SUPREME COURT OF VICTORIA
COURT OF APPEAL	

	S EAPCR 2022 0002
KERRIE HOCHKINS	Applicant	
		
v		
		
The queen	Respondent	
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JUDGES:	PRIEST and BEACH JJA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	17 May 2022  	
DATE OF JUDGMENT:	17 May 2022  	
medium neutral citation:	[2022] VSCA 91	
JUDGMENT APPEALED FROM:	DPP v Clay, Freeman-Mackenzie & Hochkins (Unreported, County Court of Victoria, Judge Gamble, 14 December 2021)	

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CRIMINAL LAW – Appeal – Sentence – Burglary, theft of firearm and other offences – Applicant sentenced to 20 months’ imprisonment with 11 months non-parole – Two co-offenders – Whether sentence infringed parity principle – No error demonstrated – Leave to appeal refused.  
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Counsel	
Applicant:		Mr D McGlone	
Respondent:		Mr C Boyce QC	
	
Solicitors	
Applicant:		C Marshall & Associates	
Respondent:		Ms A Hogan, Solicitor for Public Prosecutions	

priest JA
beach ja:
Introduction
1	On 3 November 2019, the applicant and two co-offenders, Luke Glen Clay (‘Clay’) and Zachary Freeman-Mackenzie (‘Freeman-Mackenzie’), burgled premises in Ferny Creek and stole a quantity of firearms.
2	An indictment filed in the County Court charged each of the three with burglary and theft, and the applicant solely with three charges of possessing a drug of dependence.
3	On 27 July 2021, the applicant, Clay and Freeman-Mackenzie pleaded guilty to the charges on indictment, and each also pleaded guilty to diverse related summary offences.
4	Following pleas in mitigation, on 14 December 2021 the judge sentenced the applicant to a total effective sentence of 20 months’ imprisonment, with a non-parole period of 11 months; Clay to a total effective sentence of 18 months’ imprisonment, with a non-parole period of 10 months; and Freeman-Mackenzie to a total effective sentence of 19 months’ imprisonment, with a non-parole period of 12 months; in accordance with the tables set out below.  (A fourth co-offender, Mitchell Mackenzie, pleaded guilty at a summary hearing to handling stolen goods.)
5	The applicant now seeks leave to appeal against her sentence on a single ground that contends that the sentencing judge ‘erred by failing to observe parity between co-accused’.
6	In our view, the applicant’s ground of appeal is without merit.  Leave to appeal must be refused.
The applicant’s and co-offenders’ sentences
7	Set out in tabular form, the applicant’s sentence is as follows:
Charges on Indictment	
Charge	Offence	Sentence	Cumulation	
1	Burglary	12 months	3 months	
2	Theft of firearm	15 months	Base	
3	Possessing a drug of dependence (methylamphetamine)	2 months (aggregate)	1 month	
4	Possessing a drug of dependence (diazepam)			
5	Possessing a drug of dependence (alprazolam)			
Related summary offences	
5	Driving whilst disqualified	14 days	—	
6	Using unregistered motor vehicle	$1,000 fine		
7	Using a vehicle displaying number plate other than issued	$250 fine		
8	Breach alcohol interlock condition	$500 fine		
10	Commit indictable offence whilst on bail	Convicted and discharged		
11	Dealing with property suspected of being proceeds of crime	3 months (aggregate)	1 month	
14	Dealing with property suspected of being proceeds of crime			
15	Possess Schedule 4 Poison	$250 fine		
20	Commit indictable offence whilst on bail	Convicted and discharged		
22	Fail to comply with direction to assist	7 days	—	
Total effective sentence:	20 months’ imprisonment	
Non-parole period:	11 months	
Pre-sentence detention:	138 days	
Section 6AAA declaration:	30 months’ imprisonment with 20 months non-parole 	
8	Clay’s sentence is:
Charges on Indictment	
Charge	Offence	Sentence	Cumulation	
1	Burglary	12 months	3 months	
2	Theft	15 months	Base	
Related summary offences	
4	Drive whilst suspended	14 days		
5	Fraudulently use number plates	$500 fine		
Total effective sentence:	18 months’ imprisonment	
Non-parole period:	10 months	
Pre-sentence detention:	237 days	
Section 6AAA declaration:	27 months’ imprisonment with 18 months non-parole	
9	Freeman-Mackenzie’s sentence is:
Charges on Indictment	
Charge	Offence	Sentence	Cumulation	
1	Burglary	12 months	3 months	
2	Theft	15 months	Base	
Related summary offences	
5	Driving whilst disqualified	3 months	—	
18	Using a vehicle displaying number plate other than issued	$500 fine (aggregate)		
19	Using a vehicle displaying number plate other than issued			
20	Using unregistered motor vehicle	$1,000 fine		
Total effective sentence:	19 months’ imprisonment	
Non-parole period:	12 months	
Pre-sentence detention:	88 days	
Section 6AAA declaration:	28 months’ imprisonment with 20 months non-parole	
The offending
10	At the time of the offending, the applicant was aged 30 years; Clay was aged 29; and Freeman-Mackenzie was 26. 
11	In his reasons for sentence, the judge summarised the relevant offending as follows: 
	[9]  On Sunday 3 November 2019, [the applicant] drove a white Audi bearing cloned plates to the residential address 6 Saville Street in Ferny Creek.  Mitchell Mackenzie was in the front passenger seat while Mr Clay and 
Mr Freeman-Mackenzie were seated in the rear.
	[10]  After parking, [the applicant] got out of the vehicle and approached the front door at 5.06 pm.  She then returned to the vehicle and drove off with Mitchell Mackenzie.  [The applicant] then kept a lookout whilst Mr Clay and 
Mr Freeman-Mackenzie entered the premises via an unlocked sliding door.  At the time of doing so, they were trespassers and had an intention to steal.  The movements of all three offenders were captured by CCTV cameras in the vicinity.  The prosecution case is that all three offenders had earlier planned to commit a burglary on these premises with a view to stealing any firearms located inside.  These are the circumstances on which the burglary offence alleged in Charge 1 on the indictment is based.
	[11]  Prior to entering, both men had donned gloves and dressed in clothing aimed at disguising their appearance.  Mr Clay wore a black hooded jumper with the hood up and a grey bandana covering his face, while Mr Freeman-Mackenzie wore a black hooded jumper with the hood up and a red bandana covering his face.
	[12]  Both men walked directly to where the owner kept a gun safe.  After forcing it open with a jemmy bar they stole a 12-gauge shotgun and a 45 long Colt competition rifle.  It is the theft of these two firearms that is the basis for the offence of theft of a firearm alleged against each accused in Charge 2 on the indictment.
	[13]  Also taken at that time were two gun bags with cleaning gear which also contained a shotgun cartridge belt, four 9 millimetre pistol magazines and a small ammunition safe which contained ammunition.
	[14]  Further CCTV footage captured Mr Clay and Mr Freeman-Mackenzie exiting the property and waiting in the driveway for a short period before being collected by [the applicant] in the same Audi at 5.39 pm.
	[15]  As part of the investigation police obtained phone records of the offenders.  Those records revealed all offenders remained in the area at the time of the burglary.  SMS correspondence from their phones for 3 and 4 November 2019 revealed the following exchange of messages about the burglary and ultimate sale of the stolen firearms:
•	At 5.15 pm on 3 November Mr Clay sent a MMS to [the applicant] with a photo of the front door of 6 Saville Street.  The message stated, ‘Is that wired [sic] or not’.  [The applicant] replied, ‘Don’t doubt yourself and just do it and be quick Mitch is on foot watching the street and I’m in a car ready to go if needed’.
•	At 11.37 pm that evening [the applicant] sent a text to Mr Clay stating, ‘Do u have those things or are they sold’.  Followed by another text stating, ‘If not I have them sold’.  Mr Clay responded, ‘I still got them did you want me to drop them off’.
•	At 3.51 am on the following morning Mr Clay sent a message to ‘Azbee’ stating, ‘I got a colt 45 and a coach style side by side if your [sic] interested $1800’.  Azbee then agreed to purchase.
•	Just over an hour later, at 5.10 am, Mr Clay sent the following message to [the applicant], ‘IV [sic] sold them things where abouts are you’.
•	And then at 1.10 pm that afternoon [the applicant] replied to Mr Clay saying, ‘I just wanted to say a big thanks for all you have done to help me yesterday and I won’t hand this cash over unless I’m getting stuff lol ok’.
	[16]  On 4 November 2019, CCTV footage from 45A Blackburn Road, Mooroolbark, the home address of Mr Freeman-Mackenzie and Mitchell Mackenzie, captured the accused coming and going while carrying the firearm cases.  Analysis of that footage also revealed that Mr Freeman-Mackenzie drove whilst suspended and used false registration plates on a number of other dates.
	[17]  As is clear from the text messages which were exchanged between Mr Clay and [the applicant], it would appear, and it is not disputed, that the firearms stolen in the burglary were sold on the following day, 4 November 2019.  To date their whereabouts are unknown.  They have never been located by police.
	…
	[The applicant]:  Driving offences
	[22]  On 4 December 2019 police observed [the applicant] attending Lilydale police station while driving an unregistered silver Audi which had the false plates RNB 821 affixed to it.  She was a disqualified driver at that time, having been disqualified for 3 months on 23 November 2019 due to the accumulation of demerit points.  The vehicle was not fitted with an alcohol interlock device.  At the relevant time [the applicant] was prohibited from driving any vehicle that did not have such a device fitted.  These facts give rise to the following related summary charges:  related summary Charge 5, drive whilst disqualified; related summary Charge 6, use unregistered vehicle; related summary Charge 7, fraudulently use registration plates; and related summary Charge 8, breach interlock condition.
	[The applicant]:  Offences arising from search of her home
	[23]  The remaining offences committed by Ms Hochkins were detected by police when they executed a search warrant at her home on 5 December 2019.  At that time she was living alone in a rear bungalow at a property in Woori Yallock.  The items found included the following:
•	A pink snap lock bag containing a small quantity of methamphetamine.  This is the basis for the offence of possession of a drug of dependence alleged in Charge 3 on the indictment;
•	Five diazepam tablets in a silver packet.  This is the basis for the offence of possession of a drug of dependence alleged in Charge 4 on the indictment;
•	Three and a half Xanax tablets in a zip lock bag.  This is the basis for the offence of possession of a drug of dependence alleged in Charge 5 on the indictment;
•	$1300 in cash.  This is the basis for related summary Charge 11, deal with property suspected of being proceeds of crime;
•	Two iPads and an Apple MacBook20 with a charger.  This is the basis for related summary Charge 14, deal with property suspected of being proceeds of crime; and 
•	Two Tramadol tablets, 200 milligrams, for which she did not have a valid prescription.  This is the basis for related summary Charge 15, possess Schedule 4 poison.
	[The applicant]:  Arrest, interview and remaining offences
	[24]  [The applicant] was arrested by police and later interviewed.  She denied any involvement in the burglary and theft of firearms, claiming that the police had ‘the wrong person’.  When shown a photograph taken from the relevant CCTV footage she laughed and claimed that the person in the image had longer hair than her.
	[25]  When police lawfully directed her to provide the pin number to her mobile phone she refused to cooperate, claiming that she could not understand why her thumb was not opening the phone.  This is the basis for related summary Charge 22, fail to comply with direction to assist police.
	[26]  As already noted, the date that [the applicant] and her co-accused were involved in committing this offence of burglary was 3 November 2019.  In [the applicant’s] case she committed that indictable offence whilst on bail.  She had been admitted to that bail on 9 September 2019 in respect of charges of trafficking and possessing methamphetamine, for which she was due to attend court on 23 January 2020. This is the basis for related summary Charge 20, commit indictable offence on bail.
	[27]  At the time that she committed the additional indictable offences of possess drug of dependence, found by police on 5 December 2019, [the applicant] was on the same bail.  Hence, the further charge of commit indictable offence on bail alleged in related summary Charge 10.
	[28]  Following interview, [the applicant] was charged and remanded in custody.
	… 
The plea
12	Relying on Bugmy, the applicant’s counsel on the plea submitted that the applicant, then aged 32, had a disadvantaged childhood, having been brought up in a household where drug use was entrenched.  Her parents separated when she was aged two years, and her father died of a drug overdose when she was seven.  She herself had engaged in poly-substance abuse for much of her life, commencing with cannabis at age 12, and methamphetamine at 16. By the age of 23, the applicant was using 3.5 grams of amphetamine a day, supplemented by large amounts of alcohol and the use of other drugs.  Illicit drug use was a feature of many of her prior convictions. 
13	Counsel submitted that the motive for the applicant’s offending was the need to pay back a drug debt.  Whilst it was submitted that the burgled premises were not forced open, it was accepted that the gun safe was.  The applicant kept a look-out while Clay and Freeman-Mackenzie committed the burglary and theft.  Although there was no evidence that the applicant personally disposed of the firearms (which have not been recovered), it was conceded that she had a coordinating role in their sale. 
14	In a report tendered on the plea, a psychologist, Warren Simmons, stated that the applicant described her childhood ‘as one of trauma where she was very isolated and not very sociable’, with ‘a pattern of emotional neglect by her mother who never communicated with her and did not take time to interact with her’.  Mr Simmons reported that as a child the applicant had, among other things, observed her mother overdosing (and had been forced to call an ambulance), and had seen her mother and her mother’s partner ‘punching on’.
15	The applicant’s counsel submitted that the applicant’s guilty plea was early, the matter resolving at committal on 4 March 2021 prior to evidence being called.  Having been entered during the pandemic, the guilty plea also attracted Worboyes considerations.  Further, the plea evidenced remorse.
16	Counsel submitted that the applicant had demonstrated excellent prospects of rehabilitation.  She had been arrested on 5 December 2019 and remanded in custody, but was granted bail on 17 April 2020 (and was released on 20 April 2020) conditionally upon undertaking residential rehabilitation treatment at Odyssey House, where she had remained for 11 months.  On 7 January 2021 – prior to her exiting the Odyssey House program – the applicant was released on a community correction order (‘CCO’) of 18 months’ duration, with conditions which included submitting to treatment for drug and alcohol abuse or dependency (that CCO having been imposed for a host of offending, including trafficking methylamphetamine).  The CCO expired on 6 July 2021 – a few weeks prior to the applicant pleading guilty to the instant offences – the applicant having successfully completed the alcohol and drug treatment conditions.  Since her release from custody, the applicant had remained drug free, and had been receiving medical treatment from a general practitioner under a Mental Health Plan.  She had also commenced employment as a packer.
17	As to pre-sentence detention, although the applicant had spent 138 days on remand, she had spent a further 334 days in ‘quasi-custody’ in residential rehabilitation, which should result in ‘credit’ on sentence. 
Sentencing remarks
18	It is plain from his sentencing remarks that the judge was astute to apply the parity principle.  We set his remarks out in full, since they demonstrate not only the difficulty that the circumstances presented him with, but also his meticulous attention to detail.  Thus, under the heading Parity considerations, the judge said:
	[138]  The parity principle also arises for consideration in relation to the burglary and theft offences.  I have found this a particularly difficult exercise in the circumstances presented by this case as aspects of the offending and personal circumstances are numerous and very varied and cut both ways. 
	[139]  I have already noted the respective roles played by [the applicant], Mr Clay and Mr Freeman-Mackenzie and won’t repeat those observations now.   While Mr Freeman-Mackenzie was the youngest of the trio, and his level of moral culpability was less than the other two, it was still significant.  On the other hand, his prospects of rehabilitation are not as positive as those of [the applicant]and Mr Clay.
	[140]  In the case of Mr Clay and [the applicant], they can each rely on the time that they have spent in the residential drug rehabilitation centre, Odyssey House, which is a mitigating factor absent in Mr Freeman-Mackenzie’s case.
	[141]  Mr Clay’s prior criminal record, while not as extensive as Mr Freeman-Mackenzie’s, is still significant.  It includes firearm and related offences, dishonesty related offences and a number of driving offences. 
	[142]  His subsequent convictions include contraventions of community correction orders, burglary, theft, assault with a weapon and possess cartridge ammunition without a licence. But, as already noted he, unlike Mr Freeman-Mackenzie and [the applicant], had never received a custodial sentence prior to committing the offences for which he now falls to be sentenced.
	[143]  Mr Freeman-Mackenzie’s prior criminal record is quite extensive for someone of his age.  It includes offences relating to the possession of weapons, including firearms, use of a firearm in a dangerous manner, burglary, numerous offences involving dishonesty in various forms, drug offences, including trafficking, and a very serious driving record. 
	[144]  He also has been subsequently convicted for possession of an imitation handgun, a controlled weapon, other weapons, and the drug methylamphetamine, as well as for theft and multiple driving related offences.  He has received numerous sentences of immediate imprisonment in the past and has breached multiple community correction orders 
	[145]  The prior criminal record of [the applicant] spans the period from 2008 until 2018, although it is concentrated in the period 2015 to 2018.  It includes convictions for possession of weapons and cartridge ammunition, attempted burglary, theft and other forms of dishonesty related conduct, trafficking and possession of drugs, bail related offences, and an unimpressive list of driving offences.  She has breached a number of community correction orders in the past and has received multiple terms of imprisonment.  Of some note is the absence of firearm offences, a distinguishing feature in her history as compared to those of Mr Clay and Mr Freeman-Mackenzie.
	[146]  On 7 January 2021, [the applicant] was convicted of a number of other offences. Those subsequent offences include trafficking in methylamphetamine, deal in property suspected of being proceeds of crime and a number of driving offences.  She is still subject to the 18 month community correction order she received on that date.
	[147]  Each accused is entitled to a significant discount for an early plea entered during the currency of the COVID-19 pandemic.  I am also satisfied that each accused has, by way of that plea, evidenced some remorse.  For Mr Clay and [the applicant] the evidence of remorse is greater as it includes the steps that they have respectively taken towards addressing the underlying causes of this offending in order to try and rehabilitate.
	[148]  After having considered all relevant matters, I have come to the conclusion that there is no basis for distinguishing between any of the three accused in terms of the sentences that are appropriate for the offences of burglary and theft.  As such, I intend to impose the same individual sentences on them for those two offences and the same degree of cumulation as between the individual sentences for burglary and theft of a firearm.
	[149]  However, in light of the need to effect a modest degree of further cumulation for the further offending engaged in by Mr Freeman-Mackenzie and [the applicant], their total effective sentences will be higher than that of Mr Clay’s, and for [the applicant] slightly higher than Mr Freeman-Mackenzie’s.  In attaching some added significance to the matters in mitigation when determining the non-parole periods in each case, and in particular for [the applicant] and Mr Clay, I have decided to impose slightly different non-parole periods in each case in recognition of that fact and also the need to fix a non-parole period that has a meaningful relativity to the head sentence.
19	Furthermore, the judge was also careful to ensure that he properly took account of the periods of ‘quasi-custody’ in Odyssey House affecting both the applicant and Clay.  He said:
	[38] I note that Mr Clay was bailed on condition that he underwent the inpatient program at Odyssey House, which he duly did between 26 October 2020 and 22 February 2021, a period of four months or so.  I will take that into account due to its quasi-custodial nature, in line with the relevant authorities including Akoka v The Queen.  I note, however, that such time spent in a residential drug rehabilitation centre is not as punitive as time spent on remand in gaol and is not to be approached as a pure mathematical exercise.
And also:
	[44]  I note that [the applicant] was bailed on condition she underwent the residential program at Odyssey House, which she duly did between 20 April 2020 and 2 March 2021, a period of 11 months or so.  I will take that into account due to its quasi-custodial nature in accordance with the principles in Akoka's case, noting again that it is not akin to being on remand in a gaol and not to be approached as a pure mathematical exercise.
The applicant’s submissions in this Court
20	Counsel for the applicant submitted that sentencing judges have an independent common law discretion to consider an offender’s pre-sentence detention which cannot be the subject of a declaration under s 18 of the Sentencing Act 1991.  As was observed in Akoka:
	Although residency at a rehabilitation facility has punitive elements, credit for it cannot be given in the same way as pre-sentence detention.  Pre-sentence detention involves time spent in custody and, in accordance with s 18(1) of the Sentencing Act 1991, it must be deducted from a custodial sentence in a precise mathematical manner for the entire period the offender has spent in detention. On the other hand, residence at a rehabilitation facility, no matter how restrictive and punitive, is not equivalent to time spent in custody.  It will not ordinarily result in a deduction of the entire period of residency from a custodial sentence.
21	The applicant’s counsel submitted that, although the sentencing judge referred to Akoka, it ‘is not apparent in the sentence imposed’ that the judge afforded the applicant appropriate credit for the period she spent in a residential rehabilitation facility, particularly when contrasted with the period Clay spent in similar detention.  The applicant spent 11 months at Odyssey House (and 138 days of pre-sentence detention credited under s 18), compared with Clay’s five months (and 237 days of pre-sentence detention). 
22	Counsel for the applicant submitted in writing that ‘it cannot be said that the 11 months the applicant spent in a residential rehabilitation facility is an inconsiderable period of time’.  Hence, issue was taken with the judge’s conclusion that ‘there is no basis for distinguishing between any of the three accused in terms of the sentences that are appropriate for the offences of burglary and theft’.  Counsel submitted that what is of relevance is the steps taken by the applicant following her time at Odyssey House, ‘in particular the measures she put in place towards her rehabilitation having become drug free’.  Whilst conceding that the difference in age and a degree of distinction in role, the applicant’s counsel submitted that the disparity between the sentence imposed on the applicant and upon Clay ‘was unjustifiably acute’.  The total effective sentence of imprisonment imposed on the applicant is two months longer than Clay’s, and the non-parole period is one month longer.  Hence, counsel submitted, the 11 months that the applicant spent in a residential rehabilitation facility cannot have been properly taken into account by the judge in the exercise of the sentencing discretion.
Discussion
23	As we have indicated, it is clear that the sentencing judge gave careful consideration to the application of the parity principle.  We are completely unable to see that the sentences imposed on the applicant and the co-offenders indicate that, in some unspoken way, the judge must have erred in its application.  Indeed, we consider that the sentences imposed demonstrate the opposite.
24	Plainly, the judge gave due consideration to the differing roles of the applicant and her co-offenders in the burglary and theft, and to their different personal circumstances.  He took into account the steps that the applicant had taken towards rehabilitation – including the 11 months’ residential treatment at Odyssey House – but considered that she was the ‘architect’ of the plan to burgle the relevant premises and steal the firearms.  Of the three co-offenders, the judge considered the applicant’s moral culpability to be at ‘the highest level’ (followed by Clay and Freeman-Mackenzie).  Her motivation for the offending was to satisfy a drug debt owed to a third party.  She ‘recruited and encouraged the involvement of the two burglars’; provided the transport; initially checked to see if anyone was at home; and then kept a look-out while the burglary and theft took place.  The applicant was also active in the later discussions with Clay relating to the sale of the firearms, and ‘it was her that received the relatively significant sum of cash resulting from their sale’.  Those matters clearly justified some differentiation between the applicant’s and the co-offenders’ sentences.
25	Moreover, quite apart from the burglary and theft common to the three offenders, the total effective sentence imposed on each was to an extent also dependent upon the other offences for which each offender fell to be sentenced, which varied in nature and number.  Importantly, the applicant’s co-offenders did not fall to be sentenced for the related summary offence of dealing in the proceeds of crime or for possession of drugs.  That was another point of distinction.
26	As was observed in Collins: 
	The principles governing parity are well-established.  Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes.  If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed.  However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did.  When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.
27	The judge’s sentencing remarks bespeak careful consideration of all relevant sentencing considerations applicable to the cases of the applicant and her co-offenders.  In our view, the applicant has completely failed to show that, despite the sentencing judge’s careful and conscientious attention to the sentencing task, he must nevertheless have erred in the exercise of the sentencing discretion through a failure to properly apply the principle of parity.  We consider that it was reasonably open to the sentencing judge to differentiate between the applicant and her co-offenders in the way in which he did.
28	For these reasons, we consider that the proposed ground of appeal is wholly lacking in substance.
Conclusion
29	The application for leave to appeal against sentence must be refused.
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