R v Mark Terrence Woods

CATCHWORDS : Redetermination of life sentences for non-fatal offences - related sexual offences - pleas of guilty - applicant's conduct in custody - completed CUBIT program

Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Sentencing Act 1989 Sentencing Amendment (Transitional) Act 1997

Cameron v The Queen (2002) 209 CLR 339 Pearce v The Queen (1998) 194 CLR 610 R v Baker [2001] NSWSC 412 R v Baker (2002) 130 A Crim R 417 R v Bowtell [2000] NSWSC 803 R v Burchell (1987) 34 A Crim R 148 R v Crump (NSWCCA) unrep 30 May 1994 R v Durocher-Yvon (2003) 58 NSWLR 581 R v Page [2002] NSWSC 1067 CASES CITED : R v Purdy (1992) 65 A Crim R 441 R v Salameh [1999] NSWCCA 300 R v Totten [2003] NSWCCA 207 R v Towner [2002] NSWSC 951 R v Veen [2000] NSWSC 656 R v Websdale [2000] NSWSC 636 R v White [2000] NSWSC 555 R v Wright [2000] NSWSC 568 R v Thomson & Houlton (2000) 49 NSWLR 383 Veen v The Queen (No2) (1987-8) 164 CLR 465

P Power SC (Crown) COUNSEL : J Stratton SC (Applicant)

S Kavanagh - Solicitor for Public Prosecutions - Crown SOLICITORS : Legal Aid Commission

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT - Application for Redetermination of Life Sentences 1 HIS HONOUR: The applicant seeks a redetermination of two life sentences which were imposed upon him by Yeldham J on 5 May 1987. The applicant has been in continuous custody since his arrest on 4 December 1986 (a period of almost 19 years) in respect of these and related offences. 2 The applicant pleaded guilty to an indictment containing five counts, namely that he:

(1) being armed with an offensive weapon, namely a knife, did rob ML of $50, contrary to s 97 of the Crimes Act 1900 ;

(2) had sexual intercourse with ML at Cooks Hill without her consent, contrary to s 61B of the Crimes Act 1900 ;

(3) had sexual intercourse with ML at Merewether without her consent, contrary to s 61D of the Crimes Act 1900 ;

(4) maliciously set fire to a motor vehicle knowing that ML was in that vehicle, contrary to s 196 of the Crimes Act 1900 ;

(5) feloniously wounded ML with intent to murder her, contrary to s 27 of the Crimes Act 1900 .

Each of the latter two offences at the time attracted a maximum penalty of penal servitude for life. 3 In respect of each of counts 4 and 5, Yeldham J sentenced the applicant to penal servitude for life. In respect of count 1, his Honour sentenced the applicant to 12 years penal servitude and in respect of each of counts 2 and 3, his Honour imposed sentences of 7 years penal servitude. In the circumstances his Honour declined to fix non-parole periods for the sentences imposed in respect of counts 1 - 3. All sentences were ordered to be served concurrently and to date from 4 December 1986. It is to be observed that the determinate sentences which his Honour imposed expired some considerable time ago. This application is thus concerned only with the sentences imposed in respect of counts 4 and 5. 4 On 1 October 1987, the Court of Criminal Appeal refused the applicant leave to appeal against the sentences imposed by Yeldham J. 5 It is common ground that the legislation which governs this application is s 13A of the Sentencing Act 1989. That Act was repealed by the Crimes (Sentencing Procedure) Act 1999 on 3 April 2000. Section 104 of the latter Act, which is concerned with transitional provisions, provides that "Schedule 2 has effect". Clause 21 of Schedule 2 provides that: "(1) Any application under section 13A of the 1989 Act that had been made, but not determined before the appointed day (3 April 2000) is to be determined in accordance with Schedule 1 to this Act, (2) Subclause 1 does not apply to an application referred to in clause 8(1) of Schedule 2A to the 1989 Act as in force immediately before the appointed day." 6 Clause 8(1) of Schedule 2A of the 1989 Act provides that: The amendments made by the amending Act to section 13A apply in relation to an application made by any person under that section before the date (8 May 1997) on which the Bill for the amending Act was introduced into Parliament (as well as in relation to applications made on or after that date), unless the application had been fully dealt with (or had been heard, with judgment reserved) before the date (13 May 1997) on which the Bill for the Sentencing Amendment (Transitional) Act 1997 was introduced into Parliament. 7 In R v Veen [2000] NSWSC 656, Sully J observed that '[t]he 1997 amendments…were given retrospective effect by the Sentencing Amendment (Transitional) Act 1997". His Honour accordingly concluded that the 1997 amendments applied in relation to an application made by any person under that section before 8 May 1997. 8 In Veen's case the application was made on 26 November 1991. His Honour was therefore of the view that s 13A of the Sentencing Act 1989, "in the form in which it stood after the insertion of sub-sections (4A), (9)(c) and (10A), is the statute law governing the present application". 9 The same approach was taken in R v Bowtell [2000] NSWSC 803, R v Baker [2001] NSWSC 412 and R v Towner [2002] NSWSC 951. Baker was the subject of an appeal to the Court of Criminal Appeal. Ipp JA, with whom Dunford and Bergin JJ agreed, adopted the approach which the primary judge, Greg James J, had taken in relation to the relevant statutory scheme: see R v Baker (2002) 130 A Crim R 417. 10 A contrary view appears to have been taken in R v Wright [2000] NSWSC 568, R v White [2000] NSWSC 555 and R v Websdale [2000] NSWSC 636. Nevertheless it appears to me, in view of the approach taken by the Court of Criminal Appeal in Baker, in light of the contents of the Parliamentary Counsel's "Explanatory Note" to the Sentencing Amendment (Transitional) Bill 1997 and especially when the entirety of Clause 21 of Schedule 2 is considered, that the view expressed by Sully J in Veen (and by others) is to be preferred. As the present application was made on 19 June 1995, I accept the submission made by each of the parties that s 13A (in its amended form) governs this application. 11 In consequence of that amendment s 13A relevantly provided: (1) In this section: "existing life sentence" means a sentence of imprisonment for life imposed before or after the commencement of this section, but does not include a sentence for the term of a person's natural life under section 19A of the Crimes Act 1900 or section 33A of the Drug Misuse and Trafficking Act 1985 . " non-release recommendation" , in relation to a person serving an existing life sentence, means a recommendation or observation, or an expression of opinion, by the original sentencing court that (or to the effect that) the person should never be released from imprisonment. (2) A person serving an existing life sentence may apply to the Supreme Court for the determination of a minimum term and an additional term for the sentence. (3) A person is not eligible to make such an application unless the person has served: (a) at least 8 years of the sentence concerned, except where paragraph (b) applies, or (b) at least 20 years of the sentence concerned, if the person was the subject of a non-release recommendation. (3A) A person who is the subject of a non-release recommendation is not eligible for the determination of a minimum term and an additional term under this section, unless the Supreme Court, when considering the person's application under this section, is satisfied that special reasons exist that justify making the determination. (4) The Supreme Court may, on application duly made for the determination of a minimum term and an additional term for a sentence: (a) set both: (i) a minimum term of imprisonment that the person must serve for the offence for which the sentence was originally imposed, and (ii) an additional term during which the person may be released on parole (being either an additional term for a specified period or for the remainder of the person's natural life), or (b) decline to determine a minimum term and an additional term. (4A) In considering such an application, the Supreme Court is to have regard to all the circumstances surrounding the offence for which the life sentence was imposed, and all offences, wherever committed, of which the person has been convicted at any time (so far as this information is reasonably available to the Supreme Court). (5) A minimum term set under this section is to commence on the date on which the original sentence commenced or, if the person was remanded in custody for the offence, the date on which the first such remand commenced. (6) If the Supreme Court sets a minimum term and an additional term under this section, the sentence comprising those terms replaces the original sentence of imprisonment for life. (7) A minimum term and an additional term set under this section are to be taken to have been set under this Part but are not required to comply with the other provisions of this Part. (8) If the Supreme Court declines to determine a minimum term and an additional term, the Court may (when making that decision) direct that the person who made the application: (a) never re-apply to the Court under this section, or (b) not re-apply to the Court under this section for a specified period. (8A) If the Court gives a direction under subsection (8) that a person may never re-apply to the Court under this section, the person is to serve the existing life sentence for the term of the person's natural life. (8B) If the Court does not give a direction under subsection (8), the person may not re-apply within the period of 3 years from the date of the Court's decision to decline to determine a minimum term and an additional term. (8C) A direction under subsection (8) that a person may never re-apply to the Court under this section or not re-apply for a period exceeding 3 years may be given only if: (a) the person was sentenced for the crime of murder, and (b) it is a most serious case of murder and it is in the public interest that the determination be made. (9) The Supreme Court, in exercising its functions under this section, is to have regard to: (a) the knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900 and of the practice relating to the issue of such licences, and (b) any report on the person made by the Review Council and any other relevant reports prepared after sentence (including, for example, reports on the person's rehabilitation), being in either case reports made available to the Supreme Court, and (c) the need to preserve the safety of the community, and (d) the age of the person (at the time the person committed the offence and also at the time the Supreme Court deals with the application),

and may have regard to any other relevant matter. (10) The regulations may make provision for or with respect to reports referred to in subsection (9), including provisions relating to the matters to be dealt with in reports and the making of reports available to the Supreme Court. (10A) The Supreme Court, in exercising its functions under this section: (a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the original sentencing court when imposing the sentence concerned, and (b) must give consideration to adopting or giving effect to their substance and the intention of the original sentencing court when making them, and (c) must, to the extent that it declines to adopt or give effect to those matters, state its reasons for doing so. (11) The Supreme Court may make a determination for a minimum term and an additional term for a sentence even though the Court was not the sentencing court, or the Court is not constituted in the same way as it was when the applicant was sentenced. (12) An appeal lies to the Court of Criminal Appeal in relation to: (a) the determination of a minimum term and an additional term under this section, or (b) a decision to decline to make such a determination, or (c) a direction that a person may never re-apply for such a determination or not re-apply for a period exceeding 3 years. The Criminal Appeal Act 1912 applies to such an appeal in the same way as it applies to an appeal against a sentence. (13) The reference in subsection (4A) to an offence of which a person has been convicted: (a) includes : (i) a finding that an offence has been proved without proceeding to a conviction against the person, or (ii) any offence taken into account when sentence was passed against the person, but (b) does not include: (i) an offence that has been quashed or set aside within the meaning of Part 4 of the Criminal Records Act 1991 , or (ii) an offence of a class or description prescribed by the regulations for the purposes of this paragraph.

The facts 12 The facts in the matter are not in dispute. The victim, who was aged 56 at the time of the offences, provided a statement to police. The applicant also made detailed admissions to the police concerning his involvement in the various offences. In those circumstances it is accepted that, for present purposes, it is convenient to rely upon the summary of the facts which appears in the remarks of Allen J, who wrote the leading judgment in the Court of Criminal Appeal. His Honour said: About quarter to eight in the morning [the applicant] entered the home of the victim through a door which was a jar (sic). At the point of a knife he robbed her of the contents of her handbag - of some $50 or thereabouts. In her own home he committed the sexual assault upon her and he bound her hand and foot: but had to release the bindings on the feet to enable him to accomplish the next stage of his criminal activity which was to put her into the boot of her own car and abduct her. He then drove her to an isolated spot. He committed the further sexual assault upon her. He then forced her again into the boot of the car and set fire to it. When she endeavoured to escape by forcing her way from the boot into the interior of the car, he forced her back into it and restarted the fire - which had gone out at that stage. She again managed to force her way out of the boot and endeavoured to flee. The appellant took hold of her and threw her bodily back into the area beside the car, now ablaze. Her clothing ignited. She tried to get away again. He thereupon stomped on her face several times and repeatedly stabbed her with the knife which he had originally used in the armed robbery. He left her lying on the ground bleeding profusely. With great determination she made her way, over a period of apparently between three-quarters of an hour to one hour, to a nearby public road. She was then taken care of by passing motorists and was taken to hospital. She received very severe physical injuries. These included multiple stab wounds, one of which caused a lung collapse and burns to a substantial part of her body. 13 That said, no mere recitation of the facts can accurately portray the terrible indignities which the victim of these appalling crimes was forced to endure. Nor can they adequately describe the ferocity with which the injuries that she suffered were inflicted. The victim was subjected to a sustained attack, involving an extraordinary measure of violence over an extended period of time, as a result of which she suffered a high level of both physical and emotional trauma. Indeed, I have received from her a victim impact statement which, although expressed in commendably restrained terms, sets out in a poignant and moving fashion the devastating consequences which these horrendous crimes have had, and continue to have, upon her life. 14 The victim was, as I have said, interviewed by police. Later that afternoon, she identified the applicant from photographs which were shown to her. That evening the applicant was arrested. He initially denied any knowledge of the matter, but subsequently made admissions that he was responsible for the offences to which, as I have said, he subsequently pleaded guilty. 15 The victim indicated to police that she had no recollection of having met the applicant prior to these offences. The applicant, on the other hand, told police that he had met the victim some three to four months before the offences and that, after a bout of drinking, he had slept the night in her car. He maintained that he had spoken to the victim the following afternoon at which time he had explained to her what had occurred. According to him, she had thanked him for doing so. He then said that he had stayed up the night before the offences, "drinking on my own…When daylight broke I had a silly notion about having a sheila and I decided to go down to this lady's house". 16 The applicant has provided a similar account, albeit with some minor variations, on several subsequent occasions. It is not easy to determine precisely where the truth of the matter lies, but I have no reason not to accept the victim's version of events. I think it most unlikely that the applicant had met the victim prior to the commission of the offences, and certainly not in the circumstances which he described. Nor did Mr Stratton SC, who appeared on his behalf, urge that I should accept his version. Although the applicant's account of events adds another somewhat disturbing aspect to the background which surrounds these offences, I am not however persuaded upon all the evidence before me that the offences were, in any relevant sense, premeditated. I am inclined to the view that his actions were more in the nature of being opportunistic.

The sentence proceedings 17 The applicant had appeared before the courts on six occasions prior to the commission of the present offences. He was placed on a recognisance in 1983 for assaulting a female. He also had convictions for various matters of dishonesty, including break, enter and steal. In 1985 he was placed on a further recognisance in the Local Court for stealing. It is a matter of aggravation that he was subject to that recognisance at the time when he committed these offences. Other offences of a relatively minor nature attracted pecuniary penalties. 18 An antecedent report form, which contained the following information about the applicant, was placed before the sentencing judge: The accused was born and raised in the Newcastle area. He has a younger sister. The accused completed High School after year 8. He then commenced a mechanics apprenticeship, but because of his inability to learn at a normal pace he was unable to cope and was terminated. The accused had a number of casual labouring jobs, then a period of 18 months unemployment until his father secured him a position in a local steel works. He worked there for some eleven months up to the time of his arrest. Prior to his arrest the accused suffered from a heavy drinking problem and admitted that he was a constant smoker of cannabis. He and his family sought help from various drug and alcohol rehabilitation outlets. However this treatment did not appear to be successful. His parents endeavoured to help their son but he did not seem to them to be helping himself. The accused was living with his parents up until two weeks prior to his arrest. He lived alone in a unit. The accused is a 'loner' and stated that he felt he needed some form of treatment for his problems. 19 The only material which was tendered on behalf of the applicant during the sentencing proceedings was a psychiatric report prepared by Dr Lambert. The relevant parts of that report are set out below: From Mr Wood's [sic] description of his mental state at that time, it is evident that he was in a state of near panic, feeling both guilty at what he had done, and frightened as to the consequences. In this state of mind, he made the decision to dispose of all evidence of the crime. He stated that he realised this included killing [the victim]… I note that Mr Woods has a past record of offences which have usually been associated with excessive alcohol intake. He has received some psychiatric help in the form of counselling for this and problems associated with sexual fetishism. It would appear however, that this help was limited and did not enable him to develop strategies to overcome his impulsive behaviour… I note that previous psychological testing has shown him to be in the dull normal range of intelligence. This would be consistent with his academic record and with my own clinical impression of his intelligence. Mr Woods said that he obtained his sexual knowledge from "the street". His sexual experience has been limited, and marked by fetishism and fantasy. His lack of sexual knowledge and low intelligence has left his psychosexual development at what must be considered an adolescent level. He described himself as having "trouble" with girls, with him being shy and inhibited in his relationships. He has apparently never developed the capacity for mature heterosexual relationships. There has been no instance of homosexual behaviour……. [At interview] he appeared to be self conscious with a moderately depressed mood. This was consistent with his statements of remorse for his actions. He said on several occasions, "I don't feel good, don't really believe I sort of done it". There was no evidence of any psychotic phenomena (hallucinations or delusions), nor did he give any history of them. His speech was slow, consistent with both his mood and intelligence, and there was no evidence of any thought disorder. He demonstrated some insight with his question, "How can I make sure I never do anything like this again?"… Despite the lack of evidence of any disease of the mind, or serious mental illness, I am of the opinion that Mr Woods is suffering from a personality disorder. Using the classification found in the American Psychiatric Association's "Diagnostic and Statistical Manual of Mental Disorders", (third edition), I would make the diagnosis of Mixed Personality Disorder. Mr Woods displayed features of Antisocial Personality Disorder, namely; inability to sustain consistent work behaviour, failure to accept social norms with respect to lawful behaviour, impulsivity, and a pattern of continuous antisocial behaviour. He also displays features consistent with a diagnosis of Borderline Personality Disorder, namely; impulsivity, unstable interpersonal relationships, identity disturbance, and chronic feelings of emptiness or boredom. While these disorders do not constitute "disease of the mind" such as to render a person unable to understand the nature and quality of actions, or to appreciate that certain acts are wrong, they do describe deeply ingrained maladaptive patterns of behaviour. The person suffering from such a disorder may therefore be restricted in his/her ability to control his/her behaviour in the same way as the average man or woman. 20 The sentencing judge observed that the maximum penalty is reserved "for the worst cases". Nevertheless his Honour concluded that he could "imagine no case worse than this." Whilst acknowledging that the applicant had pleaded guilty, his Honour said that there was no rule of law which required that "a sentence otherwise appropriate must necessarily be reduced because of a plea of guilty." His Honour continued: I have no doubt that your pleas are in no way the product of, nor do they demonstrate remorse or contrition on your part. When first apprehended by the police that same evening, you endeavoured to lie to them and you denied your involvement. However, it soon became clear to you, as it is plain to me, that the case against you was overwhelming and in your record of interview you have made a full admission of your guilt and, hence, it was really inevitable that you should plead guilty, as there is really no other course open to you to take. 21 His Honour went on to say: In almost thirteen years upon this Bench I have seen many wicked crimes in our community. I doubt whether any have been more evil than that which you did to this middle-aged, innocent and helpless lady, commencing in what should have been the sanctity and security of her own home, and extending to the use and ultimate destruction of her own motor car. No words of mine can adequately describe the enormity of what you did. I have no doubt that your victim will forever remember the terror and the indignity of that day. The fact that she is alive today is in no way due to your actions or in accordance with your wishes. 22 In the circumstances, his Honour concluded that: …no consideration should be given to your release on licence until you have served a very substantial time indeed in prison. 23 In the Court of Criminal Appeal, Allen J observed that: It is true that the maximum sentence must be reserved for the worst cases. In my judgment, this undeniably was such a case and that nothing that has been put can take away the fact that it was the proper sentence. True it is he confessed. I see no reason for believing that his Honour fell into error in saying it was obvious why he confessed. He was so manifestly guilty and he knew it was easily to be proven. He had failed to kill the victim. 24 Hunt J, who agreed with Allen J, said: Not only do I reject the proposition that the sentences which his Honour the sentencing judge imposed were beyond the range of sentences which were within his discretion to impose, I am prepared to state that I would myself have imposed the same maximum sentences upon the applicant by reason of the mindless violence which was involved in these horrific crimes. The indeterminate nature of the life sentence imposed is, of course, grave punishment by itself but a life sentence is the maximum sentence which is available and if ever there was a case where the maximum sentence is appropriate this surely must have been it. 25 Wood J agreed with the order proposed and with the reasons of both Allen J and Hunt J.

The present application 26 On any view of the matter, these were crimes of very grave objective seriousness. The applicant does not contend otherwise. That consideration must remain at the forefront of the task that confronts me. 27 The applicant is eligible to make this application by reason of sub-section (3)(a) of s 13A. The exception referred to in subs (3)(b) does not apply to him, because he was not made the subject of a non-release recommendation by Yeldham J. 28 By reason of subs (4), I can either set both a minimum term and an additional term (which may be for a specified period or for the remainder of the applicant's natural life), or I can decline to make such a determination. 29 I am required by reason of subs (4A), to have regard to "all the circumstances surrounding the offence for which the life sentence was imposed". I am also to have regard to all other offences, of which the applicant has been convicted, "at any time". It is thus clear that I must have proper regard to the fact that the applicant was convicted of a number of other offences which were committed at the same time as the offences which are the subject of this application. In those circumstances, the principles enunciated in Pearce v The Queen (1998) 194 CLR 610 must also be brought into play. As to this issue see, generally, R v Purdy (1992) 65 A Crim R 441 and R v Salameh [1999] NSWCCA 300. 30 I have already referred to the matters in respect of which the applicant had been convicted prior to the offences which give rise to this application. It is true that, in terms of their seriousness, they pale into insignificance when placed alongside the matters with which I am presently concerned. It is also true that none of them attracted a custodial sentence, and that only one of the applicant's previous convictions involved an offence of violence. Nevertheless, the fact that the applicant has prior convictions is, for present purposes, as I have said, a relevant consideration. I will, in due course, give further consideration to the particular relevance which those prior matters assume for the purposes of determining the present application. 31 A decision declining to make a determination pursuant to subs (4) may, in certain circumstances, have the consequence that a person may never reapply. That situation does not, by reason of subs (8C), affect the present applicant, because he was not sentenced for the crime of murder. Alternatively, was I to decline to make a determination, I could specify that the applicant could not reapply for a specified period. Once again because the applicant was not sentenced for the crime of murder, subs (8C) would preclude me from making such an order for a period exceeding 3 years. Should I decline to make a determination but not specify the period during which the applicant may not reapply, then subs (8B) provides that he may not reapply within a period of 3 years from the date of that decision. 32 Subsection (9) makes provision for a number of matters to which I am to have regard. It is clear from Yeldham J's remarks that his Honour was aware of the matter to which attention is directed in subs (9)(a). It is axiomatic that I should, in accordance with subs 9(c), keep steadily in mind "the need to preserve the safety of the community". I am also to have regard, pursuant to subs 9(d), to the applicant's age. He was 22 at the time of the offences and is now 41. 33 Subsection (10A) requires that I give "substantial weight" to the "recommendations, observations and comments" made by Yeldham J. It also requires that I "give consideration to adopting or giving effect to their substance" and to his Honour's intention when making them. To the extent that I decline to do so, I must state my reasons. 34 I am also to have regard to any reports from the Serious Offenders Review Council (SORC): subs 9(b). There are a large number of them, the first of which is dated 17 January 1996 and the most recent of which is dated 19 April 2005. They have, along with other material, provided me with a comprehensive picture of the applicant's progress whilst he has been in custody. That material reveals that he was given an 'A2' classification on 24 November 1987. He progressed to a 'B' classification on 9 September 1997. He was regressed to an 'A2' classification on 6 April 1999, following a complaint that he had sexually harassed a female correctional officer. His 'B' classification was restored on 10 August 2001. His present classification is C1. 35 It is to be observed that the applicant has acquired 16 convictions for breaches of prison discipline. The first such offence was in April 1989 and the most recent occurred in January 2005. He has convictions for offences which include fighting, failing to attend a muster, drug related matters and obscene behaviour. It is of some significance that he has had only two very minor breaches in the last seven years. 36 It is to the applicant's credit that he has undertaken a considerable number of courses whilst he has been in custody. He has completed various courses which have advanced his literacy and numeracy skills. As well as acquiring other educational qualifications, the applicant obtained a Violence Resolution Certificate after completing a twelve week course. 37 Of considerable significance to this application is the question of the applicant's inappropriate sexual behaviour whilst he has been in custody. In December 1993 it was reported that the applicant had exposed himself to a female officer. In February 1995 there were further reports of inappropriate behaviour, including instances of his having masturbated in front of a female officer. In March 1998 he engaged in lengthy conversations with a female officer at Junee, in which he informed her that he "regularly fantasises about her and masturbates to fulfil the fantasy". The officer noted that the applicant told her that he "always fantasised about older women…he said he had had a horrible childhood… He became very cranky and extremely upset…He started to speak in tongues". It was this behaviour which resulted in his classification being regressed. 38 In the circumstances it is appropriate to have regard, in a little more detail, to the applicant's background. It would appear that the applicant did not enjoy a harmonious relationship with either of his parents. He informed Dr Lucas, a forensic psychiatrist who saw him in 1998 and again in 2002, that he was scared of his father. Dr Lucas reported that the applicant had told him that: beatings he received worried him less than being told he was an idiot and having this drummed into him. He found verbal abuse scary. He said his father drank once or twice a fortnight. Mr Woods' mother was bashed at times and Mr Woods witnessed this and was scared for her safety. On a couple of occasions he saw his father force sexual activity on his mother…He then mentioned his bedwetting, a problem until he was twenty-one. Another problem appears to have been nightmares. 39 Anne Young, a senior psychologist employed by the Department of Corrective Services, in a report dated 20 December 1995, observed that: Mr Woods experienced his childhood as chaotic, abusive, violent and unpredictable. He says his father was physically violent to him and he felt his mother often precipitated his father's violence towards him. As a child he felt very scared and frightened and showed signs of emotional disturbance eg nightmares and enuresis. Mr Woods says he felt unloved by both his parents. … … Mr Woods developed a pattern of inappropriate sexual arousal which was evident by his teen years. 40 The applicant's childhood, it would appear, was decidedly unhappy. So too was his time at school. He struggled academically and was placed in a class for those with learning difficulties. He was regularly subjected to corporal punishment. It would seem that he left school without being able to read or write. As I have said, and to his credit, his skills in those respects have improved quite markedly since he has been in gaol. 41 In order to make a proper assessment of the applicant and his behaviour, Dr Lucas decided to ask the applicant about his prior convictions. The applicant displayed a very considerable degree of candour in providing information about the context in which they had occurred. In doing so, he revealed details that were not otherwise apparently known to the authorities. As I have said, his first conviction was in 1983 for assaulting a female who was then aged 11 years. Dr Lucas was provided with the following history about that incident: He was feeling sexually frustrated. He said he grabbed her but let her go as everything in his fantasies had involved older women, not a child. I asked him what his fantasies were and he said they did not involve hurting, but having control over an older woman. I asked what would have happened if he had grabbed an older woman and he said he probably would have gone on with the offence, perhaps taking her to the bush and assaulting her sexually. He admitted this would have amounted to rape … He said the offence occurred on the spur of the moment but of course he had admitted preceding fantasies… At the time of the assault on the girl he was already stealing underwear fortnightly from houses and clotheslines. He did not buy underwear. Sometimes he wore it. He had one fantasy about pantyhose. 42 Following his conviction for that assault, and for two other offences of break, enter and steal, the applicant underwent psychiatric counselling as an outpatient at the Shortland Clinic in Newcastle. In 1984 he was again convicted of an offence of break and steal. The victim of this offence had also been the victim of one of the earlier offences. It was observed at the time by a Probation and Parole officer that the applicant appeared to have "an obsession with the woman". He had apparently broken into her premises on a number of occasions and had stolen personal items including her underpants and perfume. It is clear that these offences were sexually motivated and that they had occurred much more frequently than the relatively few occasions on which he was actually apprehended. The applicant's revelations to Dr Lucas indicate, as I have said, a considerable degree of candour on his part. However, they also demonstrate that his psychosexual problems were already evident by the time he had reached his late teens. The property offences of which he was convicted demonstrate that he was also motivated by fetishism. Somewhat revealingly, the applicant told Dr Nielssen, a forensic psychiatrist who saw the applicant at the request of the Crown, that his sexual development "always [involved] an element of deviancy". Ms Young described the applicant as being a person with a long standing history of sexually deviant behaviour and sexually aggressive fantasies towards women. 43 The applicant attended the Special Care Unit in 1996, following which an improvement in his behaviour was observed. He told Dr Nielssen that as a result of being there, "for the first time he thought about the effect of what he had done on the victim. He said that he was too shy and uncomfortable to open up in front of the group, but learned a lot from watching other people talk about themselves." It would appear from the evidence that the applicant feels a real sense of shame about what he has done. It seems that he also had difficulty, at least at the time he was in the Special Care Unit, in discussing the details of his offences. His reluctance to do so in a group setting is perhaps understandable, particularly as he has been assaulted whilst on custody, on account of the offences which he has committed. 44 In 1997 the applicant went into protective custody. He apparently went there at his own request, initially after having had his jaw fractured by another prisoner. In all the applicant has reported having been assaulted in custody on three occasions. As I understand the evidence, on one of those occasions, the assault occurred whilst he was on protection. As a result of that incident, he sustained a fractured wrist as well as injuries to his skull. It may well be that he has also been assaulted on other occasions but has chosen not to report those incidents. 45 An issue has arisen as to whether the applicant has, as he asserts, remained in protective custody continuously since 1997. A number of attempts have been made to clarify the issue. The Department of Corrective Services frankly acknowledges that its records are incomplete. Furthermore, the Crown accepts that there is material available from which it could be inferred that the applicant's assertion is correct. In the circumstances, it seems to me appropriate that I should proceed upon that basis. 46 There is a well-recognised line of authority to the effect that a sentence of imprisonment which is served in protective custody is more burdensome than would otherwise be the case and that that fact should be reflected in the sentencing exercise: see R v Burchell (1987) 34 A Crim R 148; R v Totten [2003] NSWCCA 207 and R v Durocher-Yvon (2003) 58 NSWLR 581. I intend to make due allowance for that factor. 47 However, no evidence has been placed before me to indicate the precise nature of the conditions of protective custody in which the applicant has been serving his sentence. Nor is it entirely clear to what extent his being on protection has affected his access to programs and other entitlements, although it appears to have prevented him from participating in the Violence Prevention Program. There is also evidence that "he continues to receive harassment from other inmates due to the nature of his offence". 48 As I have said, Dr Nielssen saw the applicant at the request of the Crown. In a report dated 15 August 2003 he arrived at the following conclusions concerning the applicant's psychiatric condition: PSYCHIATRIC DIAGNOSES 1 Personality disorder with antisocial and borderline traits 2 Alcohol abuse disorder, in remission 3 Paraphilia OPINION The diagnosis of personality disorder is based on a history of pervasive maladaptive traits that have been distressing to both Mr Woods and people he has come into contact with. The finding of the presence of antisocial traits is based on the history of reckless and illegal conduct and lack of concern about its effect on others. The term "borderline" as a description of personality refers to a pattern of unstable identity, relationships and mood. Mr Woods' sexual deviancy can be understood in terms of his unstable personality and lack of regard for the effect on others. The presumed aetiology of his personality disorder is the interaction between his inherited temperament and cognitive limitations, the effects of emotional and physical abuse during his upbringing and his delayed sexual development. The diagnosis of alcohol abuse is based on the history of social and psychological complications of alcohol abuse. Mr Woods' alcohol use can be understood as a dysfunctional way of dealing with distressing mood states and poor social skills. A paraphilia is defined as a pattern of behaviour arising from excitement by unacceptable sexual activity. Mr Woods has demonstrated a range of paraphilic behaviours, including excitement by coercive sex, exhibitionism and voyeurism. 49 Dr Nielssen made the following observations at the time about the applicant's conduct: There has been some evidence of an improvement in Mr Woods' conduct over the last few years, that is consistent with the usual decline in the distress caused by maladaptive personality traits over time. The structured environment within his current (sic) the gaol and the therapeutic interventions from various psychologists, particularly at the Special Care Unit and the MMTC have probably contributed to the decline in the manifestation of Mr Woods' personality disorder. 50 Dr Nielssen first saw the applicant in 1996 because of allegations that he was then exposing himself to female nurses. Dr Nielssen reported in August 2003 that the nursing supervisor who had been in charge of the applicant in 1996 was once again supervising him. A number of the nurses who had complained of his behaviour in 1996 were also said to be working in close proximity to him on a daily basis in 2003. The nursing supervisor had apparently had the opportunity of observing his behaviour over an extended period of time, and according to Dr Nielssen had formed the view in 2003 that his behaviour during that period had been entirely appropriate. 51 I have derived particular assistance from a report dated 28 July 2003, which was prepared by Ms Amy Meagher, a forensic psychologist at the Metropolitan Medical Transient Centre (MMTC). Apart from providing some further information about his background, she reviewed the history of the applicant's contact with psychologists whilst he has been in custody. She also provided an assessment of his psychological problems. She arrived at the following conclusions concerning the state of his progress as at that time: The author's contact with Mr Woods suggests that he has reasonably good insight into his deviant sexual arousal patterns and takes full responsibility for both the index offences and his inappropriate behaviour in gaol. He continues to show anxiety and embarrassment when referring to such behaviour and remains very conscious of how others perceive both him and his offences. Increasing insight into the physical and psychological harm he inflicted on the victim through his religious study has made him very motivated to ensure that such an offence never occurs again. Mr Woods has always been assertive in self referring to a psychologist as the need arises. His behaviour, both in individual and group sessions, has been appropriate and respectful. He has demonstrated consistently good motivation for treatment and has dealt with the frustrations of his situation in a constructive manner. He reports that during his time in custody he has developed a better attitude towards authority, that his self esteem and confidence has improved, and that he is now more accepting of himself. … During the time the author has known Mr Woods, he has not displayed any inappropriate behaviour and has been polite, cooperative and respectful. He is honest in regard to the problems he has had in the past with inappropriate sexual conduct. He has been frustrated by limited treatment options and demonstrates insight into his need for specialist treatment. Mr Woods has become disillusioned at times by his lack of progress, given his record of good behaviour over the last four years. He is both ready and motivated to engage in therapy which specifically addresses his sexual offending behaviour. … While at the MMTC, Mr Woods' behaviour has been exemplary. A case management plan was put in place for Mr Woods at the MMTC including employment as a wing sweeper, close supervision by his case officer and regular monitoring by staff, particularly by the case manager. Notes on his case management file indicate that he is an excellent worker who needs little supervision and whose attitude and conduct is very good. He is described as quiet, polite and courteous to staff. He responds well to directions and is compliant with unit routine. He is currently employed as 13 wing clinic sweeper, a position which involves considerable responsibility as it involves working around female nurses and having access to medication. He has previously been employed as a wing sweeper and head painter.

52 Ms Meagher then expressed the view that it was highly desirable that the applicant undertake what is known as the Custody Based Intensive Treatment (CUBIT) program. A number of other experts, including Dr Lucas, shared her view. Ms Meagher explained in her report what the program entails. She said:

This is the only residential treatment program for high risk sexual offenders offered by the Department of Corrective Services. Eligibility for the CUBIT program depends on the following criteria: C1 or C2 classification; Sufficient time remaining prior to earliest release date to complete treatment; Consents to undertake treatment; Based on institutional adjustment history, management issues, and self-harm history, the offender is able to function effectively without risk to self or others . … The CUBIT - High Intensity program is designed to address, reduce, and resolve the criminogenic needs of high risk sexual offenders, thus reducing their risk of reoffending and is of 10 months duration. It is designed to help offenders work intensively on changing the thinking, attitudes and feelings which led to their offending behaviour. Treatment addresses four major offence-specific areas - denial and minimisation, victim awareness/empathy, offence cycle and relapse prevention. Treatment also addresses the following offence-related areas - intimacy deficits/relationship issues, emotions, coping, general social competence skills and substance abuse. Following treatment, Mr Woods would be eligible to participate in the Maintenance Program for sexual offenders. This is suitable only for offenders who have completed the appropriate treatment program (ie. CUBIT). It is operated in a group format through the Custodial Maintenance Program at Kirkconnell Correctional Centre and the Metropolitan Special Programs Centre (MSPC) and after release from custody through the Community Program at Forensic Psychology Services (FPS). Maintenance programs are relatively unstructured sessions which are supportive in nature and intended to increase the likelihood that previous treatment gains will be maintained and reinforced. They focus on relapse prevention issues specific to the needs of each individual and reinforce the gains made in more intensive treatment programs. 53 Ms Meagher concluded her report with a recommendation that the applicant's sentence should be redetermined. 54 Dr Nielssen offered the following opinion concerning the applicant's suitability to undertake the CUBIT program: The scientific literature does not offer much guidance as to the likely effect of treatment of Mr Woods' paraphilic disorder, as most of the published studies from programmes similar to CUBIT are of mixed populations of offenders often with inadequate levels of ongoing treatment after release. On clinical grounds I believe that Mr Woods will make a good response to participation in CUBIT as he has sufficient intelligence and reasoning ability to be able to understand the subject matter and also appears to have an appropriate attitude towards his offending behaviour and his need for treatment. The opinion that Mr Woods is likely to do well in CUBIT is based on my experience as the visiting psychiatrist to area 23 of the MSPC, where I see many of the inmates in CUBIT at the psychiatric clinic. 55 The applicant first expressed a willingness to enter the CUBIT program in 1998, an attitude which he has consistently maintained ever since. 56 In light of the expert opinions to which I have just referred, the parties agreed that it was highly desirable that the applicant should undertake the CUBIT program before the present application was determined. It was also common ground, however, that a real impediment confronted the applicant. It arose because of the Departmental policy that the applicant was not eligible to do the program until he had achieved a C1 classification. I was informed that such a classification was not available, in the absence of exceptional circumstances, to someone in the applicant's position until his or her sentence has been re-determined. Mr Stratton described his client as being, as a consequence, in a "Catch 22" situation. 57 Mr Power SC, who appeared on behalf of the Crown, accordingly submitted, and Mr Stratton agreed, that the proceedings should be adjourned to enable me to make a recommendation to SORC, for the ultimate consideration of the Commissioner of Corrective Services, that the applicant be permitted to undertake the next CUBIT course, even though his sentence had not been redetermined. I acceded to that request and the matter was adjourned in order that appropriate consideration could be given by the relevant authorities to my recommendation. In September 2003, the Commissioner accepted my recommendation and directed that the applicant should undertake the next available CUBIT course. At the same time his classification was reduced to C1. 58 At that time it was anticipated that the applicant would enter the course in either January or February 2004. Although the program runs for approximately 10 months, I stood the proceedings over so that I could have the benefit of an interim report as to the applicant's progress whilst on the program. As events transpired the applicant was not able to commence the program until 5 April 2004. As at the time of the interim report the applicant had only completed 2½ months of the course. The report, which was in cursory terms, indicated that the applicant was progressing very satisfactorily. 59 In those circumstances, SORC recommended that the application be stood over again to enable the applicant to complete the course and to allow time for a discharge summary to be prepared by the Therapeutic Manager of the program. That recommendation was supported by counsel for each of the parties. In the circumstances I adjourned the proceedings until May 2005, although I also expressed considerable misgivings about the length of time that it was taking to bring the proceedings to finality. 60 The course ran for over 12 months. Of the inmates who started the course, only three were able to complete it. Three other inmates joined the program after it had started, but they all withdrew from it. The applicant was thus one of only three inmates, out of a total of sixteen who were involved in this particular course, who managed to complete it. 61 In May 2005 I received a report which was generally favourable concerning the applicant's participation in the program. The authors of the CUBIT report, Jason Borkowski and David Bright, made the following observations: During treatment, Mr Woods has accepted responsibility for his sexual offending behaviour, and appears to have been willing to fully engage in the treatment process to gain an understanding of the elements that led to his decisions to sexually offend. However, ongoing work will need to focus on and address his low self-esteem and self worth, his assertiveness skills, attitudes towards self and others, in particular gender roles and male/female stereotypes, and deviant sexual fantasies. Any gains that Mr Woods has made have been made in a very structured environment. Therefore until he has had a chance to consolidate these changes, they remain fragile. It is imperative that treatment for sexual offenders must include maintenance and follow-up for treatment to be effective. Subsequently it is recommended that he be referred to the custodial maintenance program. This programme allows for the maintenance and treatment gains and the refinement of relapse prevention plans. 62 The applicant described the course to Dr Nielssen as being "extremely intense" and "confronting". Dr Nielssen, having read the report and having reinterviewed the applicant, expressed the following conclusion: The Final Treatment Report from CUBIT shows that he completed the program and that his performance was satisfactory. There is no published studies [sic] to show that completion of CUBIT or any similar program would alter the risk of recidivism. However, the intensive observation of Mr Woods during the year he was in the program did not identify any alarming attitudes or plans that would predict further offending. … My clinical impression is that Mr Woods has made significant progress over the last eight years and the last two years in particular in the areas of self awareness and self control. 63 Dr Lucas also commented favourably on the fact that the applicant had successfully completed the course. 64 A supplementary CUBIT report dated 9 November 2005 was prepared by Ruth Marshall and David Bright. They said that: Mark Woods is taking part in the Custodial Maintenance Group, currently running in Area 3 of the MSPC at Long Bay. The Custodial Maintenance Program has been developed for sexual offenders who have completed treatment and focuses on relapse prevention issues specific to individual need and the reinforcement of gains made in more intensive treatment programs. The Custodial and Community Maintenance Programs aim to promote the successful release and reintegration of sexual offenders by providing follow-up services in the community and through the development of a Maintenance and Support Team. Mr Woods completed the CUBIT High Intensity Program (19.04.04 - 28.04.05), and then participated in the CUBIT Relapse Prevention Group (23.06.05 - 15.08.05), before joining the Custodial Maintenance Group on August 31st, 2005. This group meets once a week and Mr Woods has attended seven group sessions. It should be noted that in order to participate in the Custodial Maintenance Group, Mr Woods has been transferred out of the structured and relatively safe therapeutic environment of CUBIT into the regular jail and is currently mixing with many untreated sexual offenders. This is a stage that most CUBIT graduates find extremely uncomfortable, particularly when faced with evidence of distorted thinking and negative attitudes similar to those they previously espoused. Mr Woods has coped well with this transition, responding appropriately to difficult situations and has been observed practising acquired communication, assertion and perspective taking skills on the wing. He is working well in the bakery but needs close supervision. Mr Woods has made considerable progress over the last three months and has been working hard to consolidate gains made throughout treatment. He has presented candidly in group, even telling us when he's not being completely honest. We are obviously continuing to work on a number of issues, including offence-specific and related attitudes; core beliefs of inadequacy; intimacy deficits; sexual coping and masturbatory fantasies. Ties to [a named Church] remain concerning, but he is at least now open to questioning their views and relating these to his own risk factors. 65 As the last sentence of the report indicates, the authors were somewhat concerned about the applicant's apparent adherence to the tenets of a particular Church which is said to teach a rigid and inflexible set of beliefs that includes sexual and racial stereotyping. The evidence does not however enable me to consider the extent or significance (if there be any) of the applicant's involvement in that organisation. 66 Ms Marshall informed me that the applicant would require a further eight months to complete the Custodial Maintenance Program. He would thereafter be eligible for some form of day release so long as he had received a C3 classification. Such a classification depended, I was informed, upon his having his sentence redetermined. 67 Mr Stratton points out that the two offences for which the applicant received life sentences no longer attract that maximum penalty. The maximum penalty for the offence of maliciously setting fire to a motor vehicle knowing that a person was inside is now 14 years imprisonment, whilst the offence of wounding with intent to murder now attracts a maximum penalty of 25 years imprisonment. I accept the submission made on behalf of the applicant that the reduction in the maximum penalty for the offences in question is an issue which is relevant to this application. Although it is not determinative of the manner in which I should proceed, it is nevertheless a matter to which I shall attach appropriate weight. The Crown concedes that it is proper, in the light of the authorities, that I should do so: see, for example, R v Crump (NSWCCA) unrep 30 May 1994, per Mahoney JA at 14 and R v Page [2002] NSWSC 1067. 68 The sentencing judge concluded that there was no evidence before him of any contrition on the part of the applicant. Such a finding was undoubtedly open to his Honour, although it may be observed that the applicant did say in his record of interview with police that "what happened had got out of hand and I'm very sorry that it went that far". Circumstances have now changed. Although it has taken some considerable time, it would appear that the applicant has belatedly demonstrated considerable insight into his behaviour. He now regrets that he caused what is patently irreparable harm to his victim. Dr Lucas, for example, reports that the applicant: now feels 'shocking' about the crimes and there were not many nights without thoughts about how 'the poor woman is doing'. He said he got very angry at himself for hurting another person, no one should get hurt. He remarked that it would have been more humane if it had been a death penalty. … He said, 'she must hate my guts, rightly so'. 69 To Dr Nielssen, the applicant described his actions as being "a cowardly attempt to cover up a crime…I left her for dead…that she didn't die was not for lack of trying". These insights may represent some indication that the applicant is slowly maturing. 70 The applicant was assessed on the static 99 actuarial risk assessment scale as being "in the high risk category relative to other adult sexual offenders". There are however limits to the utility of such tests. As Dr Nielssen observed: I believe that Mr Woods' score on the actuarial risk assessment tool Static 99 should be viewed in its proper context, as it is a simplistic tool based on studies of very mixed groups of offenders, for offences which have a relatively low rate of recidivism compared to other categories of prisoners. The score is fixed and cannot take into account any protective factors or changes in an individual over time and should only be used as a general guide. 71 In an earlier report Dr Nielssen said: Prediction of future risk is similarly difficult, as actuarial risk assessments are based on populations and tend to rely on static, or historical, factors and generally do not take into account dynamic factors such as the effects of treatment or a structured environment. The factors relating to Mr Woods' offence date from his early adult life. However, I would agree with the opinion expressed by Dr Lucas and others that Mr Woods needs close supervision after release including supervision by a psychiatrist or community based treatment service experienced in the management of sex offenders. 72 Nevertheless the expert evidence uniformly indicates that the applicant - by reason of his background, the offences which he committed and his conduct whilst in custody - is at risk or even at high risk of reoffending. 73 There are a number of factors which incline me to the view that I should grant the application. First, horrendous as the applicant's conduct was, it has to be acknowledged that it did not result in the victim's death, notwithstanding the efforts which the applicant made to achieve that end. Secondly, there has been a reduction in the maximum penalties available since the offences were committed. Thirdly, the applicant admitted his involvement in these offences to police and pleaded guilty at the commencement of his trial. Accordingly, right from the outset he has accepted some degree of responsibility for his crimes. His pleas of guilty obviated the need for the Crown to call any witnesses at his trial. In particular the victim was thereby spared the ordeal of having to give evidence. In doing so, the applicant has "facilitated the course of justice": see Cameron v The Queen (2002) 209 CLR 339. Although the victim identified the applicant, it was his admissions which made his conviction inevitable and it was upon that basis that it could be said that the case against him was overwhelming: see R v Thomson & Houlton (2000) 49 NSWLR 383 at 417. Fourthly, there are clear indications that the applicant has gained some insight, by reason of his recent good conduct and advancing maturity, into his offending behaviour. Fifthly, there is a body of expert opinion which suggests that his successful completion of the CUBIT program may well assist in his overall rehabilitation, a matter which would be to the ultimate benefit not only of the applicant himself but also, and very importantly, the community at large. 74 In the circumstances the Crown recognises that it is appropriate that the application should be granted. It submits that a minimum term in the order of 21 - 22 years should be imposed, together with an additional term which should be for the remainder of the applicant's natural life. In doing so, it relies upon the reasoning of Sully J in R v Veen [2000] NSWSC 656. There his Honour examined the authorities which deal with the circumstances in which a sentence, redetermined in accordance with s 13A, may attract an additional term for the whole of the offender's natural life. Mr Stratton conceded that such an approach was warranted in the circumstances of the present case, although his submission was that a minimum term of 20 years was called for. As the legislation requires that the redetermined sentences should commence from the date upon which the original sentences were imposed, it is common ground that they should run concurrently with one other. 75 In approaching the matter I must accommodate the various purposes of the criminal law: see Veen v The Queen (No2) (1987-8) 164 CLR 465 at 472-4. I must also have regard to the principles of totality. I must also ensure that the views of Yeldham J are properly brought into account. Nevertheless I am of course in a much more advantageous position than was the sentencing judge. As I have indicated, circumstances have changed somewhat since the applicant was sentenced. I also have the option available to me, which his Honour did not have, of imposing a determinate sentence with an additional term of life imprisonment. That is the course which I intend to adopt. An appropriate balancing of the competing factors in this case, as well as the views expressed by very experienced counsel who appear for the respective parties, point clearly to such an outcome. I should note, in arriving at that conclusion, that I have also had regard to the numerous authorities to which my attention has been directed. 76 Nevertheless, the question of whether or not the applicant is in fact released to parole will ultimately be a matter for the Parole Board.

2 In respect of the offence of maliciously set fire to a motor vehicle knowing that ML was in that vehicle, the applicant is sentenced to a term of 16 years imprisonment, to date from 4 December 1986 and to expire on 3 December 2004. I decline to fix a non-parole period in respect of this offence because of the sentence which I am about to impose.

3 In respect of the offence of feloniously wounding ML with intent to murder, the applicant is sentenced to a minimum term of 20 years and six months imprisonment, to commence on 4 December 1986 and to expire on 3 June 2007, with an additional term to commence on 4 December 1986 and to continue for the balance of his natural life.

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