Chen v NSW Police Service

FEDERAL COURT OF AUSTRALIA

Chen v NSW Police Service [2003] FCA 589

COPYRIGHT – Appeal from criminal conviction for infringement of copyright on severity of sentence where good behaviour bond with terms as to monetary penalty imposed.

JIN HUA CHEN V NSW POLICE SERVICE
N 397 OF 2003

JACOBSON J
13 JUNE 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 397 of 2003

BETWEEN:	JIN HUA CHEN APPLICANT
AND:	NSW POLICE SERVICE RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	13 JUNE 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.There is to be no order as to costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 397 of 2003

BETWEEN:	JIN HUA CHEN APPLICANT
AND:	NSW POLICE SERVICE RESPONDENT

JUDGE:	JACOBSON J
DATE:	13 JUNE 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against the severity of a sentence given by a magistrate in the Local Court on a conviction for eight offences of copyright infringement under ss 132(1)(b) and 132(2A)(a) of the Copyright Act1968 (Cth) (“the Act”).

2. The appeal is brought under s 131B(2) of the Act. It is well established that the Court’s jurisdiction under this section includes appeals in criminal proceedings; see Lai Ha v McCusker [2000] FCA 1173 at [6] – [8].

3. The applicant pleaded guilty before the magistrate to the eight offences.  She was placed on a good behaviour bond for five years.  Under the terms of the bond she was ordered to pay a pecuniary penalty of $1000 in respect of each of the eight offences, that is, a total of $8,000. 

4. The magistrate ordered that the penalty was to be paid by monthly instalments of $100.  Thus, the amount of the penalty will be payable over a period of slightly under seven years. 

5. The magistrate also ordered delivery up under s 133 of the Act of two computers owned by the applicant and which were found to contain infringing films.

6. The penalty which was imposed was well below the maximum. Section 132(6AB) of the Act provided that a person contravening s 132(1) or s 132(2A) 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 five years. Each penalty unit was an amount of $110 and, accordingly, the maximum fine for each offence was $60,500; see Crimes Act 1914 (Cth), s 4AA(1).

7. The facts of the matter were set out in a facts sheet which was tendered before the magistrate. 

8. The facts sheet reveals that for a number of months prior to April 2002, investigators from the Australian Film and Visual Securities Office (“AFVSO”) had covertly purchased a number of DVDs from a stall conducted by the applicant at the Penrith markets.  The investigators examined the DVDs and found them to be in breach…