R v Beckett
[2021] NZHC 3118
•16 November 2021
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2020-042-00131
[2021] NZHC 3118
THE QUEEN v
TRISTIAN CECIEL BECKETT
Hearing: 16 November 2021 Appearances:
A R Goodison for the Crown E Riddell for the Defendant
Sentence:
16 November 2021
SENTENCING NOTES OF GRICE J
Introduction
[1] Tēnā koe Mr Beckett. You may be seated while I make my remarks as I intend to explain how I reached the sentence that I do in the end. I will ask you to stand at the end.
[2] Mr Beckett, you are being sentenced for offences against your partner, or your then partner. You pleaded guilty to:
(a)threatening to do grievous bodily harm (GBH);1
1 Crimes Act1961, s 306: maximum penalty of seven years’ imprisonment.
R v BECKETT [2021] NZHC 3118 [16 November 2021]
(b)threating to kill;2
(c)committing a threatening act;3
(d)assault with intent to injure;4 and
(e)strangulation.5
[3] I will spend some time setting out the reasons for the sentence I impose. The written sentence notes will be sent to you in due course. They will be edited for grammar and flow, but they will be substantially what I say today.
Background
Factual background
[4] Mr Beckett, you and the complainant had been in a relationship for about six months and she was 13 weeks pregnant with your son.
[5] On 20 April 2020, you threatened to cut open her stomach and take out the child. That gave rise to the threatening to do GBH charge.
[6] All the other charges arose on 24 May 2020. You were on bail for that earlier offending and also serving a sentence. You had consumed alcohol that day and wanted to get some of your things that were at the complainant’s house, which had been your house earlier as well. After she said she would drop them off to you the next day, as she had finished work late and was tired, you became enraged because you thought she was with another male. You began walking to the address and you text multiple abusive messages, including one saying “IMA gonna kill him U”, “IMA kill him an U” and “Ur dead”. These gave rise to the charges of threatening to kill. She responded that she would call the police. She locked up the house and went to bed, believing you were bluffing. Then she woke up at night and saw you walking into her bedroom.
2 Section 306: maximum penalty of seven years’ imprisonment.
3 Section 308(a): maximum penalty of three years’ imprisonment.
4 Section 193: maximum penalty of three years’ imprisonment.
5 Section 189A(b): maximum penalty of seven years’ imprisonment.
[7] The threatening act charge arose from your taking the complainant’s phone and knife, which were beside the bed. You stabbed the knife into the wall a metre above the complainant’s head with such force, you bent the knife. She ran into the lounge and as she tried to get out the backdoor, you grabbed her from behind and pulled her back inside. You sat the complainant on the couch, questioned her and verbally abused her, pushing her back down every time she tried to stand up. After about 15 minutes you let her stand up and she ran for the kitchen. You grabbed her by the shoulders and pulled her over to a cabinet and made her write a note saying that the house was yours.
[8] The complainant managed to break free and ran outside. She then attempted to leave in her vehicle, but you stopped her. You demanded she turn off the vehicle, which she did out of fear, and she briefly fled to the main road. She thought she heard you return to the house and again attempted to flee in the car. She then sat in the driver’s seat and tried to lock the doors, but the central locking system failed. You entered the rear passenger seat behind her.
[9] Then the intent to injure charge arose. You reached over her shoulders, put your hands around her jaw and pulled her head back with such force that she said she thought her head would come off. You said, “I am going to snap your neck, if I pull harder I will snap your neck” and “I want to kill you”.
[10] As you loosened your hold the complainant lent forward and opened the door. You moved your hands to her throat, pinched her windpipe and told her to shut the door. You held her windpipe for about a minute or so, so she could not breathe or make any noise. You then let go and put your hand around her jaw. You pulled her halfway into the back seat. The complainant said she thought she was going to die and begged you not to take her away from her children.
[11] You then started laughing and let go of the complainant. You told her you wanted her to get an abortion. You asked her whether she had cheated on you and after she answered no you pulled her by the jaw once more. She said she was not answering any more questions, thinking that if she said something wrong, you would kill her.
[12] You then hugged her and acted like nothing had happened. She was frozen in shock.
[13] Subsequently the complainant suffered from tenderness to her throat, which made it painful to talk. A nurse, who assessed her on 10 June, found she had a neck sprain and bruised vocal cords.
Procedural history
[14] When you were initially charged, the May offending also included a burglary charge and assault on a person in a family relationship. On 20 September 2020, you received a sentence indication on the basis of that offending. When the Crown Prosecutor assumed responsibility, that last charge was amended to the more serious charge of kidnapping and that meant the matters were transferred to the High Court. This was done on the basis that you had grabbed the complainant from behind as she tried to run out of the house and pulled her back inside, sitting her on the couch.
[15] In late March 2021, a trial date for 18 October 2021 was set following two pre- trial hearings relating to the admissibility of Crown evidence. On the 29th of March 2021 you pleaded guilty to the April offending. On the 15th of September 2021, a month before trial, you pleaded guilty to the remaining charges for which you are now being sentenced. At that time the kidnapping and burglary charges were withdrawn by the Crown.6
Sentence indication
[16] At the sentence indication the Judge had adopted a starting point of two years and six months’ imprisonment for the strangulation charge. This was uplifted by one year for the other charges arising from the May offending and by another six months for the April charge of threatening to do GBH. That came to a combined total of four years. No uplift was added for previous convictions but three months was added for offending on bail and while serving a sentence. A 25 per cent discount would have then been given for a guilty plea at that time. The Judge also indicated that the end
6 R v Beckett HC Te Whanganui-a-Tara | Wellington CRI-2020-042-1141, 15 September 2021.
sentence would be imprisonment, regardless of whether the imprisonment term was less than 24 months’ imprisonment.
Purposes and principles of sentencing
[17] I now must consider the present offending. I must take into account the principles and purposes of sentencing, which are set out in the Sentencing Act 2002. This is a case of family violence and the most relevant principles are accountability for the harm you have done to the complainant and to the community, making you responsible for your actions, providing for the interests of the complainant, denunciation and deterrence of your conduct, as well as protection of the community.7 At the same time I must consider assistance in your rehabilitation and re-integration. While you must be held accountable for the grave and serious harm that you have caused by your offending, to the complainant, to her whānau, and to the community, any sentence imposed must be consistent with sentences imposed in similar cases,8 and be the least restrictive outcome that is appropriate in the circumstances.9
Starting point
[18] I have to start by setting a starting point for the sentence. The lead charge in this case is strangulation. This Court in Ackland v Police, set out the following aggravating factors in cases of strangulation as being:10
(a)strangulation in the context of a domestic of intimate relationship/vulnerability of complainant;
(b)threats, particularly threats to kill;
(c)loss of consciousness;
(d)multiple events;
7 Sentencing Act 2002, ss 7(1)(a), (b), (e) and (f).
8 Section 8(e).
9 Section 8(g).
10 Ackland v Police [2019] NZHC 312, [2019] NZHC 312 at [26]; having reviewed the Law Commission’s 2016 report on strangulation: Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016).
(e)other violence/injury;
(f)significant impact on others; and
(g)breach of protection order.
[19] Cooke J noted the “worst class” of strangulation behaviour was set out in the Law Commission report on strangulation. In that case the Law Commission said that:
5.42… excluding behaviour that would be charged under another serious violent offence. Strangulation that results in injury or wounding, or for which there is evidence of an intention to commit another offence, is out of scope because such cases could be charged under existing serious violent offences.
But:
5.43An example of the worst class of strangulation within scope would feature the hallmarks of coercive or controlling behaviour and the terror we have identified. For example, a perpetrator enters the victim’s home in breach of a protection order. After an altercation, he strangles her with his hands on and off for several minutes, leaving her struggling for breath, incontinent and unconscious. The victim thinks she will die and knows that the perpetrator has the power to kill her. Because he invaded her home, after the strangulation, she lives in constant fear for her security and life. As a consequence, he has achieved coercion and control over her.
[20] The Law Commission went on to say that in its view “the terror that results from this ‘worst class of case’ is greater than the harm of a minor injury and at least equivalent to a serious physical injury”.11
[21] In the Ackland case, the circumstances were that following an argument with the complainant, with whom the defendant had been in a relationship for 18 years, the appellant slapped the complainant with an open hand across her face four or five times (that resulted in a charge of assault). He then forcibly put his hands around her neck and yelled “[i]f you want I can end it all for you now”. The complainant there lost consciousness (which resulted in the second charge which was strangulation). After she regained consciousness, they continued to argue until the neighbour intervened, at
11 Strangulation: The Case for a New Offence, above n 10, at [5.44].
which point Mr Ackland grabbed the neighbour held a knife to his neck, causing a minor laceration (that gave rise to another charge). The Court there upheld the starting point of four years for all the offending. This included three years and three months for the strangulation charge, and three-month and six-month uplifts for the first and third charges. In that case the Judge described the offending as “broadly in the middle of the available range”.12 He noted the context of family violence, the strangulation was accompanied with verbal death threats, children witnessed the offending and the complainant lost consciousness.
Crown’s submissions
[22] The Crown here submits an overall starting point of four years’ imprisonment should be taken. This includes two and a half years’ imprisonment for the strangulation charge with an uplift of one year for the balance of the 14 May offending, and an uplift of six months for the April charge of threatening to kill.
[23] The Crown, in relation to strangulation, directed me to the cases of Houkamau v Police, T v Police, Mokaraka v Police, Walker-Oaariki v Police and Milne v Police.13
(a)Houkamau: a 24-month starting point was considered “stern” but available to the District Court Judge on one charge of strangulation and assault on a person in a family relationship. In that case the appellant had grabbed the complaint by her clothing and shoved her out the front door of the house. He punched her once in the forehead and began choking her. She found it difficult to breathe. The appellant ignored her calls to let go, before shoving her to the ground and she hit her head on the wooden edges of the garden.
(b)In T v Police, which the Crown particularly directed my attention to, the Judge held that the three-year starting point was lenient and up to four years was available for one charge of strangulation, assault with
12 Ackland v Police, above n 10, at [46].
13 Houkamau v Police [2019] NZHC 2743; T v Police [2019] NZHC 3375, [2020] 2 NZLR 270; Mokaraka v Police [2020] NZHC 718; Walker-Oaariki v Police [2020] NZHC 1087; and Milne v Police [2020] NZHC 358.
intent to injure, intimidation and two charges of breaching release conditions.14 In that case, Mr T had smashed up the house of the complainant, with whom he was in a domestic relationship, while she was away. She returned and he did a running kick at her forehead. She fell down and lost consciousness. She awoke to find him dragging her into the house, forcing her into the flatmate’s bedroom. The defendant then blocked the door with his body and as the complainant attempted to flee he put her in a headlock and dragged her to the bed. The complainant there lost consciousness and control of her bodily functions. In that case unconsciousness and incontinence were indicators, it was said, of a near-fatal strangulation. The Judge noted the elements of home invasion, in that the defendant had been told to leave, and the controlling nature of the physical assault, the prolonged and escalated nature of the assault and the impact on the complainant. The Judge in that case said there was little to distinguish that from the “worst class of strangulation”.15
(c)On the other hand, in Mokaraka the Judge upheld a starting point of two years’ imprisonment on the strangulation charge, with a six-month uplift for the remaining charges. In that case, the appellant had grabbed the complainant, with whom he was in a domestic relationship, and dragged her down the hallway and into a bedroom, following an argument. He said he was going to kill her, before putting his hands around her throat and strangling her. She attempted to fend him off, but he bit her fingers. After releasing her, he kept her in the bedroom for several hours and continued to yell at her.
(d)In Walker-Oaariki the High Court imposed a starting point of 26 months for the strangulation and assault on a family member.16 Those charges arose from a situation where the appellant and the complainant had been seen physically attacking each other while arguing. The
14 The breach of released conditions was unrelated to the violent offending.
15 T v Police, above n 13, at [56].
16 Overturning the District Court decision that adopted a 30-month starting point for both charges, with an additional three-month uplift for prior offending involving the same victim.
appellant pulled the complainant to the ground and stood over her, pulling her hair. He stepped away after passers-by intervened. But shortly afterwards, he pulled the complainant to the ground again and strangled her for four to five seconds before punching her twice in the face.
(e)In Milne the High Court allowed the appeal and adopted a lower starting point of two years’ imprisonment for the strangulation charge with a six-month uplift.17 Those charges arose during a car ride when the complainant drove the appellant while he was intoxicated. He became aggressive and she stopped the car and told him to get out. Following numerous phone calls, she returned to pick him up thinking he had calmed down. He opened the door, launched inside and ripped off her sunglasses, grabbed her by the shoulders and headbutted her cheek. He pinned her to the doorframe as she tried to get out. He put both hands around her throat and strangled her. She felt as if she would pass out. Their 20-month old twin children were in the back seats during this attack.
[24] The Crown says that the strangulation here was less serious than in Ackland, but says it was broadly comparable to T v Police, given that there was control asserted during the offending, as well as the complainant’s attempts to escape. I also note that the offending in the surrounding context of the strangulation in this case was worse here than in other cases such as Ackland.
[25] The Crown, in essence, says the approach of the Judge giving the sentence indication was correct, taking a starting point of two and a half years’ imprisonment on the strangulation with 12 months uplift for the balance of the offending and a further six months for the 20 April offending, leaving a total of four years’ imprisonment as a start point.
17 The District Court had imposed a starting point for two years and nine months’ imprisonment for both charges.
Defendant’s submissions
[26] Ms Riddell, on your behalf Mr Beckett, submits an overall starting point of two years and six months’ imprisonment. That was made up of two years for the May offending as a whole and a six-month uplift for the April offending.
[27] In support of that submission, Ms Riddell pointed to the case of Chapman v Police.18 In that case a 15-month starting point was upheld for strangulation and the issue in the High Court was whether to increase that to reflect the totality of the offending. The facts of that case were that Mr Chapman and his new partner had been arguing while driving. He stopped the vehicle, and both of them got out. The argument escalated, with the partner slapping Mr Chapman in the face and he pushed her away. He grabbed her and threw her into a rock bank. She then leaned into the backseat of the car to retrieve her dog before Mr Chapman hit the car windows multiple times, came around behind her and grabbed her by the neck.
[28] The defendant says the current offending is similar to that and also points out that both the offending in Chapman and here had occurred in a vehicle and had been preceded by other violence. Ms Riddell does note, however, the differences from this case is that here there were accompanying threats of violence and the complainant was pregnant. Ms Riddell submits the starting point of around 24 months should be given for the May offending as a whole and this would be in line with Houkamau and Mokaraka, which attracted two and a half years’ starting points given that in those case there was accompanying violence in the first one and prolonged strangulation and violence in the second one.
[29]Discussion
[30] Thomas J, in Houkamau, noted that family violence is an extremely complex area and care is needed not to focus unduly or only on what might be described as key factors, falling into the trap of a somewhat mathematical approach to the exercise, rather than a proper consideration of the subtleties of the offending.19
18 Chapman v Police [2020] NZHC 2108.
19 Houkamau v Police, above n 13, at [33].
[31] In this case, the strangulation arose in the context of a domestic relationship. There was the particular added vulnerability in that the complainant was pregnant at the time and you were clearly unhappy about that. The offending was aggravated by multiple threats to kill. These began with the text messages while you approached the house and while you were in the car. There were multiple events that occurred over the period of the offending. They began when you broke into her bedroom when she was asleep. The attack from there was prolonged and determined. The complainant was attacked in her bedroom, attempted to flee on multiple occasions and there was an overall attempt to dominate and control her.
[32] In my view the offending was substantially more serious than Houkamau, Mokaraka, Walker-Oaariki, Milne and Chapman, due to the prolonged period over which the offending took place, the controlling nature of the physical violence and the persistence. Added to that importantly was the vulnerability of the complainant, due to the reasons I have set out above, particularly due to her pregnancy.
[33] However, I accept Ms Riddell’s submission that there is a difference between the present offending and that in T v Police. In that case the complainant lost consciousness twice, and became incontinent. That is a sign that the strangulation was extremely serious.
[34] So, considering the similar cases and noting that it is less serious than the T v Police case, which attracted three years’ imprisonment, I consider the starting point here is appropriately two years and six months. I also consider the balance of the charges, which occurred over a prolonged period of persistent violence, should attract an uplift of nine months with a further six months for the April offending.
[35] This leads to an overall starting point of three years and nine months (or 45 months).
Personal factors
[36] I now turn to the personal factors which I must take into account. I then adjust the starting point to reflect aggravating or mitigating factors relating to your personal circumstances.20
Reoffending on bail
[37] The first is the fact that the offending occurred while on bail. The Crown submits that a three-month uplift is warranted for the May offending which occurred while on bail for the April offending and serving a sentence of supervision.
[38] Your counsel submits that while serving that sentence you had struggled to gain assistance for your alcohol dependency. That was due in part to COVID lockdown and the circumstances of serving your sentence in a small town in less than ideal conditions. She submitted that you did want assistance but were prevented from getting it. Your counsel explained that you were upset at having lost the house, due to the bail conditions, and while she does not put that forward as an excuse she says it explains your state of mind and suggests an uplift of two months. I consider that that is too lenient in the circumstance but I do take into account her comments. I consider a three-month uplift is appropriate.
Personal circumstances
[39] I then move on to consider your personal circumstances and particularly here I look at the mitigation factors. I have before me the submissions of counsel, as well as information in relation to your addictions and a detailed psychological report, which has been helpful.
[40] Your upbringing and substance use history is detailed in the Addictions Service report. It notes a genetic predisposition toward substance use and mental health problems. When you were 19, you were involved in a fatal accident in which your best friend was killed and you were injured. This affected you deeply and led to mental health problems and substance abuse. At one stage you were admitted into the Adult
20 Sentencing Act 2002, ss 8 and 9.
Mental Health unit. You have also reported heavy methamphetamine use, although to your credit you have managed to get away from its use.
[41] The report notes you have difficulties with family relationships but you are motivated to make changes, particularly for your son who is now one year old. You have been attending programmes in prison and the treatment plan which was proposed suggested a referral to a residential programme. You also reported that you would like, if possible, some relationship counselling. Whether that is an option now is questionable given that your partner has moved on and herself is seeking counselling. But particularly for your son you would like to attend a parenting through separation course.
[42] The psychological report provides some background on the causative factors which led to the offending. Associate Professor Simon Adamson says that you had an unstable early childhood, with many moves, changes of schools and no meaningful contact with your father. You experienced physical and emotional abuse and lack of learning opportunities as well as learning difficulty. The writer of the report diagnoses you as having severe levels of alcohol and cannabis use disorder. Although to your credit you successfully overcame a methamphetamine addiction. He notes your poor interpersonal and stress coping skills, which “will have contributed to the violent and threatening behaviour toward the complainant”. The rehabilitative recommendations are for a support network, developing better scoping skills and the positive prognosis factors include past reduction of substance abuse and your reporting of seeking self- improvement material. However, there are also some negative factors, such as a poor history of engagement in voluntary treatment, a lack of social support and a tendency to blame others for behaviours, as well as no history of sustained remission from drug addiction.
[43] On balance the report concludes the prognosis as poor to moderate in the short to medium term but would be substantially improved with, among other things, appropriate therapeutic import.
[44] The Crown pointed to the case of Carr v R, where a 15 per cent discount was given for such personal background factors. That case referred to the factors that were
material in giving that discount, including Mr Carr growing up in poverty, associating with the criminal fraternity, drugs as an adolescent and gang affiliations and a cultural disconnection from Te Ao Māori. It included sexual abuse and institutionalisation.
[45] Based on those factors the Crown submits a comparison with Carr, would indicate a discount in the region of 10 per cent before psychological report was taken into account. Subsequently that was revised by the Crown in the submissions to suggesting a 15 per cent discount included for those factors.
[46] Your counsel emphasised the causative link between the trauma, addiction and mental health issues that you suffered. She also pointed to the decision in Zhang v R,21 which noted that discounts are available for addiction, mental health, social and economic deprivation. Your counsel submits all of those are present and says that your circumstances were similar to that of Ms Crighton in Zhang and on that basis a discount of 30 per cent should be allowed.
[47] I have taken note of the factors in your past which the reports indicate were causative of the offending, including the substance abuse, trauma and the poor development of interpersonal skills and access to education. You say you want to rehabilitate for your son and to ensure you have a relationship with him, unlike your relationship with your father. There was an email from the complainant produced that said she knows your heart and that you need help dealing with emotions but she thinks you do not belong in jail. She went on to talk about your son. It seems that that relationship has now waned and she is taking steps to distance herself from you, herself seeking counselling. Nevertheless I take note of the fact that you have something to work toward — that is a relationship with your son and some support.
[48] You made promising progress in the He Waka Tapu Te Pikinga (Headstart) programme. You attended all four sessions and the facilitators say you “fully and willing participated and positively engaged in all sessions” and you “graduated three modules, offering honest and real conversations when examples are asked”.
21 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [162].
[49] In light of the above circumstances, your background, rehabilitation prospects and given the effects of your addiction, mental health and lack of support, I consider a discount in the region of 20 per cent is appropriate.
Time spent on electronically-monitored (EM) bail
[50] You have spent nearly seven months on EM bail.22 The Crown pointed to the case of R (CA528/16) v R,23 where a reduction of four to six months was regarded as common for 12 months spent on EM bail. Your counsel submits a discount of four months is appropriate, noting you were bailed to a place that was not easy to live in.
[51] However, I consider that given the comparison with the R (CA528/16) v R reductions that the reduction for the seven months EM bail should be three months’, in line with reductions in other cases.
Guilty plea
[52] I now turn to the effect of your guilty plea. To your credit, you pleaded guilty before trial, although you had had an earlier opportunity to do so. The Crown says the pleas were made at a very late stage and noted the procedural history and that you could have pleaded guilty at the sentence indication. However, that was prior to the addition of the kidnapping charge, which was added then subsequently withdrawn when you pleaded guilty about a month before trial.
[53] Your counsel notes the main reason that you pleaded guilty was to save the complainant from giving evidence. You did not want to create further animosity and want to work toward having your son in your life. Your counsel points out that one of the pre-trial arguments was partially successful and she submits that you should be given a discount of 20 per cent.
[54] If you had pleaded guilty earlier at the sentence indication, the indication was that you would have received a discount of 25 per cent, which is the maximum
22 From 31 August 2020 to 18 March 2021.
23 R (CA528/16) v R [2017] NZCA 210 at [14].
discount generally allowed.24 In this case the pleas were not entered at the earliest reasonable opportunity. One plea was entered in March but the remaining pleas were only entered in September, a month from trial. While there is some rationale for that in relation to the withdrawal of the charges and the partial success of the pre-trial application I do not consider they go far here.25 Considering the circumstances leading up to the guilty plea I consider a discount of 10 per cent is appropriate here. In saying that, however, I intend to deal with remorse separately.
Remorse
[55] Remorse can attract a separate discount to a guilty plea, to recognise genuine remorse ascertained by a “proper and robust evaluation of all the circumstances”.26
[56] Your counsel submits that your willingness to participate in restorative justice, even though it could not proceed, evidences some remorse. You have provided a letter of apology this morning. Although there are comments in the psychological report which indicate that you feel that you had been hard done by and that the offending was not entirely your fault.
[57] Nevertheless I consider from what I have seen and heard that there is some room for giving a discrete discount for remorse and in this case I consider a discount of one month is justified.
Conclusion on overall sentence
[58]Mr Beckett, you may stand.
[59] I had adopted a starting point of 45 months, uplifted by three months for offending while on bail and subject to sentence. I have taken a discount of 20 per cent off for personal factors, rehabilitation and other factors I have mentioned and a further
24 Hessell v R [2010] NSC 135.
25 The defendant applied first, that the expert evidence on counter-intuitive evidence in family violence cases, was unnecessary, and in the alternative, parts of the brief was objected to. This Court admitted the evidence but excluded parts of the brief: R v Beckett [2021] NZHC 2151.
26 At [64].
three months for time on EM bail, as well as 10 per cent for a guilty plea and a further one month for remorse.
[60] The important thing is the end sentence rather than how it is reached. This is not an arithmetical calculation. In this case I consider a sentence of 29 months’ imprisonment is appropriate. I have borne in mind the fact that a shorter sentence might give the option of home detention and some other benefits. However, in the circumstances the offending was serious and that period of imprisonment is sufficient to meet the principles of deterrence, denunciation and public interest, as well as accountability, while taking into account the least restrictive sentence in the circumstances.
Result
[61] Mr Beckett, I sentence you to a term of 29 months imprisonment on the charges.
Grice J
Solicitors:
Crown Solicitor’s Office, Whakatū | Nelson, for the Crown.
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