Bail laws review

March 15th, 2011 at 1:49 pm by David Farrar

Simon Power has just announced a review and consultation on bail laws.

This is additional to the reversal of the change made by Labour in 2007 which made it easier for people to get . This was repealed straight after the election.

Some interesting stats:

  • Under 2% of defendents are remanded in custody for the entire period between arrest and trial
  • Around 9% of defendents spend some time in custory and some time on bail
  • The proportion of defendants that offended on bail has increased from 15.7% in 2004 to 17.9% in 2008
  • Over the five years 2004 – 2008, 64,659 defendents were convicted of commiting an offence while on bail
  • Of those who offend while on bail, 34% got a community based sentence, 30% imprisonment and 21% a fine

The questions the Government is asking are:

  1. What is your view on whether there should be a reverse burden of proof for defendants charged with serious class A drug offences (i.e. should they have to prove that they should be granted bail instead of the prosecution having to prove that they should not)?
  2. What is your view on whether electronically monitored bail should continue to be an option for defendants charged with serious methamphetamine offences?
  3. What is your view on whether the Courts should be able to release defendants charged with murder on bail
  4. What is your view on whether there should be a reverse burden of proof for defendants charged with murder (i.e. should they have to prove that they should be granted bail instead of the prosecution having to prove that they should not)?
  5. What is your view on whether new offences should be added to the list of specified offences that qualify for a reverse burden of proof (if the defendant has a previous conviction for one of those offences)? What criteria should be used to assess which offences to add to the list of specified offences?
  6. What is your view on whether electronically monitored bail should continue to be an option for defendants charged with serious violent and sexual offences?
  7. What is your view on whether the presumption in favour of bail for 17 to 19 year olds should apply to defendants who have previously served a prison sentence?
  8. What is your view on whether breach of any condition of bail should be a ground for arresting a defendant under 17 years of age without a warrant?
  9. Do you think that any further requirements or safeguards are needed to prevent bail being granted inappropriately in return for information? If so, do you agree with the Government’s proposal to insert a legislative provision into the Bail Act 2000 and are any other requirements or safeguards needed?
  10. Are there any other non-legislative measures that could be used to reduce the number of defendants that fail to answer bail?
  11. What is your view on whether the maximum penalty for failure to answer Court bail should be increased? If you think it should be increased, what should it be increased to?
  12. What is your view on whether the maximum penalty for failure to answer Police bail should be increased? If you think it should be increased, what should it be increased to?
  13. What is your view on whether monetary bonds and sureties should be reintroduced in the District Court?
  14. What is your view on whether monetary bonds and sureties should be abolished for Police bail?
  15. What is your view on whether the EM bail regime should be set out in legislation?
  16. What is your view on whether breach of EM bail should be an offence in addition to being a ground for arrest and reconsideration of bail?
  17. What is your view on whether time spent on EM bail should be taken into account in sentencing?
  18. If time spent on EM bail is taken into account in sentencing, should there be some legislative guidance to assist the Courts in determining the appropriate discount (e.g. a set formula or guidelines specifying the types of factors relevant to deciding how time spent on EM bail should be taken into account)?

My general instincts are that the criteria for getting bail should not change much (remember not everyone charged is found guilty) but that the penalties for offending on bail should be increased.

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31 Responses to “Bail laws review”

  1. PaulL (5,981 comments) says:

    I’m a bit with you DPF. If we get into a situation where someone charged of a crime (irrespective of whether they might be eventually be found guilty) needs to prove their ability to get bail, we’re on a slippery slope. Innocent until proven guilty, unless the prosecution can prove a material risk to life and liberty of the general populace. As it is now.

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  2. ben (2,379 comments) says:

    What’s with reversing the burden of proof? Are these people considered innocent until proven guilty or not?

    I have to say I’m disturbed that Simon Power’s proposals to speed up justice seem to emphasise relaxing the burden of proof on the Crown and raising it for everyone else. The slippery slope is obvious. I would be surprised it is a National government that’s doing it, except that it’s this government, which is more Labour than Labour at times. Yes, I know there are real constraints Power is operating under, and the answer is not simple, but it seems to me very short sighted to shift burden of proof to save dollars.

    Of course it is only a proposal for feedback, but the line of thinking is clear and in my view to be strongly resisted.

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  3. KH (695 comments) says:

    It’s a matter of your point of view rather than the numbers.
    Many years ago there was a justice department study that came up with much the same stats. Their conclusion was that the offending on bail was low and no change was required.
    My view on the same numbers for re-offending on bail, given that they only counted those actually caught, (Only a percentage of offenders) and convicted (an even smaller percentage) and the short periods spent on bail. ( so the “not actually on bail” offending was not counted) was that bail was a farce and should not happen.
    The numbers don’t help the argument either way. It’s our pre disposition.

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  4. gravedodger (1,566 comments) says:

    Of course with our penchant for making all sentences for crimes at a sentencing for the most serious charge concurrent therefore absolutely meaningless, where is the deterrent factor that might cause a hesitation to commit further offences during a bail period awaiting trial on say murder, class A drugs, serious assault etc.
    I agree that until guilty, all are innocent but I would be interested in the figures above for offending while on bail expressed as a percentage.

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  5. SPC (5,619 comments) says:

    There needs to be a two tier approach.

    The re-offending rate is lowish, so what is required is targeting.

    Those on parole don’t get bail except for very minor offences. Those with past time in prison, and on a charge where a prison sentence is likely, do not get bail. Home detention being an option that can be applied for.

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  6. David Garrett (7,270 comments) says:

    DPF: you have given figures on re-offending while on bail – which are lower than I would have thought – but what about the percentage for those failing to appear for their next court appearance? They should be available somewhere in the bowels of the justice system.

    When McVicar Franks and I went to the US in 2007 to look at three strikes laws, I was interested in the system of “Bail Bondsmen” they have in California, where the monetary sureties we used to have in NZ are the norm. As I understand it – I am very interested in what others know about it – where the Judge sets bail at – say – $100,000, and the defendant or his friends dont have access to the money, a bail bondsman may put up the money in return for a fee. The fee is set according to the Bondsman’s assessment of the risk of the offender not reappearing – setting a market price for that eventuality if you will. If an offender doesnt like the price of the Bail Bondsman, he goes to another. I remember seeing a whole line of them outside the equivalent of a District Court in LA.

    If the offender does not show, the Bail bondsman loses his money, unless he is able to bring the offender before the court. To that end, he has powers greater than an ordinary citizen – although I dont know just what those powers are. Whatever they are, there would be those who would be wary of such a system here. I am sure there would be many on the libertarian wing of the ACT party who wouldnt have a bar of it, let alone the socialists.

    On the face of it, it would seem such a system has much to recommend it, both to ensure offenders turned up (huge amounts of court time and resources is wasted because they dont), freeing police from having to track down bail defaulters, and perhaps to a lesser extent, reducing offending while on bail. Presumably a bail bondsman with $100,000 “in the game” is going to keep a fairly close eye on the offender he has backed as a good risk pending his next appearance.

    There are no doubt also good arguments against such a system. I would be interested to hear them.

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  7. PaulL (5,981 comments) says:

    I’m not super keen on bail bondsmen. I think there is a certain knee drilling and elbow smashing element there, and whilst there may be an argument that that works well as a deterrent, I’m not sure we want to introduce it.

    My preference would be that we do a better study of what is driving reoffending on bail. Things I can see are:
    – court appearances quicker. Less time on bail, less reoffending whilst on bail
    – better policing of property crimes. Many people are getting caught for 1 in 10 crimes, or less. If we had a higher resolution rate, then people would be less likely to reoffend
    – one strike whilst on bail/probation. If you reoffend, no more bail, no more parole. You only get one second chance

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  8. peterwn (3,271 comments) says:

    There are three instances where bail (or remanded at large) would be justified for murder.
    1. Where circumstances indicate that S102 of Sentencing Act would probably apply – ie life imprisonment not ordered and hence no minimum term under S103 – S104 (such as suicide pact and euthanasia cases).
    2. Where circumstances indicate that the accused was acting in self defence.
    3. Where it is a private prosecution (it can be argued that if Police and / or Crown Law did not see fit to charge then the potential accused is not really at any risk to society).

    It would have been quite repugnant if Constable A of Waitara fame was remanded in custody for a privately laid murder charge.

    In such cases it is generally quite obvious that the alleged offender is at no risk to society especially if there are no previous serious concictions.

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  9. Rex Widerstrom (5,354 comments) says:

    Oh yeah, let’s have bail bondsmen. Then David Garrett will finally find a career he’ll really enjoy… NZ’s answer to “Dog the Bounty Hunter“. Maybe he can have McVicar perched on the back of his Harley. Christonabike (though definitely not literally in that case).

    Meanwhile, back in Reality Land… I think your solution is ideal, DPF. As someone who couldn’t get bail (due, they said, to an international legal technicality that proved to be a lie, like much else surrounding those events) and thus spent months in jail, I don’t believe anyone should be imprisoned prior to a finding of guilt unless there is significant evidence of the likelihood they’re a danger to others. Not a danger of fleeing. Not a danger of not showing up. They can always be recaptured and, as you advocate, punished harshly for skipping bail.

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  10. David Garrett (7,270 comments) says:

    Rex…. Rex…..You don’t need to overcompensate for agreeing with me on the sloppy reporting on 3S… or for me agreeing with you that zero tolerance is vital part of the ” Laura Norder” mix…(btw I have found that Maurice Chevalier “Best of” CD….).

    PaulL’s comment makes a lot of sense…if you breach bail once, why should you be given it again?

    And lets get some terms right here (confusion is increased by different usage of the terms in the US)

    Offenders are REMANDED on BAIL prior to trial…PAROLE is early release from a finite sentence imposed following conviction at trial.

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  11. backster (2,171 comments) says:

    18% of offenders bailed are caught re-offending while on bail. That is not a smallish percentage. That is indicative of a re-offending rate while on bail of at least 50%.
    The old system of bail bonds and sureties worked well and why it was dispensed with defies logic.
    Reversing the burdon of proof as to suitability for bail is not revolutionary it occurs already within some statutes, but wouldn’t be necessary if the Judiciary used a little commonsense, allowed the head to rule the heart. Most offenders have long lists of previous similar offending, yet the Judge accepts their promise(made by their lawyer) that they won’t re-offend while onbail.
    There should be truly exceptional circumstances proved by testimony before bail is granted to those charged with murder, multiple sexual offences, and serious drug charges.
    There needs to be public accountability by a Judge when an a serious offender re-offends while on bail.

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  12. SPC (5,619 comments) says:

    backster whether the rate is lowish or not – what is required is targeting.

    Those on parole should not get bail except for very minor offences. Those with past time in prison, and on a charge where a prison sentence is likely, should not get bail. Home detention being an option that can be applied for.

    As for those on serious charges, but who are not on parole or who have not gone to prison, bail could be dependent on whether they have been convicted for offenses in the past.

    It’s extreme to imprison someone with no priors because they are on a serious charge. In some cases home detention/EM could be imposed. extreme

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  13. Rex Widerstrom (5,354 comments) says:

    David Garrett asks:

    if you breach bail once, why should you be given it again?

    Because if you’re merely a habitual bloody nuisance rather than a danger to others (and even a person accused of murder is not necessarily that, as peterwn explains above) then there’s insufficient justification for locking you up.

    I get drunk, I get arrested for urinating in public, I get drunk again and forget my court appearance, so I go to jail…?? I’m sure there’ll be heads nodding in approval, but where I’d more usefully end up (from both my own perspective and that of people tired of smelling piss in shop doorways) is in some sort of rehab as part of my eventual sentence.

    Also, if we’re sorting out our definitions (which is a good idea… let’s not confuse bail and parole) we need to differentiate between those who merely skip bail and those who offend while on bail.

    [I'm sure even the Greeks and the Trojans agreed on some things... the utility of big wooden horses, for one thing. That didn't mean one side wasn't utterly wrong.]

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  14. nasska (11,468 comments) says:

    100% with Rex on this one….bail bondsmen would be one step removed from a private army & a guaranteed source of income for the gangs.

    Once again the government is stepping in to create new unneeded legislation because the judges choose not to use what powers they have in a way that satisfies the public’s concerns for their own safety.

    One more argument for an elected judiciary.

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  15. F E Smith (3,305 comments) says:

    Backster, you should have said that promises not to re-offend are made THROUGH the defendant’s lawyer, not BY the defendant’s lawyer.

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  16. KH (695 comments) says:

    Rex says
    “I get drunk, I get arrested for urinating in public, I get drunk again and forget my court appearance, so I go to jail…??”
    Well Rex — Yes you do.
    We as a society tried our best to sort you out. But your continuing behaviour defeated that effort. So on to the next step.

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  17. David Garrett (7,270 comments) says:

    Since we are all into making things clear today (sorry Rex, I agree with you once more…) the Bail Bondsmen thing is not part of the possible reforms being discussed – although as DPF makes clear in his initial post, reintroduction of sureties and bonds IS up for discussion. My understanding is one of the reasons they were phased out is because of perceived discrimination against the poor, who are unlikely to be able to come up with significant amounts of dough…fair point…which is where the Bail Bondsmen come in…

    Aside from references to “Dog the Bounty Hunter” (whoever that might be) and drilling kneecaps, does anyone have first hand knowledge of or stats on how Bail Bondsmen systems function in practice? What level of abuse is there? what percentage of them have their licences cancelled for misuse of powers?

    Finally, to rub your fur backwards again Rex… sorry…you make a good point re two instances of public urination leading to jail for breach of bail. What about no bail for any strike offence (yes, Rex, the likelihood of MOST alleged killers reoffending seriously while on bail is low, but a significant number have) and no repeat bail – ever – if a violent offence of any kind (i.e not necessarily a strike offence) is committed while on bail?

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  18. peterwn (3,271 comments) says:

    Another thought – Bail v custody should also be dependent on the strength of evidence. For example if a P cook is caught red handed ‘cooking’ the stuff remand in custody is quite OK.

    Also does anyone know whether a person convicted of a serious crime is treated as a remand or ordinary prisoner prior to sentencing.

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  19. Rex Widerstrom (5,354 comments) says:

    KH says:

    We as a society tried our best to sort you out. But your continuing behaviour defeated that effort. So on to the next step.

    So I have a substance abuse problem. You arrest me; bail me but impose no treatment regime (which you can’t because technically I’m not guilty at that point), and then arrest me again when I – utterly predictably – fall off the wagon and that’s society “trying its best to sort me out”?

    We clearly have very different ideas of what constitutes a society, KH. My society would recognise that people with addictions to alcohol and other sunstances have a medical condition that requires treatment. It would also recognise that some such people can be a damned nuisance. It would therefore use the commission of offences by those people as a bargaining chip – go away, clean up your act (and here’s where you’ll go and what you must do, and we’ll provide the resources) and, if you do, we won’t impose a punitive response.

    We wouldn’t expect the mere fact of having been arrested to “cure” them overnight and, when that failed to work, hurl them into a cell.

    David Garrett:

    What about no bail for any strike offence (yes, Rex, the likelihood of MOST alleged killers reoffending seriously while on bail is low, but a significant number have)

    No. Read peterwn’s example above. Murder is a strike offence, yet some murderers will almost certainly not reoffend. You want an elderly man who assisted his terminally ill wife’s suicide to be denined bail?! That’s what’s wrong with stupid laws which remove judicial discretion – they might work for the majority of cases but the results are cruel and unnecessary in a significant minority. It should be up to a judge to divine the obvious difference between the elderly man and Graham Burton, and grant or deny bail accordingly.

    and no repeat bail – ever – if a violent offence of any kind (i.e not necessarily a strike offence) is committed while on bail?

    That’s closer to something I could support. However it still leaves no room for the courts to deal leniently with outlier cases. What say Bruce Emery had been bailed and a lynch mob had come to his home? If he assaulted someone there goes his chance of bail, ever, even if his next offence was graffiti.

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  20. Rex Widerstrom (5,354 comments) says:

    peterwn:

    Bail v custody should also be dependent on the strength of evidence. For example if a P cook is caught red handed ‘cooking’ the stuff remand in custody is quite OK.

    As I understand it, that is one factor weighed by the judge (though the primary one is risk to the public, as it should be).

    But in my experience, people caught red handed usually want to go straight to jail, so they can start serving their inevitable sentence (since time served on bail is discounted off the inevitable sentence).

    In some Scandinavian countries if you’re caught and know you don’t have a hope of beating the charge you can sit down and negotiate a start date for your sentence. Rather than the choice of being dagged out of bed with your bills unpaid and your pets unfed and starting jail right then, or pleading not guilty to buy time to sort your life out, wasting court time and resources till you change you plea, you can say “Fair enough, can I start jail in a month’s time? I need to find someone to look after my kids and my cat, let the landlord know, put my stuff in storage…”

    Often, apparently, the judicial system will say “No sorry, that’d make the jail too crowded. We have an empty bed coming up in seven weeks… you can start your sentence then”.

    Much more efficient – less court time, less need for lawyers to do the negotiating for a clearly guilty person, less prison crowding, better chance of eventual rehabilitation because the prisoner hasn’t lost everything by the time they’re released.

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  21. Put it away (2,878 comments) says:

    Reoffending on bail or failing to appear in court should permanently disqualify a crim from ever getting bail again. The offending should be taken into consideration during sentencing of the original charge, as clearly they have no remorse and no interest in changing their ways.

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  22. Paul Marsden (998 comments) says:

    Simple answer. If the police oppose bail then the court must rule accordingly. We have lost so many top cops because of their frustration with bleeding-hearted, liberal judges who grant bail to criminals, only for the cops to be wasting their time in hunting down offenders who contine to commit further crimes, on bail.

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  23. tristanb (1,127 comments) says:

    So I have a substance abuse problem. You arrest me; bail me but impose no treatment regime, and then arrest me again when I fall off the wagon and that’s society “trying its best to sort me out”?

    No. That’s society trying to protect itself from someone who is a few steps away from killing an innocent person by drunk-driving.

    Sort yourself out! You had a chance to contact CADS, Bridge, or whoever after the first incident. You failed. Accept it – you’re not a child. You pay the consequences. The taxpayer pays for your lock-up – but it’s better than letting you destroy others’ lives.

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  24. Rex Widerstrom (5,354 comments) says:

    Paul Marsden suggests:

    If the police oppose bail then the court must rule accordingly.

    Righto, so the fact that they’ve brought the charge means these same “top cops” clearly think the accused is guilty so hey, who needs a messy and expensive court case?!

    One of these cops was sitting next to a friend of mine in court just yesterday – she was the complainant – and told her “don’t worry, he [the accused] has to prove he didn’t do it”.

    In that “top cop’s” wet dream, maybe… but not in a civilised society.

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  25. F E Smith (3,305 comments) says:

    Many rehab agencies won’t assist a person who is currently facing charges. That is a policy that has often frustrated me. They won’t do anything until after the case finishes.

    But that point about refusing bail if the cops oppose is just nuts. Many is the officer who will oppose bail just for the hell of it. For some reason, many of them don’t like to have anyone granted bail.

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  26. robcarr (84 comments) says:

    Seems to me there is no real justification for having a reverse onus. If someone is at high risk of reoffending then the prosecution shouldn’t have it that hard to show it. If they have having real difficulty for a particular crime then have a balance of probabilities test or set out specific things that count not a reverse onus. You shouldn’t be denied bail unless you are likely to flee or reoffend which is not the case for most.

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  27. F E Smith (3,305 comments) says:

    Oh, and very few of our judges are bleeding heart liberals. Very few of the defence lawyers are, either; and none of the prosecutors. Every decision made by a judge on bail or sentencing must be backed up with reasons to show how they’re applying the law and why. Each decision can be subject to appeal by either side. Get this, though: the police rarely appeal bail decisions. If the cops feel so strongly about these bad decisions, then why don’t they appeal more often? Why? Because most of the judges decisions on bail or sentence are not too lenient, they are either correct or too harsh.

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  28. Rex Widerstrom (5,354 comments) says:

    tristanb says:

    No. That’s society trying to protect itself from someone who is a few steps away from killing an innocent person by drunk-driving.

    There you go, projecting again. I say arrested for urinating in public, you construct a straw man dangerous driver, then set about demolishing him. Most of the people utterly delbilitated by alcohol to that extent don’t own cars… they’ve sold them to buy booze.

    Someone who drives drunk while on bail for a drunk driving charge probably does meet the threshold for jail, but so as to protect other road users, not as punishment for the breach.

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  29. KH (695 comments) says:

    Rex says
    So I have a substance abuse problem. You arrest me; bail me but impose no treatment regime (which you can’t because technically I’m not guilty at that point), and then arrest me again when I – utterly predictably – fall off the wagon and that’s society “trying its best to sort me out”?

    We clearly have very different ideas of what constitutes a society, KH. My society would recognise that people with addictions to alcohol and other sunstances have a medical condition that requires treatment. It would also recognise that some such people can be a damned nuisance. It would therefore use the commission of offences by those people as a bargaining chip – go away, clean up your act (and here’s where you’ll go and what you must do, and we’ll provide the resources) and, if you do, we won’t impose a punitive response.

    We wouldn’t expect the mere fact of having been arrested to “cure” them overnight and, when that failed to work, hurl them into a cell.

    KH responds. Well Rex we seem to agree. Reading carefully thru your suggestions above there are so many words about what the person must do. Very bossy language you use. Or they will be made to.
    Glad to have reached a successful agreement

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  30. Rex Widerstrom (5,354 comments) says:

    KH

    I’m unashamedly a proponent of positive intervention in the life of a person before the courts. Yes “you’re off to three months in rehab” is just as much a “sentence” to the accused as “you’re off to three months in jail”, In fact he’d probably prefer jail, where it’s easier to get drugs (and booze, if you don’t mind drinking fermented fruit out of a laundry bucket).

    The difference is the first option has benefits for the accused and for society – a sober member is retured to it. The second does not.

    You’ve clearly lept to the assumption, shared by many, that I want to “cuddle crims”. I don’t. I just see little point in beating them down and then expecting that to change their behaviour.

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  31. KH (695 comments) says:

    Rex
    Reading what you say – it’s clear you agree with me. It;s good.

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