpose of community protection and, in turn, rehabilitation.

Synthesis

In determining the appropriate sentence, I have to have regard to all of the matters I have set out already, including the objective seriousness of the offending as I have assessed it, the subjective circumstances of the offender and the statutory guideposts set by the maximum penalty for each offence. In addition, I must give the appropriate weight to each of the purposes of sentencing.
As I have said, while the offences are serious, the offender's history of serious disadvantage and his youth play a very large role in determining the sentence. However, while those factors mean that there is a reduced need for weight to be given to general deterrence and retribution, there must still be sufficient punishment and community protection as well as some deterrence for the offender himself.
Taking all of those matters into account, there is no available punishment for each of the offences other than a term of full-time imprisonment. It is appropriate to impose an aggregate sentence given the close connection between the offences. I first indicate the sentences I would have imposed in respect of each offence, taking into account the discount of 25% for the pleas of guilty: Offence Starting Point After 25% Discount Dangerous driving occasioning death 5 years 3 years and 9 months Dangerous driving occasioning death 5 years 3 years and 9 months Fail to stop and assist after vehicle impact causing death 3 years 2 years and 1 month Never licensed person drive vehicle on road - prior offence 4 months 3 months

There needs to be a significant level of notional concurrency to reflect the fact that the offending was part of one course of conduct and so as not to undermine the impact of the discount for the pleas of guilty. However, there should still be a level of notional accumulation to recognise the life of each of the victims. The appropriate aggregate sentence is 5 years and 6 months imprisonment.
There are clearly special circumstances that apply in this case, including the offender's young age, his drug dependency and the likelihood that his time in prison will be more difficult as a result of the report by the officer in charge. As I have said, another consequence of the report is that there will be an need for extended supervision in the community upon release from custody.
In spite of this, the Crown submits that there is no warrant to reduce the ratio between the non-parole period and the balance of the sentence. Essentially that is because the evidence suggests that the offender lacks any pro-social support in the community, he has found some stability in prison, has not undertaken drug and alcohol counselling before, has previously disengaged from community-based programs in the past, and that there are adequate courses available in custody.
I reject that submission for a number of reasons. Firstly, the programs referred to are only available in limited correctional facilities. Secondly, and of greater importance, there is no question, particularly at his age and in light of his background, the offender needs considerable assistance on his return to the community. He has already been denied an opportunity to undertake supervised rehabilitation in the Balund-a program, and he should not be denied such further opportunities as there may be once he is released on parole. His willingness to engage in that program suggests that there is a real probability that he will engage with the services offered to him while he is on parole. I note in this respect that his application for release to the Balund-a program met with significant resistance and required him to overcome a number of hurdles. Although he was ultimately denied that opportunity, it was not for any reason of his doing and was not for want of trying. I am confident that there is a good chance that he will maintain that attitude on release.
The appropriate non-parole period is 2 years and 9 months.
The offender was first detained in an adult prison on 22 April 2022 and has been there since. He was in custody in relation to adult offences from 1 April 2022 until 1 May 2022 and was sentenced, without conviction, to a control order with a non-parole period of 1 year in relation to a Children's Court matter. He was eligible for parole in relation to that matter on 11 April 2023. In the circumstances, this sentence should commence when the offender was first taken into adult custody, that is 22 April 2022. The Crown argued that any backdating should only be to 1 May 2022 because the sentence ending on that day was imposed on appeal in the District Court taking into account the time already served. Although that may be accepted for present purposes, the critical fact here is different. It is not just time spent in custody, but time spent in adult custody that I consider requires the additional adjustment. For those reasons, the offender will first be eligible for parole on 21 January 2025.

Licence Disqualification

As I said at the outset, these offences each attract a period of licence disqualification. The first three offences have a maximum period of 5 years and minimum of 2 years and the section 166 matter has a maximum of 12 months and minimum of 3 months. Because a number of offences arose out of the same incident, section 205(4) of the Road Transport Act 2013 provides that the maximum period is 3 years. Given the nature of the offences but allowing for the offender's youth, I consider that the appropriate disqualification period is 2 years and 6 months.

Orders

I make the following orders: 1. The offender is convicted of each count. 2. The offender is sentenced to an aggregate term of imprisonment of 5 years and 6 months with a non-parole period of 2 years and 9 months commencing on 22 April 2022 and expiring on 21 January 2025 and a balance of 2 years and 9 months expiring on 21 October 2027. 3. The offender will first be eligible for parole on 21 January 2025. 4. The offender is disqualified from holding a licence for 2 years and 6 months.
Lastly, I recommend that the report of Eliza Lazos be provided to Corrective Services New South Wales and to Community Services to assist in planning and implementing the offender's future treatment.

Amendments 18 March 2024 - Amendment made to hearing dates. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 March 2024

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Judgment (15 paragraphs)

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