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The determination of factors which aggravate or mitigate punishment is an under-researched yet vital subject in the field of sentencing. Sentencing factors affect the severity of sentences imposed. Indeed, the determination of sentence may be regarded as a judicial weighing of all relevant mitigating and aggravating circumstances. The important word here is “relevant.” Before a court takes a particular factor – X – into account, it needs to be satisfied that this factor is relevant to the sentencing decision. Factors unrelated to sentencing – such as the offender’s income, gender, race/ethnicity, or social class – should be ignored. As will be seen, some sentencing guidelines explicitly direct courts to ignore irrelevant factors such as race and employment status.
After some introductory comments this research paper notes the sources of guidance for sentencers with respect to mitigation and aggravation. This is followed by a discussion of the problems associated with this guidance. At present, guidance regarding sentencing factors tends to be modest: guideline schemes around the world generally adopt a relaxed approach to the use of sentencing factors. Even in the US-based systems where some factors are excluded from consideration, guidance regarding the application of other factors is quite limited. This state of affairs may reflect the view that consideration of mitigation and aggravation is more properly left to the exercise of judicial discretion, with only minimal direction from the legislature, the guidelines authority, or the appellate courts (for further discussion on aggravation and mitigation, see Walker 1999; Ashworth 2010; Roberts 2011b).
Establishing The Relevance Of Factors
How do we establish that a factor is relevant? One definition is that a factor is relevant if it relates to the objectives of sentencing. For example, an offender’s expressed intention to take a drug treatment program is relevant to the sentencing purpose of rehabilitation. Accordingly, a court may reasonably take this fact into account and mitigate the sentence imposed, because the offender is taking steps towards rehabilitation. Now consider an aggravating factor such as hate motivation. Imagine that an offender is convicted of racially abusing his victim prior to and during an assault. This factor makes the crime more serious: the victim’s social identify and social group have been threatened. Since one of the purposes of sentencing is to impose a sentence which reflects the harm caused, the offender can legitimately be punished more severely; hate motivation is therefore a relevant aggravating circumstance.
In most jurisdictions, the objectives of sentencing are enshrined in statute. For example, the Criminal Justice Act 2003 identifies the sentencing purposes in England and Wales, while Section 718 of the Criminal Code of Canada lists the sentencing objectives for courts in that country. Across the USA, guidelines manuals such as those in Minnesota or at the federal level provide this information for courts. Consulting these purposes will provide courts with insight into the relevance of any particular factor at sentencing. Since most countries pursue multiple sentencing objectives, including deterrence, rehabilitation, incapacitation, and retribution, the list of potential mitigating and aggravating factors is vast, hence the need for guidance from either the legislature, courts, or a sentencing council or commission.
Factors Unrelated To Sentencing Purposes
Finally, there are some factors considered by courts – usually mitigating in nature – which are clearly unrelated to any specific sentencing purpose but which are nevertheless recognized as legitimately affecting sentencing. The best known of these is probably the guilty plea discount. Pleading guilty does not make the crime less serious or reduce the offender’s level of culpability for the offence. Nor can it be said that giving reduced sentences to offenders who plead guilty is relevant to deterrence. If anything, significant reductions in severity for offenders who plead guilty may undermine the deterrent power of sentencing: offenders may be encouraged to offend – or at least not deterred from offending – by knowing that they can get a lighter sentence by pleading guilty.
Yet almost all countries offer offenders who plead guilty a significantly discounted sentence. Why? It is done in the broader interests of justice. When an offender pleads guilty, the state saves the cost of a trial, and victims and witnesses are saved the trouble of testifying. So in order to promote more efficient administration of justice and to spare victims and witnesses, we offer an incentive to offenders in the form of a reduced sentence. The same argument is used to justify sentence reductions in cases where the offender provides assistance to the state in prosecuting other offenders. These two factors – a guilty plea and providing assistance to the state – are unrelated to crime seriousness or offender culpability but are nevertheless taken into account to promote broader goals of the criminal justice system.
The concept of crime seriousness is primordial across most jurisdictions, whether common or civil law. Gravity is a function of harm and culpability. Crimes cannot be precisely calibrated by legislatures – although gross differentiations can be made and are reflected in the relative severity of statutory maximum penalties. Accordingly, courts must weigh a wide range of offence – and offender-related factors in order to determine the seriousness of the offence and hence the severity of the sentence. Some factors enhance sentence by increasing or lowering the seriousness of the crime; others influence sentence by enhancing or diminishing the culpability of the offender. Mitigating and aggravating factors are often taken for granted by members of the public – we all have intuitions about whether factor X should result in a more lenient or a harsher sentence. But many problematic circumstances exist. Factors may be considered relevant by some, irrelevant by others.
Consider intoxication, a circumstance explored by Padfield (2011). Should the fact that the offender was drunk at the time of the offence mitigate the sentence on the grounds that the offence was uncharacteristic (“I have never seen him act like that – it must have been the booze”)? On this line of reasoning, intoxication sustains a more general claim that the offence was “out of character.” People who normally lead law-abiding lifestyles sometimes commit criminal acts under the disinhibiting effect of alcohol. But are they reasonably adjudged less blameworthy as a result? There is a strong counterargument in cases in which the offender has a history of heavy drinking: he or she may be seen as being more culpable for failing to exercise some restraint regarding a known problem. Might intoxication actually aggravate the sentence – as in the case of an offender who drinks heavily knowing that this often results in criminal assaults in pubs? As with a number of other factors then, intoxication may aggravate or mitigate, depending upon the particular circumstances of the offender. Intuition, in short, is often a poor guide to principled sentencing.
Despite the importance of sentencing factors, as Ashworth notes, the concepts of aggravation and mitigation have attracted little close examination or theoretical discussion (2010, see also Walker 1999; Roberts 2011b). Categorical breakdowns of sentencing factors exist but surely more than this is needed. More recently, Jacobson and Hough propose a categorical framework for factors relating to personal mitigation (Jacobson and Hough 2007a; Roberts and Hough 2011). They propose classifying factors into categories relating to the crime, the offender’s response to the offence and prosecution, and the offender’s past (including previous convictions) and future.
Classifying factors is one way of bringing some order to the vast array of factors potentially relevant to the determination of sentence. As will be seen, there is considerable variation across the common law world with respect to the degree and nature of guidance regarding sentencing factors.
Sources Of Guidance: Legislature And Appellate Courts
The Legislature: Statutory Sentencing Factors Legislatures affect sentencing factors through codification. Almost all common law jurisdictions have placed certain mitigating and aggravating factors on a statutory footing – albeit with some exceptions: in Tasmania, for example, the sentencing legislation does not identify any factors. According to some statutes judges are directed to consider these statutory factors when determining the seriousness of the offence. For example, Sects. 2 and 3 of Chap. 29 of the Swedish Criminal Code 1988 specify factors that enhance or diminish the penal value of the crime. In addition, Sect. 5 of the chapter specifies eight additional mitigating circumstances that a court shall consider “to a reasonable extent.” These include factors such as whether the punishment would have a disproportionate effect on the offender due to advanced age or ill health. Finland adopts the same approach.
The number of codified factors is generally small: in Finland a sentencing statute specifies only five factors which should increase the severity of the punishment, while the Canadian Criminal Code specifies only a handful of aggravating factors and no mitigating factors. This reflects a trend found elsewhere, including England and Wales, to provide more guidance with respect to aggravation than mitigation. The explanation for this asymmetry is unclear; it may reflect a view that aggravating factors are relatively straightforward and consistent in application. This means that the legislature can specify a factor as being relevant, confident in the knowledge that this factor is easily and consistently applied by courts. For example, if one agrees that hate motivation is an aggravator, it surely operates across all offences and offenders. There may be less consensus about the relevance and weight of different mitigators, in which case it is hard to be more prescriptive.
In England and Wales, only a few sentencing factors have been placed on a statutory footing. The Criminal Justice Act 2003 provides no indication regarding the relative weight of these factors, their potential to affect the decision of whether a term of custody is imposed, or whether they are more important than other sentencing factors emerging from the case law. The statute thus provides only limited guidance to sentencers regarding the sources of aggravation and mitigation. This reflects the existence of the sentencing guidelines issued by the Sentencing Council and which are designed to supplement and interpret the statutory framework. Other jurisdictions provide more comprehensive lists of statutory factors. Thus, the Crimes (Sentencing Procedure) Act 1999 in New South Wales identifies 21 aggravating and 16 mitigating factors. Section 9 of the Sentencing Act 2002 in New Zealand notes ten aggravating, seven mitigating, and one statutorily excluded sentencing factor (see Young and King 2011).
Guidance From The Appeal Courts
Until the advent of sentencing councils and commissions to disseminate guidelines, the appellate courts have been the traditional source of guidance at sentencing. An evaluation of the adequacy of appellate guidance regarding mitigating and aggravating circumstances is beyond the scope of this research paper. However, numerous academic commentators and commissions have identified the limitations on appellate guidance in general and the area of mitigation and aggravation in particular. Most sentence appeals address a specific point of law or provide a test for whether the sentence imposed was manifestly unfit. Guideline judgments in which the court sets out the mitigating and aggravating factors relevant to the offence are rare.
Sentencing Guidelines And Mitigating/ Aggravating Factors
Under most American sentencing guideline schemes, the role of mitigating and aggravating factors is generally to justify the imposition of a sentence that is outside the range prescribed by the guidelines or to move the case from the normal range up to an aggravated or down to a mitigated range. In the landmark decision in United States vs. Booker, the US Supreme Court held that the federal sentencing guidelines are merely advisory rather than bindingly presumptive in nature. The mitigating circumstances therefore may be reasonably described as mitigating factors rather than “departures” in the stricter sense of the pre-Booker era (see also discussion in Berry 2011).
The Utah guidelines manual notes that “There are occasionally circumstances that compel deviation from the guidelines” (Utah Sentencing Commission 2007, p. 12). Directions are provided to courts with respect to the consideration of the sources of mitigation and aggravation. A non-exhaustive list of factors is provided, and courts are directed that in considering all aggravating and mitigating factors in a particular case, the number of each should not merely be added up or otherwise mechanically applied in the balancing process. Rather, the totality of the mitigating factors should be compared against the totality of the aggravating factors. The sentencing guidelines in North Carolina provide sentencers with three sentence ranges: presumptive, aggravated, and mitigated (see Lubitz 1996; North Carolina Sentencing and Policy Advisory Commission 2007).
England And Wales
Sentencing guidelines exist for most common offences and are issued by the Sentencing Council for England and Wales or its predecessor, the Sentencing Guidelines Council (see discussion in Ashworth 2010). Rather than forming part of a grid encompassing all offences, the English guidelines are offence specific. They provide sentence ranges for categories of seriousness – most offences are divided into three levels. Each definitive guideline also contains a list of relevant mitigating and aggravating factors of particular relevance to the specific offence which is the subject of the guideline. For example, for the crime of domestic burglary, committing the offence at night, when a child is present in the residence, and creating damage to property are all cited in the guideline as aggravating factors (Sentencing Council 2011). In addition, there is a guideline for the determination of offence seriousness which is applicable to all offences (Sentencing Guidelines Council 2004).
In its definitive guideline regarding the determination of offence seriousness, the Council provides two lists containing 31 aggravating factors that arise from a higher level of culpability or a greater degree of harm (or sometimes both conditions). These are described as being the most important aggravating circumstances with application across many offence categories. The lists are non-exhaustive and provide no hierarchy of importance. The lists include both statutory and non-statutory factors but make no commentary on the relative importance of the two. They are then followed by four factors that indicate when an offender’s culpability is unusually low or that the harm is less than usually serious. There is an imbalance in the lists therefore: 31 factors are identified that enhance sentence severity, while only four factors are noted which may reduce the level of culpability or harm (Sentencing Guidelines Council 2004).
Guilty Plea Discount
With respect to one important sentencing factor – a guilty plea – the Sentencing Guidelines Council (now the Sentencing Council) has provided clear and detailed advice. The Council’s definitive guideline makes it clear that the reduction for a guilty plea “derives from the need for the effective administration of justice and not as an aspect of mitigation” (Sentencing Guidelines Council 2007, p. 4). Nevertheless, in other jurisdictions a guilty plea is interpreted as a mitigating factor and so the issue is worth comment in the present context. The definitive English guideline published in July 2007 specifies the range of the reduction in sentence as well as the circumstances that justify different levels of reduction (Sentencing Guidelines 2007). This level of guidance reflects the importance of this factor in terms of sentencing and the administration of justice (see earlier discussion). With respect to other aggravating and mitigating factors, however, guidance is less comprehensive or precise. In all the guideline schemes, a number of elements are missing or require greater elucidation.
General Issues Arising From Mitigating And Aggravating Factors
Rationale For Mitigating Or Aggravating Sentence
It would be useful for a guidelines authority to articulate the rationale for considering specific mitigating and aggravating factors. This is not simply an academic exercise; awareness of the rationale for mitigation will focus sentencers’ attention on the question of relevance. The English Sentencing Guidelines Council’s Seriousness guideline provides only a limited rationale for the invocation of any specific factor. Sentencing factors are particularly relevant when they indicate a higher or lower level of culpability or harm. Some sentencing factors however are unrelated to these concepts and are applied because they are relevant to the statutory objectives of sentencing identified in s.142 of the Criminal Justice Act 2003. Sentencers should be encouraged to use this section to guide their application of the factors. When contemplating a potential mitigating or aggravating circumstance, it is important to consider whether it is relevant to one of the sentencing objectives or principles.
Some factors may be relevant independent of any link to the statutory objectives, but in general, the coherence of the sentencing process is impaired if many factors unrelated to the sentencing purposes are taken into account. A clear statement of the rationale for any specific factor would also help members of the community and crime victims to understand why the factor was taken into account at sentencing. A good example of an ambiguous or controversial factor is positive actions by the offender which speak to his or her good character but which are unrelated to the offence.
Perhaps the most important sentencing factor operates in mitigation and aggravation, potentially increasing the severity of sentence in some cases and reducing it in others. Generally speaking, the absence of any prior convictions is a powerful mitigating factor: the offender claims a “first offender” sentencing discount. The argument is advanced that the offence was out of character since he has never been convicted before. Moreover, first offenders receive a discount because the state recognizes human frailty – everyone can fall into crime at some point; this is known as the “lapse” theory (see von Hirsch 2010). First offenders are also less likely to re-offend (compared to repeat offenders), and so the absence of prior convictions justifies more lenient treatment under a rehabilitation or deterrent sentencing rationale.
On the other hand, as the offender re-offends, accumulating more convictions and becomes a repeat offender, sentences generally get harsher. The presence of prior convictions is in fact the most important aggravating factor under the US guideline schemes. Some US systems (including the federal guidelines) use a two-dimensional grid where one dimension or axis is crime seriousness, while the second is criminal history.
Several justifications exist for imposing harsher sentences on repeat offenders. First, they may be regarded as more blameworthy for having committed a crime after repeatedly being sentenced for other offences (Roberts 2008). Second, repeat offenders are in general more likely to re-offend and therefore should receive harsher sentences according to a deterrent or incapacitation perspective. It is important that guideline schemes articulate the justification for the use of prior convictions and also the weight that previous convictions should carry at sentencing. Otherwise, courts will apply their own criteria in considering this common factor. The US guidelines provide this direction, but no other jurisdictions have followed this example.
Worthy Conduct Unrelated To The Offence Of Conviction
A recurrent mitigating circumstance in many jurisdictions arises when prior to or after conviction the offender has performed some commendable action for the community. This is sometimes recognized in sentencing law. For example, s.6 of the Sentencing Act 1991 in the Australian state of Victoria states that “any significant contributions made to the community by the offender” is a relevant factor to be considered at sentencing. The classic case involves the offender who shows some act of exceptional bravery shortly before or after conviction. It is unclear why this kind of action should justify leniency, yet sentencers sometimes mitigate the sentence on this basis. Indeed, there is a strong intuitive appeal to a policy of mitigating sentences for offenders who have a history of very creditable social behavior.
Most jurisdictions permit courts to recognize a mitigating factor that is unrelated to the principal theoretical orientation of sentencing. The Wisconsin Sentencing Commission provides a list of “additional factors” that do not relate to the primary sentencing rationale. The list includes items as diverse as the contents of the victim impact statement and whether the offender suffered public humiliation or loss of employment as a result of having been convicted (Wisconsin Sentencing 2007, p. 8). However, these factors should not carry the same weight as more fundamental sentencing factors – those relating to crime seriousness or culpability. Guidance would be particularly useful with respect to the weight that should be attached to collateral consequences of the offence. Here, too, distinctions will need to be made between consequences that the offender should have foreseen – such as loss of driving privileges and subsequent employment for taxi drivers – and other, exceptional and unusual consequences such as the death of a relative or friend as a result of a fatal accident arising from a driving offence. It is surely more reasonable to consider the latter than the former as justifying a mitigated punishment.
Power Of Sentencing Factors To Influence Sentence
Guidance is seldom provided with respect to the power or influence of a specific sentencing factor. For example, how much should a sentence be reduced to reflect the fact that the offender is remorseful and has apologized to the victim? How much harsher should a sentence be because the offender spent some considerable time planning the crime? One explanation for this absence of guidance is that it is hard to specify in advance; the importance of premeditation or remorse will depend on the individual circumstances of the case appearing for sentencing. In some cases remorse may be much more important than others – and it is therefore impossible to specify this in advance. Legislatures for this reason leave courts free to make the decision as to how much weight should be ascribed to particular factors.
Some guidance may be useful regarding the relative weight to be assigned different aggravating and mitigating factors – they are clearly not all equally important. The circumstances identified by the English Council in its Seriousness guideline represent a wide range, some important, others less so. For example, by virtue of its statutory foundation and the number of cases to which it is relevant, the existence of previous related convictions should carry far more weight than factors such as “causing gratuitous damage to property over and above what is needed to carry out the offence.” Sentencers should be provided with some sense of the relative power of these factors to influence the quantum of punishment. This is not to say that precise weights should be assigned to factors, rather that if a factor is particularly important, sentencers should be aware of this fact – otherwise they are free to develop their own hierarchies of impact.
This level of guidance is provided in some guideline schemes. For example, in Sweden the existence of mitigating factors permits the court to impose a sentence below the statutory minimum sentence. Allowing a factor this much influence is controversial, but at least sentencers are given an indication of the extent to which a mitigating factor may reduce the custodial term. In a similar fashion the sentencing statute in the state of Alaska identifies two gradations of mitigation. If the presumptive term is 4 years or less, mitigating factors may reduce the sentence by up to this amount. If the presumptive term is longer than 4 years, mitigating factors may reduce the sentence by up to 50 %. Placing limits on the impact of sentencing factors provides sentencers with an idea of the extent to which these factors can affect the sentence. Moreover, it would surely be useful to indicate to courts whether sentencing factors taken together, or on an individual basis, can make the difference between custody and a community sentence. Some guidance should be provided with regard to the factors which have the potential to move the offender above or below the custodial threshold.
Categorizing Sentencing Factors
The sentencing factors provided by statutes or guideline schemes include a mixture of different factors, some relating to the offender, some to the offence. A more coherent approach would involve providing categories of factors. This approach has been recommended in a report by the Australian Law Reform Commission (ALRC 2006). The ALRC proposed grouping sentencing factors into eight categories with the intention of setting them out “in a logical and clear manner, such as within groups that share a common theme” (p. 168). If sentencers worked through each category systematically, this might result in a more thorough and consistent review of the circumstances of each case.
Excluding Factors And Controversial Or Asymmetrical Factors
The English Sentencing Guidelines do not specify factors that should not be considered in mitigation or aggravation. It would be both unrealistic and undesirable to construct a sentencing guideline which would specify all potential mitigating and aggravating circumstances. However, greater consistency of application would be promoted by identifying problematic factors that should not mitigate or aggravate or by specifying the way that factors should be considered. Most sentencing guideline systems identify a number of factors that should be excluded from consideration. For example, the detailed series of proposals made by the Australian Law Reform Commission includes a number of grounds which should not aggravate sentence.
Similarly, many US guidelines identify specific grounds which should not be considered by a sentencing court. For example, in Minnesota, the guidelines exclude a number of factors including race. Establishing a list of proscribed as well as permitted factors also compels the guidelines authority to confront the underlying principles and consequences of different mitigating factors. Consider the offender’s employment status or employment history. This circumstance is often cited by sentencers as justifying the imposition of a mitigated sentence, in order to preserve the offender’s source of income or possibly to prevent the infliction of collateral harm upon his or her dependants. Research has repeatedly demonstrated that employment status is a significant predictor of whether a custodial sentence is imposed (e.g., Moxon 1988). However, the application of this factor obviously disadvantages unemployed defendants or offenders with poor employment histories. Visible or immigrant minority offenders may be particularly affected, which is why a number of commentators have advocated the prohibition of this factor and why some sentencing guidelines (such as those in Minnesota) explicitly exclude it.
Finally, sentencing guidelines around the world say little about “personal mitigation” – factors relating to the offender rather than the offence and which typically serve to mitigate punishment. In his sentencing text Thomas argued that allowance for mitigation should not be considered to be an entitlement of the offender (1979, see p. 174). Times may have changed since he expressed this opinion. Today, personal mitigation is generally accepted as a fundamental element of the sentencing process – as noted by Lovegrove (2010). A distinction has sometimes been made between personal mitigation and mitigating factors relating to offence seriousness – to which an offender is entitled. The distinction is spurious and invites disparity of application. If a particular factor reduces crime seriousness or the offender’s level of culpability – whether as a result of personal factors or not – the sentence should be mitigated accordingly.
The English Council’s Seriousness guideline notes only the statutory provision in the Criminal Justice Act 2003 which authorizes courts to take account of any matters that “in the opinion of the court, are relevant in mitigation of sentence” and then states that courts should “consider any offender mitigation. The issue of remorse should be taken into account at this point along with other mitigating features such as admissions to the police in interview” (Sentencing Guidelines Council 2004). The Magistrates’ Court Sentencing Guidelines simply direct magistrates to consider “offender mitigation” and offer three or four examples.
Personal mitigation surely requires more attention from scholars. Research conducted in 1980 found that personal mitigating factors appeared more than any other category in speeches for mitigation (Shapland 1981). More recent research with sentencers in England and Wales has demonstrated that personal mitigation still plays the largest part in tipping the balance away from the imposition of a term of custody (see Hough et al. 2003, at p. 37). The most recent English study found that in approximately one-third of the cases observed, judicial recognition of personal mitigation changed what would have been a custodial sentence to a community-based sanction (Jacobson and Hough 2007; Roberts and Hough 2011). This research study also revealed that many different personal mitigating factors were taken into account by sentencers and that while agreement was expressed with respect to some factors, participants disagreed on many others. As the authors note, the Council needs to provide better guidance in this area, beginning with the principles on which personal mitigation is based.
Role Of Public Opinion
Ideally, mitigating and aggravating factors should be recognized by the community as being relevant to sentencing. If courts take a factor into account deemed irrelevant by the community, confidence in sentencing will decline. There is a considerable literature on public attitudes to mitigating and aggravating factors. This research reveals that the public recognize a wide range of factors as being relevant to sentencing (e.g., Lovegrove 2010; Roberts and Hough 2011). In this sense they are like judges, who, as noted, take a wide range of factors into account at sentencing. On the other hand, there are some factors where the community and courts diverge. In practice, the absence of prior convictions is an important mitigating factor; first offenders usually receive a significantly reduced sentence compared to repeat offenders convicted of the same offence. The public, however, are less enthusiastic about offering this discount to first offenders, particularly for more serious crimes.
In order to promote a greater degree of “fit” between courts and communities regarding sentencing factors, guidelines authorities often undertake research into public attitudes to mitigation and aggravation, to see which factors attract greatest support (e.g., Roberts et al. 2008, 2009). The findings from this research then help guidelines authorities shape the mitigating and aggravating factors found in the guidelines (Roberts and Hough 2011). Of course there are limits to this kind of exercise; an offender should not receive a harsher or more lenient sentence just because his case contains a factor the public perceive to be relevant to sentencing; there must be some legal relevance to the factor.
The number of potentially relevant mitigating and aggravating factors is, as noted, huge. For this reason, it is important to establish which are relevant and to provide courts with some guidance regarding the application of sentencing factors. Over a generation ago, scholars called for more judicial guidance regarding the criteria for mitigation and aggravation. Thus, Ashworth lamented the absence of “any thorough consideration of the claims of the various personal factors” and argued that “this is a sphere in which discretion has led largely to anarchy” (1987, pp. 30–31). So long as it does not unduly impair a court’s ability to impose an appropriate disposition, any attempt to structure judicial discretion is welcome. Courts around the world would benefit from more detailed and structured guidance regarding the use of mitigating and aggravating factors at sentencing. The search for relevant sentencing factors should not involve a fishing expedition but rather an inquiry into principled adjustments to the sentence.
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