Director of Public Prosecutions v Wiseman
[2024] VCC 2013
•8 November 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-24-00613
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER WISEMAN |
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JUDGE: | WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 October 2024 | |
DATE OF SENTENCE: | 8 November 2024 | |
CASE MAY BE CITED AS: | DPP v Wiseman | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2013 | |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty obtaining financial advantage by deception (rolled up charge) obtained $180,000 from employer – offending over 2 years - 50 year old - previous good character - majority of money repaid
Sentence: 3 year CCO 200 hours unpaid work component
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Jeong (plea) Ms Papaluca (sentence) | OPP |
| For the Defendant | Ms P J Marcou | Garde Wilson Lawyers |
HER HONOUR:
1 Christopher Wiseman, you have pleaded guilty to one charge of obtaining financial advantage by deception. It is a rolled-up charge covering multiple instances of offending between 23 November 2016 and 17 August 2018. The total amount obtained was $185,000.
2 The maximum penalty for this offence is 10 years imprisonment.
3 Today I will be imposing a Community Correction Order, without a term of imprisonment.
The offending
4 For about three years, between August 2015 and October 2018, you worked for Jewish Care Victoria, a registered charity which offers eligible members of the Jewish community interest-free loans. These loans can range from a thousand dollars to $25,000, for various purposes, for a maximum term of three years.
5 Your duties included facilitating loan applications and administering the loans scheme. You held interviews, conducted identity and financial verification, contacted guarantors, prepared loan applications for approval, and monitored and facilitated repayments.
6 During your employment, you used fraudulent details to obtain 15 loans in different names, totalling $185,000. The funds were sent to 15 different bank accounts, either controlled by or linked to you. Each loan application included a loan agreement and direct debit authority. They included the purported applicant’s signature, contact, banking and employment details, age, marital status, financial circumstances and confirmation of checks conducted on their bank accounts.
7 A table at paragraph 7 of the prosecution summary sets out the 15 individual transactions between 23 November 2016 and 17 August 2018, mostly, amounts of $10,000, with two payments of $25,000 and one of $15,000. The details of these loans are set out in paragraphs 11 to 56 of the prosecution summary dated 26 July 2024, marked as Exhibit A, and appended to these sentencing remarks.
8 In about March 2019, staff noticed irregularities in 15 loans, including
· that all had switched to manual payments made via ATM, from direct debit
· repayments had been reduced to $20 per month without authorisation
· repayments for different loans were made from the same ATM on 6 August 2019 and 23 September 2019
· Each loan had been created by you, in your capacity of relationship officer, which was the title of your job.
9 On 23 September 2019, the matter was referred to the police for investigation. On 19 June 2023, you were arrested and interviewed, making “No comment” responses.
10 During and after your employment at Jewish Care, you periodically made repayments of varying amounts, sometimes as little as $20. By 26 July 2024, you had repaid the sum of $87,875.12.
Gravity of offending
11 The prosecution has described the offending as being at a medium level of seriousness, with a reasonably significant quantum, and being sophisticated and protracted. It was premeditated, calculated and systemic, says the prosecution, and the details involved probably do amount to the sophistication referred to in the prosecution’s submissions. It was certainly a gross breach of trust.
12 Ms Marcou, on your behalf, submitted the offending was at a low level of seriousness, given that it was relatively easy to detect, through being paid into your own accounts, and with deposits for repayments. She submitted that it was unsophisticated, and there were no aggravating features. This is often the case where only one offender is involved. ‘
13 The fact that the victim was a not-for-profit organisation raises the potential for such offending to undermine public confidence in the use of the funds.
14 Although there was potential for detection, there were limited mechanisms for doing so, and the scheme remained undetected until you resigned, and another person took over your tasks.
15 It follows that your moral culpability is high. You used the money for personal spending, including share trading and gambling, although, in the context of pressing stress from your circumstances at the time, and not for the purposes of sheer greed. I will come to those matters shortly.
16 A victim impact statement was provided by Gayle Smith, who states that she was your employer at Jewish Care. She described the shock and betrayal felt by other employees, and the pressure placed on the organisation to try and reassure community members that they remained trustworthy.
17 The organisation’s funds were depleted, and not easily replaced, with new donors needing to be engaged in order to do so.
Personal background and circumstances
18 You are a 50-year-old single man, previously married, and with a daughter aged 17. The marriage ended in 2009, after two years.
19 It was marked by your ex-wife’s chronic infidelity, and what had the hallmarks of unstable acrimony, and its ending led to years of family law litigation. The cost of this, and of debts from the marriage in the form of loans taken out by your wife caused you to struggle financially, with the addition of ongoing child support.
20 This financial need, combined with the stressful situation, was the foundation of your motivation to defraud your employers.
21 You have no previous convictions and your parents have written a letter describing your good qualities, and the pressures you were under at the time when you began offending. You have told them that you are very regretful and remorseful.
22 The prosecution submission was that in cases of fraud such as this, less weight should be placed on previous good character, given that offenders are often placed in positions of trust because of that good character. However, it is a matter that cannot be entirely ignored as the question is relevant to rehabilitation.
23 Those offenders who are not of previous good character have few prospects for rehabilitation, with possibly less capacity for remorse and insight. As to that matter, your treating psychologist has confirmed your satisfactory progress and regular attendance at counselling sessions and your articulated remorse which she considers is genuine. She is able to continue providing treatment for you, if and when you are residing in the community.
24 For court purposes, you were assessed by consultant psychologist, Mr Luke Armstrong, in July this year. You told him that your childhood and schooling in South Australia was, in effect, unremarkable, and you completed a Bachelor’s Degree in Economics at university, followed by the commencement of a Diploma in Accounting, which you did not complete.
25 You worked for National Australia Bank for 10 years, rising to middle management.
26 You then moved to Melbourne and worked for Bankwest, where you met your first wife, with marriage being precipitated by her unplanned pregnancy.
27 The marriage was unhappy, and when it ended, you had primary care of your daughter, as indeed you had had during the marriage. However, the Family Court proceedings resulted in primary custody being given to your ex-wife.
28 You had temporary work throughout this period, and later permanent employment with the Bank of Melbourne.
29 Assets you had accumulated over the years were sold to pay for legal costs and child support.
30 You were dismissed from the bank in 2015, because of workplace difficulties concerning a regional manager who disliked you because you hadn’t been her choice for the job.
31 Around this time there were further personal difficulties when your ex-wife accused your new partner of sexually abusing your daughter. This was investigated by the authorities and was disproved.
32 After six months of unemployment you found work with Jewish Care and were still struggling with financial commitments as well as having 50 per cent custody of your daughter.
33 An assault upon you by a fellow worker, which led to his dismissal, caused you to likely experience acute stress disorder, as diagnosed by Mr Armstrong. This was four weeks before the offending began.
34 Around this time, your ex-wife and daughter relocated to a distant suburb, making it difficult for you to collect and return her. You surmised that your ex-wife was deliberately relocating further and further from central Melbourne to make custody arrangements untenable.
35 Mr Armstrong identified this constellation of events as having contributed to your decision-making at the time of the offending. You described your state of mind at the time as one of desperation, even leading to attempts to recoup the defrauded money through gambling. You quickly ceased this because of the loss you incurred, and eventually decided to resign in order to remove any further opportunity to offend and in the expectation that you would repay the rest of the funds through alternative employment.
36 After your resignation from Jewish Care in 2018, you were unemployed for a few months, before finding a job with Toyota Finance. After four years, you resigned and returned to South Australia for a time, where you worked temporarily, before returning to Melbourne and your old job at Toyota Finance.
37 You have stable employment there in the quality assurance team, and your financial difficulties have now stabilised.
38 Mr Armstrong describes you as presenting with a façade of functionality, with many years of legal conflict with your ex-wife having taken their toll on your mental state. Notwithstanding that, Mr Armstrong considers your mental state to be more stable than at the time of the offending.
39 His summation of your background led him to the view that your offending was out of character. His view that your risk of re-offending is relatively low, is based on your acceptance of responsibility for it, its uncharacteristic nature, your continued full-time employment with no further offending, and the resolution of the factors that led to it. This includes the fact that your daughter will soon be 18, and is about to finish school, and so the financial burden in that regard will be reduced.
40 You told Mr Armstrong that your present remuneration is such that you are in a position to repay the outstanding funds, if given the opportunity. And Mr Armstrong considered that to be a genuine intention, given your offence-free past life.
41 He considers that you would benefit from continuing treatment with the psychologist, Ms Allen, as a protective factor, because your coping mechanisms remain relatively limited. He said you have insight into this need for treatment.
42 Ms Jeong, for the prosecution, took issue with your stated intention to make repayments right from the start, pointing out the initial small repayments could have been made in an effort to conceal the deception. It could be equally consistent with your financial situation at the time and I place no great weight upon that, as an indication of your intentions.
43 Overall, as Ms Marcou submitted, the regularity of the repayments since your arrest and interview, demonstrate very dedicated efforts, and that much is also accepted by the prosecution.
44 I note that the amount outstanding is $2545.24, which you hope to be able to continue to repay, with an obvious benefit to Jewish Care.
45 You pleaded guilty at the earliest reasonable opportunity, avoiding the need for a contested committal and for a trial. No witnesses have had to give evidence, and considerable time and expense has been saved, which is of utilitarian benefit to the system of criminal justice, and means you are entitled to a discount on your sentence. I also take it into account as an indication of remorse, which you have expressed elsewhere as well.
Delay
46 There has been a very considerable delay in bringing this matter to a close. The offending began nearly eight years ago and ended six years ago. Internal investigations began in March 2019, and the police were notified in September 2019.
47 It seems that the investigation was significantly delayed due to COVID-19 factors, and by bank branch closures, which made the execution of warrants difficult.
48 You were arrested, as I said before, on 19 June 2023. The case proceeded quite expeditiously after that, but a further delay occurred in July this year, when the judge hearing the plea had to step aside. I take that long delay into account, in determining sentence, and must give it considerable weight, given that it has caused you considerable significant anxiety.
Extra-curial punishment
49 I am told that as soon as the results of this case are made known to your employer, it is likely that your employment will be terminated. You are presently working, as I said before, in the area of quality assurance and you have no access to loans nor any responsibility for funds.
50 Although your termination is not completely certain, its high likelihood, and the attendant anxiety in the meantime, is a matter I can take into account as extra-curial punishment.
51 Given your age and quite specific working experience the chances of re-employment in the field may be very limited in all the circumstances, and I place considerable weight upon it.
Sentencing issues
52 Ms Marcou submitted that a Community Correction Order is an appropriate sentence, whether or not combined with a prison term, taking into account the mitigating factors, and the principle that imprisonment is a sentence of last resort. Ms Marcou asked me to note that the prosecution’s submission as to sentence, in July this year, was that a combination sentence was within range. But that has now changed to a more serious option, despite no change in circumstances, other than further delay and anxiety for you.
53 Ms Jong submitted that the serious breach of trust means that only a head sentence and a non-parole period is appropriate, even when taking into account such matters as your genuine remorse and your previous good character, with its somewhat reduced relevance.
54 I was referred to several cases where a Community Correction Order had been imposed for similar offending. While the circumstances of each case differ, some of the common features are breach of trust, significant delay, a roughly similar amount of money defrauded, an offender with no previous convictions, and with good or better prospects of rehabilitation. Generally, the offender has lost their job, but had made some restitution, and had used the period of delay in a positive way.
55 It is broadly accepted that a Community Correction Order is a punishment which places an impost on liberty, through obligations for supervision, specialist assessment and treatment for whatever condition or conditions might present, and performance of unpaid community work. A breach of the order, either by non-compliance or further offending, can bring the offender back to court for re-sentencing, and this can operate as an appropriate deterrent.
56 General deterrence is of important significance, and the courts must sentence in the appropriate case to denounce offending of this sort, and deter others. That principal remains important in this case, even while specific deterrence plays no appreciable role.
57 There are some unusual aspects of this case. These include the extent to which you have repaid the funds, the stressors in your life at the time, your engagement in treatment, the long delay, your good prospects for rehabilitation, and the likely loss of your job, all of which combine to remove any need for specific deterrence.
58 These features place the appropriate sentence within the same range as other cases which share these features in which a CCO was imposed. Neither your case nor any of those others are unique but are still able to be classified as unusual.
59 In all the circumstances, I have determined that a Community Correction Order is appropriate. You have been assessed as suitable, and the order will begin today, and will last for three years. A conviction will be recorded. You will have to perform 200 hours of unpaid community work. There will be no other orders attached, apart from the core conditions which will have been explained to you.
60 The steps you have already taken to address your mental health mean that the corrections officer did not consider such an order was necessary. Supervision was also not necessary, as you are at low risk of general re-offending.
61 You will have to report to the corrections office, which is at the Order Administration Hub, 50 Franklin Street, Melbourne, by 4 pm on Tuesday, 12 November, allowing two working days before then.
62 The prosecution seeks for a compensation order in the sum of $2545.24 to be paid to Jewish Care, and subject to any objection, I make that order
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EXTRACT OF PROSECUTION SUMMARY PARAGRAPHS 11 – 56 EXHIBIT A
Loan 1 - $25,000
11. On 23 November 2016, Mr WISEMAN obtained pre-loan approval for $25,000 in another person’s name, for the purpose of business (purchasing a truck), payable to ‘Dino Go’, BSB xxx879 and ACC xxx863.13
12. On 24 November 2016, Mr WISEMAN created a loan agreement purportedly signed by the applicant.14
13. Bank of Melbourne records confirm the nominated bank account is held by Mr WISEMAN. As a result, on 29 November 2016, Mr WISEMAN received $25,000.15
Loan 2 - $10,000
14. On 23 November 2016, Mr WISEMAN obtained pre-loan approval for $10,000 in another person’s name, for the purpose of a car loan, payable to ‘Stewart WALLIS’, BSB xxx375 and ACC xxx362.16
15. On 1 December 2016, Mr WISEMAN created a loan agreement purportedly signed by the applicant.17
16. On 15 December 2016, $10,000 was deposited into the nominated bank account.18
12 Ibid 176.
13 Exhibit 4: Loan agreement JML1908 – Vladimir RUDENKO, depositions, page 199-202.
14 Ibid page 203-206.
15 Exhibit 42: Bank of Melbourne Bank Statement, depositions, page 1166.
16 Exhibit 5: Loan agreement JML 1917 – Emma DOBREJCER, depositions, page 208-210.
17 Ibid page 211-214.
18 Exhibit 38: NAB Bank Statement, depositions, page 840.
17. The next day, that account transferred $10,000 into BSB xxx879 and ACC xxx908.19 Bank of Melbourne records confirm this account is held by Mr WISEMAN.20 As a result, on 16 December 2016, Mr WISEMAN received $10,000.
Loan 3 - $10,000
18. On 25 January 2017, Mr WISEMAN obtained pre-loan approval for $10,000 in another person’s name, for the purpose of a car loan, payable to ‘Bella WOLFF’, BSB xxx276 and ACC xxx571.21
19. On 27 January 2017, Mr WISEMAN created a loan agreement purportedly signed by the applicant.22
20. NAB records confirm the nominated bank account is held by Mr WISEMAN. As a result, on 16 February 2017, Mr WISEMAN received $10,000.23
Loan 4 - $10,000
21. On 9 April 2017, Mr WISEMAN obtained pre-loan approval for $10,000 in another person’s name, for the purpose of a car loan, payable to ‘Phillip BOSWELL’, BSB xxx692 and ACC xxx261.24
22. On 20 April 2017, Mr WISEMAN created a loan agreement purportedly signed by the applicant.25
23. CBA records confirm the nominated bank account is held by Mr WISEMAN. As a result, on 28 April 2017, Mr WISEMAN received $10,000.26
Loan 5 - $15,000
24. On 19 April 2017, Mr WISEMAN obtained pre-loan approval for $15,000 in another person’s name, for the purpose of debt consolidation, payable to that person, BSB xxx276 and ACC xxx988.27
25. On 20 April 2017, Mr WISEMAN created a loan agreement purportedly signed by the applicant.28
19 Exhibit 38: NAB Bank Statement, depositions, page 840; Exhibit 46: Westpac (Bank of Melbourne) Bank Statements, depositions, page 1528.
20 Exhibit 46: Westpac (Bank of Melbourne) Bank Statements, depositions, page 1184.
21 Exhibit 7: Loan Agreement JML1941 – Nathan COHEN, depositions, page 224-226.
22 Ibid 227-230.
23 Exhibit 33: NAB Bank Records, depositions, page 625.
24 Exhibit 9: Loan Agreement JML1961 – Daniel ACKERMAN, depositions, page 240-242.
25 Ibid 243-246.
26 Exhibit 26: CBA Bank Records, depositions, page 504.
27 Exhibit 10: Loan Agreement JML1963 – Miriam BRODSKY, depositions, page 248-250.
28 Ibid 251-254.
26. NAB records confirm the nominated bank account is held by Mr WISEMAN. As a result, on 28 April 2017, Mr WISEMAN received $15,000.29
Loan 6 - $10,000
27. On 9 April 2017, Mr WISEMAN obtained pre-loan approval for $10,000 in another person’s name, for the purpose of a car loan, payable to ‘Henry BURGESS’, BSB xxx115 and ACC xxx512.30
28. On 20 April 2017, Mr WISEMAN created a loan agreement purportedly signed by the applicant.31
29. Westpac records confirm the nominated bank account is held by Mr WISEMAN. As a result, on 28 April 2017, Mr WISEMAN received $10,000.32
Loan 7 - $10,000
30. On 19 April 2017, Mr WISEMAN obtained pre-loan approval for $10,000 in another person’s name, for the purpose of a car loan, payable to ‘Joshua CROFT’, BSB xxx879 and ACC xxx885.33
31. On 20 April 2017, Mr WISEMAN created a loan agreement purportedly signed by the applicant.34
32. Bank of Melbourne records confirm the nominated bank account is held by Mr WISEMAN. As a result, on 28 April 2017, Mr WISEMAN received $10,000.35
Loan 8 - $25,000
33. On 18 October 2017, Mr WISEMAN obtained pre-loan approval for $25,000 in another person’s name, for the purpose of debt consolidation, payable to ‘Now Finance’, BSB xxx278 and ACC xxx037.36
34. On 19 October 2017, Mr WISEMAN created a loan agreement purportedly signed by the applicant.37
35. ANZ records confirm the nominated bank account is held by Mr WISEMAN. As a result, on 27 October 2017, Mr WISEMAN received $25,000.38
29 Exhibit 34: NAB Bank Statement, depositions, page 686.
30 Exhibit 11: Loan Agreement JML1964 – David GILBERG, depositions, page 256-258.
31 Exhibit 11: Loan Agreement JML1964 – David GILBERG, depositions, page 259-262.
32 Exhibit 40: Westpac Bank Statement, depositions, page 1113.
33 Exhibit 12: Loan Agreement JML1966 – Klara RUTTENBERG, depositions, page 264-265.
34 Ibid 267-270.
35 Exhibit 45: Bank of Melbourne Bank Statement, depositions, page 1179.
36 Exhibit 13: Loan Agreement JML2010 – Livia NEDELKOV, depositions, page 272-274.
37 Ibid 275-278.
38 Exhibit 23: ANZ Bank Statement, depositions, page 363.
Loan 9 - $10,000
36. On 24 January 2018, Mr WISEMAN obtained pre-loan approval for $10,000 in another person’s name, for the purpose of a car loan, payable to ‘Ian ROGERS’, BSB xxx276 and ACC xxx267.39
37. On 25 January 2018, Mr WISEMAN created a loan agreement purportedly signed by the applicant.40
38. NAB records confirm the nominated bank account is held by Mr WISEMAN. As a result, on 31 January 2018, Mr WISEMAN received $10,000.41
Loan 10 - $10,000
39. On 21 February 2018, Mr WISEMAN obtained pre-loan approval for $10,000 in another person’s name, for the purpose of a car loan, payable to ‘David AITKEN’, BSB xxx120 and ACC xxx754.42
40. On 22 February 2018, Mr WISEMAN created a loan agreement purportedly signed by the applicant.43
41. Westpac records confirm the nominated bank account is held by Mr WISEMAN. As a result, on 8 March 2018, Mr WISEMAN received $10,000.44
Loan 11 - $10,000
42. On 21 February 2018, Mr WISEMAN obtained pre-loan approval for $10,000 in another person’s name, for the purpose of a car loan, payable to ‘Catherine WALLACE’, BSB xxx879 and ACC xxx 033.45
43. On 22 February 2018, Mr WISEMAN created a loan agreement purportedly signed by the applicant.46
44. Bank of Melbourne records confirm the nominated bank account is held by Mr WISEMAN. As a result, on 8 March 2018, Mr WISEMAN received $10,000.47
39 Exhibit 14: Loan Agreement JML2040 – Daniel GOLDBERG, depositions, page 280-282.
40 Ibid 283-286.
41 Exhibit 35: NAB Bank Statement, depositions, page 705.
42 Exhibit 15: Loan Agreement JML2051 – Amir LEHRER, depositions, page 288-290.
43 Ibid 291-294.
44 Exhibit 41: Westpac Bank Statement, depositions, page 1132.
45 Exhibit 16: Loan Agreement JML2052 – Ashley FELDMAN, depositions, page 296-297.
46 Ibid 299-302.
47 Exhibit 44: Bank of Melbourne Bank Statement, depositions, page 1174.
Loan 12 - $10,000
45. On 21 February 2018, Mr WISEMAN obtained pre-loan approval for $10,000 in another person’s name, for the purpose of a car loan, payable to ‘Craig WOLLER’, BSB xxx692 and ACC xxx890.48
46. On 22 February 2018, Mr WISEMAN created a loan agreement purportedly signed by the applicant.49
47. CBA records confirm the nominated bank account is held by Mr WISEMAN. As a result, on 8 March 2018, Mr WISEMAN received $10,000.50
Loan 13 - $10,000
48. On 16 May 2018, Mr WISEMAN obtained pre-loan approval for $10,000 in another person’s name, for the purpose of a car loan, payable to ‘Christine WATERMAN’, BSB xxx276 ACC xxx025.51
49. On 18 May 2018, Mr WISEMAN created a loan agreement purportedly signed by the applicant.52
50. NAB records confirm the nominated bank account is held by Mr WISEMAN. As a result, on 13 June 2018, Mr WISEMAN received $10,000.53
Loan 14 - $10,000
51. On 18 July 2018, Mr WISEMAN obtained pre-loan approval for $10,000 in another person’s name, for the purpose of a car loan, payable to ‘Connor WATSON’, BSB xxx276 and ACC xxx470.54
52. On 18 July 2018, Mr WISEMAN created a loan agreement, which was purportedly signed by the applicant on 6 August 2018.55
53. NAB records confirm the nominated bank account is held by Mr WISEMAN. As a result, on 17 August 2018, Mr WISEMAN received $10,000.56
48 Exhibit 17: Loan Agreement JML2053 – Shiro ABITOL, depositions, page 304-306.
49 Ibid 307-310.
50 Exhibit 27: CBA Bank Statement, depositions, page 507.
51 Exhibit 18: Loan Agreement JML2088 – Michael UMANSKI, depositions, page 312-314.
52 Ibid 315-318.
53 Exhibit 36: NAB Bank Statement, depositions, page 748.
54 Exhibit 19: Loan Agreement JML2111 – Alexandra GRUBMAN, depositions, page 320-322.
55 Ibid 323-326.
56 Exhibit 37: NAB Bank Statement, depositions, page 787.
Loan 15 - $10,000
54. On 18 July 2018, Mr WISEMAN obtained pre-loan approval for $10,000 in another person’s name, for the purpose of a car loan, payable to ‘Craig WOOLETT’, BSB xxx692 and ACC xxx814.57
55. On 18 July 2018, Mr WISEMAN created a loan agreement, which was purportedly signed by the applicant on 1 August 2018.58
56. CBA records confirm the nominated bank account is held by Mr WISEMAN. As a result, on 17 August 2018, Mr WISEMAN received $10,000.59
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