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Kennedy v Commissioner of Police[2020] QDC 283

Kennedy v Commissioner of Police[2020] QDC 283

DISTRICT COURT OF QUEENSLAND

CITATION:

Kennedy v Commissioner of Police [2020] QDC 283

PARTIES:

ALEC WILLIAM KENNEDY

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO:

2078 of 2020

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

12 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6 November 2020

JUDGE:

Long SC, DCJ

ORDER:

  1. The appeal be allowed.
  2. The order of the Magistrate made on 29 June 2020, be varied so that the appellant’s parole release date be fixed as today, 12 November 2020.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE OF MAGISTRATE – Whether the sentence of the Magistrate was manifestly excessive – Whether the Magistrate had appropriate regard to the principles set out in s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld)

LEGISLATION:

Justices Act 1886 (Qld), ss 222, 223

Penalties and Sentences Act 1992 (Qld), s 9

CASES:

AB v R (1999) 198 CLR 111

Hili  v The Queen (2010) 242 CLR 520

House v R (1936) 55 CLR 499

R v Kelley [2018] QCA 18

R v Pham (2015) 256 CLR 550

COUNSEL:

MJ.Jackson for the Appellant

K.McFarlane as solicitor advocate for the Respondent

SOLICITORS:

Nyst Legal for the Appellant

Director of Public Prosecutions for the Respondent

Introduction

  1. [1]
    By notice of appeal filed on 16 July 2020, the appellant appeals against the orders made in sentencing him, upon his entry of guilty pleas to a number of offences, in the Richlands Magistrates Court on 29 June 2020.
  2. [2]
    Accordingly, his appeal is brought pursuant to s 222 of the Justices Act 1886 and it is, correctly, common ground in the submissions of the parties that as an appeal brought against an exercise of sentencing discretion, it is to be considered and determined in accordance with the principles noted in House v R (1936) 55 CLR 499. That is, in respect of the need to establish some legal factual or discretionary error, so that the appeal may succeed.
  3. [3]
    On 29 June 2020, the appellant was sentenced to:
  1. (a)
    eighteen months imprisonment for each of four offences of dangerous operation of a motor vehicle, with a circumstance of aggravation relating to his prior conviction for similar offending, each of which occurred on 22 August 2019;
  1. (b)
    fifteen months imprisonment for each of two offences, which may be referred to as disqualified driving by court order and which, respectively, occurred on 22 August 2019 and 18 January 2020;
  1. (c)
    six months imprisonment for an offence of driving without due care or careless driving, on 18 January 2020; and
  1. (d)
    for a further offence of possession, on 22 August 2019, of a utensil pursuant to s 10(2)(a) of the Drugs Misuse Act 1986, he was convicted and not punished.

It is noted that the term imposed for the offence of driving without due care or careless driving, was the maximum available term. However and as was not put in issue in this appeal, that was a bad example of a careless driving offence and it was accompanied by the repetition of disqualified driving. There were also orders of absolute disqualification of the appellant’s driver licence in respect of each of the driving offences.

  1. [4]
    This appeal is pursued in respect of the terms of imprisonment which were imposed and is most particularly directed at the parole release date which, in respect of the period of 18 months which was imposed, was fixed at 28 December 2020 and therefore after service of approximately six months of that period.
  2. [5]
    The sole ground set out in the notice of appeal is that “the sentences imposed in respect of [those offences for which terms of imprisonment were imposed], in all the circumstances, were excessive”. However, on the hearing of the appeal and as set out in the appellant’s written submissions, leave was sought and allowed, without objection, to amend the notice of appeal to include only the following grounds:

“a. the sentences imposed in respect of the charges listed in items 1-3 in the notice of appeal, in all the circumstances, were excessive (ground one);

  1. (i)
    Particulars: it can be inferred that the learned Magistrate failed to properly recognise the appellant’s efforts and decent prospects of rehabilitation.

b. the learned Magistrate wrongly permitted considerations of ‘personal and general deterrence and community denunciation’ to overwhelm his Honour’s discretion to require the appellant to serve six months of actual custody (ground two);

  1. (i)
    Particulars: the learned Magistrate found that ‘the only appropriate penalty’ was ‘actual custody’, in part, because of the ‘overwhelming need for personal … deterrence …’ and that ‘[the appellant] had not rehabilitated’. Otherwise the aim of general deterrence could have been achieved by the head sentence.”

Discussion

  1. [6]
    Each of those grounds may be seen as variously directed at application of what is recognised in House v R as appellable error, as follows:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

  1. [7]
    In the context of the exercise of sentencing discretion, the latter identified basis is often referred to as establishment of manifest excessiveness or inadequacy of sentence and is focussed on the outcome rather than the precise derivation of it. It may otherwise be observed that the added particulars to ground one and the second ground of appeal is recognisable as being directed at the more particular identification of specific appealable error, such as is earlier identified in the passage in House v R.
  2. [8]
    In this matter, it was not ultimately in contention that the type of ground of appeal or approach premised on identification of specific error, is not amenable to an appeal brought pursuant to s 222 of the Justices Act.[1]  It may be noted that a sense of distinction between a ground alleging specific error and one alleging manifest excessiveness was recognised in the plurality judgment in Hili  v The Queen (2010) 242 CLR 520 at [58].  And in respect of the latter it was observed:

[59] As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.

[60] The Court of Criminal Appeal also said that “manifest error is fundamentally intuitive”. That is not right. No doubt, as the Court went on to say, manifest error “arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it”. But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.

[61] The applicants’ submissions criticising the sufficiency of the reasons given by the Court of Criminal Appeal pointed out that the Court of Criminal Appeal identified no specific error in the sentencing judge’s findings of fact or reasons. That is right, but because the only ground advanced by the Director was the ground of manifest inadequacy, it had to be assumed that the Director alleged no specific error. That the Court of Criminal Appeal identified no specific error is, therefore, unsurprising. The absence of identification of such an error does not bespeak error on the part of the Court of Criminal Appeal. The reasons given by the Court of Criminal Appeal for concluding that the sentences passed were manifestly inadequate sufficiently revealed the bases for that conclusion.”

And as Hayne J had earlier observed in AB v R,[2] an appellate approach which seeks to contend for manifest excessiveness of sentence on the basis of identification of some specific error:

“… wrongly melds two distinct contentions: that the judge made a specific error in sentencing and that although no specific error can be identified, the sentence was manifestly excessive”.

And that distinction is also reflected in the following stated re-emphasis of established principle, in R v Pham:[3]

“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”

  1. [9]
    An essential effect of the distinction is that identification of specific error does not necessarily equate with or depend upon establishment of manifest excess or inadequacy. Identification of a specific appealable error may and often will point to a conclusion that but for the error, some more favourable sentence may or should have been imposed, irrespective of whether the sentence is otherwise within an appropriate parameter and therefore not amenable to being regarded as manifestly excessive or inadequate.  That approach is commensurate with the understanding that even when all relevant considerations are appropriately taken into account, there may be no single sentence discernible as appropriate, as opposed to a range of outcome which may be regarded as appropriate as an exercise of sentencing discretion.[4]
  2. [10]
    As is the case here, the difficulty confronting an approach in contending for manifest excessiveness is that it is conceded, having regard to the circumstances of this case and the guidance to be obtained from other cases to which reference was made below and also in this Court,[5] that a total period of imprisonment in the order of 18 months to 2 years, was appropriate.[6] And it was also appropriately conceded before the Magistrate that a sentence involving an actual custodial component was open.
  3. [11]
    However, the focus of the appeal is more particularly upon the fixing of the parole release date after serving 6 months, in the context of the submissions for the appellant to the Magistrate which were directed at immediate release to parole with the prospect of an accompanying wholly suspended term of imprisonment operating over a longer period. While such an approach may be seen, as it was properly described by counsel to the Magistrate, as a bold one, in the light of the appellant’s circumstances and the circumstances in repetition of his offending, it was an approach which was particularly and appropriately premised upon his age.  He was 20 years old when he offended and aged 21 when sentenced. 
  4. [12]
    However, he came before the Magistrate with a traffic record and criminal history of particular significance.  On 19 January 2018, he was sentenced to serve 12 months imprisonment by way of an intensive correction order, for three separate occasions of offending involving offences of dangerous operation of a motor vehicle and disqualified driving, which had occurred on separate days in August and September of 2017.  There had been earlier entries for instances of unlicensed driving, including, on 16 May 2017, for an instance of disqualified driving, which had occurred on 26 October 2016. 
  5. [13]
    Further, there is the inherent seriousness and sense of concern arising from the circumstances of and repetition of the offending.  It is not contended that there is any error in the following summary given in the Magistrate’s reasons:

“As the schedule of facts outlines, this all starts at 5.33pm on 22 August when you were pulled up by police.  You then fled from them, accelerating away, doing what they describe as a ‘burn-out’ on the dirt shoulder of the road. 

And I’m only going to hit the highlights, I should say, without going through every part of the facts.  The highlights of your offending then precedes over the next, I am told, 16 kilometres and certainly for the next 20 minutes or so.

You overtook a truck on the right into the north-bound lanes at Paradise Road, a very busy suburban street.  Failing to keep to the left of the continuous double lines.  You were on the incorrect side of the road and the double lines, going over a hill where it was not possible to see oncoming traffic.  So you were quite clearly an extreme risk to other road users who might have had the misfortune to be coming the other way at the time.  It is only a matter of good luck rather than good management you did not injure or kill someone else.  And you were being pursued by POLAIR. 

Then in Gilmore Road Berrinba, approaching Third Avenue, you were again on the wrong side of the road into oncoming traffic, where there is a raised centre island.  You were on the wrong side of the road for about 100 metres.  You passed, on the wrong side of the road, the wrong direction around a roundabout.  You cannot see oncoming traffic.  If you cannot see them, they cannot see you.  Across a marked traffic island on the right side of Third Avenue when you entered that.  POLAIR was still following you.  On Third Avenue, at the roundabout with Second Avenue, not only did you go around the left of a raised island, you then went onto the footpath and travelled about 70 metres along the footpath before you made a turn into Second Avenue.

After that, in McCarthy Road, you do not stay on the left hand side of a raised traffic island.  You overtake other vehicles at speed approaching a four-way intersection.  You go through the intersection on the wrong side of the road with vehicles approaching you.  And you were on the wrong side of the road for approximately 300 metres.  Then, approaching Browns Plains Road, you cross the double centre dividing line onto the wrong side of Second Avenue.  You overtake the line of traffic through a stale red light where other cars and motor cycles could have been coming and you were in imminent danger clearly, had they been there, of death or serious injury.  So you go through a stale red light on the wrong side of the road before you turn into Browns Plains Road.  Then, in Heidi Street, you go on the wrong side of the road again, off Heidi Street, failing to keep left of a centre raised island, on the wrong side of the road into Hickory Street where you were accelerating so hard, the back end of your vehicle slides out.  There is a school crossing there.  You were on the wrong side of the road for about 40 metres on that street and then into Marisa Street, again on the wrong side of the road, for about 30 metres and finally you are in Bilk Street, again on the wrong side of the road, on the right-hand side of a raised centre island.  Other traffic is obscured because of the bend in the road.  It hardly needs emphasis.  What an extreme risk to the safety of other members of the community you pose. 

And then you are charged.  But that is not enough of course because then you re-offend again and – I should point out of course that you were disqualified from driving at the time you committed all of that appalling behaviour.  And then, not only again while disqualified, but on bail for all of those offences, you were merely charged with driving without due care and attention whilst disqualified despite – on 18 January, again in the same area, POLAIR is tracking you because you are driving in an erratic manner at high speed on Waratah Drive – Crestmead. 

Again, you turn into Paperbark Street on the wrong side of the road with the traffic island in between both lanes.  You are doing 74 kilometres an hour in a 50 zone on Waratah Drive, you do 100 kilometres an hour on Myall Street, again a 50 kilometre an hour zone, going onto the incorrect side of the road on a bend.  So again an enormous risk to the life and safety of every other road user who might have been there.  And then of course you lie to police and say you are not driving and you argue with them when they finally pull you up.”

  1. [14]
    Accordingly, it may be seen that it was appropriately understood that the four offences of dangerous operation of a motor vehicle on 22 August 2019, were effectively separate aspects of what was a continuing course of driving on that day and that the further repetition of offending is in the driving whilst disqualified and in the nature of careless driving, whilst on bail, some five months later on 18 January 2020. 
  2. [15]
    Otherwise and for the appellant, it was and is pressed that his age and growing maturity were important considerations, in the context of some identified difficulties in his experiences at school, including due to his condition which has been identified as involving a 32% loss of hearing, with an end result that he did not complete grade 12 or an engagement towards an automotive apprenticeship, in the further context of a particular interest in motor vehicles and the prospect of being a mechanic.  He was unemployed at sentence but was providing assistance to a chronically ill mother. 
  3. [16]
    More particularly, it was and is contended that some critical features in support of the appellant’s position are:
    1. (a)
      his relative youthfulness;
    2. (b)
      his co-operation, particularly in terms of entering early guilty pleas; and
    3. (c)
      his prospects of rehabilitation.

In the further context of reference to the application of s 9(2)(a) of the Penalties and Sentences Act 1992, the submission as to the appellant’s prospects of rehabilitation seeks to draw particular comfort from his completion of the 12 month intensive correction order, followed by a six month period without re-offending and then a further period of five months without re-offending and his partial completion of online components of the Queensland Traffic Offenders Program, as some demonstration of insight into his offending. 

  1. [17]
    Whilst it may be accepted that the appellant’s completion of the intensive correction order is demonstrative of the appellant’s capacity and preparedness to comply with such a supervisory order, the obvious difficulty with the reliance on the periods of non-offending, is that the more germane point is that at each juncture, he did significantly and repetitively re-offend.  Further, the completion of the online program, as was noted by the Magistrate, occurred only a matter of days prior to the sentencing proceedings. It is in this context that, in this Court, the contentions made for the appellant were in repetition of the submissions made to the Magistrate and the difficulty with them is that it was not demonstrated that there was any error in the following findings of the Magistrate:

“So far as prospects of rehabilitation are concerned, I do not agree with the submission that your rehabilitation is self-evident.  The fact that you have done, after the fact, the Queensland Traffic Offenders Program is something but it is a little late.  It is a little like bolting the – closing the stable door after the horse has bolted.  The intensive correction order that you were given was intended to be the rehabilitative sentence that would stop you committing offences like this in the future.  And, as I have already said, I regard that as a failure.  Your repeated offending in an identical manner makes it plain that it was not a success.”

  1. [18]
    The Magistrate also noted that he was taking the appellant’s age into account, in reducing the total period of imprisonment to 18 months.[7] Clearly the nature and repetition of offending and flagrant disregard of driver licence disqualification, called for a condign response. Whilst a deterrent effect may be achieved by the terms of imprisonment imposed, such considerations remain relevant also to the determination as to what part of any period of imprisonment is to be served in actual custody. Notwithstanding that it is possible to view the effective sentence as a strong one, particularly in imposition of six months actual imprisonment on a young man for the first time, it is not appropriate to regard the sentence as manifestly excessive.
  2. [19]
    As to the specific errors identified for the appellant, those contentions also suffer from the absence of identified error in respect of the Magistrate’s findings as to the indications as to prospects of rehabilitation for the appellant.  And more particularly the dominance of need for denunciation and deterrent effect, both personal and general.  Those contentions focus particularly upon the following passage in the sentencing remarks:

“At the end of the day, having regard to the fact that you have re-offended in an identical way in such a serious fashion after the imposition of the penalty you received on the last occasion, and the fact that the subsequent offences in January of this year occurred while you were on bail, clearly no sentence is appropriate other than one of imprisonment.  And I am not persuaded that you should not serve any time in actual custody.  In my view, it is the only appropriate penalty having regard to the nature and seriousness of your offences and the circumstances in which they occur and the overwhelming need particularly for personal and general deterrence and community denunciation.”

  1. [20]
    However and as to the Magistrate’s own expression as to the overwhelming effect of the considerations of personal and general deterrence and denunciation, the question arises as to whether all counter-veiling or balancing considerations were appropriately taken into account. The appellant’s contentions include reference to s 9(2)(a), which applied to this offending. It is necessary to understand that except where specifically excluded by succeeding subsections, this provision requires that:

“(2) In sentencing an offender, a court must have regard to—

  1. (a)
    principles that—
  1. (i)
    a sentence of imprisonment should only be imposed as a last resort; and
  1. (ii)
    a sentence that allows the offender to stay in the community is preferable; …”.

Accordingly and when applicable, these are principles which must be taken into account and may be seen as informing not just whether but also how much, imprisonment and particularly actual imprisonment, is warranted.[8] As has been noted, the desirability of supervision of the appellant on parole was, appropriately, not in issue before the Magistrate.

  1. [21]
    Accordingly, in the performance of the sentencing obligation in setting parole eligibility, the question becomes one as to what period in actual custody is required having regard to the particular circumstances, rather than any particular proportion of the period of imprisonment imposed and it is in this respect, that the considerations as to the relative youthfulness of the appellant and that this would be his first experience of actual custody were important ones.
  2. [22]
    The Magistrate’s observations that “no sentence is appropriate other than one of imprisonment” is directed at the need for terms of imprisonment and therefore at an issue which was not put in contention. This may be particularly seen because of the next sentence:

“And I am not persuaded that you should not serve any time in actual custody.”

Whilst care must be taken as to the ex-tempore nature of these remarks and as to identification of matters of substance rather than any infelicity of expression and further, that this may be seen as being somewhat responsive to the submissions made for the appellant in seeking to avoid such an outcome, nevertheless there is a clear difficulty in reconciling this assertion with the principles which the Magistrate was required to take into account. Further, there is otherwise no express acknowledgement of those principles and what remains is a sense of conflict with the unhelpfully self-serving nature of the further observation in the Magistrate’s reasons:

“I have taken into account all of the submissions that have been made on your behalf and everything that I am required to take into account pursuant to section 9 of the Penalties and Sentences Act.”

Conclusion

  1. [23]
    The most appropriate conclusion is that in finding that the overwhelming circumstances related to the needs for deterrence and denunciation, the Magistrate has not appropriately had regard to or taken into account the principles required to be so regarded, pursuant to s 9(2)(a) of the Penalties and Sentences Act.
  2. [24]
    Accordingly, it will be necessary for this Court to re-exercise the sentencing discretion or resentence the appellant. For that purpose, only, the appellant was granted leave to read and file an affidavit from his brother[9] and solicitor,[10] as new evidence pursuant to s 223(2) of the Justices Act 1886 and in order to demonstrate some reports by the appellant of some unfortunate experiences or difficulties since his incarceration. This was in order to support a contention that his incarceration, to date, has been more than ordinarily burdensome.
  3. [25]
    Although not objecting to the receipt of the material, for that limited purpose, the respondent challenged the weight to be given to the material, particularly as it does not directly come from the appellant and because the respondent’s own inquiries had gone no further, in the short time which had been available, then confirmation of a report of an assault of the appellant and his being moved to a different unit. Leave was also granted to the respondent to read and file an affidavit as to those enquiries.[11]
  4. [26]
    The response for the appellant was to press only for regard to be had to the confirmed complaint of assault and removal of the appellant to another unit. Although it may be necessary to allow for the result of any further enquiry made after the reservation of this decision, it can be said that only relatively little weight should be given to the material presently before the Court, as the circumstances leading to the complaint of assault are not the subject of any direct evidence and the respondent’s enquiries would tend to indicate that this was reported to have occurred relatively recently, on 29 October 2020.
  5. [27]
    In the re-exercise of the sentencing discretion in respect of the appellant, the reality of his situation is that there is only need to consider the point at which his parole eligibility, in terms of a release date, has been fixed. Notwithstanding the fixing of his period of imprisonment at the lower end of what is conceded as appropriate parameters, as some acknowledgement of his youth, having regard to all of the circumstances and relevant considerations, including the principles in s 9(2)(a) of the PSA, his relative youthfulness[12] and the fact that this is his first experience of actual incarceration might appropriately lead to a conclusion that need to reflect denunciation and deterrence in his sentence does not require actual custody to the extent of 6 months. That is both as general deterrence to other like-minded offenders, whether young or more mature, and particularly for this offender. In the later respect, the particular weight which may be given to his attempt to rely on the new evidence may be in understanding that there is likely to have been some salutary effect of the period of actual custody which has been endured to date.
  6. [28]
    In the circumstances, an appropriate conclusion is that he has now served a sufficient period of actual custody and an order should be made to vary his parole release date, to effect an immediate release.

Footnotes

[1]Notwithstanding the references in the Appellant’s Written Submissions, filed 11/8/20, at [27], to what is referred to as “diverging views”.

[2](1999) 198 CLR 111, at [109].

[3](2015) 256 CLR 550.

[4]R v Melano; ex parte Attorney-General (Qld) [1995] 2 Qd R 186; Lowe v R (1984) 154 CLR 604, at 612.

[5]R v Hillier [2007] QCA 279; R v Pearce [2010] QCA 338; Vasey-Frankland v Commissioner of Queensland Police Service [2017] QDC 232; and R v Theuerkauf & Theuerkauf; ex parte AG [2003] QCA 94, as that case was considered and referred to in R v Pearce.

[6]Appellant’s Written Submissions, filed 11/8/20, at [29].

[7]See SR2.5-6 and 5.26-27.

[8]Consistently with the process of synthesis towards an overall outcome which is described in Markarian v The Queen (2005) 228 CLR 357, at [37]-[39].

[9]Affidavit of RJ Kennedy, filed 6/11/20.

[10]Affidavit of A Sommers, filed 6/11/20.

[11]Affidavit of E Morrison, filed 6/11/20.

[12]As contended in the submissions for the appellant, a consideration noted in R v Kelley [2018] QCA 18, to be one deserving of particular weight and consideration, particularly as to the impact of sentences to be imposed on such offenders.

Close

Editorial Notes

  • Published Case Name:

    Kennedy v Commissioner of Police

  • Shortened Case Name:

    Kennedy v Commissioner of Police

  • MNC:

    [2020] QDC 283

  • Court:

    QDC

  • Judge(s):

    Long SC, DCJ

  • Date:

    12 Nov 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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