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- Unreported Judgment
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SUPREME COURT OF QUEENSLAND
R v Castel  QCA 91
CASTEL, Katie Anne
CA No 81 of 2019
SC No 377 of 2019
Court of Appeal
Supreme Court at Brisbane – Date of Sentence: 19 March 2019 (Dalton J)
6 May 2020
3 February 2020
Sofronoff P, Mullins JA and Boddice J
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to manslaughter (domestic violence offence) – where the applicant was sentenced to nine years’ imprisonment with no eligibility for parole date fixed – where the applicant had no prior criminal history – where the applicant showed immediate remorse for her conduct – where the plea of guilty was early – whether the sentence was manifestly excessive
Penalties and Sentences Act 1992 (Qld), s 9
R v Callow  QCA 304, considered
R v Hedlefs  QCA 199, considered
R v Mills  QCA 146, considered
R v O'Malley  QCA 130, cited
R v O'Sullivan; Ex parte Attorney-General (Qld); R v Lee; Ex parte Attorney-General (Qld)  QCA 300, cited
M J Power for the applicant
D Balic for the respondent
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
- SOFRONOFF P: Section 9(10A) of the Penalties and Sentences Act 1992 (Qld) makes it an aggravating factor that must be taken into account that an offence is a “domestic violence offence”. The section provides an exception to that requirement in cases in which, because of the existence of “exceptional circumstances”, it would not be reasonable to treat the domestic violence aspect of the offence as an aggravating factor. One example of such an exceptional circumstance is given in the Act: if the victim of the offence has previously committed “several acts of domestic violence against the offender”. “Domestic violence” is defined in the Domestic and Family Violence Protection Act 2012 (Qld) to mean, relevantly, behaviour by a person towards a person whom he or she is living in a “relevant relationship” that is emotionally or psychologically abusive. That definition is picked up by s 1 of the Criminal Code and, in turn, the latter definition is taken up by s 4 of the Penalties and Sentence Act 1992 (Qld).
- The facts in this case include the matters referred to in paragraph  and the matters concerning the applicant’s psychological vulnerabilities referred to in paragraph  and  of Mullins JA’s reasons.
- The issue of whether those facts engage the exception to s 9(10A) was not argued and it is therefore not desirable to consider that question. However, it can be said that, to the extent of that s 9(10A) is material, its significance is very much lessened by those circumstances.
- I agree with the reasons of Mullins JA and with the proposed orders.
- MULLINS JA: On 19 March 2019, the applicant pleaded guilty in the Supreme Court to manslaughter (domestic violence offence). The victim was her husband Mr Jarred Castel. The applicant was sentenced by the learned sentencing judge to imprisonment for a period of nine years. A declaration was made in respect of the 453 days she had spent in pre-sentence custody since 21 December 2017 as time already served under the sentence. No date for eligibility for parole was fixed.
- The applicant applies for leave to appeal against sentence on the ground that it is manifestly excessive.
Circumstances of the offending
- The applicant and her husband were married in April 2010 and had one child together who was four years old at the date of the offence. The applicant and her husband would argue on occasions about various topics and one of those topics often raised by the applicant was Mr Castel’s coming home from work after 6 pm. He arrived home at approximately 8 pm on 20 December 2017 and an argument developed. The applicant was standing in the kitchen and Mr Castel was seated at the kitchen bench approximately one to two metres away. The applicant picked up her husband’s laptop and threw it at him and he caught the laptop. She then picked up from the knife block a kitchen knife with a blade that was 20.5 centimetres long. She scratched her inner left arm above the wrist twice with the blade of the knife and told her husband she wanted to kill herself. Her husband said something to her and, from a distance of approximately two to three metres away, she threw the knife with her right hand in an overarm throw and it landed in her husband’s left chest region. He said “what the fuck” and either pulled the knife out or the knife fell out of its own accord.
- The applicant immediately said she was sorry, ran to get a towel out of the cupboard, and then assisted her husband to lie down. She attempted to call 000 straight away, but her husband told to clean up first, as he did not want their son to see the blood. Approximately two minutes after this first call, the applicant called 000 and requested paramedics to attend. The police arrived at 9.18 pm followed by the paramedics. The police observed the applicant standing close to her husband and the knife which had been cleaned was in the kitchen sink. There was a single left sided penetrating wound. Despite medical intervention, Mr Castel was pronounced dead at 10.08 pm.
- The forensic pathologist was able to track the wound. It entered between the ribs in a downward path and pierced the wall of the right ventricle to the heart. The depth of the wound was at least four centimetres. The cause of death was blood loss secondary to a stab wound to the chest.
- The applicant spoke to the police at the scene and described the arguments with her husband, her actions with her husband’s laptop and then the kitchen knife, and that she was throwing a tantrum. At the police station the applicant spoke to police in a recorded interview and provided greater detail of the arguments between her husband and her.
The applicant’s antecedents
- The applicant was 37 years old at the time of the offending and a self-employed copywriter and graphic designer. She had one entry in her criminal history for minor fraud offences committed in 2004/2005 that was treated as irrelevant for the sentencing.
- Her father left her mother when she was two years old. She had a younger sister. Her mother moved with the applicant and her sister to regional New South Wales near the applicant’s maternal grandparents. The applicant did not have any contact with her father until she was in her twenties. She described her childhood as “lonely and poor and that her relationship with her mother and maternal grandparents was not good”. The applicant’s mother remarried when the applicant was 10 years old and she has two younger half-siblings. Her sister died in 2003 from a fall from a balcony, after which the applicant lost contact with her father again. She had a good relationship with her stepfather which continued after he and her mother divorced. She completed year 12 and then obtained Bachelor degrees in psychology and nursing and then a Master of Health Science, before undertaking a Masters degree in Writing, Editing and Publishing and a Certificate IV in graphic design. She stopped working full time as a nurse in 2013 during her pregnancy, when she moved to writing and graphic design and, after her son was born, she worked from home in that area three days per week.
- The applicant was diagnosed with an autoimmune disorder, but was not on medication. She reacted badly when her sister died. Her anxiety commenced before her pregnancy, possibly due to work related stresses and heavy workload as a nurse. She obtained treatment in the nature of counselling, and had been under the care of a psychiatrist for four years prior to the offence.
- The applicant was interviewed by psychiatrist Dr Beech on 27 December 2017 for the purpose of a preliminary psychiatric assessment. The applicant relied on Dr Beech’s report on the sentencing. He expressed the following opinion about the applicant:
“In my opinion, she has a number of personality vulnerabilities that have arisen from childhood events and have made her sensitive to issues in her relationships. These are related to lowered self-esteem, a tendency to affective instability and irritability, and a particular sensitivity to perceptions that her husband has acted in his own self-interest or selfishly, or without regard to her efforts and work, to the her detriment and that of their relationship.”
- Dr Beech did not consider that the applicant’s personality vulnerabilities amounted to a personality disorder and that she did not have an abnormality of mind at the time of the offence. Dr Beech characterised the applicant’s description of the incident as “a loss of temper and emotional control during the course of the conflict, albeit an exaggerated response” which Dr Beech considered was “within the realm of normal human experience”.
- The applicant was interviewed for approximately four hours over two occasions in February 2019 by forensic psychologist Mr Nick Smith. The applicant also relied on his report for the purpose of the sentencing. The applicant described the negative aspects of her childhood during the interview and recalled “living in constant fear of others during her early childhood and having a constant fear of punishment”. The applicant reported to the psychologist that during 2017 her marriage to Mr Castel went through a significant breakdown, due in part to what she described as “a persistent pattern of him coming home late from work and lying to her”. She said that by the middle of the year they were at the point of separation, but they managed to talk through the issues in their marriage and resolved to work together to improve their relationship and that it did improve over the next few months. The applicant described that when she and Mr Castel would argue, he could become “quite verbally aggressive at times” and appeared to lack insight as to the effect that would have on her.
- The applicant reported to Mr Smith that the separation from her son was “devastating”, in that she went from daily contact with him prior to the incident to no or little contact. Mr Smith observed that this “appears to have significantly compounded her grief and stress over Mr Castel’s death”.
- Mr Smith set out his diagnosis at paragraph 50 of his report:
“[The applicant] has a history of trauma, depressive episodes, and anxiety. She presents with personality vulnerabilities that likely make her more susceptible to acute stress reactions and depressive episodes. She also describes a long history of perfectionism, fear of negative evaluation by others, and has always been highly critical of herself. However, in spite of these issues, I do not believe that [the applicant] meets the criteria for diagnosis with any mental illness, and I would also consider it problematic to suggest diagnosis at present, given the ongoing impact of her husband’s death and her subsequent incarceration, on her mood and mental well-being.”
- Mr Smith applied the “Level of Services – Case Management Inventory” to evaluate the applicant’s overall risk of reoffending and expressed the opinion at paragraph 53 of his report that she fell in the very low range, observing:
“She did not display any elevations among the evaluated areas, although it should be noted that she is still at risk of mental and/or emotional deterioration in the event of significant stress in the future, which may in turn increase the risk of problematic behaviours. Overall however, [the applicant] does not display any notable antisocial traits or lifestyle factors, and she has a stable education and employment history. Provided that she remains connected to a positive social-support network and continues to receive support for her mental health, then her risk is unlikely to escalate.”
The sentencing remarks
- After summarising the circumstances of the offence, the sentencing judge observed:
“It was extraordinary violence out of all proportion to the mundane argument you were having. He was in his home where he ought to have felt safe. And it is charged with a circumstance of aggravation that it is a domestic violence offence and it is a very serious domestic violence offence. And that is exactly the point of that. It was behaviour outside all normal parameters in his home.
It became clear very quickly that he was badly injured. You telephoned the ambulance immediately that became apparent. And I think that your behaviour then showed regret for your actions. And it is certainly relevant to remorse. The ambulance officers described your reaction as hysterical and concerns were held for whether you might hurt yourself after having engaged in the behaviour. I take that into account when I am thinking about remorse. However, I will make other remarks about remorse in these sentencing remarks.”
- The sentencing judge accepted Dr Beech’s opinion that the circumstances of the killing “arose because of personality vulnerabilities that have arisen from childhood events including a lowered self-esteem, a tendency to affective (mood) instability and irritability” and a particular sensitivity to perceptions that Mr Castel had acted in his own self-interest or selfishly without regard to the applicant’s efforts and work to the detriment of their relationship.
- The sentencing judge did not accept Mr Smith’s opinion that the applicant was at a very low risk of reoffending, because it was based on a test used to evaluate areas related to general criminal recidivism and part of his conclusion was that the applicant did not have relevant anti-social traits or lifestyle factors which the sentencing judge stated did not mean that the applicant was not at a risk of recidivism. Instead the sentencing judge pointed to the reasons for the offending identified by Dr Beech, noting:
“These longstanding personality issues which you have are not going to be easily overcome. This offending is unusual offending, and I do not accept that you are at very low risk of reoffending.”
- Reference was made to the victim impact statements of Mr Castel’s parents, brother and sister and the sentencing judge noted these statements emphasised the effect of the offending on the applicant’s son. The applicant was entitled to the benefit of an early plea, but in the face of “an overwhelming Crown case of manslaughter”. Account was taken of the applicant’s regret immediately exhibited after the offending, when she had realised the seriousness of what she had done in seeking assistance for Mr Castel.
- The sentencing judge noted the 12 page letter to the Castel family dated 25 January 2018 written by the applicant. The sentencing judge acknowledged that the first two pages expressed remorse and described it as “a peculiar letter” and stated:
“And as it goes on and on, one is led to doubt, quite frankly, that you understand, in any real way, the consequences of your actions and the consequences of hurt and harm to the people who loved Jarred Castel. The letter complains about your own circumstances in jail and in the watch-house. It tries to make arrangements for the care of your son.”
- The sentencing judge described the letter as “inappropriate and overly religious” that suggested that it was being written not merely by a person who has a religious faith “but who uses religion in a way to avoid coming to terms with the reality of what you have done”.
- The submission the sentence ought to be moderated because the applicant was a mother in prison and her child was without a parent was rejected on the basis that it was the applicant’s act of killing her child’s father that resulted in her being in prison.
- Of the comparable authorities to which the sentencing judge was referred, her Honour found most assistance from R v Mills  QCA 146 and R v DeSalvo (2002) 127 A Crim R 229;  QCA 63.
- The sentencing judge concluded with these remarks:
“Here, you engaged in a deliberate and very dangerous action. You were sober; you were sane. You did not intend to kill, but, as I say, it was a very dangerous action. You were not provoked; you were not acting in self-defence; and you were not, yourself, the victim of domestic violence.”
The applicant’s submissions
- Ms Power of counsel who appeared for the applicant conceded that as the sentence had to reflect general deterrence and community denunciation, she could not contend the head sentence of nine years was not appropriate, but sought to mitigate the sentence by the date for eligibility for parole being brought forward to the date after the applicant had served three years in custody, rather than leaving it as the date for statutory eligibility for parole at the half-way mark of the sentence. Unless that was done, it was argued the sentence did not give sufficient weight to the fact the applicant had no relevant criminal history, had shown remorse, and suffered lingering effects of a socially dysfunctional upbringing. It was also relevant that the applicant’s offending conduct was not a sustained or direct application of violent force upon a vulnerable victim. Her conduct in immediately seeking assistance, admitting her responsibility to police, her continued distress and her plea of guilty make the sentence without a parole eligibility date fixed at earlier than the half-way mark of the sentence manifestly excessive.
- Support for this contention is found in Mills where the sentence imposed on appeal was exactly the same as the applicant’s sentence, yet Mr Mills’ offending involved sustained and direct application of violent force combined with his dishonest post-offence conduct in concealing his offending.
- Although R v Callow  QCA 304 arose out of domestic violence, the victim of the unlawful killing was a 65 year old bystander who intervened in an attempt to stop Mr Callow from trying to remove his young child from his former partner. Mr Callow’s current partner also tried to stop his actions against his former partner and child and then against the bystander. The bystander and Mr Callow were grappling together, when Mr Callow punched the bystander in the face and kneed him in the stomach, which caused him to fall onto the edge of the roadway, hitting the back of his head on the bitumen, and he died the next day from his injuries. Mr Callow pleaded guilty to manslaughter and also to two counts of unlawful assault (domestic violence offence) where the victims were respectively his former partner and his child. He was sentenced to 18 months’ imprisonment for each of the unlawful assaults and imprisonment for eight years and six months for the manslaughter. The latter sentence was intended to reflect the overall criminality of the offending. His parole eligibility was set after serving three years in custody. Mr Callow was 23 years old when he offended, had no prior criminal history, but was on bail at the time he offended. Other mitigating factors included the moderate use of force on the bystander, he did not persist with retaliation against the bystander, there was some remorse, and he had underlying psychological issues. He was unsuccessful in applying for leave to appeal against the sentence. The applicant relied on the description of the offending by Morrison JA (with whom Sofronoff P and Philippides JA agreed) at  as “a persistent cowardly attack on more vulnerable people” and noted the mitigating factors were reflected in a parole eligibility date set at less than the half-way mark.
The respondent’s submissions
- Ms Balic of counsel who appeared for the respondent emphasised the aggravating circumstance of the offence that it was a domestic violence offence and that the insertion in 2016 of s 9(10A) into the Penalties and Sentences Act 1992 (Qld) (the Act) meant that care had to be exercised in considering the comparable authorities for similar offending prior to that amendment taking effect. The respondent relied on the observation made by Bradley J (with whom Gotterson and McMurdo JJA agreed) in R v O'Malley  QCA 130 at .
- The respondent submitted that once the sentencing judge concluded that the applicant committed a dangerous and deliberate act in a domestic setting against a helpless person in the context of no provocation or other real factors of relevance (and the correctness of that conclusion is not challenged on this application), the court was entitled to view the applicant’s offending as a serious example of manslaughter.
- The respondent pointed to the decision in R v Hedlefs  QCA 199 as providing some further, even if limited, assistance as a comparable authority. Mr Hedlefs was an indigenous man who was 49 years old at the time of the offending and pleaded guilty to manslaughter on the basis that he did not intend to cause death or grievous bodily harm. Both Mr Hedlefs and the victim were heroin users and had known each other for about four months. On the day of the offence, they had both used heroin at Mr Hedlefs’ house. They had a verbal argument over money. The victim was most likely intoxicated. Mr Hedlefs picked up the hammer and hit him more than once. The cause of death was a ruptured spleen. The victim stumbled around and Mr Hedlefs assisted him into the bath. He got out of the bath and lay down on the floor. Mr Hedlefs then helped back into the bath and left him there. When he returned, the victim was dead. He called the ambulance and performed CPR, but was unable to revive the victim. Mr Hedlefs was not honest with the police at first about his conduct. He had a fairly significant drug history. His sentence of ten years’ imprisonment with a serious violent offence declaration was not disturbed. It is submitted that Hedlefs illustrates that the use of a weapon more than once, in the heat of the moment, by an offender with a drug history, can attract a sentence of 10 years’ imprisonment which automatically results in the offence being declared a serious violent offence.
Was the sentence manifestly excessive?
- In view of the use of the knife by the applicant in the domestic setting, it was a proper concession by the applicant’s counsel that the head sentence of nine years’ imprisonment was not inappropriate. It is supported by Mills. Even allowing for the impact of s 9(10A) of the Act, the applicant’s offending was not as serious as that in Hedlefs. Section 9(10A) of the Act is a legislatively prescribed aggravating factor that must be taken into account in arriving at the appropriate sentence for the offence of manslaughter that is a domestic violence offence, unless the exception within the provision due to the exceptional circumstances of the case applies. It is an aggravating factor that is added to the other aggravating factors in respect of the offending that has to be balanced with any mitigating factors that relate to the offending and the offender. The need for care in considering sentences imposed for the offence of manslaughter committed in a domestic situation where the sentence was imposed before the insertion of s 9(10A) into the Act that is referred to in O'Malley at  is due to the fact that those sentences may not have treated the commission of the offence in the domestic situation as an aggravating factor. It does not necessarily follow that little or no guidance will be obtained from those sentences for similar offending imposed before the insertion of s 9(10A) into the Act, provided that any absence of treating the commission of the offence as a domestic violence offence as an aggravating factor is taken into consideration.
- In Mills, Mr Mills pleaded guilty to manslaughter. The victim was his wife. He was sentenced to 10 years’ imprisonment and on appeal that was reduced to nine years’ imprisonment. When he committed the offence, Mr Mills was 31 years old and had been married for about nine years. The relationship between Mr Mills and his wife had deteriorated and on the evening prior to her death, she had gone out to a nightclub. When she returned home in the morning, the heated argument ensued in which each claimed to have been unfaithful to the other. She claimed that she had been having sex with other men in the toilets at nightclubs. She threw a mobile phone at Mr Mills that struck him on the body. She then picked up an electrical cord and struck him on the head and hand. He grabbed her and pulled her onto the bed and she then said that she had given him a gift and that he should have AIDS by then. They continued to struggle. The deceased tried to put the cord around Mr Mills’ neck, but he wrapped the cord around her neck and applied pressure until her face was red and she was gasping for air. He squeezed her mouth and put his fingers into her nostrils. She then fell from the bed onto the floor and he landed on top of her and continued to apply pressure to the cord until his wife was dead. He buried her body in a shallow grave in bushland. He pretended that she had not returned home and reported that to the police. Eventually, the police found the deceased’s clothes in the roof cavity of the house and Mr Mills was arrested and charged. He then disclosed where his wife’s body was buried.
- The plea of manslaughter by Mr Mills was accepted on the basis that his wife had provoked him to kill her. Keane JA (which whom Holmes and Fraser JJA agreed) found that an error in principle had been made by the sentencing judge, and as a result the court re-sentenced the appellant. The court proceeded on the basis that Mr Mills was remorseful for the killing of his wife. Because of the circumstances in which the killing occurred, it was noted at  that it was not a case where community protection or the need for deterrence (whether general or personal to the appellant) were significant factors. (It should be noted that the enactment of s 9(10A) of the Act necessarily makes general deterrence now a more significant factor for sentencing for the killing of a domestic partner.) The genuine remorse of Mr Mills and the nature of the provocation were identified at  as relevant factors in sentencing Mr Mills to nine years’ imprisonment. Although Mr Mills was sentenced on the basis he was provoked by the victim, he had less mitigating features in his favour than the applicant. His dishonest post-offence conduct was a distinguishing feature of his offending.
- The sentencing judge did not accept that the applicant was at “very low risk of reoffending” due to her longstanding personality issues, but there was no finding made, and nor could there be on the basis of the material before the sentencing judge, that the applicant was at a high risk of reoffending. When due regard is given to those factors in favour of the applicant which are emphasised on this application of no prior criminal history, the immediate remorse shown for her conduct and her early plea of guilty, the imposition of a sentence of nine years’ imprisonment without any mitigation meets the test of being “unreasonable or plainly unjust” and is manifestly excessive in the circumstances. I therefore propose that the sentence be mitigated by including a date for eligibility for parole after the applicant has served one-third of the sentence in custody.
- It follows the orders should be:
- Application for leave to appeal against sentence granted.
- Appeal against sentence allowed.
- Sentence varied by ordering that the date the applicant is eligible for parole be fixed at 20 December 2020.
- BODDICE J: I have had the considerable advantage of reading the reasons for judgment of Mullins JA.
- The comprehensive analysis of the circumstances of the offending, of the applicant’s antecedents, of relevant reports and of the sentencing remarks, which I gratefully adopt, allow me to briefly state my reasons for granting leave to appeal against sentence but dismissing the appeal.
- The applicant’s offending involved an extraordinary act of violence in the course of a domestic argument. The applicant deliberately threw a very large kitchen knife at the deceased, who was standing two to three metres away. Whilst the applicant did not intend to kill or do grievous bodily harm to the deceased, it was properly described by the sentencing Judge as a very dangerous action.
- The applicant undertook the act of violence in circumstances where the applicant was sober, sane, not provoked and not acting in self-defence. The applicant was not the subject of any violence towards her by the deceased in the course of that argument.
- Having regard to the extraordinary violence engaged in by the applicant, in what was a mundane, domestic dispute, in circumstances where there was no provocation, the applicant’s offending was rightly to be considered as involving a very serious example of a domestic violence offence. That circumstance of aggravation was a very relevant circumstance in sentencing this offender.
- The sentencing Judge carefully balanced the aggravating features of the applicant’s conduct against the mitigating features in her favour, including her plea of guilty, her immediate remorse for the consequences of her conduct and her lack of relevant criminal history. The sentencing Judge’s non acceptance that the applicant was at “very low risk of reoffending” does not mean the applicant was sentenced on the basis the applicant was a high risk of reoffending. No such finding was made by the sentencing Judge. The sentencing Judge rightly observed that the applicant’s personality traits were ongoing risk factors in similar circumstances.
- The imposition of a sentence of nine years’ imprisonment without setting a parole eligibility date earlier than provided for by legislation in respect of a serious instance of unprovoked domestic violence causing the death of a partner is a sentence which fell within a sound exercise of the sentencing discretion.
- Such a sentence is not “unreasonable or plainly unjust”. It also does not evidence any misapplication of sentencing principles.
- Whilst a sentence of 10 years’ imprisonment was reduced to nine years’ imprisonment in Mills, on appeal, following a plea of guilty to manslaughter, involving the use of violence over a sustained period, the plea of manslaughter in that case was accepted on the basis the deceased had provoked Mills to kill him. The nature of the provocation was specifically identified as a relevant factor in sentencing Mills to nine years’ imprisonment.
- Mills’ dishonesty post offence was a distinguishing feature of that offending. However, the applicant’s offending has the distinguishing feature that it involved the aggravating factor that it was a domestic violence offence. As was observed in R v O'Sullivan; Ex parte Attorney-General (Qld); R v Lee; Ex parte Attorney-General (Qld) changes to statutory schemes, such as the treatment of domestic violence as an aggravating factor, impact upon the use of some decisions as comparable. The fact that this offence had the aggravating factor, that it was a domestic violence offence was to be accorded appropriate recognition in the exercise of the sentencing discretion.
- A ground of manifest excess is only established, absent specific error, by a demonstration that the sentence imposed was either unreasonable or plainly unjust, or must have involved a misapplication of principle. As neither category is established in the present case, the sentence does not warrant appellate intervention.
- I would order:
- (1)Leave to appeal be granted;
- (2)The appeal against sentence be dismissed.
 QCA 300 at .
- Published Case Name:
R v Castel
- Shortened Case Name:
R v Castel
 QCA 91
Sofronoff P, Mullins JA, Boddice J
06 May 2020