R v S [1998] QCA 313

Court of Appeal (Qld)|1998-10-20|Before: Shepherdson J, Cullinane J, Jersey CJ

1 The prisoner was convicted by a jury on four counts of rape and four of indecent assault with circumstances of aggravation. The learned judge imposed an indefinite sentence under s.163 of the Penalties and Sentences Act 1992. As required by s.163(2), he stated, as the "nominal sentences" he would have imposed but for the indefinite sentence, fourteen years in respect of the rapes and three and four years in respect of the indecent assaults.

2 The prisoner, then thirty-three years old, committed these offences on 5 April 1997. At that time he was on parole. It is convenient to refer now, in brief terms, to his relevant past criminal history. In 1981 he was sentenced to twelve years imprisonment for the abduction and violent sexual assault of a fifty-seven year old woman: the offences were two of rape, one of sodomy, an indecent assault involving the insertion of a capped beer bottle into her vagina, and stealing. Following his being charged and granted bail in respect of those offences, and virtually immediately upon his release, he robbed a woman at knifepoint with personal violence. For that he was sentenced in the District Court to three years imprisonment (the criminal history sheet says three months, which is an error) to be served cumulatively upon the twelve year term. Then in 1988 he was sentenced to another cumulative term, of seven years, for sodomy and assault occasioning bodily harm in relation to a fellow prisoner. He was eventually released on parole and then eight months later, in 1992, was apprehended for breach of parole and returned to custody. Three years later, on returning from a period of day release, he punched someone at the prison, and that led to another month's imprisonment. He committed the immediately relevant offences in 1997, less than two months after release to home detention, and within the first week of his period of parole.

3 The circumstances of the instant offences may conveniently be taken from the submissions of counsel for the Attorney-General, as follows:

"(The prisoner) had approached his cousin, A, to assist him in obtaining parole by offering a stable home for him. She did so. Less than 2 months after his release into her home on home detention and within the first week of his parole, he abducted A's 14 year old daughter, J, and committed the gross indecencies outlined in the indictment.

At 6am he had gone to the house where J had spent the night and woke her up. He tricked her into going with him in her mother's car by telling her that her mother was in danger. He drove her to an isolated beach track, He threatened to flog her and menaced here with his belt. He digitally penetrated her vagina before sucking it. He then forced his penis into her vagina. She was terrified and in pain. She pleaded with him to stop. He simply ordered her to stop crying and to 'shut up'. There followed fellatio and a further rape. He slapped her across the head, accusing her of not being a virgin. She was made to get down on her hands and knees while he sodomized her. Again she cried with pain. He told her: 'I'm going to fuck you so bad that you'll never want to fuck again.'

He drove around, talking about what he had done and cross-examining her about what sexual acts she did not like. He said they would have to 'work on it'. At one point there was a minor collision and the car was damaged. The applicant then drove to another area where there was forced fellatio and vaginal intercourse. He promised to kill both the complainant and her mother if the complainant told anyone of the assaults. He also told her that she was now his and that she was to stay with him and to 'give it' to him whenever he wanted. She promised to say she had been at her friend's house. He left her near that residence with the instruction to wash herself so that others would not 'smell it'. He had detained her for three hours.

Terrified, the complainant immediately told her friend. She was hysterical and expressed concerns about the death threats. She had sustained the following injuries: tenderness on the inner thighs; abrasions on the outer vaginal lips, an acute superficial tear to the entrance of the vagina and only a remnant of the hymen; the anus was weeping and bleeding and very tender.

In addition to the complainant's compelling description of the offences, there was an abundance of other evidence against the applicant: the medical evidence of substantial injuries to the complainant's genitalia; identification of the applicant's spermatozoa on the complainant's internal swabs; independent evidence that the applicant took the complainant early in the morning and detained her for some hours; a lie told by the applicant about his whereabouts that morning; some admissions made to relatives of the applicant; .... He was apprehended two weeks after the offences in another town.

In spite of the case against him the applicant put the complainant to trial. He testified that sexual intercourse had occurred with consent. He denied the sodomy. After conviction he unsuccessfully sought leave for an extension of time in which to appeal against conviction. "

4 Before the learned judge could impose an indefinite sentence, he had to be satisfied (s.163(3)(b)) "that the offender is a serious danger to the community". His Honour gave detailed consideration to the prisoner's past offences, analysing them as follows:

"On 25 August 1981, the prisoner was convicted of a series of offences which, after appeal, resulted in an effective sentence of twelve years imprisonment. The complainant in that case was a fifty-seven year old woman sitting in the passenger seat of her car outside of a shop in Tully in the early evening. Her husband had just got out of the car to go into the shop and she was waiting for him. It seems that the prisoner was acquainted with the woman from things he said to her during the commission of the offences. It appears that he knew her name and knew something about her. He got into the car and drove to a cane paddock where he proceeded with a considerable degree of violence to twice rape the woman. He engaged in anal intercourse against her will and he stole a small quantity of money from her. He indecently assaulted her by forcing a stubbie bottle with the top still on into her vagina.

In my view, that series of offences can be described as an exercise of very serious sexual violence coupled with significant brutality. After having been arrested for that offence, the prisoner was released on bail. Approximately seven hours after his release, he threatens a woman in the Townsville Mall, stating that he had a knife. He tried to force her to go behind a building nearby. He demanded money from her. When she did not satisfy him, he threw her to the ground. That was on 6 February 1981 and he was sentenced to three months (sic - should read years) imprisonment in respect of that offence in the Townsville District Court on 23 March 1982.

On 27 May 1988, the prisoner committed the offences of assault occasioning bodily harm and carnal knowledge against the order of nature. Put shortly, he went into the cell of a fellow prisoner, seriously assaulted him with his fists and engaged in sodomitical rape upon that fellow prisoner. For that he was sentenced to an effective prison term of seven years, made cumulative with the sentence that he was serving at that time.

There have been some other offences which are not insignificant but are of lesser significance. The unfortunate picture that inevitably arises from this series of offences is that although the first series of offences occurred seventeen years ago, there is no suggestion that the prisoner has changed. One can normally hope and expect that as a person matures that the tendency to give way to extreme violence may decline but unfortunately that does not appear to be the case here.

In spite of being apprehended in 1981 for the very serious offences committed at Tully, within hours of his release, the prisoner committed another offence of violence. Undeterred by the fact that he was already incarcerated and undeterred by the comparatively regimented life of prison, he was not deterred from committing another serious offence of sexual violence on a fellow prisoner who was in a much weaker position than he was."

5 The learned judge then turned to the instant offences, and particularly the issue - danger to the community - arising under s.163(3)(b):

"The current offences for which he is to be sentenced are also offences of serious sexual violence. The fact that he had spent so long in prison operated as no deterrent to him. The fact that the child was a member of his family, and in particular a member of the immediate family which had shown him the kindness to take him into their home, did not deter him. Therefore, in spite of the fact that the incidents of serious sexual violence are few in number and separated by many years, the inevitable conclusion to which I am driven is that as at the present time, the prisoner is either incapable or unwilling to desist from acts of serious sexual violence and is presently undeterred by the prospects of severe punishment.

The only case to which I have been referred dealing with the question is a decision of the Victorian Court of Appeal hearing an appeal against the imposition of an indefinite sentence pursuant to fairly similar legislation in Victoria. The point which the Court made is that the Court must determine whether the offender was a serious danger to the community at the time of sentencing rather than try to make a prediction of future dangerousness at the time when the offender would become eligible for release.

I am mindful of the very high standard of proof required by the legislation but I am driven inevitably to the conclusion that the offender is a serious danger to the community and that an indefinite sentence is required."

6 The prisoner applies for leave to appeal against sentence on the ground that the indefinite sentence is manifestly excessive. He contends that the specified nominal term of fourteen years should have been imposed, conceding that it should have been imposed cumulatively.

7 The Attorney-General has separately appealed, and that is explained by the existence of a particular determination made by the Corrective Services Commission with relation to parole. The Commission claims to have calculated the prisoner's parole eligibility date as 23 March 1998, some six months after the imposition of the indefinite sentence. The calculation involves aggregating the fourteen year nominal term for the rapes with the terms already being served, and halving the total - consistently, if the nominal term be relevant, with R. v. Gipters (C.A. No. 25 of 1995, 30 May 1995). The Commission purports to proceed under s.166 of the Corrective Services Act 1988. But the Attorney-General submits that that section is simply inapplicable to an indefinite sentence imposed under Part X of the Penalties and Sentences Act. Hence the grounds of the Attorney's appeal:

"The sentence imposed is manifestly inadequate if an indefinite sentence under part 10 of the Penalties and Sentences Act attracts parole eligibility under section 166(1)(d) of the Corrective Services Act. If the present nominal sentence is subject to the parole provisions, the integrity of the sentence could only be preserved by: a recommendation deferring parole eligibility for seven years from the date of sentence."

8 The Attorney's appeal should be dismissed on the basis that the approach taken by the Corrective Services Commission is plainly wrong. Section 166(1) of the Corrective Services Act, in its form as at the time of these offences (materially corresponding now with s.166(1)(d)), relevantly provided that this prisoner would not be eligible for release on parole until he had served "half at least of the term of imprisonment to which he was sentenced". As I have said, the Commission claims to have calculated an applicable date for eligibility for parole by employing in its calculation, not the "indefinite" sentence, but the fourteen years nominated as the sentence which would otherwise have been imposed. The flaw in this approach is obvious: fourteen years was not, in terms of s.166(1), a term of imprisonment to which the prisoner was sentenced. The prisoner was not sentenced to fourteen years imprisonment at all, but to imprisonment for an indefinite term. Section 166 is obviously inapplicable to such a penalty. How, furthermore, would one "halve" an indefinite term?

9 It might separately be argued that because s.162 of the Penalties and Sentences Act defines "an indefinite sentence" as "a sentence of imprisonment for an indefinite term", such a sentence does amount to a "term of imprisonment to which (the prisoner) was sentenced", within s.166(1) of the Corrective Services Act, so that in some way a date for eligibility for parole must be calculated. Impossibility of calculation aside, s.165(1)(a)(ii) of the Corrective Services Act now confirms an otherwise obvious legislative intent that such orders should fall completely outside the parole regime.

10 Part X of the Penalties and Sentences Act sets up an exhaustive regime with relation to indefinite sentences: while an indefinite sentence is current, eligibility for parole under Part IV of the Corrective Services Act simply does not arise. With prisoners subject to finite or life terms, responsibility for release rests with the Queensland Community Corrections Board (s.165 Corrective Services Act). With prisoners subject to indefinite sentences, responsibility for review rests with the court (s.171 and following, Penalties and Sentences Act).

11 Because the position taken by the Corrective Services Commission which provoked the Attorney's appeal is plainly untenable, for the reasons just expressed, the Attorney's appeal should be dismissed.

12 I turn to the application for leave to appeal against sentence. Counsel for the applicant submitted that there was "simply no evidence" to justify his Honour's finding that the prisoner was a "serious danger to the community" (s.163(3)), in light of the standard of proof, which requires the court to be satisfied by "acceptable, cogent evidence and to a high degree of probability" (s.170).

13 The argument for the applicant involved these essential steps: the applicant's antecedents were certainly extremely serious; he has been in custody for most of his life since the age of seventeen years; while in custody he has learned the trade of carpentry, and has attended drug and alcohol and anger management courses; he comes from a sad and deprived background; particularly significantly, it is submitted, for the eight months period he has over the years been out of gaol - in 1992 - he led a relatively normal, non-violent life as a carpenter; there was "not a lot of physical violence" involved in these instant offences, it was submitted; and looking at the matter overall, one should not conclude, as a matter of "high probability", that he is a danger to the community.

14 The particular conclusion to which the learned judge came was, for the reasons he expressed, open to him, on the facts of this case. As will appear, I consider he did not address the right question, but for the moment it is useful nevertheless to consider, in light of the challenge, whether the finding he made, on the approach he adopted, was factually supportable. That is because if his conclusion was not factually open, even on the limited (and erroneous) construction he adopted of the legislation, then a fortiori it is not open on the correct, broader test, to which I will come. The resolution of this issue therefore may bear ultimately on whether the sentencing should be remitted to his Honour for further consideration. As I have said, I consider the finding he made was open, assuming for the moment the applicability of his construction of the provisions.

15 By the time of sentencing - the time to which his Honour expressly related the finding - the applicant had over many years committed a number of very serious violent and often brutal crimes. There was a pattern of offending shortly after release from custody - and even seriously while in custody. He had not been deterred from violent offending by lengthy imprisonment, or by the rehabilitation which would ordinarily flow from the numerous courses he underwent while in custody. At the trial for these offences, he showed no remorse. He is a powerful man physically, a champion boxer and athlete, who preys on weaker persons. When sentenced, he was still a comparatively young man, at thirty-four years of age. Were the fourteen year term imposed, he would be eligible for parole consideration at forty-one years, but could theoretically be granted parole even earlier (s.165(1) Corrective Services Act). Work release, home detention could likewise lead to his being out of custody at an earlier stage. There was, in my view, ample evidence to warrant the conclusion that he was, assessed as at the time of sentencing, "a serious danger to the community".

16 I refer now to the separate submission for the prisoner that such a conclusion should only have been reached in this case if supported by expert medical evidence, of which there was none. I reject that submission. The legislation contemplates that such evidence may be received (s.167(3)), and one can accept that in many cases, that type of evidence could be very helpful; but the Act does not suggest that it is an essential prerequisite to the drawing of such a conclusion that evidence of that character be before the court. Such a conclusion may be drawn by a process of inference, in the ordinary way, from established facts. Such a conclusion falls, in short, within the range of ordinary experience, and a judge may be quite capable of drawing it, if the evidence is otherwise sufficient, whether or not supported by specialist medical testimony.

17 A separate and important issue does, however, arise as to whether the judge addressed the right question. His conclusion that the prisoner was a serious danger to the community must be read as referring to the position as at the time of sentencing, indeed as he put it, "as at the present time", a point he emphasised in context of reference to the Victorian case of Carr [1996] VicRp 43; [1996] 1 V.R. 585. On materially similar legislation, the Victorian Court of Appeal there held that the inquiry must relate to the position as at the time of sentencing, that a court should avoid making predictions about the future. A difficulty about that approach immediately emerges from s.163(4)(d) of the Penalties and Sentences Act, which obliges the court, in determining whether the offender "is" a serious danger to the community (the matter of which the court must be satisfied before exercising its discretion to impose an indefinite sentence - subs. (3)), to have regard to "the risk of serious physical harm to members of the community if an indefinite sentence were not imposed", and "the need to protect members of the community from (that) risk" (para (e)). Courts are capable of drawing reasonable inferences, from evidence of present circumstances, as to whether or not future risks are likely.

18 It seems to me obvious that the court must consequently to some extent look to the future; as indeed it should anyway, before sentencing a prisoner to such a penalty - the need for an indefinite term must be considered, as part of the discretionary process, and that must ordinarily necessitate consideration of what may happen in the future if an indefinite term is not imposed, with the prisoner being subjected to a finite term.

19 Pincus JA considered this point in R. v. Wilson [1995] 2 Qd.R. 599 (it was not necessary for the other members of the court to do so) and said:

"... the primary question is dangerousness at the time of sentencing: but it seems to me evident that dangerousness at later points in time is made relevant by s.163(4)(d). ... In my view, the result of para.(d) (with its ancillary provision, para. (e) of s.153(4) is that the court must consider the danger at the precise time of sentencing but also, and at least as importantly, look to the future: if it does not, the court cannot carry out the mandatory requirement of para. (d) and that of para. (e). What the court has to do then is to look at the present danger and also consider the extent of the risk of serious physical harm to people, if there is a determinate sentence instead of an indeterminate one."

I respectfully agree with that approach. (I point out that the learned sentencing judge was not referred to that case.)

20 Because the learned judge misconstrued s.163(4), when making his finding, by apparently excluding consideration of the future, this court may of course itself review the matter. Alternatively, we could remit the matter to his Honour for further findings. Because of the possibly drastic consequences of such a sentence, it is very important that the process be carried through regularly, and that that be clearly apparent. Although one may perhaps feel confident about forming one's own view on the relevant issue, there is no doubt that the learned judge, having conducted the sentencing process, had an advantage in forming the ultimate judgment which should not now be foregone. The appropriate course is therefore that the matter be remitted to him for further consideration.

21 There are two other matters which were the subject of submissions before the Court to which, for completeness, I should now refer.

22 Counsel for the prisoner submitted that s.163(4)(a) should be read as permitting of a finding of "serious danger to the community" only if "the nature of the offence is exceptional". I do not accept that submission. The point is theoretically relevant because the judge did not expressly advert to it. Certainly because of subs. (4)(a) the court must have regard to that consideration: if the offence was "exceptional", no doubt that could make the ultimate finding more likely. But the subsection is not couched in language which excludes the finding unless the offence is exceptional.

23 It would, I think, be difficult to regard the nature of these offences as other than exceptional: a thirty-three year old, just released from custody, in the early hours of the morning, abducting the fourteen year old daughter of a woman who was helping him re-enter the community, and subjecting her over an extended period to violent and perverse sexual acts and indignities, coupled with serious threats. But this is an aspect to which his Honour should preferably have given express attention. I have referred to the importance of regularity in the process set up by the legislation, and that that be clearly apparent. Ordinarily a judge should make it clear that he or she has addressed the particular considerations stipulated in this legislation.

24 Mrs Richards, who appeared for the prisoner, also contended that the learned judge erred in failing to peruse the prisoner's Corrective Services file, which was in court and may well have contained some relevant assessment. The Crown prosecutor mentioned the presence of the file in court as follows, leading to his Honour's response:

"Your Honour, the Corrective Services file in relation to this man has been subpoenaed for court today. There may be further information available to your Honour in relation to the character of this man from that but I have not had the opportunity to look through those filed at this stage.

HIS HONOUR: Well, there are pretty strict requirements, evidentiary requirements on an application by the prosecution for an indefinite sentence and I would think it would go beyond those requirements for me to simply take that file away and examine it with a view to finding out more information about the prisoner without him having had the opportunity required by procedural fairness to know exactly what, if anything, in that file is to be relied upon as evidence justifying an indefinite sentence, so in light of that, I am not prepared to examine that file the way it's been brought to court."

25 He then declined to adjourn the matter so the prosecutor could go through the file, on the basis that the Crown had had adequate time to prepare its case. Mrs Richards challenged the judge's refusal to adjourn.

26 These submissions face substantial difficulty. The judge refused to receive the file for reasons based in fairness to the prisoner. Defence counsel did not ask him to peruse it. Neither did defence counsel apparently join with the application for adjournment, or suggest that anything helpful might be gained from the file. It clearly did not fall to the judge independently to examine this file: it would have been wrong of him to do so, especially in view of s.167 of the Penalties and Sentences Act, by which the ordinary rules of evidence applied. I may add that in my view, this suggested procedural irregularity should have been particularised as a ground of the application, if to be pursued. But the point lacks substance anyway.

27 In my opinion the application for leave to appeal against sentence should be allowed, the indefinite sentence imposed under s.163 of the Penalties and Sentences Act set aside, and the matter of sentencing remitted to the learned judge so that he might proceed according to law, with the prisoner being remanded as necessary in custody.

1 I have had the benefit of reading the reasons for judgment prepared by the Chief Justice and The Hon. Mr Justice Cullinane.

2 I agree with the orders proposed by the Chief Justice and with the reasons of both judges. I particularly record that I agree with the comments of the Chief Justice at para.23 of his reasons and with the views of both judges that the issue raised by s.163(4)(a) of the Penalties & Sentences Act 1992 is one to which the learned sentencing judge should preferably give his express attention.

I adopt the recitation of the history of the matter by the learned Chief Justice. I agree with what the learned Chief Justice has to say on the subject of the appeal by the Attorney-General and with the order that he proposes for its disposition. I also agree with what the Learned Chief Justice says on the question of whether expert medical evidence is necessary in the case of an indefinite sentence.

Because of the course which I think should be taken, it is not necessary that I refer to the findings of the learned judge at first instance except where necessary to explain the conclusions I have reached.

In my view, the learned judge, when considering whether the requirements of s. 163(3)(b) were satisfied, namely, whether the applicant constitutes a serious danger to the community, did not address that question by reference to considerations which the provisions of s. 163(4) and in particular s. 163(4)(d) and (e) mandate.

At p. 165 of the record, his Honour, in his sentencing remarks said:

"The only case to which I have been referred dealing with the question is a decision of the Victorian Court of Appeal hearing an appeal against the imposition of an indefinite sentence pursuant to fairly similar legislation in Victoria. The point which the Court made is that the Court must determine whether the offender was a serious danger to the community at the time of sentencing rather than try to make a prediction of future dangerousness at the time when the offender would become eligible for release."

It is plain from a reading of his Honour's sentencing remarks that this is the test which he applied.

The terms of s. 163(4)(d) and (e) require a court, when considering the imposition of an indefinite sentence, to address not only the question which his Honour considered, but also the question whether there is a danger to the community if there is a determinate sentence which carries with it the possibility of release on parole prior to the expiration of that sentence and the certainty of release upon its completion and necessarily involves a consideration of the future.

I adopt what Pincus J.A. said in R. v. Wilson [1998] 2 Qd.R. 599 at 668:

"In my view, the result of para. (d) (with its ancillary provision, para. (e)) of s. 163(4) is that the Court must consider the danger at the precise time of sentencing but also, and at least as importantly, look to the future; if it does not, the Court cannot carry out the mandatory requirement of para. (d) and that of para. (e). What the Court has to do, then, is to look at the present danger and also consider the extent of the risk of serious physical harm to people, if there is a determinate sentence instead of an indeterminate one."

The learned sentencing judge was not referred to this judgment which had been delivered only a relatively short time prior to the date of sentence in this matter.

In the result then, the learned sentencing judge failed to address all of the issues which he was required to address before an order under s. 163 could be made.

I should add that his Honour does not appear - at least expressly - to have considered the factor which s. 163(4)(a) requires a court considering the imposition of an indefinite sentence to consider, namely "whether the nature of the offence is exceptional".

Whilst it is not necessary that there be a finding that the nature of the offence is exceptional before such an order can be made, the issue is one which the sub-section requires to be addressed. The absence of any reference to the matter justifiably raises concern that it was not considered.

In reaching the conclusion that in the sentencing process his Honour addressed the wrong question or failed to address a relevant question, I am not unmindful of his Honour's findings generally. However, given that his Honour in the passage set out in para. 4 of these reasons has plainly adopted an approach which, in my view, is erroneous, I am not convinced that his findings in other respects should lead, nonetheless to the conclusion that there was no such error in his approach.

The powers provided for in provisions such as s. 163 were described by the High Court in Chester v. The Queen [1988] HCA 62; (1988) 165 C.L.R. 611 in considering Western Australian legislation which, whilst having important distinguishing features, was similar in its scope and purpose to s. 163 as an

"... extraordinary power which the section confers on a court (and which) is to be exercised with the object of protecting the public from the commission of further crimes by the person directed or sentenced to be detained for an indeterminate period."

At p. 618, the court, in its joint judgment, said:

"... After all, it is now firmly established that our common law does not sanction preventive detention. The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender: Veen v. The Queen (No. 1) [(1979( [1979] HCA 7; 143 C.L.R. 458, at pp. 467, 468, 482-483, 495], Walden v. Hensler [(1987) [1987] HCA 54; 163 C.L.R. 561], Veen v. The Queen (No. 2) [(1988) [1988] HCA 14; 164 C.L.R. 465, at pp. 472-474, 485-486]. In the light of this background of settled fundamental legal principle, the power to direct or sentence to detention contained in s. 662 should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm. ..."

This power must be exercised with great care and, in my view, with a full and clearly demonstrated attention to the statutory pre-requirements to its exercise. For reasons already explained, I think that his Honour has not properly addressed one of the considerations which s. 163(4) requires to be addressed (s. 163(4)(d) and (e)) and may not have addressed another issue which the section requires to be addressed (s. 163(4)(a)).

This Court can, and there are important considerations which suggest that it should, itself consider the matter of sentence where it is convinced that the sentence imposed at first instance should not stand and impose what it considers is the appropriate sentence. However, there is also power to remit the matter to the learned judge to conduct the sentencing process afresh: see R. v. T. [1994] QCA 326; [1995] 2 Qd.R. 192 and R. v. Ferrari [1997] QCA 73; [1997] 2 Qd.R. 472. In my view, given the nature of what is involved in the making of an order under s. 163 and given the very substantial advantage the learned judge who presided at the trial has over this Court the most desirable course is to remit the matter to the learned judge for further consideration.

Accordingly, I would grant leave to appeal, allow the appeal, set aside the sentence imposed under s. 163 and remit the matter to the learned judge to proceed according to law.

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