Director of Public Prosecutions v Walker
[2024] VCC 374
•25 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01020
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANNY WALKER |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 March 2024 |
| DATE OF SENTENCE: | 25 March 2024 |
| CASE MAY BE CITED AS: | DPP v Walker |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 374 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Charges of kidnapping, common law assault, contravention of a family violence intervention order and summary offences – serious family violence offending – acceptance of sentence indication – no criminal history at time of offending – deportation – uncertain prospects of rehabilitation.
Legislation Cited: s 5(1), 16(3C) Sentencing Act 1991; s 198B Criminal Procedure Act 2009.
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Loftus v The Queen [2019] VSCA 24.
Sentence: Total effective sentence of 61 months’ imprisonment. Non-parole period of 40 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms H. Baxter | Office of Public Prosecutions |
| For the Offender | Ms H. Anderson | Hofman Carroll Criminal Law |
HIS HONOUR:
Introduction
1Mr Walker, I propose to sentence you to a total effective sentence of 61 months’ imprisonment. I will set a non-parole period of 40 months’ imprisonment. I will declare your 369 days of pre-sentence detention as time served under my sentences.
2On 21 December 2023, I gave an indication of the total effective sentence I would impose if you pleaded guilty to certain offences, Subsequently, you accepted my indication. You have now pleaded guilty to a charge of kidnapping, two charges of common law assault, a charge of contravening a family violence intervention order and four summary offences.
3Although my indication was the total maximum effective sentence, a re-examination of the material does not cause me to lower the sentence.
4The circumstances of your offending are set out in the ‘summary of prosecution opening for plea’ which is Exhibit A.
Circumstances
5On 13 October 2021 an interim family violence intervention order was made. Among other things, it excluded you from the family home and you lived with your daughter.
6On 20 December 2021 a final family violence intervention order was made. Its duration was three years. It contained only two conditions, including a condition prohibiting you from committing family violence against your wife. The concept of ‘family violence’ was broadly defined in the condition. However, the order lacked the specificity of the interim order. It did not prevent you from returning to the home which you did the next day. As events proved, that was a mistake. You and your wife occupied different bedrooms.
7On 31 December 2021 you and your wife attended a New Year's Eve party, hosted by your cousin. Towards the end of the party, you and your wife argued. You left the party and she remained. Your wife stayed with your cousin and his girlfriend, spending the night of 1 January with them. On 2 January 2022, you collected your wife from your cousin's home.
Incident one
8In the evening of 2 January, you and your wife drank alcohol and had a barbecue meal. You became upset with your wife because she did not eat all of her steak.
9At about 11.00 pm, your wife went to bed. You entered her bedroom and called her a 'bitch' and a 'lazy cunt.'
10You then returned to your bedroom and turned up the music. Your wife was unable to sleep and wanted to go outside the house to smoke a cigarette. As she approached the back door, you dragged her out of the house saying, 'If you're going to smoke you can stay the fuck outside, bitch.' These circumstances constitute the summary offences of unlawful assault and contravening the family violence intervention order. Not unnaturally, your wife phone Triple 0 requesting police assistance. About six minutes later you phone Triple 0.
11Within a short space of time, the police arrived at the home and had arrested you. You were taken to the Cranbourne police station and interviewed. A complaint and warrant was issued and you were arrested. You were bailed with the conditions of bail returning to the more specific conditions of a family violence intervention order, including prohibiting you from going to or remaining within 200 metres of the home.
Incident two
12You left the police station at 2.06 am on 3 January and walked home a distance of about 1.8 kilometres. Notwithstanding the conditions of your bail, you went to the home, entered it and then your wife's bedroom where she was sleeping. You dragged her out of bed by the hair saying, 'You sent me to fucking gaol and now you're going to pay for it.' You then removed the charger from her mobile phone saying, 'There's no way you're going to call anyone now.'
13Then you took her to the garage and said, 'Get in the car, bitch, you're going to pay for what you've done.' She yelled at you to stop and leave her alone. You did not and forced her into the car through the driver's door and then onto the front passenger seat. You told her to put on her seatbelt, which she did, you struck her right arm saying, 'Feels good, doesn't it? Feels good.' You drove from the garage, you then struck her to her arms and legs. These blows caused bruising. You told her you were taking her somewhere where no-one would ever find her. She then pulled the handbrake which caused the car to skid. You removed her hand from the handbrake calling her a 'stupid fucking bitch.'
14After you resumed driving, she pulled on the handbrake again, undid her seat belt and threw herself from the moving car. She ran to the nearest home, its inhabitants, a male and female, heard the screeching brakes and your wife's screams for help. The male answered the front door to your wife who asked him to call for help saying you were trying to kill her. He called Triple 0. You approached the house and told the male everything was okay and your wife was just drunk. You tried to grab your wife. The male told you he had called the police and that you were to leave.
15Both the police and an ambulance attended. Your wife was taken to hospital, she was found to have multiple bruises and haematomas to her to her forehead, significant bruising to her right upper arm and swelling to her right forearm.
16These circumstances constitute Charge 1, a charge of kidnapping; Charge 2, a charge of common law assault, and Charge 3, a charge of contravening the family violence intervention order intending to cause harm or fear for safety and the summary Charge 13, a charge of committing an indictable offence while on bail.
17You were arrested on Native Reserve in Cranbourne East. At 4.58 am your breath was analysed, yielding a reading of 0.102 per cent. Your driving and this analysis constitutes summary Charge 17, a charge of driving a motor vehicle with more than the prescribed concentration of alcohol. At the time you held a full driver licence. You were interviewed by police members and made certain admissions.
Criminal history
18At the time of this offending you had no criminal history. You must receive credit for your good character until then. Relevant to sentencing purposes you appeared in a criminal court twice, in April and June 2023.
19On 27 April 2023 you were sentenced to a community correction order of six months' duration for 12 charges including five relating to contravening the conditions of a family violence intervention order and the rest being bail offences.
20On 20 June 2023 you were fined for failing to comply with the conditions of the community correction order. The order was cancelled and you were re-sentenced to 15 days' imprisonment. There was also fresh offending for which you were sentenced to 45 days' imprisonment.
21The circumstances of the offending are set out in two police statements. Relevantly, they relate to incidents on 12 March 2023, 28 April 2023, and a series of text messages between 13 September 2022 and 8 April 2023. The event on 28 April 2023 is particularly concerning as you had been sentenced to a community correction order for family violence offences the day before, having spent 17 days in custody. On 28 April 2023 you were determined to see your wife at her home but were prevented largely through the brave efforts of a neighbour.
22More broadly, on 3 January 2022, you were arrested for the offences before me and remanded. You were bailed on 24 March 2022. Until June 2022 your bail included a CISP condition. On 27 June 2023 you were sentenced to short periods of imprisonment. More significantly, the bail granted to you for the present charges was revoked. You have remained in custody since then.
Victim impact statement
23On 18 October 2023 your wife made an impact statement. Being dragged from her bed having been asleep was terrifying for she can no longer understand why. Then in the car later, having been told she would never be found again, she knew she had to do something or she would die.
24Since those events she is constantly sick, she has lost weight, dropping from 70 kilograms to 45 to 47 kilograms. She believes she has aged 'something terrible.' She will not drive. She avoids social situations and spends most of her time locked in her unit.
25She fears you will break into her home and kill her. She is even afraid to take a shower because she would not hear you breaking in.
26She is not working and relies on others for support. She receives help from what she calls a 'mental health institution.' She takes antidepressant and anti-anxiety medicines. She is pessimistic about her ability to recover her mental health. She sees little hope for her future.
27She has little contact with her children and believes they blame her and that they hate being in the middle between you and her. She has been cut off from her in-laws which she finds devastating.
28She takes sleeping tablets and sleeps fully clothed. She has lost her family and finds solace in her dog, Stella.
Personal
29You are now 53. You were born in New Zealand and are Māori. You emigrated to this country in 1999 with your wife and two children. You are in this country on a visa and are not an Australian citizen.
30You were the second youngest of four children, three males and a female. One of your siblings is an older half-brother. Two of your brothers have died. Your parents drank alcohol excessively and argued. The arguments usually resulted in your father assaulting your mother, much of which you witnessed. You and your brothers were punished through the use of a cord from an electric kettle.
31Your parents separated when you were about five. Your mother re-partnered when you were about seven. Your father died when you were ten. Your stepfather was controlling and uninterested in you and your siblings. He died ten years ago. You left home at 16 and lived with an aunt.
32Your secondary education ended after you completed the equivalent on Year 8. You were expelled at the start of Year 9 after assaulting another student. You struggled with reading. You received high marks for Māori studies and mathematics but low marks for everything else. You had difficult relations with your teachers, were bullied and had no friends.
33After unskilled jobs, by 24 you had completed an apprenticeship as a chef. You have since worked consistently in the food industry except when you are in custody.
34Your marriage was your only significant relationship. At the time of separation, you had been married for 33 years. You have two children, a son aged 28 and a daughter aged 31. You have a ten-year-old grand-daughter.
35You started drinking alcohol at 8. You were part of a family which drank alcohol excessively. In 2019, your drinking increased because of your reaction to the death of a brother to the extent of drinking a bottle of whisky daily.
36You were young when you started using cannabis. Following your father's death, you started with methylamphetamine, using .2 of a gram daily. This continued until your remand in custody. You have resolved not to use methylamphetamine again having learnt of the 'bad chemicals' in the drug. You have insight into the effect of substances upon you. You told the psychologist, Ms Kennedy, 'Alcohol makes me angry when things were going wrong and ice would escalate my anger.' However, you do not think drug and alcohol rehabilitation is needed because you have been drug-free in prison and have learnt much while there.
37You explain your offending through an attempt to help you wife with her addiction and your substance abuse. You have a vague memory of what actually happened. You are remorseful.
38In prison you have undertaken 12 units of an ATLAS program. You have completed drug and alcohol programs. You have attended meetings of Alcoholics Anonymous and Narcotics Anonymous, whenever they are available. You are now a peer listener with other prisoners. You have embraced religion and regularly attend church services.
39You suffer from sleep apnoea. Outside of prison, you used a CPAP machine which is unavailable in prison. Without it, your sleep is broken leaving you lacking concentration with mood swings at times.
40While on bail you attended a men's behaviour change program over 20 weeks. This occurred while you were subject to a CISP condition. You engaged with the case management, drug and alcohol and mental health aspects of that condition.
41While in custody you have worked in various areas including the kitchen and the library. You were actively engaged in inducting and supporting persons in custody. You have also engaged, or looking to engage, in educational programs which may improve your employability on release. You make soft toys for children through the prison fellowship.
42During 2022 your former home was sold and the proceeds were divided between you and your wife. You say your marriage has broken down and will seek a divorce after you are released.
43You maintain contact with your children and grandchild, mainly by phone, with occasional in-person visits. Both your daughter and your ten-year-old granddaughter have written letters supporting you.
44Apart from the loss of liberty, prison is a difficult environment. You saw the stabbing of another prisoner and lost a friend to suicide.
Psychologist
45Christine Kennedy is a provisional psychologist. On 26 February 2024 she interviewed you at the request of your solicitors.[1] It appears her work is supervised by David Bell, a forensic psychologist. Much of your personal information is derived from her report.
[1]Report dated 11 March 2024.
46Diagnostically, Ms Kennedy identified you as suffering from alcohol and cannabis use disorders, both of which are in early remission because you are in prison. There was no mention of methylamphetamine.
47Ms Kennedy noted your energy. On release you intend to live with your daughter, planning to concentrate on religion and re-building your life. She suggested you may benefit from engaging with a group like the Victorian Māori Wardens in order to connect with your passion for peer listening and your Māori heritage.
Discussion
Purposes
48Section 5(1) of the Sentencing Act 1991 (‘the Sentencing Act’) sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or of similar character;
(c) to establish conditions with which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and
(e) to protect the community from the offender.
49Each of those sentencing purposes is relevant to your sentencing.
Maximum penalties
50The maximum penalties for these offences are:
(a) kidnapping, 25 years' imprisonment;
(b) common law assault, five years' imprisonment;
(c) contravention of a family violence intervention order and intending to cause harm or fear for safety, five years' imprisonment;
(d) committing an indictable offence on bail, a fine of 30 penalty units or three months' imprisonment;
(e) contravention of a family violence intervention order, a fine of 240 penalty units or two years' imprisonment;
(f) unlawful assault, three months' imprisonment; and
(g) driving while exceeding the prescribed concentration of alcohol, a fine of 20 penalty units.
51In terms of the maximum penalty, the offence of kidnapping is by far the most serious of the offences you committed. In reality, kidnapping your wife was part of a very serious episode of family violence. It involved the contravention of the family violence intervention order, the assault upon her, depriving her of a means of communication, kidnapping her with further violence and the threat against her life. It ended because of her desperate escape from the motor vehicle through fear of being killed.
52It is stating the obvious that this behaviour cannot be tolerated. I must do my best to prevent its re-occurrence within the proper bounds of sentencing. General deterrence, specific deterrence, protecting the community from you and denunciation, must be important sentencing considerations.
Nature and gravity of the offending
53Family violence takes many forms. The events of 2 and 3 January amount to a very serious instance of family violence. They started at about 11.00 pm on the 2nd and finish about 3.44 am on the 3rd. This is not a short period, although the time directly involving your wife is shorter. Contrary to your counsel's submission, your decision to enter the home and kidnap your wife was pre-meditated in the sense that it was devised at some stage while you walked home. The conditions of your bail, granted only a little while earlier, prevented you from going within 200 metres of the home but you completely ignored that and entered your wife's bedroom.
54The kidnapping is a particularly nasty aspect of those events, accompanied as it was with distinct assaults upon her. Rendering her phone unworkable and your statement which was reasonably interpreted by your wife as threatening to kill her.
55Your counsel submitted that kidnapping did not include other features which would make the offence more serious. There may not be features of other kidnappings, for example a ransom, but at least a woman a week is killed in Australia by her current or former domestic partner. The circumstances of your taking make the offence of kidnapping serious.
Guilty plea
56Your guilty pleas were entered after a sentence indication. In turn, this occurred after a committal on the papers and the examination of three witnesses at an examination under s198B of the Criminal Procedure Act 2009. In terms of the timing of the entry of your pleas, they occurred at about the mid-point of a process starting with the laying of the charges and ending with the verdict of a jury.
57There are benefits of your guilty pleas, they are an emphatic acknowledgement of your offending, they show the victim and the world in general you committed the offences.
58Second, they relieve the victim from the need to give evidence against you in a trial. I daresay for her this would have been a difficult task.
59Third, you have assisted the criminal justice process, you have removed your case from those needing a jury trial and allowed others to move forward. This has avoided the delay and saved the time and expense of a trial. Generally, jury trials are complicated affairs involving 12 jurors and lasting weeks. Avoiding that is a considerable benefit to the criminal justice system.
60Fourth, the crisis addressed in Worboyes v The Queen[2] and other cases has abated. On 5 May 2023, the World Health Organisation declared the virus no longer constituted a public health emergency. More recently, this court announced it had overcome the backlog of cases created by the pandemic, it had reached the pre-pandemic levels of pending cases. But in another respect the virus still disturbs the smooth running of jury trials in this court, principally through the unavailability or loss of jurors. Pleading guilty still benefits the system identified in the case of Worboyes but to a much lesser extent.
[2][2021] VSCA 169.
61Overall, your guilty pleas entitle you to a significant discount on the sentences which would have been imposed if you had pleaded not guilty to the charges but had been found guilty after a trial.
Deportation
62You are not an Australian citizen. You reside in this country under some form of visa. If you are sentenced to imprisonment for one year or more, then your visa is automatically cancelled. To remain in this country after that you must persuade the relevant minister to revoke the cancellation.
63In the case of Loftus v The Queen[3] the court said:
'The potential for an offender to be deported at the completion of sentence is relevant to sentencing in two ways. Firstly, the prospect of deportation renders the imprisonment more onerous because a prisoner will face the prospect of deportation. This, in turn, may render incarceration more difficult. Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity to settle permanently in this country.'
[3][2019] VSCA 24 at [79].
64You have resided in this country since 1999, you have children and grandchildren living here. Although the prospect of deportation was not raised in Ms Kennedy's report, the realisation that it exists must be a concern to you, which will make your time in custody that much more difficult.
Rehabilitation
65On 17 May 2022, you were assessed by the Forensic Assessment and Counselling Team at the Australian Community Support Organisation after being referred by the Court Integrated Services Program. The assessment occurred over the phone and the purpose was to determine your current pattern of substance use, any correlation between it and your offending, and referral for treatment.
66It was identified during the assessment your alcohol use was of primary concern. You reported your father drank heavily and you would use a ‘home brew’, consuming a litre every two days. In 2019, you reported losing your job and the death of your younger brother. You ceased drinking and engaged with a psychologist. You then stopped drinking excessively, drinking only a couple of ciders. Your health and mood improved. However, you drank on the day of the offending which then led to this offending.
67You smoked cannabis until you were aged 40, however, you report no other substance use other than trying amphetamine and cocaine once.
68You told ACSO you were concerned your employment would be a barrier to your treatment, however, you said you could be flexible with your work hours. You reported attending a men's behaviour change program and enjoyed the group session.
69It was identified your alcohol use could have been connected with the abuse perpetrated by your father and stepfather, along with feelings of rejection and defectiveness. It was expected your substance use has been perpetuated by avoiding problem-solving and the unresolved grief and loss following the death of your brother and father, your loss of employment and the breakdown of the relationship.
70It was recommended you be referred for a short period of drug and alcohol counselling to reduce any re-lapse into substance use and mitigate the risk of any further offending.
71As mentioned above, you understood a men's behaviour change program. In a letter dated 23 November 2022, Chris Mitchell, a family violence counsellor, advised of you attending every one of the 20 2-hour sessions and completed all the requirements of the programme.
72You were bailed with a condition relating to the Court Integrated Services Program. You started the programme on 24 March 2022. In the final progress report dated 6 June 2022 an advanced case manager, Michelle Ong, traced what had occurred while you were on the programme. She noted you had shown good insight into your support needs and had put a lot of effort to achieve the treatment goals. To her, you were highly motivated to change. Unfortunately, you did not change.
73The total sentence today will be the longest sentence imposed on you. The sentences imposed last year were insignificant by comparison. This sentence should act as a powerful disincentive against further offending, especially against your wife.
74I have already mentioned the incidents of 12 March 2023 and 28 April 2023 and the series of text messages between 13 September 2022 and 8 April 2023. As I said, the 28 April 2023 incident is particularly concerning. On 10 April you were arrested and charged with family violence and bail offences. You were remanded in custody. On 27 April you were released following the imposition of a community correction order and then the very next day you attempted to see your wife and were prevented largely through the efforts of the neighbour. It bears some resemblance of the events of 3 January 2022. It is clear on 28 April you paid no regard to the conditions of the family violence intervention order, even though reinforced by the community correction order. On 3 January you paid no regard to the family violence intervention order or the conditions of your bail. One can understand why your wife was so fearful of you. In the past, given the right circumstances, nothing short of imprisonment prevented you from harming your wife.
75In November 2023 you accepted an offer to perform the role of a Peer Listener. This appears to be a carefully constructed role in that you were required to be supervised by the Forensic Intervention Services in the performance of your tasks.
76As I mentioned earlier, you have been active in undertaking programmes and courses while in custody. I have had the benefit of reading an essay you wrote on religion.
77You have learnt about methylamphetamine and are resolved not to use it. You are capable of abstinence but it probably takes more than your resolution to overcome your longstanding addictions and the psychological reasons sitting behind them.
78Your behaviour while on bail was good for a considerable time and it has been good in custody. Despite warnings, it fell apart. Whether the time you spend in custody due to my sentences will make a difference, remains to be seen. On past behaviour you pay no regard to the conditions of a family violence intervention order, community correction order or the conditions of your bail.
79Project Mirabal was a 2015 English examination of domestic violence perpetrator programmes in that country. Among other things, it examined the depressing belief that nothing works in this area to change the behaviour of men. The project assessed the effectiveness of these programmes on six measures of success. The third measure of success was 'Safety and freedom from violence and abuse for women and children.' It found all 18 qualitative indicators showed dramatic and significant reductions, particularly for physical and sexual violence. 'Made to do something sexual that you did not want to do' reduced from 30 per cent of women saying this happened before the programme, to zero afterwards, as did, 'Used a weapon against you', 29 per cent to zero. 'Slapped you, pushed you or thrown something at you' reduced from 87 per cent to 7 per cent. Far fewer women reported being physically injured after the programme,
61 per cent before compared to 2 per cent after, and the extent to which children saw or overhead violence also dropped substantially from 80 per cent to 8 per cent. While harassment and other abusive acts reduced, some of these behaviours did continue for up to half of the women. That said, over half of the women reported feeling very safe after the programme, compared to less than one in ten before the programme – 51 per cent compared to 8 per cent. The qualitative interviews echoed these findings. Overall, the project found little support for the idea that DVPP, Domestic Violence Perpetrator Programmes, teach men how to be better, more manipulative abusers.80Although the English Domestic Violence Perpetrator Programmes were longer than the 20 weeks of your programme, it shows the effectiveness of such programmes in changing behaviour in what I would consider is the most important of the six measures. Your contraventions of the order in 2023 did not come to violence against your wife, it may be the 20-week programme had some beneficial effect on you.
81However, on balance, I still remain uncertain about your prospects of rehabilitation.
S 16(3C)
82Section 16(3C) of the Sentencing Act provides:
'Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence for offences, must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentence of imprisonment imposed on that offender, either before or at the same time as that term.'
83When you left the Cranbourne police station on the morning of 3 January 2022, you were on bail. You walked to your home and committed the offences being Charges 1,2 and 3 on the indictment. If you had not been on bail the sentences on those charges would have been served concurrently, or largely so. Since you were on bail, Parliament intends otherwise as an initial position. However, even though s16(3C) reduces the impact of the principle of totality, it does not eliminate it.
Sentence
84On Charge 1, a charge of kidnapping, 48 months' imprisonment.
85On Charge 2, a charge of common law assault, six months' imprisonment.
86On Charge 3, a charge of contravening the family violence intervention order, 12 months' imprisonment.
87On the summary Charge 13, a charge of committing an indictable offence while on bail, one month imprisonment.
88On the summary Charge 15, a charge of contravening the family violence intervention order on 2 January, three months' imprisonment.
89On the summary Charge 16, a charge of unlawful assault on 2 January, one month imprisonment.
90On the summary Charge 17, a charge of driving a motor vehicle with greater than the prescribed concentration of alcohol, you are convicted and discharged. Any licence or permit to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence permit for ten months. I would normally have imposed a fine for this offence. However, you have no capacity to pay a fine. Ultimately, the unpaid fine would be converted into imprisonment to be served concurrently with your sentence. Fining you serves no useful purpose.
91The sentence on Charge 1 is the base sentence. The entirety of the sentences on Charge 3 and summary Charge 13 are to be served cumulatively upon themselves and the base sentence. The other sentences of imprisonment are to be served concurrently.
92The total effective sentence is 61 months' imprisonment. I will set a non-parole period of 40 months' imprisonment. I will declare your 369 days of pre-sentence detention as time served under my sentences.
S 6AAA
93If you had not pleaded guilty to these charges but had been found guilty of them after a trial, I would have sentenced you to a total effective sentence of six years and four months' imprisonment and set a non-parole period of four years and two months' imprisonment.
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