R v KT

PARTIES : Regina (Crown) KT (Offender)

COUNSEL : Mr J Kiely QC (Crown) Ms D Yehia (Offender)

SOLICITORS : Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

SENTENCE 1 JOHNSON J: On 1 September 2006, the Offender, KT, appeared before Whealy J and pleaded not guilty to an indictment alleging that, on 4 February 2006, at Auburn in the State of New South Wales, he did murder Kuol Agang. However, the Offender pleaded guilty to manslaughter, charged in the alternative in the indictment, and the Crown accepted that plea in full satisfaction of the indictment. 2 In due course, the sentencing hearing proceeded before me on 1 February 2007, following which I remanded the Offender in custody for sentence today.

The Offence 3 The following account is drawn from the Agreed Statement of Facts and other material, admitted into evidence at the sentencing hearing. 4 On the evening of Tuesday 31 January 2006, SG (then 17 years of age) drove his green Ford Laser sedan to Auburn, where he collected the Offender (then 16 years of age - 17 on 5 February 2006). SG also collected another friend. 5 After picking up KT and the other person, SG then drove to McDonalds at Parramatta. KT, SG and the other person then went to the cinema at Auburn. 6 Later in the evening, at about 11.30 pm, KT, SG and the other person commenced driving the streets of Auburn. 7 The driver of the vehicle was SG, with KT in the front passenger's seat and the other person in the rear seat. 8 At this time, KT, SG and the other person had in their possession 12 eggs which they had purchased at a store. Their intention in purchasing and having eggs in their possession was to seek out members of the public and throw eggs at them from the moving vehicle whilst it was being driven by SG, a practice described as "egging". 9 After most of the eggs had been thrown at various members of the public, they then came upon Kuol Agang (the deceased) in Harrow Road, Auburn. Mr Agang was 28 years old. He was born in Sudan and had come to Australia on 8 September 2005 as a refugee with his wife and four children (then aged nine, seven, four and one) and Mr Agang's brothers (then aged 15, 14 and 13 years). Mr Agang's family had fled Sudan and had spent one year and nine months as refugees in Egypt before coming to Australia. 10 At this time, Mr Agang was walking home to Granville after visiting friends in Auburn with his wife. He had been assisting in the preparation of a meal for newly arrived refugees. His wife was still assisting this preparation when Mr Agang left to walk home as he was attending English classes early the following morning. 11 KT, SG and the other person came across Mr Agang walking north along the footpath in Harrow Road, Auburn. When the vehicle was near Mr Agang, KT threw an egg at him. The egg missed Mr Agang. Mr Agang retaliated by throwing either a can or a plastic bottle at the vehicle, striking the vehicle behind the back window. The evidence does not suggest that SG's vehicle was damaged by this act. A witness, Ngliep Tuan Lai, who was observing the incident from his home nearby in Harrow Road, observed Mr Agang to chase after the vehicle along Harrow Road. 12 SG continued driving down Harrow Road until he came to a roundabout. At the roundabout, SG turned his vehicle around and travelled back along Harrow Road. When the vehicle was opposite to Mr Agang, SG did a u-turn and stopped on the side of the road near the footpath where Mr Agang was. 13 The witness, Mr Lai, observed Mr Agang walking in the direction of the vehicle. Soon after, Mr Agang was standing near a fence outside the Omar Mosque. He was held back from approaching KT, SG and the other person by two persons. It is apparent that Mr Agang had become somewhat agitated as a result of KT throwing the egg at him. 14 KT and SG then got out of the vehicle and ran towards Mr Agang. As KT and SG approached, the witness, Mr Lai, observed that the two persons who had been holding back Mr Agang let him go. 15 After KT and SG had reached Mr Agang, words were spoken and KT said to Mr Agang "let's fight". Mr Agang had limited knowledge and ability to speak the English language. 16 KT, who was much larger then Mr Agang, then punched Mr Agang to the jaw. Although both KT and Mr Agang were about 180 cm tall, KT was thick set in build whilst Mr Agang was slim and weighed only 60 kgs. 17 The force of the punch by KT caused Mr Agang to fall to the ground. When he did, he struck his head on the ground. 18 When this occurred there was a noise, like a loud crack. The witness, Mr Lai, observing from his home some distance away, heard "a large noise" which he described as being "like a loud crack". This was the sound of Mr Agang's head hitting the ground. 19 KT then warned Mr Agang, saying, "You want more? I'll be back". At this time, Mr Agang remained lying on the ground. The witness, Mr Lai, heard KT say these words. 20 KT and SG then ran back to SG's vehicle. SG got back into the driver's seat and KT into the passenger's seat. The vehicle then sped off down Harrow Road. 21 SG then drove KT and the other person home before driving home to North Parramatta. 22 Shortly after the incident, police and ambulance were summoned by eyewitnesses. They arrived shortly after, at about 11.48 pm. At that time, Mr Agang was lying on the footpath unconscious with his pupils fixed and non-responsive. He had a haematoma and mass to the back of the head with a small amount of blood. He was taken to Auburn Hospital and then transferred to Westmead Hospital where he was operated upon for a subdural haematoma on 1 February 2006. On 4 February 2006, a CT scan was performed which showed loss of grey white differentiation suggesting brain infarction. A subsequent nuclear medicine brain scan showed there was no blood flow to the brain, confirming the patient had died. 23 A post mortem examination was conducted upon Mr Agang by Doctor Little on 7 February 2006. She found, on examination, that the major external injuries to Mr Agang were:

(a) a fracture of the skull from the base to middle of the head, estimated to be 10 cm in length;

(c) abrasion to the rear of the skull. 24 The summary of the major internal injuries was "Massive injuries to brain. Brain was deformed and swollen, signs of significant trauma". 25 Police obtained registration details in relation to SG's green Ford Laser sedan and a search warrant was obtained for SG's premises at North Parramatta. SG was spoken to by police and admitted driving the vehicle about the time of the incident. He was arrested and taken to Parramatta Police Station where an ERISP was conducted with him, commencing at 7.30 am on 1 February 2006. He admitted ownership of the vehicle, driving the vehicle and that eggs were thrown from his vehicle, including the egg thrown at Mr Agang. He said that KT jumped out of the vehicle (Q.191) and said "let's fight" (Q.215) and straight away threw a punch at Mr Agang (Q.221). He said that it was a hard punch (Q.469-470) and, when Mr Agang was hit he fell straight to the ground (Q.239). SG heard a "boom" noise when Mr Agang fell down (Q.248,249). 26 At 9.25 pm on 1 February 2006, police executed a search warrant at KT's home, but KT was not at home at the time. 27 AT 9.30 am on 3 February 2006, KT attended Auburn Police Station with his father and a solicitor and was placed under arrest. An ERISP was conducted with him. KT said that eggs had been obtained for "egging" to "have some fun" (Q.46, 117). He said that an egg had been thrown at a guy (Q.46) and missed (Q.188-194) and that he had thrown the egg. KT said that the person started running after the vehicle and threw a can of coke at it. He said that he was telling the person "why did you do that for?" (Q.248). He said that this person was short (Q.287) and was not a large person (Q.288). The man was smaller than KT (Q.283). KT agreed that he was solid and the other person was thin (Q.587-589). KT said that he hit the person pretty hard (Q.323), like a normal punch (Q.324), and he went down (Q.330) and hit his head (Q.332). KT said that he never thought this would happen (Q.345). KT thought the punch would hurt him (Q.396). After Mr Agang was hit, KT believed he had probably been hurt (Q400-401). KT said that he was going to speak to Mr Agang "cause he canned the car" (Q.603). KT was asked (Q.604-605): "Q604 But as you've stated yourself you've, you've threw an egg at him to start with?

Q605 So were you angry at Mr Kuol for throwing a can at the car?

A Yeah, I was pretty angry but I didn't do nothing, went to talk to him." 28 On 7 February 2006, KT was arrested and charged with the murder of Mr Agang. He has remained in custody since that time.

Manslaughter by Unlawful and Dangerous Act 29 It is common ground that the plea of guilty of KT to manslaughter was entered on the basis of the commission of an unlawful and dangerous act, being the assault upon Mr Agang which caused him to fall and strike his head heavily to the ground, thereby sustaining fatal injuries. 30 Manslaughter by an unlawful and dangerous act, carrying with it an appreciable risk of serious injury, is a category of involuntary manslaughter. Involuntary manslaughter is so called because, unlike murder, it involves neither intent to cause death or grievous bodily harm to the victim, nor the other mental elements necessary for murder: The Queen v Lavender (2005) 222 CLR 67 at 70 [2]. This form of manslaughter exists because of the importance which the law attaches to human life: The Queen v Lavender at 82-83 [40]. 31 The physical element is the unlawful and dangerous act which causes the death. The mental element required relates to the unlawful and dangerous act; that act must be willed and not accidental: Wilson v The Queen (1991-1992) 174 CLR 313 at 328. The only relevant intent of the accused is an intent to do the act that was unlawful and dangerous and that inadvertently caused death: The Queen v Lavender at 82-83 [40]. For a person to be guilty of manslaughter by an unlawful and dangerous act, the circumstances must be such that a reasonable person in the position of the accused would have realised that he or she was exposing another or others to an appreciable risk of serious injury. It is not sufficient that there was a risk of some harm resulting, albeit not serious harm: Wilson v The Queen at 332-334. 32 It is appropriate to bear these principles in mind in approaching the question of sentence in the present case. The Offender's plea of guilty constitutes an admission of all the essential elements of the crime of manslaughter: Maxwell v The Queen (1995-1996) 184 CLR 501 at 510. Those elements are as set out above. In due course, I will consider and make findings with respect to the objective seriousness of this particular offence, taking as a starting point the elements of the crime admitted by the Offender's plea of guilty.

Sentencing for Manslaughter 33 The maximum penalty prescribed for the offence of manslaughter is imprisonment for 25 years: s.24 Crimes Act 1900. 34 The offence of manslaughter involves the unlawful taking of a human life, and as such it has long been recognised as one of the most dreadful crimes in the criminal calendar: R v Hill (1981) 3 A Crim R 397 at 402. In R v MacDonald (Court of Criminal Appeal, 12 December 1995, BC9501664), the Court (Gleeson CJ, Kirby P and Hunt CJ at CL) said at page 8: "Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. (See R v Hill (1981) 3 A Crim R 397 at 402.) The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system." 35 In R v Blacklidge (Court of Criminal Appeal, 12 December 1995, BC9501665), Gleeson CJ (Grove and Ireland JJ agreeing) said at page 4: "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability." 36 Manslaughter is almost unique in its protean character as an offence: R v Forbes [2005] NSWCCA 377 at [133]-[134]. 37 The importance of denunciation in sentencing for manslaughter has been stressed: R v MacDonald, above, at page 9. Little assistance is to be gained by reference to sentencing statistics which encompass all forms of manslaughter, save so far as they disclose a broad range within which sentences have been passed since their compilation began: R v Mohamad Ali [2005] NSWSC 334 at [61].

KT's Subjective Circumstances 38 There is a substantial body of evidence before the Court concerning KT's background and subjective circumstances. This evidence is contained in the background report dated 18 January 2007 prepared by officers of the Department of Juvenile Justice for the purpose of s.25 Children (Criminal Proceedings) Act 1987, a report dated 1 November 2006 of Mr Peter Champion, clinical psychologist, tendered in the defence case, and the oral evidence of KT's mother and Esam Issa, KT's employer at the time of his entering custody on 7 February 2006. 39 KT did not give evidence in the sentencing proceedings.

Family Background 40 KT was born on 5 February 1989 in Australia. He is the second eldest of five children in the family. KT's parents are of Lebanese descent, but married in Australia and all the children were born in Australia. KT's eldest sibling is married and resides independently with her husband whilst his younger siblings live with their parents in the Auburn area.

Criminal History 41 KT has no prior criminal history.

Educational and Employment History 42 KT was educated at schools in the Auburn and Granville areas and completed Years 7 to 10 and obtained his School Certificate. It appears that KT was suspended on two occasions in Year 8 for fighting with peers and was struggling to an extent with studies. He started truanting which escalated by Year 10. Nevertheless, he obtained his School Certificate. 43 Following his departure from school, KT enrolled in a sheet metal work/boiler-making course at a TAFE college, where he attended full time for six months. KT stated that he was not successful in finding employment in this area and ceased attending the course in order to commence full-time employment. Since leaving his TAFE studies, KT has worked as an apprentice plumber, and then as a tiler, for short periods before eventually securing full-time employment as a cabinet maker with a firm in Yennora, where he had been working for six months prior to his arrest. 44 According to the background report, KT stated that he enjoyed cabinet making and was planning a return to TAFE studies just prior to his incarceration, so that he could obtain an apprenticeship and receive qualifications to become a certified cabinet maker/carpenter. 45 The oral and documentary evidence confirmed that KT was a punctual, well-mannered and respected worker, whose work was said to be "quite good". Mr Issa stated that, upon KT's release from custody, he would provide employment for him once again in the cabinet-making business (T20, 1 February 2007).

Drug and Alcohol Use and Associates 46 According to the background report, KT did not present as a young man with a history of problematic drug or alcohol use. He admitted to experimenting with cannabis on one occasion when he was 15 years of age, however stated that he did not enjoy the experience and believed it was a waste of money. Similarly, KT stated that he had tried alcohol on one occasion when he was 16 years of age, but that he did not enjoy the taste and could not finish his drink. There is no suggestion that alcohol or drug use by KT played any part in the commission of the present offence. 47 According to the background report, KT socialises primarily with his younger brother and with close friends whom he met at school. He stated that their activities are typical of most adolescents and generally involves spending time in each other's homes, listening to music, watching television, going to the beach and occasionally playing football. KT stated that he did not associate with peers who are involved in anti-social activities or who have involvement with the legal system. KT's mother reported that she did not hold any concerns regarding her son's peer associates and that she is familiar and accepting of those peers who visit her home. 48 A number of character references tendered in the defence case speak highly of KT and his family. The authors of the references describe KT as a person not given to violence.

Conduct in Custody 49 KT was admitted to Cobham Juvenile Justice Centre on 8 February 2006 and was subsequently transferred to Kariong Juvenile Justice Centre on 14 February 2006, where he has remained until the present time. According to the background report, KT initially experienced some difficulty settling into the institutional routine, primarily resulting from the stress of being incarcerated and being separated from his family. After this initial period, KT's behaviour has reportedly been of a high standard and he has progressed onto the highest unit in the Centre. KT has taken on the position of the Centre sweeper under the supervision of the maintenance overseer. According to the welfare officer, this position is a privileged appointment and involves cleaning the administration office, clinic and other parts of the building. Centre staff reported that KT appears to be a mature, co-operative and hard-working young man with a polite manner. 50 KT has been involved in one violent incident only since being admitted to Kariong, being a fight with another inmate on 28 May 2006. According to the background report, perusal of staff reports and consultation with the welfare officer indicates that the other inmate instigated the assault on KT which resulted in KT's jaw being fractured. KT was hospitalised and underwent an operation to repair the injury on 2 June 2006. 51 The background report concluded that KT presents as a mature and friendly young man who appears to experience a close relationship with his parents and siblings. He appears to be capitalising on the opportunities presented to him in the custodial setting and continues to receive strong family support.

Psychological Report Concerning KT 52 A clinical psychologist, Mr Champion, administered to KT the Wechsler Adult Intelligence Scale (WAIS-III) test, which is a standard test of ability for those aged 16 years and over. The results obtained by Mr Champion were the subject of a number of specific submissions by Ms Yehia, counsel for the Offender. It is appropriate to refer to a number of Mr Champion's findings. 53 On the WAIS-III, KT achieved an overall score (or Full Scale IQ) at the top of the borderline disabled range (eighth percentile). The Verbal Scale IQ (low average, 12th percentile) and Performance Scale IQ (borderline disabled, eighth percentile) did not vary to a statistically significant degree. Mr Champion observed (paragraph 12): "The picture is one of a reasonably global limitation of intelligence (as reflected in the grosser measures or IQ scores), but not to a level where a formal diagnosis of developmental disability could or would be considered." 54 Mr Champion expressed the following conclusions concerning KT's intellectual status (paragraphs 16-18): "[16] He is perhaps best seen as a very unsophisticated and intellectually limited individual, with poor reasoning skills and a markedly under-developed level of language based skills.

[17] As indicated, while KT demonstrates significant cognitive deficits in many areas, his scores are above the level where a formal diagnosis of developmental disability as per the DSM-IV criteria would be contemplated; and his scores are above the level where IM placement at school would have been a normal consequence.

[18] I think that these test results have some significance in terms of the issue of mitigation, given that his language based skills and reasoning abilities are not particularly well formed, and hence foresight and judgment could be expected to be impacted." 55 KT has no history of psychiatric illness or disorder. Mr Champion concluded (paragraph 27): "[27] In sum KT does not present with obvious signs of a major form of mental illness, psychological disturbance, neurological impairment or problematic AOD [alcohol or drug] history. The significant feature of his presentation continues to be his intellectual limitations and lack of sophistication. There are no obvious indicators for formal psychotherapy, or the consideration of psychotropic medication." 56 With respect to KT's involvement in the present offence and the issue of future dangerousness, Mr Champion concluded (paragraph 42): "[42] In sum, on the basis of this single assessment, and the history as I know it, ones thinks that the 'risk' of future violence (of a criminal type) should probably be rated as low. The general impression is of a pointless form of adolescent bravado or perhaps more correctly machismo (in a group situation, ie. with associates being there or there about), demonstrated by an intellectually limited and naive young man who was 16 at the time of the offence." 57 Mr Champion recommended that consideration be given to KT serving any sentence in juvenile detention, given his age and limitations, rather than in the adult prison system. I will return to submissions concerning this issue, and s.19 (3) Children (Criminal Proceedings) Act 1987, later in these reasons.

Victim Impact Statement 58 A victim impact statement of Ms Nyanner Agouk, the widow of Mr Agang, was read to the Court by her solicitor. I acknowledge receipt of the victim impact statement and make a number of comments on it which I consider to be appropriate: s.29(3) Crimes (Sentencing Procedure) Act 1999. 59 That statement revealed the profound consequences upon Ms Agouk, her children and her brothers-in-law resulting from the death of Mr Agang. She has lost her husband, her children have lost their father and her brothers-in-law have lost their eldest brother and mentor. As Ms Agouk stated with eloquence and dignity, the family had escaped persecution and the risk of death only to be met, within months, with the sudden and senseless death of Mr Agang. I express the sympathy of the Court and the community to Ms Agouk and her family for this great tragedy. 60 In R v MacDonald, referred to earlier in this judgment, Gleeson CJ, Kirby P and Hunt CJ at CL emphasised the protection of human life and personal safety as a primary objective of the system of criminal justice. Their Honours said (at page 8): "Sometimes, as in the present case, the personal qualities of a victim of unlawful homicide will serve to focus attention upon this important aspect of sentencing law. This is not because the punishment for homicide varies according to the personal qualities and characteristics of the victim. Rather, the qualities of a particular victim may serve as a useful reminder of the quality of human life itself, and of all that is involved in taking it away."

This observation is appropriate to the present case. 61 One of the purposes of reading the victim impact statement publicly in the sentencing proceedings is to bring home to the Offender, and others who might act in a similar way, the appalling consequences of the Offender's actions, extending beyond the death of Mr Agang, which have resulted from a senseless act of violence committed upon a stranger in a public place. The profound and calamitous consequences upon Mr Agang's family will be entirely clear to the Offender. As the Crown accepts, the law of this State makes clear that a greater sentence cannot be passed because of the impact of the crime on the victim's family: R v Previtera (1997) 94 A Crim R 76 at 84-87; R v FD and JD (2006) 160 A Crim R 392 at 415-416 [103]-[105], 428 [170]-[171].

Objective Seriousness of Offence 62 A central issue in the determination of sentence is an assessment of the objective seriousness of the offence. As the authorities referred to earlier in these reasons make clear, a wide range of criminal conduct is encompassed in the crime of manslaughter. It is necessary to consider the particular circumstances of the present case, by reference to relevant statutory and common law criteria, to form a conclusion concerning this question. 63 I will consider a number of submissions advanced with respect to discrete topics, before turning to the ultimate question relating to objective seriousness.

Was the Offence Committed in Company ? 64 The Crown submitted that KT's offence was committed in company and that this was an aggravating factor within s.21A(2)(e) Crimes (Sentencing Procedure) Act 1999. Ms Yehia submitted that the Court should not be satisfied that KT's offence was committed in company. 65 The evidence reveals that, after KT threw the egg at Mr Agang, who responded by throwing a can or plastic bottle at the vehicle, SG drove up the street, but then turned at a roundabout and drove to the vicinity where Mr Agang was standing. Both KT and SG alighted from the vehicle and ran towards Mr Agang. After they reached Mr Agang, KT said "let's fight" to Mr Agang and then struck him with one powerful blow to the jaw, felling Mr Agang. SG was at the scene of the assault, having accompanied KT from the vehicle. There is no evidence that SG did or said anything prior to the blow being struck by KT. It would have been apparent to Mr Agang that two persons approached him from the vehicle, although only KT spoke and then struck Mr Agang. 66 The meaning of the term "in company" in provisions of the Crimes Act 1900 has arisen for consideration in a number of cases, some of which were referred to in submissions. In R v Leoni [1999] NSWCCA 14, the Court considered the elements of the offence of robbery in company in s.97(1) Crimes Act 1900. Adams J (Abadee and Barr JJ agreeing) said at [16]: "The crucial question arising for decision in this case, is what is meant by the phrase 'being in company'. In R v Brougham (1986) 43 SASR 187, King CJ said (at 191) - A person commits a robbery, or an assault with 'intent, in company, where that person participates in the robbery or assault together with another or others in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing, or assaulting with intent, and of physically participating if required'." 67 In R v Villar and Zugecic [2004] NSWCCA 302, the Court considered the meaning of the term "in company" for the purpose of the offence of aggravated sexual assault under s.61J Crimes Act 1900. Grove J (Simpson and Howie JJ agreeing) at [68], applying R v Leoni, observed that "where a victim is confronted by the combined force or strength of two or more persons, that will be sufficient (to fulfil a circumstance of aggravation) 'even if the offender did not, as it happens, intend to physically participate if required'". 68 In R v Button and Griffen (2002) 54 NSWLR 455, the Court of Criminal Appeal considered the term "in company" for the purpose of the offence of aggravated sexual assault in s.61J Crimes Act 1900. Kirby J (Heydon JA agreeing) considered a number of authorities in R v Brougham (1986) 43 SASR 187 and R v Leoni and said at [120]: "What emerges from these cases? A number of propositions can be stated:

· First, the statutory definition (s61J(2)(c)) requires that the offender be 'in the company of another person or person'.

· Secondly, the accused and such person, or persons, must share a common purpose (either to rob, or as here, sexually assault).

· Thirdly, the cases appear to assume that each participant is physically present.

· Fourthly, participation in the common purpose without being physically present (for example, as a look-out or as an accessory before the fact) is not enough.

· Fifthly, the perspective of the victim (being confronted by the combined force or strength or two or more persons) is relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be 'in company', even if the victim was unaware of the other person." 69 In the present case, Ms Yehia emphasises the fact that the Crown has indicated a preparedness to accept a plea of guilty from SG to a charge of being an accessory after the fact to assault occasioning actual bodily harm of Mr Agang (T5.43, 1 February 2007). This has come to pass with SG before me today following his plea of guilty to an indictment containing that sole count. She submits that such an approach by the Crown reflects an acceptance that SG's criminality arises from his conduct after KT struck Mr Agang, and not before. In these circumstances, in particular, Ms Yehia submits that the Court cannot be satisfied that KT's offence "was committed in company" for the purpose of s.21A(2)(e). 70 More than physical presence of another person is required for an offence to be committed "in company". Although SG accompanied KT from the vehicle and was present when KT struck Mr Agang, I am not satisfied that these facts give rise to a finding that KT's offence was "committed in company" within the meaning of s.21A(2)(e). I am not satisfied that the aggravating factor in s.21A(2)(e) is demonstrated in this case.

Was KT's Offence Part of a Planned or Organised Criminal Activity ? 71 The Crown submits that KT's offence was part of "a planned … criminal activity" so as to be a factor in aggravation by reference to s.21A(2)(n) Crimes (Sentencing Procedure) Act 1999. Ms Yehia submits that the Court ought not be satisfied that this aggravating factor exists in this case. 72 The Crown submits that KT, SG and the other person embarked upon planned criminal activity, involving travelling around the suburb of Auburn in a vehicle for the purpose of throwing eggs at citizens in the street. It was submitted that the propulsion of eggs at individuals in the street constituted an assault on each person treated in that way. The Crown submits that it was clear to KT and his companions that persons at whom eggs were thrown in a public street for no apparent reason would, whether the egg struck or not, become upset, fearful or agitated as a result. It was submitted that the reaction of Mr Agang was entirely predictable and that KT demonstrated, by his actions, a willingness to engage in a violent confrontation as part of the planned criminal activity of assaulting persons by propelling eggs at them. 73 The wording of s.21A(2)(n) conveys more than simply that the offence was planned: Fahs v R [2007] NSWCCA 26 at [21]. 74 I accept that the throwing of an egg at a person is capable of constituting an assault, whether or not the egg strikes the person. I accept that KT planned to engage in that activity. However, the offence here involved the striking of a blow to Mr Agang at a time when both persons were standing in the street, some time after the egg was thrown. 75 Although the throwing of the egg was the first act in a series of events which led to the death of the victim, I am not satisfied that the offence of manslaughter was part of planned criminal activity, in the sense envisaged in s.21A(2)(n) of the Act. I am not satisfied that this particular statutory aggravating factor is made out in this case. 76 However, the course of conduct engaged in by KT over a period of time before the confrontation with Mr Agang is relevant to a determination of the objective seriousness of the offence. I will return to this factor later in these reasons. 77 Ms Yehia submits that the Court should find, as a mitigating factor for the purpose of s.21A(3)(b), that the offence was not part of a planned or organised criminal activity. It was submitted that the Offender's conduct in throwing the egg at the deceased ought be considered as remote from the Offender's subsequent conduct in striking Mr Agang to the face, and that the striking of the blow was "impulsive in nature". I am not satisfied that this is an appropriate characterisation of the Offender's conduct. The fact that an aggravating factor in s.21A(2)(n) is not established does not lead to the obverse finding that the mitigating factor under s.21A(3)(b) is necessarily proved. I do not accept Ms Yehia's submission that the mitigating factor in s.21A(3)(b) is demonstrated in this case.

Was the Offender Not Fully Aware of the Consequences of his Actions Because of his Age or any Disability ? 78 Ms Yehia submits that a finding ought be made, as a mitigating factor, that the Offender was "not fully aware of the consequences of his actions … because of [his] age or any disability": s.21A(3)(j) Crimes (Sentencing Procedure) Act 1999. The foundation for the submission concerning disability is Mr Champion's report referred to earlier in these reasons. The Crown submits that the evidence does not support a finding that this mitigating factor is available in this case. 79 It is appropriate to take into account the age of the Offender in imposing sentence. I will return to that issue later in this judgment. 80 The issue raised by s.21A(3)(j), however, is whether the Court is satisfied, on the balance of probabilities, that the Offender was not fully aware of the consequences of his actions because of his age or any disability. 81 It does not seem to me that Mr Champion's report supports a finding that the Offender was not fully aware of the consequences of his actions because of any disability. Mr Champion's report does not demonstrate the existence of any mental illness, psychological disturbance, mental abnormality or developmental disability. Mr Champion described the Offender as "a very unsophisticated and intellectually limited individual". The Offender had engaged in a course of conduct, involving a type of nuisance activity over a period of time. The egg throwing was certainly immature. It was intended, at the least, to upset strangers walking in the street late at night. The conduct was undertaken for the amusement of KT and his companions. 82 The Offender was prepared to elevate the conduct to direct physical confrontation with a willingness, which he acted upon, to use substantial violence upon a stranger in the street. 83 The Offender was employed and appears to have functioned at a reasonable level in both his work and social life. 84 I am not satisfied that the mitigating factor contained in s.21A(3)(j) has been established in this case.

Assessing the Objective Seriousness of the Offence 85 The Crown submits that the facts disclose a very serious course of criminality in this case. It was submitted that the Offender intentionally obtained objects, namely eggs, to assault fellow citizens late at night in the street. After seeking out the victim and throwing an egg at him from a moving vehicle, the Offender returned to the victim to physically assault him. The Offender ran from the vehicle towards the victim. The Crown emphasised that KT was physically much larger than the victim. KT punched Mr Agang, causing him to fall to the footpath. From the blow and its effect, the victim was rendered unconscious. Thereafter, whilst the victim lay on the ground, KT threatened him with a further assault. KT then ran back to the vehicle and drove from the area without ever considering the welfare of the victim or rendering any assistance to him at all. 86 The Crown submitted that a civilised society cannot tolerate the behaviour exhibited by the Offender, where a citizen cannot walk the streets at night without being assaulted by projectiles thrown from a moving vehicle, and then being further assaulted and left on the footpath. 87 Ms Yehia submits that the egg-throwing conduct of KT and his companions ought be understood, using Mr Champion's words, as a pointless form of adolescent bravado or machismo which escalated, impulsively and quickly, into an incident where a single forceful blow was struck by KT to Mr Agang which, tragically, caused him to strike his head forcefully on the ground, thereby sustaining fatal injuries. Without seeking to in any way blame Mr Agang for what occurred, Ms Yehia submits that Mr Agang's act of throwing the can or bottle, and thereafter being agitated, had escalated the incident in a manner which was relevant to an assessment of KT's criminal culpability. Taking into account the single punch, the impulsive nature of the act and the absence of a follow-up assault, it was submitted that the offence lay at the lower end of the range of objective seriousness for the offence of manslaughter. 88 I have given careful consideration to the submissions advanced on this question. In assessing the objective seriousness of the crime, it is necessary to place the fatal blow in its broader factual context. 89 KT was travelling in a vehicle late at night in a suburb of Sydney, having determined to act in a way designed, at least, to frighten and upset strangers in the street. The activity was being undertaken for the enjoyment of KT and his companions, at the expense of the strangers subjected to "egging". 90 The Crown submitted this was a form of gang activity. I do not accept this submission. However, it is appropriate to characterise it as hoodlum behaviour. It was entirely predictable that a person subjected to this activity would react in an angry fashion. The sudden reaction of Mr Agang to throw his can or bottle of drink at SG's vehicle, and to remain agitated, was both predictable and, viewed in context, understandable. That act, however, did not injure any person in the vehicle or threaten to injure any person. Nor, as it happened, did it damage the vehicle. 91 KT and his companions did not simply drive away, leaving an upset Mr Agang in the street. The vehicle travelled to a roundabout and returned in the direction of Mr Agang and was parked near him. Mr Agang remained upset. He was restrained by other persons in the street and posed no threat to KT. Nevertheless, KT left the vehicle and moved quickly to the spot where Mr Agang stood. 92 KT, although 16 almost 17 years of age, was physically much larger than the slender and light Mr Agang. A photograph of KT, taken on 3 February 2006, depicts a tall young man of solid build, with a goatee beard and a mohawk haircut. 93 KT immediately invited confrontation with the words "let's fight" directed to Mr Agang. At that time, Mr Agang did not represent an actual threat to KT. 94 KT struck a very forceful blow to Mr Agang's head, causing him to fall to the ground. KT did not pull his punch. The punch was intended to hurt Mr Agang, although KT did not intend to kill him or cause him grievous bodily harm. KT's punch was intended to punish Mr Agang for his audacity in reacting to the "egging" in the way in which he did. 95 A loud crack resulted from Mr Agang's head hitting the ground. The sound was obvious to all around, including a witness to the event some distance away. I am satisfied beyond reasonable doubt that the sound was heard by the Offender. He realised that Mr Agang had been injured. Rather than offering assistance to Mr Agang, KT said loudly "You want more? I'll be back." KT and SG then departed quickly by vehicle, leaving Mr Agang lying on the footpath. 96 I accept that KT was not aware of the full extent of injuries suffered by Mr Agang at the time when he departed. In the records of interview of KT and SG, it is stated that the victim's eyes were open and that he appeared to be conscious. However, KT had heard the loud crack as the victim's head hit the footpath. Mr Agang was not immediately returning to his feet. At the time when KT determined to quickly leave the scene, he was in no position to conclude that Mr Agang was in a fit state. Rather than offer any assistance, KT made a further threat of violence directed to the victim and then departed. 97 The violence of the Offender was perpetrated in a public street where persons were present, and where it would be a particular affront to civil peace to have a man killed in this way: R v Inzitari (Court of Criminal Appeal, 28 March 1985, unreported). This was a brutal and cowardly act directed to a stranger in the street: R v MD (2005) 156 A Crim R 372 at 379 [24]. 98 KT was not affected by alcohol or drugs at the time of the offence. He did not suffer from any mental illness or disorder or mental disability. I do not consider that Mr Champion's assessment that the Offender was an unsophisticated and intellectually limited individual bears in any significant way upon an assessment of the objective seriousness of this offence. 99 I have regard to the fact that a single punch was thrown and that no weapon was used. I have regard to the fact that it was the striking of Mr Agang's head on the ground which produced the fatal injuries. Nevertheless, having regard to the wider context surrounding the offence, I am satisfied that the present offence is an objectively serious one. The objective seriousness exceeds the level submitted by counsel for the Offender. The Offender's Plea of Guilty 100 It was submitted for the Offender that a discount of 25% ought be allowed by reference to the Offender's plea of guilty: s.21A(3)(k), s.22 Crimes (Sentencing Procedure) Act 1999; R v Thomson and Houlton (2000) 49 NSWLR 383. The Crown accepted that this was an early plea, but did not concede that it was entered at the earliest opportunity. 101 The Offender was charged with murder on 7 February 2006. Evidence was given by Ms Joanne Harris of the Legal Aid Commission that she had come into the matter on 18 April 2006. The final parts of the Crown brief, including the post mortem report and record of interview with SG, were served on 7 June 2006. On 8 June 2006, Ms Harris appeared for KT before the Lidcombe Children's Court. The matter was adjourned to 19 July 2006 to permit submissions to be made to the Director of Public Prosecutions indicating a willingness on KT's part to plead guilty to manslaughter. For reasons explained by Ms Harris in her evidence relating to illness of counsel, the submission was not made to the Director of Public Prosecutions prior to 19 July 2006, on which date KT was committed for trial on the charge of murder. By letter dated 15 August 2006, Ms Harris submitted to the Director of Public Prosecutions that KT was prepared to plead guilty to manslaughter and requested that the Crown accept that plea in full satisfaction of the indictment. As I have mentioned, when KT was arraigned before Whealy J on 1 September 2006, the Crown took that course. 102 I am not at all sure that evidence which explains the reasons for a delay in plea is relevant to an assessment of discount to be given by reference to the principles in R v Thomson and Houlton: R v Stambolis (2006) 160 A Crim R 510 at 513-515 [8]-[14]. 103 Nevertheless, I accept that active steps were contemplated on KT's behalf before committal for trial to offer a plea of guilty to manslaughter. A submission to that effect was not made before committal in circumstances beyond the control of KT. Soon after committal, KT offered such a plea which was accepted by the Crown on his first appearance in this Court. In these circumstances, I am prepared to allow a discount of 25% for the Offender's plea of guilty by reference to the principles in R v Thomson and Houlton.

Remorse 104 Counsel for the Offender submits that KT has demonstrated remorse which ought be taken into account under s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It was submitted that the Offender had expressed regret for his actions to the officers who prepared the background report and to Mr Champion. Further, the Offender wrote a letter dated 6 September 2006 to the victim's widow apologising for his actions. The letter (Exhibit 2) was provided to the Crown's instructing solicitor, but the view was taken by the Crown that it should not be forwarded on to Ms Agouk. Nevertheless, Ms Yehia submits that the writing of the letter demonstrated remorse on the Offender's part. In addition, it was submitted that the Offender's early plea of guilty indicated genuine remorse and contrition on is part. 105 The Crown submits that there are certain impediments to a finding in the Offender's favour with respect to remorse. Reference was made to KT's departure from the scene immediately after striking Mr Agang, without any concern for his then state of health, and with threatening words being directed to him by KT. The Crown submits that, although KT was aware from the evening of 1 February 2006 that police wished to speak to him concerning the incident, he did not present himself until the morning of 3 February 2006 for interview. The Crown submits that the contents of the record of interview with KT did not provide support for a finding of contrition and remorse, although it was apparent to KT, at that time, that Mr Agang was seriously injured. 106 There are features in this case which operate for and against the Offender with respect to remorse. His departure from the scene, accompanied by a verbal threat to Mr Agang, is inconsistent with any remorse or contrition on his part at that time for the consequences of his blow to Mr Agang. There was no offer of assistance. Indeed, the contrary occurred with KT directing intimidating words to the victim. 107 I do not consider that any delay between the evening of 1 February and the morning of 3 February 2006 in KT's attendance upon the police operates adversely to him on this issue. It is the fact that he did present himself, together with his father and a solicitor, on the morning of 3 February 2006 and agreed to provide a lengthy interview with the police. 108 In my view, the contents of the record of interview do not provide particular assistance to the Offender on the issue of remorse. A number of admissions are made, but there are other areas where answers are given which do not support the then existence of remorse. 109 I accept that the Offender's expressions of remorse, directed to officers of the Department of Juvenile Justice and to Mr Champion, are genuine. The observations and assessment of his conduct in custody in the past year provide some support for the genuineness of this remorse. Undoubtedly, he has had an opportunity to consider the consequences of his actions. 110 In my view, there was a very strong Crown case against the Offender with respect to the crime of manslaughter. This factor is relevant to the assessment of remorse by way of entry of the plea of guilty to that charge. 111 In summary, I am satisfied that the conduct of the Offender immediately after striking the victim, and in subsequent days, did not demonstrate remorse on his part. However, in the period during which he has been in custody, he has developed genuine remorse for his crime. I will take this into account in his favour in determining sentence. It is relevant to an assessment of his prospects of rehabilitation and the likelihood of him committing further offences in the future: R v MAK and MSK [2006] NSWCCA 381 at [41].

The Offender's Youth 112 The Offender has pleaded guilty to a serious children's indictable offence and must be dealt with according to law: s.17 Children (Criminal Proceedings) Act 1987. 113 Section 6 Children (Criminal Proceedings) Act 1987 provides as follows: " Principles relating to the exercise of criminal jurisdiction

A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles:

(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind." 114 Ms Yehia placed particular reliance upon s.6(b), (c) and (d) in her submissions on sentence. Reliance was placed on the principle that, when sentencing young offenders, considerations of punishment and general deterrence should generally be regarded as subordinate to the need to foster rehabilitation: R v GDP (1991) 53 A Crim R 112. Ms Yehia acknowledged that this principle has been qualified in later cases, particularly where the offending behaviour has demonstrated that the young offender has conducted himself in a way that an adult does: R v Tran [1999] NSWCCA 109 at [9]. 115 It was submitted, however, that the present case called for application of the general principle with respect to sentencing a young offender. It was submitted that the Offender was not conducting himself as an adult. It was submitted that he was behaving in a childish and immature manner in throwing eggs at persons, and had reacted impulsively to the victim hitting the car with an object. He struck one blow to the deceased and then walked away. 116 The Crown acknowledges that the age of an offender can mitigate an appropriate sentence. However, the Crown submits that these considerations have very much less weight when an offender has behaved with extreme violence or has acted as an adult: R v Tran at [9]; R v Hoang [2003] NSWCCA 380 at [44]. Further, the Crown submits that the weight to be given to these considerations diminishes the closer the offender approaches the age of maturity: R v Hoang at [45]. Reliance was placed upon the remarks of Lee CJ at CL in R v Pham and Ly (1991) 55 A Crim R 128 at 135 concerning offences of violence committed by young persons. Reliance was placed upon R v DSW [2003] NSWCCA 322, where Barr J (Studdert and Whealy JJ agreeing) said at [24]: "The Crown acknowledged that general deterrence is generally not as important in fashioning sentences to be imposed upon young offenders and that consideration of rehabilitation is correspondingly more important. Reference was been made to R v GDP (1991) 53 A Crim R 112. The Crown also correctly submitted, by reference to cases like R v Pham (1991) 55 A Crim R 128, R v Hawkins (1993) 67 A Crim R 64 and R v Gordon (1994) 71 A Crim R 459, that the need to protect the community requires that deterrence and retribution remain significant elements even in sentencing youthful offenders." 117 I have given careful consideration to these submissions. The Offender was 16, almost 17, years of age at the time of the offence. His initial conduct, involving the throwing of eggs at persons in the street, has an element of immaturity about it. However, his conduct in returning to the place where Mr Agang stood for the purpose of engaging in a violent confrontation, which led to the infliction of a very powerful blow by him which felled Mr Agang, was not juvenile behaviour. The Offender was powerfully built with the appearance of a young man, and not a child. He had left school and was in employment and was living a life closer to that of an adult than a child. He was out with friends late in the evening. 118 In my view, the factors of punishment and deterrence are significant factors on sentence in this case. General deterrence is an important factor in this case. Young persons must be made aware that the vulnerability of human beings requires restraint by others and a rejection of unprovoked violent assaults: R v MD at 389 [73]. Specific deterrence is less important, as the Offender has developed some insight into his offence and now has become contrite. However, this was an objectively serious offence committed by a young man living in an adult world. Although the provisions of s.6 Children (Criminal Proceedings) Act 1987 and sentencing principles with respect to young offenders remain relevant, it is appropriate in this case to reflect on sentence the elements of punishment and deterrence which must not be subsidiary to the rehabilitation of the Offender.

The Appropriate Sentence 119 I have had regard to the objective seriousness of the offence to which reference has been made earlier in this judgment. I have had regard to the Offender's plea of guilty, remorse (to the extent outlined earlier), prior good character, age, good prospects of rehabilitation and the matters contained in the background report and the report of Mr Champion. 120 At the heart of the offence of manslaughter is the taking of a human life. The infliction of violence upon a stranger in a public street is always serious. Where the act of violence causes the death of a person, the Courts must denounce such conduct by imposition of appropriate sentences. A significant sentence of imprisonment is required in this case to punish and deter the Offender and to deter others who may engage in similar conduct. 121 Having regard to all the factors to which I have adverted, I am satisfied that the appropriate head sentence in this case is imprisonment for six years. 122 Counsel for the Offender has submitted that a finding of "special circumstances" should be made. Reliance is placed upon the Offender's youth and good prospects of rehabilitation, his prior good character and the availability of employment upon release together with the fact that this is the first time that the Offender has been incarcerated. I am satisfied that special circumstances have been demonstrated in this case. I propose to fix a non-parole period of four years. 123 It is appropriate that the sentence commence on the date when the Offender entered custody, 7 February 2006. 124 KT attained the age of 18 years on 5 February 2007. Accordingly, unless an order is made under s.19(3) Children (Criminal Proceedings) Act 1987, KT is not eligible to serve a sentence of imprisonment as a juvenile offender. Section 19 is in the following terms: " Court may direct imprisonment to be served as a juvenile offender

(1) If a court sentences a person under 21 years of age to whom this Division applies to imprisonment in respect of an indictable offence, the court may, subject to this section, make an order directing that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender. Note. The effect of such an order is that the person to whom the order relates will be committed to a detention centre (see subsection (6)). There he or she will be detained as specified in the order. In certain circumstances, he or she may subsequently be transferred to a correctional centre pursuant to an order under section 28 of the Children (Detention Centres) Act 1987.

(2) A person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 21 years, unless: (a) in the case of a sentence for which a non-parole period has been set - the non-parole period will end within 6 months after the person has attained that age, or

(b) in the case of a sentence for which a non-parole period has not been set - the term of the sentence of imprisonment will end within 6 months after the person has attained that age.

(3) A person who is sentenced to imprisonment in respect of a serious children's indictable offence is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years, unless: (a) the sentencing court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age, or

(b) in the case of a sentence for which a non-parole period has been set - the non-parole period will end within 6 months after the person has attained that age, or

(c) in the case of a sentence for which a non-parole period has not been set - the term of the sentence of imprisonment will end within 6 months after the person has attained that age. This subsection is subject to subsection (2).

(4) In determining whether there are special circumstances for the purposes of subsection (3), the court may have regard to the following matters: (a) the degree of vulnerability of the person,

(b) the availability of appropriate services or programs at the place the person will serve the sentence of imprisonment,

(5) A person who is subject to an order under this section that ceases or ceased to apply on the person attaining the age of 18 years may apply to the sentencing court for a further order under this section. Any such application requires the leave of the court.

(6) The warrant of commitment that is issued under section 62 of the Crimes (Sentencing Procedure) Act 1999 in relation to a sentence of imprisonment the subject of an order under this section: (a) must indicate that the sentence is the subject of such an order, and

(b) must specify how much of the sentence is to be served as a juvenile offender, and

(c) must, despite the provisions of that section, commit the person to whom it relates to a detention centre.

(7) Nothing in this section, or in any order under this section, limits the operation of section 28 of the Children (Detention Centres) Act 1987." 125 Counsel for the Offender submits that the Court should be satisfied that there are special circumstances, justifying detention of KT as a juvenile offender after the age of 18 years, for the purposes of s.19(3)(a) of the Act. It is submitted that KT is vulnerable (s.19(4)(a)) and reliance is placed upon the recommendation of Mr Champion with respect to detention as a juvenile offender. 126 Counsel for the Offender submits that the following factors support a finding of special circumstances for the purpose of s.19(3)(a) of the Act:

(a) this is the first contact which the Offender has had with the criminal justice system and the first time he has been incarcerated - he has already suffered a serious assault whilst in custody and is a vulnerable person;

(b) all indications are that the Offender is progressing well whilst he has been in custody and is now working as a sweeper, a position of trust;

(c) although now 18 years old, his limited cognitive abilities would place him in a vulnerable position in the prison system;

(d) the Offender's rehabilitation will be substantially enhanced by his continued detention as a juvenile offender: R v VDN [2004] NSWSC 426 at [57]. 127 The Crown submits that the Offender is a well-developed young male who would not be any more vulnerable than any other prisoner in gaol. The Crown submits further that the Offender would have available to him the appropriate services and programs to further his education and trade skills in an adult prison. 128 I have given careful consideration to the submissions advanced on this issue. The background report prepared by officers of the Department of Juvenile Justice, and the report of Mr Champion, provide substantial support for the finding of special circumstances advanced by counsel for the Offender. I accept that the Offender would be vulnerable in the adult prison system. Despite his physical size, he is not a threat to any person at the detention centre, staff or inmates. As Whealy J found in R v VDN, I am satisfied that the Offender's rehabilitation will be substantially enhanced by his continued detention in a juvenile detention centre. It is in the particular need of the Offender to maintain relationships with staff and others involved in his rehabilitation in the juvenile detention centre, that special circumstances may be found in this case: R v MB [2006] NSWSC 1164 at [36]. The assessment of Mr Champion concerning his intellectual ability is pertinent to this as well: DAC v R [2006] NSWCCA 265 at [23]. Accordingly, for the purposes of s.19(3) Children (Criminal Proceedings) Act 1987, I find that there are special circumstances justifying the detention of the Offender in a detention centre. 129 KT, for the crime of manslaughter to which you have pleaded guilty, I sentence you to a non-parole period of four years to date from 7 February 2006 and to expire on 6 February 2010, with a balance of term of two years to commence on 7 February 2010 and to expire on 6 February 2012. I find that there are special circumstances under s.19(3) Children (Criminal Proceedings) Act 1987. I direct that the Offender serve his sentence prior to release to parole as a juvenile offender. The Offender will be eligible to be released to parole on 6 February 2010.

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