Te Huna v Police
[2025] NZHC 2110
•30 July 2025
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2025-416-005
[2025] NZHC 2110
BETWEEN JOSIAH TE HUNA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 23 July 2025 Appearances:
L J Rishworth for Appellant D V Walker for Respondent
Judgment:
30 July 2025
JUDGMENT OF GRICE J
(Appeal against sentence)
Introduction
[1] Mr Te Huna was sentenced in the District Court at Gisborne on 1 April 2025, on the following charges:1
(a)burglary (x3);2
(b)theft over $1,000;3
(c)breach of protection order;4
1 New Zealand Police v Tehuna [2025] NZDC 7644 [judgment under appeal].
2 Crimes Act 1961, s 231(1)(a) — maximum penalty 10 years’ imprisonment.
3 Crimes Act, ss 219 and 223(b) — maximum penalty seven years’ imprisonment.
4 Family Violence Act 2018, s 112(1)(a) — maximum penalty three years’ imprisonment.
TE HUNA v POLICE [2025] NZHC 2110 [30 July 2025]
(d)driving while suspended (x3);5
(e)theft under $500 (x2);6
(f)driving while forbidden;7 and
(g)failing to answer District Court bail (x2).8
[2] Mr Te Huna pleaded guilty to all charges, except for one charge of burglary, on which he went to trial and was found guilty. He was sentenced to two years and four months’ imprisonment for the offending. A final protection order was also granted.
[3] Mr Te Huna appeals against the District Court decision on the grounds that the end sentence was manifestly excessive due to insufficient discounts being given for personal mitigating factors, and there was an error of law in granting a protection order as the criteria under s 123B of the Sentencing Act 2002 were not made out. He also applies for an extension of time to bring the appeal.
[4] The Crown submits that the end sentence of imprisonment imposed was within the appropriate range. However, it accepts that there was an error of law in granting the protection order.
Background
[5] The background to the offending, based on the Police summary of facts, is summarised below.
Burglary (x3)
[6] On 28 September 2023, Mr Te Huna asked the complainant, who was known to him, if he could borrow her speaker. She declined. On 29 September, while the
5 Land Transport Act 1998, s 32(1)(c) and (3) — maximum penalty three months’ imprisonment,
$4,500 fine; compulsory disqualification from holding or obtaining a driver licence for at least six months.
6 Crimes Act, ss 219 and 223(d) — maximum penalty three months’ imprisonment.
7 Land Transport Act, s 52(1)(c) — maximum penalty $10,000 fine.
8 Bail Act 2000, s 38(a) — maximum penalty one year’s imprisonment, $2,000 fine.
complainant was out for the day, Mr Te Huna broke into her house and took a number of items, including two speakers, a hair straightener, a hair dryer, a jacket, a CCTV system, and soft drinks. Mr Te Huna maintained that it was not him who took the items, and proceeded to trial on that charge.
[7] On 17 December 2023, at approximately 7.00 am, Mr Te Huna and an associate accessed the premises of Juken New Zealand Ltd (JNL) via a neighbouring apple orchard. Armed with a crowbar, they jemmied open a side fire door and entered a building. Once inside, they went room to room, breaking door locks as they went, before leaving the address with a carry bag of unknown items belonging to JNL. Later that day, at about 3.30 pm, they returned to JNL and took a total of $12,598.25 worth of equipment, including clothing, televisions, chainsaws, lights, and a brush cutter.
[8] On 12 February 2024, Mr Te Huna and an associate entered an Airbnb property while the owners were out having dinner. They stole a gazebo, trailer, and spit roaster, valued at a total of $5,875.
Theft over $1,000
[9] On 16 December 2023, at approximately 8.30 pm, Mr Te Huna and an associate cut the lock on the gate to a storage yard for VDV Ventures, and drove into the yard. They hitched a large refrigerated trailer unit (valued at $16,000) to their vehicle, and drove out of the yard with it.
Breach of protection order
[10] On 11 September 2023, a temporary protection order was issued by the District Court against Mr Te Huna, in favour of the complainant, his ex-partner. Mr Te Huna and the complainant have two children together.
[11] At about 6.30 pm on 27 December 2023, Mr Te Huna went to the front door of the complainant’s address and asked the complainant if he could see their children. The complainant told Mr Te Huna that he was not allowed at the property and asked him to leave. He then walked back to his vehicle and sat in it, before driving away.
Driving while suspended (x3)
[12] Mr Te Huna was suspended from driving any motor vehicle from 23 August 2023 until 22 November 2023 as a result of having excess demerit points.
[13] On 21 October 2023, Mr Te Huna drove a motor vehicle and was stopped at a checkpoint while not wearing his seatbelt. Checks revealed he was suspended from driving. On 4 November 2023, Mr Te Huna was stopped while driving after avoiding a routine breath testing stop. On 16 November 2023, Mr Te Huna was again stopped due to the front seat passenger not wearing a seat belt.
Theft under $500 (x2)
[14] At about 4.50 pm on 27 November 2023, Mr Te Huna took five pies, four sausage rolls, and a chorizo from a Z petrol station without paying. The goods had a total value of $53.70 and were not recovered.
[15] At 9.25am on 18 December 2023, Mr Te Huna and his brother-in-law drove into the yard of Fulton Hogan without permission and took an unknown amount of fuel.
Driving while forbidden
[16] On 4 January 2024, Mr Te Huna was stopped by police when driving while prohibited from doing so and without a license.
Failing to answer District Court bail
[17] Mr Te Huna failed to attend the District Court at Gisborne on 20 December 2023 and 22 January 2024 as required.
Pre-sentence report
[18] Prior to the present offending, Mr Te Huna had a limited criminal history consisting of four driving offences from 2019.
[19] The Provision of Advice to Courts (PAC) report, dated 14 March 2025, noted that Mr Te Huna summarised his recent escalation in offending as related to a “life collapse and meth use”, after his relationship ended and he lost his job. In relation to his dishonesty offending, Mr Te Huna said:
…it was all down to meth use, I was stealing things to pay bills I already had from [taking] up meth and I couldn’t pay it and yes I regret it.
[20] The report recorded that Mr Te Huna has two children aged six and four years old, with whom he currently has no contact with due to the protection order held against him by their mother. In relation to his breach of that protection order, he said “I was just trying to show the kids that I wanted to see them”. Mr Te Huna’s mother lives in Australia and his father died when he was about 10 years old. He also had a brother and a sister who passed away. Mr Te Huna is a member of a gang. He explained to the report writer than he was “raised around” the gang, and said “I like being in it, it’s who I am”. Mr Te Huna was last employed around two years ago, in the forestry industry. He has previous work experience at a meat works, and in the farming and horticulture sectors. He left school at the age of 14.
[21] The PAC report noted that Mr Te Huna had spent 204 days on electronically monitored (EM) bail, however was taken into custody after cutting off his bracelet and absconding. In explanation, he said that there was some confusion about whether he had approval to attend an event, which he went to anyway. He was then given a “last chance”, and was required to arrange transport back to his EM bail address, but was unable to do so.
[22] Mr Te Huna expressed regret to the report writer for his offending, although he maintained his innocence in relation to the first burglary charge. He said his goals for the future were to “get a job and see [his] kids”. He wanted to “build a stable life again”, and was willing to attend drug-related counselling to help him “maintain not using”.
[23] The PAC report recommended a sentence of imprisonment with release conditions. However, an address with his elder sister was assessed as suitable for electronic monitoring if the Court decided such a sentence was appropriate.
Decision under appeal
[24] The burglary charges were taken as the lead charges for the purposes of sentencing. Judge Cathcart noted that, including the theft matter, the total loss caused by the offending was $38,000.9 He adopted a global starting point of three years and two months’ imprisonment. This reflected a starting point of two years and three months for the burglary offending, and an uplift of 11 months for the remaining offending, adjusted for totality.10 A further uplift of one month was applied for the fact that Mr Te Huna was on bail at the time he committed some of the offending.11
[25] While Mr Te Huna had pleaded guilty at the first reasonable opportunity to some of the charges, he delayed his guilty plea in relation to others, and had gone to trial on the burglary matter. Assessing that “in the round”, the Judge considered a guilty plea discount of six and a half months (or close to 20 per cent) was appropriate.12
[26] A discount of one and a half months was given for the time Mr Te Huna had spent on EM bail from June 2024 to January 2025.13 The Judge noted that this discount was “materially less” than what would have been awarded, but for the fact that Mr Te Huna had absconded from EM bail and cut off his bracelet.14
[27] The Judge considered that Mr Te Huna’s dependency on methamphetamine, and the fact that the offending was committed to pay for his addiction and drug debts, was significant.15 The Judge referred to Mr Te Huna’s comment to the PAC report writer regarding the link between his methamphetamine use and his offending.16 He also noted that Mr Te Huna had two young children whom he hoped to have contact with one day.17 In addition, Mr Te Huna had expressed regret for the offending,18 and the offending appeared out of character.19 An overall discount of three months was
9 Judgment under appeal, above n 1, at [12].
10 At [14] and [15].
11 At [16].
12 At [17].
13 At [19].
14 At [18] and [19].
15 At [21] and [22].
16 At [21].
17 At [23].
18 At [24].
19 At [20].
given for personal mitigating factors.20 This resulted in an end sentence of two years and four months’ imprisonment on the lead charges of burglary, with concurrent sentences imposed on each of the other charges.21
[28] The Judge also granted a protection order against Mr Te Huna in an addendum to his sentencing notes, although no reasons were given for the order being made.
Leave to appeal out of time
[29] Mr Te Huna’s appeal was filed 11 working days out of time.22 The reasons for that delay relate to the accessibility of the District Court sentencing notes and counsel’s availability. The Crown does not oppose leave in the circumstances. In view of the reasons for delay, the lack of prejudice to the Crown, and the merits of the appeal, leave to appeal is granted in the interests of justice.23
Approach on appeal
[30] Mr Te Huna’s appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal only if it is satisfied that there was an error in sentencing and that a different sentence should be imposed.24 The statutory test has long been interpreted to mean that the court will allow the appeal only if the sentence is manifestly excessive.25 In Tutakangahau v R, the Court of Appeal noted that generally an appellate court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.26 The focus is on the outcome of the final sentence, rather than “the route by which the judge reached that outcome”.27
20 At [24].
21 At [25].
22 A notice of appeal must be filed within 20 working days after the date of the sentence appealed against. However, this Court may, at any time, extend the time allowed for filing the notice of appeal: Criminal Procedure Act 2011, s 248(2) and (4).
23 Ellis v R [2019] NZSC 83 at [15], citing R v Knight [1998] 1 NZLR 583 (CA) at 587, 589; and
R v Lee [2006] 3 NZLR 42 (CA) at [95]–[99].
24 Criminal Procedure Act, s 250(2).
25 Kumar v R [2015] NZCA 460 at [81].
26 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
27 Ripia v R [2011] NZCA 101 at [15].
The parties’ positions
[31] Ms Rishworth, for Mr Te Huna, submits that the “catch-all” discount of three months given by the Judge for personal circumstances was substantially inadequate, resulting in an end sentence that was manifestly excessive.
[32] Mr Walker, for the Crown, submits that while the discounts for personal mitigating factors were on the lower end, the end sentence imposed overall was not manifestly excessive. He contends that a higher starting point could easily have been adopted at sentencing, and the guilty plea discount was generous in the circumstances.
Starting point
[33] The Judge took a starting point of two years and three months’ imprisonment on the three burglary charges. Mr Walker submits that, in line with the Court of Appeal decision in Arahanga v R, a higher starting point could have been imposed for that offending.28 In Arahanga, the Court noted that while there was no tariff case for burglary offending, “[d]welling house burglaries at the relatively minor end of the scale” tended to attract a starting point of between 18 months’ and two years and six months’ imprisonment.29
[34] Mr Walker says the offending in this case is at the top of, if not above, the “minor end of the scale”. He submits that the following aggravating features are present in relation to the burglary offending:30
(a)two were of residential properties, where there is a risk of confrontation with an occupier;
(b)the burglary of JNL involved entry to the premises on two occasions on the same day, one of which was during daylight hours when there was a risk of confrontation with staff;
28 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
29 At [78].
30 At [79].
(c)on two occasions there was more than one offender, creating a heightened risk of violence; and
(d)two of the burglaries involved relatively high value items being stolen.
[35] In comparison, in Arahanga, the Court found the following aggravating features were present:31
[79] There were a number of aggravating features that accentuated the gravity of the burglaries in the present case and that brought the offending within the more serious end of the scale: there were two dwelling house burglaries; the burglaries occurred in the early hours of the morning; there were two burglars, so there was a heightened risk of violence; one of the burglaries took place while the victims were asleep in the house; the offending involved the unlawful taking of a motor vehicle; and, as the Crown points out, the burglaries involved the taking of high value items from the houses.
[36] In that case, the Court noted that while actual violence was not used, the risk of danger to or confrontation with others was high, as demonstrated by the brazen behaviour of the appellants.32 They returned to one of the properties a second time, issued threats to the occupants, and exhibited violent behaviour upon arrest. A starting point of four years’ imprisonment was upheld on appeal. The aggravating features present in that case were clearly more serious than in relation to Mr Te Huna’s offending.
[37] In addition, Mr Walker submits that the 11-month uplift for the balance of the offending could have been higher, particularly given that one of the theft charges involved Mr Te Huna stealing a trailer valued at approximately $16,000.
[38] The Judge relied on the case of Nelson v Police, in which the appellant was sentenced on 15 charges “basically amounting to a lengthy petty crime spree”.33 The offending was broadly comparable in nature to Mr Te Huna’s, albeit less serious. An overall starting point of 14 months was taken on appeal.34 The Judge also referred to
31 Footnotes omitted.
32 Arahanga, above n 28, at [82].
33 Nelson v Police [2019] NZHC 2434, at [1].
34 At [34].
Horn v New Zealand Police, in which a starting point of four years was taken for a slightly more extensive spree of dishonest offending.35
[39] In her oral submissions, Ms Rishworth pointed out that the burglaries occurred in the daytime, and no incidents of threats, violence nor confrontations were involved. In addition, she submitted that the 11-month uplift for the remaining offending was not generous to Mr Te Huna, as the charges, apart from the theft of the trailer valued at $16,000, were relatively low-level. Five were offences with a maximum penalty of three months’ imprisonment, two were for failing to answer bail, and one was for breach of a protection order, which was a relatively low-level breach. The latter charge arose from his going to his partner’s property, he says to see his children, and leaving as soon as he was told to.
[40] In that context, I consider the global starting point of three years and two months’ imprisonment was within range, but do not characterise it as generous.
Guilty plea discount
[41] The Crown notes that the offending occurred between September 2023 and February 2024, and matters were not finally resolved until April 2025. Therefore, Mr Te Huna did not enter guilty pleas at the earliest available opportunity, and one matter was taken to trial. He also failed to answer bail on at least two occasions and absconded on EM bail, leading to unwarranted delays.
[42] I accept that the guilty plea discount of six and a half months, while generous, was available to the Judge in the circumstances.
Personal mitigating factors
Youth
[43]Mr Te Huna was aged 22–23 at the time of his offending.
35 Horn v New Zealand Police [2023] NZHC 2530 at [6].
[44] Ms Rishworth submits that a discount of up to 20 per cent was available for youth. She refers to the Court of Appeal decision in Churchward v R, which discussed the relevance of an offender’s youth at sentencing:36
[77] Youth has been held to be relevant to sentencing in the following ways:
(a)There are age‐related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.
(b)The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.
(c)Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.
[45] Ms Rishworth submits that Mr Te Huna’s offending was out of character, impulsive, spree offending, and was driven by external influences and addiction, all of which are features that can be related to youth. Furthermore, she contends that his rehabilitative prospects are strong, and that a sentence exceeding two years’ imprisonment will be crushing for Mr Te Huna. In addition, she refers to two comparable cases in which youth discounts were awarded.
[46] The first is Buchanan v New Zealand Police, which concerned a 21-year-old who was sentenced on 13 charges, including six charges of burglary, possession of cannabis and other drug paraphernalia, and possession of a firearm and ammunition.37 He had only two previous convictions, both of which were for driving offences.38 The High Court accepted on appeal that the sentencing Judge was not in error for allowing a discount of 15 per cent for youth in the circumstances, although a discount of 20 per cent would have been available.39
[47] The second case referred to is Nelson, which involved an appellant who was 22 years old with unspecified mental health issues.40 On appeal, the High Court
36 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 (footnotes omitted).
37 Buchanan v New Zealand Police [2024] NZHC 3983 at [1].
38 At [6].
39 At [50].
40 Nelson, above n 33.
considered a 20 per cent discount for youth and mental impairment was appropriate, noting that the offending had “all of the hallmarks of youthful, impulsive, stupid, substance-fuelled offending, committed by a young person without structure in his life”.41
[48] The Crown submits that Mr Te Huna’s age at the time of the offending is at the upper end of the age contemplated in Churchward, and notes that a youth discount is not automatic.
Causative link between methamphetamine use and offending
[49] Ms Rishworth submits that while the Judge clearly recognised the causative link between Mr Te Huna’s drug addiction and his offending, he erred in not awarding a discrete discount for this factor. She contends that a discount of 10 per cent was warranted.
[50] Ms Rishworth refers to Zhang v R, in which the Court of Appeal held that a pre-existing state of addiction can impair a person’s rational choice to offend, and thereby diminish both moral capacity and the deterrent aspect of sentencing.42 Furthermore, in Berkland v R, the Supreme Court held that the test for determining whether an offender’s background can be treated as a mitigating factor at sentencing is whether it had a “causative contribution” to the offending.43 That being said, where it can be established that their background was “an operative or proximate cause”, this will likely be “a potent sentencing factor”.44
[51] Ms Rishworth again relies on Buchanan, in which the High Court considered it was an error not to award a discrete discount to recognise the causative link between the appellant’s offending and his methamphetamine addiction.45 A discount of 10 per cent was awarded, amounting to a total discount of 35 per cent for youth, addiction, and rehabilitative efforts.
41 At [39].
42 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [138].
43 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].
44 At [108].
45 Buchanan, above n 37, at [49].
[52] Furthermore, in Horn, the 34-year-old appellant, who was a first-time offender, was sentenced on a raft of dishonesty charges.46 On appeal, the High Court replaced the discount of five per cent for rehabilitative prospects to a 20 per cent discount for addiction and rehabilitation, together with a five per cent good character discount.47
[53] The Crown submits that there was no independent evidence of Mr Te Huna’s addiction to support the link to his offending. Rather, it was based on self-reporting only.
Other mitigating factors
[54] Ms Rishworth submits that a further discount of 10 per cent should have been awarded for Mr Te Huna’s upbringing and background, remorse and insight, and rehabilitative prospects. She notes that Mr Te Huna was raised in a gang environment and experienced the loss of several close family members at a young age. Despite these setbacks, he was able to make positive steps into early adulthood, until his self-described “life collapse”. He has shown genuine insight into his offending and expressed a desire to move away from this lifestyle.
[55] The Crown submits that the Judge was rightly concerned about Mr Te Huna’s gang membership in assessing his rehabilitative prospects. Mr Walker contends that while the Judge did not articulate how the discount for personal factors was to be apportioned, this is understandable in the context of a busy District Court sentencing list.
Was the overall discount for personal circumstances appropriate?
[56] The Judge awarded a three-month discount for Mr Te Huna’s personal factors, not including the guilty plea discount. This is equivalent to a discount of between seven and eight per cent.
[57] The personal circumstances discussed above together suggest that the discount applied was too low. I bear in mind that in terms of youth, Mr Te Huna’s age is towards
46 Horn, above n 35.
47 At [27].
the top end of those attracting a youth discount. In addition, his offending occurred over a period of five months and it is a stretch to describe it as impulsive. Nevertheless, as the Judge accepted, the offending bore some relationship to his methamphetamine addiction, which in turn was a reaction to major change in his life circumstances after separating from his partner, losing his job, and being unable to see his children. Prior to that point, his record indicates that had a stable life, maintained employment, and was actively involved in caring for his young children, whose position must also be considered. That, alongside Mr Te Huna’s indication that he would be willing to engage in addiction treatment, suggests strong rehabilitative potential, albeit this may be somewhat hampered by his ongoing gang connections.
[58] In view of the relevant case law, the combination of youth, methamphetamine addiction, family circumstances and upbringing here, as well as considerations of the likely effect of Mr Te Huna’s imprisonment on his young children, I conclude that an overall discount of 20 per cent for personal factors is warranted.
[59] This is to be applied in addition to the discount of one and a half months for time spent on EM bail, with which no issue was taken on appeal.
Was the end sentence manifestly excessive?
[60] The increased discount for personal factors is to be balanced against the starting point, which was in range, and the relatively generous guilty plea discount. Overall, I am satisfied that the end sentence imposed in the District Court was manifestly excessive. Standing back and applying a discount of 20 per cent for personal factors (approximately eight months), together with the guilty plea discount of six and a half months, and the reduction of one and a half months for time spent on EM bail, the end sentence would amount to one year and 11 months’ imprisonment. This will be served cumulatively on a sentence of one month’s imprisonment imposed on 16 June 2025 on a charge of unlawfully getting into a motor vehicle, amounting to a notional single sentence of 24 months’ imprisonment.48 As this is a short-term
48 The sentence of one month’s imprisonment was not subject to appeal, however forms a notional single sentence together with the sentence for the offending relevant to this appeal: see Parole Act 2002, s 75(1).
sentence, the question of whether the sentence of imprisonment should be commuted to one of home detention arises.49
[61] However, the issue is otiose in this case. Mr Te Huna’s statutory release date will be after he has served half of his sentence, and he is now nearing that point of time served.50 Furthermore, the possibility of home detention was not addressed in any detail by counsel on appeal, and the issue did not arise in the District Court. In those circumstances, the least restrictive available sentence is a sentence of imprisonment for one year and 11 months, with special release conditions for 12 months.
Protection order
[62] A temporary protection order was made against Mr Te Huna in favour of his ex-partner on 11 September 2023, and was breached on 27 December 2023. A temporary protection order, unless discharged sooner, becomes final three months after the date the order is made.51
[63] Section 123B of the Sentencing Act provides that the court may make a protection order against an offender convicted of a family violence offence, if it is satisfied that the making of the order is necessary for the protection of the victim of the offence, and the victim of the offence does not object to the making of the order. In addition, there must not currently be a protection order in force against the offender in favour of the particular victim. Breaching a protection order is a family violence offence for the purposes of s 123B.52
[64] Counsel have confirmed that no written or oral request was made by Police for a protection order. In addition, no reasons were given by the Judge outlining on what basis he was satisfied that the order was necessary for the safety of the victim. It also
49 Sentencing Act, s 15A(1). A short-term sentence of imprisonment is one of two years or less: see s 4 definition of “short-term sentence”; and Parole Act, s 4(1) definition of “short-term sentence”.
50 See Parole Act, s 86(1), which provides that the release date of a short-term sentence is the date on which the offender who is subject to the sentence has served half of it.
51 Family Violence Act, s 76.
52 See Sentencing Act, s 123A definition of “family violence offence”.
appears the protection order first made on 11 September 2023 is still in place, and therefore will now be final.
[65] Thus, the criteria under s 123B were not made out and it was an error of law for the protection order to be made.
Conclusion
[66]The appeal is allowed.
[67] The sentence of two years and four months’ imprisonment is set aside and a sentence of one year and 11 months’ imprisonment is imposed. Standard release conditions will apply for 12 months, together with the special release conditions recommended in the PAC not to possess, consume or use alcohol or drugs, and to attend an assessment and any recommended counselling, treatment or programme as directed by a probation officer.
[68]The protection order is set aside.
Grice J
Solicitors:
Lucy Rishworth Barrister & Solicitor, Gisborne for Appellant Rawhiti Legal, Gisborne for Respondent
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