Quinlan v R

Court of Criminal Appeal (NSW)|2021-02-24|Before: Leeming JA, Harrison J, Adamson J

Judgment

LEEMING JA: I agree with Harrison J.
HARRISON J: Kalaveti Quinlan seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the sentence imposed upon him on 19 October 2018 by Judge Syme in the District Court following a plea of guilty to three counts of robbery whilst armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900. At the time of sentencing, two further offences of being carried in a conveyance without the consent of the owner under s 154A(1)(b) were separately included on Forms 1 attaching to the first and third counts.
The maximum penalty for an offence under s 97(2) is 25 years imprisonment. There is no standard non-parole period. The maximum penalty for an offence under s 154A is 5 years imprisonment.
Mr Quinlan was sentenced to an aggregate term of 12 years imprisonment commencing on 15 December 2014 with a non-parole period of 8 years and 3 months expiring on 14 March 2023. Her Honour nominated indicative sentences of 9 years and 6 months for each of the armed robbery offences.
It is accepted by the Crown, by analogy with reasons given in Nabalarua v R [2020] NSWCCA 68, that it would be open to this Court to find that her Honour erred in sentencing Mr Quinlan, that his appeal should be allowed and that he should be re-sentenced.

Count 1 - East Hills Hotel, East Hills

At 11am on 24 November 2014, Mr Quinlan and his co-offenders, Ralph Quinlan and Ralph Nabalarua, arrived at the East Hills Hotel in a stolen vehicle. Two of them, wearing balaclavas, gloves and long-sleeved hooded tops, entered the hotel armed with shortened firearms. The third offender remained in the driver's seat of the getaway vehicle. The identity of the driver could not be established.
The hotel was trading at the time and there were staff and patrons inside. One of the offenders approached a witness and pointed a sawn-off .22 calibre rifle at his chest from about one metre away, telling him to get on the ground. Another witness was made to lie face down on the floor.
One of the offenders approached the manager and forced him to open two safes at gun point. This offender pointed a rifle at the manager's head and yelled "hurry up or I will fuckin' shoot you in the head" and "do you want to see your family again, 'cause I will put one right between your eyes". The manager described the gun that was pointed at him as "heavily rusted" and "a muzzle loading rifle possibly a .22 calibre". It was referred to as a "small bush rifle".
The three offenders left in the stolen vehicle. The manager pursued them in his own vehicle, following them to a block of flats. He called the police, but the offenders left the area in a second vehicle. Approximately $29,570 was stolen during the offence.

Count 2 - Napoleon Inn, Riverwood

At about 11.45pm on 11 December 2014, the same three men arrived in a vehicle and parked near the Napoleon Inn at Riverwood. Once again, the Crown was unable to say who was driving. Two of the men got out of the car and entered the hotel. They were disguised as before. Both men were armed with shortened firearms.
These men confronted staff with the firearms. One of the staff called in the manager. The manager and staff were directed to empty the safe of the hotel. One of the offenders said, "in the office, I want the money now. I've got three guys here covering the place. Don't try anything". Staff members then opened the safe and placed its cash contents inside a green duffle bag. The men then directed staff to open an ATM and five or six poker machines. One of the men held a short gun and had the security guard and two patrons lying on the ground.
After all the cash was removed, one of the men told the staff to lie face down. The men then left, returning to the car before driving away. Approximately $24,120 was stolen.

Count 3 - PJ's Irish Pub, Enfield

At about 10pm on 15 December 2014, police conducting surveillance followed a grey Mitsubishi Outlander to Mr Nabalarua's home in Punchbowl. The vehicle, with three people in it, then drove to Liverpool Road in Enfield. One of the three men left the vehicle and entered a Toyota Corolla that had been stolen on 8 December 2014. The Corolla then met up with the Outlander and the two remaining men entered the Corolla. The Corolla was then driven to P J Gallagher's Irish Pub on Coronation Road in Enfield.
Two of the men entered the hotel. The third remained in the vehicle. Once again, the Crown is unable to say which of the three men remained in the vehicle. The offenders who entered the hotel were armed with shortened firearms, which they pointed at the security guard and manager. Both men were wearing similar clothing as before, including balaclavas, to conceal their identities.
One of the men instructed the security guard to take his dog outside, cocking his gun as he did so. They demanded that the safe, the ATM and the bar tills be emptied. At one point one of the men said to the manager, "[i]f you don't hurry up I'm going to put a bullet in your leg". As they left, one of the men pointed a gun at the manager's face and told him, "Don't look at the number plates". Approximately $40,750 was stolen. Mr Quinlan, Mr Nabalarua and Ralph Quinlan were each convicted of this offence.
The three men left the scene in the stolen Corolla. They drove to Portland Street, Enfield where two of them got out of the Corolla and into the Outlander. The Corolla was later found abandoned elsewhere in Enfield. The Outlander was followed to a laneway behind a small block of units in Campsie. Mr Quinlan was seen to walk back from a house in Duke Street, opposite the units, before getting back into the Outlander and driving off. He was stopped by police and arrested. Police found various items in the vehicle including three homemade balaclavas and three pairs of gloves.
Police entered the premises in Duke Street and arrested the co-offenders Ralph Nabalarua and Ralph Quinlan. The police recovered from these premises $38,000 in cash, balaclavas, a .22 calibre sawn off rifle, a loaded pump action .22 calibre firearm with black tape on the handle, as well as an additional .22 calibre ammunition.

Grounds of appeal

Mr Quinlan relies upon three grounds of appeal. They are as follows: Ground 1: Her Honour erred by finding that the offences were all committed whilst one of the offenders was armed with pump action rifle with a sawn off stock. Ground 2: The sentencing exercise miscarried because the applicant was denied procedural fairness by her Honour taking into account evidence that was tendered only in relation to Ralph Quinlan at his trial when the applicant has not expressly or implicitly agreed that he be sentenced in relation to anything other than the Agreed Facts. Ground 3: The applicant has been left with a justifiable sense of grievance given the sentence imposed upon Ralph Nabalarua by the Court of Criminal Appeal.
In Mr Nabalarua's appeal against his sentence, this Court upheld similar grounds of appeal, agreeing that her Honour erred in the process of her fact finding, thereby affecting her assessment of the objective criminality of the offences and that in doing so she denied Mr Nabalarua procedural fairness: see Nabalarua v R [2020] NSWCCA 68 at [31]. For example, the Agreed Facts only referred to the offenders carrying two sawn off shotguns, described either as .22 calibre or as a small bush rifle. There was no mention in the Agreed Facts of "a pump action rifle with a sawn off stock", to which her Honour erroneously referred in her sentencing remarks. Such a rifle was found in the search of the Duke Street premises and her Honour appears mistakenly to have drawn upon evidence in Ralph Quinlan's trial to find that as a fact.
In Nabalarua v R, Beech-Jones J came relevantly to the following conclusions at [39] and [40]: "[39] So far as the facts of the offending are concerned, counsel for the applicant made it clear that he was relying on the agreed facts. There was no express or implicit agreement or order that the material adduced during the trial of Ralph Quinlan concerning the circumstances of the offences was available to be used to supplement, much less contradict, the agreed facts in the applicant's case. If there had been, then procedural fairness would have required that the material relied on be identified and counsel for the applicant be given a reasonable opportunity to address it… [40] In its written submissions the Crown contended that, if the Court were to conclude that the sentencing judge erred in not explicitly limiting the finding that the guns used in the robberies were in working order to those used by Ralph Quinlan, then the ground should still be dismissed because it had not been demonstrated that the error had the capacity to affect the exercise of the sentencing discretion in the sense discussed by Basten JA in Newman (a pseudonym) v R [2019] NSWCCA 157 ('Newman'). It follows from the above that the relevant error was not confined to the finding that both guns were in working order but also to the finding that both guns contained ammunition and one was a pump action rifle. In any event, in Newman, Basten JA (with whom Hamill and Lonergan JJ agreed) concluded that an error was 'material', in the sense of invalidating the exercise of the discretion, if it had the 'capacity to influence the sentence' as opposed to demonstrating that it had an 'actual effect on the sentence imposed' (Newman at [11]; citing Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; 'Kentwell'). In this case, I am doubtful that the differences between her Honour's findings about the rifles used on the robberies in fact affected the sentence that was imposed. Equally, and critically, I am satisfied that they had the capacity to affect the sentence imposed. A finding that sawn-off shotguns, one of which was pump action, that were in working order and loaded with ammunition were used in a series of robberies is capable of causing the robberies to be characterised more severely than a simple finding that sawn-off shotguns were used where nothing was known about whether they worked and were loaded. That conclusion is sufficient to make the errors relevantly 'material' such that they are not 'warranted in law' (Kentwell at [42])."
As I have already noted, the Crown accepts at least that the errors articulated in Grounds 1 and 2 afflict the sentence imposed upon Mr Quinlan and that it would be open to this Court to proceed to re-sentence him in the circumstances. I agree.

Subjective circumstances

Mr Quinlan has had an unfortunate and difficult background. He was born in March 1991 in Port Macquarie, the only child of his parents. His father was Fijian. His mother is Aboriginal. His father died when he was only 6 months old, fatally shot in the course of committing a robbery in Sydney. Mr Quinlan's mother later entered into a de facto relationship, and had two more children. Mr Quinlan's stepfather died, his mother remarried and had three more children.
Mr Quinlan lived between his mother in Sydney and his maternal grandparents in Port Macquarie from the age of about five. Mr Quinlan loved his time with his grandparents and did not want to leave. However, his mother wanted him to live with her. As a result, Mr Quinlan was constantly ferried between the two locations and kept changing schools, which was understandably very unsettling for him. He attended several schools. He was ultimately sent to Miriwinni Boarding School at Port Macquarie when he was about 13. Whilst boarding there with other Aboriginal students, Mr Quinlan was sexually abused by a teacher, with long term detrimental effects.
Mr Quinlan was taken out of the school. He later attended Westpoint High School and St Joseph's Regional School in Port Macquarie. His behaviour deteriorated and he became increasingly involved in fights defending himself against racist comments. This abuse has adversely affected his adolescent development and continues to cause intrusive recollections and nightmares.
Mr Quinlan's stepfather was also abusive. Mr Quinlan commenced using illicit drugs at the age of 16. He began to mix with the wrong crowd.
Sam Borenstein, a clinical psychologist, reported on 17 February 2018, that Mr Quinlan suffered from cultural and racial confusion. He identifies with both Fijian and Aboriginal backgrounds. He reported that he came to realise that he had not had a stable childhood or adolescence and felt caught between his grandparents and his mother.
Mr Quinlan reported to Mr Borenstein that leading up to and during the offending he consumed excessive amounts of marijuana, cocaine and heroin, as well as methylamphetamine. Since going to prison, Mr Quinlan has been drug and alcohol free, has been appointed as the delegate to his wing and works as a sweeper. He reported the benefit of being drug free, and expressed guilt and remorse for his actions, particularly the impact upon victims. Mr Quinlan indicated that he aspires to return to his work in landscaping and gardening, and expressed an interest in horticulture.
Mr Borenstein offered the following opinion: "Mr Quinlan requires psychological intervention to address emotional vulnerability, which has its origins in his Aboriginality and associated racial disadvantages reflected in his upbringing. In addition to psychological treatment aimed at assisting Mr Quinlan learn more effective ways of managing breakthrough symptoms of depression, post-traumatic stress, anxiety, and relapse prevention, he would benefit from attending community based programs which will allow him to identify more directly with his Aboriginality aimed at improving self-confidence and resiliency and further assist Mr Quinlan in his resolve to abstain from illicit drug use. Psychological intervention, together with community based programs and drug and alcohol counselling, will mean the likelihood of Mr Quinlan coming before the Courts again will be significantly reduced."
Mr Quinlan's current situation is set forth in an affidavit sworn by him on 22 February 2021 and read without objection in this Court. The matters deposed to by Mr Quinlan are instructive and are relevantly as follows: "3. I am 29 years old and my date of birth is ** March 1991. 4. Since first entering custody, I have achieved and also maintained complete sobriety from alcohol and illicit drugs. 5. Since I have been in custody, I have realised the effect of the substances and the damage that they do to both, individuals and their families. 6. Following my sentencing, I have been actively seeking to participate in programs and courses that will provide me with opportunities to further develop my skills, and also re-introduce me into the community. 7. Currently, I am working as the sweeper in Wing E3, as well as the visits sweeper. Prior to this job, I was the leading hand in the buy ups team at Shortland Correctional Centre where I was working seven days. I enjoy working and I find that it enables me to transition and prepare to be a part of the community again. 8. During my time in custody, I have completed various programs. These programs also enabled me to develop skills that prepare me to be a part of the community again. 9. In 2018, I participated in the 2018 NAIDOC Dance and Celebrations. This has allowed me to foster cultural awareness amongst the indigenous inmates. This also includes learning and teaching dances to other inmates, painting and storytelling. Annexed hereto and marked 'A' is a copy of the completion certificate, dated 17 July 2018. 10. In 2018, I received a certificate for 'Demonstrating a positive attitude with a willingness to participate in a polite and respectful manner' program. This was completed at John Moroney Correctional Centre. Annexed hereto and marked 'B' is a copy of the completion certificate dated 1 November 2018. 11. In 2018, I completed the Health Survival Program at John Moroney Correctional Centre. Annexed hereto and marked 'C' is a copy of the completion certificate dated 30 October 2018. 12. In 2019, I completed the Crystal Meth Anonymous/Narcotics anonymous program. Annexed hereto and marked 'D' is a copy of the completion certificate dated 19 April 2019. 13. In 2019, I completed the Employment Pathways Program. Annexed hereto and marked 'E' is a copy of the completion certificate dated 12 April 2019. 14. In 2019, I completed the Young Adult Satellite Program at Macquarie Correctional Centre. This course focuses on leadership, teambuilding, and teaches maturity to young offenders. Annexed hereto and marked 'F' is a copy of the completion certificate. 15. In 2019, I completed the EQUIPS Foundation Program. Annexed hereto and marked 'G' is a copy of the completion certificate dated 23 July 2019. 16. In 2019, I completed the EQUIPS Addiction Program. Annexed hereto and marked 'H' is a copy of the completion certificate dated 2 October 2019. 17. In 2019, I completed the program 'Working safely, a guide to safe working practices' program at Bathurst Correctional Centre. Annexed hereto and marked 'I' is a copy of the completion certificate dated 4 December 2019. 18. In 2020, I completed the EQUIPS Aggression Program. Annexed hereto and marked 'J' is a copy of the completion certificate dated 24 September 2020. 19. I aim to continue to improve myself whilst in custody and in preparation for my release. I have learnt to understand the effects that my actions have had on those who were involved in these offences. 20. I feel deep regret for my offending and my actions. I understand that during the course of my offending, I have let myself down, let down my family, and let down many members of the community. 21. I feel bad that I am unable to assist my extended family whilst I am in custody. I am also disappointed that I could not support and care for my family members as I was prior to entering custody. 22. I have lost a lot of my close family members to death during my imprisonment including, my maternal grandmother, maternal grandfather, and aunty. This has affected my mental health greatly. In September 2020 I experienced trauma and severe emotional distress to learn that my grandfather, who was like a father to me, had passed away. I received pastoral support from the chaplain who helped me manage my grief and provided me with extensive support services such as grief counselling. 23. Not only have I missed out on spending time with my family members who are now deceased, I have not been able to be there for my partner and daughter. 24. I am deeply sorry for my offending and I would wish to be in a position where I can repay the community one day. 25. I have made many promises to myself to not reoffend and to avoid any acts of violence. I have had a lot of time to reflect, and I never want to return to custody again."
It was not suggested in this Court that Mr Quinlan's evidence should not be accepted.
Mr Quinlan's mother also swore an affidavit dated 21 February 2021, the following paragraphs of which were also read without objection in this Court: "13. Kalaveti is in a de facto relationship with Cara and they both have a nine-year-old daughter… Kalaveti and Cara have been together for more than 10 years and Cara is looking forward to Kalaveti's release from prison, and to be able to work in landscaping and support Cara and their daughter… … 16. During Kalaveti's imprisonment, my sister, mother and father, including Kalaveti's paternal grandfather, have all passed away. Kalaveti was very close to all of them, and he never got to say any goodbyes. … 19. Kalaveti has now been in prison for almost seven years and I am very worried about Kalaveti in prison, as he is finding prison difficult. However, I am happy to learn that he has been drug-free since being imprisoned in 2014."
In her remarks on sentence, her Honour referred to a letter written to her for sentencing purposes by Mr Quinlan in which he describes matters in his background, especially the abuse he suffered when very young and the grief and pain this has caused him as an adult. Her Honour's description, which I respectfully adopt, referred to Mr Quinlan's "chaotic and tragic childhood". I have had particular regard to the matters described by Mr Quinlan in his letter.

Prospects of rehabilitation

When sentencing Mr Quinlan in 2018, her Honour described Mr Quinlan's prospects of rehabilitation as "guarded". Her Honour considered that it was possible to foresee a time when Mr Quinlan's resolution of his drug issues would correspond to the enhancement of those prospects. Her Honour somewhat presciently recommended that Mr Quinlan be given the opportunity of attending the violent offenders' programme and drug relapse programme. In the events that have occurred since then, Mr Quinlan has commendably completed the several courses in custody to which he has referred in his affidavit. These are matters that were not available to her Honour in 2018 and in my opinion considerably enhance Mr Quinlan's chances of successful rehabilitation.
In my view, having regard to the progress that Mr Quinlan has made while in custody, particularly his documented success in overcoming his former disabling drug use, Mr Quinlan's prospects of a successful return to society have significantly increased. I would assess Mr Quinlan's prospects, nearly two and a half years since her Honour's assessments were made, as good.
In expressing that view, I have specifically taken account of the fact that Mr Quinlan has committed some offences while in custody. However, it does not seem to me that these are matters that bear upon the present assessment of Mr Quinlan's rehabilitation prospects. He has been incarcerated now for what I consider to be a significant period. The custodial environment is difficult and challenging for all inmates at the best of times. The conditions under which prisoners are expected and required to survive in close contact with other inmates is not always conducive to calm and peaceful interactions, where the deprivation of liberty and the imposition of restrictions often operate disproportionately to magnify or distort responses to what might otherwise be matters of little importance. Far from reflecting poorly on Mr Quinlan's prospects of a successful return to society, the apparent extent of his forbearance operates in his favour. Moreover, although decisions about parole are not for me to make, his custodial behaviour since 2015 would not appear adversely to affect his eligibility for release on parole when his non-parole period expires.

Special circumstances

When Mr Quinlan was sentenced, her Honour did not significantly adjust the statutory ratio between the parole and non-parole periods. Her Honour's not unreasonable explanation for that decision was a reflection of the length of the period that Mr Quinlan would spend on parole in any event.
Having regard to the time that Mr Quinlan has now spent in custody, and to the conclusions I have formed about the disposition of this appeal, it is on one view arguably not necessary to vary the statutory ratio in any significant respect. However, the insidious nature of drug abuse, and the tragic foundation for Mr Quinlan's original descent into addiction, suggests that a prudent approach to his release on parole would be one that maximises his access to supervision and support. I have adjusted the ratio accordingly.

Deterrence, retribution and punishment

The sentence I consider should be imposed is intended to incorporate the need for these matters to be acknowledged and taken into account.

Pleas of guilty

Mr Quinlan is entitled to a discount of 10 percent for his pleas of guilty. I consider that her Honour's choice of that discount, and her reasons for doing so, was appropriate and remains so.

Objective seriousness

Her Honour expressed the view that the offences were either higher than, or well above, the mid-range of objective seriousness. Her Honour referred to the aggressive nature of the incidents in each case, including the threats of violence directed to employees in the hotels, the degree of planning, including disguises, and the amounts of money involved. Although it may ultimately be a matter of little significance, I would assess the objective seriousness of the offences as either in the mid-range or only slightly above.

Mr Nabalarua

One of Mr Quinlan's co-offenders was Ralph Nabalarua. The sentence imposed upon him by this Court was the subject of Ground 3 in this appeal. Although it has not become necessary specifically to deal with that ground of appeal, the sentence imposed on Mr Nabalarua remains an important and helpful comparator for present purposes. That comparison is helpfully reflected in the following table, extracted form the Crown's written submissions in this appeal: Factor Applicant Nabalarua v R [2020] NSWCCA 68 Charges Robbery whilst armed with a dangerous weapon (x 3) Robbery whilst armed with a dangerous weapon (x 3) (Charges in common in bold) Form 1 - Be carried in a conveyance without consent of owner (x 2) Form 1 (No 1) - Robbery whilst armed with a dangerous weapon (x 1) and be carried in a conveyance without consent of owner (x 1) Form 1 (No 2) - Be carried in a conveyance without consent of owner (x 1) Sentence Aggregate sentence of 12 years imprisonment with a NPP of 8 year 3 month Re-sentenced to an aggregate 11 years 6 months imprisonment with a NPP of 6 year 9 month Discount 10% for guilty pleas 10% for guilty pleas Indicative terms For each, 9 years with 6 year NPP For the first count (with the further s 97(2) offence on a Form 1) - 9 years For each of the remaining counts - 8 years Count 1 - well above midrange Count 1 - well above midrange Objective seriousness Count 2 - higher than midrange Count 2 - higher than midrange Count 3 - well above midrange Count 3 - well above midrange Role Equally culpable with co-offenders (ROS 8.2) Equally culpable with co-offenders (ROS 8.2) Conditional liberty Not applicable Not applicable Criminal record Sentenced to full-time imprisonment for earlier offences of different types Found guilty after trial of armed robbery, attempted armed robbery and be carried in conveyance; sentenced to aggregate 8 years and 6 months with 4 years and 6 month NPP Adjustment of NPP for special circumstances 68.75% 58.7%

There are certainly differences between Mr Quinlan and Mr Nabalarua. For example, their ages and respective criminal histories are different. Mr Boulten SC, who appeared for Mr Quinlan, referred to these differences in terms to suggest that they were, for practical purposes, of no importance. I agree. I consider that the sentence imposed upon Mr Nabalarua is an extremely helpful guide to the assessment of a proper sentence for Mr Quinlan.
In expressing that view, I have not disregarded the Crown's submission that the sentence imposed upon Mr Nabalarua for their common offences was to some extent distorted by the need in this Court to take account of the sentences imposed by her Honour Judge Yehia SC and to accommodate them in the context of considerations of totality. The Crown contended that the sentences imposed upon Mr Nabalarua by this Court are therefore artificially shorter than they might otherwise have been. While I accept the burden of that contention, it is a matter of merely persuasive, rather than absolute, significance. It does not cause me to think that Mr Quinlan and Mr Nabalarua should not be treated similarly in this Court in sentencing for their common or related offences.

Conclusions

In the events that have occurred since Mr Quinlan was sentenced in 2018, he has demonstrated that his prospects of successfully returning to the community have increased. What was foreseeable but uncertain when her Honour sensitively sentenced Mr Quinlan has now become easier to predict with confidence. He continues to have significant family support. He remains in a stable relationship. He is now and has for the period of his incarceration been free of the drug addictions that were at the heart of his offending. It is possible at this remove from the events that gave rise to the charges to have some considerable confidence that his prospects of reoffending have now substantially diminished.
In these circumstances, I consider that the following orders should be made: 1. Grant leave to appeal against sentence. 2. Allow the appeal. 3. Set aside the aggregate sentence imposed upon the applicant by her Honour Syme DCJ on 19 October 2018. 4. In lieu thereof: 1. impose an aggregate sentence of 11 years and 6 months imprisonment commencing on 15 December 2014 and expiring on 14 June 2026 with a non-parole period of 6 years and 9 months expiring on 14 September 2021; 2. pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 indicate to the applicant and record that an aggregate sentence is imposed and that the sentences that would have been imposed for each offence under s 97(2) of the Crimes Act 1900 are those specified in the Schedule hereto. 1. In accordance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), it is noted that the offence for which the applicant is sentenced is one to which the statute applies, with the possibility that he will be detained in custody after the expiry of the sentence in accordance with that statute. Schedule of Indicative Sentences Count 1 - 8 years and 6 months imprisonment Count 2 - 8 years imprisonment Count 3 - 8 years 6 months imprisonment
ADAMSON J: I agree with Harrison J.

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. Decision last updated: 09 March 2021

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