Le v The Queen [2007] FCA 1463
FEDERAL COURT OF
AUSTRALIA
EDMONDS
J
EDMONDS
J:
Introduction
1
This is an appeal against the
severity of sentences imposed upon the appellant for her conviction for six
offences under the Copyright Act 1968 (Cth) and for five offences under the Trade Marks Act 1995 (Cth).
Background
2
On 30 June 2006, the appellant
pleaded guilty at Liverpool Local Court to the following offences:
·
Five breaches of
copyright by possession of an article for sale/hire: s 132(2A)(a) Copyright Act.
·
One of possessing a
device for infringing copyright on a work: s 132(3) Copyright Act; and
·
Five of possessing
goods with falsely applied trade marks:
s 148(e) Trade Marks Act.
3
In relation to each of the 11
offences, the appellant was convicted and sentenced to 12 months’ imprisonment,
to be released after eight months on a recognizance
release order upon entering into a bond to be of good behaviour for three
years, with a self-surety of $1,000. The sentences were
imposed concurrently.
4
The appellant was remanded into custody following her conviction on 30
June 2006. On 5 July 2006 the appellant was granted
conditional bail after she lodged an appeal against the severity of her
sentence. The appellant has spent five days in custody referable to this
matter.
5
The
relevant offence and penalty provisions which are the subject of this appeal
are contained in ss 132(2A), 132(3), 132(6AA),
132(6A) of the Copyright Act as it stood at the relevant time; and ss 148(e) and 149 of the Trade Marks Act:
“(2A) A
person shall not, at a time when copyright subsists in a work, have in his or
her possession an article for the purpose of:
(a) selling,
letting for hire, or by way of trade, or with the intention of obtaining a
commercial advantage or profit, offering or exposing for sale or hire, the
article;
(b) distributing the article
for the purpose of trade, or with the intention of obtaining a commercial
advantage or profit, or for any other purpose to an extent that will affect
prejudicially the owner of the copyright in the work; or
(c) by
way of trade, or with the intention of obtaining a commercial advantage or
profit, exhibiting the article in public;
if the person knows, or
ought reasonably to know, the article to be an infringing copy of the work.”
“(3) A person shall not, at a time when
copyright subsists in a work, make or have in his or her possession a device
that the person knows, or ought reasonably to know, is to be used for making
infringing copies of the work.”
…
“(6AA) If:
(a) a
person contravenes subsection (1), (2) or (2A); and
(b) the article to which the
contravention relates is an infringing copy because it was made by converting a
work or other subject-matter from hardcopy or analog form into a digital or
other electronic machine-readable form;
the person is guilty of an
offence punishable on summary conviction by a fine of not more than 850 penalty
units and/or imprisonment for not more than 5 years.
…
(6A) A person who
contravenes subsection (3), (5), (5AA), (5A), (5B), (5C), (5D), (5DA) or (5DB)
is guilty of an offence punishable on summary conviction by a fine of not more
than 550 penalty units and/or imprisonment for not more than 5 years.
Note: A corporation may be fined
up to 5 times the amount of the maximum fine. See subsection 4B(3)
of the Crimes Act 1914.”
“A person is guilty of an offence if the person intentionally:
(a) sells
goods; or
(b) exposes
goods for sale; or
(c) has
goods in his or her possession for the purpose of trade or manufacture; or
(d) imports
goods into Australia for the purpose of trade or manufacture;
knowing that, or reckless of whether or not:
(e) a
falsified registered trade mark is applied to them or in relation to them; or
(f) a
registered trade mark has been unlawfully removed from them; or
(g) a
registered trade mark is falsely applied to them or in relation to them.”
“A person guilty of an offence under section 145, 146, 147 or 148 is
punishable on conviction by:
(a) a
fine not exceeding 500 penalty units; or
(b) imprisonment for a period not exceeding 2 years; or (c) by both a
fine and a term of imprisonment.
…”
MAXIMUM
PENALTIES
6
The
maximum penalties applicable for the aforementioned offences are as follows:
|
Offence |
Maximum penalty |
|
Breach
copyright by possession of
article for sale/hire:
s 132(2A)(a) Copyright Act |
On summary conviction: 5 years imprisonment and/or a fine of $93,500: section 132(6AA) Copyright Act. |
|
Possess device
for infringing
copyright on work: s
132(3) Copyright Act |
On summary conviction: 5 years imprisonment and/or a fine of $60,500: section 132(6A) Copyright Act. |
|
Possess goods
with falsely
applied trade marks: s
148(e) Trade Marks Act. |
On summary conviction: 12 months imprisonment and/or fine of $6,600: s 4J Crimes Act 1914 (Cth). |
JURISDICTION
OF THE COURT
7
This Court
is empowered to adjudicate appeals arising out of convictions for offences
prosecuted under the Copyright Act: s 131B.
8
Section
131B provides:
“(1) Subject to subsection (2), a
decision of a court of a State or Territory (however constituted) under this
Part is final and conclusive.
(2) An appeal lies from a
decision of a court of a State or Territory under this Part:
(a) to
the Federal Court of Australia; or
(b)
by special leave of the
High Court, to the High Court.”
9
This
Court’s appellate jurisdiction is governed by s 24 of the Federal Court of Australia Act 1976 (Cth) which relevantly provides:
“(1) Subject to this section and to any other
Act, whether passed before or after the commencement of this Act (including an
Act by virtue of which any judgments referred to in this section are made final
and conclusive or not subject to appeal), the Court has jurisdiction to hear
and determine:
(a) appeals from
judgments of the Court constituted by a single Judge;
(b) appeals from
judgments of the Supreme Court of a Territory (other than the Australian
Capital Territory or the Northern Territory); and
(c) in such cases as are provided by any other
Act, appeals from judgments of a court (other than a Full Court of the Supreme
Court) of a State, the Australian Capital Territory or the Northern Territory,
exercising federal jurisdiction …”
10
Section 25 of the Federal Court
of Australia Act relevantly provides:
“(1) …
(5) Subject to any other Act, the jurisdiction
of the Court in an appeal from a judgment of a Court of summary jurisdiction
may be exercised by one Judge or by a Full Court.”
11
This Court’s
jurisdiction in relation to appeals in trade marks
prosecutions from “prescribed courts” is contained in ss
191, 195 and 190 of the Trade Marks Act:
“(1) The Federal Court has
jurisdiction with respect to matters arising under this Act.
(2) The jurisdiction of the
Federal Court to hear and determine appeals against decisions, directions or
orders of the Registrar is exclusive of the jurisdiction of any other court
except the jurisdiction of the High Court under section 75 of the Constitution.
(3) A prosecution for an
offence against this Act may not be started in the Federal Court.”
“(1) An appeal lies to
the Federal Court against a judgment or order of:
(a) another
prescribed court exercising jurisdiction under this Act; or
(b) any
other court in an action under Part 12.
…”
“Each of the
following courts is a prescribed court for the purposes of this Act:
(a) the Federal
Court;
(b) the Supreme
Court of a State;
(c)
the Supreme
Court of the Australian Capital Territory;
(d)
the Supreme
Court of the Northern Territory;
(e)
the Supreme Court of
Norfolk Island.”
12
As the Local Court of NSW is not a “prescribed court” for the purposes
of an appeal to this Court under s 195(l)(a) of the Trade Marks Act and the
present proceeding is not a civil action for a trade mark infringement under
Part 12 of that Act, the Federal
Court’s jurisdiction to adjudicate the Trade Marks Act appeals is reliant on the “associated” jurisdiction conferred upon
this Court pursuant to s 32 of the Federal Court of Australia Act.
13
The
associated jurisdiction arises in circumstances where this Court’s appellate
jurisdiction has already been invoked in the related Copyright Act appeal:
“(1) To the extent that the
Constitution permits, jurisdiction is conferred on the Court in respect of
matters not otherwise within its jurisdiction that are associated with matters
in which the jurisdiction of the Court is invoked.
(2) The jurisdiction
conferred by subsection (1) extends to jurisdiction to hear and determine an
appeal from a judgment of a court so far as it relates to a matter that is
associated with a matter in respect of which an appeal from that judgment, or
another judgment of that court, is brought.”
Appellant’s
Submissions
14
In her
written submissions, the appellant submitted that the Magistrate committed two
errors upon sentencing her:
(1) Failure to consider all possible alternatives to
full-time imprisonment: s 17A of the Crimes Act.
That section
provides:
“(1) A court shall not pass a sentence of
imprisonment on any person for a federal offence, or for an offence against the
law of an external Territory that is prescribed for the purposes of this
section, unless the court, after having considered all other available
sentences, is satisfied that no other sentence is appropriate in all the
circumstances of the case.
(2) Where a court passes a sentence of
imprisonment on a person for a federal offence, or for an offence against the
law of an external Territory that is prescribed for
the purposes of this section, the court:
(a) shall state
the reasons for its decision that no other sentence is appropriate; and
(b) shall cause
those reasons to be entered in the records of the court.
(3) The failure of a court to comply with the
provisions of this section does not invalidate any sentence.
(4) This section applies subject to any
contrary intention in the law creating the offence.”
(2)
Failure to apply
and properly record the utilitarian discount given for a plea of guilty: R v Thomson; R v Houlton (2000) 49 NSWLR
383.
15
It was submitted that these procedural errors are significant
and that their intrinsic part in the sentencing process has the result that the
discretion exercised by the sentencing court has miscarried, is unsound or
unreasonable in its exercise, and this is reflected in the severity of the
sentence actually handed down. The appellant asks that the sentence the subject
of appeal be set aside and that this Court substitute its own sentence in lieu:
Kovac v The Queen (1977) 15 ALR 637.
16
The
balance of the appellant’s submissions were directed to –
(1)
The
circumstances that do not justify full-time custody: three key matters that are
to be considered under s 16A of the Crimes Act:
(a)
the need to
ensure that the person is adequately punished for the offence;
(b)
the deterrent
effect that any sentence or order under consideration may have on the person;
(c)
the prospect of
rehabilitation of the person.
(2)
A just and
appropriate sentence to be substituted in lieu – such as community service, as
was recommended to Liverpool Local Court by the Probation and Parole Officer’s
Pre-Sentence Report of 22 June 2006.
17
Dealing with each of the matters in turn, the appellant submitted that
the time in full-time custody already spent (five days), together with a
community service order, lengthy if need be, would be adequate punishment, and
that any greater level of punishment meted by the Court would exceed that which
is just and appropriate with respect to the objective features of the offence
committed. In this regard, the appellant relies on sentencing statistics
published by the Judicial Commission of New South Wales in 2007 and annexed to
her written submissions which illustrate that over the period October 2002 to
September 2006 in the case of 90 offenders convicted of breaching s 132 of
the Copyright Act and in respect of 102 offenders convicted of breaching
s 148 of the Trade Marks Act, none were imprisoned. Any that were given a custodial sentence were immediately released
pursuant to s 20(1(b) of the Crimes Act. This, the appellant submits,
provides a measure for this Court to assess the objective criminality of the
offence and thus a guide as to what level of punishment is adequate.
18
The appellant submitted that the Court should consider the wide
publicity that has been given to the case and the manner in which the appellant
was identified – television footage of approximately four minutes duration
screened on the nightly news broadcast by a major television station in Sydney
on the evening of Friday, 7 July 2006 clearly identifying the appellant’s face
– as impacting on the sentencing factor of deterrence. Given the magnitude of the publicity and the
inevitable consequence that the appellant is now publicly known and identified
for this case, interactions of the appellant with her friends and the community
almost always now raise the subject of the offence and
her subsequent incarceration. With this unique factor in mind, the appellant
submitted that specific deterrence has to some extent been
achieved by the media publicity over the incident, as the appellant will
continually be reminded of the imprisonment that was given to her. The appellant further submitted that the weight that ought to be
attributed to the need for specific deterrence in light of her prior sentence
for a similar offence on 15 May 2002 (resulting in $1,520 in fines and a
recognizance to be on good behaviour for two years)
should be discounted because of the subsequent media publicity surrounding the
case, the manner in which it clearly identified the appellant and the ensuing
effect on the identity of the appellant and how she is now known amongst her
friends and the community. Finally, it was submitted that general
deterrence has also to some extent been achieved by the prominence of the media
publicity, and thus in the appellant’s submission should be factored into the
final sentence that this Court is being asked to substitute.
19
It was
submitted:
(1)
That the need to
rehabilitate the appellant for her inevitable participation in the community should be given greater prominence in
deciding upon the appropriate sentence. The appellant is a 53
year old unemployed pensioner mother of two children, aged 20 and 27
years of age. The youngest of these children, Angelo Polese,
was born in 1986, and since that time has had severe
autism. The appellant has thus been required to provide full-time care for her
severely disabled child with little assistance from other persons. She has done
this at home for 20 years, and this has required her to be ever
present at home with her disabled child, giving her full-time attention.
(2)
That the
appellant was required to be constantly at home is the root cause for the
psychological state which resulted in the offences for
which she is presently before this Court. Her instructions are that collecting
of videos began as a need to keep occupied when housebound caring for her
child, resulting in a library. Lending of her personal collection led to
copying for loan, and this behavior formed the basis of her social interaction
with the outside community, which would otherwise have been non-existent due to
her child’s needs.
(3)
At the beginning
of 2006, Angelo attacked the appellant and substantially injured her. He was subsequently placed in the care of the Department of
Ageing, Disability & Home Care, where he remains to this day. It is feared that he is unstable and may attack people in his
vicinity again, including his mother, and so he is to remain in the care of the
Department indefinitely.
(4)
Since the beginning
of 2006, the appellant has regained a liberty that she has not known for more
than 20 years. That she is no longer housebound means that the psychological state which resulted in the offences before the Court is
less likely to recur. She is now able to actively partake
in the community as “normal” people who are not housebound do. She thus now has
a support network that she did not have for some 20 years, including regular
church attendances with her daughter. She has also expressed a desire to work
part-time.
(5)
The appellant
has taken active steps to address the psychological trauma caused by the
full-time care she provided to her severely disabled child for 20 years and the
consequent psychological state attendant upon the commission of these offences,
by attending a clinical psychiatrist where she has commenced a course of
medication. There was annexed to the appellant’s
written submissions a letter from a Dr Thomas Luong
dated 8 February 2007 concerning the appellant’s depressive disorder, and the
treatment that she is receiving for it.
(6)
All of these
changes have only recently become possible and should give prominence to the
need to rehabilitate the appellant to be a positive participant in the
community. A full-time custodial sentence would be counter-productive to the
unique hardship endured by the appellant and the renewed opportunity that is
now present before the Court to redress the causes of the offences being
committed in the first place. A full-time custodial sentence would also
unjustly burden the community with its expense.
(7)
As prison is a
measure of last resort, full-time custody for the appellant, in the ultimate,
is unjust and inappropriate, given the unique changed circumstances before the
Court and the unique opportunity to rehabilitate the appellant: s 17A
Crimes Act.
The
Crown’s Submissions
20
In its
written submissions, the Crown submitted that:
(1)
In considering a severity appeal for Commonwealth offences, the court is
required to have regard to the matters set out in Part 1B of the Crimes Act,
and more specifically to the matters set out under s 16A, which provides a
list of non-exclusive factors that a court should take into account when
sentencing a federal offender: R v El Karhani (1990) 21 NSWLR 370.
(2)
The governing
principle under s 16A(1) is the imposition of a
sentence which is of a “severity appropriate in all the circumstances of the
offence”.
(3)
The Court must
consider the matters adverted to under s 16A(2), together with the
important consideration of general deterrence: R v El Karhani; R v Paull (1990) 20 NSWLR 427, per Hunt J.
(4)
The following
sentencing principles are directly applicable in the present case:
(5)
In R v El Karhani,
the NSW Court of Criminal Appeal reaffirmed the principle of general deterrence
when sentencing for Commonwealth offences and agreed with Hunt J R v Paull at 377F. The Court (Kirby P, Campbell & Newman JJ) at 377H
also cited Street CJ (writing for the Court) in Rushby [1977] 1 NSWLR 594 at 597 – 598.
(6)
General
deterrence is of particular importance in sentencing for Copyright Act and
Trade Marks Act offences.
(7)
In Hamm v Middleton (1999) 44 IPR 656, Von Doussa J sentenced the defendant to three offences under s
132(1)(b), 132(2A)(a) and 132(1)(d)(i) of the
Copyright Act and remarked (at [18]):
“However, there
is also the question of general deterrence. It is important in these types of
offences, which are not always easy to detect and that have the potential to
interfere with important rights in the community, that
the penalty fixed be sufficient to deter others that might be minded to engage
in similar conduct. That is a matter which I must take into account here.”
(8)
The legislature
has also reflected the seriousness with which it considers such offences by
prescribing custodial sentences as maximum penalties. In particular, the
Copyright Act offences stipulate a maximum penalty of five years imprisonment
on summary conviction: s 132(6AA) Copyright Act.
(9)
In the present case the appellant’s high level of criminality is reflected
in her role of infringing copyright and affixing false trade mark labels on a
large number of pirated video cassettes, before renting these
copyright-infringed items to the general public.
(10)
In addition to
the principle of general deterrence, s 16A(2) of the
Crimes Act provides a “check list” which the Court is to have regard to when
sentencing an offender for a Commonwealth offence.
(11)
The offences for
which the appellant pleaded guilty and was convicted are objectively serious,
as reflected by the maximum penalties – five years
imprisonment for the copyright offences and 12 months imprisonment for the trade mark offences: see [6] above.
(12)
The appellant
traded in the pirated videos by renting them to the public for monetary gain.
The presence of the television and extensive video equipment in her home and
the large quantity of copyright-infringed video cassettes (over 35,000)
demonstrates the high volume commercial extent of her criminality. The fact
that the appellant has previously been convicted of similar offences also
negates any suggestion that this was an isolated or “one-off’ offence.
(13)
The Court is
entitled to take into account the context and surrounding circumstances of the
crime. Although 11 representative charges were ultimately
prosecuted and the appellant pleaded guilty to these, this Court is not
limited to only considering the facts arising from just these charges. While this Court cannot rely on the surrounding circumstances to
aggravate penalty and increase the sentence, it is entitled to take these
factors into account in reaching the conclusion that this was not an isolated
incident so there is no warrant to extend leniency: see Holyoak (1995) 82 A Crim R 502 (at 509 – 511)
per Allen J (Handley JA and Hulme J agreeing).
(14)
Under s 16A(2)(c),
the Court is entitled to take into account the fact that the offence forms part
of a course of conduct consisting of a series of criminal acts of the same and
similar character: Hamm v Middleton at
[15].
(15)
Prior to the search
warrant being executed, undercover representatives of
the copyright holder rented copyright-infringed videos from the appellant on
three occasions.
(16)
This course of
conduct serves to further demonstrate that the purpose
of the appellant’s possession of the copy-infringed items was to achieve a
commercial gain for her own benefit.
(17)
The offences committed by the appellant were detected after the
execution of a search warrant on her home on 7 February 2006 by the NSW Police.
On 14 March 2006, the appellant was arrested and charged.
After two court dates (27 April 2006 and 8 June 2006), the appellant entered
pleas of guilty and was convicted and sentenced on 30 June 2006 at
Liverpool Local Court.
(18)
The Crown acknowledges
that the appellant’s pleas of guilty to the charges occurred at a relatively
early stage. By her plea, the appellant can be said to have “facilitated the
course of justice” (otherwise referred to as the utilitarian effect): R v Ellis (1986) 6 NSWLR 603 at 604; R v Winchester (1992) 58 A Crim R 345.
(19)
However, the
pleas of guilty entered by the appellant were made in circumstances where she
faced an overwhelming Crown case, namely:
·
Just prior to
the execution of the search warrant, the appellant had on three prior occasions
rented out pirate videos to undercover representatives of the copyright holder,
Status Investigations & Security Pty Ltd; and
·
Over 35,000
copyright-infringed videocassettes (the large majority bearing the “TVB” trade mark) and recording equipment (19 video recorders and
two television sets) were located in her home.
Accordingly, the
appellant’s pleas of guilty must be seen in the
context of an acknowledgement of the strength of the Crown case and a
recognition of the inevitable: R v
Winchester.
(20)
The appellant
has not cooperated in any way with the authorities in the investigation of the
offences.
(21)
The following
should be taken into account:
·
The strength of
the Crown case.
·
The objective
gravity of the offence.
·
The need for general
deterrence.
·
The need for a
strong subjective deterrence aspect.
(22)
On 15 May 2002,
the appellant was convicted on a number of Copyright
Act infringement offences at
Liverpool Local Court (see criminal history tendered on sentence). In relation
to these offences, the appellant was placed on a good behaviour bond for two years with a self-surety of $500 and
fined various amounts. Accordingly, the appellant cannot claim to be a
person of good character.
(23)
In any event, the Courts have repeatedly held that less weight is
accorded to good character for “white collar” or fraud-related crime where the
need for general deterrence is strong: R
v Thompson (1975) 11 SASR 217
(per Bray CJ at 222); R v El-Rashid (unreported, Court of Criminal Appeal,
NSW, 7 April 1995); R v Williams [2005] NSWSC 315; R v Ronen and Ors [2005] NSWSC 991; R v Cooper [2006] NSWSC 609.
(24)
The appellant’s
subjective features are identified in two pre-sentence
reports dated 22 June 2006 and 20 September 2006. She is a single mother
aged 53 with two children, one being an autistic son now aged 20 who is living
at a residential home and away from the appellant (see (26) – (27) below).
(25)
At the time of
the preparing of these reports the appellant was
unemployed and receiving social security benefits. She does not suffer from any
physical or mental health conditions. At the time of execution of the search
warrant, the appellant was living in her mortgaged home.
(26)
Section 16A(2)(p) of the Crimes Act requires the Court to consider
the probable effects of any sentence would have upon the offenders’ family or dependants. The applicable test is whether the family
members will suffer “exceptional hardship” as a result of any sentence imposed
when evaluated against the objective criminality of the offences: R v Maslen &
Shaw (1995) 79 A Crim R 199 at 209.
(27)
The appellant
has a son aged 20 years old who has been diagnosed as
having a “severe level of Intellectual Disability ... Autism Spectrum Disorder
and a Mood Disorder.” According to a report provided by the Department of
Ageing, Disability & Home Care dated 23 January 2006,
the appellant’s son had received treatment and accommodation from several
residential health care centres. As at June 2006, the
appellant reported in her pre-sentence report that “her son is currently
residing in hospital care due to associated problems with having autism.” (at page 1).
(28)
Considerable
caution should be exercised in relying on reports
containing hearsay material provided by an offender and such evidence should be
given limited weight.
(29)
The proper
approach to sentencing involves the weighing of all relevant factors in order to
reach a conclusion that a particular penalty is the one that should
be imposed. In doing so a court should avoid
taking a mathematical approach in which there are increments to or decrements
from a predetermined range of sentences. Such an approach departs from
principle because it does not take into account the fact that there are many
conflicting and contradictory elements which bear upon
sentencing an offender. It is also wrong because singling out
a circumstance and attributing to it a specific numerical or proportionate
value distorts the difficult balancing exercise which the sentencing judge must
perform: Markarian v The Queen (2005) 215 ALR 213 (per Gleeson CJ, Gummow,
Hayne and Callinan JJ at [37] – [39]); and Wong v The Queen (2001) 207 CLR 584 (at
[74] – [76]).
(30)
However, in a
simple case where the circumstances of the crime have to be weighed against one
or a small number of other important matters, some “indulgence” in an
arithmetical process (legislative requirements apart) may be permitted. But as
a general rule courts should no longer add or subtract item by item passages of
time in order to fix the time an offender must serve in prison: Markarian at
[39].
(31)
Pursuant to the Court’s consideration of relevant provisions under Part
1 B of the Crimes Act and the
principle of general deterrence, the objective seriousness of the offence, the
repeal of s 16G of the Crimes Act and the applicable maximum penalties, the
Magistrate at first instance was well within his discretion to impose
concurrent full-time custodial sentences in relation to the six Copyright Act offences and five Trade
Marks Act offences.
(32)
In imposing
these penalties, the Magistrate had proper regard for the following principles:
(a)
the need for
general deterrence;
(b)
the need for
specific deterrence, in circumstances where the appellant had previously been
convicted for similar offences under the Copyright Act;
(c)
the objective
seriousness and criminality of these offences and the legislative intent of
Parliament;
(d)
the reduction in sentence
for contrition (demonstrated by the early plea) is tempered by the strength of
the Crown case and a recognition of the inevitable.
(e)
the subjective features of
the appellant, including the medical condition of her son.
(33)
It is further submitted that the Magistrate’s sentence of 12
months imprisonment as a head sentence with an effective custodial sentence of
8 months was within the permissible range.
(34)
While the
penalties for the Copyright Act offences
may be at the higher end of the scale, the Crown submits that they are not
manifestly excessive, given that the allowable maximum penalty for offences
under ss 132(6AA) and (6A) of the Copyright Act is
five years imprisonment on summary conviction.
21
Counsel
for the Crown conceded what the appellant submitted by reference to the NSW
Judicial Commission statistics she relied on, that he had been unable to find
any custodial sentences, in the physical sense, for the offences for which the
appellant has pleaded guilty.
Analysis
and Conclusion
22
At the
time of sentencing the appellant, the transcript records the Magistrate as
having said:
“Ms Le you have pleaded guilty to the eleven charges that
are before the court. Basically all associated with
infringing copyright in one way or another, the possessing the devices for
infringing copyright, selling items etcetera.
You are a person
who has at this point a previous conviction for offences in the same area or
previous convictions. You were dealt with extremely leniently on that occasion
This is a large scale operation by you aimed at obviously making money for
yourself at the expense of persons who are entitled to receive money from these
goods.
There is little that can be said in your favour in terms of the
operation that you were involved in. It was obviously a large
scale commercial operation. The matters you rely upon in terms of
hardship were basically hardship for your son. Matters I have some doubts about in terms of just how truthfully
based they are and if they do have, I accept your son at nineteen is a person
who is, with his medical problem, his autistic problem, is a person who needs
permanent help and assistance but there is a system within our community that
adequately addresses that and I do not consider the hardship type issues you
have put to me here today are matters that I am going to place any great weight
on.
Taking into
account your previous matter and previous conviction in this area, the large scale operation involved that is reflected by these
charges, I consider that gaol is the only option. I
have considered all other appropriate penalties and I consider nothing other
than full time gaol is the appropriate penalty and I
note from the presentence report my options are fairly limited in relation to
the type of penalty anyway if it is going to be gaol
it cannot be periodic detention.”
23
In Kovac, a Full
Court of this Court said (at 642, 643):
“In Harris v R (1954) 90 CLR 652, the High
Court considered an appeal against sentence under s 64(1) of the Papua New
Guinea Act 1949 to hear and determine appeals from all judgments, decrees,
orders and sentences of the Supreme Court of the Territory. The court held that
it would not interfere with a sentence of imprisonment imposed unless it was
satisfied that the discretion exercised by the court imposing the sentence
miscarried or was unsound or unreasonable in its exercise. In a joint judgment,
Dixon CJ, Fullagar, Kitto
and Taylor JJ cited with approval a passage from the decision of the High Court
in Cranssen v R (1936) 55 CLR 509. In the latter
case, after pointing out that an appeal against sentence is an appeal from a
discretionary act of the court responsible for the sentence, Dixon, Evatt and McTiernan JJ (at 519) said: ‘The jurisdiction to
revise such a discretion must be exercised in accordance with recognized
principles. It is not enough that the members of the court would themselves
have imposed a less or different sentence, or that they think the sentence
over-severe. There must be some reason for regarding the discretion confided to
the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They
may include some considerations which ought not to
have affected the discretion, or may exclude others which ought to have done
so. The court may have mistaken or been misled as to the facts, or an error of
law may have been made. Effect may have been given to
views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error
should be assigned. The nature of the sentence itself when considered in
relation to the offence and the circumstances of the case, may be such as to
afford convincing evidence that in some way the exercise of the discretion has
been unsound. In short, the principles which guide courts of
appeal in dealing with matters resting in the discretion of the court of first
instance restrain the intervention of this court to cases where the sentence
appears unreasonable, or has not been fixed in the due and proper exercise of
the court’s authority;’ Following this citation their Honours
(at p 656) in Harris’ Case added: ‘It
is not enough in applying those principles that the judges of this court should
regard the sentence as greater than they themselves would have imposed’.”
24
These
principles were referred to again by another Full Court in R v Tait (1979) 24 ALR 473, following which the Court said (at
476):
“An appellate court
does not interfere with the sentence imposed merely because it is of the view
that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on
a wrong principle or in misunderstanding or in wrongly assessing some salient
feature of the evidence. The error may appear in what the
sentencing judge said in the proceedings, or the sentence itself may be so
excessive or inadequate as to manifest such error (see generally, Skinner v R (1913) 16 CLR 336 at 339-40;
R v Withers (1925) 25 SR (NSW) 382 at
394; Whittaker v R (1928) 41 CLR 230
at 249; Griffiths v R (1977) 15 ALR 1
at 15-17).”
25
As
indicated at [14] above, the appellant identified two errors in the sentencing
procedure in the present case. The first was said to
be a failure to consider all possible alternatives to full-time imprisonment,
contrary to the provisions of s 17A of the Crimes Act. The difficulty with
this alleged error is that, at the time of sentencing, his Honour
said:
“I have
considered all other appropriate penalties and I consider nothing other than
full-time gaol is the appropriate penalty …”
In my view, this
alleged error cannot be sustained.
26
The other
error in the sentencing procedure identified by the appellant is the alleged
failure of his Honour to apply and properly record
the utilitarian discount given for a plea of guilty. In prefacing the imposed
sentence, his Honour did refer to the appellant’s
guilty plea and was obviously mindful of it. It is just not possible to know to
what extent, if any, his Honour took
it into account in the exercise of his sentencing discretion.
27
I would
not be prepared to interfere with the sentence his Honour
imposed on the basis of this alleged error.
28
In my
view, the only real question raised by this appeal is whether the nature of the
sentence imposed, when considered in relation to the offences and the
circumstances of the case, is so excessive as to manifest “convincing evidence”
that in some way the exercise of the discretion has miscarried or is unsound.
As the authorities to which I have referred make clear, it is not enough that I
might regard the sentence as greater than what I would have imposed.
29
It appears
to be common ground between the appellant and the Crown that no person
convicted of the offences for which the appellant pleaded guilty and was convicted has been incarcerated in prison. Custodial sentences have been imposed but invariably have been
effectively suspended by orders made pursuant to s 20(1)(b) of the Crimes
Act directing the immediate release of the offender sentenced to imprisonment
upon giving security, by recognizance or otherwise, to the satisfaction of the
court, for compliance with the conditions referred to in para (a) of
s 20(1).
30
However,
those facts themselves do not lead to the conclusion that the sentence imposed
on the appellant was so excessive as to manifest
“convincing evidence” that the exercise of his Honour’s
discretion miscarried. Any such conclusion could only be
reached by weighing those comparative facts against the maximum penalties as a
measure of the seriousness with which the legislature views such offences –
five years imprisonment for the Copyright Act
offences – having regard to the principle of general deterrence, the need for
specific deterrence particularly in the face of conviction for a past similar
offence, rejecting as I do, the appellant’s submission for discounting this
factor for the media publicity this case received, and the scale of the illegal
commercial operation carried on by the appellant. So weighed
and measured, the sentence imposed by his Honour does
not, on its face, exhibit the character of being so excessive that the exercise
of the discretion is put in doubt.
31
I have come to the conclusion that I should not interfere with the
term of imprisonment of 12 months for each offence to be served concurrently,
however, I reduce the non-release period from eight months to three months on
the same recognizance.