Stuart Nash is trying to make political hay out of Nikolas Delegat's crime and punishment. The problem is, in doing so he's calling for the undermining of New Zealand's constitutional arrangements. That's ... not a good thing.

On occasion, I've had cause to issue some stern words to Police Minister Judith Collins about her apparent meddling in Police issues that are none of her business. So, in the spirit of even-handed, unbiased commentary, let me just say that Labour Party MP (and Police spokesman) Stuart Nash really needs to stop talking.

Here's what the NZ Herald quotes Nash as saying:

Labour's Nash said the Government should tell the Crown Law Office to appeal the "ridiculously light" sentence handed down to Nikolas Delegat for assaulting a policewoman.

Nash said Prime Minister John Key said in 2010 the Government had a duty to send the message attacks on police officers were unacceptable but he had been silent on the Delegat case.

"An attack on a policewoman who was assaulted so badly she was on sick leave for two months warrants a jail term, not continued silence from the Government.

"The Prime Minister and the Police Minister must come out and condemn the sentence as totally inadequate and state that Crown Law will appeal. This would send a very clear message that this type of behaviour against police will not be tolerated by our communities and offenders will be punished accordingly."

There's just so very, very much wrong with this. The Government can't tell Crown Law to appeal anything. That decision lies in the hands of the Solicitor General, who is a non-political appointee. As the description of the role on Crown Law's website states:

... it has long been recognised that the nature and value of the office within government lies in part on the Solicitor-General's duty to give independent advice and, in relation to certain functions [such as prosecuting and appealing cases], to act independently. That independence is of considerable constitutional importance. Such impartial advice can be seen to be given without political direction, even on politically contentious issues.

Second, Ministers cannot come out and "condemn [Delegat's] sentence as totally inadequate". Here's what the Cabinet Manual says about that suggestion:

The separation of the Executive and the judiciary under New Zealand's system of government means that Ministers must exercise judgement before commenting on judicial decisions, whether generally, or in relation to the specifics of an individual case (for example, the sentence).

Ministers should not express any views that are likely to be publicised if these views could be regarded as reflecting adversely on the impartiality, personal views, or ability of any judge. If a Minister has grounds for concern over a sentencing decision, the Attorney-General should be informed.

Following a long-established principle, Ministers do not involve themselves in deciding whether a person should be prosecuted, or on what charge. Similarly, they should not comment on the results of particular cases or on any sentence handed down by a court. Ministers must avoid commenting on any sentences within the appeal period, and should avoid at all times any comment that could be construed as being intended to influence the courts in subsequent cases. 

So what Stuart Nash is calling for here is Ministers to completely ignore fundamental precepts of our constitution. Now, I get why he is doing so - he's seeking to capitalise on some widespread outrage with how Delegat was treated (more on that in a moment).

But the fact is that the Government cannot and should not do what he's saying it should, and he's completely out of order to demand that it do so. Because if he wants to one day be Minister of Police, he will have to respect and abide by these rules that he's so cavalierly calling on National Ministers to ignore. Simply put, if he were the Minister, he couldn't (and shouldn't) do what he's saying the National Party Ministers ought to do - which makes his calling for this action deeply disingenuous at best, and something much worse at worst.

One additional thing on the actual question of Delegat's sentence and its fitness. I simply can't say, from a legal perspective, whether he was treated more leniently than a poor and/or Maori/Pasifika defendant would have been. We certainly know that taken across the population as a whole, poor and/or Maori/Pasifika defendants are not treated in the same way as wealthy and/or Pakeha defendants. But in respect of this particular case, I really don't know whether he benefited from that general systemic bias. And others who should know better than I (because they are involved far more often in sentencing decisions) don't seem to think that he did.

However, setting aside what Mr Delegat got at sentencing, there's one aspect to his case that kind of rankled with me. According to the ODT:

In asking for a discharge without conviction, Mr Ryan said Delegat was willing to undertake community work in conjunction with police and local authorities to address the ``rather out-of-control drinking culture'' at the University of Otago.

``Mr Delegat wants to give something back to the police and to the community,'' he said. ``He's wanting to help and mentor other young people who have problems with alcohol.''

First of all, while it is his legal right and all that, asking for a discharge without conviction in this case just seems wrong. Especially when one of the reasons given for that sought after discharge is that without it, "he would be unable to race in yachting competitions in the United States." You could hardly think up a better line if you were intentionally trying to come across as an entitled, out-of-touch spoiled brat.

Second, Delegat's attempt to deflect responsibility for his actions away from himself and towards the "rather out-of-control drinking culture" at Otago carry echoes of the statement to court from the rapist (and former Stanford University student) Brock Turner. In seeking to minimise his offending, Turner pointed to "the party culture and risk taking behavior that I briefly experienced in my four months at [University]", while saying that:

I want to show that people’s lives can be destroyed by drinking and making poor decisions while doing so. One needs to recognize the influence that peer pressure and the attitude of having to fit in can have on someone. One decision has the potential to change your entire life. I know I can impact and change people’s attitudes towards the culture surrounded by binge drinking and sexual promiscuity that protrudes through what people think is at the core of being a college student. I want to demolish the assumption that drinking and partying are what make up a college lifestyle. I made a mistake, I drank too much, and my decisions hurt someone. 

To which I can only fully endorse and repeat the following words in an ODT column (not online, apparently) from Otago student (and member of the very good Astro Children), Millie Lovelock:

I've said it before and I've said it again, there is a culture of violence among young men and universities are not exempt from this. ... Teach young men that alcohol is not the problem: they are, as long as they subscribe to toxic masculinity and violent misogyny.

As we used to say back in the '90s, "word up! Sister".

Comments (33)

by Raymond A Francis on September 15, 2016
Raymond A Francis

Agree, agree.

On matter of sentencing and the supposed difference that being a Māori would make, I have asked on several sites for examples of Māori with the same amount of previous form and a similar level of violence getting harsher sentence.

No-one has given me a true like for like example, which doesn't surprise me as the lee way given to judges is pretty slim.

by Graeme Edgeler on September 16, 2016
Graeme Edgeler

On matter of sentencing and the supposed difference that being a Māori would make, I have asked on several sites for examples of Māori with the same amount of previous form and a similar level of violence getting harsher sentence.

Metro covered the story of one with the same amount of previous, charged with a similar level offence (assault with intent to injure, the same maximum as aggravated assault). He ultimately received a discharge without conviction, in part based on the hope he could study in the US.

by Andrew Geddis on September 16, 2016
Andrew Geddis

I also should point readers to Graeme's very excellent post on how the media have badly misreported the legal background to the Delegat case (with added thoughts on Stuart Nash's contribution). 

 

by Graham Adams on September 16, 2016
Graham Adams

A column by Duncan Garner today was published on Stuff re the Delegat sentencing and he found a case which he thinks shows racial bias:

“I went searching for one final case to compare to Delegat's sentence.

“I found it in the case of Louanne Huingarangi Edwardson, 30 - who was jailed for 20 months in 2011 for injuring a policewoman who had tried to help her when responding to a domestic violence callout.

“Edwardson was drunk and lashed out with her feet, kicking the officer in the face and body, breaking her jaw and cracking several ribs. She was convicted of injuring with intent, resisting arrest and obstructing police.

“She isn't white and she didn't have a QC defending her.

“Delegat walks the streets. Edwardson did time. I rest my case.

“The rich white kid got off lightly - no matter what the fancy lawyers say in defence of the so-called justice system.”

However, Garner doesn’t tell us whether Edwardson was a first-time offender, which is highly relevant to the sort of sentence a court might impose.

It was certainly relevant to the appeal made on behalf of Hautahi Kingi, which Mike White wrote about, and Graeme Edgeler cites above. (It was published on the Metro website but originally appeared in North & South).

by Ross on September 16, 2016
Ross

There's also the case of Jackie Maikuku, a young man who was sentenced to 9 months in prison for attacking a police officer.

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11217092

by Ross on September 16, 2016
Ross

In sentencing Delegat, the judge said: Somewhat against what I would normally do in the circumstances that confront me here, I am going to deal with you by the imposition of community work. Does that suggest that the judge would normally have imposed a prison sentence? If so, why not in this case?

Second, there were several penalties imposed but the judge said Delegat could serve those punishments concurrently, which is a lesser penalty than if those punishments had to be done consecutively. Why didn't the judge impose consecutive punishments?

Third, the Sentencing Act states:

Aggravating and mitigating factors

(1) In sentencing or otherwise dealing with an offender the court must take into account the following aggravating factors to the extent that they are applicable in the case:

(a) that the offence involved actual or threatened violence or the actual or threatened use of a weapon:(b) that the offence involved unlawful entry into, or unlawful presence in, a dwelling place:(c) that the offence was committed while the offender was on bail or still subject to a sentence:(d) the extent of any loss, damage, or harm resulting from the offence:(e) particular cruelty in the commission of the offence:(f) that the offender was abusing a position of trust or authority in relation to the victim:(fa) that the victim was a constable, or a prison officer, acting in the course of his or her duty

However, there is no mention of the Sentencing Act in the judge's notes. Did he take into consideration that the victim was a police officer?

by Andrew Geddis on September 17, 2016
Andrew Geddis

@Graham,

However, Garner doesn’t tell us whether Edwardson was a first-time offender, which is highly relevant to the sort of sentence a court might impose.

Yes. You can't compare an apple with another apples unless you know they are both apples.

@ Ross,

There's also the case of Jackie Maikuku ...

Graeme Edgeler has discussed this in a twitter stream - again it's not clear he's an apple.

Does that suggest that the judge would normally have imposed a prison sentence? If so, why not in this case?

No. Not prison. But I think the Judge "normally" would have imposed community detention (i.e. overnight curfews) and supervision orders. However, because Delegat is now living in Auckland, the Dunedin District Court wouldn't be able to make sure those orders were being complied with. That's my understanding, anyway.

Why didn't the judge impose consecutive punishments?

Because the various offences were committed as a part of a single event. In NZ, sentences for such offences are always concurrent.

Did he take into consideration that the victim was a police officer?

The offence Delegat plead guilty to was aggravate assault - with the aggravating feature being the attack on the police officer. This offence carries a higher possible sentence (3 years jail, rather than 6 months). The fact the victim was a police officer already was "taken into consideration" by the very charge faced.

by Ross on September 17, 2016
Ross

Graeme Edgeler has discussed this in a twitter stream - again it's not clear he's an apple.

Alas, I don't have access to Twitter (and probably many others don't). But the fact remains that Maikuku was just 19 at the time of the alleged offence, and he subsequently spent a year in prison for that offence. I understand he was wanted in regards to minor offences at the time of the assault. Was he entitled to receive a lesser sentence?

In NZ, sentences for such offences are always concurrent.

The Sentencing Act states: "Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences." So, sentences for imprisonment - whether they are connected or not - are not required to be concurrent. In the Delegat case, the Judge didn't say he was required to sentence concurrently. Delegate didn't simply assault a police officer, he also caused intentional damage. Could he have received a longer sentence?


by Ross on September 17, 2016
Ross

The offence Delegat plead guilty to was aggravate assault - with the aggravating feature being the attack on the police officer. This offence carries a higher possible sentence (3 years jail, rather than 6 months). The fact the victim was a police officer already was "taken into consideration" by the very charge faced

The Sentencing Act says an aggravating feature when sentencing is if the victim was a constable, or a prison officer, acting in the course of his or her duty. You seem to be saying that if a police officer is assaulted, it would be an aggravating feature only if the offender wasn't charged with assaulting a police officer...how common is that?

by Andrew Geddis on September 17, 2016
Andrew Geddis

Alas, I don't have access to Twitter

Yes you do. Just click on the link provided in my comment.

So, sentences for imprisonment - whether they are connected or not - are not required to be concurrent.

Irrespective of what the statute says, sentences for offending that is committed as part of one linked event (or even as part of a spree of similar offences) are always imposed concurrently. If the judge had done anything else in this case, it would have been overturned on appeal.

You seem to be saying that if a police officer is assaulted, it would be an aggravating feature only if the offender wasn't charged with assaulting a police officer...how common is that?

I'm not sure you can "double count" the fact that the victim was an officer - i.e. both use that fact to upgrade the charge faced (so it has a longer potential prison sentence attached, which in itself requires the judge to consider a more severe sentence) and then increase the severity of the sentence imposed under that charge. But here I'm getting out of my depth a bit as sentencing is not my specialist area of expertise (as I note in my post).

by Ross on September 17, 2016
Ross

I think what I'm asking is: could Delegat have received a longer sentence, say 3 months' imprisonment for assaulting two people, plus payment of $5k to the police officer, and a community sentence for property damage?

by Andrew Geddis on September 17, 2016
Andrew Geddis

I think what I'm asking is: could Delegat have received a longer sentence, say 3 months' imprisonment for assaulting two people, plus payment of $5k to the police officer, and a community sentence for property damage?

Well, he could have. But all the commentary I've seen from folks who have lots and lots of experience with sentencing matters say that his community work sentence was nothing remarkable. So if he had been sentenced to prison, he likely could have (successfully) appealed that decision - just as happened in the Hautau Kingi case

We're all agreed that Delegat shouldn't get a lighter sentence than "normal" because he's a rich, white kid. But there's a bit of a danger that people are suggesting he should get a heavier sentence than "normal" because of those factors. Not sure that's how our justice system ought to work.

by Ross on September 18, 2016
Ross

So if he had been sentenced to prison, he likely could have (successfully) appealed that decision - just as happened in the Hautau Kingi case

The original charge was downgraded - the original offence carries a maximum sentence of 3 years' imprisonment. I imagine that if Delegat had been convicted of that offence, prison was entirely possible, maybe even likely?

I'm not sure there are many people suggesting he should have received a jail sentence because he's a rich, white kid. I think the concern is that he attacked a female police officer - and a member of the public - and seems to have shown little or no remorse and taken no responsibility.

As for the Kingi case, it seems quite different from this case. Kingi didn't attack a police officer and didn't attack two people, only one. The victim's injuries were not nearly as severe as those suffered by officer Kane in the Delegat case. Further, Kingi seems - if the media are to be believed - to be genuinely remorseful. He wasn't drunk as was Delegat.

by Charlie on September 18, 2016
Charlie

Great post Andrew. This really needs wider publication.

 

 

 

 

by Andrew Geddis on September 18, 2016
Andrew Geddis

@ Ross,

The original charge was downgraded - the original offence carries a maximum sentence of 3 years' imprisonment

You really need to go and read Graeme Edgeler's very excellent post here.

As for the Kingi case, it seems quite different from this case.

As was the outcome. Kingi was (eventually) discharged without conviction. Delegat wasn't.

@ Charlie,

Thanks.

by Stewart Hawkins on September 18, 2016
Stewart Hawkins

With full regard to the law and the precedents and the expert legal opinions provided by Andrew and others, as far as this commentator is concerned Delegat got off with a slap from a wet bus ticket. My kids know that if they did this crime I would have let them rot at the hands of the duty lawyer and they would have to beg to be readmitted to my family.

The Auckland QC, the pleading for name suppression, the in-the-third party regrets are all symbolic of a family that has not set the proper boundaries required for living in decent society. I won't be buying another bottle Delegats as I regard the family as completely complicit in the crime through poor upbringing.

by Siena Denton on September 19, 2016
Siena Denton

Kiaora Stewart Hawkins

After reading all comments and replies I have reached the conclusion that your comment is like a breath of fresh air.

I do hope the police officer concerned files a complaint with the Judicial Complaints Conduct Commissioner

Only one comment I will make is that the Tainui King's little gangster thieving princling had his case reviewed, so what's good for the goose should be good enough for the gander as well.

I believe there are some excellent alcohol and drug programmes facilitated by some excellent university graduated facilitators who practice from an ethical perspective.

 

 


by Graham Adams on September 19, 2016
Graham Adams

Re Hautahi Kingi case:

Pat Brittenden is the first person I have seen to make it clear that the Kingi case is a very weak one for establishing anything about racial bias in the justice system. Kingi was sentenced with a co-offender, who seems to have been Pakeha:

"It appears to have been Kingi’s first offence so when he was sentenced to 5 months prison... one could start to look at the bias inherent in the justice system where Maori are sent to prison and non-Maori are not. Unfortunately for that narrative there was also another person who was sentenced with Kingi for four months…and my investigations point to him as being Pakeha. If my investigations are correct and the Kingi sentence was the inherent racism in the system, why was his friend also sentenced? On top of that the prison sentence was then overturned and both parties had their convictions quashed, and served 200 and 250 hours of community service. This means they actually got an easier sentence that Nikolas Delegat. What this points to is a rogue judge who tried to instill a sentence that was inappropriate, as opposed to the system being broken."


by Ross on September 19, 2016
Ross

You really need to go and read Graeme Edgeler's very excellent post here

I have and I can't see where he addresses the issue of what Delegat's punishment might have been had he been found guilty of aggravated assault, nor why the original charge was downgraded.

by Ross on September 19, 2016
Ross

I suppose to a front-line police officer, $5K is - significant. Obviously, you wouldn't expect to punch a barrister or a judge for that kind of money, but a police constable is on a lower hourly rate.

(Sidebar: could you punch a male police officer for $5K? Or is this another example of women being paid less than men?)

Discussing emotional harm with Delegat's lawyer, District Court judge Kevin Phillips said: "This almost destroyed her life." Well that explains the severe sentence then.

"Almost" is the key word. If her life had been actually destroyed, the emotional harm payment would have been at least $6K, if not more. ... After the sentence was handed down, on a velvet cushion, with a chocolate mint, the Delegat family issued a statement.

"Nikolas takes full responsibility for his actions that night," said the statement, because there's nothing as sincere as an apology written in the third person.

http://m.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=11709882

by Ross on September 19, 2016
Ross

As for the Kingi case, it seems quite different from this case.

As was the outcome. Kingi was (eventually) discharged without conviction. Delegat wasn't.

According to Metro: "Over many months, Kingi also completed 250 hours of community service, working weekends at Wellington’s soup kitchen, a volunteer radio station and other charities. He went to counselling and emptied his bank account to pay his victim reparation."

So Kingi did community service and paid money to his victim...like Delegat will do. Their similar punishments don't make a lot of sense as Delegat's offending was considerably worse.

by Graeme Edgeler on September 21, 2016
Graeme Edgeler

But the fact remains that Maikuku was just 19 at the time of the alleged offence, and he subsequently spent a year in prison for that offence.

Maikuku didn't subsequently spend a year in prison. He was released from prison the day he was sentenced.

You really need to go and read Graeme Edgeler's very excellent post here

I have and I can't see where he addresses the issue of what Delegat's punishment might have been had he been found guilty of aggravated assault, nor why the original charge was downgraded.

Delegat was found guilty (or rather pleaded guilty) to aggravated assault. It carries a maximum penalty of 3 months' imprisonment.

by Graeme Edgeler on September 21, 2016
Graeme Edgeler

 think what I'm asking is: could Delegat have received a longer sentence, say 3 months' imprisonment for assaulting two people, plus payment of $5k to the police officer, and a community sentence for property damage?

Well, he could have.

No, he couldn't have.

See section 19 of the Sentencing Act:

(5) A sentence of community work, subject to section 20(2), may be combined with any sentence except imprisonment.

by Graeme Edgeler on September 21, 2016
Graeme Edgeler

Their similar punishments don't make a lot of sense as Delegat's offending was considerably worse.

Delegat has a conviction. The existence of a conviction for violence is a pretty big and ongoing punishment for a person who previously did not have a conviction.

by Ross on September 21, 2016
Ross

Maikuku didn't subsequently spend a year in prison. He was released from prison the day he was sentenced.

He did spend a year in prison after he offended. He was only 19 at the time of the offending.

Delegat was found guilty (or rather pleaded guilty) to aggravated assault. It carries a maximum penalty of 3 months' imprisonment.

He pleaded guilty to a lesser charge of assaulting a police officer with intent to obstruct her (which carries a maximum penalty of six months). Over at PA you said that aggravated assault carries a maximum penalty of 3 years' imprisonment. Section 192 of the Crimes Act confirms that 3 years is the maximum penalty for this offence. We are back at my original question. What could Delegat have been sentenced to if he'd been convicted of that offence, perhaps a term of imprisonment?

by Ross on September 21, 2016
Ross

Delegat has a conviction. The existence of a conviction for violence is a pretty big and ongoing punishment for a person who previously did not have a conviction.

I don't disagree. But his punishment could have been more severe, especially as the attack on the police officer almost, according to the sentencing judge, "destroyed her life".

by Graeme Edgeler on September 22, 2016
Graeme Edgeler

He pleaded guilty to a lesser charge of assaulting a police officer with intent to obstruct her (which carries a maximum penalty of six months). 

No, he didn't. He pleaded guilty to aggravated assault. He was convicted of aggravated assault. We can therefore conclude (in answer to your earlier question) that the sentence that Delegat would have received had he been convicted of aggravated assault, which has a three year maximum, would have been 300 hours community work, and reparations. We can be confident of this because it is actually what happened.

Here is a direct link to the District Court decision (.pdf). The important quote for our purposes is in paragraph 1:

The charges for which he is before me relate to a charge under s 192(2) Crimes Act 1961 that he with intent to avoid the arrest of himself assaulted a police officer with intent to obstruct her in the execution of her duty. The maximum penalty on that charge is one of three years.

by Ross on September 23, 2016
Ross

Thanks, Graeme.

I note that at PA you said "The maximum penalty for assault on a police officer is six months in prison". What would have been helpful if you'd quoted section 192(2) of the Crimes Act:

Every one is liable to imprisonment for a term not exceeding 3 years who assaults any constable or any person acting in aid of any constable, or any person in the lawful execution of any process, with intent to obstruct the person so assaulted in the execution of his or her duty.

by Ross on September 23, 2016
Ross

He pleaded guilty to aggravated assault. He was convicted of aggravated assault. We can therefore conclude (in answer to your earlier question) that the sentence that Delegat would have received had he been convicted of aggravated assault

If that isn't confusing, I don't know what is!!! Had he been convicted of aggravated assault? He was convicted of aggravated assault...

by Ross on September 23, 2016
Ross

One final point (I promise!).

If and when the next media firestorm erupts over an MP or very important person making a public statement about an offender’s sentence, it would be useful if the media - or any expert commenting on the case - did the following:

Briefly state if the offender was charged with the most serious offence available (and if not, state why not).

State the maximum punishment for that offence and give examples of similar cases where the same or similar sentence has been imposed.

Do not mention other offences with which the offender could have been charged if they are not relevant.

In the Delegat case it wasn’t relevant that he might have faced a charge with a six month maximum prison sentence. That’s because he was convicted of an offence which carried a maximum penalty of 3 years. In other words, he apparently was charged with the most serious offence available, the maximum sentence was three years and his sentence was consistent with offenders committing a similar offence.

by Graeme Edgeler on September 23, 2016
Graeme Edgeler

If that isn't confusing, I don't know what is!!! Had he been convicted of aggravated assault? He was convicted of aggravated assault...

Any more after this, I'm going to assume you're trolling (I'm not sure why I'm not assuming that now).

You said Delegat was convicted of assault on a police officer, after the charge was downgraded. You were wrong. The assault on the police officer lead to a conviction for aggravated assault. Aggravated assault has a maximum penalty of 3 years.

Your question about what I think the sentence would have been had Delegat been convicted for aggravated assault instead of for a lesser charge is a nonsensical question because Delegat was in fact convicted for aggravated assault, and was not convicted of the lesser charge you describe.

by Fentex on September 26, 2016
Fentex

For comparative purposes I submit <a href='http://www.stuff.co.nz/sport/rugby/84680904/wellington-rugby-player-discharged-without-conviction'>this case</a> where a not so rich and not so pakeha person avoided prison for a vicious and damaging assault (arguably more so than Delegats attack), although one might consider a Rugby career it's own privilege New Zealand protects.

Personally one can see why some call for minimum sentencing laws on the basis they'd introduce some consistency and guarantees for victims. I know that I'd be extremely angry had I been the assaulted in either of these cases to see my assailant treated so favourably.

Rehabilitation and deterrence are but two responsibilities of the state, it must also take some vengeance on our behalf least we need do it ourselves.

 

by Rich on September 27, 2016
Rich

I'd generally be against a minimum sentencing law but I think that discharge without conviction for assault, except in a very few cases where the *offence* can be considered de-minimus, should be removed as an available sentence.

The consequence of an act of violence should include damage to one's career prospects - the answer of course is not to hit people.

And aren't we misleading overseas countries into accepting people as visitors migrants who have been found guilty of serious crimes of violence, but have no offence recorded? Wouldn't it be reasonable for a foreign country to deny NZ rugby players visas on the grounds that as a group, they commit violent crime but are allowed to cover this up by the NZ state?

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