R v Hoerler

CITATION : R v Hoerler [2003] NSWSC 1187 HEARING DATE(S) : 14-18, 21-25, 28-30 July 2003, 9 December 2003 JUDGMENT DATE : 11 December 2003 JURISDICTION: Common Law Division JUDGMENT OF : Miles AJ at 1 DECISION : Offender sentenced to imprisonment for 11 years commencing 5.10.01 and to expire on 4.10.12. I fix a non-parole period of 8 years and 3 months to commence on 5.10.01 and to expire on 4.1.10. See paragraph 53.

CATCHWORDS : Sentencing - manslaughter - late plea of guilty to manslaughter on indictment for murder - baby beaten to death by partner of mother - principles - whether worst category - whether maximum sentence appropriate - effect of plea - remorse - utilitarian value - deterrence - denunciation LEGISLATION CITED : Evidence Act, ss4, 60, 66, 81, 94 R v Withers (1925) SR 382 Woodland [2001] NSWSC 416 Vaughan (1991) 56 ACrimR 355 Ditford (unrep, NSWCCA, 17/3/92) R v Holder; R v Johnson (1983) 3 NSWLR 245 CASES CITED : Evers (unrep, CCA, 16/6/93) Guider [2002] NSWSC 756 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Cameron v The Queen (2002) HCA 6 R v Sharma [2002] NSWCCA 142 Veen v The Queen (No.2) (1987) 164 CLR 465 Regina (Crown) PARTIES : v Christopher Hoerler (Offender) FILE NUMBER(S) : SC 70097/02 COUNSEL : C: Ms V Lydiard D: Mr M Paish SOLICITORS : C: Solicitor for Public Prosecutions, Ms T Adamson D: Ross Hill & Associates

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

REMARKS ON SENTENCE 1 On 14 July 2003 Christopher Hoerler pleaded not guilty to a single count charging him with the murder of Jordan Anderson at Wagga Wagga on 25 February 2000. The trial proceeded. On 29 July 2003 the prosecution case closed. Counsel for the accused sought time to get instructions. On 30 July 2003 the accused pleaded guilty to manslaughter. The plea was accepted by the prosecution in full discharge of the indictment. The jury was discharged. A conviction for manslaughter was recorded. 2 The offender was remanded in custody for sentence to 19 September 2003. At the request of both parties, that date was vacated and on 24 October 2003 he was, again at the request of both parties, further remanded to 9 December 2003.

Facts 3 The deceased was a seven-month-old baby. He was found dead on the arrival of ambulance officers at a house in a suburb of Wagga Wagga at about 3.15 on the morning of 25 February 2000. The body bore the marks of multiple and severe injuries. 4 The baby's mother was a young woman, Louise Anderson, who lived at the house with her three children, Jordan and two other sons then aged about three and four. 5 The offender had been in a relationship with Ms Anderson for some two months and was also living in the house. Jordan had been ill with diarrhoea and vomiting about a week before. On the evening of 24 February 2000, he was vaccinated by a local doctor and apparently in good health without any sign of injury. 6 It was a hot night and an impromptu party took place in the house. People came and went from the house. Doors and windows were left open. Some of those present, including the offender and Ms Anderson, were smoking cannabis. At about 10.00pm Ms Anderson went to the local hotel and came back with a carton of 250ml bottles of beer, referred to as "throwdowns". The party was loud enough for Ms Rebecca Fuller, a next-door neighbour, to ask, without much success, that they keep the noise down. The offender shouted some abusive remarks at her. However, the occasion was by no means a drunken orgy. There were eight or nine people present at the most. By about 1.30am, the music was turned off and all except a young man called Chris Nikki had left. The offender walked Chris Nikki to his home nearby. In the meantime Ms Anderson had taken herself off to bed, more precisely she bedded down on a rug in the lounge room where she and the offender usually slept in hot weather. The two boys were also asleep in the lounge room on the sofa. Jordan was asleep in his pram or stroller in the lounge room when Chris Nikki left. 7 The offender returned between about 1.30am and 2.00am. He had drunk about nine of the bottles of beer and was probably moderately affected by the beer and the cannabis, possibly well affected. 8 During the evening, Jordan was observed by those present as behaving unremarkably, sometimes asleep and sometimes awake, in the early stages in the lounge room with everyone else, and later out in the back yard in his pram or stroller. According to the evidence of Ms Anderson, Jordan was back in the lounge room in his pram, strapped in, wearing only a nappy because of the heat when she went to sleep. Her next recollection is of the offender waking her by pulling on her shirt, saying that Jordan had fallen out of his pram and was not breathing. She said that she thought that he was joking, as he often did. She took herself into the main bedroom and tried to go to sleep. The offender struck her on the leg and insisted that she come back into the lounge room. She did so and saw Jordan lying on the rug. The situation was somewhat confused after that. 9 At about 3.00am, neighbours heard the offender calling for help in a distressed voice saying something to the effect that "the baby is not breathing". The neighbour, Ms Fuller, came in and saw him on the telephone and Jordan lying on the floor. An ambulance was dispatched at about 3.11am. At about that time, the offender went around to the home of Mrs Smith, Jordan's paternal grandmother and told her that Jordan was not breathing and to "come on". The ambulance officers took over resuscitation efforts from Ms Anderson and Ms Fuller. They notified local police. 10 When questioned by the police who arrived first on the scene at about 3.30am, the offender told them that he had been lying on the floor, woke up and saw Jordan on the floor frothing at the mouth. He said that he did not see Jordan fall out of the pram. In later lengthy interviews, that was essentially the account maintained by the offender. In those interviews he also maintained that Louise Anderson was asleep on the floor between the time of his arrival back at the house at about 1.30am and later waking to find Jordan on the floor apparently not breathing. 11 Dr Darren Corbett received a call from police at 5.35am at his home at Junee and arrived at the premises at 6.20am and found the baby dead. He recorded partial rigor mortis which indicated that death had occurred some two to six hours previously, most likely he thought at about 1.40am. 12 Police took possession of shorts and a T-shirt which Ms Anderson had been wearing. They also took possession of shorts which the offender had been wearing and other items found in the house, particularly the main bedroom. 13 A post-mortem examination was performed by Dr Lee, a forensic pathologist, at Glebe at about 3.30pm on 25 February 2000. Dr Lee found the following injuries:-

1. widespread abrasions and bruises to the head and face
2. petechial haemorrhages of the face
3. torn frenulum of the lip
4. penetrating injuries to the hard palate by the lower teeth
5. lacerated liver
6. bruised pancreas and small bowel
7. blood in the peritoneum
8. crush injuries to the toes
9. multiple rib fractures
10. inhalation of vomitus 14 Dr Lee's initial view was that the cause of death was "multiple injuries". 15 Various items were submitted for forensic analysis. They included the clothing already referred to and also two pillows, a cot sheet, a cot doona, a mattress cover and a singlet found in the main bedroom of the house. They included also a swab from the wall near the double bed in the main bedroom. 16 Mr Robert Goetz, forensic biologist, concluded that the shorts worn by the offender had sixteen stains on the right leg and eight stains on the left leg in the area of which Jordan's DNA was found. Mr Goetz was unable to conclude positively that the stains were of human blood. However, in view of the evidence that they contained DNA and the absence of evidence that they were of some other bodily substance, I am satisfied that they were stains from the blood of the deceased. 17 Detective Michael Callister, who was qualified to give expert evidence on blood spatter patterns, concluded that there was medium velocity impact spatter on the top of the mattress cover and also on the bedroom wall. He also concluded that there was medium velocity impact spatter on the shorts worn by the offender which was consistent with the projection of blood from the deceased, assuming that the deceased was on the bed at the time and had received injury sufficient to produce external bleeding such as the injuries to the mouth and lip. 18 Dr Lee's evidence, which I accept, was that the only injuries which could reasonably be expected to produce external bleeding were those of the palate and lip and that "the external appearances of bleeding from those sites would be expected to be modified" by active or forced movement of the head, such as coughing, shaking or impact to the head. Dr Lee agreed with the conclusion of Detective Callister as to the proximity of the deceased's head to the shorts worn by the offender at the time of injury and prior to the child's airways filling with vomitus. 19 Dr Kieran Morgan, a paediatric physician, was supplied with the photographs and post-mortem reports. His view was that the injuries to the chest and abdomen caused asphyxia by crushing the child's chest and preventing the intake of oxygen, alternatively, that the baby had been smothered. Dr Morgan did not think that death was caused by the inhalation of vomit since the post-mortem report did not mention that there was evidence of entry of vomit into the lungs. However, Dr Lee did say in his evidence that, on internal examination post-mortem, he found that vomit had entered the lungs. Accordingly, the view of Dr Morgan is not helpful. 20 Dr Bruce Currie, a paediatric surgeon also gave evidence based on Dr Lee's findings. He concluded that death followed promptly after the inhalation of vomit. He considered that the injuries generally would have required considerable force, that the facial injuries were consistent with the body being dragged facedown over a surface such as a carpet or sofa, that the palate injury was caused by a blow to the jaw and the abdominal injury by a non-penetrating blow or blows of considerable force and not by falling out of a pram. Dr Currie considered that the cause of death was inhalation of vomit and asphyxiation and concluded:- "What caused Jordan to vomit and aspirate is indeterminate, as the shock of the head injury with some concussion or the squeezing chest injury with fractured ribs or the blow to the liver could all have produced a large vomit with aspiration." 21 I accept Dr Currie's evidence and conclusion. 22 The offender did not give evidence at the sentencing stage. In statements made since being convicted to a psychiatrist and to a probation and parole officer, he implicated himself in the child's death but only to a limited extent. He told them that he struck the child twice and the request of the mother to stop it crying. To the probation and parole officer, he said that he hit the child on the head with an open hand and then left the room, shocked at what he had done, and later woke to find the child beside him. 23 Counsel for the prosecution objected to that evidence being admitted on the ground that it was simply a self-serving statement. It was admitted over objection as admissible hearsay under s 60 or s 66 of the Evidence Act, or as an admission against interest under s 81 (s 85 does not apply). I now note that under s 94, the provisions of the Evidence Act relating to tendency and coincidence do not apply to sentencing but that, in any event, the Evidence Act does not apply to sentencing unless the Court so directs under s 4(3). No direction was sought and none was given. 24 Louise Anderson gave evidence in the trial. She was given a warning about incriminating herself. She was cross-examined to suggest that she was implicated in the injuries which Jordan sustained. She denied any implication. I do not recall any suggestion to her that she instructed or requested the offender to strike the child or that she was concerned about the child crying. Indeed, there was no evidence that the child was crying at any relevant time. If he had been crying after Louise Anderson had gone to sleep and after the offender had left the premises with the other man (or after he returned), it is likely that Ms Fuller would have heard it, although it is also remarkable that she did not hear anything to indicate violent activity in the house. 25 Questions of onus and standard of proof arise here. If the prosecution relies on a multiplicity of blows as an aggravating feature, then that must be proved beyond reasonable doubt. If the defence seeks to rely in mitigation on confining the offender's conduct to hitting the child twice only and then at the request of the mother, those are to be proved on the balance of probabilities. 26 I conclude, and am satisfied beyond reasonable doubt, that the extent of the child's injuries was much greater than what could have been caused by striking the head twice with an open hand. The injury which pushed the lower teeth into the roof of the mouth must have involved considerable force delivered by a punch. Similarly, the injury or injuries to the abdominal area must have involved considerable force also delivered by at least one punch. There is a possibility that the rib fractures were caused by squeezing or hugging of the baby but it is unlikely. The injury to the frenulum was caused either by the severe blow which caused the injury to the palate or by a separate blow of less severity. Overall there must have been several and not only two blows. 27 There is a further feature which the prosecution relies on as aggravating. Counsel described it as bizarre and so it is. I do not think that it infringes the principle that a matter of aggravation must be left out of account which if proved would warrant conviction for a more serious offence than that charged. At post-mortem examination, Dr Lee found marks on the toes of both feet in the nature of bruising caused by crushing injury. The marks were in a pattern of parallel bruises or lines, suggesting the application of force more than once. When informed of the finding by Dr Lee, police that evening carried out a further search of the house and on a box inside the wardrobe of the main bedroom, they found what was described as a clamp. Its purpose, as Ms Anderson explained, was to attach a small electric fan to a table or other item of furniture. Dr Lee thought that the injuries to the toes were consistent with the application of the clamp. 28 Ms Anderson was cross-examined at length on this issue. She denied having anything to do with or any knowledge of the use of the clamp on the baby's toes. Although she was not an entirely satisfactory witness, I accept those denials on this and on the wider issue of her suggested involvement in the injuries that caused Jordan's death. 29 The only rational explanation of the circumstances is that it was the offender who alone took the child from the pram in the lounge room into the bedroom and there struck the child repeatedly with at least one punch to the head and at least one punch to the abdomen and at some stage applied the clamp to the baby's toes causing the child to vomit and die of asphyxiation or vomit inhalation or both. The child died as a result of an unlawful and dangerous act on the part of the offender.

Offender's History 30 Christopher James Hoerler was born in Papua New Guinea on 25 December 1979. One or both of his parents had ethnic origins in that country. He came to Australia in 1982 with them and has lived here ever since. There is no suggestion that cultural factors associated with those ethnic origins are of any relevance. The pre-sentence report describes his upbringing in the Young area in a strict and religious home environment from which he broke away. He has been a boxer, winning some competitions. He has had only sporadic employment which was in the Young-Wagga area. He has a son aged 4 from a former relationship and a daughter aged about 18 months from another. His involvement with Louise Anderson persisted beyond Jordan's death but was increasingly unstable with complaints by her of domestic violence on his part. Prior to his arrest, (which was not until October 2001) he resumed the relationship with the mother of his daughter. 31 Most significantly, he has been a binge drinker of alcohol over the past four years with periods of abstinence following attendance at Alcoholics Anonymous. He has used cannabis but there is no evidence of anything like an addiction. He has the continuing support of his parents and is said to have returned to their Christian faith. He has expressed a wish to be a social worker and to use his experience to help others. Whether that is a realistic aim, time will tell. The report from Dr Westmore, psychiatrist, dated 7 October 2003, indicates no personality disorder and no need for psychiatric assistance apart from discussion of his alcohol problem and direction towards an alcohol rehabilitation service. 32 As at the time of the crime now under consideration, he had previous convictions for malicious damage and burglary and had received a one-month fixed-term sentence for each. Since the present offence and prior to his arrest, he was charged with three offences of burglary, one of stealing and one of driving in a dangerous manner, all except one were committed between March and July 2000. He was on bail for that one offence of burglary at the time of the offence now in question. I have been asked to take these into account on Form 1. 33 There are also on his record a number of convictions for common assault, assault occasioning actual bodily harm and maliciously damaging property for which he was initially sentenced to imprisonment in the Young Local Court. Those sentences were varied on appeal in the Sydney District Court on 15 May 2001 when a sentence of periodic detention for twelve months was substituted. They arise out of some incident involving his father and sister at Christmas 2000. The victims do not appear to regard those matters as serious.

Victim Impact Statement 34 There was in evidence a Victim Impact Statement from Jordan's father who described himself as heartbroken by the news of his son's death. He also described the devastating effect it has had on his life with consequent illness, inability to hold down a job or maintain stable personal relationships. Counselling has been of little assistance. He also described the pain of his mother, Jordan's grandmother, who lived close to Jordan's home and was active in his upbringing. I should mention that Louise Anderson's father appears also to have been active in this regard. Jordan was of Aboriginal descent on his father's side but did not live long to know whether he was or would be part of an Aboriginal community.

Sentencing for Manslaughter 35 Although the legislature has specified a finite maximum term of imprisonment for manslaughter, namely 25 years, it has been notorious for more than 75 years and at least since R v Withers (1925) SR 382 at 394-395 that the varying degrees of criminality inherent in the offence and accordingly the range of sentences and penalties imposed for the offence are wider than for any other offence. That proposition would seem to suggest, as has been said, that little assistance can be gained from other cases. On the other hand, as Mr Paich submitted, the similarity between the factual circumstances of cases involving the unlawful killing of very young children by parents or carers may enable useful comparisons to be drawn, particularly where there has been pronouncement at appellate level in order to avoid disparity or inconsistency in sentence, both with regard to the objective seriousness of the particular facts under consideration and the weight to be given to various aspects of the subjective circumstances of the particular offender. I agree. 36 The need for discussion of the cases as a whole may be avoided since the exercise was undertaken by Wood CJ at CL in Woodland [2001] NSWSC 416. What his Honour had to say at paras [27]-[30] may be taken to be incorporated in these remarks. 37 These cases establish a range of sentences for the unlawful killing of very young children by parents or carers between five years imprisonment on a plea of not guilty to murder but guilty of manslaughter (Vaughan (1991) 56 A Crim R 355) and ten years imprisonment (Ditford, NSWCCA, 17 March 1992, also a case of plea of not guilty of murder but guilty of manslaughter). Lee CJ at CL said in Vaughan, at p 359, that, at that stage, the cases did no more than demonstrate that the courts have always regarded assaults by parents on little children resulting in death, as grave and serious cases of manslaughter. 38 It was submitted on behalf of the prosecution that the offence committed against baby Jordan falls within the worst and most serious category of manslaughter. According to the written submissions, it should attract the maximum sentence of 25 years imprisonment. 39 There are cases in which the maximum penalty for an offence has been imposed because of the objective seriousness of that offence and regardless of a plea of guilty. R v Holder; R v Johnson (1983) 3 NSWLR 245 comes to mind. Counsel were not able to refer me to any case in which the maximum sentence for manslaughter has been imposed. I now note that in Evers (unreported, Court of Criminal Appeal, 16 June 1993) there was an effective term of 25 years for manslaughter, but I am not informed as to the circumstances. Until, I think, 1989, the maximum sentence for manslaughter was imprisonment for life. The heaviest sentence handed down since then in cases involving the killing of a child by a carer appears to be 17 years imprisonment in Guider [2002] NSWSC 756. It is difficult to compare that case with this. The death occurred in wholly different circumstances and was committed by a paedophile with a long record who never disclosed the whereabouts of the child's remains and was proved because of his modus operandi to have overdosed the child with sleeping tablets. I should add, lest it be considered to have been overlooked, that although the present offender had no status as a carer of the child, his position in the household does not lessen his culpability. 40 I understand that sentences of less than 25 years have been imposed for murder in recent years. Unless and until there is a single offence of homicide in which murder and manslaughter are undifferentiated, I think that it would be entirely against the tradition and history of the criminal law to allow a situation to develop where the crime of murder could be treated as less serious than manslaughter except in the clearest and most exceptional circumstances. 41 Further, to impose the maximum penalty for the present offence, or indeed, to impose a sentence of substantially more than ten years, is so far beyond the range of sentences established by past sentencing practice in this Court in recent years that to do so is not the task of a judge at first instance but of the Court of Criminal Appeal if it is minded to do so, and then, as I understand it, only after an indication that the past practice is to be changed.

Effect of Plea of Guilty 42 Then there is the plea of guilty. Ordinarily a plea of guilty is accepted as a factor which will reduce the sentence that would otherwise be imposed. The policy reasons are set out in the guideline judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383 and there are now statutory considerations. It recognises that there are crimes which, in the words of Spigelman CJ at [158], "so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate". 43 In the present case, it is put that the offence is of such enormity that no discount can be given, alternatively, that the discount must be low because the plea was too late to be of any utilitarian value and because the offender showed no contrition. 44 Utilitarian value in this sense I take to mean the extent to which the plea assists in the administration of justice. It is difficult to contradict the proposition that the earlier there is a reliable indication by a guilty person that he or she will plead guilty the greater the assistance. Conversely, a late indication may be of little or no assistance. But the circumstances are important. Here a plea was offered, not to the charge of murder on which the offender had been arraigned, but to the crime of manslaughter, which as I have indicated must be regarded as a less serious offence. There was some mention from the Bar table about discussions before trial between the prosecution and those representing the offender about a possible plea to manslaughter, but this was not clear enough for me to give it any weight. The plea of guilty was offered at the end of the prosecution evidence. But the case was not finished. The prosecution case was strong but not overwhelming. The jury had seen the offender over several hours in videotapes of interviews with police in which he repeatedly (and, the jury might have thought, consistently) denied any part in the death of the child. From my observation, the jury might have thought him credible. There was arguably some difficulty about the exact cause of death and with the forensic evidence about the nature of some of the material analysed and there was the need for the usual warning about caution in accepting the consequences of the DNA evidence. It was open to argue that there was a possibility that the mother or someone else, possibly an intruder, had injured the child. If the trial had proceeded the jury would have had a substantial task ahead of them in considering the evidence over the previous three weeks and anything further that might have been presented to them. They were spared that task. 45 There is the further matter of whether any discount or allowance should be given for remorse or contrition. I take those terms to mean the same thing. They are not much used in everyday discourse and not much discussed even in sentencing cases. I take them to involve a recognition of the moral culpability of the conduct in question and genuine regret for that conduct. It is recognised that a plea of guilty is consistent with contrition, even evidence of contrition, unless it results from "recognition of the inevitable": R v Thomson; R v Houlton (2000) 49 NSWLR 383 at [137]. The High Court has distinguished between remorse and a willingness to facilitate the course of justice: Cameron v The Queen (2002) HCA 6 but the latter does not arise on the material before me and Cameron is not regarded as applicable in this State: R v Sharma [2002] NSWCCA 142. 46 As I have said, a conviction was not inevitable in this case and I do not see how I could conclude that the offender recognised that it was. Much more likely was his recognition of the high risk of conviction for murder and a preference to accept responsibility for the lesser offence of manslaughter. 47 Moreover, despite what we now know to be the brazen denials to the police and the attempt to implicate innocent people, there is some evidence of contrition in what the offender said to the psychiatrist and the probation and parole officer. The human mind is complex and conflicting attitudes and emotions compete with each other. I accept that there is an element of positive contrition. 48 It follows from the above that the utilitarian value of the plea of guilty and the actual extent of the offender's contrition is not only to be taken into account but will result in a lesser penalty than would otherwise have been imposed. 49 The sentencing judge in Ditford (described by the Court of Criminal Appeal as the most experienced sentencing judge in the State) took into account a relatively late plea of guilty of manslaughter offered on arraignment for murder. Although that was in the days before the guideline judgments, it may be inferred that, if there had not been a plea of guilty and there had been a verdict of manslaughter after trial, a sentence of some twelve years would have been imposed and not interfered with by the Court of Criminal Appeal in that case. The facts, and the culpability involved were much the same as in the present case. The sentencing judge referred to the community's demand that a heavy sentence be imposed for such an horrific crime against a defenceless child in the applicant's case. Hunt CJ at CL added that there is always a paramount need for sentences in such cases to provide public deterrence against crimes of violence against children. For my self, I am not confident about the deterrent effect on such socially aberrant behaviour and consider that it should be acknowledged that the main purpose of severe punishment in such cases is denunciation, even retribution. It makes no difference to the result.

Outcome 50 I propose then to take twelve years as a starting point for the purposes of the present case. I would proceed to reduce it by some 10 per cent for the limited utilitarian value of the plea and the limited significance of the actual contrition. However, there is the countervailing factor of the matters to be taken into account on Form 1. For the reasons given in the guideline judgment and as a matter of discretion where a young offender is facing a lengthy sentence for the offence on the indictment, I would increase the overall sentences only marginally for the matters on Form 1. 51 For the purposes of parole, I consider that a non-parole period should be fixed. The report from the probation and parole service indicates prospects for rehabilitation. Dr Westmore describes the offender as not having any anti-social personality disorder and not in need of psychiatric assistance. Clearly there are problems of alcohol abuse, but not real addiction. Custodial staff states that on remand he is a quiet inmate who presents no problems and assess him as suitable for programs in alcohol management and a violence prevention program. 52 There is also the prospect of continuing protective confinement and associated risks whilst he serves his sentence. This not only makes the serving of the sentence more onerous but may not assist towards rehabilitation. There is nothing about the prospects of rehabilitation or anything else which constitutes special circumstances for reducing the ordinary ratio of the non-parole period to the overall sentence, nor for that matter increasing it. Although there was a suggestion by counsel for the prosecution that the case comes within the ambit of what was said in Veen v The Queen (No. 2) (1987) 164 CLR 465 about criminals who present a continuing danger to the community, I do not think that this is so. 53 The offender has served two years two months and four days in custody awaiting trial and sentence on the present matter. For that reason, I will backdate the sentence to commence on 5 October 2001.

Christopher Hoerler you are sentenced to imprisonment for eleven years commencing on 5 October 2001 and to expire on 4 October 2012.

I fix a non-parole period of eight years and three months to commence on 5 October 2001 and to expire on 4 January 2010.

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