Alseedi v R

CASES CITED : R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575; Zaphir v R [2009] NSWCCA 124.

PARTIES: Jasim Alseedi - Appellant The Crown - Respondent

COUNSEL: W Terracini SC & J Trevallion - Appellant P Leask - Crown

SOLICITORS: B Archbold - Appellant S Kavanagh - Crown

LOWER COURT DATE OF DECISION: 3 October 2008 (Sentence)

IN THE COURT OF CRIMINAL APPEAL CCA 2008/4257 DC 2008/11/0729

GILES JA HIDDEN J McCALLUM J

Thursday 16 July 2009 Jasim ALSEEDI v REGINA Judgment 1 GILES JA: The appellant stood trial on two charges of indecent assault and one of sexual intercourse without consent. He was found guilty, and was sentenced to imprisonment for an overall non-parole period of 5 years and total term of 8 years. 2 The appellant appealed against conviction and applied for leave to appeal against sentence. The grounds of appeal were - "1. The verdict of the Jury was unreasonable having regard to the evidence.

2. The sentence imposed by his Honour Judge Berman in the District Court of New South Wales on 3 October 2008 was excessive." 3 For the reasons which follow, the appeal against conviction should be dismissed, and leave to appeal against sentence should be granted and the appeal upheld as to the sentence for the offence of sexual intercourse without consent.

The facts in outline 4 A detailed account of the facts is not necessary in order to appreciate and deal with the appellant's submissions. The essential question at the trial was whether the appellant had forced himself upon the complainant, it being the appellant's case that the complainant had initiated and encouraged what took place. 5 The complainant was a store manager in a supermarket in a Sydney suburb. The appellant from time to time worked at the supermarket as a loss prevention officer, depending on where his employer sent him. 6 On 5 December 2006 the complainant commenced her shift at 6 pm. The appellant was due to finish his shift at 8pm. Another loss prevention officer, Mr Fouad Fanosh, was also on duty. The complainant's duties included faxing to head office the time sheets and other paperwork in relation to loss prevention officers at the end of their shifts. 7 On the Crown case, on occasions earlier in the year the appellant had said things to the complainant indicating an interest in her, but she had brushed him off. 8 On the evening of 5 December 2006, the appellant remarked in the tea room on the complainant's beauty to the day shift manager, Mr Chris Gunn, in the presence of the complainant and her sister Selma who also worked at the supermarket. 9 The appellant then approached the complainant while she was having a cigarette outside just before starting work. He said that he really liked her and wanted to spend ten minutes with her. She said she was not interested. The appellant approached the complainant again in the supermarket as she was marking prices, saying she was such a beautiful person. He asked her to fax his paper work. She refused as it was too early, and told him to go and do some work. 10 According to the complainant, she received a page from Selma at the back dock and went there to help unload a truck. The complainant was pushing a cage loaded with goods in the back dock when she saw the appellant motioning to her. She said she ignored him and hid behind a cage. The appellant went into the back dock and asked the complainant to fax his paperwork. She agreed, as it was approaching 8 pm. 11 They went upstairs to the manager's office, the complainant intending to get a max unit (it seems a device concerned with prices). The complainant opened the office with a key. Across the passageway was the cash office containing the fax machine. As they were going upstairs the appellant said to the complainant that he just wanted to spend ten minutes with her, which she said was not going to happen. 12 When they were in the manager's office the complainant sat at the desk and began to make entries in the computer concerning pricing. The appellant put his paperwork in front of her and said he wanted to talk to her. She asked what there was to talk about, and he said something in Iraqi. The complainant said in evidence that she did not quite pick it up except for a part she did understand, which was "If you do tell anybody I hope the worst happens to you". 13 The appellant said, "If you tell anyone about this, please don't tell anyone about this". He closed the door. Some more things were said which need not be recounted. The appellant came around to next to the complainant. He pulled her head towards him and kissed her, and then attempted to kiss her a second time. She pushed him off, and as she did he bit her lip which cut it. 14 The appellant put his hand down the complainant's shirt and grabbed her breast and sucked her nipple (count 1), then took her hand and placed it on his erect penis outside his pants (count 2). He took her head and forced her mouth onto his penis (which had then been freed from his pants) for a few seconds, saying, "This won't take long" (Count 3). She pushed him away, and the appellant masturbated until he ejaculated onto the carpet. These events were accompanied by various protests by the complainant, who was shocked and scared. 15 The door opened and Mr Fanosh walked in. He asked what was wrong with the complainant. The appellant said she was faxing their paperwork through. Mr Fanosh asked why the complainant's shirt was all funny. The complainant did not answer because she could not talk. 16 The complainant went across the passageway and faxed the paperwork. She felt like vomiting and leaned forward, but controlled herself. She returned and gave the paperwork to the appellant and told him to go. The appellant asked for her phone number and she refused. He called her a stupid bitch and said he would give her time to think about it, and left the office. 17 The complainant remained sitting in the manager's office for about ten minutes. She washed her face, hands and mouth. She heard her name called and went into the tearoom, where Mr Fanosh said she had not signed his paperwork. She signed it, then returned to the manager's office for a couple of minutes. She picked up the max unit, and went down the stairs and sat at the bottom of the stairs for some time. She then returned to her duties. This was elaborated through some CCTV footage, see later in these reasons. 18 The complainant did not at that time tell anyone what had happened, as she was too scared. She telephoned her best friend, Ms Nicole Gabboury, who did not answer. On the next day she telephoned Ms Gabboury again, and told her what had happened and that the appellant had "forced me to give him a head job". She told Ms Gabboury that she was too scared to say anything, but Ms Gabboury said it was assault and she should tell her boss. 19 At the same time after the complainant had spoken to Ms Gabboury a work colleague, Mr Milija Nikolic, asked what was wrong with her lip. She asked him what he would do "if someone forced themselves on you", and on his inquiry elaborated, "In a way where if you don't want to be kissed then and you pushed somebody off you". Mr Nikolic said that was sexual assault and asked if that was what happened to her lip. They did not speak more because other persons were nearby. A little later, outside the supermarket, the complainant told Mr Nikolic that a loss prevention officer forced himself onto her and made her give him a head job. Mr Nikolic told her to tell the boss. 20 The complainant sent a text message to her boss, Mr Tim Triantafillou, as a result of which they spoke late the next day. She told him what had happened. 21 This led to the complainant going to the police. She saw Sergeant David King and then Detective Senior Constable Ainsley Hodges. 22 Some CCTV footage for 5 December 2006 was in evidence. 23 The footage for the cash office showed the complainant apparently distressed. She was shown touching herself in the chest area, which she said when taken to it was because she felt like vomiting, and with her hands over her face, which she said was because "I didn't want to believe what was happening or what just happened. I - like I felt yuck." 24 The footage for the area at the bottom of the stairs showed the complainant coming down the stairs holding the max unit and apparently sitting on a bottom step. She was obscured by a cage of goods, but said she sat there because she felt light headed. She said that some other employees passed and asked if she was alright, and she said she was. She regathered herself, and after some minutes the footage showed that she engaged in conversation with employees, in particular an employee Jack. According to the complainant Jack was making fun about Selma's trial make-up for her wedding, and the footage showed the complainant laughing and bending over laughing and pushing Jack away. She said in cross-examination that this was putting what had happened behind her and putting on a brave face and getting back to work. 25 Evidence was given by Selma, Mr Gunn, Mr Fanoush, Ms Gabboury, Mr Nikolic, Mr Triantafillou, Sergeant King and Detective Senior Constable Hodges. Subject to the appellant's submissions to which I will come, their evidence generally supported the Crown case as presented through the complainant's evidence. It need not be detailed. It was a strong Crown case, ultimately dependent on acceptance of the complainant's evidence, but gaining force in particular from the evidence of complaint. 26 The appellant did not give evidence. The police ERISP interview with the appellant was tendered, in which he said that the complainant invited him into the manager's office instead of the cash room and closed the door, and kissed him and said that she wanted to "do it with you" and really liked him; she took his hand and put it on her breast and unzipped his jeans, and the oral sex was then performed. He said that the complainant urged him to keep it a secret. 27 Consistently with the appellant's account in the interview, it was put to the complainant that she had been flirting with the appellant, and had suggested that they go into the manager's office and had initiated the sexual contact. It was put to her that she had told the appellant not to tell anyone because they might lose their jobs, and had only gone to the police because the supermarket's reporting process had begun (which scarcely touched on why the complainant began the process). The jury must have been satisfied beyond reasonable doubt that what happened was as the complainant said.

The conviction appeal 28 The sole ground of appeal was that the verdict of the jury was unreasonable having regard to the evidence. As was said in Zaphir v R [2009] NSWCCA 124 at [75] - "The test in determining such a ground remains that stated in M v The Queen [1994] HCA 63; 181 CLR 487; see also Jones v The Queen [1997] HCA 12; 191 CLR 439; MFA v The Queen [2002] HCA 53; 213 CLR 606; Markuleski v R [2001] NSWCCA 290; 52 NSWLR 82. That test is simply stated as whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In reaching that determination the appellate court must bear in mind the advantage held by the jury in its assessment of the evidence, having been able to observe the witnesses, and the manner in which they gave evidence. It must also make its own assessment of the evidence." 29 The appellant submitted that the test was not satisfied because of inconsistencies within the complainant's evidence and inconsistencies between the complainant's evidence and the evidence of other witnesses. He also submitted that the complainant's demeanour in some of the CCTV footage was not consistent with her account of events.

(a) The complainant's evidence 30 The appellant asserted four inconsistencies. 31 First, the complainant's understanding of Iraqi. The complainant is Lebanese. As I have said, her evidence included that in the manager's officer the appellant said something in Iraqi of which she understood, "If you do tell anybody I hope the worst happens to you". The complainant agreed that she told the police that the appellant was Iraqi and would attempt to say things to her in Iraqi which she could not understand because she was Lebanese, and that she also told Mr Gunn at one point that she did not understand what Iraqi people were saying because it was not her language. The appellant said that this was inconsistent with her understanding part of what was said in the manager's office. 32 The submission failed to have regard to other evidence. The complainant's evidence included that Lebanese and Iraqi had a similar dialect, and that she could understand some Iraqi words. She said that she had told the police that she would try to remember what had been said, and that she had done so much later. General inability to understand Iraqi is consistent with limited understanding of some words. It was a matter for the jury to assess whether, on the evidence as a whole, there was inconsistency, and to the extent that there was what effect that had on their acceptance of the complainant's evidence. 33 Secondly, the complainant at the bottom of the stairs. The complainant said that as she sat on the stairs people walking past asked what was wrong, she said that she was fine, and other than that she "didn't say anything to anybody". The appellant submitted that she conceded in cross-examination that she was on the phone, probably to her sister Antoinette and probably either telling her sister to come to work or to bring some food to eat. 34 The complainant did not concede this; she only agreed that a particular phone number was her sister's number. Even if she had, the earlier answer was in the context of speaking to persons passing as she sat on the stairs. Again, it would have been a matter for the jury to assess any inconsistency and its effect. 35 Thirdly, hiding in the dock area. The complainant said that when the appellant approached her in the dock area she hid behind a cage in order to avoid him. She said she "mentioned" that to Detective Senior Constable Hodges. It was not in her statement. Detective Senior Constable Hodges said that she did not recall the complainant telling her that she hid behind the cage, and if she had been told it she would have included it in the statement. 36 A "mention" may not have triggered the police officer's attention. There was arguably a discrepancy, although scarcely an inconsistency in the complainant's evidence, and again it was for the jury to determine the significance, if any, of the matter. 37 Finally, the complainant yelling out. The complainant agreed that she said in her police statement that she "yelled out". The statement was not in evidence, but from elsewhere this was about thirty seconds after the appellant had forced her mouth onto his penis. Taken to this, the complainant said, "I didn't yell out. I said, 'stop' or 'we have got to stop' can't remember". In re-examination she said that the words she yelled out were, "What the fuck are you doing", which she had said in her evidence in chief was her response to the appellant having forced her mouth onto his penis. 38 The appellant said that there was inconsistency in the denial, "I didn't yell out". Yelling out can mean a loud unintelligible sound or saying something loudly. The denial may have been of the former, consistently with saying loudly stop or what are you doing. If there was an inconsistency it was hardly significant, but what to make of this evidence was readily within the jury's assessment.

(b) Other witnesses 39 The complainant gave evidence that, when the appellant asked in the tea room who was managing that night, Mr Gunn said that the complainant was and the appellant said, "Oh she is so beautiful". Mr Gunn said in cross-examination that he could not remember any further conversation after being asked who was the manager that night. There is no inconsistency unless it be postulated that Mr Gunn would have remembered. That can not readily be said, but again it was a matter for the jury. There is little significance in this. 40 I have referred to the complainant's evidence that Mr Fanosh asked what was wrong and why her shirt was all funny. Mr Fanosh said in chief that when he entered the office there was silence, so he asked what was happening. In cross-examination he was asked whether he told the police that he could not remember what the complainant and the appellant said "but they told me something like nothing happened", and he answered, "Really I can't remember but yeah". He said he could not remember saying anything about the complainant's shirt and "it's like everything's normal". 41 There is a degree of discrepancy, but very much tempered by Mr Fanosh's inability to remember: perhaps discrepancy to the extent that so far as he recalled things appeared normal. Again, it was for the jury to determine the significance, if any, of the matter. 42 The complainant said that she had two conversations with Mr Nicolic, the first precipitated by his asking what happened to her lip. Mr Nicolic could not recall any conversation other than that the complainant asked what he would do if he was harassed at work, and had no memory of the complainant providing any details of the harassment. He had no recollection of commenting on the complainant's lip. He did recall that the complainant appeared "a bit stressed", and "seemed fairly serious" in comparison with usually being happy and smiley and bubbly. After they spoke he went back to his duties and "for the rest of the night she seemed fairly normal to me". 43 There was arguably discrepancy if it be thought that Mr Nikolic would have remembered the lip and being told what had occurred, on the basis that that was not normal in the life of a supermarket employee. But Mr Nikolic did recall reference to harassment and the complainant appearing stressed, so even if he had not been told in greater detail what had occurred there remained support for the Crown case. Once more, it was a matter for the jury to assess the discrepancy and what effect it had on their acceptance of the complainant's evidence. 44 The complainant said she was paged by Selma and assisted Selma at the back dock. The appellant submitted that Selma "said she definitely did not see her sister while unloading the trucks". That is not so. Selma said that she "would have been" unloading trucks for the first hour or hour and a half; she agreed with the question, "So you would not have seen your sister while you were unloading the trucks, is that what you are saying"; and she agreed with the next question, "So we can take that as definite". She otherwise gave no evidence one way or the other about the complainant being in the dock area. This did not rise above Selma's reconstruction that, because she was in the back dock, she would not have seen the complainant, without direct attention to the complainant's evidence of being paged by Selma. 45 Ms Gabboury's evidence of the complainant describing what had happened included that at the end the appellant told the complainant not to tell anyone and closed the door and walked off. The appellant submitted that there was inconsistency because this left out Mr Fanosh coming into the manager's office. There was discrepancy only if and to the extent the complainant would be expected to have told Ms Gabboury about Mr Fanosh coming into the manager's office. The complainant did not give evidence that she told Ms Gabboury this. It is difficult to see inconsistency, but again it was a matter for the jury. 46 Mr Triantafillou's evidence included the complainant telling him that the appellant put his penis in her mouth, she pushed him away, and he then put his penis back in her mouth and said, "Just a little longer". The appellant submitted that this was inconsistent with the complainant's evidence that the appellant put his penis inside her mouth and she pushed him away. He submitted also that there was inconsistency because the complainant did not tell Mr Triantafillou anything about Mr Fanosh coming into the manager's office. In fact, in her evidence the complainant said that she was "forcing myself off" and he was "pushing me in", and the first inconsistency is far from clear. The second is in like position to the Mr Gunn inconsistency last mentioned. Both inconsistencies, if they existed, were once more matters for the jury. 47 I have referred to Detective Senior Constable Hodges' evidence that she was not told about hiding behind a cage in the dock area. The appellant submitted that there was also inconsistency in that, while Detective Hodges' evidence was that she did see a cut on the complainant's lip, it was too small to photograph and was on the inside of the lip. It was submitted that this was inconsistent with the complainant's evidence that Mr Nicolic saw the cut and asked her about it. There was over a day between the occasions, the effect of which on the obviousness of the cut was not explored. That there was a cut, attributed by the complainant to the appellant's attentions, is clear enough. So far as of any significance, once more this was a matter for the jury. 48 The inconsistencies assessed by the complainant, so far as they might have been thought by the jury to exist, were scarcely on critical matters. Many, although not all, were relied on by counsel for the appellant in his address to the jury. I have indicated as to the separate matters that each was for the jury to assess and to determine what effect it had on their acceptance of the complainant's evidence. The separate matters must be taken together for their cumulative effect. In my opinion, neither individually nor together do they cast doubt on acceptance of the complainant's evidence such that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.

(c) The CCTV footage 49 The CCTV footage was played to us in the appeal. 50 In the footage of the cash office the appellant appeared to be deeply distressed, and the footage was entirely consistent with her evidence. The appellant submitted that her demeanour was also consistent with concern that she had almost been surprised by Mr Fanosh in consensual sexual activity with the appellant. That is not my reaction to the footage, and at the least it was open to the jury to consider that it provided support for the complainant's evidence. 51 The initial footage of the area at the bottom of the stairs was consistent with the complainant's evidence of sitting on a bottom stair feeling unwell, and again it was open to the jury to consider that in this respect it provided support for her evidence. As manager, she would ordinarily have been attending to her duties rather than sitting on the stairs. 52 The complainant was then shown laughing with Jack and others. Jack did not give evidence. The appellant submitted that her demeanour in this respect was not consistent with being distressed from having the appellant's attentions forced upon her. That was a valid point to make to the jury, but it was open to the jury to accept that, as was the effect of the complainant's evidence, the complainant managed to compose herself sitting at the bottom of the stairs and was able to put on a brave face and carry on with apparent normality. 53 I take account of the CCTV footage in these respects as well as the inconsistencies asserted by the appellant. For the ground of appeal, it is necessary for the Court to make its own assessment of the evidence and determine whether, on the whole of the evidence, the jury could be satisfied of the appellant's guilt beyond reasonable doubt. I have had regard to the whole of the evidence. In my opinion, it was well open to the jury to be so satisfied.

The sentence appeal 54 For each of the offences of indecent assault the appellant was sentenced to a fixed term of 3 years imprisonment. For the offence of sexual intercourse without consent he was sentenced to imprisonment for a non-parole period of 5 years and a total term of 8 years. The sentences were made wholly concurrent. They commenced on 11 August 2008, the day on which the appellant went into custody. 55 The offences of indecent assault carried a maximum penalty of 5 years imprisonment. The appellant submitted that the sentences for the offences were excessive "having regard to the form of the indecent assaults and the circumstances in which they occurred". 56 The submission was not developed, and it was observed in the appellant's submissions that as the sentences were wholly concurrent there was no effect on the overall sentence. On no view could the sentence for the offence of sexual intercourse without consent properly result in a non-parole period of less than 3 years imprisonment, and the concurrency was and is appropriate. Accordingly, the appeal in this respect has no practical significance. It is sufficient that, while the indecent assaults were relatively brief, and were less intrusive to the complainant than other possible forms of indecent assault, they were very much forced upon her. In my opinion the sentences were within the range open to the sentencing judge. 57 The offence of sexual intercourse without consent carried a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years imprisonment. The appellant submitted that the sentence for the offence was excessive "having regard to the form of the sexual intercourse and also the circumstances in which the particular form of intercourse occurred and the subjective circumstances of the Appellant". This was developed by submissions concerning objective seriousness and the weight given to subjective circumstances and prospects of rehabilitation, with provision also of sentencing statistics from the Judicial Commission database. 58 The sentencing judge said, after describing what had occurred - "These were serious offences. The offender was given not the slightest reason to think that the complainant might either be romantically or sexually interested in him, but he seems not to have cared, deciding to indecently touch [the complainant], then forcing her to perform oral sex upon him despite her making it clear that she did not want that to happen." 59 The sentencing judge later said - "I did mention that the offence of sexual intercourse without consent carries a standard non-parole period of seven years. On occasions courts have attempted to categorise various forms of sexual intercourse with suggestions occasionally being made that some forms of sexual intercourse are necessarily less serious than other forms of sexual intercourse. However those remarks do not appear to have been followed in other cases. I am satisfied that the appropriate way of looking at the various forms of sexual intercourse is not to apply blanket determinations that one form is always more serious than another, but to look at all the circumstances in which the particular form of intercourse occurs. Thus for example whilst it may be thought that digital penetration will usually be less serious than other forms of sexual intercourse, that would not automatically be the case. In order to decide the seriousness of a particular act of intercourse much more needs to be looked at than the form the intercourse takes. In this case, as I mentioned, the form of intercourse was fellatio. I take into account that the penetration of [the complainant's] mouth by the accused's penis was relatively quick and that he did not ejaculate in her mouth. He did however physically force [the complainant] to perform the fellatio upon him when he grabbed her head and forced it towards his penis. Primarily because of the relatively short period of time that the offence took, I will find that it is slightly below the middle of the range of objective seriousness." 60 The appellant submitted that this was erroneous because it failed to take account of the facts that there was minimal removal of the complainant's clothes (said to reduce the humiliation to the complainant), that there was minimal use of physical force and that when the appellant was pushed away he did not persist. 61 Removal of the complainant's clothes was not of great significance when the form of sexual intercourse was forced fellatio, and the judge was correct to have regard to the circumstances of the particular offence rather than place the form of sexual intercourse in some kind of hierarchy (see per Simpson J in R v AJP [2004) NSWCCA 434; (2004) 150 A Crim R 575 at [24]). Forced fellatio is quite capable of achieving or exceeding the mid-point of objective seriousness (see ibid). The physical force used by the appellant cannot correctly be described as minimal, and failure to persist when he appeared to have achieved his objective of stimulation did not lessen the seriousness of the offence. In my opinion, it was open to the judge to place the offence slightly below the middle of the range of objective seriousness. 62 The appellant then submitted that the judge did not give sufficient weight to the appellant's subjective circumstances. It was said that the appellant had no significant record of previous convictions, and that the sentencing judge had found that he was "doing his time in custody particularly hard" and was affected by his conditions of custody more than most other prisoners. It was said also that there was error in declining to find that the appellant had good prospects of rehabilitation, given the support he had from his fiancé and his community, his lack of any previous criminal antecedents and the particular deterrent effect of "doing his time in custody particularly hard". 63 The sentencing judge recognised all these matters. As to the second, his Honour said that while the appellant was then on protection, it could not be assumed that that would continue or that, even on protection, the conditions of custody would be worse than in the general prison population. However, in my opinion there is a difficulty as to prospects of rehabilitation. 64 His Honour said - "It is difficult to find that the offender has good prospects of rehabilitation and, in fact, I cannot make that finding. The most obvious impediment to that finding being made is that the offender continues to maintain his innocence. His failure to admit his guilt suggests that nothing, apart of course from the sentence I must impose upon him, will prevent him from in future doing something similar to what he has done in the past.". 65 At this point in his remarks his Honour did not acknowledge the matters favouring unlikelihood that the appellant would re-offend to which he had earlier referred. His only stated reason for declining to find good prospects of rehabilitation was that the appellant continued to maintain his innocence. That is by far from necessarily inconsistent with unlikelihood that he would re-offend; there can be rehabilitation without confession, and offenders found guilty after a trial are not all but automatically deprived of a finding of good prospects of rehabilitation unless they then acknowledge their guilt. I consider that his Honour gave that matter undue weight without proper regard to the otherwise favourable matters. 66 The statistics from the Judicial Commission database were provided without explanation of whether or how they supported the appellant's submissions. The sentence imposed on the appellant is to the upper end of the range of sentences disclosed by the statistics. In the light of what I have said, it is necessary that the appellant be re-sentenced. In my opinion, a lesser sentence is warranted. With due recognition of the seriousness of the offence, in all the circumstances the appellant should be re-sentenced to imprisonment for 7 years with a non-parole period of 4 years.

2. Leave to appeal against sentence granted; appeal allowed.

3. Uphold the sentences on Counts 1 and 2. Quash the sentence pronounced on 3 October 2008 on Count 3 in the District Court. In lieu thereof sentence the appellant to imprisonment with a non-parole period of 4 years commencing on 11 August 2008 and expiring on 10 August 2012 and a balance of term of 3 years commencing on 11 August 2012 and expiring on 10 August 2015. 68 HIDDEN J: I agree with Giles JA. 69 McCALLUM J: I agree with Giles JA. **********

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