Director of Public Prosecutions v Klep
[2014] VCC 2294
•26 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-02307
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FRANK KLEP |
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JUDGE: | Judge Gucciardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 26 May 2014 | |
CASE MAY BE CITED AS: | DPP v. Klep | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2294 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Fitzpatrick | |
| For the Prisoner | Mr V. Azzopardi |
HIS HONOUR:
1 Frank Gerard Klep, you have pleaded guilty to one charge of buggery, 10 charges of unlawfully and indecently assaulting a male, one charge of attempted buggery, two charges of indecent assault and one charge of rape. These offences were committed between February 1973 and December 1984. The prosecution tendered a summary of the facts on the plea and this exhibit will be retained on the court file. For purposes of the sentence, I do not need to recite each detail it contains. However, I will briefly state the circumstances of each discrete offence. For the purposes of this sentence I have not used proper names, I have used letters. That is for reasons of anonymisation and privacy of those involved.
2 Charge 1 related to J. He commenced as a boarder at Rupertswood in 1973. On a number of occasions when he was in the infirmary, you would get into bed beside him and fondle his penis and testicles. He estimates that you sexually touched him on six occasions over a period of two years. On one occasion in 1973, he was asleep in the infirmary, when he awoke to you getting into bed with him. There was no-one else there at the time. You removed J's pyjama pants and inserted your penis into his anus. He does not recall what happened after that.
3 Charge 2, indecent assault. S was a boarder at Rupertswood between 1972 and ‘75. When he was 13 years old, he went to the infirmary because he was ill. On his second night there, he woke up on your bed and you were fondling his penis and testicles. He pulled his pants up and crawled back to his own bed and fell asleep. He woke sometime later and you again were touching him on his penis and testicles.
4 Charge 3, indecent assault on a male. T had boarded at Rupertswood between ‘74 and ‘78. On an occasion in 1974, when he was 13 or 14 years old, he went to the infirmary because he was sick with a cold. He was asleep one night in one of the beds. You shook him, asked him if he was awake. You said you were just going to pull his pants to check something. You pulled his pyjama pants down and fondled his penis and testicles. You then told him to go to sleep.
5 Charge 4, indecent assault of a male. P was a boarder at Rupertswood between ‘74 and ‘79. Around term 2 of 1974, when he was 11 or 12 years old, he became ill with the flu and the nurse sent him to the infirmary. On the first night he was there he woke up to find you rubbing his stomach. You then moved down the complainant's pyjama pants and fondled his penis and testicles. He fell back to sleep. When he woke again, you were still stroking his penis.
6 Charge 5, indecent assault on a male. B boarded at Rupertswood from ‘77 to ‘79. He transferred there after experiencing academic difficulties as a result of dyslexia. During his first year, in 1977 when he was 14 years old, he became ill with flu and went to see you in your office. He was then sent to the infirmary, which was opposite your room. You came to his bed, put your hand on his forehead and asked how he was feeling. You then put your hand under the covers and his pyjamas and rubbed his stomach. You then moved your hands down and fondled his testicles and rubbed his penis.
7 Charge 6, indecent assault on a male. D boarded at Rupertswood from the beginning of year 7 in 1976 until leaving the school midway through 1979. On an occasion in 1977, when he was in year 8, he was feeling sick and went to see the school nurse, who sent him to the infirmary. During the night you woke him up. You were leaning over him, masturbating his penis. He rolled onto his stomach. You rubbed his back and told him it was all right. He told his mother the following weekend but at that time she did not believe him, told him he must have imagined it.
8 Charge 7, attempted buggery. C started at Rupertswood as a boarder in year 8 in 1977. Soon after he started at Rupertswood, you approached him for a talk. You asked him how he was settling in and you seemed to be interested in what he was doing. While you were talking you began to pat and then rub his right thigh. A week later, you approached him again in the dorm and asked him to come for a chat. Again you rubbed his thigh and this time you fondled his genitals under his shorts and underpants. On another occasion about a week after, you asked him to help you. You cuddled him in a room for a while and stood behind him and cuddled him. He felt your erect penis against his bottom. About a month later, in the same small room, you again cuddled him from behind. You undid his shorts, pulled them and his underpants down. He felt your erect penis pressed against his bottom. You attempted to penetrate his anus with your penis, which caused him pain.
9 Charge 8, indecent assault of a male. N and his brother, F, were both boarders at Rupertswood. F was at the school between ‘74 and ‘78, N from ‘77 to the end of the 1980. In 1977, both of them became ill with leptosporosis, and they were in the infirmary together. N woke up and you were sitting on the edge of his bed, with your hands down his pyjama pants, rubbing backwards and forwards over his penis.
10 Charge 9, indecent assault of a male. While both brothers were still in the infirmary, the other brother, F, woke to find you sitting on the edge of the bed. His pants were off and you were sponging his genitals with a face washer. You fondled his testicles and penis.
11 Charge 10, indecent assault of a male. G went to Rupertswood as a boarder when he was 11 years old, in 1976. The start of 1978 he was ill. He was in the infirmary and woke to find you fondling his penis and testicles inside his pyjama pants.
12 Charge 11, indecent assault of a male. X commenced at Rupertswood as a day student in 1977 and remained there until year 12. In 1978, when he was 13 or 14 years old, he went to the sick bay. You asked him to lie down on one of the beds. You then opened his pants and fondled his genitals and as you masturbated the complainant's penis, you asked him how that felt and whether it felt better. The complainant was in shock. You took his wrist and directed it towards your own genitals, holding his hand on your penis, moving it up and down. After this, you sent him back to class.
13 Charge 12, indecent assault of a male. P was a boarder at Rupertswood from 79, when he started year 7, until the end of 1980, when he changed schools. Early in 1979, he went to see you in the infirmary because he had tonsillitis. You asked him to pull down his trousers and underpants. You then grabbed his scrotum and told him to crouch. You then masturbated his penis. You calmed him down and told him not to tell anyone when he threatened to run away.
14 Charge 13 of rape concerns W, who started at Rupertswood as a boarder in July 1982, when he was in year 7. When he was either 12 or 13, his friend was in the infirmary. He decided to pretend to be sick so he could hang out with his friend. They spent there a couple of days until the Saturday morning, when you told all the students who were there they were well enough to leave, except for him.
15 He spent that day and night in the infirmary and woke up at sometime during the night. You had approached his bed, rolled him onto his stomach, pulled his pants and underwear down, removed them, climbed onto the bed and inserted your penis into his anus. You held his shoulders and told him to be quiet and lie still. When you withdrew your penis, W felt your ejaculate on his back and his thighs, which you wiped with something. You covered him and you returned to your sleeping area. He curled up in a ball and cried.
16 Charge 14, indecent assault. Y attended Rupertswood as a day student from ‘82 to ‘86. One day when he was either in year 8 or 9, another priest yelled at him in relation to his shoes. You saw him walking back to the main building, asked him what he was doing. He was visibly upset and crying. You took him into your office and asked him to tell you what had happened. You reassured him. You then pulled his hands towards you and put them on your genitals, over your clothes. You then pulled your penis out of your pants and made him masturbate you to ejaculation.
17 Charge 15, indecent assault in relation to student A, who started at Rupertswood as a boarder in 1984, when he was in year 9. He was very homesick and you would regularly talk to him, hug him, rub his shoulders. In March 1984, he had been home for a long weekend. He was upset after phoning his parents and you invited him into your office, sat him on your knee, hugged him from behind and told him that things would be all right. He could feel your erect penis against the back of his legs.
18 On another occasion he was again upset and had come to seek permission to use the phone to call his parents. He sat on your knee. He wanted to go home. You rubbed his legs and then moved your hand down the back of his pants and another down the front. You stroked his penis under his underwear. When he asked you, "What do you think you're doing?" you replied that it was natural.
19 Police interviewed you on 26 October 2011. You made no comment to all questions about the allegations. I have received victim impact statements from most of the victims and they were read out in court, either by the complainants themselves or by counsel for the prosecution. Two men declined to make statements.
20 I have excluded from my consideration the agreed portions contained in the document prepared by the parties in relation to this aspect and in relation to five of those statements and some small portions of them. A further victim impact statement was later received by a victim who had been unable to be contacted earlier.
21 I also received a statement from a sister of the siblings you abused, who wrote a truly heartbreaking statement about the impact. I also received one from a mother haunted by the decision to send her son to Rupertswood, persuaded by your veneer of welcoming care and reassurances that you would look after and protect her son, which was your sacrosanct duty.
22 The commission of the offences was not revealed for years. The disclosure has obviously, as is invariably the case, been painful and difficult for those offended against, their families and those associated with them. I thank those who have prepared statements and, in particular, acknowledge the quiet courage and determination of those who read theirs out in public. These were powerful testimonies simply articulated, which attest to your dignity and civility and which is indicative of the suffering which each of you has endured and the path each of you has undertaken to reclaim and restore your lives.
23 I hope the process has provided some benefit. I should, while acknowledging this impact, say to you that this process, however, will not bring, necessarily, closure or finality. Such comfort must come from your family, friends and your inner resources. This is a legal process bound by legal principles and it must take into account many factors and elements and can never represent a complete rehabilitative step because a sentence or its length can never and should not be seen as being in any way equivalent to what you have experienced and endured, for the years of suffering this conduct has caused.
24 The statements each in their own way confirmed what the court has long known, that the young men whom you abused were broken by your conduct.
25 Relationships with partners and children were marred. Many experienced anger and post-traumatic stress responses. Many took refuge in alcohol and other damaging kinds of refuge from pain and bewilderment. Many were not believed by their parents. Many had to endure your presence and had to endure the affront of having you officiate over weddings and funerals.
26 These are, in my view, appalling offences which the court must denounce in no uncertain terms. You were a priest and a teacher, and these offences took place at a time when the power of your position has both acted as an effective deterrent to exposure or effective complaint and which enabled you to continue this appalling behaviour well over a decade. You have ruined lives and the ripple effect has touched not only every aspect of the lives of these young boys but their families as well.
27 You were 30 when you began offending and it would appear that soon after your ordination and posting to Rupertswood, you realised that this position allowed you access to vulnerable young boys, vulnerable by age and circumstances, whom you could exploit for your vile sexual gratification. You went about this deprived conduct undeterred and unperturbed for many years and with many victims.
28 The contents of the victim impact statements are harrowing and reflect the anguish felt by those men. They covered common themes of anger and distrust, loss of faith and innocence, feeling of powerlessness, exploitation and humiliation, which have left them bewildered and broken, often unable to manage their lives adequately, impinging on their ability to form and stay in stable relationships, damaging prospects of employment and advancement, stunting educational achievement and devastating their psychological lives.
29 The courts have long recognised that those who commit crimes against one of the most vulnerable groups in society with the long-term effects I have described, should be severely punished. The lapse of time since the commission of these offences is not unusual. The magnitude of your culpability is not made less abhorrent by the passing of time or by ageing, nor made less amenable to punishment. The victims of your crimes have experienced unjustified feelings of guilt, shame and embarrassment as a result of your conduct, and so the commission of the offences were not exposed for some time.
30 Considered in this light, general deterrence must take on a very considerable significance as a consideration. It is incumbent on the court, irrespective of the age of the offences, to denounce this behaviour on behalf of the community by way of stern and appropriate sentences. The sentence must be seen to vindicate the values of our society for which the protection of children must be central.
31 Retribution for the rights of these men so blighted by your conduct is a worthy aim and is accompanied by just punishment and the attribution of responsibility based on moral culpability. This vindication is profoundly important in the criminal justice system and it is important if that system is to work properly. This public attribution of responsibility must be balanced out by the factors which militate in favour of mitigation, which I will set out.
32 In this type of case, delay is not a significant a factor, I have said, as in others, and although I do take such delay into account as one of the factors which attaches to this offending, I bear in mind what the plea in your case has again made plain and that is that the rehabilitation of the victim of sexual abuse is often more difficult and protracted a process than that of the perpetrator.
33 Given that these offences occurred over a long period and sometime ago, different maxima apply to each offence. The pre 1 March 1981 offences carry, for buggery, 20 years' maximum; indecent assault of a male, five years, and attempted buggery, 10 years, whilst the post 1 March 1981 carry 10 years' maximum for rape and five years for indecent assault.
34 One of the most important aspects which I have considered and I must seek to apply is the principle of totality as applicable in these circumstances. Your offending must, to some extent, be seen in the context of the offending for which you have on two previous occasions already been sentenced. Therefore, in accordance with the principle of totality, I should moderate the sentence I impose, given the offences occurred during some of the periods of time when you also offended and for which you have been already sentenced.
35 You have, strictly speaking, no criminal history prior to these offences. However, you were convicted in 1994 of two counts of indecent assault occurring between 1975 and 1977 and placed on an intensive corrections order. Then in 2005 you pleaded guilty to 14 counts of indecent assault against students at Rupertswood. Your sentence was deemed inadequate by the Court of Appeal, which sentenced you to five years and 10 months, with a non-parole period of three and a half years' imprisonment, which you subsequently served from 2006 to 2009.
36 It should be noted that the Court of Appeal on that occasion noted its then extant constraint of double jeopardy upon a Crown appeal. The plea related to 11 victims, covered offending between 1973 and 79, with some six counts being representative counts involving therefore many instances of such indecent conduct. Had the present offences been brought to light at the time the other matters were dealt with, that would have required sentences on these to be dealt with similarly to those which were dealt with in 94 and in 2005.
37 I note this for the purposes of totality, not to be in any way critical of the fact that these offences were not disclosed by the victims at the one proximate time. However, a number of aspects must be taken into account in endeavouring to apply the totality principle. While enmeshed with the previously dealt with matters, none of this offending was disclosed by you. Once dealt with in 94 and again in 2005 for this conduct over the period of Rupertswood, you could have brought some of these matters to the attention of the authorities. You did not do so.
38 Another factor to acknowledge is the fact that on this current presentment the offending extends beyond the last one dealt with by the 2005 sentence. In fact, the very serious offence of rape falls well after 1979, which was the last offence for which you were dealt with in the 2005 series of offences, as do the two subsequent indecent assaults.
39 A further consideration is that it is legitimate for my sentence to recognise the separate harm caused to each and different victims. They are all important and entitled to be separately recognised and represented in the sentence. In my view, this requires accumulation in part relative to each person.
40 Lastly and importantly, the totality principle is also limited in its application as you fall to be sentenced as a serious sexual offenders on all charges, having previously received terms of imprisonment. The scope of the principle is more limited than in cases not covered by these provisions because you are to be treated differently from other offenders by its application.
41 The totality principle should not be applied to undermine the legislative policy inherent in the section which pertains to serious sexual offenders. The object of the provisions is to make sentences to which it applies, like in your case, operate cumulatively rather than concurrently. Here the Crown does not submit a disproportionate sentence should be imposed and I do not intend to impose such a sentence.
42 However, pursuant to s.6E of the Sentencing Act, I will impose partial cumulation, as I have indicated before. This is particularly the case with offences which are penetrative in nature, 1, 7 and 13, which were not the subject of your earlier sentences. I should also note that the 14 charges of indecent assault dealt with in 2005 were upon 11 victims in the context of their visits to the infirmary and encompassed the same type of behaviour, fondling of genitals, indecent touching, sucking of the penis and masturbating to ejaculation.
43 Here the aggravating features to take into account are the gross breach of trust in your capacity as priest and teacher but also in charge of the infirmary. Your behaviour, in my view, was predatory, planned and clearly not an isolated incident. Apart from the two boys subject to Charge 11 and 14, all the students were boarders and you stood in loco parentis in relation to them. In some instances, the victims were ill and not feeling well. Because of their circumstances , the boys were vulnerable and susceptible to quiet acquiescence and compliance and you well understood, by dint of their age between 11 to 15 and your position of power, the imbalance which you exerted to your advantage in your reprehensible conduct.
44 Having regard to your position, the attitude at the time of Catholic families placing priests on a pedestal of authority, faith and trust, there is no doubt your conduct exemplified the depth of evil hypocrisy. You offended against children from the same family, visiting upon that family a burden of grief and guilt which is difficult to describe adequately.
45 You have pleaded guilty and therefore by operation of law I must accord to you a sentence discount, which I will declare at the end of the sentence. The prosecution acknowledge that because of ongoing nature of the presentation of complainants during the course of discussions between prosecution and defence, that your plea should be regarded as having been entered as an early plea. There was no committal and so I can attach to the plea the significant utilitarian value of avoiding a costly and difficult trial and the obligation of complainants to give evidence with its natural trauma and difficulties.
46 I accept the plea is offered in acceptance of responsibility. It was asserted that you are beset by a deep sense of remorse and shame, which has been made real to you particularly since completing the sex offenders program during your incarceration prior to release in 2009. It was reiterated by you to Patrick Newton in his interviews with you for purposes of a report, which he has written for the court, dated 26 March 2014.
47 You then asserted such remorse in an apology, which I allowed you to read out in court, in which you assert your capacity to understand and feel deeply saddened by the enduring trauma your abuse has caused. I accept that you feel remorse. I also note that the presentation of this expression of remorse was consistent with what Mr Newton noted as "a very unusual personality profile" from which "no interpretative inferences could be drawn" and which reflected a conspicuously remote and noticeable emotional distance and empathetic tenor, beyond the words which you spoke as a person experienced in public speaking.
48 Nevertheless, and despite these observations of a perplexing lack of authenticity in your apology, I accept that as opposed to 2005, when you appeared to have lack of empathy totally, you have benefited from the sex offenders program to appropriately develop some insight which leads to feelings of shame and remorse. The notations from the time in prison reflect the quiet and polite and cooperative way you have undertaken previous incarceration and is supported by comments of Mr Newton, who found you not only to manifest no symptoms of psychological disorder but a disarming poise and equanimity.
49 I take into account in particular the risk assessment outlined at p.6 of Mr Newton's report, which finds you at moderate low risk of recidivism, supported by significant protective factors, amongst which the offenders program completion, the continuing obligations under registration as a sex offender, your family support, your age and your general demeanour in reclusion. You have acknowledged your homosexuality, and in my view, your prospects of rehabilitation are reasonably good but ‘short of unbridled optimism’ as expressed by Mr Newton.
50 I take into account that you have undergone a loss of office and standing within the church as a result of your offending. This has deprived you of some opportunities to perform the tasks for which you trained. However, such loss of office can't be, in my view, treated as a substitute for the punishment which the law requires.
51 I take your personal circumstances into account. You are 70 years of age and were born in the Netherlands to a devout Catholic family. You migrated together to Australia when you were 10. You lived in a harmonious and happy family with no criminal history. From the day of your release in 2009, you cared for your mother, whilst residing with her, during her final illness and decline. She died in January 2014.
52 Your family are your support and many of them were present in court. You never experienced sexual abuse or unwanted sexual advances. The most which can be said was that in the years leading up to your ordination and thereafter, you experienced turmoil between the needs for social connection and desired intimacy with others and the sublimation of those needs to the demands of your vocation. This is a conflict which the overwhelming majority of clergy manage in exemplary, modest and faithful lives, whether living in a community or in the midst of their school, parish and community duties.
53 You were ordained in 1972 and you taught at Rupertswood ultimately after a year in Adelaide, returning as its rector from ‘82 to ‘86, after which you obtained a further degree from an American university. You continued in your priestly duties despite your conviction in ‘94 and it was only after the 2005 matters that you were forbidden to celebrate mass and carry out other priestly functions.
54 I accept you were assigned menial duties and ostracised by many of your community. Before the 2005 matters, and perhaps because of the ‘94 matters, you had been posted to Samoa, the theological college there. There you taught young priests, adult couples, did voluntary work for the St Vincent de Paul, visited lepers and performed your priestly duties.
55 I accept that you have been the subject of public disgrace and opprobrium, but while relevant, these matters, in my view, are of slight weight. I accept that if one was to leave aside these offences, you have shown capacity for good works, whether in raising funds for good causes, organising groups to visit the elderly or attending and assisting with the needs of the underprivileged. These efforts indicate good character.
56 The testimonials which have been written and the works you have performed attest to your capacity and the good reputation and esteem in which you were held. This is a mitigating factor I am bound to consider and I do so. I have especially noted the references by Ms Duke and Mr Nixon. However, in my view, the nature and circumstances of the offences for which I sentence you are countervailing factors which mean that this character can only be a small factor to be weighed in the sentencing process.
57 The good works which are at the heart of your claim of good character were performed as a priest while you committed these offences in the course of that very same duty. Although there is a level of artificiality in this aspect, as identified in Ryan's case in the High Court, I accept that I must take this aspect of your life into account as I do. In my view, the intersection of reputation and character for the purposes of criminal punishment in this instance leads me to assign such aspects only of very limited mitigatory value.
58 I accept that the rigours of gaol life may be more difficult with advancing years, although this is placed in a more positive dimension by the way you conducted your incarceration between 2006 and 2009, which on the record was free of tribulation after an initial assault and you were a model prisoner.
59 I have considered current sentencing practices at this time and have noted the records as to sentences at the time of the offending, with the limit of such records and have read all the authorities tendered, as well as the statistical records for each offence. They inform my ultimate disposition within the limitations which they carry as records of past sentences without further details.
60 Giving effect to the principle of totality, as I have explained, in an endeavour to reach a just and appropriate sentence, which is not crushing in all the circumstances, this is my sentence. On the Count 1 of buggery, you are convicted and sentenced to seven years' imprisonment. This is the base sentence. On the 10 counts of indecent assault of a male, you are convicted and sentenced to two and a half years on each charge, they being 2 to 6 and 8 to 12.
61 On the attempted buggery, you are convicted and sentenced to two and a half years' imprisonment; that is Count 7. On the rape charge, Count 13, you are convicted and sentenced to five years' imprisonment. On each of the two counts of indecent assault, you are convicted and sentenced to two and a half years on each charge.
62 I order that one year of Count 13, the rape, be served cumulatively on Count 1. I order that one month on Counts 2 to 6 and 8 to 12 be served cumulatively on the Count 1. I order that two months on Count 7 be served cumulatively on Count 1 and I order that one month on each of Counts 14 and 15 be served cumulatively on Count 1. That makes a total of 10 and a half years. I order a non-parole period of six and a half years. But for your plea I would have sentenced you to 12 years, with a non-parole period of eight years.
63 You are already registered for life as a consequence of your convictions and you will remain so. I declare that I have sentenced you as a serious sexual offender and I will have that noted in the records of the court. My calculation is that Mr Klep has served 53 days, excluding today.
64 MS FITZPATRICK: That's correct, Your Honour.
65 HIS HONOUR: As pre-sentence detention, I declare that number and will have it noted in the records of the court. For those who are trying to understand the sentence, it has to be, if you like, accumulated or added to the sentence served previously in 2005. That gives a better understanding of the total sentence which the court has imposed over these matters over this period of time. Yes, you can remove Mr Klep. Are there any other matters?
66 MS FITZPATRICK: No, Your Honour.
67 MR AZZOPARDI: No, Your Honour.
68 HIS HONOUR: I have other matters to proceed with but I will stand down for a moment and I will return to the Bench.
69 HIS HONOUR: I just want to check that what I have actually said is correct, so if you just would not mind - did I say seven for Count 1?
70 MS FITZPATRICK: Yes, Your Honour.
71 MR AZZOPARDI: Yes, Your Honour.
72 HIS HONOUR: I did? Right. No, that is right. I think my calculation is correct. I was just concerned that I had said the wrong number in relation to Count 1.
73 MS FITZPATRICK: Your Honour, might I just confirm the quantity of cumulation order in respect of Charge 13?
74 HIS HONOUR: In relation to Charge 13, the rape charge, is one year. So I have ordered - I think the one that I omitted to say was the six months' cumulation on the attempted buggery.
75 MS FITZPATRICK: As Your Honour pleases.
76 HIS HONOUR: So my calculation is seven year as a base, plus six months for Charge 7, plus one year for Charge 13, making eight and a half years, plus two months on each of the 10 indecent assault on male charge, making 20 months and two months on 14 and 15, making four months, which means 10 and a half years, and I have set a non-parole period of six and a half. So that means that with the three and a half already served, he will serve 10 years.
77 MS FITZPATRICK: As Your Honour pleases.
78 HIS HONOUR: I hope that is clear. If there is any problems with those numbers, please ask my associate.
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