Huynh v Director of Public Prosecutions (Cth)
[2010] QDC 443
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- Huynh v Director of Public Prosecutions (Cth)[2010] QDC 443
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Huynh v Director of Public Prosecutions (Cth)[2010] QDC 443
Huynh v Director of Public Prosecutions (Cth)[2010] QDC 443
DISTRICT COURT OF QUEENSLAND
CITATION: | Huynh v Commonwealth DPP [2010] QDC 443 |
PARTIES: | NGA HUYNH V COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (respondent) |
FILE NO/S: | 714 of 2010 |
PROCEEDING: | Appeal against sentence |
ORIGINATING COURT: | Magistrates Court at Richlands |
DELIVERED ON: | 19 November 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 November 2010 |
JUDGE: | Rafter SC DCJ |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the appellant pleaded guilty in the Magistrates Court to 15 charges of offering an infringing copy for sale contrary to s 132AF(4) Copyright Act 1968 (Cth) – where 9,079 DVDs displayed on shelves along with catalogues and carry bags in the appellant’s residence – where the appellant fined $10,000, in default 3 months imprisonment and allowed 6 months to pay the fine – whether the sentence was manifestly excessive Crimes Act 1914 (Cth), s 16C Copyright Act 1968 (Cth), s 132AF |
COUNSEL: | R Gilbert, solicitor for the appellant LC McConnell for the respondent |
SOLICITORS: | Legal Aid Queensland for the appellant Commonwealth Director of Public Prosecutions for the respondent |
Introduction
- [1]On 15 February 2010 in the Magistrates Court at Richlands the appellant pleaded guilty to 15 charges of offering an infringing copy for sale contrary to s 132AF(4) Copyright Act 1968 (Cth).
- [2]The magistrate regarded the appellant’s activities as “a large scale enterprise” and fined her $10,000. The magistrate allowed the appellant six months to pay the fine and in default of payment ordered that she be imprisoned for three months.
The appellant’s antecedents
- [3]The appellant was 25 years of age at the time of the offences. She was 27 years old when sentenced. Her criminal history consisted only of an offence of possession of tainted property in respect of which she was dealt with in the Richlands Magistrates Court on 30 January 2008. A conviction was not recorded. She was fined $1,000, in default 20 days imprisonment and allowed six months to pay. This offence was connected to the contraventions of the Copyright Act 1968 (Cth). All offences were discovered during a search of the appellant’s home on 21 November 2007. The tainted property charge related to computer equipment and digital video disk (DVD) burning facilities.
Circumstances of the offences
- [4]Acting on information received from Verifact Risk and Investigations Pty Ltd, on 21 November 2007 officers from the Queensland Police Service executed a search warrant at the appellant’s residence. In the course of the search the police located 9,079 DVDs displayed on shelves along with catalogues and carry bags. A large number of blank discs and computer equipment with DVD burning facilities were also located and seized.
- [5]An examination of the DVDs revealed that they contained unauthorised recordings of original cinematic works. The appellant admitted to the police that she had purchased the DVDs in Melbourne and had been selling them from her house.
- [6]An examination of the 9,079 seized DVDs revealed that they were unauthorised copies of cinematic works in which copyright subsisted.
- [7]Each charge represented a separate cinematic work. Each charge was expressed in identical terms as follows:
“That on the 21st day of November 2007 at Inala in the State of Queensland (the defendant) by way of trade offered an article, namely a DVD Movie the said article being subject to copyright pursuant to the Copyright Act 1968 for sale such article being an infringing copy of a work and (the defendant) was negligent as to that fact and at the time of the offer copyright subsisted in the work and (the defendant) was negligent as to that fact.”
- [8]Each charge referred to a single DVD movie. It was not argued in the Magistrates Court or in this Court that in view of the formulation of the charges, the Court was restricted to considering a total of 15 movies rather than the entire 9,079 DVDs. Ms Gilbert accepted that the Court was entitled to have regard to all DVDs. I have therefore not considered the point.
Maximum penalty
- [9]The maximum penalty for offering an infringing copy for sale or hire contrary to s 132AF(4) Copyright Act 1968 (Cth) is 120 penalty units or imprisonment for 2 years or both. A penalty unit is $110.[1] Accordingly the maximum fine for each offence was $13,200.
- [10]Section 4K(4) Crimes Act 1914 enables one penalty to be imposed for multiple offences but the penalty cannot exceed the maximum penalty that could be imposed if a separate penalty was imposed in respect of each offence. Therefore the aggregate maximum fine available was $198,000.
Mitigating factors
- [11]The appellant pleaded guilty. She had no prior history apart from the tainted property offence which was connected to the present offences.
- [12]The appellant’s personal circumstances were that she was 27 years old when sentenced. She is a sole parent looking after two boys and she is in receipt of Centrelink benefits.
- [13]There was considerable delay in the appellant being charged with the offences. She was issued with a Notice to Appear on 6 October 2009. Her first appearance in the Richlands Magistrates Court was on 9 November 2009. At sentence the prosecutor attributed the delay to the necessity to count and classify the DVDs.
Procedural fairness
- [14]Ms Gilbert for the appellant argued that the magistrate erred in not allowing the parties to make submissions to the court as to the appropriate penalty. An examination of the transcript of proceedings shows that that is not so.
- [15]At the hearing in the Magistrates Court the prosecutor submitted that the appropriate penalty was a fine in the range of $2,000 to $2,500.[2] A little later the magistrate described that range as “out of the ballpark”.[3] Ms Gilbert accepted that in the context of the discussion the magistrate was clearly indicating that the range contended for by the prosecutor was too low.
- [16]The parties therefore did have the opportunity of addressing the appropriate level of penalty.
- [17]
- [18]There was no obligation on the sentencing magistrate to inform the parties of the exact penalty that he intended to impose. However s 16C(1) Crimes Act 1914 does require the court to take into account the financial circumstances of the person before imposing a fine for a Federal offence.
Is the penalty manifestly excessive?
- [19]At the hearing of the appeal both parties adopted different positions to those expressed in their written submissions. In her written submissions Ms Gilbert for the appellant submitted that the appropriate penalty was a fine in the range contended for by the prosecutor before the Magistrates Court, which was between $2,000 and $2,500. The written submissions for the respondent contended that there was no error in the approach taken by the magistrate and accordingly the penalty of $10,000 was not manifestly excessive and the appeal should be dismissed.
- [20]However at the hearing of the appeal Ms McConnell for the respondent submitted that cases to which she had had regard supported a fine in the region of $5,000. Ms Gilbert for the appellant agreed that those decisions supported a fine at that level. Ms McConnell did not place these decisions before this Court on the hearing of the appeal. In any event in the circumstances of this case I am prepared to act on the submissions of the parties and substitute a $5,000 fine for the $10,000 fine imposed by the magistrate.
- [21]However my decision to accept the submissions of the parties in this appeal is influenced by a number of factors peculiar to this case. Therefore the penalty should not be regarded as setting a benchmark for other cases.
- [22]The first factor is the stance taken by the prosecution at the sentence hearing before the Magistrates Court. As I have mentioned the prosecutor (not Ms McConnell) submitted that the appropriate range was a fine of $2,000 to $2,500. I agree with the magistrate that that range was inappropriately low. The magistrate described that range as “just out of the ballpark”. The prosecutor then apologised for not having any comparative sentences.[6] However shortly after that the prosecutor said that she had a “comparative sentence and summary report” which was not for the purpose of tendering but which showed that a fine under $10,000 was within range for similar offences. She then said that there was a recent case in 2009 where a $6,000 fine was imposed. The details of the case were not given to the magistrate. His Honour inquired as to the number of tapes in that matter and the prosecutor was unable to assist[7]. One reason why there were limited comparable sentences available is that the provision under which the appellant was charged was inserted into the Copyright Act 1968 by the Copyright Amendment Act 2006, Act No. 158 of 2006 and commenced operation on 1 July 2007. However an analogous provision to which reference could have been made was s 132(2A)(a) of the Copyright Act 1968 which related to an offence of possession of articles at a time when copyright subsisted for the purposes of selling those articles. Although that offence involved a higher maximum penalty of five years imprisonment, some reference to cases decided under that provision may have provided at least some guidance to the magistrate. The Commonwealth Director of Public Prosecutions’ internal sentencing database revealed that sentences imposed for that offence ranged from orders for discharge pursuant to s 19B Crimes Act 1914 to fines of between $1,000 and $15,000 and in some instances custodial sentences have been imposed. It is clear that the sentencing magistrate was not given the assistance to which his Honour was entitled. And in my view the position taken by the prosecution before the magistrate is a relevant consideration in determining this appeal.
- [23]The second consideration to which I have had regard is the considerable delay in the appellant being charged. This was said by the prosecutor before the Magistrates Court to have been due to the need to count and classify the DVDs.[8] While that may be so it is somewhat surprising that more detailed facts were not placed before the Magistrates Court. As I have mentioned each of the 15 charges was said to relate to a separate cinematic work. There was no material placed before the magistrate to show how many infringing copies were encompassed by each of the 15 charges. The magistrate endeavoured to assess the scale of the appellant’s operation. In doing so he observed to the prosecutor that there must have been about 600 copies of each cinematic work. The prosecutor simply responded “that’s my understanding your Honour”.[9] Moreover the magistrate was understandably interested in ascertaining the sale price for each of the copies. That information was not available.[10]
- [24]The third factor is that the totality principle of sentencing was applicable because the appellant had been fined $1,000 in respect of the tainted property charge on 30 January 2008.
- [25]Fourthly there was limited information about the appellant’s financial circumstances before the Magistrates Court. The court is required by s 16C(1) Crimes Act 1914 to take into account the offender’s financial circumstances.
- [26]The magistrate was correct to take a serious view of the offences. The appellant was clearly engaged in a commercial enterprise. The DVDs were located on display shelves with catalogues and bags. Offences of this nature can be difficult and costly to detect. Moreover the manufacture and sale of infringing copies that are subject to copyright undermines and threatens the legitimate commercial industry. Although general deterrence is not specifically listed in s 16A Crimes Act 1914 as one of the matters to be taken into account, it is nevertheless an important consideration with respect to offences of this type.
- [27]For the reasons I have given the $5,000 fine in this case should not be regarded as setting a benchmark. In addition to the factors I have mentioned there has been no analysis by me of any of the cases to which Ms McConnell and Ms Gilbert have had regard.
- [28]In view of the limited information in relation to the appellant’s financial circumstances I raised with Ms Gilbert whether perhaps a community service order might have been more appropriate. Ms Gilbert foresaw difficulties for the appellant with respect to complying with such an order because she has now moved to Melbourne.
- [29]I also raised with the parties the magistrate’s order setting a default sentence of imprisonment in the event of non-payment of the fine. Ms McConnell candidly acknowledged that that is an unusual order with respect to Commonwealth offences. In the circumstances rather than fixing a default sentence of imprisonment the particulars of the fine should be provided to the State Penalties Enforcement Registry for registration.
Order for destruction
- [30]In the Magistrates Court the prosecutor sought an order pursuant to s 133(2) Copyright Act 1968 that the 9,079 infringing copy DVDs be destroyed. That order was not opposed by the solicitor for the appellant. However the magistrate overlooked making the order and neither party reminded his Honour to do so.
- [31]Ms Gilbert did not oppose the order being made now. I will therefore make an order for destruction of the 9,079 infringing copy DVDs in accordance with the draft order that was provided by Ms McConnell.
Orders
- [32]I will therefore make the following orders:
- Appeal against sentence allowed.
- Set aside the $10,000 fine and default sentence of imprisonment imposed in the Magistrates Court at Richlands on 15 February 2010.
- Instead order that the appellant be convicted and fined $5,000.
- Direct the Registrar to give particulars of the fine to the State Penalties Enforcement Registry for registration.
- Order for destruction of the 9,079 infringing copy DVDs pursuant to s 133(2) Copyright Act 1968 in accordance with the draft order.