Director of Public Prosecutions v Faytroni
[2020] VCC 1907
•27 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01213
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALHAM FAYTRONI |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 November 2020 | |
DATE OF SENTENCE: | 27 November 2020 | |
CASE MAY BE CITED AS: | DPP v Faytroni | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1907 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – one charge dishonestly cause a risk of loss to the Commonwealth – family hardship – Verdins limbs (5) and (6) – prior conviction for similar offending – circumstances of Covid-19 pandemic.
Legislation Cited: s135.1(5) Criminal Code (Cth); s17A Crimes Act 1914; s20(1)(b) Commonwealth Crimes Act 1914.
Cases Cited:DPP (Cth) v Thomas [2016] VSCA 237; Hili v The Queen (2010) 242 CLR 520; R v Verdins (2007) 16 VR 269; The Queen v Markovic [2010] VSCA 105; The Queen v Pham [2015] HCA 39; Warden v The Queen [2019] VSCA 2.
Sentence: 18 months imprisonment, conditional release after service of 3 months upon entering into a recognizance sum of $2,000 and on condition of good behaviour for a period of 2 years.
A reparation order of $86, 680.77.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Holmes | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr P. Dunn QC (Plea) Mr G. Balot (Sentence) | Balot Reilly Criminal Lawyers |
HER HONOUR:
Introduction
1 The Social Security Act 1991 makes provision for a person who is caring for another to receive a ‘carers payment’ to support them in this work. The care giver in receipt of this payment is obliged to advise the Department of Human Services[1] (‘the Department’), which administers the payment, if he or she receives income from another source while accepting this benefit. Income from another source will affect the rate of carer payment that is payable. Failure to advise of other income results in an overpayment and, as in this case, a criminal charge of dishonestly causing a risk of loss to the Commonwealth.
[1] Now known as ‘Services Australia’.
2 Alham Faytroni, you have pleaded guilty to one charge of dishonestly causing a risk of a loss to the Commonwealth contrary to s.135.1(5) of the Criminal Code (Cth). The offending took place between 1 May 2014 and 8 January 2018. The maximum penalty for this offence is five years' imprisonment.
Circumstances of the offending
3 The facts giving rise to your offending are set out in summary of prosecution opening tendered on your plea. That document forms part of this sentence and I summarise parts of it here.
4 You have been in receipt of some form of social security payment from 1996. This fact is only relevant insofar that the prosecution relies upon records of communications with you outside the charged period to establish that you were aware of your obligation to disclose other income.
5 You were in receipt of the carer’s payment intermittently from 26 September 2007 to 9 October 2018. That payment was given to you on the basis that you were caring for your mother; she suffered from a range of health issues. From at least 17 April 2014 you were also receiving income from your employment as a self-employed educator. This was under a scheme whereby the Department of Education Skills and Employment subsidises childcare delivered by private providers in their home. You received income through an entity named ‘Aussie Kids Family Day Care’ throughout the three year and nine month period; you failed to advise the Department of this income. During the charged period you claimed $657,509 in fees under the childcare scheme. A total amount of $368, 051 was deposited from the ‘Aussie kids Family Day Care’ entity into your bank account.
6 It is not in dispute that you knew this income would affect your eligibility to receive the carer’s payment at the full rate. Indeed, earnings at this rate, if declared, would likely have reduced your payment entitlement to nil.
7 On 1 May 2018 your failure to declare this income was detected by data matching at the Australian Taxation office.
8 The amount that you received in this period that you were not entitled to is $86,680.77.
Arrest and interview
9 On 19 February 2019 you participated in a record of interview. You denied having the intention to obtain money that did not belong to you, spoke about a difficult relationship you had with your son who was on drugs and violent towards you at the time, and spoke more generally about how you had allowed the documentation of your income to essentially unravel.
10
On 14 April 2020 you were charged on summons with this offence. Between
4 August 2020 and 2 October 2020 resolution discussions were held and on that day you entered a plea of guilty a committal mention in the Magistrates’ Court.
Prior criminal history
11 You have a prior conviction for obtaining benefits that were not due to you. In 2001 you were convicted and sentenced to three months’ imprisonment to be served by way of an Intensive Corrections Order. Referring to the quantum of reparation you were asked to pay, it appears as though that conviction related to the amount of slightly over $21,268.45. While that offending was nearly 20 years ago, it does change the sentencing calculus, in particular my assessment of the need for specific deterrence. You have no subsequent offences.
Nature and gravity of the offending; culpability and degree of responsibility
12 I will now address the nature and gravity of the offending.
13 Your offending was somewhat protracted, occurring over a period of roughly three and a half years. During this time your conduct was dishonest in the form of failing to declare your income as a family day care provider. Between 2003 and 2008 the Department’s records show contact between you and the Department in which you were specifically advised of your obligation to declare any other earnings. This must also be understood in the context of your prior prosecution for similar offending in 2001.
14 It was submitted on your behalf that your offending arose against a background of significant personal trauma, in particular the fact that your son was a violent ice addict, and that you were spending considerable time caring for your ailing mother. I accept that you were under considerable personal pressure throughout the time of your offending. However you were also providing family day care in your home, an occupation that is responsible, requires considerable organisational skill and a level of administration. In this context, I am unable to conclude that your offending was purely caused by oversight brought about by difficult personal circumstances. In those same circumstances you were doing organised and responsible work.
15 It was conceded by the prosecution, and I accept, that it was otherwise unsophisticated offending. You used your own name and made no attempt to make your detection difficult.
16 Sometimes offending of this nature is charged as Dishonestly Obtaining Financial Advantage[2], an offence that carries a 10 year maximum penalty. In your case, you were charged with dishonestly causing a risk of loss to a Commonwealth entity because, being a sole trader and having not completed tax returns in the relevant period, it was not possible to calculate with precision the total amount you received for family day care with appropriate deductions or for example work-related expenses. The offence with which you are charged carries a maximum penalty of five years and I sentence you on that basis.
[2] See s 134.2 Criminal Code (Cth).
17 I am obliged to consider your offending in the context of other offending in similar categories. With regard to your prior conviction, the amount of money involved, and the duration of your failure to comply with your obligations I find that in its category this is a somewhat serious example of this type of offence, noting carefully that many of the cases arise under the offence with twice the maximum penalty.
Personal circumstances
18 I will now address your personal circumstances.
19 You were born in Tripoli in Lebanon in 1971 and migrated with your family when you were six months old. You have three younger siblings and four half siblings. You became an Australian citizen in 1973. You are now 49 years old.
20 Your family home in Melbourne was unhappy and unstable; you were married in an arrangement brokered by your parents at the age of just 17. Your father (or the man you thought was your father) left the family in 1995, returned to Lebanon, remarried and had another four children who have now moved to Australia. Your father passed away in 2015 from Parkinson’s disease. In 1990 your first son Ahmed was born. Your marriage was unhappy and you separated from your husband 1995. Ahmed later became addicted to ice which led to considerable difficulties in your home, much distress for you, and to his imprisonment for breaching the intervention orders you finally took out against him.
21 You later had a new relationship and had two daughters. Both your relationships have been marred by violence. You had a third relationship from 2009 to 2010 with your sister’s brother-in-law.
22 You were educated at Pascoe Vale Girls College from Year 7 to 11. You spent over a decade working at Nestlé as a machine operator. You were on WorkCover for a period after a back injury but from 2007 you have been a full-time carer for your mother. From 2014 until your subsequent resignation you have operated a family day care facility looking after children in your home.
23 You have also been your mother’s full-time carer since 2007; your mother suffers from depression and other physical and mental health issues.
24 You recently discovered that your father you grew up with was in fact not your biological father. This discovery has caused other problems between you and your siblings. You have more recently been in a relationship with a man over the past few years, you planned to marry but have now discovered he is your biological brother and this discovery has been very disturbing for you.
25 You recently resigned from your job as a family day carer because you felt unable to cope. You are on medication for arthritis, hypertension, poor sleep and anxiety.
26 Under the care of psychologist Paul Grech you have engaged in cognitive behaviour therapy and exposure therapy for the trauma in your past.
Matters in mitigation
Plea of guilty
27 I will now note matters in mitigation.
28 You made admissions in your record of interview. You entered a plea of guilty at the earliest possible opportunity; your plea has significant utilitarian benefit particularly in the current context of the global pandemic and the measures taken to contain it and I take that utilitarian value into account, it is very important. [3]
[3] DPP (Cth) v Thomas [2016] VSCA 237.
Contrition
29 Regarding contrition, your contrition, or remorse, resides in your plea of guilty and I also take into account the contrition your friends and family have observed and recorded in their letters to the court. You have also expressed your remorse in a letter of apology. You have also started to get the help of a psychologist which indicates a willingness to address your problems. The evidence of your cousin, Ms Suzane Noboche was that you know that you have done the wrong thing, and all of this weighs strongly in your favour.
Delay
30 There was in your case a relatively long delay between the detection of your offending and your being charged; you lived under that stressful shadow for some time and I take that into account. It has obviously caused you immense distress.
Physical and mental condition
31 You have been a regular patient for psychological treatment with Dr Paul Grech, psychologist, from 24 April 2019 and re-referred to that practice again more recently. In his report, Dr Grech notes that you presented with symptoms that were ‘indicative of anxiety and severely depressed mood in part connected with [your] exposure to trauma, difficult financial circumstances and [your] looming court matter’.
32 On 31 October 2020 you were admitted to the Broadmeadows psychiatric inpatient unit. The discharge summary from that admission was tendered on your plea. You presented at that unit with ‘severe distress related to [your] upcoming court case and anxiety regarding the outcome, with suicidal ideation.’ You were diagnosed with ‘an adjustment disorder on a background of long-standing anxiety and depression’.[4] You were discharged on 11 November 2020.
[4] (Discharge summary letter Dr Eleanor Pilioussis dated 10 November 2020 part of exhibit 7.
33 On your plea, the prosecutor conceded that the report of Dr Grech (to which I add the contents of your discharge report after your stay in hospital) enlivens limbs (5) and (6) of Verdins. I agree and reduce your sentence accordingly: any sentence that I impose on you will weigh more heavily upon you than that it would on a person in normal health. Moreover I accept there is a risk that imprisonment will have an adverse impact on your mental health. I also take into account the matters described by Mr Grech more broadly in that your circumstances, and your psychological reaction to those circumstances have been very difficult to bear.
Hardship to family
34 I will now address hardship to your family.
35 Your children are now aged 30, 23 and 16. Your daughter Rianne, aged 16 years, has a number of her own mental health problems including depression, anxiety and phobia with underlying lower intellect ( I am referring to the letter of Dr DF Rowaid dated 26 October 2020)[5]. Your mother has various physical and mental health difficulties and has been dependent upon you. You do not currently live with your mother and, according to the evidence of Ms Noboche, she currently lives with her son Omar and another family member. Your two daughters, aged 23 and 16 live together with your daughter’s husband.
[5] Exhibit 4 on the plea.
36 Counsel particularly relied upon the distress and anxiety you will undoubtedly experience in being separated from your daughter, who has troubling mental health problems, and your dependent mother, were you to be imprisoned. Ultimately your counsel did not press the finding of ‘exceptional circumstances’ family hardship in contemplated by s.16A(2)(p) of the Crimes Act and illuminated by cases such as Markovic[6].
[6] The Queen v Markovic [2010] VSCA 105 at paragraph 20.
37 But hardship upon you of a term of imprisonment in the knowledge of the difficulties your family face is another matter, and I take this hardship into account.
Prospects of rehabilitation
38 I will address now your prospects of rehabilitation.
39
It was submitted, and I accept, that you have good prospects of rehabilitation as indicated by your willingness to accept psychological treatment, your remorse and plea of guilty, and your strong family support indicated by the affectionate references from friends and family tendered on the plea, and
Ms Noboche’s travelling to Victoria to support you.
40 I also acknowledge that, through small regular payments to the Department you have commenced the lengthy process of repaying the funds inappropriately received by you. You have consented to the reparation order that will formalise that process.
Relevant sentencing principles
General deterrence, specific deterrence, just punishment, community protection
41 I will now discuss the relevant sentencing principles.
42 The legitimacy and security of a social security system, relied upon by vulnerable members of our community, rests on public confidence in its proper administration. The unauthorised distribution of funds has the potential to force the system to increase the barriers for access of these kinds of payments to deserving recipients, and to undermine the community’s support for such schemes. Moreover, these frauds are not victimless but impose a burden on all taxpayers. Although your counsel argued that you were ‘not the best vehicle for general deterrence’ I am unable to conclude that general deterrence has no role to play in this case. I must impose a sentence that will have a deterrent effect on other people considering such offending; the authorities make clear the role of general deterrence in such a case is very powerful. And I am referring, just for one example, to the case of Warden v The Queen, [2019] VSCA 2.
43 I am also obliged to take into account the deterrent effect any sentence will have on you. While I have accepted that you are very contrite for what you did I must balance this with the fact you have a prior conviction for similar offending, for which your received a term of imprisonment, albeit one that was served in the community by way of intensive corrections order.
COVID-19
44
Further, I take into account the current circumstances surrounding the
COVID-19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prison have been suspended, there has been a reduction of services and programs, and some prisoners are experiencing increased lockdown periods. Those circumstances cause additional stress for prisoners and their families and also affect the programs and supports in prison designed to assist rehabilitation and transition into the community. And I take those additional burdens of imprisonment in this context into account.
Regard to current sentencing practices
45 I am also required to have regard to the national sentencing landscape in considering current sentencing practices.[7] I was provided with a table of loosely comparable cases and I have had regard to them. I have also had regard to further cases in the Victorian jurisdiction and none of them is precisely like yours. And I have been careful to note where the offence charged attracts a higher maximum penalty in making these comparisons. However, with almost no exceptions these cases result in a term of imprisonment being served immediately. And while that fact does not constrain my discretion, each case makes clear that the role for general deterrence in such cases is particularly important.
46 Section 17A of the Crimes Act (Cth) prohibits me from passing a sentence of imprisonment unless, having considered all the other available sentences, I am satisfied that no other sentence is appropriate in the circumstances. I have considered the submissions that urged me to impose a community corrections order, or to impose a recognizance release order with immediate release. While I accept there are important matters that mitigate the sentence I impose on you, I am not satisfied that either of these sentences is an appropriate disposition when I am obliged to impose a sentence that gives appropriate weight to general deterrence.
47 So Ms Faytroni, I will ask you to stand now while I deliver you the sentence.
Disposition
48 Ms Faytroni, on the charge of dishonestly causing a risk of a loss to the Commonwealth, you are to be convicted and sentenced to 18 months' imprisonment. I will further order that after the service of three months' imprisonment, you be released pursuant to s. 20(1)(b) of the Commonwealth Crimes Act upon you entering into a recognizance the sum of $2000 and to comply with the condition that you be of good behaviour for a period of two years.
Explaining the Order
49 Ms Faytroni, if you are more comfortable, you can now sit while I just put that in a more understandable way. I just want to explain to you, Ms Faytroni, the effect of the orders that I have just made. From today's date you must serve three months in actual custody. After the service of that three months, you will be released with the balance of 15 months of imprisonment hanging over your head. You will need to promise to be of good behaviour for two years and if you are not of good behaviour and you breach that promise, then you will likely be brought back before me and you would be very much at risk of having to serve all or most of that 15 months' imprisonment.
50 You are not required to pay to any money. So the reference to $2000 is only if something goes wrong and you are unable to be of good behaviour. You would be required to pay if you breached the order. Ms Faytroni, there is a lot going on in there but I want to make sure that you understand the effect of what I have just said. Do you understand, Ms Faytroni? You are nodding. All right. And I expect that your lawyer will also assist you.
51 MR BALOT: Yes, Your Honour.
52 HER HONOUR: I have also been asked to make a reparation order in the sum of $86,680.77 and I make that order. Ms Faytroni, I should make it clear that the reparation order is not a condition of the recognizance release order. I just want to make sure that you are perfectly clear about that.
6AAA reduction
53 Ms Holmes, being a Commonwealth matter, I am not obliged, am I, to make a declaration pursuant to s.6AAA?
54 MS HOLMES: Your Honour, I submit that - it is the submission of the Commonwealth that Your Honour should make a s.6AAA declaration.
55 HER HONOUR: All right.
56 MS HOLMES: It is submitted that that does apply to Commonwealth matters. It is picked up, it is submitted.
57 HER HONOUR: That I should do so. All right.
58 MS HOLMES: Yes.
59 HER HONOUR: While perhaps not needing to, I indicate that pursuant to s.6AAA of the Sentencing Act, I indicate, Ms Faytroni, that had you not pleaded guilty but were found guilty after a trial, I would have sentenced you to a period of 24 months' imprisonment with eight months before being released on an undertaking to be of good behaviour.
60 Just before I rise, Ms Holmes, is there any technical issues that you wish to raise in terms of the content of the order?
61 MS HOLMES: No, Your Honour. Only if you need assistance with the completing of the order. It is depending on the judge. Sometimes my instructors have been completing the order and emailing it through. But if a draft was sent to Your Honour and Your Honour's associate has already done that then we do not need to assist.
62 HER HONOUR: Yes. That is what we have done and I think what I propose to do is have my associate send it to your instructor. She has already prepared it so she can do that right now. Perhaps if your instructor could just have regard to its contents and that it is technically appropriate, then I think what then remains is that we just have to get Ms Faytroni's either verbal or written consent to make the undertaking to the recognizance release order. Is that correct, Ms Holmes?
63 MS HOLMES: Yes, that is correct.
64 HER HONOUR: All right. So what I propose to do is to simply get verbal consent. So what I am going to do now is ask that a copy of the draft order be shown to Ms Faytroni's representative and that he have an opportunity to read it and should take it to her and if Ms Faytroni consents to the order verbally then that will be recorded. Is that sufficient for your purposes, Ms Holmes?
65 MS HOLMES: I believe so, Your Honour. I concede I have not had a Commonwealth matter with a recognizance release order since the legislation providing for verbal consent for CCOs and other matters have come in. I am just waiting for my instructor to send me a message and I have just received that verbal consent is fine.
66 HER HONOUR: Verbal consent, good. All right.
67 MS HOLMES: So it is picked up in the Commonwealth sphere.
68 HER HONOUR: That is the way we will proceed then. So Ms Faytroni's representative had a look at the draft or perhaps you could just - - -
69 MR BALOT: Yes, Your Honour.
70 HER HONOUR: - - - confirm and you are welcome to attend at the dock. Just confirm that Ms Faytroni consents to the order if you just would not mind getting that consent from her.
71 MR BALOT: Yes, Your Honour. Yes, Your Honour. My client consents to the order.
72 HER HONOUR: I am grateful for that indication. And through you, Mr Balot, we will record that consent.
73 MR BALOT: Thank you, Your Honour.
74 HER HONOUR: Unless there is anything else?
75 MR BALOT: There is one more matter, Your Honour.
76 HER HONOUR: Yes.
77 MR BALOT: I recall that Mr Dunn of Her Majesty's counsel had raised it previously and we understand that the media are a part of these proceedings at the moment, listening in. As I recall, Your Honour, the issue in relation to her father not being her biological father - - -
78 HER HONOUR: Yes.
79 MR BALOT: We had heard from the media on the previous occasion that they do not intend to publish that.
80 HER HONOUR: Yes.
81 MR BALOT: Her mother is very vulnerable, Your Honour. That is a very - issues of infidelity are very, very serious - - -
82 HER HONOUR: Very sensitive.
83 MR BALOT: - - - in this particular community particularly. And I am comforted by the reassurances of the journalist - I think Mr Shapiro?
84 HER HONOUR: Mr Shapiro, I think, joins us online or at least has access to the link. So yes, let us assume that there is media listening.
85 MR BALOT: Yes, Your Honour. And in those circumstances, if we have - if that is not going to be reported upon, there is no need for a suppression order in relation to this part of the information. I do not imagine it is going to be awfully important to publish in relation to it but I am concerned for her daughter. I am concerned for my client and I am concerned for her mother.
86 HER HONOUR: All right. So what I understand, Mr Balot, is at this stage you are not making application pursuant to the Open Courts Act. You are simply making a plea really - - -
87 MR BALOT: I am, Your Honour.
88 HER HONOUR: - - - that that information be treated be very sensitively and I understand why and I appreciate why and to the - without making any formal orders, I would informally support that plea for discretion. But there is no formal order preventing that publication at the moment.
89 MR BALOT: No, Your Honour. But it is on the basis that we have heard previously from Mr Shapiro I think it was in relation to it. Otherwise - it is unfortunate we cannot hear him - - -
90 HER HONOUR: Well, getting a - - -
91 MR SHAPIRO: Your Honour, it is Mr Shapiro here. Sorry to interrupt you.
92 HER HONOUR: Yes, that is all right. I was just about to say that although it is Mr Shapiro who is online at the moment, these hearings can be accessed by other members of the media. We do have an obligation to comply with the principles of open justice.
93 MR BALOT: Indeed, Your Honour.
94 HER HONOUR: So Mr Shapiro might not be the only journalist who attends this court hearing because there is probably going to be access at least in theory made - digital access made to other media organisations. Not just Mr Shapiro's. Just so that you are aware.
95 MR BALOT: Well, in those circumstances, Your Honour, I might make an application for a suppression in relation to that information.
96 HER HONOUR: All right. So how do you wish to proceed at this moment? Is it just that particular fact?
97 MR BALOT: It is just that particular fact, Your Honour, and it is - I am comforted by what Mr Shapiro had indicated on the previous occasion. Perhaps if we can - - -
98 HER HONOUR: Yes. Mr Shapiro, I do not want to cut you out. Do you want to be heard at this time?
99 MR SHAPIRO: No, Your Honour. We have already published the initial story based on the plea hearing. We did not include any of that information and we have absolutely no plans to include that information in any further stories. As far as other media outlets, I cannot speak for them. So I would not oppose defence's application to suppress that information if that is of any help.
100 HER HONOUR: All right. What happens, Mr Balot, on application for a suppression order, we have obligations to notify the media to allow them the opportunity to be heard. And that can take a little time. You might want to - what I will do I will stand down for a few minutes. You might want to get instructions and consider whether you want to pursue that course having heard from Mr Shapiro.
101 MR BALOT: I am comforted by Mr Shapiro's comments and indeed, he is right. I have read the article that he has published. There was no comment in relation to it. I might get those instructions, Your Honour. I think that Your Honour and I are - - -
102 HER HONOUR: Yes. All right. Well, I will stand down for a few minutes. Yes.
103 MR BALOT: If Your Honour pleases. Thank you, Your Honour.
(Short adjournment.)
104 MR BALOT: Thank you for that opportunity, Your Honour.
105 HER HONOUR: Not at all.
106 MR BALLOT: I have now sought instructions and given the comments made in court, my client has considered her position and the application would not be persisted with.
107 HER HONOUR: I understand.
108 MR BALLOT: Thank you, Your Honour.
109 HER HONOUR: And thank you, Mr Shapiro, who seems to have gone - no. Thank you, Mr Shapiro, for your attendance and your remarks.
110 MR SHAPIRO: Thank you, Your Honour. Sorry.
111 HER HONOUR: Go ahead.
112 MR SHAPIRO: I was just going to say, just for the purposes of maybe to alleviate a little bit of stress, in my experience with other journalists and media outlets, I do not see how that information would be relevant to them also, if that is of any benefit.
113 HER HONOUR: I am sure that is of comfort, Mr Shapiro.
114 MR BALOT: It is, Your Honour.
115 HER HONOUR: Thank you for your attendance.
116 MR BALOT: Nothing further, Your Honour. Thank you.
117 HER HONOUR: That being said, we will adjourn until 1.30.
- - -
adopted by Bell and Gaegler JJ at [41]; Hili v The Queen (2010) 242 CLR 520, 538 at [47] per French
CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
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