REGINA v BEGBIE

COUNSEL : Crown: G Smith Respondent: B T Stratton QC SOLICITORS : Crown: S E O'Connor Respondent: Mark Rumore CATCHWORDS : Criminal law - sentence - Crown appeal - Crimes Act, s52A - home detention - relevance of forgiveness by victim's family DECISION : Appeal allowed.

IN THE COURT OF CRIMINAL APPEAL CCA 60854/00 MASON P SULLY J DOWD J

JUDGMENT 1 MASON P: The Director of Public Prosecutions appeals against the adequacy of a sentence imposed following a plea of guilty to a charge under s 52A(1)(a) of the Crimes Act 1900 (dangerous driving occasioning death when the driver was under the influence of intoxicating liquor). The maximum penalty is ten years' imprisonment. 2 The offence occurred on 11 December 1999 when the respondent was a little over seventeen and a half years of age. 3 The plea of guilty was entered at the Local Court on 7 July 2000. The respondent was thereupon committed for sentence and he appeared before Moore DCJ on 1 December 2000 at the Campbelltown District Court. The sentence, imposed on 2 February 2001, was eighteen months' imprisonment commencing on that date with a non-parole period of six months to be served by way of home detention. 4 At about 2.40 am on 11 December 1999 the respondent was driving north along Appin Road, Campbelltown. His vehicle collided head-on with a vehicle being driven in a southerly direction. The respondent's vehicle had crossed over a raised grass median strip in the middle of the road after he had failed to negotiate a slight left-hand bend in the road. The respondent had fallen asleep at the wheel shortly before the collision. 5 The eighteen year old driver of the other vehicle suffered extensive injuries and died in hospital that day. 6 The respondent was interviewed by the police on 17 February 2000. He and his girlfriend had been at the Novotel Hotel in Wollongong between about 7 pm and 12.30 am on the night in question. He drove her home to Currans Hill (which was a 40-45 kilometres journey) around 12.30 am and he returned to the Novotel briefly before driving home to Mount Annan, near Campbelltown at about 2 am. He started feeling 'a little bit tired.' He turned off the music in the car to be able to concentrate harder, but he fell asleep at the wheel. The window in the car was wound up and the air conditioner was set to a warm temperature. 7 The respondent could not recall anything until waking up in Liverpool Hospital the next morning. The accident occurred about ten minutes away from his home. 8 Driving conditions at the time were good. The traffic was light. The respondent said he was driving at approximately 70-80 kilometres per hour. The respondent told police that between 9 pm and 9.30 pm he had consumed two 600 ml bottles filled with a mixture of lemonade and around 20-25 mls of Vodka. He had mixed the drinks himself. He believed that the alcohol affected him 'to a mild amount' until around 10.30 pm - 11 pm. After that he felt 'reasonably well' and he did not believe that his consumption of alcohol affected his driving at all. 9 Under cross-examination in the sentencing proceedings the respondent agreed that just before he left for the final journey back to Campbelltown he also took "less than half a glass" of a mixture of Coca-Cola and a spirit which he could taste in the drink. He said that he stopped drinking when he tasted the alcoholic content. 10 Notwithstanding what the respondent said in his record of interview, the plea of guilty established that the respondent was driving under the influence of intoxicating liquor at the time of the accident. A blood alcohol reading taken at 3.40 am indicated a concentration of 0.087 gms of alcohol per 100 mls of blood. This meant that at the time of the collision the blood alcohol reading would have been between 0.1 and 0.113. According to the evidence of Dr Moynham these levels would cause a person's driving ability to be impaired. For a driver with 'P' plates the upper limit was 0.02. 11 The respondent has no prior convictions. He lives with his mother and stepfather. He completed the Higher School Certificate at seventeen. He had completed a cookery course at TAFE and had commenced work as an apprentice chef. 12 The respondent had been committed to the District Court for sentence. He came before Judge Moore on 1 December 2000. 13 A background report prepared by the Department of Juvenile Justice assessed the respondent as suitable for a community service order. This report was tendered along with several character references. The respondent gave evidence expressing his regret and his understanding about the consequences of his actions to the family of the young woman killed as a result of his irresponsible conduct. His mother gave evidence along similar lines. 14 There was tendered into evidence a letter from the deceased girl's mother in which she stated that she had no malice or anger towards the respondent and in which she felt deeply for the respondent and the burden he would have to carry. A similar letter from the deceased woman's younger sister was also tendered. 15 Following a short adjournment Judge Moore proceeded to give judgment ex tempore. He commenced his remarks by stating that: ... there must be a sentence of imprisonment, but I will direct that in your case you be assessed for serving the non-parole period by way of home detention. The sentence will be one of two years with a non-parole period of six months and whilst you will be convicted and I pass that sentence, I will adjourn the matter for the purpose of your being assessed for suitability for home detention. That will take some time, you will be at liberty while that occurs and then the matter will come back to this Court depending on the result of the home detention assessment. 16 His Honour set out the material facts. 17 He held that the alcohol contributed substantially to the drowsiness and that the respondent had some warning of his impending drowsiness although he turned off the radio in the car in an endeavour to concentrate on his driving. Such conclusions were clearly open. 18 Adverting to the guideline judgment in Regina v Jurisic (1998) 45 NSWLR 209 at 231, his Honour observed that the instant case contained two aggravating factors which he described as "alcohol and the length of driving during which people are exposed to risk". His Honour did not feel it proper to categorise the case as one of an abandonment of responsibility in the sense used by Spigelman CJ at 231. He described the offender as an inexperienced driver. 19 His Honour also observed that the respondent was an inexperienced drinker who had no means of measuring the amount of alcohol which he had. I pause to say that I have difficulty understanding the evidentiary basis for these remarks, especially given the evidence about the respondent mixing his own drinks; and the pre-sentence report from the probation and parole officer which said: Mr Begbie stated that he began drinking alcohol on a social basis when aged sixteen years. He indicated that he had a tendency to binge drink when in the company of friends, particularly during outings, although not on a weekly basis.

On the night of the offence the offender stated that he had consumed approximately five alcoholic beverages, mixed by himself. 20 Judge Moore held that the case would have required a sentence of imprisonment in routine custody were it not for certain subjective features. 21 His Honour referred to the remarks of Archbishop Tutu that "without forgiveness there can be no future" and said that the case was characterised by the enormous effect of the tragedy coupled with an extreme depth and genuineness of forgiveness by the family of the young girl so gravely affected by her death. 22 Citing the obiter remarks of Simpson J in Glen, CCA, unreported, 19 December 1994 he held that it was relevant to take into account the forgiveness of the family of the victim killed. Later in his remarks on sentence the Judge said that were it not for the forgiveness offered by the family of the victim the respondent would have been sent to gaol. 23 The subjective features were then addressed. The plea of guilty had avoided additional stress and grief. It was backed up by genuine and deep remorse. Several other matters were adverted to, including the favourable character references indicative that this was an offence committed entirely out of character. There were no prior convictions and the respondent had co-operated with the police from the earliest moment. 24 Although the respondent was under full age at the time the crime was committed his Honour held that the matter was such that it should be dealt with according to law. 25 In his concluding remarks, his Honour described the case as: an exceptional case of subjective features where a young man, at the threshold of his life is facing a sentence which would in the absence of exceptional circumstances require him to go to gaol. 26 His Honour thereupon imposed a sentence of two years' imprisonment with a non-parole period of six months. The matter was adjourned to 2 February 2001 to enable the obtaining of a report from the Probation and Parole Service as to suitability for home detention. 27 The proceedings were however re-listed before his Honour on 14 December 2000. Reference was made to s 79 of the Crimes (Sentencing Procedure) Act 1999 which precluded a concurrent or consecutive sentence involving a home detention order expiring more than eighteen months hence. (Although not cited, the directly applicable provision was s 7 of that Act, to which reference will be subsequently made.) 28 His Honour said that he thought he was functus officio, but indicated that the operative feature of the sentence which he intended to impose was that the respondent serve six months by way of home detention. He asked whether the Crown wished to be heard. The response suggests that the Crown's representative did not clearly embrace the proposition that the Judge might be functus officio in his sentencing function. However, it was submitted that a term of eighteen months did not really seem to fully cover the criminality of the actual offence. 29 The matter came again before Judge Moore on 2 February 2001. A home detention assessment report dated 31 January 2001 was tendered. The respondent was assessed as suitable to serve his sentence by way of a home detention order. The relevant consent and accompanying documents were attached. 30 In his further remarks on sentence Judge Moore indicated that his reasons for what he was doing had been recorded on the two previous occasions and that all that remained was to assess the effect of the home detention assessment. Observing that the respondent had been assessed as suitable for home detention, his Honour ordered that the sentence as to its custodial part be served by way of home detention. The respondent was sentenced to imprisonment for eighteen months to commence from 2 February 2001 with a non-parole period of six months to commence from that day and to expire on 1 August 2001. It was directed that the non-parole period be served by way of home detention. 31 Judge Moore made the following observation: In the home detention assessment, I took this into account, I must say, before I pronounced what I just did, there is a reference to dependency on alcohol and there is an assertion which I quote, "Mr Begbie used to regularly binge drink alcohol with his circle of associates prior to the offence but has by all accounts reduced this intake over recent months". In my remarks on sentence based on the evidence which was then before me I found that the amount which he had had to drink on the night of the crime, was one which he was unaccustomed to drinking. Neither party wishes to address me about that matter so I simply make that observation. I should not however depart from the matter without expressing two observations. Firstly, that is an assertion which has not been covered by any of the evidence other than the assertion itself. Secondly, in view of the second part of the assertion that he has reduced his intake, coupled with the previous assertion that he has changed his behaviour and also coupled with the requirement that there be no drinking of alcohol whatsoever during the serving of the sentence I would still pass the sentence which I passed today. 32 In my view the sentencing process in this matter was seriously flawed in the method and procedure adopted. These flaws contributed to but do not wholly explain a sentence that was manifestly inadequate and which must be corrected notwithstanding the exceptional nature of a Crown appeal. 33 Section 7(1) of the Crimes (Sentencing Procedure) Act 1999 provides that a Court that has sentenced an offender to imprisonment for not more than eighteen months may make a home detention order directing that the sentence be served by way of home detention. The procedure to be followed is set out in Pt 6 of that Act, especially s 78. 34 The decisions of this Court in Jurisic and Regina v Thackray, CCA, unreported, 19 August 1998 explain in the clearest of terms that the legislative scheme relating to home detention requires the sentencing Court to determine and specify the appropriate sentence of imprisonment before it knows whether the offender will qualify to serve it by way of home detention and whether it is appropriate in the particular circumstances for such less onerous form of sentence to be served in that manner (see especially Jurisic at 214-5 per Spigelman CJ, at 249-251 per Sully J). It is a corollary that the Court should not tailor a sentence so that it might be served by home detention. The proper procedure is to determine the appropriate sentence ignoring the provision of home detention and to consider home detention only if the sentence to be imposed is less than eighteen months (Thackray). 35 There are sufficient indications in the original remarks on sentence to show that Judge Moore overlooked or ignored these principles. His Honour's comments on 14 December 2000 which explain the basis for the different sentence imposed on 2 February 2001 make such errors explicit. 36 The respondent properly concedes that these errors occurred. Alone, they provide a sufficient basis for overturning the sentence imposed on 2 February 2001 without the necessity of tarrying over the additional question whether his Honour was then functus officio as regards imposition of a sentence of imprisonment. This was certainly an unlikely candidate for the application of the slip rule. 37 Quite apart from these serious procedural errors, the sentence ultimately imposed was manifestly inadequate and requires appellate correction. The inadequacy was contributed to by the erroneous approach to home detention, but not entirely so. 38 The respondent submits that the sentence is not manifestly inadequate. Particular reliance is placed upon the subjective features of the case: The respondent's good character, his youth, the prospects of rehabilitation and the risks involved in sending a young man to gaol. These submissions can also be read as addressing the proper sentence to be imposed by this Court in consequence of the need to re-sentence stemming from the procedural errors already discussed. 39 The respondent also submits that the consumption of alcohol was not the sole factor contributing to the sleep which directly caused the crash. It was about 2.40 am. As to objective seriousness, it is also submitted that the respondent was not conscious that he was driving under the influence of liquor. I cannot accept these submissions. The sentencing Judge was correct to conclude that alcohol contributed substantially to the drowsiness and that the respondent was aware of such drowsiness. I have already indicated why I cannot accept that this was a case of an inexperienced youth unaware that he was intoxicated to a substantial degree. Nevertheless, I accept that youth and inexperience contributed to the tragedy of the accident and the sad task now confronting this Court. 40 There was and is no proper basis in the facts of this case to disregard the guideline judgment in Jurisic. A full-time custodial sentence should have been imposed. Failure to have done so involved disregard of clearly expressed community standards reflected in the legislative history culminating in s 52A. In Jurisic the Court approved and applied the following remarks of Hunt CJ at CL in Regina v Musumeci, CCA, unreported, 30 October 1997): 1. The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness. 2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life. 3. Such is the need for public detterence in this type of case, the youth of an offender is given less weight as a subjective matter than in other types of cases. 4. The courts must tread warily in showing leniency for good character in such cases. 5. So far as youthful offenders of good character who are guilty of dangerous driving, therefore, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances. 6. Periodic detention has a strong element of leniency built into it and, as presently administered, it is usually no more punitive than a community service order. 41 In my view, this Court should set aside the sentence imposed by the learned trial sentencing Judge. I have not overlooked the constraints involved in a Crown appeal, particularly one that seeks the imposition of a custodial sentence for the first time on a young offender who escaped such sentence at first instance. In Regina v Horne [1999] NSWCCA 391 I said:

Judges who turn a blind eye to an applicable guideline judgment must realise that a Crown appeal is very likely to succeed, with the consequence that the offender is placed into custody or returned to custody. The hardship that this imposes upon a young offender is manifest yet it is a necessary consequence of giving effect to proper sentencing principles. Misguided judicial kindness thus becomes unintended cruelty. 42 These remarks were approved recently by this Court in Regina v Harrison [2001] NSWCCA 79. 43 If the readiness of the young victim's family to offer forgiveness to the respondent and to empathise with the pain and sorrow he obviously feels is relevant - and on that I express no view - extreme caution would be required before giving it any weight. It should not have been determinative in the present case. The victim's family's attitude will doubtless be some comfort to the respondent, but it cannot over-reach the need for strong denunciation and general deterrence in response to the objective circumstances of this case. 44 The principle of appellate restraint in Crown appeals against sentence that passes under the misleading title of 'double jeopardy' requires the imposition of the minimum sentence necessary to vindicate proper sentencing principles in the particular case. 45 The task now before this Court is a particularly difficult one having regard to the events which have intervened including the lapse of time from when the respondent first came up for sentence in the District Court and the day on which the sentence under appeal was imposed. The respondent has already served part of the sentence of home detention. 46 Because of these matters, the objective circumstances (which are serious but not the worst case conceivable), the respondent's age at the time of the offence and the other subjective features I would propose that the sentence to be set by this Court is a sentence that will date from today and will be for a term of two years and nine months to be served by way of periodic detention. The term is fixed in recognition of the matters discussed in Regina v Hallocoglu (1992) 29 NSWLR 67. 47 The reason why I have structured the sentence as one to commence from today is because of section 70 of the Crimes (Sentencing Procedure) Act 1999 which fixes a finite future period of time within which a sentence to be served by way of periodic detention order is to commence. Had it not been for section 70 then a sentence of three years dating from 2 February 2001 would have been the way that I would have adjusted for the situation in which this Court now finds itself. 48 Section 66 of the Crimes (Sentencing Procedure) Act 1999 precludes the Court from making a periodic detention order unless satisfied of six stipulated matters. In light of the age of the offender and the material contained in the report of the Probation & Parole Service that was tendered in Court today I am so satisfied. 49 I would emphasise that this is not the sentence that should have been imposed at first instance or which I would have imposed at first instance. I have endeavoured to explain why a unique concatenation of circumstances makes it appropriate that in my opinion the sentence of imprisonment should be served by way of periodic detention. 50 The formal orders I would propose are: 1. Appeal allowed; 2. Sentence imposed in the District Court set aside; 3. In lieu the respondent is sentenced to imprisonment for two years and nine months to date from 11 May 2001, such sentence to be served by way of periodic detention. 51 I should indicate that the Probation & Parole Service report indicates that vacancies exist at the Parramatta weekend facility and it is my intention that that is how the periodic detention will be served. 52 SULLY J: I regret that I am unable to join in the making of the orders proposed by his Honour the presiding Judge. In that regard I can say at once that I have no difficulty with his Honour's definition of the relevant objective facts. I agree entirely that the case is a strong one on its subjective features. 53 It remains, however, the case that, for reasons which I shall presently endeavour to explain, I do not think that the consistent application of the existing body of relevant curial decisions, and the consistent and correct application of what is plainly a progressive hardening in the stance of the Legislature, will permit properly of the making of an order the effect of which is that the present respondent serves in a real sense no full-time custody at all. 54 I turn to a brief explanation of the reasoning that leads me to that conclusion. 55 I would wish to take up specifically but one matter touched upon in the reasons given by the learned Presiding Judge. The point has to do with the speculative opinion expressed in the decision in Glenn: that is to say, the speculative opinion there expressed as to the appropriateness of taking into account in some way or other favourable to the particular offender the fact that the particular victim's family has expressed forgiveness - rather than lack of forgiveness. 56 I pause to comment in particular about the matter, acknowledging that this is neither the time nor the place to attempt a definitive analysis of the proposition advanced in Glenn; but because it seems to me that if something is not said about it, it will acquire a momentum of its own until it becomes a precedent which the Court of Criminal Appeal will be expected to apply as of course in any case where a victim's family expresses, for whatever reason and in whatever circumstances, forgiveness. 57 It is, I think, relevant in connection with that question to consider what is, as I apprehend the law, the well-entrenched principle in a case where, so to speak, the shoe is on the other foot. There is a statute that requires sentencing Judges to take into account victim impact statements when they have been obtained and made available to the sentencing Court. The relevant statutory provision requires that the sentencing Court receive the victim impact statement; acknowledge that it has been received; and say, in terms, that it has been received and acknowledged. The ink was barely dry on the amendments which brought those provisions into operation, before clear statements were made in the Court of Criminal Appeal to the effect that it was not the law that a proper approach to the sentencing of a particular offender was to be affected in any substantial way at all by the unforgiving views, or the grief otherwise expressed, of the victims of the offender. 58 I confess that, as at present advised, I do not understand the logic of an approach which excludes rigidly an unforgiving attitude, but accepts some weight as being appropriate to be given to a forgiving attitude. In my opinion it is extremely dangerous to suggest any departure of any kind at all from the proposition that the views of the victim's relatives are not to affect substantially one way or the other the framing of a proper sentence.. 59 As I said a moment ago, this is neither the time nor the place to attempt a definitive statement in connection with the Glenn proposition; but I do not wish, by remaining silent, to give any indication that I accept the soundness in principle, or indeed the desirability in practice, of what is said in the relevant passages in the Glenn decision. 60 Turning to the more general propositions which I think ought to govern the outcome of the present appeal, I would take as a starting point two brief passages from the judgment of Lee CJ at CL in McIntyre (1998) 38 A Crim R 135 at 139. I do not propose to read passage after passage from reported cases; but these two passages I do propose to read because of what I see as their fundamental relevance to the present particular case. 61 His Honour said this, "In dealing with the commission of a serious crime by a young man the courts make every effort, if it can properly be done, to avoid the penalty of gaol. But as against that, it must be said that when young men are able to hold licences at 17 years of age and drive their cars after drinking excessive quantities of alcohol, and at a high rate of speed as in this case, and cause death, no significant reason can be found for differentiating between their driving and that of persons who are older. Each is a potential killer on the roads. The lack of foresight in youth, the reckless spirit of youth will always be there and must always be recognised by courts, but that cannot, when punishment is under consideration, be recognised to the point of leading young drivers - who, regrettably, form a significant proportion of motor traffic offenders - to believe that an offence under s 52A resulting in death will lead to light punishment." 62 His Honour said, further, this: "But it must be said that this class of offence is one which in many, perhaps even in most, cases is committed by persons who are not in any sense members of the criminal class or who even have criminal convictions against them, and for that reason the courts need to tread warily in showing leniency for good character to avoid giving the impression that persons of good character may, by their irrepressible actions at the time, take the lives of others and yet receive lenient treatment."

63 Those statements of principle were taken up and approved in terms by a differently constituted Bench of the Court of Criminal Appeal in the matter of Slattery (1996) 90 A Crim R 519, and in particular at 522 and 523. The Bench that decided Slattery consisted of Hunt CJ at CL, Studdert and Simpson JJ. 64 In December 1996 a differently constituted Bench of the Court, consisting on this occasion of the former Chief Justice, Gleeson CJ, McInerney J and me, dealt in a matter of Williams, NSWCCA 17 December 1996, with the propositions of which I have been speaking. What I said in that matter, and with the concurrence of the other members of the Court, is recorded at pages 386 and 387 of the report at 92 A Crim R 381 of the matter of Sellers, a matter decided by a Bench consisting of, once again, Hunt CJ at CL, Smart J and me. Because of the length of those passages I will not impose a reading of them on the Court; but I re-affirm what I said in that matter. 65 It will be observed that the citations of authority to which I have particularly referred extend as far back as 1988. Allowing, as one must of course always allow, that circumstances are always capable of altering cases, it seems to me to be nonetheless important, and very important in the context of a drunken or other irresponsible driving of motor vehicles, that there not be suffered to go abroad in any way an impression that the Court of Criminal Appeal is in any way weakening in its resolve to adhere to the principles so plainly stated from as long ago as 1988. 66 So much must be, as I respectfully think, completely clear to any District Court Judge, or if it comes to the point, to any primary sentencing Judge of this Court, who is called upon to deal with a matter involving that particular kind of criminal behaviour. 67 That being so, it is, I think, timely to add the following observation. 68 In the matter of Crotty (1994) NSWCCA 28 February 1994, a Bench of the Court comprising the former Chief Justice, Gleeson CJ, Newman J and me, had to deal with a situation in which a District Court Judge had, in effect, stepped around the need to impose a proper sentence of imprisonment by making, if I may so describe them, temporising orders which had the effect of referring to this Court the unpalatable task of doing what ought to have been done at first instance. 69 At page 9 of my judgment in that matter I made some observations about the need for primary sentencing Judges to understand the obligation to adhere punctiliously to guidance clearly given by judgments of, relevantly, the Court of Criminal Appeal. 70 The then Chief Justice and Newman J concurred in what was said. Once again, I will not impose upon the Court a reading of the passages, which are lengthy; but I will say that I think it timely to re-affirm them, and to buttress them by quoting two sentences from the speech of Lord Diplock in the matter of Broome & Cassel & Co 1972 AC 1131. It must be acknowledged that was a civil and not a criminal case, but the obligations that rest upon Courts in a hierarchical curial structure was very much an issue. His Lordship made these observations: "It is inevitable in a hierarchical system of courts that there are decisions of the supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary…………………………………………. But the judicial system only works if someone is allowed to have the last word and if that last word, once spoken, is loyally accepted." 71 In the present case, the easy part of the case is to define, and to feel a properly sympathetic response to, the subjective features of the respondent; but it seems to me to give a wholly disproportionate weight to those matters, important though they are in the proper scheme of things, to allow them to issue in a result which, as I said when I began these remarks, does not entail in any real sense full-time custody at all. 72 For the whole of the foregoing reasons, therefore, I would for my part allow the Crown appeal. I would quash the sentence passed in the Court below and set aside the home detention order. 73 I would pass a sentence of imprisonment for two years backdated to 2 February of this year. I would have regard to the exceptional subjective matters, and to the constraints to which the presiding Judge has referred, and which I acknowledge and accept; and would fix a non-parole period of eight months. 74 That outcome would reflect two things; first that the time actually to be served in custody would have the character of what is sometimes described in the authorities as a short sharp shock; and, secondly, that it would not give the respondent what I am convinced is the entirely inappropriate leniency of a home detention order of any kind. 75 I would myself append to those orders recommendations appropriate to ensure both the prompt appropriate classification of the respondent; and his service of the custodial portion of his sentence in the Young Offenders Programme. 76 Should it prove that the views which I have expressed are the views of the majority of the Court, it will be easy enough to pick up the formalising of such recommendations. 77 They are the orders that I would favour. 78 DOWD J: I agree with the orders proposed by the learned Presiding Judge and for his reasons therefor. 79 MASON P: By majority the orders will be as indicated in my reasons.

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