R v Gaviria
[2024] NZHC 1916
•12 July 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-009-8205
[2024] NZHC 1916
THE KING v
ESTEBAN BLANCO GAVIRIA
Hearing: 12 July 2024 Appearances:
A M Harvey for Crown
M E Rout and N R Rout for Defendant
Judgment:
12 July 2024
SENTENCING REMARKS OF MANDER J
Introduction
[1] Esteban Blanco Gaviria, you have pleaded guilty to representative charges of importing a Class A controlled drug,1 namely cocaine, and money laundering,2 together with a charge of having participated in an organised criminal group.3
[2] Taking your counsel’s lead, I will refer to you in my sentencing remarks as Mr Blanco, in accordance, as I understand it, with Spanish custom.
1 Misuse of Drugs Act 1975, s 6(1)(a)—maximum penalty life imprisonment.
2 Crimes Act, s 243—maximum penalty seven years’ imprisonment.
3 Crimes Act 1961, s 98A—maximum penalty 10 years’ imprisonment.
R v BLANCO GAVIRIA [2024] NZHC 1916 [12 July 2024]
The offending
[3] Your offending was detected as a result of a significant police and Customs investigation into the importation of cocaine into this country from South America that involved a number of overseas drug enforcement authorities. The transnational drug syndicate with which you were involved operated from at least January 2018 to December 2021. It is estimated that over that period 42.5 kilograms of cocaine with a street price of over $19 million was imported into New Zealand. A further 59.1 kilograms of cocaine with a street value of more than $26 million was successfully intercepted.
[4] Mr Blanco, you arrived in New Zealand in 2013, and you did not become involved in this drug operation until some seven years later, in 2020. In doing so, you shared with your co-defendants a common objective of obtaining material benefits from the importation of cocaine into New Zealand. Over that period, at least 51 consignments that comprised over 100 kg of cocaine were either imported or attempted to be imported into this country.
Money laundering
[5] Your initial involvement in the organised criminal group centred on the laundering of New Zealand dollars that were to be remitted to a Colombian drug cartel from which the drug was being sourced. In April 2021, you arranged to launder
$102,500 and remit the money back to the drug cartel in South America. That sum represented profits from the supply of cocaine. Plans were made for a co-defendant to travel to Auckland to launder the money and you arranged for the money “drop” to occur in Central Auckland — unbeknownst to you and your associates, an undercover United States Drug Enforcement Agent (DEA agent) had picked up the laundering contract. You gave your associates the details of the car to approach with the money. The deal was completed with your associate handing to a local undercover officer a suitcase containing the money, which was exchanged with the agreed $5 token with a specific serial number to confirm the transaction.
[6] In September 2021, you arranged to launder $100,000 in Rolleston in a similar manner and to remit the money back to the Columbian cartel. On the agreed date of
28 September, you and an associate drove in separate vehicles to a carpark in Rolleston. After checking that the serial number with which you had been supplied matched that of the undercover officer’s $5 note, you gave him the $100,000. You signed the token with your initials and sent a photo to your contact to confirm the transaction had taken place. That same $5 note was later found at your address during a police search when the investigation terminated.
[7] In October 2021, you arranged to launder $200,000.4 Those funds were again proceeds from the supply of cocaine. The DEA agent had again picked up the contract to launder the money. You communicated directly with the same local undercover officer from the September transaction about arrangements for the money exchange. You and an associate drove to a Christchurch hotel to meet your contact. The usual token, signature, and photograph procedure was followed and the money exchanged. When you were searched at the time of your arrest, the token from this exchange was found in your cell phone case. Your associate’s address was also searched at this time. Police found $50,000 wrapped up in plastic in the same distinctive way the cash had been packaged for the purposes of the earlier transactions.
Importing cocaine
[8] Although it is not entirely clear, it appears that as a result of the failed money laundering transaction that occurred in April 2021, you were held responsible for the lost cash and a debt was imposed on you. You also say your father back in Colombia was threatened by the cartel. To pay your debt, you became involved in other aspects of the drug syndicate’s operation. This included the provision of addresses for importations, arranging logistics and acting as a “catcher” for inbound packages containing cocaine. Between February 2021 and November 2021, you were involved in the importation or attempt to import cocaine on seven occasions.
[9] On 15 May 2021, a cartel member in Colombia requested you provide addresses for the purpose of importations. You provided two addresses, one in Darfield and one in Dunsandel. You told the senders to address packages using your
4 The sum actually exchanged was $199,970.
first name “Esteban” and any surname. Overall, there were seven packages that used different variations of “Esteban”.
[10] On 9 February, you assisted with redirecting a parcel to the New Zealand Post depot. You were directed to subsequently uplift the package, move the cocaine and dispose of the packaging.
[11] On 23 May, a package was delivered to the Darfield address where you rented a room. You had been involved in the provision of the delivery address and in communicating with an unknown person for the purpose of laundering money for this importation.
[12] On 1 June, a package was sent from the United States to New Zealand. It arrived on 12 July. You messaged the occupant of the address to which it was delivered and arranged to come over and uplift the package.
[13] On 28 July 2021, Customs intercepted a package containing 585.4 g of cocaine intended for the Dunsandel address. You collected the package. Its tracking number was subsequently located on your cell phone.
[14] Between September and October 2021, you and a more senior member of the syndicate organised for cocaine to be imported into New Zealand from England. The tracking number for this package was later found in your phone. The package containing 570.4g of cocaine was seized by Customs on 27 October.
[15] On 9 October 2021, a package was intercepted in the United States. It was intended for delivery to the Darfield address. It contained 605 g of cocaine. The package was sent to you, in accordance with messages sent between yourself and an unknown person in Columbia in mid-May of that year.
[16] Between September and October 2021, you and two of your co-defendants organised an importation of cocaine from the United States to New Zealand. The package was delivered to an address in rural Canterbury on 23 October. It was arranged that you would uplift the package. A co-defendant subsequently videoed a
bag of white powder on a set of scales on his phone. The video showed the white powder weighed 610 g. That video was dated one day after you uplifted the package.
[17] In summary, it is estimated that you were personally involved in the laundering of around $400,000 in cash and in the estimated successful importation of 3.49 kg of cocaine. You also participated in the attempt to import a further 605 g of cocaine.
Approach to sentencing
[18] The Sentencing Act 2002 sets out the purposes and principles of sentencing that I am required to take into account in sentencing you today. Relevant purposes include accountability, denunciation, deterrence and rehabilitation. I need to consider the gravity of your offending, the degree of your culpability, the seriousness of the offending and the general desirability of consistency in imposing sentences for like offending. I am required to impose the least restrictive outcome that is appropriate in the circumstances.
[19] In passing sentence, I must fix a period of imprisonment that is commensurate with the seriousness of your offending, in accordance with sentencing guidance for Class A drug offending provided by appellate courts.5 Broadly, your culpability is to be assessed by having regard to the quantity of the drug involved and the role you played in the offending.6 I must then consider matters personal to you which may be of aggravating or mitigating effect to arrive at an appropriate end sentence
Effects of offending
[20] In sentencing you today, it is important to recognise the harm that is caused by serious drug offending, particularly that of Class A drugs. Your offending does not have a direct victim. But the distribution of cocaine, like other hard drugs, has countless victims within the community who often experience the very worst outcomes. These include adverse mental health, criminal offending to fund addiction, the breakdown of personal and employment relationships, and social deprivation.7
5 Berkland v R [2022] NZSC 143; Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; and Cavallo v R [2022] NZCA 276, (2022) 30 CRNZ 726.
6 Zhang v R, above n 5, at [104], [106]–[117] and [126]–[127].
7 Zhang v R, above n 5, at [78]–[79].
Society as a whole is harmed by Class A drug offending, although, relevantly, the Court of Appeal has recognised cocaine as being slightly less harmful than methamphetamine.8
Starting point
[21] Quantity is the first consideration when setting a sentence for the lead representative drug importation charge as that factor provides a reasonable proxy for the social harm that is caused by Class A drug offending. It provides an important measure of culpability, indicating the harm or potential harm caused to the community from the drug. It also provides a useful indicator of commerciality and illicit gain, creating a greater need for denunciation.9 I must then take into account your role in the criminal enterprise in determining culpability,10 and whether you played a “lesser”, “significant” or “leading” part in this offending.11
[22] The Crown has emphasised a number of what it submits are aggravating features of your offending. These include the harmful impacts of Class A drugs on communities, to which I have referred earlier; your objective of making a profit for the syndicate, as opposed to the offending being predicated on need or addiction; the obvious high level of premeditation involved and relative sophistication of the enterprise; and your direct participation in the offending. The Crown further submits there are no mitigating features to your offending. While you may have become more deeply involved because of a debt you came to owe to the cartel, it was submitted that arose from your existing involvement in the syndicate. Neither that aspect nor the claimed threat to your father provides a basis for any defence of compulsion.12
[23] While acknowledging that some modification is required to reflect that sentence starting points for cocaine should generally be slightly below comparable methamphetamine starting points,13 the Crown submits a starting point of 13–14 years’ imprisonment would be appropriate to adequately recognise the following factors:
8 Cavallo v R, above n 5, at [62].
9 Zhang, above n 5, at [10] and [104].
10 Zhang, above n 5, at [104]–[115].
11 Berkland v R, above n 5, at [71].
12 The Crown references the Crimes Act, s 24, with threats of immediate death or grievous bodily harm from a person who is present when the offence is committed.
13 Cavallo v R, above n 5, at [63].
(a)that there were a series of importations separated over time;
(b)the quantity comfortably places the offending in band 5 of the guideline judgment of Zhang, where starting points of 10 years to life imprisonment are recommended;
(c)your significant role in the offending, which ranged from money laundering to handling importations (though the Crown recognises the element of coercion in your decision making may reduce the culpability of your role); and
(d)that a starting point greater than that adopted in a case called de Macedo, where a starting point of 11 years was adopted, is necessary to reflect the greater quantity of cocaine and your more significant role in operations which was more than simply being a courier.14
[24] Ms Rout, on your behalf, takes issue with that proposed starting point. She has produced several supporting documents in aid of her submission, which I have read. They include:
(a)evidence from a Dr Jonathan Rosen, an expert in Columbian organised crime;
(b)a letter from a financial investigation firm to support the proposition you made no personal gain from the offending;
(c)an affidavit from your father attesting to the threat he received from the cartel in Colombia;
(d)messages between you and your father; and
(e)a letter from yourself;
14 de Macedo v R [2020] NZCA 132 at [11].
(f)finally, some certificates that demonstrate the productive use you have made of your time in prison whilst on remand were also included.
[25] Ms Rout submits an overall starting point of 12 years’ imprisonment for all your offending would be appropriate. She argues your role lies somewhere between “lesser” and “significant” and submits, by comparison with one of your co-offenders, your starting point should be less because his role, in falsifying customs documents that led to the importation of 12.9 kg of cocaine, was greater and attracted a starting point of 11 years and six months’ imprisonment.15 The Crown disagrees and contends you played a more significant role, although acknowledges you played a lesser role than two of your more senior co-defendants.16 The Crown assesses your role as significant. However, Ms Rout emphasises that you, uniquely among your peers, were subject to coercion.17
[26] Regarding your money laundering charge, the Crown has referred to R v Williams, where the Court of Appeal found that those who launder money for drug dealers, as you did Mr Blanco, are “nearly as culpable as those who actually participate in the dealing”.18 The Crown referred to the following particulars as important:
(a)the amount you laundered, some $400,000;
(b)that it was carried out in furtherance of and under the auspices of an organised crime syndicate;
(c)the principal offending from which the funds were derived was the importation and supply of Class A drugs — serious offending; and
(d)the money laundering was sophisticated and by no means technical in nature, involving intended cross-border transfers of funds.
15 R v Bonilla Casanas [2024] NZHC 1814 at [24]. Note an uplift of one year was imposed for the attempted importation of 23.6 kilograms of cocaine at [25].
16 R v J [2024] NZHC 204; and R v Montoya Ospina [2024] NZHC 1817.
17 Citing Faiyum v R [2020] NZCA 523.
18 R v Williams CA415/98, 16 December 1998 at 8–9.
[27] The Crown therefore submits, after citing several cases it says are similar to yours, that a starting point of four to four and a half years’ imprisonment would have been appropriate had the laundering offences been standalone charges.19 For totality reasons, it seeks an uplift of at least 18 months’ imprisonment to the 13–14 year starting point for the lead charge. Your counsel accepts an uplift of 18 months would be appropriate in the circumstances for the money laundering.
Analysis
[28] I deal firstly with the issue of coercion, which it is submitted should influence the approach taken to your sentencing, I make the following observations:
(a)You voluntarily engaged with the syndicate for financial reasons. While I accept the potential consequences for your father have affected your actions, the fact remains none of this would have occurred had you not already been participating in the syndicate’s criminal business in the first place. You did so of your own volition. Your father’s business troubles may provide a reason for your actions, but certainly not an excuse.
(b)I proceed on the basis a threat was made to your father because you owed money to the cartel, but there are questions as to the timing of that threat. Moreover, as the Crown pointed out, some of the other messages between you and your father obtained by the police indicate your father may also have been involved, as you were, with the cartel in Colombia. You complain in those messages about him, like others, receiving their “slice” but that you were not receiving any “pesos”. It is all rather suspicious. You have not offered your own evidence to clarify the position and your father in Colombia is not available for cross-examination. It is difficult to have any accurate view as to the correct position.
19 Citing Huang v R [2023] NZHC 2337; Zhang, above n 5; and R v Marin [2024] NZHC 996.
(c)I have reviewed the evidence of Mr Rosen. I accept the cartels have considerable influence in Colombia and that the country has considerable issues with corruption, but I doubt the information he provides, while helpful, advances matters. There is some force in the Crown’s submission that the money was first owed by you some three years ago and nothing has happened to your father since. You are reported as having grave fears for yourself and your family, but I have been provided with no information about the state of your debt or whether it was paid or remains outstanding.
[29] I have taken into account the submissions made by your counsel on your behalf and by the Crown regarding this issue of coercion that you maintain you were subject. The grounds upon which you rely fall well short of any legal defence of compulsion. However, to the extent they may have borne on your actions, I have taken them into account in assessing the role you played in the offending when setting the starting point.20
[30] In terms of quantum, there is no question you fall squarely within band five of Zhang. In my assessment of the role you played, I have taken into account the following considerations:
(a)While it has been accepted you did not hold a lead position, the overall nature and continuity of your involvement indicates that your role was a significant one, as that category is described in case law.21 You were trusted to arrange and organise money drops and directed others in the execution of these transactions. You conducted physical handovers and communicated directly with overseas parties. You provided addresses and instructions to overseas suppliers, redirected packages and organised importations. Essentially, it can be said you became a member of the syndicate that assisted in the organising and execution of importations of cocaine into this country for the purpose of commercial distribution.
20 Berkland v R, above n 5, at [71]; and Zhang v R, above n 5, at [154].
21 Berkland v R, above n 5.
(b)I proceed, to the extent I am able, on the basis you were coercively influenced because of a threat from the cartel to your father in Colombia. But it is inescapable those circumstances arose as a result of your existing participation in the syndicate. Nonetheless, I have taken it into account as a factor which, to some degree, mitigates your role.
(c)Having regard to the position you got yourself in, it cannot be said you were solely motivated by personal financial gain. Nonetheless, your actions are not predicated on addiction or need to feed a habit. Financial gain to pay off a debt owed as a result of earlier criminal activities is still a commercial motive. It no doubt is a not uncommon situation that people engaged in this kind of illicit activity may find themselves.
(d)This was a commercial drug operation. You would not have involved yourself in it but for its financial rewards.22 Evidence has been tendered from a financial investigation firm, effectively reviewing the police’s attempted analysis, that you did not benefit “to any extent” from your illegal activity. There is no evidence you led a lavish lifestyle in New Zealand. The police investigation itself does not appear to have been able to determine what personal rewards were received or obtained by members of the syndicate, other than discrete payments to those towards the lower end of the syndicate’s hierarchy. However, the whole objective of the organised criminal group of which you were a part was to make money, and even on your own account that was also your intent, whether to assist your father or to pay off your own “debt”.
[31] You communicated with persons in Colombia from where the cocaine was sourced and maintained contact with those overseas suppliers, in addition to assisting in the organisation of importations from other countries. Having regard to that feature of your offending and the nature and continuity of your involvement in the trafficking
22 As was the case in R v Montoya Ospina, above n 16, at [22](c).
operation that extended to a range of activities over a lengthy period, those features could have placed you towards the upper echelon of the “significant” category. However, for the purpose of sentencing, having regard to the element of coercion which I have discussed, I would assess your role as being in the lower-middle of that described group.
[32] The Crown have cited two cases to assist in determining the starting point for your sentence:
(a)Firstly, a case called Agwu v R, where the offender had a leading role as the operation head in the importation of 4.5 kg of cocaine, which resulted in the Court adopting a starting point of 18 years’ imprisonment.23
(b)Another case, de Macedo v R, a case to which I referred earlier, where an offender who had a low-level courier role in the importation of
2.4 kg of cocaine received a starting point of 11 years’ imprisonment.24
[33] In comparison with Agwu, you were not the head of your operation. Your starting point would need to be less than the 18 years adopted there. However, unlike in de Macedo, you cannot be considered a “mere courier”. Neither did your offending occur on a single “out of character” occasion.25 Your offending took place over a significant period, during which you were involved with seven importations or attempted importations. As stated, over time you were involved across nearly all aspects of the operation.
[34] I have also reviewed Faiyum v R, where, on appeal, the Court held that a starting point of ten years’ imprisonment was appropriate for an offender who pleaded guilty to three charges of importing a total of 3.174 kg of methamphetamine and two charges of importing 535 g of cocaine between July 2017 and September 2018. His role was assessed as falling somewhere between “lesser” and “significant”. He picked up packages on behalf of importers. However, the appellant in that case was an addict
23 Agwu v R [2015] NZCA 619.
24 de Macedo v R, above n 14.
25 At [20].
who was coerced heavily and assaulted when he attempted to step away.26 Your offending displays a higher level of culpability. Mr Faiyum was a courier with a greater level of involvement than the offender in de Marcedo, whereas your participation was more extensive.
[35] I also note the case of Yonkwa-Dingom v R.27 The appellant there played a significant role organising logistics, travelling extensively. He was highly trusted by his superiors, and given significant cash sums to cover expenses. However, he was clearly not the head, gave no instructions to any party, nor was he in the “upper echelons” of the syndicate.28 He imported 23.7 kilograms of cocaine on a cruise ship. A starting point of 15 years’ imprisonment was taken by the Court of Appeal.29 You imported a significantly lesser amount, but you also played a significant role in the syndicate’s activities over a considerable period, involving multiple importations.
[36] I must also have regard to the approach taken in respect of your co-offenders. One co-defendant received a starting point of 18 years’ imprisonment. He fell squarely within the significant category,30 and was sentenced on the basis of his involvement in the importation of 11.49 kilograms of cocaine. The Crown accepts your role was less significant than his. Another of your co-offenders, who was involved in the importation of 12.9 kilograms of cocaine but was placed at the lower end of the significant category, received a starting point of 11 years and six months’ imprisonment.31
[37] Having assessed all these matters, I adopt a starting point of 12 years’ imprisonment for your importation offending. That starting point also captures the organised criminal group participation offence, as its commission was intrinsic to your other offending.
[38] I impose an uplift of 18 months for the money laundering charge. Both the Crown and your counsel accept that it is an appropriate uplift having regard to the
26 Faiyum v R, above n 17, at [19].
27 Yongkwa-Dingom v R [2021] NZCA 603.
28 At [28].
29 At [30].
30 R v Montoya Ospina, above n 15, at [5].
31 R v Bonilla Casanas, above n 14, at [24].
amounts involved and the principle of totality. As noted earlier, standing alone such offending would have attracted a considerably greater sentence (above at [27]).
[39]The global starting point is therefore 13 years and six months’ imprisonment.
Personal mitigating factors
[40]Turning to factors personal to you, I firstly address your guilty pleas.
Guilty Plea
[41] You pleaded guilty on 12 April 2024, having indicated an intention to the Court to do so approximately two months before trial. Your pleas can only be described as late, coming, as they did, over two years after having been first charged. Your counsel has submitted the significant delay in pleading guilty was caused by erroneous, inflated allegations regarding your place in the syndicate’s hierarchy, from which the Crown has now resiled, and that this stance was the source of the delay. Ms Rout notes there was an initial view that your father was a senior Colombian drug cartel member. She submits that it was only her identification of particular pieces of evidence to support her proposition that the earlier allegations against you were inappropriate that led to a resolution.
[42] However, even proceeding on that basis, it remained open to you to have pleaded guilty to the importation and money laundering charges on the basis upon which you have now admitted those charges. You were entitled to defend the Crown’s allegations and review the available evidence, but credit for a guilty plea is based largely on the benefit to the State and an offender’s contrition. The value of both are heavily dependent on the timing of the pleas.32 The Crown’s case that you had a more senior role in the hierarchy was not an impediment to you admitting your responsibility, disputing those particulars with which you did not agree, and leaving the Crown to have to prove them. This is particularly so given the extent of your involvement in the offending upon which you are being sentenced today.
32 Hensell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45].
[43] Having made those observations, I acknowledge your pleas were entered only after the Crown altered its assessment of your role. I do that by affording you a greater discount than has been extended to your co-offenders who entered pleas within a similar timeframe, shortly before trial. I consider a discount of 15 per cent for your guilty plea is appropriate.
Foreign imprisonment
[44] You came to this country, as I mentioned, in 2013. Your parents and siblings do not reside here and you appear to have little in the way of social support, other than from those who formed part of the drug syndicate. It has been recognised that the isolation and denial of family support experienced by foreign nationals imprisoned in New Zealand may be treated as a mitigating factor where it makes the sentence harder than usual to serve.33
[45] I have granted most of your co-offenders a five per cent discount on account of the disproportionate impact imprisonment in New Zealand may have.34 I consider I am obliged to adopt a similar course and apply the same discount of five per cent.
Undue delay
[46] Ms Rout has drawn my attention to s 9(2)(fb) of the Sentencing Act that stipulates I must consider any adverse effects on you from delay arising from the disposition of the proceedings caused by a failure by the prosecutor to comply with a procedural requirement. Ms Rout submits the Crown’s incorrect framing of the case cost you bail. She also notes that while on custodial remand you lost your relationship with your employer and also some possessions as a result.
[47] The Crown notes your application for bail was withdrawn because a proposed address became unavailable. It acknowledges some of the difficulties with expediting disclosure from overseas but submits that, because of the complexity of both the
33 Zhang v R, above n 5, at [163].
34 R v J, above n 16, at [76].
investigation and the criminal proceedings, the delays in the disposition of the matter were not unwarranted.
[48] I do not consider the submission made on your behalf has merit. I have already referred to the course that was available to you to enter guilty pleas and dispute the Crown’s contended facts. In regard to both the delay and the issue of bail, I observe that, having regard to the offending to which you have finally formally admitted and upon which you are now being sentenced, any complaints about having been denied bail on an erroneous factual basis fall rather flat. You will be credited by Corrections for the time you have spent on custodial remand. It is difficult to therefore see how your position has been materially prejudiced or how you have ultimately incurred any adverse effects.
Previous good character, remorse and rehabilitative prospects
[49] I have read the pre-sentence report and your letter, both of which record your remorse. I note the pre-sentence report writer’s observation that you perhaps lack insight into the effects of your offending. Your reflections appear largely focused on the position you now find yourself and your concerns for your family. However, your letter does express regret for the damage you have caused to the country that gave you “the opportunity to live for the past eleven years of [your] life”, as you have framed it.
[50] A letter from an employer attests to your work ethic, reliability and friendliness. At 36 years of age, you have no criminal history in this country and you are assessed as being at low risk of reoffending. However, as remarked upon by the pre-sentence report writer, little is known of your life in Colombia.
[51] I acknowledge your apparent remorse and rehabilitative prospects by providing a five per cent credit for those factors.
[52] A total 25 per cent reduction from a global starting point of 13 years and six months’ imprisonment results in a sentence of 10 years and one month’s imprisonment.
Conclusion
[53]Mr Blanco, would you please now stand.
[54] On each of the charges of importing a Class A controlled drug, participation in an organised criminal group, and money laundering, you are sentenced to 10 years and one month’s imprisonment. Those sentences are to be served concurrently.
[55] There will be an order for the forfeiture of cell phones seized from you at the time of the termination of the police investigation.
[56]You may stand down.
Solicitors:
Crown Solicitor, Christchurch Prime Legal, Christchurch
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