Environment Protection Authority v Hopley

Land and Environment Court (NSW)|1991-11-01|Before: Cowdroy J, Bignold J

CITATION : Environment Protection Authority v Hopley [2003] NSWLEC 112 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Richard John Hopley FILE NUMBER(S) : 50104 of 2002; 50105 of 2002 CORAM: Cowdroy J KEY ISSUES: Prosecution :- employment of unlicensed driver to transport dangerous goods - pollution of waters - plea of guilty - sentencing considerations - penalty Crimes (Sentencing Procedure) Act 1999, s 3A, s 10, s 21A, s 22, s 23 Fines Act 1996, s 6 Land and Environment Court Act 1979, s 52 LEGISLATION CITED: Protection of the Environment Operations Act 1997, s 120(1), s 123, s 241 Road and Rail Transport (Dangerous Goods) Act 1997, s 35(2) Road Transport Reform (Dangerous Goods) Regulations 1997, cl 18 Road and Rail Transport (Dangerous Goods) (Road) Regulation 1998, cl 5 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Cameron v R (2002) 76 ALJR 382; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Environment Protection Authority v Ecolab Pty Limited (2002) 123 LGERA 269; Environment Protection Authority v Rail Infrastructure Corporation (2002) 119 LGERA 409; Mill v The Queen (1988) 166 CLR 59; Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66; CASES CITED: Pearce v The Queen (1998) 194 CLR 610; R v Sharma (2002) 54 NSWLR 301; R v Storey [1998] 1 VR 359; R v Thomson; R v Houlton (2000) 49 NSWLR 383; Ryan v The Queen (2001) 206 CLR 267; State Pollution Control Commission v White Wings Limited (Bignold J, Land and Environment Court, 1 November 1991, unreported); The Queen v Olbrich (1999) 199 CLR 270; Tiger Nominees Pty Ltd v State Pollution Control Commission; Kristim Nominees Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 715; Woodward (for and on behalf of the State Pollution Control Commission of New South Wales) v Cleary Brothers (Bombo) Pty Ltd (1984) 54 LGRA 409 DATES OF HEARING: 02/05/2003 DATE OF JUDGMENT: 07/03/2003

PROSECUTOR Mr S. Rushton SC

SOLICITORS Environment Protection Authority

LEGAL REPRESENTATIVES: DEFENDANT Mr M. Scott (Barrister)

SOLICITORS Curwood & Partners

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50104 of 2002 50105 of 2002

3 July 2003 Environment Protection Authority Prosecutor v Richard John Hopley Defendant Judgment

1 By summons filed 11 October 2002 the Environment Protection Authority ("the prosecutor") charges Richard John Hopley ("the defendant") with two offences. 2 In proceedings 50104 of 2002 the defendant is charged with an offence against s 35(2) of the Road and Rail Transport (Dangerous Goods) Act 1997 ("the Dangerous Goods Act"). The charge alleges that on or about 8 February 2002 the defendant employed another person to drive a vehicle transporting dangerous goods by road who was unlicensed, contrary to the Road Transport Reform (Dangerous Goods) Regulations 1997 of the Commonwealth ("the Dangerous Goods Regulations")). Clause 5 of the Road and Rail Transport (Dangerous Goods) (Road) Regulation 1998 of New South Wales adopts the Dangerous Goods Regulations. 3 In proceedings 50105 of 2002 the prosecutor charges the defendant with an offence against s 120(1) of the Protection of the Environment Operations Act 1997 ("the POEO Act") in that on or about 8 February 2002 the defendant polluted waters at or near Wetherill Park, New South Wales.

4 The defendant entered a guilty plea to each offence on 3 February 2003. Accordingly the Court is required to determine the appropriate penalty for each offence.

The offences 5 Section 35(2) of the Dangerous Goods Act provides:- s 35(2) A person must not employ, engage or permit another person to drive a vehicle transporting dangerous goods by road or rail if the other person is required by the regulations to be licensed to drive the vehicle and is not so licensed. Maximum penalty: $50,000 or imprisonment for 2 years, or both, for an individual or $250,000 for a body corporate.

Part 18 of the Dangerous Goods Regulations provides for the licensing requirements of drivers engaged to transport dangerous goods by road. Clause 18.4 of the Dangerous Goods Regulations provides:- 18.4(1) If a person drives a vehicle transporting dangerous goods by road in bulk, the vehicle must be licensed under this Part to transport the goods.

(2) If a person drives a vehicle transporting dangerous goods by road in bulk, the person must be licensed under this Part to drive the vehicle.

Clause 18.4 of the Dangerous Goods Regulations applies in circumstances where dangerous goods in bulk are transported on a vehicle by road, in IBCs, the total capacity of which is more than 3000 litres and the IBCs were not filled or emptied on the vehicle: see cl 18.1 of the Dangerous Goods Regulations.

6 The relevant person who was employed by the defendant and who drove the vehicle to transport the dangerous goods was Justin Andrew Barrett. The dangerous goods are identified as an insecticide known as Farmoz Electra® 225 ("Electra 225") the active ingredient of which is methomyl. Electra 225 is classified as Class 3 Dangerous Goods (flammable liquid) with subsidiary risk 6.1 toxic (see Australian Dangerous Goods Code for the Transport of Dangerous Goods by Road and Rail, 6th ed ("the Dangerous Goods Code")). 7 The offence pursuant to s 120 of the POEO Act is one of strict liability: see Woodward (for and on behalf of the State Pollution Control Commission of New South Wales) v Cleary Brothers (Bombo) Pty Ltd (1984) 54 LGRA 409 per Cripps J at 413; Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 per Lloyd J at par 36. Section 120(1) of the POEO Act states:- s 120(1) A person who pollutes any waters is guilty of an offence.

The pollutant identified in the summons is the insecticide Electra 225. The relevant polluted waters are identified as an open canal that flowed to Prospect Creek ("the creek") near Wetherill Park and downstream thereof. The defendant's operations and background 8 The defendant operates a transport business based in Orange known as Hopley's Transport. The defendant owns one third of the business and the defendant's parents own the remaining share. The defendant's business is engaged in frequent transport of goods between Orange and Sydney. The defendant has an arrangement with a Sydney courier company named Ricko's Express Courier Service Pty Ltd ("Ricko's") to use its premises at Arnott Place, Wetherill Park as a temporary storage facility. 9 Hopley's Transport was engaged by Farmoz Pty Ltd ("Farmoz") on 5 February 2002 to transport its products. Farmoz develops, manufactures and distributes pesticides and fertilizers. On 30 January 2002 the Logistics Manager of Farmoz, Mr Robert Kalf, received an order for Electra 225 through its Adelaide agent Wilchem Pty Ltd. The order was to be sent to Menindee, New South Wales which is 100km east of Broken Hill. Farmoz did not have the stock and arranged Autopak Formulation Pty Ltd ("Autopak") to fill the order. Autopak manufactures Electra 225 at its premises in St Marys, New South Wales. Mr Kalf arranged for Hopley's Transport to collect the order from Autopak and to transport it to Menindee. Facts surrounding the offences 10 Mr Barrett testified that on Friday 8 February 2002 he received instructions via radio from the defendant while driving through the Blue Mountains from Orange to Sydney to collect a consignment of chemicals from Autopak's premises and to take the load to Ricko's. 11 Mr Barrett arrived at Autopak and saw the dangerous goods labels on 4 intermediate bulk containers ("IBCs") containing the order of Electra 225. Each IBC holds 1000 litres. Accordingly Pt 18 of the Dangerous Goods Regulations applies, that is dangerous goods exceeding a volume of 3000 litres must be transported by a licensed driver: see cl 18.1 and cl 18.4 of the Dangerous Goods Regulations. 12 Mr Barrett testified that he realised that the consignment comprised dangerous goods which required a driver to be licensed to transport such goods. Mr Barrett said that he telephoned the defendant from St Marys to inform him that he did not hold a current licence to transport dangerous goods. Mr Barrett testified that he made a second telephone call to the defendant to inform him that he did not have the correct placards to mark the vehicle as one which was carrying dangerous goods, as required by Pt 7 of the Dangerous Goods Regulations and chapter 7 of the Dangerous Goods Code. The defendant allegedly told Mr Bennett to find some placards in Autopak's dispatch. 13 The defendant does not recall such conversations taking place, which is inconsistent with the statement the defendant provided to the prosecutor's investigators on 6 March 2002. Additionally the defendant testified that if dangerous goods are loaded the usual practice for drivers is to ask dispatch for the correct stickers to mark the vehicle as one which is transporting dangerous goods. 14 Pursuant to the defendant's instructions Mr Barrett loaded the consignment and conveyed it from St Marys to Wetherill Park. Mr Barrett arrived at Ricko's and parked the vehicle outside the premises which is located at the top end of a steep incline of a cul-de-sac. The defendant had instructed Mr Barrett to use a forklift to unload the 4 IBCs believing that Mr Barrett was licensed to drive a forklift. In fact no such licence was held by Mr Barrett. 15 Mr Barrett located a forklift which had extension arms attached to the forklift tynes to allow deeper loads to be carried. Mr Barrett could not remove the extension arms and proceeded to unload the IBCs but experienced difficulty in positioning the extension arms under the first IBC ("the IBC"). The extension arms wobbled when the IBC was lifted from the truck, fell from the forklift, struck the ground and split open. Electra 225 flowed from the IBC down the cul-de-sac, into the gutter and into a side entry to the stormwater system. The stormwater system flows to the creek. 16 Mr Barrett attempted to lift the IBC on its side to prevent further discharge of Electra 225. Employees of Ricko's immediately came to assist Mr Barrett. Once the IBC was able to be placed upright, it was found that only a small amount of Electra 225 remained in the IBC. 17 Mr Jansen, Ricko's Operations Manager, was unaware of the contents in the IBC. Believing that the substance was acid Mr Jansen ordered another Ricko's employee to use the fire hose to wash the Electra 225 off Mr Barrett and themselves, and additionally from the forklift. Such water flowed the same path of the spilt Electra 225 into the stormwater system. 18 Mr Jansen and Mr Barrett then made a series of telephone calls to obtain advice. Mr Jansen telephoned the defendant and informed him of the incident. The defendant left urgent messages at Fazmoz and Autopak to advise them of the chemical spill. The defendant then called the New South Wales Fire Brigade, Hazmat (the Hazardous Materials division of the New South Wales Fire Brigade) and the prosecutor. 19 Officers of the New South Wales Fire Brigade, Hazmat, the local council and the prosecutor came to Ricko's in response to the telephone calls and discussed the possibilities of blocking the stormwater system to prevent the spilt Electra 225 from discharging into the creek. It began to rain and then a violent storm broke. Following the storm it was decided by such officers that the spilt Electra 225 would have been flushed into the creek.

Environmental damage 20 As a result of the spill of the Electra 225 in Arnott Place on 8 February 2002 most, if not all, fish present in the creek died in the ensuing 10 day period. The quantity of aquatic life that died was 3.4 tonnes which included eels, carp, native gudgeons, mosquito fish, brim and several mullet species. The fish kill extended from the Davis Road channel to approximately Ramsey Street Carramar, a distance of approximately 9km. In addition, it is likely that other aquatic insect life, as well as crustaceans were more adversely affected than fish life. 21 Before the discharge occurred the creek was a stressed aquatic system, collecting urban catchment and containing diffuse pollutant inflow. Accordingly the creek is not to be compared with the waters of a pristine creek: see State Pollution Control Commission v White Wings Limited (Bignold J, Land and Environment Court, 1 November 1991, unreported) at p 4; Environment Protection Authority v Rail Infrastructure Corporation (2002) 119 LGERA 409 at p 420; Environment Protection Authority v Ecolab Pty Limited (2002) 123 LGERA 269 at p 273. 22 It is agreed that the ongoing toxic effects due to methomyl would have remained in the creek for about four weeks after the incident and thereafter there would have been no detectable trace of methomyl in the waters nor near the banks. It is extremely unlikely there were any continuing adverse effects after such period. The Dangerous Goods Act offence: submissions and evidence

23 The primary issue between the parties relating to the offence against s 35(2) of the Dangerous Goods Act relates to whether the defendant knew that Mr Barrett did not hold a dangerous goods licence. 24 The defendant employed Mr Barrett as a driver in late January 2002. Mr Barrett had previously held a licence to transport dangerous goods under cl 18.4 of the Dangerous Goods Regulations but it had already expired when his employment began with Hopley's Transport. Accordingly he did not hold a current licence on 8 February 2002. Mr Barrett testified that prior to the commencement of his employment with Hopley's Transport he had informed the defendant that his dangerous goods licence had expired. Mr Barrett had made inquiries for the renewal of his licence but could not attend the relevant training. The defendant testified that he does not recall such conversation, and assumed that Mr Barrett had the correct dangerous goods licence. 25 In cross-examination the prosecutor took the defendant to the following paragraphs of Exhibit D, a record of interview between the defendant and two officers of the prosecutor dated 27 February 2002 ("the record of interview"). The defendant provided the answer to the following question:-

Q 206 And he has said that as soon as he started the job that he advised you that his licence had lapsed. Do you recall him saying that? A I remember us talking about it and I knew that Justin had a licence. Justin may well have said to me, and he probably did. I was pretty much on the - on the thought that, yes, he - he had a licence. I knew he had a licence, I knew he'd been handling dangerous goods and bulk stuff before. There's every possibility he has told me that and - I don't know, just maybe in my blindness I've over - I've - he said it to me but I haven't heard it, if that sort of sounds right. The defendant was also reminded by the prosecutor of his following statements set out in the first paragraph on p 45 of the record of interview :- A …Just another thing if I may add there, in regards to Fred picking that up on Thursday, if I had've known in my own mind that Justin didn't have a licence - I mean, as I said before, he's probably told me that he didn't have it and it's just one of them things I overlooked, because I knew he had a licence - if I had've known point blank then Fred would've been down there to pick that up on Thursday. It was not something I went out to purposely do and do wrong. I thought I was doing the right thing by making it on the Friday. As I've said, Fred didn't like bloody Sydney, and he doesn't like Sydney - everyone for their own - but I wouldn't have purposely made Justin go down and pick it up if I had've known and point blank known, "Dick, I haven't got a licence," And as I said, he probably - he told me that but it's just one of them oversights. 26 The defendant testified that he did not intend to convey that Mr Barrett may have told him that he had a dangerous goods licence. Rather, he said that he was trying to be fair because he could not remember. However the defendant conceded that it was probable that when Mr Barrett told the defendant that he did not have a licence "it went in one ear and out the other". 27 The prosecutor submits that the defendant instructed Mr Barrett to transport the Electra 225 despite the defendant's knowledge that Mr Barrett did not hold the correct dangerous goods licence because the defendant had a large amount of product to transport on 8 February 2002. The defendant testified that Hopley's Transport was very busy at the time of the offence but he denied the business was understaffed. The defendant further testified that assuming it was true that Mr Barrett had called him on 8 February 2002 to inform him that the load at Autopak was dangerous goods, he would have organised another driver to transport such load. The defendant stated that Hopley's Transport had about 8 to 10 drivers holding dangerous goods licences in February 2002.

28 The prosecutor submits that the severity of the penalty imposed by the Court for an offence against s 35(2) of the Dangerous Goods Act is dependent upon the Court's acceptance of Mr Barrett's evidence. 29 The defendant submits that breach of s 35(2) of the Dangerous Goods Act did not lead itself to harm or damage of the environment, but was caused by Mr Barrett's use of the forklift to lift the IBC from the truck.

Findings of the offence against the Dangerous Goods Act

30 With respect to the charge pursuant to s 35(2) of the Dangerous Goods Act, the Court finds that Mr Barrett informed the defendant that he did not have a licence to transport dangerous goods. Mr Barrett's evidence was unequivocal, and the Court prefers his version of the events. Whether the defendant had forgotten such conversation or whether he was simply careless when instructing Mr Barrett to drive the vehicle is immaterial because of the plea of guilty. The Court notes Mr Hopley's excuse that he was very busy at this period. In view of the potentially disastrous consequences of permitting a person who has no licence to transport dangerous goods, the Court regards Mr Hopley's explanation as inadequate. 31 The Court also finds that the evidence of Mr Barrett is more reliable than the vague and conflicting evidence provided by the defendant concerning the disputed telephone calls. The Court finds that Mr Barrett did make telephone calls to Mr Hopley from the truck's mobile telephone to inform the defendant that the consignment comprised dangerous goods and of the absence of placards. Mr Barrett's testimony is adverse to the defendant's interest but the Court is satisfied beyond reasonable doubt that Mr Barrett's interpretation of the events surrounding the incident is accurate and will take those facts into account when deciding the sentence to impose: R v Storey [1998] 1 VR 359 at p 369 confirmed in The Queen v Olbrich (1999) 199 CLR 270 at p 281. 32 The maximum penalty for the offence as charged is $50,000 or imprisonment for two years, or both. The maximum penalty thus reflects the public expression by the Legislature of the seriousness of the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 per Kirby P (as he then was) at p 698. The Court is satisfied that the defendant paid scant regard to the requirements of the Dangerous Goods Act, and was grossly careless in his observation of the statutory requirements of such Act. It is inappropriate in these circumstances to make an order pursuant to s 10 of Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). Offence against s 120(1) of the POEO Act 33 The Court must consider the matters stipulated in s 241 of the POEO Act when sentencing the defendant for an offence against s 120 of the POEO Act. 34 The Court is required to consider the extent of the environmental pollution pursuant to s 241(1)(a) of the POEO Act. The harm to the environment was serious but short term as already discussed. 35 The Court must consider "the practical measures that may be taken to prevent, control, abate or mitigate" the environmental harm as provided by s 241(1)(b) of the POEO Act. The commission of the offence resulted from Mr Barrett's negligent driving of the forklift. The most obvious practical measure the defendant could have taken was to require the driver to be licensed to drive a forklift. 36 Section 241(1)(c) of the POEO Act requires the Court to consider the extent the defendant could "reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence". The defendant was aware of the procedure for unloading goods at Ricko's on street level. It was reasonably foreseeable that an IBC could be dropped during unloading operations and rupture causing the substance to discharge into the street resulting in actual or likely harm to the environment. 37 Pursuant to s 241(1)(d) of the POEO Act the Court must determine the extent to which the defendant "had control over the causes that gave rise to the offence". Mr Barrett was instructed by the defendant to take the consignment and unload it at Wetherill Park and accordingly was acting upon the defendant's instructions when the offence occurred. The defendant had control over the offence to this extent. The Court acknowledges that the defendant was not directly involved in the commission of this offence, was not present and was unaware of the circumstances which lead the IBC to fall from the forklift. Nevertheless, in Tiger Nominees Pty Ltd v State Pollution Control Commission; Kristim Nominees Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 715 Gleeson CJ (as he then was) held that vicarious liability is applicable to strict liability pollution offences. His Honour stated at p 720:- However, in my view the effective fulfilment of the statutory purpose requires that employers be regarded as potentially vicariously responsible for the acts of their employees.

Vicarious liability only arises where the employee was acting within the scope of his or her employment. Mr Barrett is acknowledged to be so acting in respect of this offence: Tiger Nominees at p 721. 38 Section 241(1)(e) of the POEO Act is not relevant to these proceedings.

Other sentencing considerations 39 The Court notes the purposes of sentencing an offender as provided in s 3A of the Sentencing Procedure Act. In particular a sentence should contain an element to deter others from committing a similar offence (s 3A(b) of the Sentencing Procedure Act), to denounce the conduct of the defendant (s 3A(f) of the Sentencing Procedure Act) and to acknowledge the harm to the environment and the community (s 3A(g) of the Sentencing Procedure Act). 40 In determining the appropriate sentence the Court takes into account the following mitigating factors pursuant to s 21A(3) of the Sentencing Procedure Act.

Good character 41 The Court must determine whether the defendant is "of otherwise good character" and if established take such consideration into account as a mitigating factor in the sentencing process: see Ryan v The Queen (2001) 206 CLR 267 per McHugh J at p 275 and 278. The extent of considering an offender's good character depends on all the circumstances. Counsel for the defendant submitted that the defendant has no prior convictions and has been successfully operating Hopley's Transport since 1963. The prosecutor also submitted that the Court should give favourable weight to the defendant's good character. Accordingly the penalty will be mitigated pursuant to s 21A(3)(f) of the Sentencing Procedure Act. Plea of guilty 42 The Court must take into account that the defendant pleaded guilty and may impose a lesser penalty due to such plea: s 22 and s 21A(3)(k) of the Sentencing Procedure Act. The defendant entered an early plea of guilty which reflects genuine remorse and contrition and has been beneficial from an utilitarian perspective by reducing party and Court costs: see R v Thomson; R v Houlton (2000) 49 NSWLR 383 at p 416-417; Cameron v R (2002) 76 ALJR 382; R v Sharma (2002) 54 NSWLR 301. The defendant is therefore entitled to a discount of the penalty that might have otherwise been imposed. Defendant's co-operation

43 The defendant co-operated with investigating authorities and volunteered to participate in two interviews with officers of the prosecutor. The sentence imposed will be mitigated in recognition of such co-operation: s 21A(3)(m) and s 23 of the Sentencing Procedure Act. General and specific deterrence 44 The defendant has introduced new employment practices at Hopley's Transport following the incident. Drivers are required to provide a declaration providing details of licences held by them and a photocopy of the relevant licences is made. It is apparent that the defendant has made such changes to ensure that unlicensed drivers are not engaged to transport dangerous goods. Accordingly the penalty imposed will not need to reflect specific deterrence. However, penalties for pollution offences should be adequate to operate as a general deterrent. In Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Mahoney JA in the New South Wales Court of Criminal Appeal said at p 359:- In the end, the object of the legislation is to prevent pollution and to do this, inter alia, by the deterrent effect of a substantial fine and by, in consequence, persuading the industries concerned to adopt preventative measures. The penalty imposed will reflect the sentencing principle of general deterrence.

The Court notes that the defendant conducts the business in partnership with his elderly parents who own two thirds of the business. Evidence has been produced of the existing indebtedness of the business. Section 6 of the Fines Act 1996 requires the Court to consider the defendant's means to pay. The business conducted by the defendant is trading and is producing income. Although it has borrowings, the Court considers that the appropriate penalty is a monetary penalty, as determined hereunder.

Penalty 45 The Court notes that the two charges have been heard together and that the defendant has pleaded guilty to both. The Court has considered the totality principle as discussed in Camilleri at p 703 and as discussed more recently in the High Court of Australia in Mill v The Queen (1988) 166 CLR 59 and in Pearce v The Queen (1998) 194 CLR 610. The totality principle has no application in this instance as the two offences do not contain common elements. No further reduction in penalty is warranted. 46 The Court determines that the offence against s 35(2) of the Dangerous Goods Act should attract the penalty of $25,000. The Court will grant a discount in respect of the plea of guilty, thereby reducing the fine to $15,000. 47 With respect to the charge of polluting waters under s 120 of the POEO Act the maximum penalty for an individual is $120,000 (see s 123 of the POEO Act). The Court considers that the appropriate penalty is $25,000 which will be reduced to $20,000.

The defendant is convicted as charged of the offence under s 35(2) of the Road and Rail Transport (Dangerous Goods) Act 1997 and is fined the sum of $15,000;

The defendant is convicted as charged of the offence under s 120(1) of the Protection of the Environment Operations Act 1997 and is fined the sum of $20,000;

The defendant is to pay the prosecutor's costs in such sum as agreed or otherwise assessed in accordance with the regulation made pursuant to the Land and Environment Court Act 1979;

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

(1993) 113 LGERA 357

(2002) 123 LGERA 269

(2002) 119 LGERA 409

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Cases Cited (13)