Devey v The Queen
[2021] VSCA 361
•17 December 2021
UPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0108
| TIMOTHY DENNIS DEVEY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 17 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 361 |
| JUDGMENT APPEALED FROM: | [2021] VSC 121 (Elliott J) |
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CRIMINAL LAW – Sentence – Application for extension of time within which to seek leave to appeal against sentence – Application for leave to appeal against sentence – Manslaughter – Sentence of 7 years and 6 months with non-parole period of 5 years and 6 months – Whether judge erred in failing to apply principles in Bugmy v The Queen (2013) 249 CLR 571 – Not reasonably arguable that judge erred – Manifest excess – Not reasonably arguable that sentence manifestly excessive – Proposed grounds of appeal not reasonably arguable – Futile to grant extension of time – Reasons for delay unsatisfactory – Application for extension of time refused.
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| REPRESENTATION: | Counsel | Solicitors |
| For the Applicant | Ms A Renieris | Victoria Legal Aid |
| For the Respondent | Mr D Glynn | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA:
On 8 October 2020, the applicant pleaded guilty in the Supreme Court to one charge of manslaughter. The maximum penalty for manslaughter is imprisonment for 20 years.
On 17 March 2021, following a plea hearing conducted on 3 December 2020 and 9 March 2021, the applicant was sentenced to a term of imprisonment of seven years and six months, with a non-parole period of five years and six months.
The applicant now seeks an extension of time within which to seek leave to appeal against sentence and, if the extension of time is granted, leave to appeal against sentence. His proposed grounds of appeal are:
(1)The sentencing discretion miscarried because the sentencing judge failed to apply the principles in Bugmy.[1]
(2)The sentence and non-parole period imposed are manifestly excessive.
[1]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
The application for an extension of time within which to seek leave to appeal against sentence requires consideration of the merits of the applicant’s proposed appeal and the applicant’s reasons for not filing his application for leave to appeal within the prescribed time.[2] The respondent submitted that the extension of time application should be refused, because the applicant’s proposed appeal lacks merit. Additionally, it submitted that the explanation for the applicant’s delay is poor. I will commence my analysis by considering the merits of the applicant’s proposed appeal.
[2]See Kentwell v The Queen (2014) 252 CLR 601, 613–4 [29]–[33]; Derwish v The Queen [2016] VSCA 72, [55]–[57]; Madafferi v The Queen [2017] VSCA 302, [11]; Chen v The Queen [2017] VSCA 335, [22]–[23].
Circumstances of offending
The events in question occurred at the residence of one Paul O’Gorman, who lived in a unit in Cramer Street, Warrnambool. The applicant stabbed Craig Blachford (‘the deceased’) with a knife, at the unit, in the following circumstances.
On the nights of 5 and 6 December 2018, Craig Blachford (‘the deceased’) and a woman he had been in a relationship with for several months, Marie Tangimetua, stayed overnight at the unit. At approximately 8.42 am on 7 December 2018, the applicant went to the unit following a telephone conversation with Mr O’Gorman about a $150 debt owed by the applicant to Ms Tangimetua. Shortly thereafter, the applicant left the unit. Mr O’Gorman found the applicant nearby, and together they retrieved the applicant’s bicycle from the Mid City Motel, before going to purchase alcohol at a liquor outlet. Mr O’Gorman returned to the unit on foot with the applicant’s bicycle, and the applicant stayed near the liquor outlet.
Around mid-morning, the applicant’s friend, Matthew Wilson, went to the unit. He saw the applicant’s bicycle there and witnessed a discussion between the deceased and Mr O’Gorman concerning the applicant’s debt to Ms Tangimetua. This conversation appeared to make Mr Blachford angry. Mr Wilson then left the unit with the applicant’s bicycle.
By chance, a little while later, the applicant and Mr Wilson met in a nearby street. Mr Wilson returned the applicant’s bicycle to him, and encouraged the applicant to return to the unit to settle the debt he owed Ms Tangimetua.
Mr O’Gorman and the deceased went to meet the applicant at the Whalers Hotel, but the applicant was not there. They then returned to the unit around 2 pm.
The applicant later rode to the unit and began drinking with Mr O’Gorman and the deceased. Ms Tangimetua was asleep in a bedroom. The applicant gave $100 to Mr O’Gorman in part payment of his debt to Ms Tangimetua. Later still, Joshua Mullen arrived. Another person also came and went during the course of the day, leaving at around 6 pm.
Later, the applicant gave the deceased a further $50, to be passed on to Ms Tangimetua to settle his debt with her. However, the deceased gave the money to Mr O’Gorman for the purpose of him (Mr O’Gorman) buying more alcohol. Mr O’Gorman and Mr Mullen left the unit, returning later with more alcohol.
By this time, everyone at the unit was drinking heavily, including the applicant. The mood became hostile and the deceased became frustrated and angry with the applicant. The applicant told the others present at the unit that he had once slept with a 15-year-old girl. The deceased then said to Mr Mullen, ‘He’s a paedophile’. When Mr Mullen asked who, the deceased replied, ‘This cunt drinking port’, meaning the applicant. The deceased then repeatedly told the applicant that he could not have any more alcohol, and demanded that he leave the unit, telling the applicant to, ‘Fuck off home’.
At this point, the applicant said that he was leaving. He put on his bicycle helmet. The deceased again became angry with the applicant, this time in relation to money the deceased believed that the applicant still owed to Ms Tangimetua. The deceased demanded a further $100 for Ms Tangimetua, and said to the applicant, ‘You have to pay it now’. While the applicant was still seated, and wearing his bike helmet, the applicant punched him on top of his helmet.
The applicant then walked through one kitchen door, and out another, into a hallway. As he went to leave, the deceased grabbed at the applicant’s bag. A scuffle followed. On the facts before the sentencing Court, it was not clear whether the applicant had the knife as he approached the front door, or whether the deceased had the knife and the applicant wrested it from him.[3] Accordingly, as the judge put it, the fact that one of them must have had the knife first was neither an aggravating nor a mitigating circumstance.[4]
[3]Director of Public Prosecutions v Devey (No 1) [2020] VSC 826, [32].
[4]Director of Public Prosecutions v Devey (No 2) [2021] VSC 121, [14] (‘Reasons’).
The applicant stabbed the deceased once in an upward motion towards his right side. The knife entered the bottom of the liver, extended upwards through the liver and pierced the diaphragm at a depth of 17 centimetres. The deceased walked backwards while holding his stomach and said, ‘I’ve been stabbed’ before collapsing.
The applicant immediately fled the unit by bicycle.
At 8.26 pm, an ambulance was called to the unit. Those present at the unit provided immediate assistance to the deceased, as directed by the 000 operator. The ambulance arrived less than ten minutes after it was called. The deceased was observed to have a large vertical incision above his navel and his bowel was exposed. He was taken to the Warrnambool Hospital, where he was immediately transferred to theatre and underwent two operations. The deceased’s injuries were, however, found to be non-survivable, and he was declared dead at 3.10 am on 8 December 2018.
Applicant’s background
The applicant was 53 at the time of his offending, and 54 at the time of sentencing. His childhood was marked by significant violence, directed towards him, his siblings and his mother, by his father. The applicant’s father broke the applicant’s jaw on four occasions.
The applicant has a history of alcohol and drug abuse. He began drinking at the age of ten, and drank heavily over many years. He was also a heavy cannabis user.
The applicant was sexually abused by a local priest when he was about 11 years of age. He left home at the age of 13, after spending two months in hospital as a result of a broken jaw and broken ribs inflicted on him by his father. As the judge recorded, the applicant described himself as a ‘bad student’ and a ‘lone wolf’, often failing to attend school.[5] He was expelled during Year 9, and never returned to school.
[5]Reasons [20].
At the age of 15, the applicant started an apprenticeship as a chef. He then worked in several restaurants. When he was about 20, he formed a relationship for a brief time with the daughter of a good friend of his father. His father was furious about this and assaulted him, breaking his jaw. After travelling and working overseas with another woman, the applicant returned to Australia, where together they managed a restaurant in a Victorian seaside town. Ultimately, that relationship broke down, and the applicant attempted suicide — ‘only to wake up in hospital’.[6]
[6]Ibid [21].
The applicant has a criminal history dating back to 1986. In relation to more serious offences, in 1994, he was sentenced to 15 months’ imprisonment for the importation of prohibited imports into Australia. He was also convicted of reckless conduct endangering serious injury in 1998 and 2015, and of making threats to kill on a number of occasions.
At various times, the applicant has been homeless while waiting for public housing. He was provided with accommodation on one occasion, but fell while working on the roof of the house, and suffered broken legs and hips. After being bedridden for several months, he required a wheelchair for a period of time. Throughout this time, he continued to use alcohol and cannabis heavily. By the time of sentencing, the applicant had gained access to a National Disability Insurance Scheme package to support him.
In January 2021, the applicant was interviewed ‘through a video link’ and assessed by a forensic psychiatrist, Dr Prashant Pandurangi. Dr Pandurangi expressed the view that the applicant’s formative years had been ‘blighted by the deleterious effects of trauma, neglect and disadvantage’. Dr Pandurangi said that the applicant’s social ostracism and rejection at school mirrored his environment at home and ‘would have left him distressed and despondent’. Dr Pandurangi described the applicant’s adult life as being:
characterised by employment in labouring jobs with long subsequent periods of unemployment and itinerancy, isolated life with poor social supports, heavy alcohol abuse, contact with the criminal justice system and mental health difficulties.
Dr Pandurangi’s opinion was that the impact of the applicant’s early life experiences meant that, as he grew older, he developed ‘a range of entrenched and somewhat interrelated deficits in personality functioning’. Dr Pandurangi diagnosed the applicant as suffering from a ‘complex post-traumatic stress disorder’, as well as from ‘polysubstance use disorder, mainly involving alcohol and cannabis’.
Sentencing reasons
The judge commenced his reasons for sentence by noting that the applicant had pleaded guilty and that, by doing so, he had accepted responsibility for killing the deceased by intentionally stabbing him without a lawful excuse to do so.[7] The judge then set out the circumstances of the applicant’s offence[8] and the applicant’s personal circumstances.[9]
[7]Ibid [1].
[8]Ibid [5]–[18].
[9]Ibid [19]–[27].
Under the headings ‘Nature and gravity of offence’ and ‘Moral culpability and general deterrence’, the judge recorded the submissions of the applicant’s plea counsel.[10] In the course of recording these submissions, the judge noted that ‘[the applicant’s] counsel submitted, and the prosecution accepted, that in all the circumstances, this was a lower-end example of the offence of manslaughter’.[11]
[10]Ibid [28]–[38].
[11]Ibid [28].
The judge noted the applicant’s reliance upon the opinion of Dr Pandurangi that, as a result of trauma, neglect and disadvantage in the applicant’s formative years, he did not form secure attachments with his caregivers, ‘and consequently the foundations of normal personality development were not well established’.[12] The judge also noted that Dr Pandurangi assessed the impact of the applicant’s personality disorder on his daily functioning as being ‘at the severe level’.[13] The judge summarised Dr Pandurangi’s opinions in some detail.[14]
[12]Ibid [32].
[13]Ibid [33].
[14]Ibid [32]–[35].
The judge accepted that the principles in R v Verdins[15] required ‘sensible moderation of general deterrence’.[16] The judge concluded that, in light of Dr Pandurangi’s assessment of the contribution the applicant’s personality disorder made to his offending, ‘only a modest moderation to general deterrence [was] appropriate’.[17]
[15](2007) 16 VR 269 (‘Verdins’).
[16]Reasons [37].
[17]Ibid.
Again, relying on the evidence of Dr Pandurangi, the judge accepted that the applicant suffered from a personality disorder which impaired his ability to exercise appropriate judgment and to make calm and rational choices. His Honour said that this reduced the applicant’s moral culpability to a ‘modest extent’.[18]
[18]Ibid [38].
The judge noted Dr Pandurangi’s assessment that the applicant’s prospects of rehabilitation would depend upon his engagement in treatments offered and him desisting from the use of alcohol.[19] His Honour said that the prospects of rehabilitation were ‘far from clear given [the applicant’s] long history of drug and alcohol abuse and [his] polysubstance use disorder’.[20]
[19]Ibid [39].
[20]Ibid [40].
The judge then recorded various submissions made about deterrence, denunciation, just punishment and community protection, before noting that the prosecution accepted that the applicant was entitled to a discount in sentence for the utilitarian benefit resulting from his plea of guilty.[21]
[21]Ibid [45].
The judge accepted that principles 5 and 6 in Verdins[22] were enlivened by the applicant’s physical and mental ailments to which he referred (the physical ailments including peripheral neuropathy and consequential mobility difficulties; together with airways disease, fatty infiltration of the liver, and chronic pain),[23] and that the applicant’s time in custody would likely be more burdensome than it would be if he did not suffer from such conditions.[24] His Honour also accepted Dr Pandurangi’s opinion that there was a risk that the applicant’s mental health would deteriorate during incarceration.[25]
[22](2007) 16 VR 269, 276 [32].
[23]Reasons [49]-[50].
[24]Ibid [46]–[52].
[25]Ibid [46].
Next, the judge said that he had considered a number of ‘possibly comparable manslaughter cases’ with which he had been provided. There were six cases referred to by the prosecutor, showing sentences for manslaughter ranging from 6 years to 10 years and 6 months.[26] The prosecutor’s written submissions on the plea accepted that no two cases turned on the same facts, and each case was therefore distinguishable. The applicant’s plea counsel did not refer to any comparable cases, or make any specific submission about any of the cases referred to in the prosecutor’s written submissions.
[26]DPP v Beattie [2020] VSC 229 (‘Beattie’); DPP v Gerrard [2020] VSC 154 (‘Gerrard’); DPP v Awad [2019] VSC 706 (‘Awad’); DPP v Frost [2019] VSC 672 (‘Frost’); DPP v Edwards [2019] VSC 234 (‘Edwards’); and R v Phan [2019] VSC 153 (‘Phan’).
The judge concluded his reasons for sentence with short summaries of the victim impact statements tendered on behalf of the deceased’s daughters and sister, which described the pain and loss caused to them by the applicant’s crime.[27]
[27]Reasons [54]–[58].
Parties’ contentions
Under proposed ground 1, the applicant contends that the sentencing discretion miscarried because the judge failed to apply the principles in Bugmy. In support of that contention, the applicant submitted that the history given to Dr Pandurangi disclosed a level of childhood deprivation which engaged the principles in Bugmy. Specifically, the applicant submitted that his subjective culpability for the offending could not be equated with that of a person who committed the same offending, but who had the advantage of a normal and stable upbringing; and that Bugmy required further mitigation of his moral culpability because it was less than the culpability of an offender who had not experienced such deprivation.[28]
[28]Bugmy (2013) 249 CLR 571, 595 [44].
Under proposed ground 2, the applicant contended that the sentence and non-parole period were both manifestly excessive, having regard to:
·the applicant’s offending ‘falling in the lower-end of the range of objective seriousness’;
·the applicant’s reduced moral culpability on account of his significantly violent childhood background;
·his reduced moral culpability on account of his personality disorder;
·the serious risk of the applicant’s mental health condition worsening in custody;
·the serious risk of imprisonment weighing more heavily on him because of his mental health condition;
·the greater burden and hardship of imprisonment on the applicant because of his significant physical health issues;
·his plea of guilty; and
·the impact of the COVID-19 pandemic and the heightened utilitarian benefit of his plea in the context of the pandemic.
The respondent contends that there was no merit in either of the applicant’s proposed grounds of appeal.
In support of the contention that there is no merit in proposed ground 1, the respondent submitted that the judge appropriately took into account the applicant’s background as disclosed by the evidence. Moreover, his Honour’s failure to refer to Bugmy was no more than a reflection of the fact that the applicant’s plea counsel did not cite or refer to Bugmy at any stage during the plea hearing or in his written plea submissions.[29]
[29]The only authorities referred to in the applicant’s written plea submissions were Verdins and Brown v The Queen (2020) 62 VR 491.
In relation to proposed ground 2, the respondent submitted that the sentence and non-parole period were well within the available range, as disclosed by both sentencing decisions referred to on the plea[30] and sentencing decisions delivered since the plea.[31] The respondent submitted that the judge gave appropriate weight to all of the relevant sentencing factors, and that it cannot be said that the sentence imposed by the judge was wholly outside the range of sentences which were available to him.[32]
[30]Beattie [2020] VSC 229; Gerrard [2020] VSC 154; Awad [2019] VSC 706; Frost [2019] VSC 672; Edwards [2019] VSC 234; and Phan [2019] VSC 153.
[31]DPP v Harrison [2021] VSC 601; R v Oakley [2021] VSC 430; and R v Farrell [2021] VSC 414.
[32]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (‘Clarkson’).
Are the proposed grounds of appeal reasonably arguable?
As I have already observed, under proposed ground 1, the applicant contends that the sentencing discretion miscarried because the judge failed to apply the principles in Bugmy. The first point to be made about this ground is that, on the plea, the applicant’s counsel made no reference to Bugmy. No submission was made about any principle in it having any application to the judge’s sentencing task. As this Court has said many times before, ‘given the nature of its supervisory role, this Court will not likely entertain arguments that could have been, but were not advanced on the plea’.[33]
[33]Romero v The Queen (2011) 32 VR 486, 489-90 [11].
Bugmy was a case which concerned the relevance of a deprived background to sentencing. Of particular significance, the plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said:
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[34]
[34]Bugmy (2013) 249 CLR 571, 595 [44].
It may be that the applicant’s plea counsel chose not to refer to Bugmy because any referral to it may have provoked an analysis of whether, by reason of the applicant’s background, community protection might be a relevant sentencing consideration. That said, whatever the reason was for any failure to refer to Bugmy, it is plain that the applicant’s plea counsel relied upon his client’s deprived background as a matter in mitigation. Thus, the very parts of Dr Pandurangi’s report which are said to engage the principles in Bugmy were referred to by the applicant’s counsel, and considered in detail by the judge.[35]
[35]See, eg, Reasons [32].
A fair reading of the judge’s reasons for sentence discloses that, while the judge did not refer to Bugmy by name, there was no failure by his Honour to apply the principles referred to in it. His Honour’s reasons disclose that appropriate consideration was given to the applicant’s childhood deprivation. Moreover, the actual sentence imposed suggests that the issue of deprivation was appropriately taken into account in the sentencing synthesis. Proposed ground 1 is not reasonably arguable.
Turning to proposed ground 2, as has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[36] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[37]
[36]Clarkson (2011) 32 VR 361, 384 [89].
[37]Ibid.
On the plea, the prosecutor accepted that, in all the circumstances, the applicant’s offending was a ‘lower-end example of the offence of manslaughter’.[38] Whatever the utility of that description,[39] as the judge observed, because of the applicant’s conduct, the deceased’s life was taken when he died from a very deep stab wound inflicted by the applicant.[40]
[38]Reasons [28].
[39]As has been observed before, some cases, striving to categorise particular offending and seeking to attach labels such as ‘low-range’, ‘mid-range’ or ‘high-range’, may obscure, rather than enlighten the essential nature of the sentencing discretion: see Semaan v The Queen [2017] VSCA 261, [70]. As to the utility of debating whether particular cases fall within categories such as ‘mid-range’ or ‘bottom of the high-range’ or other like classifications, see DPP v Weybury [2018] VSCA 120, [33].
[40]Reasons [30].
The short answer to proposed ground 3 is that, giving full weight to the mitigatory matters relied upon by the applicant, it is simply not possible to say that the sentence (or the non-parole period) imposed by the judge was wholly outside the range available to him. When one synthesises all of the circumstances of the offending and the offender in this case, one sees a sentence which is, if anything, moderate in all the circumstances. The contrary is not reasonably arguable.
The applicant’s explanation for not filing a notice of application for leave to appeal within time
Section 279(1) of the Criminal Procedure Act 2009 requires an application for leave to appeal against sentence to be commenced by filing a notice of application for leave to appeal within 28 days after the day on which the offender was sentenced. In the case of the applicant, the last day for filing such a notice was 14 April 2021. The applicant’s application for an extension of time was not, however, filed until 19 August 2021.
The applicant’s application for an extension of time was supported by an affidavit sworn by his current solicitor (‘the current solicitor’). The current solicitor has deposed to the following:
·The applicant was sentenced on 17 March 2021. On 22 March 2021, plea counsel, and a previous solicitor (a fellow employee of the current solicitor) who had the conduct of the matter, had a lengthy Jabber conference with the applicant. The applicant initially gave instructions that he wanted to appeal against his conviction and sentence. After discussion, however, the applicant ‘indicated that he accepted the advice of his legal representatives and did not instruct [them] to pursue an appeal’.
·On 31 March 2021, the previous solicitor had a further Jabber conference with the applicant. The applicant gave instructions that he wished to appeal the sentence ‘but again did not pursue an appeal at that time because of his lawyers’ advice not to do so’.
·On 12 May 2021, the applicant again consulted the previous solicitor via telephone and instructed her that he wanted to appeal his sentence. The solicitor referred the matter to the Appeals and Strategic Litigation team at Victoria Legal Aid on that day.
·On 25 May 2021, the current solicitor was allocated the conduct of the applicant’s file. She read the file and arranged to have a teleconference with the applicant the following day.
·On 26 May 2021, the current solicitor spoke to the applicant and obtained his instructions to appeal and to seek an extension of time.
·On 1 June 2021, the current solicitor submitted an application for a grant of legal assistance for the applicant.
·On 26 July 2021, the applicant was granted legal assistance to apply for leave to appeal against his sentence.
·On 27 July 2021, the current solicitor briefed a colleague to prepare the applicant’s written case.
·On 13 August 2021, the current solicitor received a written case from her colleague. She provided comments on the written case on 17 August, and received a settled version of the written case from counsel on 18 August 2021.
·On 19 August 2021, the current solicitor had a further conference with the applicant in which she confirmed her instructions. The application for an extension of time was filed later that day.
The respondent submits that the explanation for the applicant’s delay is poor. I agree. It would appear that the reason no application seeking leave to appeal was filed within time was that the applicant initially accepted legal advice not to appeal, but later changed his mind. That is hardly an adequate or sufficient reason for exercising this Court’s discretion to extend the time provided for by s 279 of the Criminal Procedure Act.
Additionally, the explanation for the delay between the end of the appeal period and the filing of the application for an extension of time (some four months) is not well explained and unsatisfactory. One is left to infer that, for some unspecified reason, it took almost two months for a grant of legal assistance to be made — during which time nothing appears to have been done on the applicant’s behalf.
The material filed in this Court on behalf of the applicant discloses no basis upon which this Court could grant the applicant the extension of time he seeks.
Conclusion
For the reasons given above, it is not in the interests of justice to grant the applicant an extension of time within which to file his notice of application for leave to appeal against sentence. In any event, the applicant’s proposed grounds of appeal are not reasonably arguable, and it would thus be futile to grant him the extension of time he seeks. Accordingly, the application for leave to appeal will be refused.
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