Hukehuke v The Queen
[2021] NZHC 817
•15 April 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-56
[2021] NZHC 817
BETWEEN SIONE HUKEHUKE
Appellant
AND
THE QUEEN
Respondent
Hearing: 12 April 2021; further submissions filed 13 and 14 April 2021 Counsel:
J-F M O’Halloran for appellant M D East for respondent
M E Goodwin, on behalf of victims as an observer
Judgment:
15 April 2021
RESERVED JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 15 April 2021 at 3.00pm.
Registrar/Deputy Registrar Date:
Solicitors:
Public Defence Service, Auckland Crown Solicitor, Auckland
HUKEHUKE v R [2021] NZHC 817 [15 April 2021]
[1] Sione Hukehuke pleaded guilty to seven charges arising from a spate of offending on 8 and 9 February 2020, some of it involving serious violence during a home invasion.1 He was 22 years old at the time. Mr Hukehuke now appeals against the sentence of six years five months’ imprisonment imposed on him by Judge Collins in the District Court at Auckland on 22 January 2021.2
Background
[2] At 8.30 am on 8 February 2020, at an address in Freemans Bay, Auckland, the first complainant was taking a shower. She left the shower to investigate noises coming from her bedroom. She found Mr Hukehuke there and demanded he leave. He refused initially and told her he wanted to see her naked, but eventually he left. He returned later and stood on the complainant’s deck but left when told to do so. Mr Hukehuke pleaded guilty to burglary.
[3] At 8.00 am on 9 February 2020, Mr Hukehuke entered a Grey Lynn house by breaking the back door and windows. He stole two iPhones and “a significant number of notes in Euros”. He also took possession of two full bottles of wine.3 A second burglary charge relates to that offending.
[4] While in the house, Mr Hukehuke became aware that the occupants were inside. When detected by Mr Young, he used one of the bottles to strike Mr Young around the head and face multiple times until he lost consciousness. The force involved smashed the bottle. Mr Young gained some consciousness and managed to stand up, but he was disoriented. He was then hit again in the head and the leg, rendering him fully unconscious. His leg was broken in four places.
1 Burglary, Crimes Act 1961, s 231(1)(a), maximum penalty: 10 years’ imprisonment. Wounding with intent to cause grievous bodily harm, Crimes Act 1961, s 188(1), maximum penalty: 14 years’ imprisonment. Assault with a weapon, Crimes Act 1961, s 202C, maximum penalty: five years’ imprisonment. Intentional damage to a motor vehicle, Crimes Act 1961, s269(1)(b), maximum penalty: seven years’ imprisonment. Theft Ex Car, Crimes Act 1961, ss 219 and 223(c), maximum penalty: one year’s imprisonment.
2 R v Hukehuke [2021] NZDC 1013.
3 At [11].
[5] The other occupant, Mr Rush, then entered the room, having been alerted by the noise. Mr Hukehuke threw one of the bottles of wine at him; it shattered, cutting Mr Rush’s leg. Mr Rush went for help.
[6] Mr Long, a neighbour, arrived with Mr Rush to help at the scene. Mr Hukehuke wounded Mr Long by stabbing him in the neck with the broken bottle of wine. Mr Rush and Mr Long continued to demand that Mr Hukehuke should leave. After several minutes, Mr Hukehuke left the house and ran down the street, followed by another neighbour. He smashed the window of a parked Toyota Corolla with a rock, entered the car, and stole a third (Samsung) smartphone. He was then arrested a short distance away in possession of the stolen property.
[7] Mr Hukehuke pleaded guilty to wounding Mr Young with intent to cause grievous bodily harm; to assaulting Mr Rush and Mr Long with a weapon; to two charges of burglary; to intentional damage of the car and to the theft of the Samsung cell phone.
District Court Decision
Starting point
[8] In fixing an initial starting point for the appropriate sentence, Judge Collins referred to the tariff case of R v Taueki.4 For the lead offence of wounding Mr Young with intent to cause grievous bodily harm, the Judge adopted an initial starting point of eight years’ imprisonment, as recommended by the Crown.5
[9] Considering totality, the Judge then uplifted the starting point by two years for the attacks on Mr Rush and Mr Long, and one year for the burglaries and the damage and theft as he fled from the scene,6 arriving at an adjusted starting point of 11 years’ imprisonment. He noted expressly that the individual offences would have attracted sterner sentences if treated by themselves, but he applied the appropriate totality principle.
4 R v Taueki [2005] 3 NZLR 372 (CA).
5 R v Hukehuke, above n 2, at [25].
6 At [26]-[27].
Mitigating factors
[10] The Judge then applied a 25 per cent guilty plea discount,7 despite a submission from the Crown that the pleas were entered late and that a 20 per cent discount was appropriate. The Judge noted that the full credit available should be given on account of Mr Hukehuke having saved a trial and having pleaded guilty knowing, after receiving a sentence indication, that a starting point of 11 years would be taken.8
[11] Judge Collins noted the Supreme Court decision in Hessell v R called for sentencing to be an overall evaluative approach and not a prescriptive and formulaic exercise.9 Notably, the Judge said that, in reaching an appropriate end sentence, the Court should not lose sight of the overall gravity of the offending. I agree with that observation. The Judge found that some of Mr Hukehuke’s mitigating factors overlapped and gave some recognition to Mr Hukehuke’s lack of previous offending. The Judge said, however, that his drug and alcohol use indicated he did not have an “exemplary character”.10
[12] Citing Churchward v R, Judge Collins said that youth would only be a discrete mitigating factor where it was causative of the offending and held that Mr Hukehuke’s offending was not the result of impulsivity or immaturity, so no discrete discount was warranted for his youth.11 He noted, however, that Mr Hukehuke’s youth and lack of prior offending, along with his engagement with treatment, demonstrated good prospects for rehabilitation and took those factors into account.12
[13] The Judge referred to the uncertainty about the part Mr Hukehuke’s schizophrenia played in his offending, but concluded that the consumption of alcohol, potentially in concert with other drugs, was the “overwhelming cause” of his actions. Judge Collins considered, however, that Mr Hukehuke’s schizophrenia would increase the hardship of his being incarcerated in prison.13
7 R v Hukehuke, above n 2, at [28]-[30].
8 At [28].
9 At [30]; citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
10 At [32].
11 At [36].
12 At [37].
13 At [38]-[39].
[14] Accounting for Mr Hukehuke’s previous good character, his youth, the prospect of rehabilitation and significant mental illness, Judge Collins applied a combined discount of 15 per cent. This led to a total discount of 40 per cent, which the Judge described as “very significant”.14
End sentence and absence of MPI
[15] Mr Hukehuke received a first strike warning for the offending.15 The Judge remarked that, although the serious offending to which Mr Hukehuke had pleaded guilty would typically result in the imposition of a minimum period of imprisonment, the Crown had not sought one. The Judge said he had regard to that concession in not providing a specific discount for youth.
[16] On the charge of wounding Mr Young with intent to do grievous bodily harm, Mr Hukehuke received a sentence six years five months’ imprisonment. He received concurrent sentences of two months’ imprisonment for theft, and two years’ imprisonment on all other charges.
Submissions
Appellant
[17] Ms O’Halloran argues on behalf of Mr Hukehuke that Judge Collins erred by failing to allow sufficient credit for Mr Hukehuke’s youth, remorse, mental health and time spent on restrictive bail conditions. Counsel concedes that there is a degree of overlap in the factors considered by Judge Collins but submits this does not remove the necessity for each mitigating factor to be accounted for.
[18] Ms O’Halloran submits that Judge Collins’ decision not to impose a minimum period of imprisonment as compensating for not granting a specific discount for youth was inappropriate. She submits that a minimum period of imprisonment should usually only be imposed when the consideration of the concepts of denunciation, accountability, deterrence, and protection are not already adequately addressed in the
14 R v Hukehuke, above n 5, at [40].
15 Sentencing Act 2002, s 86B.
sentencing exercise. Ms O’Halloran argues that Mr Hukehuke’s behaviour is consistent with the neurological development limitations for someone of his age, and that a lengthy sentence would be “crushing” for him, given his positive capacity for rehabilitation. Counsel submits that a discrete 10 per cent discount would be appropriate to reflect Mr Hukehuke’s youth and the implications of it on his culpability for the offending.16
[19] Ms O’Halloran noted that the Judge did not refer to Mr Hukehuke’s expressions of remorse recorded in the pre-sentence report and a letter of apology he wrote to the victims of his offending. She submits these expressions ought to have been considered worthy of a separate discount.
[20] Lastly, Ms O’Halloran refers to the psychiatric diagnosis that, at the time of the offending, Mr Hukehuke had a previously unrecognised and untreated major mental health condition, characterised by auditory and visual hallucinations. She concedes that the causative link between the condition and the offending cannot be identified but says the condition cannot be discounted as unconnected to the offending. She submits that whilst alcohol was an operative cause, it does not remove the role mental health issues also played. Counsel submits that mental health conditions causally connected to the offending provides mitigation for sentencing purposes – she notes that mental impairment, which impacts the offender’s free will reduces an offender’s blameworthiness. Ms O’Halloran refers to a case in which a 20 per cent discount was given to the starting point for possession of child pornography because the offender’s brain injury, relatively low-level cognitive functioning or possible Asperger’s Syndrome would make it harder for him to cope in a prison environment.17
[21] Counsel concludes that, in addition to the plea discount of 25 per cent, a 30 per cent discount would be appropriate to reflect Mr Hukehuke’s youth, previous good character, real prospect of rehabilitation, mental health (causal connection and impact upon prison experience) and genuine remorse.
16 Gacitua v R [2013] NZCA 234 and Richards v R [2017] NZCA 232.
17 Ellery v Police [2015] NZHC 480 at [22].
[22] Ms O’Halloran separately addresses the time Mr Hukehuke has spent on restrictive bail conditions. Mr Hukehuke was granted bail subject to a 24-hour curfew on 11 February 2020, on which he remained without breach until his sentencing on 22 January 2021. Counsel submits Judge Collins ought to have taken this into account at sentencing. Referring to the Court of Appeal’s guidance,18 Ms O’Halloran submits a six-month discount would be appropriate to reflect the more than 11 months during which Mr Hukehuke was confined by restrictive bail conditions.
Respondent
[23] Responding to these submissions, Mr East submits that the serious nature of Mr Hukehuke’s offending was properly reflected in the global adjusted starting point of 11 years’ imprisonment adopted by Judge Collins. He argues that the 40 per cent discount afforded to Mr Hukehuke was significant and that a discount of the order of 60 per cent as submitted by Ms O’Halloran would be contrary to authority. He relies on the observation by the Court of Appeal that a 50 per cent discount (including accounting for early guilty pleas) is to be reserved for personal mitigating circumstances that are “truly exceptional”.19 Mr East concedes that a discount at that level or higher could be applied if the circumstances warranted it; Ms O’Halloran has referred me to cases supporting her submission that a 60 per cent discount is supportable: Maiko v R, R v Manual, R v A, R v Kirk and Taiapa v R.20
[24] Mr East acknowledges that the Judge’s assessment that a 40 per cent discount overall was appropriate was reached by a different route from that advocated by Mr Hukehuke’s counsel. But he points out that, on appeal, whether a sentence is manifestly excessive is to be examined in terms of the final sentence reached, rather than how it was calculated.21 The approach taken by the Judge followed the two-step methodology set out recently by the Court of Appeal in Moses v R.22
18 BB (CA732/12) v R [2013] NZCA 139 at [15]: “Factors which will often be taken into account [when assessing sentence mitigation for time spent subject to restrictive bail conditions] are the extent to which a person’s freedom of movement has been curtailed by the bail conditions, the period of time during which the offender was subject to those conditions, and whether there is a record of any breaches.”
19 R v Maposua CA131/04, 3 September 2004 at [10].
20 Maiko v R [2020] NZHC 2958; R v Manual [2021] NZHC 250; R v A [2021] NZHC 502; R v Kirk
[2017] NZHC 673; Taiapa v R [2020] NZHC 3355
21 Ripia v R [2011] NZCA 101 at [15].
22 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 (CA) at [46]-[47].
Approach
[25] I must allow Mr Hukehuke’s appeal only if I am satisfied there is an error in the sentence and a different sentence should have been imposed. In any other case, I must dismiss the appeal against sentence.23 The approach previously taken by courts on sentencing appeals continues to apply;24 the measure of any error that should result in a reduction of sentence is that the sentence imposed must be shown to be “manifestly excessive”, a principle “well-engrained” in the courts’ approach to sentence appeals.25 An appellate court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is “manifestly excessive” is to be assessed in terms of the sentence given, rather than the process by which it is reached.26
[26] On appeal, therefore, I am required to be satisfied that the end sentence was within the available range.27 I have to make up my own mind on appeal as to whether the Judge’s contended error is material,28 such that it produces a sentence that is manifestly excessive.29 Not every decision taken at sentencing is treated as discretionary for the purposes of appellate review.30
Discussion
[27] In support of this appeal, Ms O’Halloran has focused her thorough and principled submissions on the mitigating factors of Mr Hukehuke’s age; the absence of prior convictions; his expressions of remorse and his apology to his victims; his guilty pleas and his good prospects of rehabilitation. She has emphasised his mental disability and drawn attention to the restrictions of a 24-hours per day, seven days per week curfew over a lengthy one-year remand period.
23 Criminal Procedure Act 2011, s 250(2) and (3).
24 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
25 At [33] and [35].
26 Ripia v R, above n 21, at [15].
27 Houston v R [2013] NZCA 581 at [10].
28 Te Aho v R [2013] NZCA 47 at [30].
29 R v Radich [1954] NZLR 86 (CA) at 87.
30 Kumar v R [2015] NZCA 460 at [82]. See also: K v B [2010] NZSC 112 at [32]. The distinction between a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract. But the fact that the case involves factual evaluation and a value judgment does not of itself mean the decision is discretionary.
Assessing the adjusted starting point for the lead offence – R v Taueki principles
[28] While it was necessary and important for the District Court judge to have regard to Mr Hukehuke’s personal circumstances in determining an appropriate end sentence, this was very serious offending, as Ms O’Halloran properly acknowledged by not challenging Judge Collins’ adjusted starting point of 11 years’ imprisonment.31 It has been said by the Court of Appeal that the extent of the discount to be allowed for mitigating features personal to an offender is a highly discretionary exercise.32 But accounting for those factors that go to determining the seriousness of the offending itself is an exercise calling for judicial assessment, rather than discretion, and an appellate court is required to come to its own view about that.33
[29] The methodology adopted by Judge Collins was to take that initial adjusted starting point and uplift from it, having regard to the other offending (the attacks on Mr Rush and Mr Long, the burglary, damaging the vehicle and stealing the cell phone), to reach a global adjusted starting point. That was a principled approach, but I consider that the offending against Mr Young was among the more serious of its kind. Applying the Taueki guidelines provided by the Court of Appeal for sentencing in cases of this kind,34 I am inclined to think that the Judge acted too leniently in accepting the Crown’s submission that an adjusted starting point of eight years’ imprisonment was appropriate for the charge of wounding Mr Young with intent to cause grievous bodily harm.
[30] In describing the bands of seriousness of offending leading to sentences within a range defined by the Court, the Court of Appeal reserved band three for the most serious cases of its kind. The Court said that such cases “would normally encompass serious offending … where the combination of aggravating features is particularly grave”.35 The Court placed in band three cases where three or more of the aggravating
31 The reference to the “adjusted” starting point reflects the use of that expression by the Court of appeal in Moses v R [2020] NZCA 296 at [6] to signify a starting point based on the circumstances of the offending that incorporates all aggravating and mitigating features of the offending.
32 Tutakangahau v R, above n 24, at [26]–[27].
33 Kumar v R, above n 30.
34 R v Taueki, above n 4.
35 At [40].
features identified by the Court were present. Six of those features are present in the offending by Mr Hukehuke against Mr Young:
(a)The offence was committed during a home invasion. The courts have repeatedly emphasised the importance of recognising the sanctity of the home and have insisted that violence occurring in a person’s house is to be treated as an aggravating factor calling for a higher sentence.36
(b)The offence was committed to facilitate the commission of the crimes of burglary and theft, and Mr Hukehuke’s attempts to avoid detection and escape.37 Moreover, it was gratuitous: Mr Young did not act in an aggressive or confrontational manner; he simply demanded that Mr Hukehuke should get out of the house. Mr Hukehuke could have done that without taking any violent action.
(c)A full wine bottle was used as a weapon. Though not in itself lethal, the weapon proved to be capable of causing very serious injury.38
(d)Mr Hukehuke attacked the head of the victim, striking Mr Young several times around the head and face causing him to lose consciousness momentarily. He then attacked Mr Young a second time when, having recovered consciousness, he managed to stand up, hitting him again in the head and the leg rendering him fully unconscious and breaking his leg in four places.39
(e)The injuries were serious. Mr Young described the attacks on him as having caused him extensive injuries to his face with his jaw, cheekbones, hard palate and eye socket all having been fractured. As he said, “basically all the bones in my face were broken”. He suffered concussion and was required to undergo ear, nose and throat surgery, leaving him with intermittent but severe nerve pain, nerve damage to
36 At [31](j); Sentencing Act 2002, s 9(1)(b).
37 R v Taueki, above n 4, at [31](f).
38 R v Taueki, above n 4, at [31](d).
39 At [31](e).
his face and at least six teeth. His leg was broken in the second attack in four places, again requiring multiple surgeries. In a second victim impact statement prepared in late January of this year, Mr Young said that he is likely to need further operations this year to his leg, face and teeth and it seems likely that he will be left with an unusual combination, not only of continual numbness but also pain in his face and leg which may never improve. He has also suffered understandable psychological trauma which has impacted on his daily life. As indicated by s 9(1)(d) of the Sentencing Act 2002, where the injuries suffered by a victim are serious, a higher starting point than in cases of minor injury will be called for.40 Moreover, there can be no doubt that attacking Mr Young over the head with a full wine bottle could easily have caused a fatality. Many cases have been before the courts where far less significant trauma to the head has resulted in the death of the victim.
(f)The case involved repeated violence that was unprovoked and gratuitous. Even after felling Mr Young a second time with blows to his head, Mr Hukehuke broke Mr Young’s leg in four places. This was not a situation in which Mr Hukehuke had been cornered; the means of escape were made readily available to him by Mr Young who simply demanded that he leave the house.
[31] Having regard to the presence of six of the aggravating factors specifically referred to by the Court of Appeal in Taueki, I consider that the offending against Mr Young fell around the middle of band three for which a starting point of 10 to 11 years’ imprisonment could not have been criticised.
Assessing the global adjusted starting point for all offending
[32] Moreover, the offending against the neighbour Mr Long, which involved stabbing him in the neck and face with a broken wine bottle, would have justified placement within Taueki band two (five to 10 years’ imprisonment). Bearing in mind
40 At [31](c).
the aggravating features of home invasion, the facilitation of the commission of a crime, an attack to the head, the use of a weapon and the gratuitous and unprovoked attack on Mr Long, Mr Hukehuke would have been liable to a starting point of not less than seven years’ imprisonment for that offence taken on a stand-alone basis.
[33] Taking into account also the attack with a weapon on Mr Rush that caused cuts to his leg; the burglary the previous day in which Mr Hukehuke entered the house of a woman he had seen standing naked near her bathroom; and the damage to the vehicle and theft of a cell phone, an uplift of three or four years from the starting point of, say, 10 or 11 years for the offending against Mr Young would have produced a global adjusted sentence in the vicinity of 14-15 years’ imprisonment.
[34] Applying a totality approach, an adjusted starting point of not less than 12 years’ imprisonment for the offending overall would have been unassailable in my view.
Personal mitigation factors
[35] Turning to the personal mitigating factors, I address first the discount of 25 per cent allowed by Judge Collins for Mr Hukehuke’s guilty pleas. While I acknowledge the matters relied upon by Judge Collins, that was a generous allowance. The case against Mr Hukehuke was particularly strong: there was no question that he was the offender, having been apprehended by the Police a short distance from Mr Young and Mr Long’s address in possession of stolen property taken in the burglary and from the car, and having been identified by the witnesses. Although I understand issues about Mr Hukehuke’s mental state required attention, Mr Hukehuke did not seek a sentence indication until six months after his first appearance. In my view a discount of between 15 and 20 per cent would have been more appropriate.
[36] The Judge paid express regard to the absence of prior convictions, Mr Hukehuke’s mental disability and the good prospects of rehabilitation, having regard to all factors including Mr Hukehuke’s age. The question posed by Ms O’Halloran is whether he accounted for them appropriately by allowing only a 15 per cent discount. In my view, the Judge’s approach was properly available to him.
[37] I agree with the Judge’s view that the vicious attacks on the victims could not be mitigated by reference to Mr Hukehuke’s youth. This was not impulsive, one- punch, reactive offending. It involved four separate unprovoked attacks on the victims
– several minutes apart – in circumstances where Mr Hukehuke had the option of leaving the house as soon as he was found without inflicting any violence on the occupants of the property he had invaded.
[38] There is no fixed discount for youth and, by analogy with Huata v R,41 it was a legitimate exercise of the Judge’s discretion to decline to give such a discount. But it is well-established that a judge may recognise the youth of offenders by declining to impose a minimum period of imprisonment.42 The absence of a minimum period of imprisonment in Mr Hukehuke’s case gives him hope of an early release and a real incentive to engage in rehabilitation,43 which will be available to him sooner than if he was serving a minimum term.
Remorse
[39] Two other factors referred to by Ms O’Halloran deserve further discussion. First, counsel is correct to point out that the Judge made no specific reference to Mr Hukehuke’s expressions of remorse. I am not persuaded, however, that they were such as to justify a discrete discount. Mr Hukehuke’s apology letter, which did not appear until sentencing, makes no reference to the serious violence he inflicted on his three victims.
Discount for restrictive bail conditions
[40] Second, and more significantly in my view, the Judge did not refer to the effect of Mr Hukehuke having been remanded on restrictive bail conditions that included a 24-hour per day, seven days per week curfew for the period of almost a year.
[41] When an offender is remanded in custody pending sentence, the law treats the time spent in custody as part of the time served under the subsequent sentence of
41 Huata v R, above n 42.
42 R v Harding [2016] NZHC 2069 at [78]; Papa v R [2014] NZHC 2832 at [27]; Huata v R [2013]
NZCA 470 at [37]; and Rolleston v R [2018] NZCA 611 at [41].
43 Huata v R at [37].
imprisonment.44 Where an offender is remanded on restrictive bail conditions, however, the effect of those conditions on the offender’s liberty is not automatically taken into account in relation to serving any subsequent sentence of imprisonment.45 Although there is no absolute right to a discount for a restrictive bail regime, the courts conventionally consider the extent to which a person’s freedom of movement has been curtailed by the bail conditions, the period of time during which the offender was on bail subject to those conditions, and whether there is a record of any breaches.46
[42] This was a sentencing exercise that was by no means straightforward and I am inclined to think the omission was an oversight by an experienced but busy District Court judge. I consider that, if Judge Collins had turned his mind to this factor, he would have made an appropriate allowance for the time spent on restrictive bail. A discount of six months’ imprisonment would have been appropriate in that regard and the Judge’s oversight amounts to an error.
[43] On appeal, however, this Court is required to stand back and look at the overall effect of the Judge’s sentencing approach and to consider whether, in all the circumstances, such errors as there may have been have given rise to a sentence that cannot be sustained. While Judge Collins may have erred in not making an allowance for restrictive bail conditions, I am satisfied that error has not led to any injustice. In my view, the Judge took a starting point that was lower than was properly attributable to the seriousness of the offending against Mr Young; his uplifts for the other offending were modest and he allowed a generous discount for Mr Hukehuke’s guilty pleas.
[44] In those circumstances, I consider that an effective end sentence of not less than eight years’ imprisonment was justified. That means that the sentence of six years and five months’ imprisonment should properly be considered sympathetic in view of the seriousness of the offending.
44 Parole Act 2002, ss 90 and 91.
45 Sentencing Act 2002, s 82; New Zealand Police v Wilson [2017] NZHC 2388 at [17].
46 BB (CA732/12) v R, above n 18, at [15].
Result
[45] Ms O’Halloran has said everything that could possibly be said in the appellant’s favour, but I find that the sentence was not excessive. The appeal is dismissed.
Toogood J
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