New South Wales Court of Criminal Appeal CITATION: Romano v R; Romano v R [2009] NSWCCA 63 HEARING DATE(S): 11 February 2009 JUDGMENT DATE: 13 March 2009 JUDGMENT OF: Grove J at 1; Blanch J at 66; Kirby J at 67 DECISION: Appeals dismissed. CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Offenders engaged in major cannabis cultivation - One offender engaged in two crops - Taking offence into account on Form 1 - Asserted errors by sentencing judge rejected - Parity - No particular point of principle - Sentences well within appropriate range LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) 2002 56 NSWLR 146 Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295 R v Bavadra [2000] 115 A Crim R 152 CASES CITED : R v Morgan [1993] 70 A Crim R 368 R v Skorin [2005] NSWCCA 276 R v Sutton 2004 41 MVR 40 R v Thomson & Houlten (2000) 49 NSWLR 383 The Queen v Olbrich (1999) 199 CLR 270 Nicola ROMANO - Applicant PARTIES: Luigi ROMANO - Applicant REGINA - Respondent/Crown FILE NUMBER(S): CCA 2007/3122; 2007/2955 A J Bellanto QC with J Ghabrial - Nicola Romano/Applicant COUNSEL: T A Game SC - Luigi Romano/Applicant P Miller - Crown/Respondent Aldo Mexxanotte - Nicola Romano SOLICITORS: Angelo Bilias - Luigi Romano Solicitor for Public Prosecutions - Crown/Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0494 LOWER COURT JUDICIAL OFFICER: McGuire A/DCJ LOWER COURT DATE OF DECISION: 27 July 2007 IN THE COURT OF CRIMINAL APPEAL CCA 2007/3122 CCA 2007/2955 GROVE J BLANCH J KIRBY J 13 March 2009 Nicola ROMANO v R Luigi ROMANO v R Judgment 1 GROVE J: There are before the Court applications for leave to appeal against severity of sentence imposed by McGuire A/DCJ on Nicola Romano and Luigi Romano. The applicants are brothers. They were jointly indicted upon a charge that between 1 September 2003 and 5 April 2004 they knowingly took part in the cultivation at Glen Davis of a large commercial quantity of the prohibited plant cannabis. It was specified to amount to in excess of 8,000 plants. It will avoid much repetition if the applicants are referred to, without meaning any disrespect, by their forenames. 2 Nicola pleaded guilty on 26 February 2007, the day upon which the trial was listed to begin. This was mistakenly stated in his Honour's remarks on sentence to have been 11 May 2007. To follow the intended joint trial was a further trial in which Nicola was charged with a similar offence committed between 1 January 2004 and 4 February 2004 at Torrington. Nicola originally declined a suggestion that, if he acknowledged his guilt, this offence might be taken into account when he was sentenced on the charge to which he had pleaded guilty in accordance with the Form 1 procedure, however, on 11 June 2007 he signed a Form 1 admitting the offence at Torrington. On 27 July 2007 he was sentenced (taking into account the Form 1 offence) to imprisonment consisting of a non-parole period of 6 years commencing on 3 February 2006 and expiring on 2 February 2012 with a balance term of 4 years. 3 Luigi maintained a plea of not guilty and his trial proceeded before McGuire A/DCJ and a jury from 28 February 2007 until the jury returned a verdict of guilty on 21 March 2007. On 1 May 2007 his Honour sentenced him to imprisonment consisting of a non-parole period of 5 years commencing on 27 April 2007 and expiring on 26 April 2012 with a balance term of 3 years 11 months. His Honour stated that he was taking into account 4 weeks of pre-sentence custody. 4 As will appear, the application by Luigi is principally focussed upon complaints of parity with other involved offenders (including Nicola) and it will be practical to deal with the grounds advanced by Nicola first. 5 Following his plea of guilty and signature of the Form 1, an agreed statement of facts concerning Nicola's offences was tendered. This abbreviated description is extracted therefrom. 6 The investigation which concerned the crop at Torrington commenced in January 2004. A property of approximately 12,000 acres, Grevillea Downs, was owned by one McWhinney. Pursuant to warrant, police intercepted telephone conversations participated by McWhinney, a co-offender Maiurano and Nicola. It was established that Nicola gave instructions to Maiurano who would pass them to McWhinney. There were a number of such calls in which Nicola gave orders relating to the cannabis plantation. After late January several calls were intercepted in which Nicola instructed Maiurano to have McWhinney destroy the crop. McWhinney did not. On 4 February 2004 police executed a search warrant at Grevillea Downs and located three plantation sites on the property with a total of 5,141 cannabis plants. 7 In February 2004 a strike force was established to investigate a reported cultivation of cannabis believed to have been established in the Central West of the State. Warrants were obtained to intercept telephone communications used by Nicola and by Luigi as well as Nazzareno Foti, Luigi Bonfiglio, Tibor Mitin and Domenico Cento. 8 A property at Glen Davis was identified. This had belonged to Antonio Caporale, who lived on a nearby farm called The Crown. It was learned that workers were being employed for planting, nurturing and harvesting cannabis. The principals obtained seedlings and provided food and equipment for the workers. Police were authorized to covertly enter the property and between 31 March 2004 and 4 April 2004 they detected three plantation sites. There was a large L-shaped shed on the property. On 4 April 2004 Nicola, in particular, was seen standing near the shed at one of the crop sites. The cannabis was being harvested and some fifteen people were seen coming and going to and from the shed. 9 On 5 April 2004 police entered to execute a search warrant. Seven men were arrested on the site and others were seen fleeing into nearby bush land. More than 500 kilograms of harvested cannabis were found in the shed. 10 Nicola was a principal organizer. In September 2003 he and Bonfiglio had met Caporale and arranged for the transfer of the property into the name of Adrian Bulai. Nicola engaged in a series of organizational activities, including arranging for Mitin to use his credit card for hire of vehicles and equipment, for which Nicola reimbursed him. Food, equipment and bedding were delivered to workers at the site. Nicola gave instructions to the hired help as to how to prepare the ground for planting. With others he travelled to Griffith to collect cannabis "clones" and he delivered them to the crop site. 11 Interceptions included Nicola receiving enquiries about providing a sample, which obviously concerned attempts to find a buyer or buyers for the cannabis. Nicola was present on the property during the harvest. He had left when police entered. Subsequent intercepted calls revealed Nicola being informed of the correct number of persons who had been arrested. He was also heard to say that he had not located his brother Luigi and on the day after the police entry he went to the Glen Davis area looking for him. Luigi had fled when police arrived but Nicola did not find him. 12 On 25 May 2004 Nicola attended at Fairfield Police Station in response to a request communicated to him through his wife. Upon his attendance, he was charged. 13 A notice of grounds of appeal contained eleven grounds. Ground 1 : The starting date for sentence did not take into account all of the pre sentence custody that the applicant had served. 14 At the hearing senior counsel stated that the discrepancy amounted to two days. The commencing date of 3 February 2006 upon which his Honour acted had been conveyed to him as the appropriate date by counsel. A matter of calculation is involved, and as the Crown Prosecutor pointed out, the applicant's calculation appears to have been based upon an assumption stated in the written submissions that his date of arrest was 22 May 2004. This is incorrect. He was arrested when he attended the police station on 25 May 2004. This ground is not made out. 15 Ground 2: The Sentencing Judge erred by giving insufficient weight to the utilitarian value of the applicant's plea of guilty. 16 His Honour stated that he would assess a total sentence of 11 years imprisonment but, for the utilitarian value of the plea of guilty, he would reduce the term to 10 years. Arithmetically this amounted to a "discount" of 9.9 percent. It was contended that this would be "less than the lowest discount envisaged by this Court in the guideline judgment for a late plea". 17 The reference made is to R v Thomson and Houlten (2000) 49 NSWLR 383. As the submission recognized, the Court has proclaimed a guideline and that does not create an effect of the same character as a legislated minimum. What was said by the Chief Justice (at 419) was that there "should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge." (Emphasis added) 18 As was earlier mentioned, the plea of guilty was entered on the trial date. It is accepted that the intention so to plead was indicated to the Crown about a week beforehand. There was further delay while the second matter was being considered by Nicola and his advisers culminating in the signing of the Form 1 in June. This ground challenges an exercise of discretion of the sentencing judge. It has not been shown that that discretion miscarried. It is a misconception to assert that 10 percent is the lowest discount for a plea of guilty. I would reject ground 2. 19 Ground 3: The Sentencing Judge erred by failing to take into account in mitigation the applicant's remorse and contrition. 20 Reference was made to s 21A (3) (i) of the Crimes (Sentencing Procedure) Act 1999 as it stood at the time this sentence was imposed. A substituted formulation has since been inserted taking effect from 1 January 2008. 21 It was submitted that his Honour did not deal with the claim of remorse or contrition at all and that he was required to take into account the offender's "genuine remorse". It was for the offender to prove these matters to the requisite standard: The Queen v Olbrich (1999) 199 CLR 270. In submissions to this Court he pointed to references which had been tendered and descriptions of charitable and community work which he undertook when released on bail. 22 In assessing whether the plea of guilty conveyed remorse by the offender as distinct from any utilitarian value, the strength of the Crown case is relevant: R v Sutton 2004 41 MVR 40. Police observation was available to evidence Nicola's physical involvement in the Glen Davis plantation and telephone intercepts confirmed his participation in the cropping at Torrington. In both instances there was clearly a strong Crown case. 23 The evidence about charitable work performed by Nicola was expressly taken into account by McGuire A/DCJ when he found that this constituted a positive sign towards rehabilitation. The evidence did not suggest that the reason for engagement in charitable work was regret for having committed crime, but it was rather a continuation of activity in which Nicola had previously engaged, no doubt to the approbation of the community. A clue to what may have inspired him can be found in a reference from the president of a soccer club who stated, "He is sorry for the embarrassment and hardship that his actions have brought to his family". Whilst it may be accepted that that is the case, it represents distress at the inevitable consequences rather than contrition for criminal acts. 24 No error as asserted in this ground was committed by the sentencing judge. 25 Ground 4: The sentence gives rise to a justifiable sense of grievance in the applicant when one compares his sentence to that of Luigi Romano. Ground 5 : If parity does not apply, the sentencing Judge erred in not applying the principles of consistency to ensure there is no justifiable sense of injustice when one compares the applicant's sentence to that of Luigi Romano. 26 Those grounds are obviously associated and can be dealt with together. The sentence received by Luigi followed trial. It has been set out above. The principles relating to parity and consistency are not in doubt and it is not necessary to recite the oft quoted passages of authority which appear in cases such as Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295. 27 In terms of minimum custody Nicola must serve 6 years and Luigi must serve 5 years. There is one month difference in their respective balance terms but this difference is not of significance. 28 A principal matter of discrimination between the two offenders was undoubtedly the circumstance that Nicola was to be sentenced for involvement in the cultivation of two large commercial quantities of prohibited crop whereas Luigi was involved in only the one. Of course, for involvement in the Torrington cultivation the offence by Nicola was taken into account in the Form 1 procedure and he was not to be separately sentenced in respect of it. Nevertheless, it was an offence for which there is a maximum prescribed penalty of imprisonment for 20 years and that offers a measure of its seriousness. It was his Honour's function when dealing with Nicola to impose a sentence for the totality of his criminality: R v Bavadra [2000] 115 A Crim R 152. It was observed in AG's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) 2002 56 NSWLR 146 that taking a matter into account on a Form 1 required greater weight to be given to personal deterrence and retribution with the consequence that a longer sentence will be imposed for the indicted offence and the additional penalty will not necessarily be small. 29 There was no justifiable basis for Nicola to be aggrieved by comparing the sentence received by him with that received by Luigi and these grounds should be dismissed. 30 Ground 6: The Sentencing Judge erred by taking into account matters which were not in evidence before him on the applicant's sentence. Ground 10 : The Sentencing Judge erred in taking into account material which was not in evidence before him in determining the applicant's role or level of involvement in the cultivation. 31 These grounds effectively articulate the same complaint. 32 At the sentencing proceedings there was tendered to his Honour without objection a folder containing the statements of facts and the remarks on sentence of relevant judges in respect of all the other co-offenders except Luigi (Exhibit E). In that circumstance there can have been no error by McGuire A/DCJ having reference to the content of the exhibit. 33 The argument was focussed on a remark by his Honour concerning findings by Hulme DCJ who sentenced a number of other offenders including Bonfiglio. McGuire A/DCJ said: "Judge Hulme formed opinions as to where the various figures stood, in the hierarchy of the organisation. He did so on the basis of agreed statement of facts. As I remarked when sentencing Luigi Romano on 1 May 2004 his Honour made findings relying upon evidence as to the involvements of various participants, different to that available to me. For example a determination was made by his Honour Judge Hulme as to the status of Luigi Bonfiglio as being relatively senior figure in the enterprise albeit that he found Foti and Caparilli (sic) to be of greater importance and placed Bonfiglio in the middle of the hierarchy. With the greatest of respect to his Honour that was a finding that I would not of made having regard to additional information available to me, that was not in the possession of his Honour. I had the advantage of the evidence given in the trial of Luigi Romano from various co-offenders and the many tape recordings of conversations among various participants, including the offender standing for sentence. I do not consider valid the parity argument advanced in the case of Luigi Romano nor do I find Judge Hulme's assessment to be of real assistance in dealing with the case of the offender before me." 34 However, it should be noted that he went on to say: "Nicola Romano's conduct in both the offence that is the matter on the indictment and on the Form 1 reflect far greater criminality than was displayed by Bonfiglio. I have not drawn upon the material before Judge Hulme nor upon his opinions to assign to the offender, Nicola Romano, his role in the venture. Luigi Bonfiglio gave a letter of assistance for which he received a discount and he entered a plea of guilty at a much earlier point in time than the present offender." 35 His Honour's finding as to the role of Nicola was explicitly based upon the agreed statement of facts that had been placed in evidence before him. He made this plain: "The agreed statement of facts clearly establish that the offender was a member of the top echelon in the organisation. Whether he was a few percentage points more or less responsible than X or Y I consider to be of little relevance. Nicola Romano was involved in activities over a substantial period. His conduct was not spontaneous. It was obviously considered and deliberate." 36 It is true that the transcript shows exchanges between his Honour and counsel then appearing for Nicola (who did not appear in the appeal) in which the obvious fact that his Honour had presided in the trial of Luigi was mentioned and his Honour referred to the great deal of material that he had necessarily then heard. That such exchanges had taken place offers no basis for concluding that his Honour did not do as he said, namely, determine issues including Nicola's place in the top echelon of the organization by reference to the evidence which had been put before him in the instant proceedings. He was not obliged uncritically to apply findings by other judges made upon facts put before those other judges, and he expressly declined so to do. No error was manifest and I would dismiss these grounds. 37 Ground 8: The Sentencing Judge erred in finding that the "agreed statement of facts clearly establish that the offender was a member of the top echelon in the organisation". 38 The written submissions in argument in support of this ground invited this Court to find that his Honour did not make this determination as he had stated that he did, but made his findings on material which had become available to him in his capacity as the presiding judge in the trial of Luigi. This submission was entirely unjustified. A brief reference to some of the salient matters in the agreed statement of facts shows that it was scarcely necessary for his Honour to elaborate this matter. Nicola's position in the "top echelon" was indisputable. 39 As to the Glen Davis crop, it was an agreed fact that Nicola "had a detailed knowledge of the everyday operation of the plantation". He was physically present overseeing the harvest and assisting in setting up the arrangements for drying the harvested material. He made a journey to Griffith to obtain some of the clones to grow the crop. He gave instructions to workers as to how to overcome difficulties with water supply and irrigation. Intercepted conversation about supply of a sample showed plain involvement in trying to market the illicit product. He was involved in obtaining provisions including food and bedding for the field hands. He arranged for the hire of plant and vehicles by Mitin, using the latter's credit card but subsidizing him with cash. As regards the Torrington operation, it was Nicola who gave the instructions, obviously seized of authority up to the level of even giving a direction that the crop be destroyed. It was not suggested that he gave this direction by reason of some change of heart, and the rational alternative would be that a fear had been engendered that the security of the clandestine activity may have been breached. As events turned out it had, but McWhinney had not complied with the direction. 40 This ground should also be rejected. 41 Ground 9: The Sentencing Judge erred in finding that the starting point in Skoran's case did not apply because Skoran was found to occupy an intermediate level in the cultivation. 42 The intended reference is to R v Skorin [2005] NSWCCA 276. Skorin was not involved in either of the matters concerning Nicola. It was referred to in his Honour's remarks on sentence because counsel had submitted that that case provided a close "factual scenario". His Honour was not bound by counsel's submissions. 43 The contention advanced in support of this ground sought to demonstrate error by his Honour in not choosing a similar starting point for sentence assessment as had been chosen in that case. That approach invited the sort of error identified by Hunt CJ at CL in R v Morgan [1993] 70 A Crim R 368-371 where he observed: "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range." 44 His Honour gave reasons for choosing a higher starting point than had been chosen in Skorin and he listed the following: "1. The plea of guilty was at the last moment. 2. There was no assistance offered to the authorities. 3. Nicola Romano was in the top echelon of the criminal organisation rather than an intermediate one. 4. The existence of a serious offence on the Form 1." 45 Whilst the inclusion of all of these items was the subject of some criticism, the simple fact is that Skorin does not stand as some sort of arithmetical authority setting a starting point for sentences for offences like to the present. 46 Skorin had pleaded guilty in the lower court and had been committed for sentence. It came before this Court on Crown appeal and the ultimate sentence, to which the present applicant sought to refer, was imposed with the restraint applicable to resentence after a successful Crown appeal. 47 There was no error by his Honour in not adopting the "mathematics" which could be derived from Skorin and this ground has not been sustained. 48 Ground 11: The sentence imposed on the applicant was manifestly excessive. 49 This ground was sought to be supported by reference to a range of cases. Reiterating the extract from Morgan cited above, it suffices to observe that for the offence by Nicola, with a necessary reflection of the significant criminality of the offence on the Form 1, the imposition was well within the range of sound sentencing discretion. 50 I would grant leave to appeal against sentence but dismiss the appeal. 51 I turn to the application by Luigi Romano. 52 Senior counsel who appeared in the appeal indicated that certain grounds previously filed were abandoned and he essentially relied upon grounds numbered 2 and 3. I will also set out ground numbered 1, which was not pressed as such but, as counsel said, it was included in order to "tease out the point made" and "go behind the label and see what the findings actually are". 53 The grounds as stated were: "1. The Sentencing Judge erred by not assessing the applicant's role with reference to the relevant standard of proof (beyond reasonable doubt) and failed to give reasons as to why the applicant occupied the role of principal such that one could infer that he found such fact proven beyond reasonable doubt. 2. The sentence gives rise to a justifiable sense of grievance in the applicant when one compares his sentence to that of Luigi Bonfiglio (and Nicola Romano). 3. If parity does not apply, the sentencing Judge erred in not applying the principles of consistency to ensure there is no justifiable sense of injustice when one compares the applicant's sentence to that of Luigi Bonfiglio." 54 It is convenient to deal with these grounds together as the argument was presented in that manner. Bonfiglio was sentenced by Hulme DCJ to imprisonment consisting of a non-parole period of 2 years 6 months and a balance term of 1 year 8 months, a total of 4 years 2 months. This was stated to have been reached after an allowance of 35 percent discount for his plea of guilty and assistance to authority. Extrapolation results in the calculation of a notional starting point of a total sentence of a little under 6½ years. The total assessment of sentence for Luigi was 9 years. The essence of the submission was that by reference to the sentence received by Bonfiglio and that received by Nicola (who was involved in two plantations) then comparison with the head sentences would result in an assessment for Luigi "in between" - something in the order of a little over 8 years. 55 It was found by Hulme DCJ that Bonfiglio had decamped from the Glen Davis property when the police raid commenced but he was found later in the day hiding beneath the floor boards of the adjoining property, The Crown which was owned by Caporale. Hulme DCJ determined that Bonfiglio was "a willing lieutenant to the principal offenders in the provision of services and equipment to those at the crop site…and he had people acting under him …". 56 He then concluded: "I am satisfied that whilst his criminal responsibility was at a lesser level than principals such as Nicola and Luigi Romano, it was substantial criminality nonetheless. He is somewhere in the middle echelon of offenders in this syndicate along with the offenders Foti and Caporale." 57 In dealing with Luigi, McGuire A/DCJ referred to Bonfiglio in these terms: "As to Bonfilio (sic), acting on the agreed statement of facts and other material relevant to him, Judge Hulme concluded that Bonfilio (sic) occupied a relatively senior position in the enterprise, albeit that Foti and Caporali (sic) were involved at a much higher level. His Honour was satisfied that he fell somewhere in the middle of the hierarchy, that he was a willing lieutenant to the principal offenders. He also received a reduction in his sentence because of his guilty plea and the considerations attracted by the assistance he rendered to the authorities." 58 That extract shows that his Honour was mistaken in his understanding of the relativity in the criminal hierarchy between Bonfiglio on the one hand and Foti and Caporale on the other, which had been found by Hulme DCJ. 59 It is important to note, however, McGuire A/DCJ expressly referred to the findings as to hierarchy made in relation to various co-offenders and did not draw on Hulme DCJ's reasons for sentence. In particular he stated that he sentenced Luigi on the evidentiary material admissible against him. Further in his remarks he stated that he "did not believe the principles as to parity were applicable" by which I would take him to have meant, as he explained, that there were differences from the co-offenders in the case of Luigi which made assessing similar sentence for him to them inappropriate. He mentioned the contrast in plea and his own finding that Luigi was a principal in the venture and not a mere lieutenant. 60 It was recognized that comparison with the sentence on Nicola would be affected if his appeal were to be successful on any ground other than those which complained of parity with Luigi. I have proposed that Nicola's appeal not succeed. 61 The ultimate submission was that the sentence on Luigi should be adjusted downwards to reflect "properly" where his sentence should stand, namely, between those imposed upon Bonfiglio and Nicola. In my opinion the difference between the notional initial assessment for Bonfiglio and that received by Luigi was not so great as to give rise to a justifiable grievance on the part of the latter, having regard to the differences between them. Whether Bonfiglio was equivalent to Foti and Caporale in the hierarchy or lower than them does not alter the situation that his Honour found that Luigi was a principal. Luigi was to be sentenced for what he had done and not by reference only to his place in the hierarchy as such. His Honour described Luigi's activity and this included discussing the provision of money for the sham transaction transferring the property at Glen Davis into the name of Bulai, the hiring of vehicles, the provision of irrigation equipment, the giving of instructions about horticulture (scissors for leaf harvest) and the guarding of the illicit crop. Luigi travelled twice to Griffith to obtain seedlings and was active in and about the plantation. This conduct is well beyond the totality of activity of Bonfiglio found by Hulme DCJ and for which he was punished. 62 Neither am I persuaded that Luigi can have a justifiable grievance if his sentence is compared to that received by Nicola. Whilst I have rejected the implication in submissions on behalf of Nicola that taking into account of his separate offence would act as a counterbalance to the absence of discount in the case of Luigi who maintained his plea of guilty, I would not regard the respective additions and subtractions such as to result in equivalent impositions. 63 The sentence received by Luigi lay well within the range of the sound exercise of sentencing discretion and I would not regard any lesser sentence as warranted. 64 In the application of Nicola Romano I would grant leave to appeal against sentence but dismiss the appeal. 65 In the application of Luigi Romano I would also grant leave to appeal against sentence but dismiss that appeal. 66 BLANCH J: I agree with Grove J. 67 KIRBY J: I agree with Grove J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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