Director of Public Prosecutions v Patton
[2012] VCC 1062
•25 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00090
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW JONATHON PATTON |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 19 July 2012 | |
DATE OF SENTENCE: | 25 July 2012 | |
CASE MAY BE CITED AS: | DPP v Patton | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1062 | |
REASONS FOR SENTENCE
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SUBJECT – CRIMINAL LAW
CATCHWORDS – Sentence
LEGISLATION CITED –
CASES CITED –
JUDGMENT –
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms K. Swadesir | Office of Public Prosecutions |
| For the Accused | In Person |
HER HONOUR:
1 Matthew Jonathon Patton, you have pleaded guilty to two charges of obtaining a financial advantage by deception. The maximum penalty applicable to each charge is 10 years' imprisonment.
2 Your crimes arise out of events which took place on 8 July 2010 and 31 July 2010 and involved the victim of your offending, George Vryonis.
3 It is not necessary to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised and discussed during the plea hearing with both Ms Swadesir and yourself. It is sufficient for present purposes to simply say I regard the facts in this case as most serious.
4 I am also concerned that you have a relevant prior court appearance.
5 You appeared in person, without counsel at your plea hearing. Before me on 25 June 2012, you indicated your intention to represent yourself. I urged, as best I could, that you seek legal representation for your plea hearing. When I canvassed that with you again 19 July 2012, you confirmed yet again you wished to represent yourself and, as such, the matter proceeded. I also understand the prosecutor at the original hearing offered you some advice in relation to legal representation to set you on the right track. Having said all that, you are entitled, of course, to appear on your own behalf and you chose to do that.
6 I turn to a brief summary of your offending. At the time of your offending, you were 36 years of age, you are now 38.
7 In May 2010, the victim in this matter, George Vryonis, answered an advertisement placed by you on a website, Australian Investment Network, regarding an investment opportunity which involved purchasing and selling sheep.
8 Shortly after answering the advertisement, Mr Vryonis met with you to discuss the investment opportunity which involved you buying sheep on behalf of investors, in this case Mr Vryonis. The sheep would in time give birth to lambs which would then be sold for profit.
9 A contract formalising this agreement was entered into by you and Mr Vryonis.
10 On 8 July 2010 in relation to Charge 1, you arranged with Mr Vryonis to purchase on behalf of him, two lots of sheep. The purchase was described as being 326 sheep in one lot and 540 sheep in another. Mr Vryonis paid a total of $110,502.70 for 866 sheep. That money was transferred by him to a stock agency, Charles Stewart, who acted as a third party agent in the transaction, and who then transferred the money to you.
11 The week after the purchase, Mr Vryonis attended a property in Winchelsea where you were agisting sheep, at which time he was shown by you what he believed were the 866 sheep he had purchased in that agreement.
12 On 17 July 2010, Mr Vryonis again attended the Winchelsea property and met with you. You drove him through the property showing him what you described as 1,400 head of sheep in one paddock and 1,200 head of sheep in another. You suggested Mr Vryonis should purchase the 1,400 head of sheep. On 31 July 2010 that further purchase was agreed and Mr Vryonis transferred $169,400 to you, again through the third party agent, Charles Stewart, in respect of 1,400 head of sheep.
13 In December 2010, Mr Vryonis became concerned about your behaviour and failure to return phone calls. At that time, you contacted him, Mr Vryonis, to arrange to meet with him to explain that he had paid for more sheep than the actual number that existed.
14 The sheep you sold to Mr Vryonis comprised of two lots, being the 326 head of sheep and 1,400 head of sheep. Those two lots of sheep had also been the subject of a sale to another investor, Mr Leo Nuzzacco. Prior to Mr Vryonis purchasing these sheep from you, they had also been sold by you to Mr Nuzzacco. Mr Vryonis therefore paid $207,053 for a total of 1,726 head of sheep he has not received and does not own.
15 On 1 December 2010, you voluntarily attended Narre Warren Police Station where you requested to be interviewed and made various admissions to police regarding your offending.
16 During that interview, you told police that you had deceived private investors by selling the same sheep to two different investors and that you had received money from both Mr Vryonis and Mr Nuzzacco for the purchase of the same sheep. You said you had received lines of credit from stock agencies to finance the purchase of livestock and had not intended to repay your debt to the stock agencies.
17 On 13 December 2010, you were asked to re-attend the Narre Warren Police Station to clarify a number of matters. You told police at that time that you had not deceived the various stock agencies referred to in your previous interview, but had tried to repay the money owed and which was now the subject of civil actions. In relation to the sales with Mr Nuzzacco, you had legitimately bought 1,200 head of sheep from him. You had deceived Mr Vryonis by selling the same 1,200 head of sheep to him. You said you had knowingly sold the 1,200 head of sheep to Mr Vryonis as an incorrect figure of 1,400 head of sheep and you were aware the sheep were already owned by Mr Nuzzacco and therefore could not be sold to Mr Vryonis.
18 As a result of your deception, Mr Vryonis paid $169,400 for the 1,400 sheep and $37,653 for the 326 head of sheep. He has not received any reimbursement for these transactions and therefore is a victim of your deceptions in a total figure of $207,053. I note your submission you paid Mr Vryonis $10,000 cash to reduce that debt, and I shall refer to this again later.
19 You have pleaded guilty to these two charges and you are entitled to have that fact taken into account in your favour, and I do so. The community, by your plea, has been spared the time and cost of a trial and witnesses have been spared the need to appear at your trial. I take into account in your favour you were the one to approach the police. In your records of interview you admitted your offending, albeit with some differences by way of explanation, between your two records of interview. I accept you have maintained your intention to plead guilty to the two charges before me.
20 I accept your plea indicates remorse for your actions.
21 You have admitted a number of prior court appearances commencing in 1993 at which time you were convicted and placed on a Community-Based Order for twelve months. You were then dealt with on 8 April 1997 for unlawful assault and travelling without a valid ticket, which was subsequently varied on 29 November 2001. I note you do not recall being dealt with in relation to that offending, and advised me the first you knew of the Order against you was just prior to your appearance at Melbourne Magistrates’ Court on 29 November 2001. I note the matter dealt with at Sale Magistrates’ Court on 8 April 1997 was heard ex parte.
22 You next appeared at Kerang Magistrates’ Court on 8 January 2003 on a charge of criminal damage and a charge of unlawful assault and were with conviction fined.
23 You also appeared at Kerang Magistrates’ Court that same day and were re-sentenced in relation to the offences of unlawful assault and travelling without a valid ticket. The Community-Based Order was cancelled and you were convicted and fined.
24 Your next court appearance was on 13 April 2004 at Dandenong Magistrates’ Court, and that involved charges including knowingly obtaining a payment payable in part, and knowingly obtaining a payment where it was not payable, and two charges of obtaining financial advantage. You were convicted and fined $500 on each charge, and ordered to pay reparation and costs.
25 I am particularly concerned about that offending dealt with in 2004 which involved offences of dishonesty. The prosecution provided brief details of that offending in Exhibit B.
26 I was also advised of a subsequent court appearance on 28 October 2011, at which time you were placed on a Community-Based Order for twelve months, ordered to complete eighty hours of community work over six months and to be assessed for various treatment options. That, as I understood it, involved offending by you towards Mr Fincham, who was also part of the background to your offending before me in July of 2010.
27 At your plea hearing, you provided a very comprehensive document of thirteen pages, which outlined the background to your involvement in your offending in July 2010 (see Exhibit 1). I discussed that at some length with you. A transcript of the plea hearing will reveal the contents of that discussion. In my opinion, even accepting your account, you at least turned a blind eye to your concerns regarding Mr Fincham, continuing to be involved with him on a financial basis when you knew, given his track record with you in business dealings, he was not to be trusted. In brief, you described that you ultimately accepted the word of Mr Fincham, particularly when Mr Branford became involved, the latter representing Elders Ballarat. You thought the transactions you then entered into with Mr Fincham would not be subject to the same concerns you had had in your involvement with Mr Fincham in 2009.
28 In your document you said you were scammed “right from the start” (Exhibit 1, page 12). You said your reason for offending involving Mr Vryonis was your concern, you said, about Mr Vryonis’ disadvantaged financial situation. I must say I have concerns regarding your account of your ignorance regarding your knowledge of the various transactions and this offending.
29 By way of some explanation for your offending behaviour, you referred to a number of mental health issues which potentially impacted upon your thinking at the time you committed the offending before me. You provided a report from Dr Michelle Wauchope, Forensic Psychologist, dated 5 September 2011, written for your subsequent court hearing in October 2011. Amongst other things, her report confirmed that your dealings with Mr Fincham had got to the stage where you offended against him in January/February 2011, which would tend to confirm your submission before me that you were concerned/frustrated by your business dealings with Mr Fincham at the time you committed the offences before me in July 2010.
30 You described to Dr Wauchope that your parents separated at around the same time you were born. You did not have any contact with your father until you were approximately 10 years of age. Your mother’s inability to care for you due to her ill health meant you were placed in Allambie Children’s Home in Burwood for approximately a year until you were placed in foster care in Stawell. You began to spend more time with your mother later in your teenage years for a short time. You also spent some time living with your father in Wangaratta, although because you had not seen him for so long you found it very difficult to relate to him. At one stage your father moved to Queensland and you moved with him when you were approximately 14 years of age. You described that although you had been enrolled in school you never attended.
31 Despite not having lived with your mother since you were about 8 years of age, you kept in contact with her initially, although you did not have much of a relationship with her as at the time of Dr Wauchope’s report. You described very little contact with either of your parents after you commenced work at 14 years of age.
32 You described a difficult childhood to her. You said you were forced to grow up quickly, particularly when at age 14 you began working and mixing with grown men, such making you more mature very quickly. Also you learnt you needed to be ruthless at times to get by.
33 You reported having had two significant relationships, one when you were 20 years of age, with two children of that relationship, Ricky-Lee and Hayden. Your daughter was living with you at the time of Dr Wauchope's report and had done so for approximately 2–3 years until December 2010. I was told she had recently returned to live with you. You met one of your partners, at the time of the report, approximately seven years ago, and were together until December 2010. You said you apparently caught her in a relationship with someone else. I was advised at your plea hearing you now had another partner and I was told you had married in March of this year.
34 You reported attending a number of primary schools over the years, ultimately achieving only a Grade 6 level of education.
35 You then completed an apprenticeship, you said, as a jockey when you were 14–18 years of age, however, had time off as a result of a serious accident when you were 17 years of age. You described as a result of those injuries having memory problems and difficulties with the brain communicating with your muscles and motor skills. You continued doing some riding/trackwork until you were approximately 24–25 years of age, at which time you commenced your own commercial cleaning company. That business ended approximately 12 months prior to Dr Wauchope’s report. You had, however, in the three months prior to her report, started another cleaning business, and reported that was doing quite well.
36 At the time of her interview with you, you were still emotionally raw. You appeared to be focused on your emotional reactions, shock, distress and disbelief, which she regarded as consistent with the types of emotions of persons who have had an emotional breakdown. In her opinion you would benefit from anti-depressant medication, and consistent with other material before me, you are currently in receipt of that.
37 In her opinion it was imperative you attended upon a psychologist to deal with your particular issues and problems, and she suggested Dr Bilyk would be an appropriate person. You indicated to me you did see him for a number of sessions.
38 Turning to your substance use over the years, you reported you had only ever consumed alcohol and cannabis, consuming alcohol for the first time when you were 16–17 years of age, social drinking until November 2010, at which time that consumption increased to daily intake. You ceased that use in January 2011.
39 You first consumed cannabis when you were 18–19 years of age, socially, possibly once a fortnight, ceasing that when you were approximately 20 years of age.
40 Regarding your emotional health, you described that until late 2010, when you suffered significant financial difficulties in relation to a business arrangement that went bad, you were reasonably happy and easygoing. You described that as a result of these events and the extreme stress and pressure that you felt, you had an emotional breakdown resulting in you being admitted to hospital twice with respect to mental health issues, the first time in October 2010 and the second time in December 2010, both those dates being after your offending in July 2010.
41 You reported in October 2010 taking an overdose of sleeping pills together with alcohol. You were assisted at that time by the CAT team who checked on you every day for a week and referred you to a GP for follow-up. It appeared you did not attend for that follow-up.
42 Regarding your attendance at hospital in December 2010 you reported this was as a result of your alcohol consumption and taking sleeping pills. It seems to also have involved your previous partner whom you suspected of having an affair. Again you were seen by the CAT team, and again you were referred by the team to your general practitioner, however, did not so attend until approximately four months prior to the report of Dr Wauchope.
43 Whilst you reported recently having seen a psychologist, you said you did not find him helpful.
44 Regarding the offending for which you were seeing Dr Wauchope which involved Mr Fincham, you said you were not able to cope with the stress and pressure you were then under. You had lost your children as a result of the situation you had found yourself in with him, and also lost your partner. Mr Fincham having been involved in your dealings with Mr Vryonis.
45 Dr Wauchope remained concerned about your overall emotional functioning and considered that you required ongoing therapy to assist in finding appropriate medication for you.
46 Dr Wauchope conducted formal testing of you. The results obtained were consistent with her observed behaviour of you. You presented as having low self-esteem and viewed yourself in a negative light. You were somewhat pessimistic and overwhelmed at the moment, and you had reported experiencing extreme depression and anxiety.
47 Testing using the depression inventory for measuring the severity of depression revealed that you were classified in the “moderate” range, which suggested that at the time of her report you still had significant symptoms of depression, and that such would likely have been impacting upon your functioning at that time and in January/February 2011. In addition, the testing revealed that you still had significant symptoms of anxiety at the time of her report. Further testing revealed that you did not have significant anger issues, however, Dr Wauchope noted when you did get angry you expressed that anger in aggressive behaviour directed towards other people or objects.
48 Turning to her summary and recommendations, bearing in mind of course that report was prepared for offending very different to that before me, your life had been characterised as significant loss and instability. Regarding the offending for which you were seeing Dr Wauchope, and therefore indirectly related to the offending before me, you described a combination of being “duped” by people you trusted and the subsequent loss of significant amounts of money which had led to extreme stress and anxiety, leading subsequently to a complete emotional breakdown.
49 At the time of the offending for which you were seeing Dr Wauchope, dealt with in October 2011, Dr Wauchope concluded that at the time of your offending in the basis of her report which occurred in January/February 2011, you had become overwhelmed by your emotions, and were not in a mental and emotional state to think logically about your situation. In that state you were not able to pull yourself out of the emotional abyss you were in.
50 In the opinion of Dr Wauchope you would benefit from specialised long-term counselling as well as appropriate prescribed medication.
51 This report provides helpful and relevant background material on your plea.
52 I also received during your plea hearing a letter dated 2 July 2012 from Dr Daresh Dewapura of the Park Hill Medical Centre, Berwick, which confirms you are being treated for depression with Cymbalta capsules, 30 milligram, one daily.
53 You told me during your plea hearing you had paid Mr Vryonis $10,000 cash reducing the amount owing of $207,000. The prosecutor, Ms Swadesir, was going to seek further instructions in relation to that submission. Accepting for the moment that amount was paid by you, nevertheless, the amount involved in your offending which is still outstanding even accepting you paid $10,000 which is not yet clarified. The amount that has not been repaid is significant.
54 No victim impact statement was tendered in this matter. I am advised the victim was offered the opportunity to make a statement but chose not to do so. Any application for compensation will be pursued perhaps at a later stage.
55 You further told me that as at 8 and 13 July 2010, when your offending before me occurred, you were very depressed and stressed about your financial situation as a result of your involvement with Mr Fincham and others. You could not sleep. You were crying a lot. Following this offending, you attempted in October 2010 to end your own life because you could not deal with the situation you were in. What had commenced, you said, as a legitimate business venture became a “complete shemozzle”.
56 You told me you had also seen Mr Ken Dungey in November 2010 on two occasions and had recently seen Dr Michael Bilyk in relation to your temper and emotional issues.
57 I discussed with Ms Swadesir whether or not, based on the report of Dr Wauchope, the principles of Verdins applied when sentencing you. You had some basic understanding of the principles in Verdins which you said you got from the internet, and how such might be relevant to mitigation of sentence, should they be established. You, as I say, were not represented at the hearing by your choice.
58 Ultimately, I consider it is appropriate to mitigate your sentence in light of the material contained in Dr Wauchope’s report. There was, however, still acknowledgment by you in Exhibit 1 that, even accepting your account of the background to your offending, you knew what you were doing was dishonest and wrong and you engaged in a number of specific steps in order to obtain the financial advantage from Mr Vryonis.
59 Turning to your current circumstances, by way of assets. You advised your only asset was a 2008 Ford Falcon that you are paying off at approximately $774 per month. You had recently married in March 2012. You said your wife had four children of her own and also Ricky-Lee was currently living with you. Your daughter was in court during your plea hearing. Your wife was not present but is here today. You have another son who does not live with you. You had recently commenced work with Azure Management, which is a casting agency which provided you with occasional roles as an “extra” in, it seems, television productions. Apart from that, you have no other assets. You were not receiving Centrelink payments and, as I understood it, the rental on your home of approximately $500 per week was being paid for by either your wife’s ex-partner by way of child support in relation to the four children of that relationship together with money received by her from the government by way of child support.
60 You advised you had been declared bankrupt in early 2012 through the County Court of Victoria and were no longer a director of any company nor had any shares in any company. You had only limited funds available to you in your bank account.
61 For completeness, I state regarding the information provided to me by Ms Swadesir regarding your compliance/non-compliance on the Community-Based Order imposed in October 2011, you did not have the ability to adequately address that information. Should I have considered it appropriate that you be placed on a Community Correction Order (which used to be a Community-Based Order) for the offending before me, I would have imposed it whether or not you had been complying or otherwise. I have therefore, in fairness to you, being mindful you represented yourself, disregarded the information placed before me which referred to alleged non-compliance. Ultimately I consider, however, to impose a Community Correction Order for the offending before me would not adequately reflect all relevant sentencing considerations.
62 The prosecution also submitted that to wholly suspend a term of imprisonment would be outside the range of appropriate dispositions. I have also considered this sentencing disposition, and also a partially suspended sentence albeit not raised by you. Again in my opinion, whilst being mindful of the range of imprisonment urged by the prosecution as being appropriate (that is less than 3 years), I do not consider it appropriate to impose either disposition taking into account all relevant sentencing considerations.
63 I am aware that a term of imprisonment must always be the last resort of the court and you have not been in custody before.
64 I accept there is some applicability of Verdins despite a lack of direct link between your mental state and the offending before me.
65 I am conscious you were not represented at your plea hearing by your choice.
66 Ms Swadesir sought an opportunity to obtain instructions from a Crown prosecutor in relation to the appropriate disposition in this matter, which of course was quite appropriate given the material you provided to me during the course of your plea.
67 Ms Swadesir conceded whilst there was a lack of material supporting the commission of the offending before me, being linked to your mental state at the time, some limited application would apply, she said, to your sentence based on the report of Dr Wauchope. This, it seemed to me, was an appropriate concession perhaps generous given the lack of link that I have also arrived at that conclusion that there be some application of Verdins.
68 Ms Swadesir referred to Exhibit 1, p.9 in which you stated in the document you gave to me that when you were committing the offending you knew it was wrong. You also had a relevant prior court appearance in 2004.
69 In support of her submissions, Ms Swadesir provided Sentencing Snapshots for this offence, and cases involving such offending. The assistance obtained from that material, whilst helpful, is limited as statistics do not provide details of the offending behaviour or matters personal to an offender. Comparing cases factually is also difficult.
70 In relation to your rehabilitation prospects, I have some concerns, in particular given your 2004 appearance which involved offences of dishonesty. However, in sentencing I must seek to maximise your chances of rehabilitation as they may be. You have shown yourself to be a hard worker over the years and that gives me some comfort when addressing your rehabilitation prospects.
71 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
72 There is also an element of specific deterrence required when sentencing you as your offending involved two separate transactions, and you also have a prior relevant court appearance for dishonesty.
73 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. This seems to me to be dependent in part upon you continuing taking prescribed medication to reduce your depression/anxiety/stress which could lead to further re-offending, especially if your financial situation deteriorates for any reason.
74 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
75 On Charge 1 you are convicted and sentenced to 6 months imprisonment.
76 On Charge 2 you are convicted and sentenced to 14 months imprisonment.
77 Charge 2 is the base sentence, and I direct that 2 months of the sentence imposed on Charge 1 be served cumulatively upon Charge 2.
78 That results in a total effective sentence of 16 months imprisonment and prior to the hearing today you had spent 5 days in the cells here or more when perhaps you should really have been elsewhere - prior to that I would have directed you serve a non-parole period of 8 months. However, as I indicated at the start of this plea I will reduce that non-parole period by one month. That is 7 months.
79 So, for completeness that sentence now is 16 months imprisonment with a non-parole period of 7 months. So I am giving you a month reduced because you spent 5 days here when you perhaps should not have.
80 I declare, pursuant to s.18(4) Sentencing Act 1991 you have spent 6 days (up to and including 24 July 2012) in custody by way of pre-sentence detention and direct this be entered into the records of the court. Is that right?
81 MS SWADESIR: Yes, that's correct, Your Honour.
82 HER HONOUR: That 6 days comes off 7 seven months.
83 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty following jury verdict, I would have sentenced you to 3 years imprisonment and directed you serve a period of 2 years before being eligible for parole. What that means is if you had pleaded not guilty, if there had been a jury, instead of sentencing you to 16 months with 7 months on the bottom as a non-parole period I would have sentenced you to 3 years with 2 years on the bottom. That would have been a higher sentence if you had pleaded not guilty and a jury had found you guilty. The fact you have pleaded guilty is part of the reason for reducing your sentence.
84 You should be aware that the sentence I have imposed is less than that urged by the prosecution. In other words, the sentence I have imposed is less than the Director thought was appropriate. I have no doubt the Director will look carefully at these sentencing remarks. I think I have been somewhat generous in my interpretation of Verdins but I have erred on the side of caution with Verdins because you were not represented and whilst you had some understanding of Verdins, there might have been further submissions that could have been made. So, in essence, I have taken Verdins into account in your favour. The Director will no doubt look carefully at this sentence. I hope I have explained it satisfactorily so that he understands my reason for sentencing and the sentence I have imposed.
85 The compensation order can wait. There may or may not be an application the future. I did not think there were any other orders you were seeking.
86 MS SWADESIR: No, no other orders sought, Your Honour. Might I raise one matter just as you were reading your remarks, you indicated that the work hours on the subsequent matter were to be completed within six weeks. I'm sure it's a slip of the tongue - six months.
87 HER HONOUR: That was the Community-based Order?
88 MS SWADESIR: That's right.
89 HER HONOUR: Anyway, I have decided - so you can make this quite clear - that I know you had said there were suggestions of non-compliance but he was not represented and frankly, in fairness to Mr Patton, I have disregarded that completely and the short answer is if I thought a Community Correction Order was appropriate I would have ordered it anyway.
90 MS SWADESIR: Yes, Your Honour.
91 HER HONOUR: But I will change that where apparently I said six weeks. It is 6 months is it or something? (change to para 26 from 6 weeks to 6 months).
92 MS SWADESIR: That's right, Your Honour.
93 HER HONOUR: I will make a note to change it. Mr Patton, is there anything you do not understand about any of that - would you like me to explain? I am not here to negotiate the sentence. I have imposed the sentence, 16 months and non-parole period of 7 months. The 6 days you have spent comes off that 7
94 months. Is there anything further you wanted clarification about?
95 PRISONER: No.
96 (Prisoner removed.)
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