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De Lorenzo v DPP (Cth)

De Lorenzo v DPP (Cth)

Case [2017] VSCA 270 25 September 2017

Appeal

Criminal Liability

Sentencing

Making unauthorised decoder available online

Unauthorised access to encoded broadcasts by way of trade

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0130

WILLIAM DE LORENZO	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Respondent

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JUDGES:	OSBORN and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2017
DATE OF JUDGMENT:	25 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 270
JUDGMENT APPEALED FROM:	DPP (Cth) v de Lorenzo (Unreported, County Court of Victoria, Judge Ryan, 12 April 2017)

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CRIMINAL LAW – Appeal – Sentence – Making unauthorised decoder available online – Causing unauthorised access to encoded broadcasts by way of trade – Applicant effectively ran Melbourne card-sharing Pay TV piracy network – Sentenced to 15 months’ imprisonment to be released on recognisance release order for 18 months after serving 10 months’ imprisonment – Whether manifestly excessive – Parity – Whether manifest lack of appropriate relativity with interstate co-offender sentenced to 18 months’ imprisonment wholly suspended, released on a recognisance to be of good behaviour for 18 months on condition of $1,000 surety – Applicant convicted of two continuing offences cf. interstate co-offender convicted of one offence on a single agreed date – Further offending of interstate co-offender taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth) – Appeal allowed – Sentence of imprisonment confirmed; order that applicant be released on a recognisance release order after 164 days being the total time served to date – Copyright Act 1968 (Cth) ss 135ASG, 135ASJ – Attorney-General’s Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1991 No. 1 of 2002 (2002) 56 NSLWR 146 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D F Dann QC	Melinda Walker Criminal Law Solicitor
For the Crown	Mr D Porceddu	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

OSBORN JA:
COGHLAN JA:

On 31 March 2017 the applicant (now aged 45), pleaded guilty to making an unauthorised decoder available online and causing unauthorised access to encoded broadcasts by way of trade in breach of the Copyright Act 1968 (Cth). Following a plea on 31 March 2017, the applicant was sentenced in the County Court of Victoria at Melbourne on 12 April 2017 as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Making an unauthorised decoder available online [Copyright Act 1968 (Cth) s 135ASG]	5 years’ imprisonment [Copyright Act 1968 (Cth) s 135ASG(2)]	12 months’ imprisonment	Base
2	Causing unauthorised access to encoded broadcasts by way of trade [Copyright Act 1968 (Cth) s 135ASJ]	5 years’ imprisonment [Copyright Act 1968 (Cth) s 135ASJ (4)]	12 months’ imprisonment	To commence 3 months after the commencement of the sentence imposed on Charge 1
Total Effective Sentence:		15 months’ imprisonment with the Applicant to be released on a Recognisance Release Order for 18 months after serving 10 months’ imprisonment.
Non-Parole Period:		N/A
Pre-sentence Detention Declared:		Nil
6AAA Statement:		30 months’ imprisonment with the Applicant to be released on a Recognisance Release Order after serving 20 months’ imprisonment.
16AC Crimes Act (Commonwealth Declaration)		24 months’ imprisonment with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading De Lorenzo v DPP (Cth)

Details

AGLC: William De Lorenzo v Director of Public Prosecutions (Cth) [2017] VSCA 270
Case: [2017] VSCA 270
Decision Date: 25 September 2017

CaseChat Overview and Summary

The appeal in De Lorenzo v DPP (Cth) concerns the sentencing of an applicant who was involved in operating a Melbourne card-sharing Pay TV piracy network. The applicant was sentenced to 15 months’ imprisonment, to be released on recognisance release order for 18 months after serving 10 months’ imprisonment. The applicant appealed the sentence on the basis that it was manifestly excessive and that it lacked appropriate relativity when compared to a co-offender who was sentenced to 18 months’ imprisonment wholly suspended, released on a recognisance to be of good behaviour for 18 months on condition of $1,000 surety.

The legal issues the court was required to decide included whether the sentence imposed on the applicant was manifestly excessive and whether there was a manifest lack of appropriate relativity with the sentence of the co-offender. The court needed to consider the relevant sentencing principles and factors, including the nature and circumstances of the offence, the culpability of the offender, and the need for deterrence and denunciation. The court also had to consider the principle of parity, which requires that similar offenders be treated similarly, and the principle of relativity, which requires that the sentence imposed on an offender be proportionate to the seriousness of the offence.

The court found that the sentence imposed on the applicant was manifestly excessive and that there was a manifest lack of appropriate relativity with the sentence of the co-offender. The court noted that the applicant had been convicted of two continuing offences, whereas the co-offender had been convicted of one offence on a single agreed date. The court also noted that the further offending of the co-offender had been taken into account pursuant to section 16BA of the Crimes Act 1914 (Cth). The court found that the applicant’s sentence was disproportionate to the seriousness of the offence and that it did not reflect the appropriate relativity with the sentence of the co-offender. The court allowed the appeal and ordered that the applicant be released on a recognisance release order after 164 days being the total time served to date. The sentence of imprisonment was confirmed.

The final orders of the court were that the applicant be released on a recognisance release order after 164 days being the total time served to date, and that the sentence of imprisonment be confirmed. The court did not alter the sentence of imprisonment but did order that the applicant be released on a recognisance release order after serving the required time. This decision highlights the importance of considering the relevant sentencing principles and factors, including the principles of parity and relativity, when imposing a sentence on an offender.

Orders