R. v. Mulrooney, 2023 NLSC 131
Opinion
court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Mulrooney , 2023 NLSC 131 Date : October 3, 2023 Docket : 202201G4027 His Majesty The king v. Gary mulrooney - AND – Docket : 202201G4028 HIS MAJESTY THE KING v. GARY MULROONEY - AND - Docket : 202301G4484 HIS MAJESTY THE KING v. GARY MULROONEY - AND – Docket : 202301G4485 HIS MAJESTY THE KING v. GARY MULROONEY
- AND - Docket : 202301G4471 HIS MAJESTY THE KING v. GARY MULROONEY - AND - Docket : 202301G4487 HIS MAJESTY THE KING v. GARY MULROONEY - AND - Docket : 202301G4486 HIS MAJESTY THE KING v. GARY MULROONEY Before: Justice Sandra R. Chaytor Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: September 28-29, 2023
Date of Oral Judgment: September 29, 2023
Summary: The offender pled guilty and was convicted of 11 counts of drug related offences on seven separate indictments. The offences includedsix counts of possession for the purpose of trafficking (four involving cocaine; one involving fentanyl; and one involvingbenzimidazole); one count of trafficking in cocaine; one count of possession of the proceeds of crime; and three counts of failure tocomply with a release order. The Court accepted a joint submission of a global sentence of 10 years’ incarceration for all offencestogether with ancillary orders. Appearances: Elaine M.
Reid Appearing on behalf of the Crown Jonathan E. Noonan, K.C. Appearing on behalf of the Offender CASES CONSIDERED: R. v. Anthony-Cook, 2016 SCC 43; R. v. Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289,318 A.P.R. 289 (Nfld. C.A.); R. v. Kane, 2012 NLCA 53; R. v. Parranto, 2021 SCC 46; R. v. Lacasse, 2015 SCC 64; R. v. Lynch, 2022ONCA 109; R. v. Ribble, 2021 ONCA 897; R. v. Ribble, 2019 ONCJ 640, 158 W.C.B. (2d) 309; R. v. Prestula, 2018 ONSC 4214; R. v.Castro, 2016 NWTSC 8; R. v. Smith, 2019 SKCA 100; R. v. Lu, 2016 ONSC 292; R. v. Aujla, 2016 ABPC 272; R. v. Bourgeois, 2022NBPC 2; R. v.
Noftall, 2022 NLCA 23; R. v. Gould, 2016 NLTD(G) 97; R. v. Hutchings, 2012 NLCA 2; R. v. Roberts, 2019 NLCA 43;R. v. Summers, 2023 NLCA 8; R. v. Hennebury (1996), (NL CA), 138 Nfld. & P.E.I.R. 56, 431 A.P.R. 56 (Nlfd.C.A.); R. v. Murphy, 2011 NLCA 16 STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19; Criminal Code, R.S.C. 1985, c. C-46; Charter ofRights and Freedoms,
Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 REASONS FOR JUDGMENT Chaytor, J.: INTRODUCTION [1] Gary Mulrooney pled guilty to 11 drug related offences on seven separate indictments. The offences occurred over the periodof November 21, 2020 to May 17, 2023 and involved street level drug trafficking and related activities in St. John’s Newfoundland andLabrador and surrounding areas. At the time of commission of the offences, Mr. Mulrooney was on parole or under a release order. [2] With respect to the first indictment (court file # 202201G4027), Mr.
Mulrooney pled guilty to three counts of possession forthe purposes of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”). Theseoffences occurred November 21, 2020. One count concerned cocaine, the second, fentanyl and the third benzimidazole. [3] With respect to the second indictment (court file # 202201G4028), Mr. Mulrooney pled guilty to a further count of possessionfor the purposes of trafficking in cocaine.
This offence occurred July 15, 2021 and involved events that transpired at a local hotel. [4] With respect to the third indictment (court file # 202301G4484), Mr. Mulrooney pled guilty to a further count of possession forthe purposes of trafficking in cocaine. This offence occurred July 18, 2022 as a result of incidents that occurred at a local Walmart store. [5] With respect to the fourth indictment (court file # 2023O1G4485), Mr. Mulrooney pled guilty to one count of trafficking incocaine. This offence occurred between January 18, 2023 and March 23, 2023 and related to selling cocaine to an undercover police
officer. [ 6 ] With respect to the fifth indictment (court file # 202301G4471), Mr. Mulrooney pled guilty to one count of possession for the purpose of trafficking in cocaine which occurred between April 19, 2023 and May 17, 2023. He also pled guilty to one count of possession of property obtained by crime contrary to
section 354 of the Criminal Code , R.S.C. 1985, c. C-46 (“ Criminal Code ”). This count occurred on May 17, 2023 when Mr. Mulrooney was found in possession of money in excess of $163,000. [ 7 ] With respect to the sixth indictment (court file #202301G4487), Mr. Mulrooney pled guilty to one count of breach of a release order contrary to
section 145 of the Criminal Code . At the time of his arrest for possession of cocaine for the purpose of trafficking on July 18, 2022, Mr. Mulrooney was subject to a release order made on January 25, 2022, with conditions including not to possess, consume or traffic in any illegal drug or substance. [ 8 ] With respect to the seventh indictment (court file #202301G4486), Mr.
Mulrooney pled guilty to two further counts of breaching conditions of the January 25, 2022 release order between April 19, 2023 and May 17, 2023 by having operated a motor vehicle and changing his residential address without notifying the police. [ 9 ] An Agreed Statement of Facts with respect to all offences was filed and read into the record. Appendices to the Agreed Statement of Facts included certificates of analysts from Health Canada regarding the substances seized in the investigations, photographs of exhibits, expert opinion reports of Cpl. Bradley Gallant and Sgt.
David Emberley, and the January 25, 2022 release order. [ 10 ] I was satisfied based upon the evidence adduced that the Crown had proven all elements of the offences to which Mr. Mulrooney had pled guilty and convictions were entered accordingly. [ 11 ] Following the entering of convictions, the Crown withdrew four other charges: two counts of trafficking in cocaine and two counts of breach of the release order. [ 12 ] The sole issue for determination is the imposition of an appropriate sentence for the offences committed by Mr.
Mulrooney. the crown and defence position [ 13 ] The Crown and the Defence made a joint submission for a global sentence of ten years’ incarceration comprised as shown in the following table: Court File # Offences Proposed Sentence 202201G4027 Sec. 5(2) CDSA – 63 g cocaine Sec. 5(2) CDSA – 184 fentanyl pills Sec. 5(2) CDSA – 402 benzimidazole pills 2 years concurrent 5 years concurrent 5 years consecutive 202201G4028 Sec. 5(2) CDSA – 178.72 g cocaine 4 years concurrent 202301G4484 Sec. 5(2) CDSA – 127 g cocaine 2 years concurrent 202201G4485 Sec. 5(1) CDSA – 1.75 x 3 g cocaine 2 years concurrent 202301G4471 Sec. 5(2) CDSA – 2.69 kg soft cocaine + 933.5 g crack cocaine Sec. 354 Criminal Code - $163,310 5 years consecutive 1.5 years concurrent 202301G4487 Sec. 145 Criminal Code 45 days concurrent 202301G4486 Sec. 145 Criminal Code Sec. 145 Criminal Code 45 days concurrent 45 days concurrent TOTAL: 10 years [ 14 ] The proposal also included a forfeiture order, an order for firearms prohibition and a DNA order.
Joint Submission ON SENTENCE: THE Applicable test [15] Although a submission is made jointly, it nonetheless needs to be assessed by the court. [16] In R. v. Anthony-Cook, 2016 SCC 43, guidance was provided to sentencing judges as to the proper legal test to be applied in itsassessment of a joint submission. Under the public interest test, a trial judge should not depart from a joint submission on sentence unlessthe proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.
Forjoint submissions to be possible, the parties must have a high degree of confidence that they will be accepted. The public interest test, bybeing more stringent than the other tests proposed, best reflects the many benefits that joint submissions bring to the criminal justicesystem and the corresponding need for a high degree of certainty in them. [17] Although joint submissions on sentence are not sacrosanct, the Supreme Court reminded sentencing judges in Anthony-Cook toexhibit restraint in interfering with them.
They should only be rejected where the proposed sentence would be viewed by reasonable andinformed persons as a breakdown in the proper functioning of the justice system. [18] The public interest test is stringent and for good reason. The Crown and defence counsel are well placed to arrive at a jointsubmission that addresses the interests of both the public and the accused. Joint submissions on sentence are important to the properfunctioning of the justice system. They allow a degree of certainty for both the Crown and the accused in the outcome.
The acceptanceof joint submissions save court time for other matters that are not as conducive to resolution. disposition [19] Let me state before I go further Mr. Mulrooney, that having considered the authorities cited by counsel and having heard thesubmissions of counsel, I find the proposed joint sentence to be an appropriate disposition of these matters in the circumstances. I acceptthe joint submission. [20] I will continue and provide, for the purpose of the record, the reasons for my decision.
ANALYSIS Sentencing Parameters and Principles [21] In assessing the appropriateness of the joint submission, as in any sentencing, consideration must be given to the principles setout in
section 718 of the Criminal Code. The sentence must contribute to respect for the law and the maintenance of a just, peaceful, andsafe society.
It should meet one or more of the following objectives: denunciation, deterrence, separation of offenders from society(where necessary), rehabilitation, reparation, and general promotion of a sense of responsibility in offenders and an acknowledgement ofthe harm done to victims and to the community. [22] Section 10(1) of the CDSA states that without restricting the generality of the Criminal Code, the fundamental purpose of anysentence for offences of this nature is to contribute to the respect for the law and the maintenance of a just, peaceful and safe societywhile encouraging rehabilitation and treatment in appropriate circumstances of offenders and acknowledging the harm done to victimsand to the community. [23] Although we may not have a face of a specific victim before the Court on these matters, make no mistake there are manyfaceless victims of Mr.
Mulrooney’s offences. [24] The cost to society with respect to the distribution of hard substances such as cocaine, fentanyl and benzimidazole is both highand devastating. Trafficking in such substances is the root of many societal problems. Such offences often involve preying upon themost vulnerable people in our society including people who suffer from addictions. The consumption of the drugs can have severeconsequences on the individual user but the shattering effects extend beyond the user of the drugs. Families and relationships aredestroyed.
It is difficult to conceive of any facet of society that is not impacted. A message of deterrence must be sent to those convictedof such offences. [25] Although deterrence and protection of the public are the primary considerations in offences of this nature (R. v. Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289, 318 A.P.R. 289 (Nfld. C.A.); R. v. Kane, 2012 NLCA 53), the overall goal is toachieve a fair, fit and principled sentence. [26] Recently in R. v. Parranto, 2021 SCC 46, the Supreme Court at paragraph 10 reinforced that proportionality is the fundamentalprinciple in reaching this goal.
All sentencing starts with the principle that sentences must be proportionate to the gravity of the offenceand the degree of responsibility of the offender. The principles of parity and individualization, while important, are secondary principles.Individualization is central however, to the proportionality assessment. This is because each offence is “committed in uniquecircumstances by an offender with a unique profile” (R. v. Lacasse, 2015 SCC 64, at para. 58).
Circumstances of the Offences [27] The facts and circumstances surrounding the commission of these offences are detailed in the Agreed Statement of Facts. Aggravating Factors [28] Mr. Mulrooney committed a multitude of drug related offences over a two-and-a-half-year period and blatantly did so while onparole for similar offences or while under a release order. [29] The nature and volume of the drugs involved are also aggravating factors in this case. [30] The offences involve hard drugs including cocaine and even more concerning, fentanyl and benzimidazole.
[ 31 ] As the majority recognized in Parranto , at paragraph 70 , moral culpability rises with the risk of serious harm to which the trafficker is prepared to expose others. [ 32 ] The case law is replete with courts throughout the country expressing concern about the distribution of fentanyl. Trafficking in fentanyl is expected to attract a more significant sentence than offences related to cocaine.
This is because of the recognition of the higher risk and harm to the end user and devastating consequences to communities that are plagued by addictions to fentanyl. [ 33 ] The Supreme Court stated in Parranto that generally, even first offenders who traffic in significant amounts of fentanyl should expect to receive significant penitentiary sentences. [ 34 ] Benzimidazole is a new and emerging drug in this province. Cpl.
Bradley Gallant wrote in his report that this narcotic analgesic is reported to have a potency that is at least equal to or greater than fentanyl and that it has been associated to numerous overdose deaths in both Calgary and Montreal. Mitigating Factors [ 35 ] I have also considered the mitigating factor that Mr. Mulrooney pled guilty. With respect to five of the indictments this occurred at a very early stage in the proceedings.
This saved witnesses from having to testify and valuable court time and resources, which in this case with the number of indictments could have been a complex and lengthy trial or a number of trials. [ 36 ] The guilty pleas also demonstrate that Mr. Mulrooney takes responsibility for his actions. He addressed the Court and took full responsibility for his actions. I accept that as a sincere expression of remorse.
Circumstances of the Offender [ 37 ] In determining the appropriateness of the joint submission it is important to consider the offender’s personal circumstances. [ 38 ] I do not have the benefit of a Pre-Sentence Report so I have limited information regarding his background. [ 39 ] Mr. Mulrooney is 59 years of age. Although not extensive, Mr. Mulrooney has a criminal record. Most notably, he was convicted of drug related offences in May 2016 for which he received a sentence of approximately seven years’ incarceration. [ 40 ] Defence counsel advised the Court that Mr.
Mulrooney completed high school following which he obtained a trade. He has a strong work history having been gainfully employed as a heavy equipment operator for 28 years. He is currently in a relationship that he hopes will be maintained during his incarceration and that he will be able to cultivate after he is released from prison. Prescribed Sentence under the CDSA and Criminal Code [ 41 ] In assessing the reasonableness of the joint proposal on sentence, I have considered what is statutorily prescribed for the offences. [ 42 ] With respect to the breach of
section 354 of the Criminal Code , being in possession of the proceeds of crime, pursuant to
section 355(a)(b), Mr. Mulrooney is liable to imprisonment for a term of not more than 10 years. [ 43 ] Mr. Mulrooney is convicted of six counts of possession of
Schedule I substances for the purpose of trafficking contrary to section 5(2) of the CDSA and one count of trafficking in cocaine contrary to section 5(1) of the CDSA . Pursuant to section 5(3) (
a) of the CDSA he is liable to imprisonment for life. [ 44 ] Maximum penalties are one of Parliament’s tools to determine the gravity of the offence. To advance public safety, Parliament has chosen to hold those who distribute substances such as cocaine, fentanyl and benzimidazole accountable and communicate the wrongfulness of poisoning people and communities by imposing the maximum sentence for such offences as being life in prison.
Range of Sentence [ 45 ] In assessing the reasonableness of the joint proposal, I have considered the sentences imposed for such offences in other cases with similar fact situations. [ 46 ] In support of the joint submission, the parties submitted authorities which I have considered [For sentences offences involving fentanyl see: Parranto ; R. v. Lynch , 2022 ONCA 109 ; R. v. Ribble , 2021 ONCA 897 ; R. v. Ribble , 2019 ONCJ 640 , 158 W.C.B. (2d) 309; R. v. Prestula , 2018 ONSC 4214 ; R. v. Castro , 2016 NWTSC 8 ; R. v. Smith , 2019 SKCA 100 ; R. v. Lu , 2016 ONSC 292 ; R. v. Aujla , 2016 ABPC 272 .
For sentences for benzimidazole see: R. v . Bourgeois , 2022 NBPC 2 . For sentences for Cocaine offences see: R. v. Noftall , 2022 NLCA 23 ; Kane ; R. v. Gould , 2016 NLTD(G) 97. [ 47 ] I will not summarize all of those cases. I do note however, that in Parranto the Supreme Court, at paragraph 68, in dealing with a range of sentence for trafficking in fentanyl stated that an accurate range of sentence based on reported case law nationally would be 8 to 15 years for offenders who are engaged in commercial trafficking on more than a minimal scale.
The quantity of fentanyl involved in that case was much higher than that of Mr. Mulrooney’s case. Further, the Supreme Court was dealing with circumstances of a wholesale commercial operation in fentanyl which is distinguishable from this case. [ 48 ] Crown counsel also pointed out that the proposed sentence of five years’ incarceration for the section 5(2) CDSA offence regarding cocaine on the fifth indictment may seem somewhat higher than the range indicated in Noftall , Kane and Gould .
It was explained however that the proposed five-year sentence for that offence is in recognition of the high quantity of drugs involved in the circumstances of this case and the fact that the offence involved both cocaine and crack cocaine. [ 49 ] Overall, I am satisfied that the joint proposal for the sentences proposed for each individual offence is within an acceptable
range of sentence for the specific offences. [50] In any event, although sentence ranges are of assistance as guidelines each case has its own unique facts and offender. [51] Furthermore, the acceptable range of a sentence on a joint submission must be such that the accused has an incentive to pleadguilty. This may mean an adjustment down from the normal range of sentence to account for Mr. Mulrooney having forgone his right toa trial. In this regard, it is noted that at the time that Mr.
Mulrooney pled guilty, there was an outstanding Charter[1] Application. [52] It could also mean a sentence on the higher end on certain charges in consideration of the Crown withdrawing other charges. Inthis regard, it is noted that Mr. Mulrooney was originally charged with four other counts which were withdrawn by the Crown upon theconviction on the remaining counts. [53] Given the multitude of offences, in crafting the joint submission, counsel turned their minds to the totality principle inaccordance with the direction given by the Court of Appeal in R. v. Hutchings, 2012 NLCA 43; R. v.
Roberts, 2019 NLCA 43 and morerecently R. v. Summers, 2023 NLCA 8. [54] The sentences proposed for each individual offence combined would total a term of imprisonment exceeding 18 years.
I agreewith counsel that would be an unduly long and harsh sentences in the circumstances of this case. [55] To address this issue, the proposal is that the five year sentences proposed for two of the most serious of the offences (beingthe section 5(2) CDSA offence regarding benzimidazole on the first indictment and the section 5(2) CDSA offence on the fifth indictmentinvolving the large quantity of cocaine and crack cocaine) be served consecutively and that the remaining nine sentences be servedconcurrently.
By doing so, the total period of incarceration would be 10 years which the parties agree is proportionate and appropriate inthe circumstances. [56] To have the nine other sentences run concurrently would include those imposed for the section 145(3) breaches which areusually served consecutively to a sentence for the related offence (R. v. Hennebury (1996), (NL CA), 138 Nfld. &P.E.I.R. 56, 431 A.P.R. 56 (Nlfd. C.A.); R. v. Murphy, 2011 NLCA 16).
Crown counsel submitted that it is preferable to do concurrentsentences because otherwise in applying the principle of totality the offences for the most serious offences would have to be reduced toavoid a crushing overall sentence. That would not reflect the seriousness of those offences. [57] I find this to be a reasonable manner to arrive at a proportionate sentence.
In any event, this is a joint submission and it is notfor me to tinker with it unless the public interest test has not been met. [58] In order for the sentence proposed on a joint submission to be rejected it would have to be so inordinately lenient orunacceptably harsh that it would be contrary to the public interest and would otherwise bring the administration of justice into disreputeto agree to impose it. [59] Ten years’ incarceration is a significant sentence. It reflects the gravity of the offences. It is a substantial portion of Mr.Mulrooney’s remaining life expectancy.
I cannot conclude however that the proposed sentence is such that to impose it would becontrary to the public interest or would bring the administration of justice into disrepute. Conclusion and Disposition [60] Having considered the circumstances of this case and applying the public interest test, I am satisfied that the sentencerecommended jointly by counsel is appropriate. It would not bring the administration of justice into disrepute or otherwise be contrary tothe public interest.
Reasonable and informed persons would not view this sentence as a breakdown in the proper functioning of thejustice system. [61] I accept the joint submission. [62] Mr. Mulrooney please stand while I impose your sentence. First Indictment: Court File# 202201G4027 - three counts for the offences which occurred November 21, 2020: 1. With respect to count number three, the breach of section 5(2) of the CDSA possession for the purpose of trafficking inbenzimidazole you are sentenced to five years’ incarceration; 2.
With respect to count number one, the breach of section 5(2) of the CDSA possession for the purpose of trafficking in cocaine, youare sentence to two years’ incarceration. This sentence is to be served concurrent; and 3. With respect to count number two, breach of section 5(2) of the CDSA possession for the purpose of trafficking in fentanyl, you aresentenced to five years’ incarceration. This sentence is to be served concurrent. Second Indictment: Court file #202201G4028 - one count for the offence which occurred July 15, 2021: 1.
With respect to the breach of section 5(2) of the CDSA possession for the purpose of trafficking in cocaine, you are sentenced tofour years’ incarceration. This sentence is to be served concurrent. Third Indictment: Court file #202301G4484 – one count of possession of cocaine for the purpose of trafficking which occurredJuly 18, 2022: 1. With respect to the breach of section 5(2) of the CDSA possession for the purpose of trafficking in cocaine, you are sentenced to two
years’ incarceration to be served concurrent. Fourth Indictment: Court file# 202301G4485 – one count of trafficking in cocaine which occurred between April 19, 2023 and May 17, 2023: 1. With respect to the breach of section 5(1) of the CDSA trafficking in cocaine you are sentenced to two years’ incarceration. This sentence is to be served concurrent. Fifth Indictment: Court file#202301G4471 – two counts: 1.
With respect to the breach of section 5(2) of the CDSA which occurred between April 19, 2023 and May 17, 2023, possession for the purpose of trafficking in cocaine, you are sentenced to five years’ incarceration. This sentence is to be served consecutive to the five-year sentence imposed on the first indictment for possession for the purpose of trafficking in benzimidazole; and 2. With respect to the one count of breach of Section 354(1) of the Criminal Code , possession of the proceeds of crime, which occurred May 17, 2023, you are sentenced to 1.5 years’ incarceration. This sentence is to be served concurrent.
Sixth Indictment: Court file# 202301G4487 – one count of breach of a release order which occurred on July 18, 2022: 1. With respect to the breach of section 145(5) (1) of the Criminal Code you are sentenced to 45 days’ incarceration. This sentence is to be served concurrent. Seventh Indictment: Court file#202301G4486 – two counts of breach of a release order which occurred between April 19, 2023 and May 17, 2023: 1. With respect to one count of breach of section 145(5) (1) of the Criminal Code you are sentenced to 45 days’ incarceration to be served concurrent; and 2.
With respect to one count of breach of section 145(5) (1) of the Criminal Code you are sentenced to 45 days’ incarceration to be served concurrent. The total period of incarceration is 10 years. Credit for pre-trial custody [ 63 ] The joint submission, which I have accepted, included credit for pre-trial custody pursuant to section 719(3) of the Criminal Code on a ratio of 1:5. Mr. Mulrooney has spent 136 days in pre-trial custody for these offences. Mr. Mulrooney’s period of incarceration therefore is to be reduced by 204 days.
Ancillary orders [ 64 ] I further impose the following ancillary orders: Forfeiture Order [ 65 ] The Crown sought a forfeiture order under
section 16 of the CDSA and
section 462.37 of the Criminal Code in respect of certain property and cash seized during the investigations. The Defence agreed the order was appropriate and it is granted. Firearm Prohibition [ 66 ] Pursuant to Section 109(1) (
c) of the Criminal Code , a firearm prohibition is mandatory for the CDSA offences. Mr. Mulrooney is prohibited from having any firearm, cross-bow, restricted weapon, ammunition and explosive substance The prohibition is effective immediately and given that these are subsequent offences, pursuant to section 109(3) of the Criminal Code , this is a lifetime prohibition. DNA Order [ 67 ] Pursuant to
section 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from Mr. Mulrooney that are reasonably required for the purposes of forensic DNA analysis. Victim Fine Surcharge [ 68 ] I am prepared to waive the victim fine surcharge given that Mr. Mulrooney will be incarcerated for a lengthy period of time with no means of income. _____________________________ Sandra R. Chaytor Justice
[1] Charter of Rights and Freedoms ,
Part I of the Constitution Act , 1982 , being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 .
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