R v Hart

Salient background facts

1. There is no issue that Mr Hart and Mr Hargrave were friends, although the former was somewhat younger than the latter. They both came from hard-working families in the Albury community and each inherited a strong work ethic. Neither had the advantage of particular affluence or a higher education, but both seemed to have been successful in making something of themselves before being gripped by the destructive illicit drug "ice". Both were interested in and good at sports; each was a hard worker; and both, by their early twenties, had achieved a commendable level of success in life. Both had acquired property in the sense that each was paying off a mortgage and had formed a stable relationship. Mr Hargrave had three children and Mr Hart one. Ice eventually deprived both of them of their domestic relationships.
2. Each started using ice for recreational purposes. In its insidious way, both became habituated to it. Each literally took a fatal turn by becoming involved in the distribution and supply of ice in the Albury area. Both had been involved in this on a commercial basis for some time before the shooting occurred. Sometimes they collaborated on deals and sometimes they operated separately. Although they remained friends, their involvement in this illegal trade lead to financial tensions and other disagreements between them. The evidence established to my satisfaction, beyond reasonable doubt, that Mr Hart developed a degree of resentment against Mr Hargrave because of the latter's botched attempt to "cook-up" a batch of ice by cutting it with an inert substance. The resulting product was of very poor quality and did not sell well, leading to customer dissatisfaction and a drug debt to their up-line supplier. This was suggested by the Crown as a possible motive for the shooting.
3. Additionally, Mr Hargrave was strapped for cash to participate in a new deal which was current at the time of the shooting. Mr Hart assisted him in this regard by providing a sum of money in exchange for the black Holden utility owned by Mr Hargrave. I have expressed myself in this stilted language because it's not quite clear to me from the evidence whether the money paid was: an "advance" for which Mr Hart took possession of the ute as security; a part-payment for the vehicle; or the full payment for the vehicle. There was probably a disagreement between them about this which was another source of resentment between them. It was said by the Crown to provide an additional motive for the shooting because Mr Hargrave was reluctant to hand the registration papers over to Mr Hart. The particulars to sequence 6 assert that the ute is the property of Mr Hargrave, a question about which minds may well differ given this transaction. That the subject property belongs to another, even if jointly with the accused, is an element of the offence under s 195 Crimes Act 1900 (NSW). By his plea of guilty, Mr Hart is taken to have admitted all the necessary elements of the offence and I will proceed on the basis that the ute still belonged to Mr Hargrave.
4. In any event, as at 29 October 2013, both had a financial stake in the attempt to purchase a quantity of drugs in Sydney for distribution in Albury. The drugs were to be purchased through an Asian crime gang with whom Mr Hargrave had made some contact. Mr Hargrave had facilitated payment for the drugs by electronic fund transfer to a nominated TAB account. A friend of Mr Hargrave, also known to Mr Hart, was sent to Sydney to collect the drugs but had become incommunicado. This was a great source of anxiety, particularly to Mr Hargrave, but probably to them both. This may have been a further source of friction between them. Repeated anxious attempts were made by Mr Hargrave to contact his friend in Sydney in the hours leading up to his death, but to no avail. As events occurred, the friend in Sydney was out of his depth and unable to close the deal.

Illicit drug use, paranoid and delusional thinking

1. I am satisfied on the balance of probabilities, that for weeks, if not months, before 29 October 2013, Mr Hart was suffering from a substance induced mental disorder due, in particular, to his ice habit. Evidence at the trial was given by two consultant forensic psychiatrists, Dr Anna Farrar for the defence and Dr Yvonne Skinner for the prosecution. They differed about the diagnosis. Dr Farrar was of the view that Mr Hart suffered from a substance induced psychotic disorder, whereas Dr Skinner proffered the alternative diagnosis of stimulant or substance use disorder. It emerged from the course of the evidence that despite this both agreed that Mr Hart's condition was a recognised psychiatric condition. Both also agreed his condition caused a significant impairment of his social, occupational and other important activities of daily life. Both agreed that it gave rise to psychotic symptoms. Dr Farrar's view seemed to be that they were the most prominent characteristic of the condition. Dr Skinner thought them episodic. But there is no doubt that they both accepted that he had significant clinical paranoia and developed a delusional belief system. His paranoia and delusions centred on the belief that he was under physical and electronic surveillance by the police. These beliefs extended to the conviction that cameras had been placed by police in the ceiling of his home and in the home of a neighbour across the street to watch his activities. He also believed that midgets were in the roof cavity of his home watching him on behalf of the police and that drones were in the air watching his movements and activities.
2. I interpolate that the activities of people involved in the drug trade may well be monitored by police, including electronically. It is commonplace that much of the evidence in drug trials consists of recordings of lawfully intercepted telephone conversations of the persons involved. Moreover, footage obtained through optical surveillance is often tendered. There is no evidence, however, that such surveillance was in fact being carried out of Mr Hart or of Mr Hargrave. Both psychiatrists accepted that his beliefs in that regard were delusional and clinically paranoid. Mr Hart also suffered from auditory hallucinations, but these were not very prominent; did not involve distinct voices; and were not of the type commanding him to act in certain ways.
3. More importantly, the lay evidence clearly established, as the psychiatrists accepted, that over the weeks and months leading up to 29 October, there was a noticeable deterioration in Mr Hart's functioning in the activities of daily life. His relationship with his partner had broken down and he was seeing other women, including sex workers. His occupational functioning went from being a valued employee to him not showing up for work. His paranoia was such that he heavily padlocked the gates to his home and reinforced the shed from where, I infer, he conducted his drug business. He installed CCTV cameras of his own.
4. One of the related offences (H54103023) provides an obvious and bizarre example of Mr Hart's paranoid and deluded thinking. Sometime between 16 and 18 October 2013, Mr Hart broke into the then unoccupied dwelling directly across the street looking for the surveillance cameras he was sure had been placed there to watch him. During his search, he attempted to gain access to the roof cavity, damaged a skylight, and knocked a hole in a wall. He also knocked holes in the ceiling of his own home in the time leading up to the shooting, searching for the surveillance cameras he thought were there. He told friends about the midgets he believed were carrying out surveillance in his roof and purported to film them with his mobile phone. He showed them this blank recording.
5. I am satisfied on the balance of probabilities that these matters are examples of clinically significant paranoid and delusional thinking. There are many other such matters detailed in the evidence that was lead at trial which it is unnecessary to record here.

Opinion and diagnosis by psychiatrists on abnormality of mind

1. Dr Skinner was of the opinion that the stimulant use disorder which she diagnosed was "certainly" affecting Mr Hart's employment, relationship with his partner and his relationships with other people who were once close friends. It was affecting his day-to-day functioning (740.34T). She accepted that he also suffered from a substance induced psychotic disorder, the symptoms of which fluctuated in intensity (786.20 - 40T). Dr Skinner accepted that his condition was an underlying condition giving rise to an abnormality of mind capable of substantially impairing Mr Hart's capacity to understand events, judge right from wrong, and control himself. But in her opinion, whether his capacity in those regards was affected at the time of the shooting depended upon whether he was actually deluded at the precise time of the shooting (787.5 - .30T).
2. On Dr Farrer's view, a stimulant use disorder would not give rise to an abnormality of the mind, but the substance induced psychotic disorder would (731T). The latter was, in her opinion, the operative condition. It would have increased Mr Hart's impulsivity or risk taking behaviour and impaired his decision making skills and judgments. She also expressed the view (in the Report of 20 June 2016) that the condition impaired his ability to form a specific intent to kill or inflict grievous bodily harm such as is required as a legal element of the crime of murder. Dr Farrer expressed the opinion that at the time of the shooting Mr Hart: "is no longer able to reality test; he doesn't know what's real and what's not real and as a result his actions are influenced by his delusional beliefs and his perceptions and, therefore, that affects his judgment making capability and his ability to know what's right from wrong essentially." (713.5T)
3. To the extent to which there is a difference between the opinions of Dr Skinner and Dr Farrer as to whether Mr Hart's mental capacities were impaired by abnormality of mind arising from the underlying condition at the time of the shooting, I prefer the evidence of Dr Farrer. Her evidence is more consistent with the jury's verdict of not guilty of murder but guilty of manslaughter. Moreover, the Crown submits, in light of the verdict, that this is the conclusion I should reach. Mr Wilson SC for the accused goes further, submitting that I should accept Dr Farrer's opinion that the underlying condition impaired Mr Hart's capacity to form the specific intent necessary for the crime of murder. Learned Senior Counsel is not raising a defence of mental illness, rather he submits that as a question of fact, in the light of Mr Hart's psychiatric condition, I should find that the Crown could not have proved specific intent beyond reasonable doubt. To determine this, it is necessary to examine the evidence available as to what happened leading up to, and at the time, of the shooting.

Events leading up to the shooting

1. At the outset, it is significant to record my finding that there is no doubt that at the time of the shooting Mr Hart was, quite apart from the effects of the underlying condition, intoxicated by the ice he had smoked frequently that day. The effect of this voluntary intoxication, as opposed to the effect of the underlying condition needs to be put to one side when determining culpability (s 23A(3) Crimes Act 1900 (NSW)).
2. Neither Mr Hargrave nor Mr Hart slept much the night before the shooting: Mr Hargrave because of his anxiety and concern about the arrangements for the Sydney drug deal; and Mr Hart because of his ice-fuelled sex drive, leading him to seek out sex with his then lover, and later with a sex worker. During the day of 29 October 2013, he ended his relationship with his long-time partner, the mother of his son, on ugly terms. Such was the concern of family and friends about his aberrant behaviour that an old friend, a respectable member of the community, was asked by family to speak to him. He saw him twice that day. Once, as he approached the premises, he saw Mr Hart lurking at the premises across the street, still looking for cameras which were not there.
3. On his second visit Mr Hart gave his friend two firearms belonging to his father he had kept. The old friend took them and surrendered them to police. These guns are the subject of related offences: the unauthorised Hammerli self-loading pistol is sequence 3 (H5268252); and the unregistered .22 winchester repeating rifle is sequence 4 (H52681852). I interpolate that an unregistered air rifle was located by police executing a search warrant at Mr Hart's home. This was sequence 5 (H52681852).
4. Mr Hart had been smoking ice at different times during the day. After his second meeting with the old friend, Mr Hart went out attending a retail outlet where he purchased another phone. The shop assistant formed the view that he was drug affected. He also visited a pub consuming 1 mixed drink before heading for Mr Hargrave's place.
5. For some time before 29 October 2013, Mr Hart had taken to carrying a loaded pen gun. He had it with him on 29 October 2013. He had said to others that he had acquired it for protection. Possession of the pen gun, a prohibited firearm, is the subject of sequence 2 (H52681852) another related offence. The evidence is that pen guns are a very basic single-shot firearm usually of crude, home manufacture. They have no safety catch and are fired, usually, by drawing and releasing the spring loaded rear portion of the gun. This generally requires two hands, one to hold the barrel and the second to manipulate the end. But the ballistics evidence was to the effect that it can be done single-handedly, holding the barrel with one's fingers and drawing the firing pin with the thumb. As they are crude weapons it may also be that the application of blunt force to the end of the firing pin would be sufficient to discharge the gun.
6. Mr Hart arrived at Mr Hargrave's home at about 7 pm. They were apparently on good and friendly terms. Mr Hargrave's partner, Ms Lekic invited Mr Hart to join them for dinner which invitation he gratefully accepted. There was no sign of any difficulty between the young men at this time. Ms Lekic was familiar with Mr Hart, knew him to be an ice user and was aware of his symptoms of paranoia. Her impression was that he seemed normal that evening. I infer normal for him. After dinner Mr Hart and Mr Hargrave went for a drive. The men left around 8 pm, attending Mr Hart's home, a bottle shop and a service station. Again, there was no reason to suppose that their interaction during this period was other than amicable.
7. During their absence, Mr Hart had probably shown Mr Hargrave his pen gun, for when they returned to Mr Hargrave's home at about 10:30 pm, Mr Hargrave remarked to the women "look at Cammie's new toy", referring to the pen gun. There was further conversation about pen guns.

What happened in the cinema room

1. From about 10:40 pm, Mr Hargrave and Mr Hart were in a room in Mr Hargrave's home referred to as the cinema room because it contained a home entertainment unit. While they were there, Ms Bromham entered. She had received a phone call from a Mr Quirk who gave evidence at the trial. He seemed to be involved in various criminal activities. On this occasion, Mr Quirk was spruiking the sale of pen guns. Having seen Mr Hart's gun, Mr Hargrave was interested in acquiring one for himself and invited Mr Quirk to ring him, which he did, at about 10:45 pm. They spoke on the telephone for two minutes, presumably about the purchase of a pen gun.
2. After Mr Bromham had left the cinema room following the discussion about Mr Quirk's offer, she heard the door slam and lock. An emphasis was placed upon this circumstance, the inference being that Mr Hart was the person who performed those actions. It was said that something about his intention with regards to Mr Hargrave could be drawn from that circumstance in conjunction with the other circumstances.
3. Mr Hargrave's day job was selling firewood, a business he had pursued for some years prior to 29 October 2013. An acquaintance, Shannon Turnbull, who had welding skills, was going to help him modify a trailer for use in the firewood business. There had been some problem organising a mutual time. Mr Turnbull had telephoned Mr Hargrave at about 8:15 pm and they had spoken for a little over a minute. No arrangements had been made. Mr Turnbull tried to phone Mr Hargrave again at about 10:05 pm., but missed him. Mr Hargrave returned Mr Turnbull's call from the cinema room at 10:45 pm. They spoke about the trailer. The call log prepared by the prosecution (Exhibit T) shows that that call was of 5 minutes and 2 seconds duration.
4. Mr Turnbull gave evidence on 7 July 2016. I infer from what he said that at the time Mr Hargrave was shot, he and Mr Hargrave were involved in a somewhat prosaic discussion about fitting the trailer with a hydraulic ram that Mr Hargrave had to convert its body to a tipper body. At trial, Mr Turnbull gave evidence that he was asking Mr Hargrave about the dimension of the hydraulic ram and cylinder. The conversation continued as follows: "Q. He said, "I don't have the measurements. It will be long enough but," is that right? A. Yes, that sounds correct. Q. You said to him, "How high do you want it to lift up?" And he said, "I don't really know." A. Yes, that's correct. Q. And you said, "High enough for soil or logs to tip or roll out of it," is that right? A. Yes, that's correct. Q. And he said, "High enough for stuff to tip out." A. Yes, that sounds correct. Q. At around about that time you heard a sound, is that right? A. Yes, I'm pretty sure that was at about the time. Q. And how would you describe the sound? A. Like a kitchen cupboard door shutting or a door slamming. Q. Did you hear any other sound after that? A. Not ‑ there was a bit of background noise but nothing significant. Q. Did you continue talking with Luke after that sound? A. Yeah, I kept trying talking. I didn't get any response. Q. Did you get any response from him? A. No, I didn't. Q. Did you say, "Hey Luke, Luke, are you listening to me?" A. Yes, I did. Q. There was no reply? A. No, there wasn't. Q. There was a period of silence, is that right? A. Yes, that's right. Q. How long did that silence go for? A. I think it was, you know, 20 or 30 seconds. Could have been a little bit less, a little bit more. Q. What did you hear after that? A. A girl screaming."
5. From other circumstances I will relate, I would regard the noise "like … a door slamming" as the sound of the discharge of the pen gun. It is clear that Mr Turnbull remained on the phone for a lengthy period. Lay witnesses are notoriously inaccurate in their estimates of time. An estimate of 20 to 30 seconds is a relatively long one. From the call log (Exhibit T) I find that Ms Bromham attempted to ring triple - 0 at 10:50 and 24 seconds pm. It is therefore more likely that Mr Turnbull probably remained on the phone for as long as 2 minutes before it was disconnected. I infer that the shooting occurred at 10:50 pm.
6. Mr Turnbull was cross-examined to suggest that his recollection of the events of 29 October 2013 was not good and should not be accepted by the jury. It was put that he only remembered the details by refreshing his memory from his statement to police and that even when he made this statement his recollection was not good, and was merely the product of him doing the best he could. However, I accept Mr Turnbull's evidence in its entirety. Having seen and heard him give evidence, I formed the impression that in substance, the facts as he relayed them were accurate. Moreover, his account fits in with objective and other evidence which I will now recount. In particular, the time of the call was established by the call log by reference to telephone records. The critical fact is that Mr Hargrave was on the phone to Mr Turnbull talking about the trailer at the time he was shot. This was necessarily inconsistent with some other hypotheses put forward as to what happened.

The immediate aftermath

1. Ms Lekic and Ms Bromham, as would be expected, were distraught when they came across Mr Hargrave in the cinema room. Ms Bromham made two calls to emergency services. Neither of them was able to give much evidence about Mr Hargrave's posture or position when they found him, a matter which assumed some importance, as it was a key circumstance from which an inference about what happened might be drawn.
2. Two friends, talking outside neighbouring premises, who had heard the noise of the shot, saw Mr Hart hurry away and rushed to see what happened and render assistance if necessary. These witnesses were Mr Traveskis and Mr Walker. Their observation, unshaken I thought by cross-examination, was that when they first saw Mr Hargrave he was gripping his mobile telephone in his right hand and his left hand was firmly thrust into the pocket of his shorts. A neurosurgeon, Dr Spittaler, gave evidence about the phenomenon of decerebrate posturing consequent upon an injury to the part of the brain referred to as the pons. In his opinion, it was highly unlikely that Mr Hargrave could have made a voluntary action inserting his left hand into his pocket after being shot. He did accept there might be a short delay before the phenomenon of decerebrate posturing occurred. This made it possible, if his hand was near the pocket at the time of the shooting, that it might force its way into the pocket soon afterwards.
3. This matter is significant particularly in relation to the question of whether the Crown proved the element of specific intent beyond reasonable doubt, and whether it has disproved the possibility that Mr Hart acted in self-defence likewise beyond reasonable doubt. If the hand was not in the pocket at the time of the shooting, it was at least possible that it was pointing the pen gun at Mr Hart immediately prior to a struggle leading to the shooting.
4. In decerebrate posturing, the hand forms a fist with the palms forcing outwards in reaction to the injury to the brain. My understanding is that it is something like tonic-clonic posturing in an epileptic seizure. The Crown argued that given the precise nature of the posturing, it's at least less likely that the hand could have gone into the pocket after the shot was fired. Further there was no gunshot residue on Mr Hargrave's left hand nor inside the left pocket. Gunshot residue was found on the outside of the pocket and it seems to me unlikely that the explanation for its absence from the hand and pocket is that it was wiped off during decerebrate posturing after the shooting, or by police or ambulance officers dislodging the hand whilst rendering aid to Mr Hargrave when they arrived.
5. I recall that Ms Lekic thought that the deceased's arms were by his side when she attended upon him. But I accept the evidence of Mr Traveskis and Mr Walker that Mr Hargrave's hand was in his pocket. They were sober and impartial and although finding the scene they came upon distressing, it was necessary for them to notice this matter because Mr Traveskis was on the phone to emergency services for 9 minutes during which time he was asked to check for a pulse. It was in this context that he noticed the position of Mr Hargrave's left hand.
6. The Crown circumstantial case was put on "a strands in the cable" basis. It was not said that the circumstance that Mr Hargrave's left hand was in his pocket at the time of the shooting was an indispensable intermediate fact requiring proof beyond reasonable doubt. I am nonetheless satisfied beyond reasonable doubt that Mr Hargrave's hand was in his pocket at the time of the shooting. I have drawn upon the evidence of Mr Turnbull, the circumstance that Mr Hargrave was on the phone speaking about a matter unrelated to his dealings with Mr Hart, the evidence of Mr Traveskis and Mr Walker and the explanation provided by Dr Spitaller to arrive at this conclusion.

The various accounts of Mr Hart

1. Mr Hart has given a number of accounts of the events in the cinema room. He was apprehended outside Albury in the early morning of 30 October 2013. As luck would have it, he was outside the residence of some police officers who spoke with him and called on-duty officers to attend. I have watched audio visual recordings of police interviews with Mr Hart at the scene of his arrest, in the police car when he was conveyed to the station, of his formal record of interview and of the forensic procedures carried out on him under the Law Enforcement Powers and Responsibilities Act 2002 (NSW). I formed the very firm view, notwithstanding the "timeout" he was allowed before the commencement of the formal interview, that Mr Hart: continued to be affected by the drugs he had consumed; was probably affected by the symptoms of his underlying condition; was probably anxious as Dr Skinner thought because of the ramifications of the events in which he had been involved; and was aware of the desirability of providing an exculpatory account. This combination of factors renders the accounts he gave to the police entirely unreliable. Depending upon whether you count one version as a mere embellishment of another, or as something different again, there are about seven different versions provided to the police. For the various reasons I have given, I am persuaded that not one of them could be relied upon as being even possibly true and I will put the whole of the accounts made to the police to one side.
2. It is convenient at this conjuncture to record that the final related offence to which Mr Hart is pleaded guilty is an allegation of intentionally or recklessly damaging property under s 195 of the Crimes Act. This appears on court attendance notice 8537853251. It's alleged that as he was being conveyed to a correctional centre from the police station on 30 October 2015 he damaged the seat in the prison van and began jumping on its cushion. He desisted when rebuked by an officer over the loud speaker. The damage involved is estimated at $100.
3. Mr Hart provided an account to his sister, Amanda Cameron twice while in custody. The first occasion was on 9 November 2013. She said "he babbled and mumbled about all different things because he went off with the fairies sometimes" (47.15T). From the psychiatric evidence, I infer that at that time, notwithstanding his abstention from drug use in custody, his thinking would still have been affected by the substance induced mental disorder. Ms Cameron saw him again on 15 and 16 December 2013 at the correctional centre at Long Bay. By then she said he was "much better" (477.35T). This too is consistent with the psychiatric evidence. After abstention for some months, the underlying condition commenced to go into remission. Ms Cameron gave a relatively lengthy account of what her brother told her. It is pertinent to record that Mr Hart told Ms Cameron about his and Mr Hargrave's movements earlier in the evening in terms consistent with the objectively established facts. These details included the telephone conversation with Mr Quirk or a similar account about the offer of a pen gun for sale. The account included Ms Bromham being involved in this discussion, and her leaving the room.
4. Mr Hart told his sister that while Mr Hargrave was on the phone, presumably to Mr Turnbull, Mr Hargrave was holding Mr Hart's pen gun in his left hand. Mr Hart decided to leave, and said he would be back. Mr Hargrave pointed the gun at Mr Hart saying "before you go, put the money on the bed". Initially Mr Hart thought Mr Hargrave was mucking around, but the latter stood up and pointed the pen gun at Mr Hart's head. Mr Hart grabbed Mr Hargrave's elbow bending it back, and tried to wrest the pen gun from him when it discharged, fatally wounding Mr Hargrave. As Mr Hargrave fell, his left hand went into his pocket. Mr Hart told his sister that he panicked and fled the scene. He explained that he set fire to the car with the intention of committing suicide, but got out "after it got too hot" (482.5T).
5. The difficulty I have accepting this account as one that could possibly be true is that when Mr Hart gave evidence in the proceedings on sentence he denied any recollection of the circumstances leading to Mr Hargrave's death. In cross-examination he was asked the following questions: "Q. Just thinking back, this is something that occurred three years ago; right? A. Yes, a long time ago. Q. And you have had plenty of time to think about what happened that night, haven't you, since it happened? A. I think about stuff every day, yes. Q. And you have had plenty of time to think about what happened in the room that night, haven't you? A. I have had plenty of time. Q. And having that opportunity to think about it, does anything come back into your mind, into your memory as to what occurred? A. I don't know what's real and what's not. I can't ‑ I have no recollection. Q. But what is your memory of what happened inside the room leading up to the shooting? A. I don't know. I can't remember clearly. Q. So when you say you can't remember clearly, do you have a memory of some things that took place? A. Time's all distorted. Not really, no. I was like a zombie. Don't know. Q. Were you standing or seated when the shot was discharged? A. I can't remember. No recollection. Q. Was Luke standing or seated when the shot was discharged? A. I don't know. Q. Luke was on the phone when the gun shot discharged, wasn't he? A. So it says in trial, but I can't remember. Q. You were using your phone yourself shortly before the firearm was discharged? A. I can't remember. Q. When the shot was discharged I suggest to you Luke was talking on the phone and he had his other hand inside his pocket; what do you say about that?" A. I can't remember.
6. It appeared from the cross-examination that Mr Hart had no recollection at all of any relevant circumstance surrounding the shooting. He could not remember rushing from the house, getting in the car, driving it out of town and setting fire to it. He denied that he was attempting to avoid answering difficult questions (20.45T); (24.35T).
7. Given that I accept that Mr Hart has been entirely abstemious of drugs and alcohol since he has been in custody, and any effect of his previous mental condition on his powers of cognition has resolved, I do not think it possible that he had a clear, actual recollection of the matters narrated to his sister on 15 and 16 December 2013, which has now eroded due to the effluxion of time. That is to say, I do not accept that what he remembered then, he has now forgotten. I am prepared to give him the benefit of the doubt that he was not being evasive during cross-examination. But if this is so, the reason for his lack of recall must be that no memory was laid down because of the effects of his underlying condition exacerbated by his voluntary intoxication at the time of the shooting. It follows from this that the account given to his sister in December 2013 was pure reconstruction, not based on any actual recollection at all. By then he knew, from the interview and the provision of copies of evidence provided by the police, the narrative of fact for which the prosecution contended, and perhaps wishing to believe in his own innocence, he came up with a narrative which furthered the exculpatory story of self-defence that he had first proffered as one of the many, conflicting versions given to the police on 30 October 2015.

Submissions for the defence

1. Mr Wilson SC submitted that the facts I should find consistent with the jury's verdict are those consistent with involuntary manslaughter, or manslaughter by excessive self-defence. In relation to involuntary manslaughter he submitted that because of the circumstantial nature of the case against his client, I could not be satisfied beyond reasonable doubt on the basis of circumstances established by the whole of the evidence that Mr Hart deliberately shot at Mr Hargrave with the intention of causing him really serious physical injury. That is to say, I cannot be satisfied that Mr Hart shot Mr Hargrave with a murderous intent albeit one mitigated by the existence of substantial impairment of his mental capacities by reason of an abnormality of mind arising out of the psychiatric condition. Mr Wilson submitted that the present case fell into that category where the primary facts cannot be established beyond reasonable doubt and all that can be said, consistent with the jury's verdict, is that Mr Hart must have committed some act consistent with a verdict of manslaughter by wrongful and dangerous act. It was posited that the wrongful act was the introduction of a loaded prohibited weapon into the close confines of the cinema room of Mr Hargrave's home. That act was also dangerous because, given its crude or simple character, the pen gun was highly likely to go off unless handled very carefully. This, it was said, is a hypothesis favourable to Mr Hart which had not been excluded by the Crown. That Mr Hart fired intending to inflict really serious harm was not the only rational inference consistent with the whole of the circumstances established by the acceptable evidence.
2. Alternatively, Mr Wilson submitted that I should find that the account given to Ms Cameron on 15 and 16 December 2016 had not been shown to be one that could not reasonably be true. This left open as a reasonable possibility available on the evidence that Mr Hart acted in self-defence even if it is necessary to say, consistent with the verdict, that the force he applied was, in the circumstances as he perceived them, to be unreasonable or disproportionate.

Finding of basis of legal responsibility

1. Contrary to these written submissions, as carefully and as thoroughly as they were advanced in writing and orally, I am satisfied beyond reasonable doubt that Mr Hargrave died because Mr Hart deliberately shot him with the pen gun intending to inflict really serious harm. I am at the same time persuaded on the balance of probability that at the time he discharged the gun, Mr Hart's mental capacity, in particular, to control himself was substantially impaired by an abnormality of mind arising from a stimulant use disorder or a substance induced psychotic disorder. To my mind, on the evidence it makes little difference which diagnosis is preferred. I am also persuaded, leaving aside the effects of his voluntary intoxication at the time, that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. That is to say, I am convinced to the requisite degree that the proper basis for assessing Mr Hart's culpability is that he is guilty of manslaughter by substantial impairment.
2. I have come to this view by having regard to the whole of the circumstances established by the evidence which I accept. I have found that at the time he received the fatal wound, Mr Hargrave was holding his telephone in his right hand, talking to Mr Turnbull, and his left hand was in his left pocket. This excludes any reasonable possibility that at the moment of discharge Mr Hargrave was holding the pen gun. Moreover, the same circumstances exclude any reasonable possibility that he demanded money from Mr Hart by pointing the gun at him. Had he made such a demand with menace, Mr Turnbull could not have failed to hear. He would hardly have forgotten it. The underlying condition made Mr Hart paranoid and impulsive. There was tension between Mr Hargrave and Mr Hart in relation to the botched cook-up, the transfer ownership of the ute, and the current Sydney deal. I accept that a sober person would hardly think shooting Mr Hargrave was a reasonable way of resolving any of those issues. A sober person would conclude that shooting him would be counter-productive, rendering a satisfactory resolution of those issues impossible. But Mr Hart's actions cannot be judged by the standards of reasonable sober people. He was clinically paranoid, intoxicated by an insidious drug; and armed.
3. I also infer that his statement to Ms Lekic and Ms Bromham that Mr Hargrave had taken a shot at him; his flight from the scene of the shooting; apparent disposal of the pen gun; and destruction of the car are circumstances which portray consciousness of guilt of the commission of culpable homicide. I have considered whether those matters might be better explained by panic, as Dr Skinner thought possible, or were simply further acts of irrationality. But taking all of the circumstances together, those innocent explanations have been displaced by the cumulative effect of the whole of the evidence. I am well persuaded that the only rational inference available is the shooting of Mr Hargrave is a case of manslaughter by substantial impairment.
4. An additional factor which causes me to conclude that the Crown have excluded self-defence beyond reasonable doubt is that the account given to Ms Cameron on 15 and 16 December 2013 is consistent not with excessive self-defence, but rather with self-defence as a complete justification for what otherwise would have been criminal acts. It's impossible to regard pushing away a gun pointed either in jest or in seriousness as an unreasonable act. If as the account suggests, Mr Hart, even in his intoxicated paranoid condition, genuinely perceived that Mr Hargrave was threatening to shoot him, using force to push the weapon away and attempting to wrest it from him could on no rational basis constitute unreasonable or disproportionate force. Such a finding would be entirely inconsistent with the verdict of the jury.
5. I am also convinced however that the shooting was an entirely impulsive, spontaneous act. There was no planning or premeditation involved. The crime was borne of the substantial impairment of his ability to control himself because of the abnormality of his mind arising out of his psychiatric condition.

Objective seriousness

1. In R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep) Gleeson CJ (with the agreement of the other members of the Court) said: "…. the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. When the basis of a finding of manslaughter is diminished responsibility, pursuant to s23A of the Crimes Act, what is nevertheless ordinarily involved, and what is involved in the present case, is a conclusion that the taking of human life was the consequence of a deliberate and willed act, performed with intent to kill or cause grievous bodily harm, or with reckless indifference to human life. The abnormality of mind substantially impairs the offender's mental responsibility for his or her act but it does not negate such responsibility. The reduction in the capacity for self-control which results from the abnormality of mind diminishes the responsibility, but it does not excuse the act. Making a judgment as to the extent to which, in a given case, responsibility is diminished, can be a difficult task. The hypothesis, however, is that the offender is responsible for a deliberate act which took the life of another person, and which, but for the abnormality of mind, would bear the character of murder." [Citations omitted] Clearly this passage is entirely apposite to the circumstances of the present case.
2. Taking the starting point as the felonious taking of a human life, it is appropriate to acknowledge the receipt of family victim impact statements from Mr Hargrave's mother, Dianne Hargrave, and his father David Hargrave. Ms Hargrave and Mr Hargrave spoke on behalf of all of the family victims including Mr Hargrave's sisters and of course his three young children. The account given by each of them, may I say, was very moving. I was greatly touched by the grief of parents required to bury a son in the full flood of life and well before his time. I acknowledge that their pain and loss can never be salved nor will it ebb entirely. I hope that time will ease it. I offer my sincere condolences to all of them for the loss they have suffered. I will take their statements into account in connection with the determination of the punishment for the offence on the basis that the harmful impact of Mr Hargrave's death on members of his immediate family is an aspect of harm done to the community by Mr Hart's offending (s 28 (4) Crimes (Sentencing Procedure Act) 1999).
3. As Mr Wilson very fairly and properly acknowledged in his written submissions: "It is regarded by all thinking persons as offensive to fundamental concepts of equality and justice for criminal courts to value one life as greater than another (R v Previtera (1997) 94 A Crim R 76 at [86] (Hunt CJ)" These principles have particular resonance in the present case. Mr Hargrave's involvement in the illicit drug trade did not put him beyond the pale of the law's protection, as apparently it does elsewhere in our region these days. Indeed that consideration does emphasise the wisdom of the principle that the law does not, for the purpose of sentencing for unlawful homicide, evaluate the worth of the life of the victim on some scale of virtue, or by reference to a register of familial affection. The law offers the same protection to all and provides the same denunciation of the actions of all offenders who have taken life.
4. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offender. It is to be determined wholly by reference to the nature of the offending: see Muldrock v The Queen (2011) 244 CLR 120 at [27]. It is also appropriate in assessing objective seriousness, to have regard to any factors which aggravate the offending (s 21A Crimes (Sentencing Procedure) Act). It is, however, important to avoid double counting. No additional regard is to be had to any aggravating factor if it is an element of the offence. This is an important consideration in the present case because the elements of the offence include a deliberate act of violence causing fatal injury. The use of a weapon was integral to this. I accept the submission of Mr Wilson that in the circumstances of the particular case, the use of a weapon is not an aggravating factor as such. It is, of course, however, an aggravating factor that the crime was committed in Mr Hargrave's home. As the Crown submit, it is relevant to bear in mind that Mr Hart introduced a loaded weapon into the home of Mr Hargrave and even before it was used, he showed it to the members of the household who were interested in seeing it. It is relevant that it was a crude homemade device with no apparent safety mechanism, capable of being discharged if force was applied to the end of it. That Mr Hart on my findings intended to inflict very serious bodily injury is significant. Albeit, it is necessary to bear in mind that his legal responsibility is being ameliorated or reduced by reference to his substantial impairment, effectively his mental disability.
5. There is a certain prevalence of firearm offences in the community which is of great concern to law-abiding people. This calls for denunciation. Mr Hart is not to be sentenced for offences for which he has not been convicted, but there is every reason to believe that the use of firearms is particularly prevalent in the illicit drug milieu in which he and Mr Hargrave moved. That the offending may in not insignificant part be explained by his actual level of intoxication on the day is a matter which I consider should be taken into account in the assessment of objective seriousness. In context, this is a circumstance which explains in some measure what happened. It is not in any way a mitigating circumstance (s 21A(5AA)) even if the offending is extremely unlikely to have occurred without it. Nor is it neutral. Illicit drug use is a voluntary activity. Mr Hart chose to use the drugs and must accept responsibility for the consequences of that choice: R v Henry (1999) 46 NSWRL 346 at [257].
6. For all these reasons, and in particular bearing in mind the protean nature of the offence of manslaughter, I assess Mr Hart's offending as falling into about the mid-range of objective seriousness.

Mr Hart's subjective case

1. As I have already recounted, Mr Hart is a young man who comes from a good background of hardworking people and until he fell into his drug addiction he was an industrious contributing member of the community. Apart from a previous drink driving offence in 2005, he has no prior criminal record. But I cannot find he was of previous good character given his direct involvement in the distribution of illicit drugs in the Albury region.
2. He offered to plead guilty to manslaughter in the Local Court and by law is entitled to a discount on the sentence which would otherwise be imposed for the utilitarian value that plea would have had, had it been accepted. I also regard the plea as an indication of a preparedness to accept responsibility for taking Mr Hargrave's life. A point to which I will return.
3. Conventionally, an early plea, or relevant offer to plead, can attract a discount of up to 25 per cent for its utilitarian value. The Crown, however, submit that I would not make that allowance in this case because the offer was first made after a contested committal in the Local Court. Although he was arrested on 30 October 2013, the offer to plead was not forthcoming until 28 May 2015. This was the fourth day of the committal. Sixteen crown witnesses had been cross-examined from 25 to 27 February 2015. Considerable preparation including the preparation of extensive written submissions was required before and after February 2015. Oral argument occupied much of the 4th day. The offer to plead came at the conclusion of that lengthy hearing and after the court had made the order committing Mr Hart for trial. I accept that these are relevant factors to the degree of discount that should be allowed. I am of the view that in the particular circumstances of this case, the appropriate discount is 20 per cent.
4. A central factor in the case, of course, has been Mr Hart's mental health. It is a settled principle of the law of sentencing that mental illness is relevant when fixing a sentence. Where mental illness contributes to the commission of the offence as it did here, the offender's moral culpability may be reduced. But as against this as Gleeson CJ said in Blacklidge, to a substantial degree Mr Hart's mental illness has been taken into account in reducing his legal responsibility from what would have been murder to manslaughter. Making a judgment as to the extent to which culpability should be further reduced is a difficult task. It is important in this case that there should not be double counting on this score and I think it relevant to bear in mind that in the particular circumstances of the case, the mental illness itself was brought about by the voluntary act of Mr Hart in choosing to engage in the consumption of illicit drugs, particularly the notorious drug ice.
5. I acknowledge that mental illness may reduce the need for both general and specific deterrence. At least that consideration may be "moderated". Again, striking the right balance is difficult. Sometimes mental illness will increase the hardship of custody. That circumstance is not relevant here as the evidence is that Mr Hart's condition is in full remission. It is unlikely to resurface unless he descends into further drug use.

Remorse and rehabilitation

1. I accept that Mr Hart is genuinely remorseful for the offence. As I have said his early offer to plead to manslaughter showed acceptance of responsibility but more significantly, he gave pertinent evidence on oath in relation to this matter in the proceedings on sentence. It is clear that he has been abstemious from drugs and alcohol since he has been in custody and he is clearly aware of the nexus between drug use and his offending. He expressed what I considered to be a genuine determination to stay drug-free for the rest of his life. When asked if there was anything he would like to say to the family victims, he said at [35.15T]: "…. I am fully responsible for everything that's happened. There is nobody else to blame but me and this is going to be something that's with me for the rest of my life and I am sure that it's with you forever too and I am sorry." To Mr Hargrave's children he said [15.40T]: "… I lost my father and my brother and I understand what it's like not to have a father and I just feel sorry for the kids. Like, I don't know how or … sorry is not enough."
2. Moreover, notwithstanding the fact that he has been continuously held in classification A2 on remand, he has shown positive progress toward reform which is relevant both to accepting responsibility and prospects of rehabilitation. He said, which I accept, that there are limited opportunities to participate in programs in his classification, but he has completed the Getting Smart program (Exhibit 8), obtained a Certificate of Attainment, or a license, to operate a boom-type elevating work platform and has obtained Certificate 2 in engineering in arc welding and the use of handheld power tools.
3. He has obtained the trust of the corrections authorities sufficiently to obtain employment as a sweeper and at the request of correction officers he has worked as a fitness trainer for other inmates twice a week. These sessions involve him training 30 or so other inmates. He has not incurred any breaches of prison discipline. I record in particular that there is no indication that he has failed any random urine test.
4. In a statement dated 27 July 2016, his sister, Amanda Cameron says that to her observation, the death of their father, death of their brother in a road accident in America and the illness of Mr Hart's grandmother were circumstances that contributed to his descent into illicit drug use. I accept that genuineness of her view but these circumstances do not negate the element of choice involved in illicit drug use. However, and more pertinently, she believes that her brother is "a new and rehabilitated person, he even has a different demeanour and outlook on life than he did before he took the drugs" (my emphasis). Mr Hart telephones his sister every weekend and on occasions has told her: "how terrible he feels for [Mr Hargrave's] parents, brothers and sisters as he knows only too well what it is like to lose people close to you. His quote to me has been "I am so, so sorry I never meant or wanted any of this to happen, Luke was my friend".
5. In a supplementary report dated 27 October 2016, Dr Farrer, who re-interviewed and assessed Mr Hart over 1.5 hours, recorded his expressions of remorse. Dr Farrer recorded that Mr Hart became tearful and upset when discussing the offence, the effect of the offence on the victim's family and the effect of the offence on his own family.
6. I am well satisfied that Mr Hart is truly remorseful for his offending.
7. Dr Farrer confirmed that Mr Hart's substance induced psychotic disorder remained in remission which she regarded as "sustained". I inferred that she regarded his prognosis as good.
8. Dr Farrer also carried out a statistical assessment of Mr Hart's risk of violent reoffending. She set out her results in full in her report and recorded that overall he presents a low risk of future violence.
9. It is not without relevance that he has been baptised as a Christian and attends church services in custody.
10. In the long term he hopes to get back to useful work in the community after his release, particularly in a rural environment. He intends to continue participating in drug and alcohol counselling after his release.
11. I accept that Mr Hart has very good prospects of rehabilitation and presents a low risk of further offending in the future.
12. All of this taken together amounts to a very strong subjective case. However, I remind myself that these matters cannot be permitted to swamp the necessity to impose a sentence which is proportionate to the objective seriousness of the offending.

Sentence for manslaughter

1. It is necessary for me to take into account all of the facts, matters and circumstances that I have set out relevant to sentencing this offence for this offence when fixing the sentence. It cannot be doubted that no penalty other than full-time imprisonment is warranted. I am required by law to impose a sentence which fixes a maximum term and a minimum term that Mr Hart will be required to serve. The minimum term is referred to as the non-parole period. It represents the minimum period that justice requires Mr Hart serve in custody for his offending. The minimum term should be 75 per cent of the maximum term, except when there are special circumstances justifying a variation of that ratio.
2. Although I must fix a non-parole period, no one should assume that release to parole when an offender is first eligible is automatic. The decision about whether to release an offender to parole is made by a branch of the executive government, the State Parole Authority. Generally it will not order an offender's release to parole unless it is satisfied that he is indeed eligible. Eligibility will depend in large measure upon the Authority's assessment of the risk the offender may present to the community. An important consideration will be the degree to which the offender has demonstrated by his good behaviour in custody, and his participation in available programs of rehabilitation that he is at least well on the way to reformation. As I have said, I am satisfied that Mr Hart is well advanced on this path. He will need to continue on it if he is to be released when first eligible.
3. I am required by law to advise Mr Hart that this offending falls within the definition of a serious violence offence under the Crimes (High Risk Offenders) Act 2006 (NSW). This circumstance should provide an added incentive for him to continue on the path of rehabilitation as that Act provides for the making of continuing detention orders or extended supervision orders for high risk violent offenders beyond the term of the sentence imposed, if on the application of the State, the Supreme Court is satisfied to a high degree of probability that the offender continues to pose an unacceptable risk of committing a serious violence offence if released into the community.
4. Bearing in mind all of the matters to which I have referred, including the need for retribution and denunciation of Mr Hart's offending; an appropriate degree of general and specific deterrence; and the maximum penalty of 25 years imprisonment provided by law, the term of imprisonment I would have imposed upon Mr Hart for the manslaughter of Mr Hargrave, but for his early offer to plead guilty to manslaughter, is 10 years. Allowing a discount of 20 per cent for the early plea, I propose to fix a maximum term of imprisonment of 8 years.
5. Mr Hart has been held on remand for more than 3 years since his arrest. I hasten to add this is not the fault of the prosecution or of the courts, but is the product of the many interlocutory applications that have been brought in his case along the road to finality. Nonetheless, this is his first time in custody and he has been held in more onerous circumstances on remand than may have been available to him, had he, for one reason or another, been dealt with sooner. I am satisfied that these considerations constitute special circumstances and that the statutory ratio ought to be varied in Mr Hart's favour. I think it appropriate that the non-parole period should be fixed at two-thirds of the maximum sentence. This equates with a non-parole period of 5 years and 4 months. This should encourage his continuing rehabilitation and takes into account the need to impose penalties for the related offences.
6. I have had regard to the pattern of sentences suggested by the comparable cases and statistics provided by Mr Wilson SC. Given the protean nature of this offence I think nothing is to be gained by me setting out a detailed analysis of them. I am satisfied that the sentence I will impose in not inconsistent with the yardstick they provide.
7. I think it appropriate that the related offences be dealt with briefly. I have set out the circumstances in the course of my reasons. I bear in mind that he has now pleaded guilty to all matters, and I infer would have done so in the Local Court had his offer been accepted. I will allow the same discount. I will deal with these matters in the order in which they were laid: 1. For sequence 2 of H52681852, possessing the pen gun, I am of the view that the criminality for this matter is subsumed in the criminality of the manslaughter offence. I propose to impose a fixed term of imprisonment of 3 months duration, wholly concurrent with the sentence passed for the manslaughter offence; 2. I think it appropriate that sequences 3 and 4 in H52681852 should be dealt with together. These are the offences of possessing the Hammerli self-loading pistol and the Winchester repeating rifle. The evidence was that these weapons belonged to Mr Hart's deceased father. His offending came to light because he gave them to his friend Mr Wright, a law abiding member of the community. Mr Hart contemplated that he would, as he did, hand them into police. There is no evidence that they were ever used by Mr Hart. His offending came to light by reason of his own actions, which is a significant mitigating circumstance, even though they may have been discovered in the execution of a search warrant at or before the time of his arrest. In each case, I will impose a fixed term of imprisonment to be served concurrently of 3 months duration commencing 30 October 2013 and expiring on 29 January 2014; 3. Sequence 5 H52681852, possessing the unregistered air rifle. This was an incidental product of the search warrant. It is a minor matter. Had it stood alone it would not have attracted a custodial sentence. Given that Mr Hart will be in custody for other matters, I think it appropriate to dispose of the proceedings by recording a conviction without imposing any other penalty; 4. Sequence 6 of H52681852, this is destroying the Holden utility by fire. As I have said, there was an issue about ownership of that vehicle, although Mr Hart has pleaded guilty. Again I think the criminality involved in this matter is substantially subsumed in his culpability for the manslaughter offence. I propose to impose a fixed term of imprisonment wholly accumulated on sequence 2, but to be served concurrently with the sentence for the manslaughter offence, the term of imprisonment will be 3 months; 5. The offence of H54103023 is the break and enter the home across the street and damaging property. The total cost of repair was $260. At the time of the forced entry the house was unoccupied, being prepared for sale. His culpability for this matter is greatly attenuated by reason of his paranoia and delusions which were symptomatic of his mental illness. It is possible, but for the more serious offending that he may have been dealt with under the Mental Health Legislation had this matter come before the Local Court to be dealt with on its own. However, I will impose a fixed term of imprisonment of 1 month duration, wholly accumulated on the sentence for sequences 3 and 4 in the earlier matter. The sentence will commence at the expiration of the earlier sentence on 29 January 2014 and expire on 28 February 2014; 6. H543483251 - damaging the seat of the prison van. The value of the damage is estimated to be $100. I think it appropriate to deal with the matter by disposing of the proceedings under s 10A, by recording a conviction and otherwise disposing of the proceedings without further penalty.
8. Mr Hart I sentence you to the following punishments: 1. For the offence charged by Court Attendance Notice H52681852 sequence 3, of possessing an unauthorised Hammerli self-loading pistol to a fixed term of imprisonment of 3 months commencing on 30 October 2013 and expiring on 29 January 2014; 2. For the offence charged by Court Attendance Notice H52681852 sequence 4, of possessing an unregistered Winchester repeating rife to a fixed term of imprisonment commencing on 30 October 2013 and expiring on 29 January 2014; 3. For the offence charged by Court Attendance Notice H54103023 of break and enter a dwelling house and committing a serious indictable offence to a fixed term of imprisonment of 1 month commencing on the expiration of the sentence for H52681852, sequences 3 and 4 on 29 January 2014 and expiring on 28 February 2014; 4. For the offence charged by Court Attendance Notice H53783251 of intentionally damaging property of the New South Wales Corrective Services Department, I record a conviction and otherwise dispose of the proceedings without penalty under s 10A Crimes (Sentencing Procedure) Act 1999; 5. For the offence charged by Court Attendance Notice H52681852 sequence 5 of possessing an unregistered air rifle, I record a conviction and otherwise dispose of the proceedings without penalty under s 10A Crimes (Sentencing Procedure Act) 1999; 6. For the offence charged by Court Attendance Notice H52681852 sequence 2 of possessing a prohibited pen gun to a fixed term of imprisonment of 3 months commencing on the expiration of the sentence for H 54103023 on 28 February 2014 and expiring on 27 May 2014; 7. For the offence charged by Court Attendance Notice H52681852 sequence 6 of intentionally destroying by fire the Holden Utility, a fixed term of imprisonment of 3 months duration commencing on the expiration of the sentence for H 52681852 sequence 2 on 27 May 2014 and expiring on 26 August 2014; 8. For the manslaughter of Luke Hargrave, a term of imprisonment of 8 years, having a non-parole period of 5 years and 4 months, commencing on 28 February 2014 and expiring on 27 June 2019 with an additional term of 2 years and 8 months commencing on 28 June 2019 and expiring on 27 February 2022. 9. The total effective sentence is one of eight years and four months. You will first be eligible for parole at the expiration of the non-parole period on 27 June 2019. 10. The firearms, the subject of sequences 2, 3, 4 and 5 are to be forfeited to the Crown.

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