Director of Public Prosecutions v Tanuvasa
[2024] VCC 1809
•12 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 21-00720
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAUTELE TANUVASA |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 November 2021 | |
DATE OF SENTENCE: | 12 November 2021 | |
CASE MAY BE CITED AS: | DPP v Tanuvasa | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1809 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – aggravated burglary – recklessly cause injury – COVID-19 pandemic – Bugmy principles – Verdins principles – sentencing principles
Legislation Cited: Sentencing Act 1991 (Vic) ss 5, 6AAA, 40(1).
Cases Cited:DPP v Meyers [2014] VSCA 314; Hogarth v The Queen [2012] VSCA 302; Worboyes v The Queen [2021] VSCA 169; Rossi v The Queen [2021] VSCA 296; R v Verdins & Ors [2007] VSCA 102; Bugmy v R [2013] HCA 37; Guden v The Queen [2010] VSCA 196; Boulton v The Queen [2014] VSCA 342.
Sentence: Total effective sentence of 6 months’ imprisonment and an 18 month Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Johnston | The Office of Public Prosecutions |
| For the Accused | Mr J. Lavery | Ann Valos Criminal Lawyers |
HER HONOUR:
1Tautele Tanuvasa, you have pleaded guilty to an indictment containing the following charges: charge 1, aggravated burglary, which carries a maximum sentence of 25 years' imprisonment; and charge 2, recklessly cause injury, which carries a maximum sentence of five years' imprisonment.
Circumstances of the offending
2The full circumstances of your offending are set out in the summary of prosecution opening dated 7 October 2021, marked as Exhibit A on the plea.
3The primary victim in this matter, Morton MacDonald, was not personally known to you. He had separated from his wife in early 2020 and resided at an address in Melton with his two daughters, both young adults.
4On 11 September 2020, at 3.50 pm, you attended his Melton residence. Both his daughters were also home. One of his daughters noticed you walking up the driveway. You knocked on the door and Mr MacDonald, accompanied by his 18-year-old daughter, walked to the front door and opened it. As soon as he did this you barged into the house and closed the door behind you. Mr MacDonald had no idea who you were and initially told you that you must have had the wrong house. You asked him, 'Are you Morton?' He said, 'Yes, what's this about?' He then told his 24-year-old daughter to call the police and asked you to leave.
5
At that point you pulled your jumper hood over your head and charged at
Mr MacDonald. He walked backwards with his hands up. You punched him three times to the face, once on the nose, twice on the sides of his face. He held his hands up near his face, trying to protect himself. He fell to the ground, you kicked and stomped on him. You then ran out of the front door.
6Mr MacDonald immediately got up and ran after you. He retrieved the keys to his car and drove after you. He saw you get into a silver Toyota sedan and pursued you for a while, while on the phone to 000. He soon lost sight of you and returned home. Attending police were at his residence when he returned. Mr MacDonald suffered bleeding from his nose.
Arrest and procedural history
7
Police later obtained CCTV footage showing your vehicle being pursued by
Mr MacDonald’s vehicle shortly after the incident. Further enquires confirmed that your car had been involved in a collision on 10 October 2020 and police spoke to you as the driver of the vehicle that day.
8On 16 October 2020 you were identified by photo board as the offender.
9On 12 January 2021 police attended at your home in Maribyrnong and arrested you. You were then conveyed to the Sunshine police station. You participated in a record of interview and initially denied being involved in the offending. During the interview you went on to admit your involvement and told police that other people had told you to go to the address. You said that you were told that the person there was 'hurting someone; his ex-partner or something', and you admitted to receiving some money and that you were going to get more. You also admitted to the police that you knew what you did was wrong from the start.
Nature and gravity of the offending
10I will now address, Mr Tanuvasa, the nature and gravity of your offending.
11In submissions counsel understandably focused on the principal charge of aggravated burglary. The prosecution characterised it as falling within the medium range for offences of this kind. Your counsel, Mr Lavery, disputed this characterisation and submitted that while it was not at the lowest level it was far from being the most serious example of this offending. Mr Lavery referred to the Court of Appeal case in DPP v Meyers[1] for its applicable and relevant considerations. In your case the following can be found by reference to those criteria:
[1][2014] VSCA 314.
(a)
First, I am satisfied that your intention at entry was to assault
Mr MacDonald, as detailed in the charge.
(b) In terms of your mode of entry it was submitted that it involved a degree of trickery or bluff. You knocked at the door, it was opened, and you pushed your way in. I accept that this can be contrasted to a case involving a forced door or broken window, or a struggle at the point of entry, which would conceivably make the intrusion even more confronting for the occupant.
(c) Importantly, you were not armed or carrying a weapon and you were not in company with anybody else.
(d) The entry occurred at approximately 3.50pm as opposed to in the early hours of the morning, which would be likely to cause greater alarm.
(e) You knew that Mr MacDonald was inside the house although it was not your belief, and there is no evidence to suggest, that you knew that there would be other people present.
(f) Finally, you were not known to Mr MacDonald and were therefore not someone of whom he was particularly frightened.
12Of course, Mr Tanuvasa, it is a concerning feature that you were paid and/or offered the payment of money to commit this offence. This does suggest a degree of planning. The prosecutor, Mr Johnston, submitted, and I accept, that this was not opportunistic, nor was it a spontaneous reaction to a provocative event and your moral culpability is high. However, I also accept that there is nothing to suggest that the offending had been significantly or extensively planned or that your intention to commit the offence had been long-standing. Your decision to commit the offence for the payment of money was fuelled by your drug addiction at the time and your desperate circumstances. You were financially struggling, you were essentially homeless and you had been consuming methamphetamine in the days leading up to the offence. It was not submitted that your drug use mitigated the offending but it did influence your decision making.
13Reference was made to the cases of Meyers[2] and Hogarth v The Queen[3] While such cases are of general assistance, and I have considered them, I regard the offending in both cases to be objectively more serious than in your case.
[2] Ibid.
[3] [2012] VSCA 302.
14While I regard this as a serious intrusion into the home of Mr MacDonald, where he and his daughters were entitled to feel safe, it does lack a number of aggravating features that are often present in such cases. Also, I accept that the offending occurred over a short duration and that you effectively discontinued the offending of your own volition.
15In terms of the recklessly cause injury charge I take into account in assessing its gravity that it occurred within Mr MacDonald’s own home, there were several acts of violence on your part and that the injury was a bleeding nose.
Victim Impact
16I have not received a victim impact statement but I do accept that Mr MacDonald and his daughters would have been impacted by the offending. In his police statement Mr MacDonald refers to not feeling safe in his home and I take this into account in sentencing you.
Plea of guilty and remorse
17You entered a plea of guilty on 31 May 2021. No witnesses have been cross-examined in this case. They have been spared the distress and ordeal of further delays in this matter and of being cross-examined or of having to give evidence in front a jury. This is significant and it counts in your favour.
18Your plea is particularly valuable in circumstances where there is a large backlog of cases in the Court and I recognise the utilitarian benefit of that. As the Court of Appeal has stated in Worboyes[4], which was referred to by your counsel, a plea of guilty during the pandemic should result in a 'perceptible amelioration of sentence'.[5] More recently the Court of Appeal has stated that 'at the present time jury trials are only now starting to resume, after having been suspended for many months. It is no exaggeration to say that backlogs in criminal lists are enormous and will take years to clear'.[6]
[4] Worboyes v The Queen [2021] VSCA 169.
[5] Ibid [39].
[6] Rossi v The Queen [2021] VSCA 296 at [13].
19
In the unique circumstances presented by the pandemic, the utilitarian benefits to the system of justice flowing from your plea of guilty will be given substantial weight. I also accept, as was submitted on your behalf, that your plea of guilty indicates an acceptance of responsibility and evidences remorse. You also demonstrated remorse in your record of interview; at one stage causing the interviewing officer to observe that 'you’ve shown remorse for what happened'. You co-operated and provided police with details of your offending that otherwise would have been unknown; such as the payment, or promised payment, of money. You impressed Dr Lester Walton as being 'straightforwardly remorseful' and you told him 'it is the most stupid thing I've done. I wouldn't like this to happen to my family, it’s not right'. Ms Alison Mynard was also of the opinion that you were remorseful and that you seek to understand your own behaviour and psychological conditions. I take into account in sentencing you,
Mr Tanuvasa, your remorse and your clear acceptance of responsibility.
Psychiatric Evidence & relevant principles
20I received two medical reports that canvass in detail your history of drug use and your poor mental health.
21The first report is a psychiatric assessment from Dr Lester Walton of 24 May 2021 (Exhibit 3). In that report he excludes diagnoses of schizophrenia and bipolar disorder and confirms a diagnosis of drug induced psychosis. You have experienced three episodes of amphetamine induced psychosis. He also had access to your medical reports, which confirm your last admission to a psychiatric hospital was between 10 and 17 March 2020. Mr Walton considered that you should be encouraged to continue with drug avoidance and to participate in appropriate rehabilitation, which he considered may be in your best interests and ultimately the community's. To the extent that you remain depressed he opined that you would likely endure any particular period of imprisonment as more onerous than others.
22
Ms Alison Mynard provided a psychological report of 5 November 2021 (Exhibit 2). She undertook a number of tests and assessments. She also noted that in the past you had experienced quite severe psychotic episodes and you had previously been hospitalised. She formally diagnosed you with the following condition: generalised anxiety disorder, persistent depressive disorder, persistent depressive disorder, post-traumatic stress disorder, drug induced psychosis and stimulant use disorder. Similar to Dr Walton, she also offered the opinion that your mental health and physical health would deteriorate if you were imprisoned due to your complex presentation including your anxiety, psychosis,
post-traumatic stress disorder and depression.
23Ms Mynard outlined in detail your personal history, which has been marred by abuse, violence, trauma and instability. As a child you were exposed to significant violence and you were also sexually abused by a relative for, it seems, over the course of approximately one week when you were six or seven years of age. Ms Mynard states that you have been delayed in your emotional development due to the traumatic experiences you have been exposed to. You have struggled emotionally, you have internalised many things and you have used substances to self soothe and regulate yourself. As a child your sense of worth was severely damaged and eroded. You felt ostracised from your birth family, vulnerable and dismissed from being sexually abused and modelled violence within your extended family. As an adult you learnt to be stronger and you were accepted within the drug using peer group with a feeling of invincibility and confidence as an antidote to these weaknesses.
24Ms Mynard makes a number of recommendations aimed at improving your mental health, addressing your drug addiction and, in turn, reducing the risk of re-offending.
25Based on the medical opinions I accept, and it was not in dispute between the parties, that the 5th limb of the Verdins[7] principles is enlivened and that your diagnosed medical conditions may mean that a prison sentence will weigh more heavily on you than it would on a person in normal health.
[7] R v Verdins & Ors [2007] VSCA 102.
26The prosecution accept that your background and your entrenched exposure to violent behaviours and sexual abuse are serious and relevant to penalty. However, they did not accept that it reached the same level of profound childhood deprivation as discussed by the High Court in Bugmy.[8] . I am inclined to accept that your background, characterised as it was by childhood sexual abuse, separation and rejection from your birth family and exposure to sustained violence perpetrated by many of the men in your family towards the women and children, does attract the Bugmy principles. Your background has left its mark on you. It has delayed your emotional development and it goes some way to explaining your poor mental health and recourse to drug use which was the impetus for this offending. You are therefore entitled to some moderation in the sentence I impose having regard to these principles.
[8] Bugmy v R [2013] HCA 37.
Conditions and circumstances in custody
27Mr Lavery, on your behalf, conceded that the offending called for the imposition of an immediate term of imprisonment, but he submitted that a combination sentence should be imposed. As for any likely term of imprisonment to be served Mr Lavery submitted that any such period would be more onerous because of the effect of the COVID-19 pandemic and the greater restrictions and deprivations imposed on prisoners presently. Upon being received into custody you will serve 14 days in quarantine. Visits and programs remain suspended. There is also the additional anxiety of contracting the virus in an environment where you cannot isolate, experienced by many prisoners. I accept that these conditions will make your term of imprisonment more burdensome and that this is a factor that gives rise to reduced sentence.
Personal circumstances
28I have already briefly touched upon some of your personal circumstances. You were 36 years of age at the time of the offending, born in January 1985.
29You were born in Samoa and grew up in New Zealand with your maternal grandmother and cousins. Initially your birth parents did not have their papers to live in New Zealand. When they did settle there you were told that your parents did not want you back.
30You lived with your grandmother, who was like a mother to you, and your many cousins. You regard yourself as having 14 siblings. You have one biological brother and sister but you struggle to identify with them, given your separation and disconnection from your birth family. Both your parents are now deceased.
31You were exposed, as I have already indicated, to domestic violence and abuse as a child. You continue to have vivid memories and you continue to feel shame. You reported to Ms Mynard that you remain anxious about talking some of these matters through although you know that you need to in order to overcome these issues.
32You moved to Australia with your grandmother and extended family at the age of 10, originally living in Brisbane. You attended school but your grades were never good and you describe yourself as being a distractable child. You were on a behaviour management plan. You completed your Year 12 in Queensland and you have worked in the areas of labouring, construction and warehousing. You last worked in 2021 filling gas bottles. You are currently on Centrelink and have had many periods of unemployment.
33You commenced using cannabis at 17 to 18 years of age. You have used over the years, with the last occasion being in early 2021. You started using methylamphetamine around 10 years ago, when your grandmother died. This was a significant loss for you and you struggled with your grief.
34
You were in a long term relationship with the mother of your child for some 16 years, having separated several years ago now. You raised her young daughter together and you had five of your own sons, now aged between 7 and 16 years. As noted earlier, they live in Queensland. In the past you struggled with fatherhood, having had no real guidance or support from a strong male role model. Your relationship deteriorated, particularly because of drug use and your developing paranoia, jealousy and aggression. Presently you have had some very limited and sporadic contact with your children, but you are motivated to
re-establish and build upon your relationship with them.
35You have been in another relationship for the past four years though you do not live together. After a period of instability and homelessness for several months you have now been residing with your sister and her family. You apparently help her around the house and support your nephews with their sporting activities.
36As I have already noted, Mr Tanuvasa, your mental health has declined at times and at the beginning of 2020 you tried to take your life. You walked into the freeway and stopped all the trucks. Police attended, you were taken by ambulance and admitted to hospital.
37Several months ago you had a throat infection which caused inflammation. You spent a week in the ICU in an induced coma and you were given a poor prognosis. You had an operation and fortunately you have recovered well. You were also recently diagnosed with diabetes which is managed by medication.
Prospects of rehabilitation
38On your behalf Mr Lavery submitted that you are now at a point in your life where you recognise that you need to make real and sustained change and you are ready to do this. You have developed insight and you are committed to change.
39As for your prospects of rehabilitation, Mr Tanuvasa, I regard them as reasonable though caution is needed. Your prospects are largely dependent on you maintaining your resolution to remain drug free and to commit yourself to treatment.
40
You have a relevant criminal history. You appeared before the courts on
10 January 2013 for one charge of criminal damage and you were placed on a without conviction undertaking to be of good behaviour and to attend a men’s behaviour change program. On 9 May 2019 you were sentenced for one charge of intentionally cause injury and one charge of threat to kill and you were convicted and sentenced to a community corrections order for nine months with supervision and treatment conditions only. This matter related to offending against your former partner in late 2018 when you were affected by ice.
41The current offending did not occur during the operational period of the order, though I was told that you have been breached for non-compliance and there are breach proceedings listed in January of 2022. During this order you were struggling. You had re-commenced drug use, apparently self-reporting your relapse to officers in January 2020. Your mental health had declined significantly and it is during this time, that is in March of 2020, that you were admitted into hospital as a psychiatric patient for approximately one week. Given your poor choices and chaotic decline at the time, very little was apparently done or implemented on the order, including the proposed men's behavioural change program. Also, I note that this order did not have a treatment and rehabilitation order drug condition attached to it.
42
At the further plea hearing today I was also been provided with a copy of your interstate criminal history, which contains a number of matters. Of particular relevance is the appearance on 18 August 2005 for assault occasioning bodily harm where you received a community service order of 120 hours. Also, on
12 August 2015 you were before the courts for assaults occasioning bodily harm and the following order is noted; no conviction recorded - probation, period of two years. I was told that this offending occurred within a domestic context. Your history of violence is a concern and impacts on the assessment of the weight to be given in particular to specific deterrence, and also your prospects of rehabilitation. It is also consistent with the opinions offered that you are of high risk presently and require intensive supports to progress your rehabilitation.
43Currently your circumstances are far more stable. You have the support of your sister. You are remorseful, as I have already noted, for your offending, and you have expressed insight and currently present as motivated. After this offending you were drug free for a substantial period of time, though you did experience a recent relapse. Your recent hospitalisation for your throat infection where you were placed in an induced coma has also served as a wake-up call.
44It was also submitted on your behalf that you have been concerned and worried about your immigration status and that this is an ongoing concern for you. As a New Zealand citizen you are concerned that your residence may be cancelled as a result of your criminal offending and the imposition of a custodial sentence and you are worried about the prospect of being permanently separated from your children. Although the sentence I propose to impose is not likely to trigger any mandatory cancellation under the provisions of the Migration Act 1958, or the principles discussed in such cases as Guden v The Queen[9], I accept that you are not a citizen and that this is a concern that has been weighing on you.
[9] [2010] VSCA 196.
Sentencing submissions
45In relation to sentencing submissions it was conceded that your offending warrants a term of immediate imprisonment. The dispute between the parties related to the structure of any such sentence. The prosecution submit that having regard to all of the circumstances and applicable sentencing principles a term of imprisonment with a non-parole period is the only appropriate sentencing disposition. On your behalf it was submitted that a combination sentence could be imposed, which would balance the competing considerations in this case and would be best tailored to specifically address your underlying mental health and drug abuse issues.
Sentencing principles
46The sentencing principles of general and specific deterrence, denunciation and community protection, along with rehabilitation, have a role to play in your case.
47I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your case. I have also had regard to the current sentencing practices for the offences to which you have pleaded guilty and, in particular, for the aggravated burglary charge.
48In determining the sentence to be imposed in this case I must also, and I do, have regard to the principles of proportionality, totality and parsimony.
49I have taken into account all the material before me and the submissions of the parties, including their written submissions.
50I had you assessed for a community corrections order and have received an assessment outcome report and a Forensicare report of 10 November 2021. The outcome report assesses you as suitable for the order with recommendations. The Forensicare report also recommends a mental health treatment condition.
51
I regard the offending, Mr Tanuvasa, in your case as serious and I do consider that it requires an immediate term of imprisonment. Nothing is as punitive as prison. A term of imprisonment will serve to denounce your behaviour and deter others. I consider that it will also have a significant deterrent impact on you, as it will represent your first custodial sentence to be served under more onerous conditions, as referred to. However, all of the relevant sentencing principles can be reflected and accommodated by way of a combination sentence. On the material before me I consider that such a sentence will best facilitate your rehabilitation and in turn enhance community protection.
Ms Mynard, as I have already noted, states that your mental health issues are amenable and receptive to treatment and that such interventions will work to increase your insight and reduce the risk of re-offending.
52As the Court of Appeal stated in Boulton's case, even in cases of relatively serious offences, such as aggravated burglary, the sentencing court may find that a term of imprisonment coupled with a properly conditioned community corrections order is capable of satisfying the requirements of proportionality, parsimony and just punishment while affording the best prospects of rehabilitation.[10] Such an order is also intrinsically punitive.
[10] Boulton v The Queen [2014] VSCA 342.
Sentence
53Mr Tanuvasa, you have listened to all of this and now I have arrived at the actual sentence.
54Taking all factors into consideration and assessing all of the competing sentencing principles and considerations and the matters put on your behalf and by the prosecution, I propose and I will sentence you as follows -
55On both charges you are convicted.
56On the indictable Charge 1 of aggravated burglary you are convicted and sentenced to a term of imprisonment of six months and, in addition, a community corrections order of 18 months.
57On Charge 2 of recklessly cause injury you are sentenced to a community corrections order of 18 months. Pursuant to s40(1) of the Sentencing Act I make one community corrections order in respect of each of the offences that I am sentencing you for today.
58You will be placed on a community corrections order for a period of 18 months upon your release from custody. You will need to report to the Melton Correctional Services within two working days after your release.
59Now, Mr Tanuvasa, I am going to explain to you the conditions of this order. The mandatory conditions of the order include that you must not commit any offences during the period of the order - that is, 18 months from the day of its commencement - for which you could be imprisoned. You must notify a Corrections officer of any change of address or employment within two clear working days after the change. You must not leave Victoria without first getting permission to do so from a Corrections officer and you must obey all reasonable directions of a Corrections officer.
60Additionally, you must be under the supervision of a Community Corrections officer for the period of the order. You must undergo assessment and treatment including testing for drug abuse or dependency. You must undergo assessment and treatment for your mental health as directed. You must engage in programs to reduce your risk of re-offending as directed. You must also undertake 100 hours of community work and I determine or declare that all of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
61I am also - I'll just pause here. Gentlemen, I'm also proposing to impose a judicial - at least to commence with a judicial monitoring condition. I'm just bearing in mind that order will take place approximately six months after release. I'm proposing a return date of 6 June of next year. Is there any difficulty with that? It seems to me on a reading of the Act that the condition can clearly be imposed. What I'm intending is that it be about a month or so after release. Okay, thank you.
62
Mr Tanuvasa I’ll continue addressing you on the conditions as its important that you understand. I am attaching a condition that you attend before me, so that you attend at court for judicial monitoring, and that you first attend before me on 6 June 2022 at 9 am and if and as otherwise directed. Okay? So that is intended to be the first date. So,
Mr Tanuvasa, do you understand the conditions of the order?
63ACCUSED: Yes.
64You must make sure that you comply with the order. Mr Tanuvasa, I am also obliged to tell you what will occur, or the consequences of breaching such an order. If you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on it by Corrections and the matter will be brought back before me. You will then be dealt with for breaching the order. You will be exposed to the possibility that you will be re-sentenced for the original offences and you may face a further term of imprisonment. Mr Tanuvasa, do you understand the consequences of breaching the order?
65And finally - understanding its requirements, its conditions and the consequences on breach, do you consent to the making of the order?
66ACCUSED: Yes.
67
I declare pursuant to s6AAA that but for your plea of guilty I would have sentenced you to a total effective sentence of 22 months' imprisonment with a non-parole period of 12 months. Was there a disposal order in this matter,
Mr Johnston?
68MR JOHNSTON: No, Your Honour.
69HER HONOUR: Okay. We'll have that order printed and have Mr Tanuvasa sign it. Once that's done, Mr Tanuvasa, you will be taken by the officers that are beside you today into custody and after you have served the period that I have imposed upon you you'll be released, as you heard, on a community corrections order. You'll attend back before me on that date in June - 6 June - where a Corrections officer will also be present and I can be updated and advised as to your progress on the order. Do you understand?
70ACCUSED: Yeah. Um, can I say something?
71HER HONOUR: Mr Lavery? I'm happy for Mr Tanuvasa to.
72MR LAVERY: Yes, Your Honour.
73ACCUSED: Ah, I'm sorry, Your Honour, for all the mistakes I've made in my life. I thank you for giving me an opportunity to change my life, and I will change my life, and this is the last time you'll see me. Thanks.
74HER HONOUR: All right, Mr Tanuvasa. I hope that you maintain that resolve. I will see you in June, okay? All right, unless there's anything further?
75HER HONOUR: Thank you for your assistance - thank you both for your assistance in this matter.
76MR JOHNSTON: As Your Honour pleases.
77HER HONOUR: We'll adjourn the court.
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