Director of Public Prosecutions v Abdullah, Angus Bernard
[2012] VCC 1638
•1 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01110
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANGUS BERNARD ABDULLAH |
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JUDGE: | Her Honour Judge Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 August and 23 October 2012 | |
DATE OF SENTENCE: | 1 November 2012 | |
CASE MAY BE CITED AS: | DPP v Abdullah, Angus Bernard | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1638 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – plea – sentence – aggravated burglary – make threat to kill – theft – make threat to inflict serious injury – assault police.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Pickering (Ms K. Richter at sentence) | Office of Public Prosecutions |
| For the Accused | Ms J. Munster | Victoria Legal Aid |
HER HONOUR:
Introduction
1 Mr Abdullah, please remain seated. I will deal with the plea material and sentencing principles and, when I’m ready to sentence, I will ask you to stand.
2 You have pleaded guilty to two charges of aggravated burglary, the maximum penalty for which is 25 years’ imprisonment, one charge of theft and one charge of make threat to kill, the maximum penalty for each of which is ten years’ imprisonment, one charge of make threat to inflict serious injury and one charge of assault police, the maximum penalty for each of which is five years’ imprisonment.
Antecedents
3 You are 43 years of age. You have an extensive criminal record commencing from 1987 with convictions and appearances in courts in Victoria and interstate. You attribute much of your offending to long-standing substance abuse issues, particularly drug abuse.
4 Your record relevantly includes multiple violence, dishonesty and drug offences, with offending that, from time to time, also involved direct conflict with police.
5 For the period to 2 November 2006 when you were sentenced in the Perth Magistrates’ Court, I counted no less than 40 terms of imprisonment imposed, some of which were served in custody and some of which were suspended and were concurrent.
6 The longest sentence involved a total effective sentence of six years’ imprisonment commencing from 30 March 2001 for robbery while armed and unlawful wounding offences. When imposing this sentence, the Supreme Court of Western Australia also dealt with breach of an earlier suspended sentence.
7 Following your release, there was further offending in 2006 and 2008, also dealt with by Western Australian courts, and for some of these offences, further custodial sentences were imposed.
8 In March 2009, a Magistrate sitting in Bairnsdale imposed a 12 month Community-Based Order for drink driving and other driving offences. Among other things, this order required that you be assessed and treated for drug/alcohol addiction and that you submit to medical or psychological/psychiatric treatment as required. I was told that you successfully completed this order as well as a drug rehabilitation course in Shepparton. I expect that this was the course to which your counsel referred when she told the Court that you completed a drug rehabilitation course in a Koori residential centre in 2009.
9 However, some days prior to commission of the current offences, you were sentenced in the Sale Magistrates’ Court on consolidated charges comprising drink driving, dishonesty, driving, property damage and make threat to kill offences, all committed in late 2011. On this occasion, you were afforded a further opportunity to serve your sentence by way of Community Correction Order over a period of 12 months.
10 Among other things, this order provided for assessment and treatment for drug abuse or dependency and mental health assessment and treatment as directed. Your re-offending and arrest on 1 April 2012 brought this Order to an end and, apart from noting that in due course you may be prosecuted for breaching this Order, your re-offending so soon after consenting to undergo this Community Correction Order is an aggravating factor.
The material before the court
11 The summary of the prosecution’s opening was read into transcript and tendered, subject to the objection that you did not admit the racial insult implicit in some of the verbal abuse and threats directed to police. I will elaborate on this issue shortly.
12 The prosecution also tendered victim impact statements and two photographs. The first photograph depicted the knives used in the commission of the Charge 5 offence and the second depicted some of the physical injuries suffered by a police officer during the commission of the Charge 6 offence. I have read the depositional material, which includes the witness statements.
13 As part of my consideration of matters personal to you, I have taken into account your counsel’s submissions, a written apology directed to the Court and the victims, evidencing as it does remorse for conduct you believe was influenced by aggression, drugs and alcohol. I have also read the various certificates which confirm that you have made progress during your time in custody by participating in and completing a range of courses, the correspondence from your partner, Ms Morrison, who is the mother of your five year-old daughter and the correspondence from your aunt, Ms Calgaret.
14 Notably, both your partner and aunt report involvement in Aboriginal services. Your aunt said that she had previously worked in Victorian Aboriginal Health Services, whereas Ms Morrison reported working some 14 years in Indigenous communities in Victoria and Western Australia. I note that she currently works as a non-indigenous Case Manager, managing Koori Elder aged-care packages through Latrobe Community Health Services.
15 Two reports written by psychiatrist, Dr Walton, were also tendered. The second of these reports was obtained after the plea hearing was adjourned to allow your representatives to obtain further evidence from this specialist to clarify his opinion regarding the link, if any, between this very serious offending and any temporary or long-term impairment of your mental functioning.
The circumstances of the offending
16 I do not propose to repeat all of the matters outlined in the summary.
17 As to Charge 1, the aggravated burglary offence, on Sunday, 1 April 2012 at approximately 4.20 am, you kicked open the front door of a house in Pilain Crescent, Keilor Downs. You entered the house, reckless as to whether anyone was present. The residents of the house, Blagoja Sabotkoski and his wife, Donka, were sleeping in the upstairs bedroom and they were awoken by the sound of the door being kicked in.
18 As to Charge 2, the make threat to kill offence, Mr Sabotkoski proceeded down the stairs to investigate. When asked why you were there you replied: “Stay there, don’t move, I’ll kill you. Don’t call the police”.
19 Mrs Sabotkoska apparently also called out: “I’ll call the police.” to which you again replied: “Don’t call the police”. The repeated requests for the keys to this couple’s vehicle, accompanied by the threat to kill them, adds to the gravity of this charge.
20 As to Charge 3, this involved the theft of a bottle of whisky from the premises and the theft of the keys to their vehicle. These were taken from the kitchen apparently. You did not succeed in also taking the vehicle, even after trying to kick in the roller door to the garage.
21 As to Charge 4, the second aggravated burglary offence, you walked up the road to another residence in Pilain Crescent where the owners Goce Talevski and Blagica Talevski were asleep. You also kicked in the front door of this house and entered, reckless as to whether anyone was present. You made your way past their bedroom to the kitchen.
22 As to Charge 5, the make threat to inflict serious injury offence, after
Mr Talevski instructed you to leave the house, whilst still holding the whisky bottle stolen from their neighbour and with 40 cm kitchen knives held in each hand, you replied: “Get the fuck out of here, get back in your bedroom or I will fucking stab you.”
23 This threat prompted Mr and Mrs Talevski to flee and, after police arrived, they found you in the kitchen placing bottles of spirits in the green shopping bag and there followed a fairly long engagement with police before you were arrested.
24 As to Charge 6, the assault police offence, this involved:
· pointing a knife at police officers and saying: “Fuck off white cunt”;
· ignoring police officer, Sergeant McCann’s request, who at the time had his revolver pointed at you, to drop the knife;
· whilst drinking from the whisky bottle, approaching and thrusting a knife at police officers with the words: “Fuck off cunt”;
· ignoring a further warning delivered by Sergeant McCann to drop the knife or be shot;
· moving to within three metres of police officers and threatening them with the words: “Fuck off white cunt or I’ll stab you to death”;
· threatening to stab police to death after you were cornered in the garage and whilst trying to enter a BMW sedan;
· trying to escape by climbing a fence; and
· after being cornered, striking a police officer, Constable Williams to the left side of the head with a clenched fist. Constable William’s injuries included a graze to his cheek, lacerations to his right ear, a muscle strain to his right forearm and a fractured knuckle in his right hand.
25 After much fighting, kicking and punching of officers, it took some five police officers to subdue and arrest you, in the process of which, I was told, other police sustained minor injuries and a Constable Jurjevic was spat upon by you.
26 As I have said, you have questioned the accuracy of one aspect of the prosecution’s summary, namely the incorporation of the clearly racial expression “white” in the reports of verbal abuse and threats directed at police officers.
27 Among other things, consistent with your offence history, your counsel noted a long history of conflict with police. You told psychiatrist, Dr Walton, that you have no recollection of this recent altercation with police. However, the statements of police present at the time confirm the content of the abuse and the threats alleged.
28 In these circumstances, I was satisfied beyond reasonable doubt that the expression “white” was also used. Nevertheless, for the purpose of this sentence, this finding of itself does not add to the gravity of the assault charge, Charge 6, encompassing, as it did, all of the verbal abuse and threats directed to police.
29 Following your arrival at the Sunshine police station, you were assessed as being unfit to be interviewed. You have remained in custody to the present time. I will deal with pre-sentence detention shortly.
30 As part of the plea in mitigation, I was told that various events in the months prior to the offending had triggered a significant relapse into substance abuse. These events included:
· Grief experienced by you following the unexpected death in March 2011 of your young niece in Perth. This was an event your aunt felt had caused your decline.
· Your unemployment with little prospect of further employment following the conclusion of a six-month Traineeship with the Department of Primary Industries. According to Ms Morrison, you had been employed as an Indigenous Activity Leader for the ‘Summer by the Sea’ program. Despite requests during the currency of this program for ongoing employment, when it concluded, you and other indigenous trainees had felt let down because you were left without any formal qualifications or further prospects of what Ms Morrison called “genuine” employment. Ms Morrison viewed your relapse on this occasion as part of a life pattern where, having tried to get ahead, when knocked back you have returned to substance abuse.
· Being kicked out of home in the eight weeks preceding the offending due to your relapse into substance abuse.
31 You explain these serious offences on the basis that, on the evening of their commission, you were on what your counsel described as “a bender”, having consumed both alcohol and half a gram of ice. You were apparently expected for the weekend at your aunt’s home in Keilor Downs. Your intention was to self harm. After going to bed, you rose. You recall walking the streets looking for a vehicle and, as recently recounted to Dr Walton, hearing voices telling you to get a car, “go bush” and kill yourself, although having consumed alcohol and particularly the drug ice, you told him you did not recall committing these offences.
32 I was told that you offered to plead guilty on 29 June 2012 and on 2 July 2012 your plea was entered as part of a straight hand-up brief. The prosecution has accepted that your plea of guilty was entered at the earliest practical opportunity. This is a circumstance that entitles you to a substantial sentencing discount because the plea has spared the witnesses and particularly the victims the inconvenience of and the community the costs associated with a contested trial.
33 Your plea is also indicative of a level of remorse. I will say more about this aspect of the sentence shortly.
Impact on the victims
34
Victim impact statements were declared by Blagoja Sabotkoski,
Donka Sabotkoska, Goce Talevski and Blagica Talevski and they were read and tendered.
35 In addition to the costs associated with repairing damage (and, in the case of the Mr Sabotkoski, installing surveillance cameras), the statement of each victim evidences significant and ongoing effects of psychological trauma caused by the random and violent entry into their respective homes whilst each victim slept, also no doubt caused by the threats made. Both of the Sabotkoskis have required professional support. This is not to say, however, that the Talevskis would not benefit from this sort of intervention because they too report significant symptoms consistent with ongoing psychological trauma.
Personal Circumstances
36 You were supported in Court by extended family, including your aunt, her husband and nieces and nephews.
37 I was told that you are of Aboriginal descent, although Dr Walton understood that you are not an initiated Aboriginal man. Whilst very little was said during the course of oral submissions about your Aboriginality, the correspondence from both your aunt and your partner evidences some link between this factor and particularly your early circumstances and associated early-onset of alcohol and illicit substance abuse.
38 I was told that you were born in Perth and, after being abandoned by your parents, both of whom are now dead, you were, your aunt said, raised by grandparents. You have an older sister with whom there is little contact, and a younger sister, now living in Sale, with whom you have contact.
39 The accounts given indicate a disadvantaged and deprived childhood which also involved a period in State care between the ages of seven and 14. Your aunt recalled that you had been placed in a home for Aboriginal children because your mother had not provided appropriate care. According to your counsel, from age 14, you spent a year living with your father but were deemed uncontrollable, after which you moved to live with an uncle and also spent time in juvenile institutions.
40 Your introduction to alcohol, from the age of five, and to smoking marijuana from the age of 10, as well as exposure to physical and sexual abuse, are further indicators of the level of dysfunction and disadvantage experienced by you during your formative years.
41 You started but did not complete Year 9. Since then, as far as I can tell, you have engaged in intermittent employment, working either as a welder, teacher, youth worker or in an abattoir. These jobs generally lasted less than six months due to your substance abuse issues and/or the multiple periods spent in custody.
42 There have been three significant personal relationships with non-indigenous women which have produced three daughters. You have recently resumed contact with your eldest daughter who is aged 20, but you have had no contact with your middle daughter who is aged 12, since she was five.
43 You have been in a relationship with your current partner, Ms Morrison, since 2004. She clearly blames your addiction issues for what she described as an “on” and “off” relationship. However, both your aunt and partner report that, notwithstanding addiction issues and repeated offending, you have established a close and involved relationship with your youngest child, your five year-old daughter, Rhianna.
44 As to your illicit drug taking, you told Dr Walton you had “tried everything”. For instance, you reported using amphetamines from age 15 and, once this was available, you used this drug in the form of “ice”. However, having, you said, drastically reduced your cannabis use in recent years, you reported other regular drug abuse involving narcotics, such as morphine and heroin, used by you “to come down” from your amphetamine stimulation.
45
Ms Morrison’s correspondence indicates that since relocating to Victoria and establishing a relationship with her, over a six year period, some considerable effort has been made to address your addiction issues. In this regard,
Ms Morrison noted the following matters:
· that, until approximately two years ago when you ceased this therapy because you found it too painful, you had engaged in counselling to deal with issues relating to childhood abuse and the impact of assimilation policies;
· that since your arrival in Sale six years earlier, you have been linked into the Ramahyuck Aboriginal Cooperative Social, Emotional, Well-Being program;
· that you were a regular participant in the Sale AA program;
· that until earlier this year, you had engaged with drug and alcohol services in Sale;
· that you had received four years of psychiatric treatment for mental health issues until this was concluded approximately two years ago, evidently due to progress in your mental health issues; and
· that you had deferred work undertaken by you toward obtaining a Diploma in Drug and Alcohol Services at the East Gippsland TAFE to participate in the six-month traineeship, to which I have already referred.
46 You have participated in formal drug and alcohol rehabilitation, once in Western Australia and, as I’ve already noted, once in 2009 in Victoria.
47 Dr Walton was also told that there were earlier admissions to psychiatric units in Western Australia and, more recently, in 2008, you were admitted to the psychiatric unit of the Latrobe Regional Hospital where drug-induced psychosis or possible schizophrenia were diagnosed. Dr Walton also understood that in the year before the current offending you ceased taking anti-psychotic medication, although you now report taking the anti-psychotic, Risperdal, and the anti-depressant, Cipramil, with good effect.
48 Looking at your criminal history, it appears that there was a period of some two and a half years between the offending for which a Community-Based Order was imposed in March 2009 and the reoffending in late 2011 for which the Community Correction Order was imposed in March 2012. However, as I have already mentioned, you blame a number of stressors, exacerbated by your estrangement from both Ms Morrison and your daughter, for your descent into further heavy substance-abuse in the months preceding the current offending, which occurred within days of you having consented to undertake the further order in the community.
49 In summary, you told Dr Walton that, in the six months before these offences, you had been drunk on a daily basis and, as I’ve already noted, before committing these offences you had taken around half a gram of ice. You aunt’s correspondence indicates that when you arrived at her home, your state was such that she concluded that you were back on drugs and, in her words, you were: “incoherent & talking gibberish”. Her decision to take you the next day for mental health assessment was overtaken by your later conduct because, as we now know, you left your aunt’s home that night whilst she slept.
50 When first assessed by Dr Walton, you apparently sought to emphasise the role of psychotic phenomena in your offending. For instance, you reported having for many years endured a “chip” in your head, which you believed permitted people to read your thoughts and place information in your head and, having at first denied hearing voices, you later claimed to hear indecipherable voices from multiple sources.
51 Without explaining the form this took, Dr Walton also recorded a further complaint that you were being persecuted in prison.
52 Based on your history and Dr Walton’s assessment, it is likely that when you committed these offences, you were alcohol and drug dependent with amphetamine as your principal drug of abuse. However, since your enforced detoxification in custody it seems that, having at first experienced withdrawal symptoms consistent with dependence on alcohol, you have remained substance free. Moreover, other than noting the psychotic phenomena I've already mentioned, Dr Walton concluded that you were of normal intelligence, cognitively intact and substantially free from current psychiatric symptoms.
53 As his first report shows, without entirely excluding the presence of schizophrenia, Dr Walton favoured the view that when you offended, you were suffering from drug-induced psychosis. He nevertheless recommended ongoing psychiatric monitoring.
54 On reassessing you in October this year, among other things, Dr Walton took into account various records made relating to your psychiatric state after your arrest. These included the following:
· the assessment by the forensic medical officer that you were not fit for interview and his or her the diagnosis of “Acute amphetamine psychosis and paranoia”;
· the report from a psychiatric nurse at the Melbourne Custody Centre on 2 April 2012 noting, at that stage, that there was no obvious evidence of psychotic disturbance;
· your placement in the psychiatric section of the prison following assessment at the Metropolitan Remand Centre on 23 April 2012, when you were said to have exhibited some hostility and uncooperativeness and to have talked about the microchip embedded in your head; and
· the conclusion of a psychiatric registrar on 1 May 2012 to the effect that the registrar was “not very convinced about” your psychotic symptoms. You were nevertheless given the benefit of the doubt and treated for psychiatric illness with changes to your medication and continuing antipsychotic medication.
55 Irrespective of whether or not Dr Walton correctly understood the circumstances in which the principles enunciated in the Court of Appeal decision in the case of R v Verdins are applied, his further evidence did not make probable that any underlying mental health condition such as schizophrenia had contributed to the psychosis demonstrated by you shortly before and during the period over which these offences occurred.
56 As I have already said, the likely diagnosis is drug-induced psychosis. However, this finding does not completely dispense with the application of Verdins principles, as I have made some allowance for the fact that a custodial sentence may weigh more heavily on you than on a prisoner unaffected by symptoms (albeit in your case limited symptoms) of psychiatric disturbance and whose mental state does not call for ongoing monitoring and treatment.
57 You have a background of abuse and deprivation with a long history of dependence on alcohol and illicit drugs and a continuing pattern of associated offending, including violent offending.
58 It was conceded that drug addiction is not a mitigatory factor in sentencing unless it is attributable to causes for which an offender is not responsible. In other words, the criminal accountability of an addict may be less if the decision to use drugs was not voluntary.
59 In your case, your deprived upbringing is relevant to a consideration of your demoralised state and dependence on alcohol and drugs, which contributed to the commission of these offences. In these circumstances, I have made allowance for the fact that your chronic and heavy abuse of substances, which Dr Walton considered had directly contributed to disinhibition of violence and indirectly to inducing psychosis, was likely the result of diminished choice.
60 You are, nevertheless, a serial offender who has experienced different criminal sanctions, custodial and non-custodial. As Dr Walton observed, imprisonment per se has had little if any deterrent effect and, if as he concluded, a substantial component of your anti-social conduct is substance related, your prognosis specifically in relation to recidivism is far from uncomplicated.
61 I was told that currently you work three days per week in the prison and, on other days, you devote time to education as well as to your interest in Aboriginal art.
62 The correspondence from both Ms Morrison and your aunt indicates that, in recent years, absent substance abuse issues, you present as a mild mannered, polite, friendly and devoted family man. Their evidence, your likely very genuine remorse for these crimes, not to mention your acknowledgement of the significant impact on the victims, and the victims include the police of course as well some of whom suffered injuries, and your application to various rehabilitative pursuits in custody, suggest that, whilst your prospects of reformation remain very problematic, they are probably not hopeless.
63 Ms Morrison clearly recognises the need to harness your evident motivation to achieve a stable and functional lifestyle and to ensure participation in significant and ongoing interventions designed to establish better patterns for living. Whether the rehabilitation facilities and programs mentioned by your counsel, either interstate or closer to home, such as those offered by Odyssey House, will be available to you in due course will depend on assessments made by others some time in the future.
Sentencing Principles
64 On your behalf, it was conceded that the circumstances in which the aggravated burglary, theft, make threat to kill and make threat to inflict serious injury offences occurred represent serious examples of violent and extremely disturbing home invasion offending. The assault police offence was also a significant example of this kind of offending, particularly as a police officer was injured when police were obliged to act to subdue you whilst you were in the grip of a likely drug induced psychosis.
65 The prosecution submitted that, in this case, the appropriate sentencing range fell between 3 to 4 years imprisonment with a non-parole period of between 18 months and 2 ½ years imprisonment.
66 Essentially, the sentencing range submission made by the prosecution, with which your counsel did not quarrel, called for a balancing of the mitigating factors arising from your personal circumstances against your criminal history of which violence is a feature, your very problematic prospects of rehabilitation and, in this instance, the emphasis on deterrence and community protection as sentencing considerations.
67 However, on your behalf, I was urged to sentence toward the lower end of the range as submitted, with a reduction in the minimum sentence to allow an earlier opportunity to enter a rehabilitation facility and to be supervised by the Adult Parole Board in the community.
68 Notwithstanding the prosecution submission to the contrary, I have reduced the non-parole period because this will allow the Adult Parole Board an earlier opportunity to consider your placement in an appropriate residential facility and/or in other programs.
69 In sentencing you, I have also allowed for some level of cumulation to reflect the different offending, the different harm and of course the different victims involved.
Sentence
70 Please stand, Mr Abdullah.
71 On charge 1, the first aggravated burglary charge, you are convicted and sentenced to 3 years' imprisonment. For the purpose of your sentence I treat this as the base sentence.
72 On charge 2, the threat to kill offence, you are convicted and sentenced to 12 months' imprisonment.
73 On charge 3, the theft offence, you are convicted and sentenced to 1 months’ imprisonment.
74 On charge 4, the second aggravated burglary offence you are convicted and sentenced to 3 years' imprisonment.
75 On charge 5, the threat to inflict serious injury offence, you are convicted and sentenced to 6 months' imprisonment.
76 On charge 6, the assault police offence, you are convicted and sentenced to 12 months' imprisonment.
77 I will go slowly through the cumulation so that counsel gets it.
78 I direct that 2 months of each of the sentences imposed on charges 2 and 6, 4 months of the sentence imposed on charge 4 and one month of the sentence imposed on charge 5 be served cumulatively on the sentence imposed on charge 1 and on each other. The sentences are otherwise concurrent.
79 The total effective sentence is 3 years and 9 months’ imprisonment, with a non-parole period of 2 years and 2 months' imprisonment. This sentence starts today.
80 Pursuant to s18(4) of the Sentencing Act, I declare that the period of pre-sentence detention. Have counsel agreed on that period?
81 MS RICHTER: 214 days, Your Honour, not including today.
82 HER HONOUR: You agree with that?
83 MS MUNSTER: Yes, I agree with that, Your Honour.
84 HER HONOUR: All right then I declare that the period of 214 days not including today, is to be reckoned as time already served under the sentence, and I direct that the fact of this declaration and its details be recorded in the records of the Court.
85 Pursuant to s6AAA of the Sentencing Act, I indicate that but for your plea of guilty, a sentence of 5 years' imprisonment with a non-parole period of 3 years and 4 months' imprisonment would have been imposed.
86 At the plea hearing, pursuant to s464ZF of the Crimes Act 1958, the prosecution sought an order for the taking of a forensic sample. I have acceded to the application, and in doing so I have taken into account the seriousness of the circumstances of the offending, your prior convictions, the fact that the application was not opposed and the interest the public has in obtaining such a sample. I have signed that order.
87 I must also caution you that a member of the police force may use reasonable force to enable this procedure to be conducted but I do not expect that will be a problem in your case Mr Abdullah.
88 A compensation order was also sought in the sum of $517.00 for damage to the vehicle parked in a driveway of Pilain Crescent whilst you were being arrested. The application was not opposed, and I have also signed that order.
89 Counsel are there any other matters I need to go through or clarify or indicate to Mr Abdullah?
90 COUNSEL: No, Your Honour.
91 HER HONOUR: Thank you, could you please remove Mr Abdullah.
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