Ballestero v Police
[2024] NZHC 2922
•8 October 2024
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF CONNECTED
PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2024-412-40
[2024] NZHC 2922
BETWEEN AMADEO ENRIQUEZ BALLESTERO
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 7 October 2024 Appearances:
K J Gray for Appellant
C E R Power for Respondent
Judgment:
8 October 2024
JUDGMENT OF EATON J
(appeal against sentence)
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
ENRIQUEZ BALLESTERO v POLICE [2024] NZHC 2922 [8 October 2024]
Introduction
[1] Amadeo Enriquez-Ballestero pleaded guilty to a charge of knowingly making an objectionable publication,1 three representative charges of knowingly possessing an objectionable publication,2 two representative charges of doing an indecent act on a young person aged 12–14,3 and one specific charge of doing an indecent act on a young person aged 12–14.4 On 30 July 2024, he was sentenced by Judge Lynch to two years and six months imprisonment.5 Mr Enriquez-Ballestero appeals against that sentence.
Facts
[2] The now 45-year-old appellant met the 11-year-old victim in his capacity as a part-time science teacher. He then became friendly with the victim and the victim’s mother. The first representative charge of doing an indecent act on a young person relates to overnight trips the appellant took with the victim between 1 January 2021 and 31 December 2022. The appellant would sleep in the same bed as the victim, “spooning” him from behind while wearing baggy underwear that allowed his genitals to be exposed.
[3] The second representative charge of indecency relates to occasions the appellant visited the victim’s home between 1 June 2021 and 31 July 2023 when the appellant would get into the victim’s bed at night, “spoon” him and kiss him on his arms, wrists, head and feet. Occasionally, Mr Enriquez-Ballestero photographed the victim or change the victim’s clothes while the victim was in bed.
[4] On 11 March 2023, Mr Enriquez-Ballestero performed an indecent act while in bed with the sleeping victim. The appellant repeatedly touched the victim’s penis before masturbating him. The appellant videoed himself performing this indecency, giving rise to the charge of knowingly making an objectionable publication.
1 Films Videos & Publications Classification Act 1993, s 124(1) and (2)(a) — maximum penalty 14 years’ imprisonment.
2 Section 131A(1) and (2)(a) — maximum penalty 10 years’ imprisonment.
3 Crimes Act 1961, s 134(3) — maximum penalty seven years’ imprisonment.
4 Section 134(3) — maximum penalty seven years’ imprisonment.
5 R v Enriquez-Ballestero [2024] NZDC 17958.
[5] On 22 November 2023, the police executed a search warrant at Mr Enriquez-Ballestero’s home and seized his iPhone, computer, iPad, and two hard drives. These items were analysed and a total of 189 CSEM (child sexual exploitation material) images and videos were located on the devices, namely:
(a)Eight videos and one image fell within category A of the United Kingdom sexual offences definitive guideline, meaning they involved penetrative sexual activity.
(b)17 videos and 11 images fell within category B, meaning they involved non-penetrative sexual activity.
(c)32 videos and 120 images fell within category C, meaning they constituted CSEM but did not fall within category A or B.
[6] Police recovered the video Mr Enriquez-Ballestero took when he masturbated the victim on 11 March 2023. The other images and videos in the appellant’s devices had creations dates ranging from 17 March 2023 to 1 September 2023. The majority of the CSEM was screen recordings and screenshots of content from Instagram. The CSEM had been saved in labelled folders, and system records showed it was viewed after the date that they were initially created on the device.
District Court Decision
[7] The Judge took a starting point of 24 months’ imprisonment for the three indecency charges, uplifted by six months for the making of the objectionable publication.
[8] On the charges of possession of objectionable material, the Judge took a starting point of two years and six months’ imprisonment. While the majority of the appellant’s CSEM collection was in the lowest category (category C), the Judge considered it to be significant that the appellant possessed category A material, in both video and image format. Further, the Judge observed that while the majority of the material was from mainstream social media, the appellant acquired the collection one
publication at a time, which required a greater level of interaction than merely performing a one-off download of numerous files.
[9] The Judge considered the totality principle in uplifting the starting point for the indecency charges for the charge of making an objectionable publication rather than imposing a cumulative starting point.6 The Judge was satisfied the five-year starting point was proportional to the totality of the appellant’s offending.7
[10] As for mitigating factors, the Judge allowed a 20 per cent deduction for guilty pleas, observing that the appellant had initially pleaded not guilty to the two representative indecency charges and that the case against the appellant was very strong.
[11] No discount was provided for previous good character, the Judge noting that whilst the appellant’s downfall had been “spectacular”, his good reputation and community standing that had given rise to the trust others had in him, was the factor that gave him access to the victim. The Judge observed that the offending continued over two years, raising doubt as to whether the offending was truly “out of character”.
[12] The Judge recognised that the appellant had taken significant steps to demonstrate his remorse, having paid $10,000 emotional harm reparation to the victim, self-referring to a clinical psychologist and regularly attending sessions, expressing a desire to engage in a STOP course and completing 500 hours of community work. The Judge also accepted Mr Enriquez-Ballestero had strong prospects of rehabilitation. With reliance on B v Department of Internal Affairs and Snell v R, where 30 and 20 per cent deductions were given respectively for those factors, the Judge allowed the appellant a 20 per cent deduction.8
[13] A further 10 per cent deduction was allowed for the appellant’s personal background including his deficits in social communication and interaction as outlined in the psychologist’s report.
6 At [89].
7 At [90].
8 Snell v R [2022] NZHC 1627; and B v Department of Internal Affairs [2023] NZHC 3558.
[14] A discrete deduction was not allowed to recognise the appellant’s status as a foreign national, the appellant having lived and worked in New Zealand for the last 25 years.
[15] The five-year starting point was reduced by a total of 50 per cent and an end sentence of 30 months’ imprisonment was imposed.
[16] Notwithstanding the positive steps the appellant had taken, the Judge considered the combination of indecent acts and the possession and making of objectionable material required a strong deterrent sentence and that a sentence of home detention was not sufficient to meet that sentencing purpose.
Principles on appeal
[17] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.9 As the Court of Appeal said in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.10 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.11
[18] The focus in sentence appeals remains on whether the sentence imposed is within range rather than the process by which the sentence is reached.
Discussion
[19] Ms Gray for the appellant contends the Judge erred in multiple facets of the sentencing exercise. I remind myself at the outset that the critical question is whether
9 Criminal Procedure Act 2011, ss 250(2) and 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
11 Ripia v R [2011] NZCA 101 at [15].
the end sentence imposed, standing back and recognising that sentencing is a highly individualised process, was manifestly excessive. As the Court of Appeal emphasised in Bowring v Police, “what matters is not the individual elements but whether the overall sentence is excessive”.12
Starting point and totality
[20] Ms Gray does not contest the starting points adopted for the indecencies and the making of the objectionable material. She submits the starting point of two years and six months’ imprisonment for the possession of the CSEM was too high having regard to Snell v R13 and R v Lawes.14 She points to the offending period being limited to just over five months; that the CSEM was sourced from mainstream media rather than the dark web; and to what is said to be a clear overlap between the CSEM offending and the indecencies. Ms Gray submits a starting point of 18 months’ imprisonment for the possession charges was appropriate.
[21] Mr Power for the respondent, accepts that the two and a half year starting point adopted by the Judge was at the higher end of the available range, but submits it was available. He highlights that the appellant was in possession of a number of videos, not only photographs, and that the appellant had deliberately saved the material in folders on various devices, evidencing the deliberate and focused nature of the offending.
[22] The Judge was guided by the observations of Downs J in Snell where it was found that “moderately serious” possession of CSEM would lead to a starting point of between three and three and a half years’ imprisonment. The Judge, rightly in my view, determined that Mr Enriquez-Ballestero’s offending did not reach the threshold of “moderately serious” and described the adopted starting point of two and a half years’ imprisonment was stern but appropriate.
[23] By reference to the cases relied on by counsel, the agreed classification of the objectional material, and the factors highlighted by counsel, I agree with Ms Gray that
12 Bowring v Police [2021] NZCA 325 at [12].
13 Snell v R, above n 8.
14 R v Lawes [2018] NZHC 2448.
the starting point adopted by the Judge was on the high side. In my view a starting point closer to two years would have been more appropriate. However, it is the global starting point of five years’ imprisonment that is more significant in assessing whether the end sentence was manifestly excessive.
[24] In my view the starting point of two years’ imprisonment adopted for the indecencies could have been higher. As Mr Power submitted, a two-year sentence was available to reflect the most serious and only particularised indecency charge. The victim was young, aged 12–13 years, and highly vulnerable. The appellant was aware that the victim was struggling with his mental health and not attending school when they met. I accept that the offending, involving primarily “spooning” and kissing was not the most intrusive behaviour of its kind, but it occurred repeatedly and over an extended period of at least two years. The incident of particularised offending occurred on 11 March 2023 and involved skin-on-skin touching and masturbation. It took place over several minutes.
[25] Not surprisingly, the offending has had a profound effect on the victim and on his mother. I have read the victim impact statements carefully. As the victim says:
You took my dignity, my mental wellbeing, my passions, my hobbies, my peace, my family’s peace but most of all you took my spark. This has been noticed by people who didn’t even know me well. I am so changed, so low and dark. I battle daily to get my spark back and know who I am.
I feel as though I am now defined by the abuse done by you. I feel as though I can’t go anywhere without people looking at me as the molested child.
…You have tainted not just my mind and my body but my soul.
[26] There can be no question that the victim’s vulnerability and the harm caused to the victim and his family significantly aggravated this offending.
[27] Further, I consider the uplift of only six months’ imprisonment for the making of the objectionable publication to reflect a generous application of the totality principle. The maximum penalty for making an objectionable publication is 14 years’ imprisonment. The act of filming sexual abuse of a young person is depraved.
[28] Although I consider the five-year starting point to be at the high end of the range available to the sentencing Judge, I am not satisfied that the global starting point adopted was in error.
[29] It follows from that assessment that I am not persuaded that the Judge erred in his application of the totality principle. Ms Gray contends that the inter-related nature of the offending required the Judge to make a downwards adjustment from the five-year starting point. She submits the starting point should have been in the region of four years. Mr Power, highlights that the Judge did apply the totality principle, albeit more closely focused on the extent of the uplift to the indecency charges for the making of the objectionable publication.
[30] The Judge considered that a cumulative starting point in the vicinity of 18 months was appropriate for the making of the objectionable publication. Applying the totality principle, the Judge adopted a six-month uplift. Appropriately, the Judge then stood back and reflected on the global starting point, having regard to the purposes and principles of sentencing. The Judge resolved that no further adjustment was required. He expressly found that a five-year starting point was proportional to the totality of the appellant’s offending. I find no error in the approach adopted by the Judge.
Guilty Plea credit
[31] The Judge allowed a 20 per cent deduction to recognise Mr Enrique-Ballestero’s guilty pleas. Ms Gray submits a full 25 per cent deduction was appropriate. She highlights that although not guilty pleas were entered at the first call on 28 November 2023 of the two representative indecency charges, guilty pleas were intimated at a case review hearing on 2 February 2024. The case review hearing was the first call of the specific charge of indecency and the objectionable publication charges. Guilty pleas were intimated to those charges and entered on 16 February. Mr Power submits a 20 per cent credit was available and that the modest increase proposed would amount to tinkering. Mr Power says the Crown case was very strong.
[32] Another Judge may well have allowed the appellant a full 25 per cent credit for guilty pleas recognising that the pleas to the most serious offending were entered
at the first reasonable opportunity. However, the fact the appellant initially entered, and then maintained for two months, not guilty pleas when he must have known that on analysing his electronic devices the police would find overwhelming evidence of his offending, permitted the Judge to step back from the full credit. The 20 per cent deduction was not in error.
Remorse
[33] The Judge allowed a 20 per cent deduction for remorse and rehabilitation. Ms Gray submits that given the substantial credit available for rehabilitative efforts that the Judge could not have allowed more than five per cent for remorse.
[34] Ms Gray submits the appellant’s genuine remorse was demonstrated through his early guilty pleas, his engagement with counselling and rehabilitation, his express desire to attend the STOP programme, his undertaking extensive volunteer work and the emotional harm payment of $10,000. She submits a deduction of 10 per cent to reflect remorse was appropriate.
[35] Mr Power accepts the voluntary work and reparation were demonstrative of genuine remorse warranting recognition but submits the 20 per cent allowed by the Judge for remorse and rehabilitation was within range.
[36] There is no dispute that the appellant is genuinely remorseful. I agree that is reflected in his pre-arrest engagement in professional counselling that intensified post-arrest and early guilty pleas. He has offered and paid not insignificant emotional harm reparation and completed community work that was, at least in part, a facet of the appellant’s recommended rehabilitation.
[37] The Judge was somewhat cynical in commenting on the voluntary work, suggesting it had only been undertaken to mitigate sentence. I think that is a little unfair to the appellant. I agree with counsel that voluntary work was something discussed and recommended by the appellant’s counsellor, but it is also a mechanism by which any offender is able to engage with the sentencing principles and purposes of accountability and making amends.
[38] Considered alone, I agree with Ms Gray that a deduction of 10 per cent to reflect remorse was available.
Rehabilitation
[39] Mr Enrique-Ballestero had engaged with an EAP psychologist from early May through to October 2023, saw a counsellor between October 2023 and April 2024, and began seeing clinical psychologist, Paul Neilson, from mid-December 2023 until his sentencing in July 2024. Mr Neilson assessed the appellant’s risk of re-offending as low.
[40] Ms Gray highlights that a 15 per cent deduction for rehabilitation was allowed in Snell who was assessed as a higher risk of re-offending than the appellant. She contends that the appellant’s rehabilitative response is more akin to that of B v Department of Internal Affairs where the defendant had attended more than 20 clinical psychologist appointments, had completed the SAFE programme and was assessed as a low risk of offending, and was allowed a 30 per cent deduction. Mr Power acknowledges that a generous discount for Mr Enrique-Ballestero’s rehabilitative efforts was appropriate. He submits that B is distinguishable given B was a young person from a depraved background and suffered cognitive deficiencies. He submits the deduction of around 15 per cent was within range.
[41] The Judge settled on a 20 per cent remorse and rehabilitation deduction with reliance on the credit allowed in Snell where the appellant had extensively engaged with a psychologist and had completed 600 hours of voluntary work.
[42] In my view, it is important that offenders are encouraged to embrace the principles and purposes of sentencing, by making amends and doing what they can to make good the harm they have caused. Often that will engage rehabilitation to reduce the risk of re-offending. I accept that Mr Enrique-Ballestero has, since the case review hearing when he intimated his guilty pleas, acted admirably as an offender. Significantly, he has genuinely and successfully embraced rehabilitation, such that he is assessed as presenting a low risk of future offending.
[43] Fixing the appropriate deduction to recognise remorse and rehabilitation will necessarily be very fact-specific, and will often, as in this case, overlap with other mitigating factors. I consider the 20 per cent deduction allowed by the Judge to be on the light side, but not in error.
Previous Good Character
[44] The Judge determined that the appellant was not entitled to credit for previous good character because he used his position of standing within the community to gain access to the victim.
[45] Ms Gray submits that the appellant’s good character was worthy of recognition, and that his rehabilitative efforts demonstrate that he has the capacity to regain that status. She observes that he has lost everything he held dear to him as a consequence of his offending. Mr Power highlights that the offending as charged spanned over a prolonged period and included different types of offending. He refers to Court of Appeal authority that a credit for previous good character may be limited when the offending is not confined to a single isolated incident.15 Mr Power says any potential credit for good character is nullified by the appellant’s significant breach of trust.
[46] As the Judge recognised, there are two rationales unpinning a credit for good character. The first is a recognition of the fall from grace being punishment in itself. The second is a recognition of the greater prospect of rehabilitation where community involvement and good character bear witness to a reduced probability of offending.16
[47] I agree with the Judge’s description of Mr Enrique-Ballestero’s fall from grace as being “spectacular”. It is clear he has lost his reputation, his career, his marriage, his residency, and now his liberty. Ms Gray says his network of support, established over the past 25 years he has been a resident in New Zealand, has dissipated to the point of extinction.
15 Taylor v R [2017] NZCA 574 at [26].
16 Manawaiti v R [2013] NZCA 88.
[48] The level of credit that a Court might allow to reflect previous good character is “very much a matter of impression.”17 In my view, both the key rationales for applying a good character discount apply to the appellant. The Judge considered the appellant’s good reputation and standing gave rise to the trust that allowed him access to the victim and the victim’s family. I do not doubt that factual finding is accurate, but, as a basis to decline a sentence deduction, that finding is somewhat at odds with the Judge’s earlier finding that when first engaging with the victim and his family the appellant “had good intentions”.18
[49] The appellant was 42–44 years old when he offended. He has suffered significantly as a consequence of his offending and has demonstrated that he has very good prospects for rehabilitation. Both factors reflect his previous good character. In my view, the Judge did err in not allowing a modest deduction for this factor. A modest deduction in the range of five to 10 per cent was available.
Volunteer Work
[50] With reliance on the approach taken in Snell, Ms Gray contends for a discount of five per cent deduction to reflect the 500 hours of community work completed by the appellant. As I have indicated, I think it more appropriate to consider a credit for that work alongside the payment of emotional harm and other factors relevant to remorse.
Foreign national status
[51] Ms Gray finally seeks a discrete deduction to reflect that as a foreign national (Spanish) now isolated from his New Zealand community as a consequence of the offending, a prison sentence will be particularly harsh for the appellant.
[52] I can deal with that submission shortly. The appellant has been in New Zealand for over 25 years. I do not consider he falls within the foreign resident category. He is well established in New Zealand. I accept he is feeling isolated, that his family are
17 Manawaiti v R, above n 16, at [18] citing William Young P in R v Hockley [2009] NZCA 74 at [32].
18 R v Enriquez-Ballestero, above n 5, at [56].
not living here, and that he is now shunned from prior connections. That is the sad reality of offending of this nature.
Personal circumstances
[53] In considering if the Judge erred in assessing the credits allowed, it is relevant that, with reliance on matters raised in the pre-sentence report and in the report of Mr Neilson, the Judge allowed a 10 per cent deduction to reflect Mr Enrique-Ballestero’s personal background. Those reports detailed personal matters that were redacted in the Judge’s sentencing notes, but to which I have had access. I have reservations as to the extent of any causal connection between the matters raised in the reports and the appellant’s offending for the first time as a 43-year-old. In my view the deduction allowed by the Judge of 10 per cent was generous. That is a factor I take into account when considering whether the end sentence was manifestly excessive.
General
[54] Taking the individual components of the sentence proposed by Ms Gray, a combined discount of over 70 per cent would be applied. I consider that approach gives rise to what is known as “discount creep”. Ms Gray appropriately acknowledged that given the overlap between the various personal mitigating factors a 70 per cent deduction was not realistic.
[55] An approach that invites the Court to assess and quantify the credit particular to multiple individual components of the sentence structure only serves to highlight the risk of an overly mathematical approach to sentencing. It is an approach that serves as a helpful reminder of the need for every sentencing court to “stand back” to ensure that the end sentence is appropriate.
[56] In this case, and as is often the case, the appellant’s personal circumstances give rise to a series of inter-related factors that warrant consideration. To separate out one or more of those considerations “will not only be artificial and contrived, but will
also be illogical”.19 This case is an example of the concern expressed by the majority of the High Court of Australia in Wong v R:20
So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.
(emphasis in original)
[57] It is the obligation to “stand back and decide whether the outcome of the process followed is the right sentence”,21 that guards against discount creep, a phenomenon described by Downs J in R v LB as one:22
…by which closely related or interrelated mitigating features are artificially disaggregated, then each awarded full and discrete discount[s] to achieve a desired result.
[58] As the Court of Appeal in Cossey v R observed, it is inappropriate to accumulate mitigating factors without considering whether the final sentence adequately serves other sentencing purposes.23
[59] I am satisfied that the starting point adopted by the Judge of five years’ imprisonment was high-end, but within range. I consider there to be considerable overlap between the mitigating factors of guilty plea, remorse, rehabilitation, and previous good character.
[60] I am of the view that an additional credit is available in recognition of the combined strength of those factors. As I have found, I consider the Judge erred in not allowing a deduction for previous good character and the deduction allowed for remorse and rehabilitation was on the low side. I consider a global deduction of 60 per cent to be appropriate. That takes into account what I consider to be a generous
19 R v Gallagher (1991) 23 NSWLR 220 at 228 as cited in Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [53].
20 Wong v R [2001] HCA 64 at [76].
21 Hessell v R, above n 19, at [77]; Dickie v R [2023] NZCA 2, [2023] 2 NZLR 405 at [175]; Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46]; Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [22]; McCaslin-Whitehead v R [2023] NZCA 259 at [61]; and most recently Shute v R [2024] NZCA 334 at [63].
22 R v LB [2020] NZHC 94 at [53].
23 Cossey v R [2021] NZCA 677 at [14].
deduction of 10 per cent allowed by the Judge for personal background factors, a deduction not challenged by Ms Gray on appeal.
[61] Applying that deduction to the starting point of five years’ imprisonment gives rise to an end sentence of 24 months’ imprisonment. That is a short-term sentence that requires the Court to consider whether the sentence ought to be commuted to one of home detention.
Home detention
[62] Ms Gray submits that if the Court determines that a short-term sentence was available, the least restrictive appropriate outcome was a sentence of home detention, having regard to the very special and, she submits, unique combination of mitigating factors presented by Mr Enriquez-Ballestero. Presently however, the appellant does not have a suitable address at which he might serve a sentence of home detention. Accordingly, she asks the Court to grant the appellant leave under s 80I of the Sentencing Act 2002 for the appellant to apply for home detention.
[63] I acknowledge that a sentence of home detention has strong elements of denunciation and deterrence. It is a sentence that is second in the hierarchy of sentencing to imprisonment. Notwithstanding, I do not consider home detention to be an appropriate sentence.
[64] As was recognised by the Judge, the combination of repeated indecent assaults on such a vulnerable victim, the making of an objectionable publication of one of the indecencies, and the possession of significant numbers of objectionable publications, spread over a prolonged period does require a strong deterrent response. It is, of course, regrettable that the extensive rehabilitative progress made by the appellant up to the date of sentencing cannot continue. However, Ms Gray acknowledges that although the appellant may not be eligible to engage in treatment during a short-term sentence, he has the contacts and potentially the capacity to continue the private work he has conducted with Mr Neilson.
[65] In my view the seriousness of this offending is at a level that requires the Court to impose a sentence that most strongly engages the sentencing purposes of denunciation and deterrence. That sentence is one of imprisonment.
Result
[66] The appeal is allowed. The sentence of two years and six months’ imprisonment imposed on each charge is quashed and substituted with a sentence of two years’ imprisonment on each charge.
[67] I impose the special release conditions as set out in the pre-sentence report dated 29 April 2024, to expire on the sentence expiry date.
[68]The suppression orders made by Judge Lynch remain in place.
[69] The appellant’s appeal against the refusal of the Judge to suppress publication of [redacted] has been abandoned and suppression therefore lapses.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Dunedin
Counsel:
K Gray, Barrister, Christchurch
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