Director of Public Prosecutions v Murphy

[2015] VCC 1500

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01682

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

JESSICA-LEE MURPHY

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2015
DATE OF SENTENCE:	14 October 2015
CASE MAY BE CITED AS:	DPP v Murphy
MEDIUM NEUTRAL CITATION:	[2015] VCC 1500

REASONS FOR SENTENCE
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Subject:  Sentencing; plea of guilty

Catchwords:             Selling and possession of DVDs and Blu-ray discs infringing copyright over an 18 month period; selling DVDs at market shall with former partner; lesser involvement than co-offender; mother of infant

Legislation Cited:      Copyright Act 1986 (Cth) ss 132AE(1), 132AJ(1); Crimes Act 1914 (Cth) ss 16A(1), 16A(2)

Sentence:Charge 1: Fine of $3500 with conviction; Charge 2: Fine of $1500 with conviction.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Camilleri	Office of Commonwealth Department of Public Prosecutions
For the Offender	Ms S. Kermath

HER HONOUR:

1Ms Murphy, I have a lot to explain about the reasons for my sentence that I have decided on for you.  You can remain seated until I tell you I require you to stand.

2Jessica-Lee Murphy, you have pleaded guilty to two charges under the Copyright Act 1968 of the Commonwealth. Charge 1 is that between 6 March 2013 and 11 September 2014, you sold infringing copies of subject matters in which copyright subsisted at the time, specifically DVDs and Blu-ray disks. Charge 2 is that on 11 September 2014, you were in possession of DVDs and disks that were infringing copies and with the intention of selling those articles.

3The maximum penalty for each of these charges is five years' imprisonment or a fine of 550 penalty units which currently equates to $93,500, or both. 

4The circumstances giving rise to these charges are outlined in a prosecution opening which was tendered, the details of which I shall not repeat in full, but some are necessary to explain the seriousness and extent of the offending. 

5

You committed these offences with a co-offender, Mr Timothy Sezdirmezoglu, with whom you were in a relationship at the time.  I have already sentenced

Mr Sezdirmezoglu, and will make references to his involvement and the similarities and differences between your respective circumstances and roles.

6In April 2012, Mr Sezdirmezoglu had set up a business of selling copies of DVDs and Blu-ray disks which were counterfeits and infringed copyright.  When I say he set up a business, it was not formalised but became his and ultimately your sole source of income.  He had arranged for the hire of a regular market stall on three days a week, at the Caribbean Gardens Market, and started selling disks there, apparently with the help of his former partner and his mother and sister before your relationship with him started.

7Your relationship with him began in May 2012.  In November 2012 you commenced living with him, and gave up your previous employment as a real estate agent's representative in order to assist him in his business of selling these disks. The counterfeit DVDs and Blu-ray disks were imported from China and, at least from December 2012, they were imported in your name or a derivative of your name, for example “Jessica Murphy Co Pty”.

8Although it appears that you had some involvement from about November 2012, Charge 1 covers a period commencing 6 March 2013.  That is because it was on that date that you were first observed by an investigator selling DVDs at the Caribbean Market stall.  A second such observation of your involvement was made that month. 

9On 5 June 2015, lawyers acting for the Australian Screen Association (“ASA”), which is a trade association of movie house producers and distributors, sent a letter addressed to both you and Mr Sezdirmezoglu at the East Brighton address where you both were living at that stage. The letter stated that you had been detected selling copyright-infringing DVDs, at well below legitimate price, and warning that your conduct may constitute a criminal offence under the provisions of the Copyright Act.  The letter required you to cease selling unauthorised copied DVDs, and to pay damages for breach of copyright. I am told by your lawyer that you say that you did not receive or know of that letter.  Although it is a fact set out in the prosecution opening, I am not able to make a finding as to whether or not you were aware of that letter at or about the time that I accept it was sent.

10In November 2013, and again on 4 December 2013, you were observed by an investigator selling DVDs at the market stall.  A DVD was purchased from you which, on examination, was found to be a counterfeit copy of a film not yet released on DVD in Australia.  Further, it had the wrong classification on it. The ASA reported the situation to Australian Federal Police. On 14 March 2014 federal agents attended the Caribbean Gardens Market and observed both you and Mr Sezdirmezoglu standing behind a trestle table on which were numerous DVDs offered for sale.  Similar was observed on two dates in May 2014.

11In late 2013, you and Mr Sezdirmezoglu had moved to live in a two-storey house in Huntingfield Court, Carnegie.  You gave birth to a daughter in July 2014, and I accept that you were likely to be taking less active part in the DVD business, at least in the sales at the market stalls, in the period leading up to and following her birth.

12On Thursday 11 September 2014, Federal Police executed a search warrant at your residence.  In a number of rooms of that house, including the kitchen, living area, upstairs bedroom, lounge, storage area and garage, police found large quantities of DVDs, some in boxes, some on spindles, some loose.  They also found large quantities of DVD covers or “slicks”, 11 inkjet printers and ink cartridges and sheets of unattached classification stickers.  The classification stickers were found on a lounge suite. There were two guillotines located next to DVD sleeves on the top of the fridge, and it was concluded that they were used to cut the copied film slicks. There were advertising signs and pricing classification found in the garage and in a vehicle searched. There were three vehicles searched, including a Mercedes van which was used to transport the counterfeit DVDs to the market.  There was $7,184.95 found in the kitchen area which is alleged to be proceeds from the sale of unauthorised copied DVDs and Blu-ray disks.

13A quantity of documentation relating to the counterfeit DVD business was also found.  It included a commercial invoice from China dated 21 August 2014 addressed to a fictitious name for 20 pieces of “alloy phone cases”, that invoice being found in your handbag on the lounge suite in the living room. There were two handwritten notices in your handwriting marked, "Attention DHL" signed by you, requesting that certain parcels with DHL consignment numbers be left at the door.  Federal police also found DHL shipping documentation, completed international money transfers, some such documents in your name as the sender.  There was an invoice from a Chinese company addressed to Dimitry Murphy, and a pro forma invoice dated 22 December 2012 from a Hong Kong company addressed to you at the address where you had been living with Mr Sezdirmezoglu at that stage in East Brighton.

14Enquiries with Australian Customs and Border Protection Service indicated that 30 shipments from Hong Kong to you or a derivative of your name were intercepted between 21 December 2012 and 8 August 2014.  All of those shipments were typically described on the shipping documents as, "plastic casing" or "plastic plates" but Customs inspection had found that the shipments contained DVDs of varying quantities.  Those were stopped by Customs as suspect counterfeit DVDs and covers.  Notices of those seizures were issued to you as the importer.

15Further, between 23 February and 21 June 2014, that is just under a four month period, 90 shipments were landed in Australia in your name or the name Jessica Murphy Co Pty.  None of those 90 shipments was intercepted or inspected, and I infer that they each contained imported counterfeit DVDs or Blu-ray disks delivered to you for the business you were running with Mr Sezdirmezoglu.

16The DVDs seized from your house on 11 September 2014 were counted by a method of sampling and extrapolating from the count.  On that basis, an estimate was reached that just under 52,000 discs were seized.  A sample of 782 was analysed, all of which were found to be counterfeits, there being 17 infringed movie titles amongst them.  Some were found to be of extremely poor quality and appear to have been recorded in the cinema, and some stopped short before final credits. Others purported to be “Region 1” DVDs, but when examined, they were “All Region” or “Region Free”.  Many did not contain any copyright warnings on the DVDs themselves.  It was estimated that there were approximately 48,000 infringing DVDs and 3000 infringing Blu-ray disks.  On the basis of an industry average price of legitimate disks of each type from 2013, it was estimated that a potential loss to the copyright claimants or distributors was in excess of $683,000.

17After the search on 11 September 2014, both you and Mr Sezdirmezoglu were arrested and taken to AFP headquarters in Melbourne.  However, as you were judged by police to be unwell, you were released without being required to give an interview, and apparently there was no subsequent request for an interview.

18Mr Sezdirmezoglu was charged soon afterwards, however you were not charged until a summons was issued on 24 March 2015 in relation to possession of the DVDs, that now being Charge 2 on the indictment. It was as late as 12 May 2015 that you were charged, on summons, with the offence of selling infringing copies, that being Charge 1 on the current indictment.

19

You had continued to live with Mr Sezdirmezoglu and your baby after the federal police action of 11 September.  On 21 December 2014, you and

Mr Sezdirmezoglu drove to Ballarat, and you were both observed at a Ballarat market again selling infringing DVDs at low prices at a market stall.  He ran away, leaving you at the stall.  You were both charged with offences under the Copyright Act arising out of that day's activities.  Those charges have been dealt with at the Magistrates' Court in the meantime.  On 25 March of this year, you were found guilty and fined $600 without conviction.

20Further, it seems that on the date you had attended the Ballarat market, the relationship between you and Mr Sezdirmezoglu reached a breaking point.  You allege that he physically assaulted you on the journey back from Ballarat.  You separated over the next few days amidst acrimony and threats.  Assault charges against him are apparently due to be heard in the Magistrates' Court later this year.  Also, on 5 January of this year, you obtained an Intervention Order preventing him from having any contact with you or your child, and he has not been allowed contact since then.

21He reverted to drug - and particularly alcohol – abuse, and in January of this year committed other offences under the influence of alcohol. He served more than four months in prison until May.  He has lived with his mother since then, under strict conditions of a Community Corrections Order, and for much of that time bail.

22He pleaded guilty to these charges at an early stage.  You contested these charges until recently, and at a committal hearing on 24 September, two witnesses were required to attend for cross-examination by your counsel.  You were committed for trial, but by the following day indicated that you would plead guilty, and have done so when the indictment was filed before me.

23I turn now to your personal circumstances and history. 

24You are now aged 26.  You had just turned 23 when you started your relationship with Mr Sezdirmezoglu, and were 25 when this offending ceased. 

25You told a psychologist, Mr Harvey Abbott, who assessed you for your appearance earlier this year before the Magistrates' Court - that is for the subsequent offending - that you had a chaotic and abusive childhood that was often volatile and unstable, and that your parents separated when you were three years old. You told Mr Abbott that your mother, with whom you lived as a child, had become involved in an abusive relationship during which you, by the age of 8, were conscious of a role reversal in that you became your mother's confidante, often rescuing her or defending her when she was physically abused by her then partner.

26Your father gave evidence before me, but not as to this background.  You told the psychologist that you regarded him, your father, as caring, down to earth, and always having been there for you.  Apparently you recognised that you were lucky to have him in your life.  The evidence he gave before me is consistent with his having kept a caring and supportive eye on you for many years, and coming to your rescue when he perceived it necessary, even if you did not. Apparently your relationship with your mother improved after she ended her other relationship, and I was told that, although she lives in the country now, she is available to support you when she comes to Melbourne. 

27You described yourself to Mr Abbott as having difficulties during primary school because of the unstable family issues and that you became very rebellious in high school.  You described yourself as a teenager as often getting into trouble and that although your parents felt this was due to your having fallen into the wrong crowd, you know it was you who was a bad influence on others, and you were expelled from secondary college as you were believed to be a “pack leader”. However, when you turned 16, you apparently decided that you wanted to work in the real estate industry, and committed to your studies.  You describe yourself as being of above average intelligence and that you completed your VCE in 2007 with good academic results.

28After that you undertook the Agent's Representative Certificate at RMIT, and obtained employment in the real estate industry.  I have read a reference from Biggin & Scott in Aspendale, where you worked from December 2010, outlining your duties and confirming that you were well regarded, diligent and reliable.  You resigned from that work to assist Mr Sezdirmezoglu in his business of the DVDs, having moved in to live with him.

29

I am told that you fell intensely and passionately in love with Mr Sezdirmezoglu and could not for a long time perceive that he had become emotionally controlling and abusive of you.  I am aware that Mr Sezdirmezoglu had a long history of drug abuse and alcohol use, and long before your relationship with him, suffered from drug-induced psychosis.  Nevertheless, you were apparently deeply in love, and from the young rescuer of your mother from her abusive partner, and then the rebellious “pack leader” at high school, you claim to have been emotionally and verbally abused throughout your relationship with Mr Sezdirmezoglu, culminating in physical abuse on

21 December 2014.

30You claim to have found yourself under his emotional control in that he controlled the money.  Friends of yours who have written references, and apparently your version is the same, say that you left the relationship with nothing.  The latter may well be true in the sense of having no money at that stage, and indeed I am told that you are still paying off debt incurred for utilities when you lived together.  Nevertheless, for about a year before the police search in September 2014, you and Mr Sezdirmezoglu had lived in a residence which was rented for $990 per week, and with your background in real estate, I infer that you would have had choice in the selection of that residence and would well have known the high rent. Between you and Mr Sezdirmezoglu, there were three luxury vehicles used in the household, one being a Mercedes van used to convey the DVDs to and from markets. There was a black Mercedes tourer registered in your name, which had apparently by the date of the search been exchanged for a BMW Roadster, which you say became Mr Sezdirmezoglu's car, and you drove a BMW which was in fact registered in his mother's name.

31

I am told that on separating from him, you have resolved to have nothing further to do with him and his family and wish to create a new and independent life for yourself and your young daughter, who is now aged about

14 months.  You have been living with your uncle, and I have read his views of your history with Mr Sezdirmezoglu in a letter which he wrote for your Magistrates' Court appearance earlier this year. He says that you were naïve about the DVD sales.  However, he says you knew that some of the DVDs you sold were prohibited from being sold under the Copyright Act, but your partner used to tell you not to worry too much, as “everyone does it”, and it is no worse than taping a movie from TV.  He, that is your uncle, says that at the time of the offence (there referring to 21 December 2014) you went along at the request of your controlling partner, having had a big argument with him that morning about continuing to sell the movies, as he had already been spoken to by police and warned about selling them at markets.  Your uncle does not mention that you also were on notice and had been warned in the sense that you had been present at the time of the search and been arrested on 11 September 2014.

32It is apparent from each of the references I have read which were written for the Magistrates' Court hearing in March of this year - that is for the 21 December charges - and indeed is reflected in the psychologist's report written for that hearing, that there was no reference to your having been present when federal police searched your house and seized more than 50,000 counterfeit disks and arrested both you and Mr Sezdirmezoglu, only three months before the December offending.

33I am told that in February this year you obtained employment as an agent's representative, in pursuit of your wish to return to work in the real estate industry.  In July you left that employment, and in late July entered a contract of employment with Buxton (St Kilda) which you regard as being employment as an agent's representative, although the formal contract that was tendered describes you on the front as a “clerical employee” and on the back under your signature as holding the position of “reception”. A letter from a director of that employer says you started as a receptionist/advertising coordinator.  While confirming that you are highly regarded, very hard working and highly committed to your work and to bringing up your daughter, he says that he is aware of these charges, was surprised to hear of their nature, and that the company policies will not allow you to continue your employment with them if you “receive a criminal charge against you”.  Assuming that is a reference to a conviction rather than a charge, it does not seem to take into account that you have already had a finding of guilt against you on charges of similar nature but lesser degree, and that the provisions of the Estate Agents Act to which he referred would already apply.

34In written submissions from your counsel, it was submitted that if a conviction is recorded against you for these offences, then you will be unable to work in the real estate industry. Reference was made to s.16(1c) of the Estate Agents Act 1980, in which eligibility to be employed as an agent's representative includes that the person has not, within the last ten years, been convicted or had found proven against him or her any offence involving fraud, dishonesty, drug trafficking or violence which was punishable by imprisonment for three months or more. Further, although a person remains eligible to be employed as an agent's representative for 30 days after a person is convicted or has had found proven against him or her any such offence, it becomes an offence under s.16(5) for an estate agent to employ a person to act as agent's representative when that person has become ineligible to be so employed.

35Under s.31C of the Estate Agents Act, a person who has been convicted or had found proven against him or her any offence involving fraud, dishonesty, drug trafficking or violence which was punishable by three months' imprisonment or more, may apply to the Licensing Authority for permission to hold an estate agent's licence or to be employed as an agent's representative.  The application is to be in a particular form with what information the Authority requires.  The Authority may give its permission if it is satisfied that it is not contrary to the public interest for it to do so.  A person in respect of whom permission has been given is eligible to act as an agent's representative despite s.16(1)(c) of the Act.

36I am told that no application to the Authority has yet been made by you for permission to continue to act as an agent's representative.  Given the tone of your present employer's letter, it may be that that employer may not be prepared to support you in such an application, but no mention was made in the letter of that possibility.

37I cannot foretell or speculate about whether the Licensing Authority would permit you to work as an agent's representative in the employ of a licensed real estate agent.  You have made no attempt to obtain that permission so far.  I am not persuaded that it would be my imposition of a penalty with conviction which would make a substantial difference between your eligibility or otherwise to continue to work as you wish at present as an employed agent's representative.

38As for you eventually obtaining a full Estate Agent's Licence to enable you, as you apparently wish, to open your own real estate business, that is clearly more than two years down the track as you would need to complete the relevant course.  I was provided with documentation showing that you enrolled for that course last month.  I take into account that that was in the knowledge that you were facing these charges, and in the knowledge that you already had had a finding of guilt against you for similar although lesser charges.  It is apparently a matter you want to pursue, that is for qualification as an estate agent, and that is ultimately your decision. Eventually, it will be for the Licensing Authority to make a decision as to whether to permit you to be employed in or ultimately be fully licensed in the real estate industry.

39I turn now to apply the specific considerations which I must under s.16A of the Crimes Act (Cth) to the circumstances of this case. I shall not repeat all of the detail of the various circumstances and my findings on them which I have already outlined.

40Section 16A(1) requires me to impose a sentence that is of a severity appropriate to all of the circumstances of the offence. Section 16A(2) requires me to take into account a number of matters to the extent that they are relevant. I will turn only to those which do have relevance in your case, and I have grouped some of them together.

41I note that although general deterrence is not mentioned under s.16A(2), it is well established that general deterrence is an important feature of sentencing in Commonwealth offences and I regard it as of considerable importance in the present case. That means that there is importance in the sentence imposed sending the message to people who may be tempted to engage in this type of offending that to do so will attract serious punishment.

42Under s.16A(2)(a) I must take into account the nature and circumstances of the offence; and under (k) the need to ensure that you are adequately punished for the offence.

43Infringing copyright is a form of stealing from those entitled to the copyright in the works being sold.  They were entitled to payments, and you deprived them of those amounts by your offending. It also impacts on those obeying copyright laws by paying for legitimate authorised copies of the works, both those buying who pay more, and those selling as the viability of their businesses is undermined.  Further it can undermine the confidence of customers purchasing them, such as those who might have purchased the poor copies found amongst some of those at your house. Further, there is impact on public revenue.

44The second reading speech of Parliament when the amendments to these sections and the new maximum penalties were introduced, made clear that these are the types of considerations which prompted the imposition of those maximum penalties.  Those maximum penalties that I have indicated earlier, indicate that offences of this nature are far from insignificant, even if you and others may regard them as little more than taping a film from TV. It has been confirmed by various other courts that these are important considerations requiring the application of just and sufficient punishment, and general deterrence

45Under Charge 1, your offending was sustained over a period of at least 18 months.  I accept, and the prosecution concedes, that your offending was not as extensive as that of Mr Sezdirmezoglu in that he had already set up the market stall business before you joined it.  The charge against him related to a period commencing some 11 months before yours, and he also sold counterfeit DVDs through a website with which you are not alleged to have been involved. However, your motivation, together with his, was to make money for you both to enjoy some luxuries in your lifestyle, and you obviously benefited while the high cash flow lasted from these sales. 

46The extent of the business involved not only the selling, but also the arranging for importation of the product, and all of the importation documentation was in your name or derivatives of it.  You claim that that was because he told you that he had no identification, but that seems to me unlikely as he was driving different vehicles so presumably you thought he had a driver's licence.

47It is argued on your behalf that you did not know or realise the illegality of the selling of the DVDs, and have pleaded guilty to these charges only because you accept that you fall within the definition under the legislation of the fault element of being reckless as to various aspects, in that you did not query aspects of the business. To accept as a mitigating factor, that is as reducing the blameworthiness of your involvement, that you did not know that the disks were not legitimate, I would need to be satisfied of that as a fact on the balance of probabilities.  It may be that originally you were not aware that there was anything untoward, and relied on Mr Sezdirmezoglu telling you not to worry.  Indeed some of the references refer not only to you questioning the legitimacy and them questioning you about it, but that you had accepted Mr Sezdirmezoglu's reassurances about that. The low prices as a factor should have alerted you to there being something less than legitimate about these arrangements, but perhaps only at the reckless stage. 

48However, commencing December 2012, there were seizure notices from Australian Customs addressed to you, notifying that shipments of suspect counterfeit disks had been intercepted. Further, the description of what was found during the search of your residence on 11 September 2014, reflects that the activities of printing and cutting covers, assembling disks into plastic covers and applying copyright or classification stickers was being conducted openly and extensively in several rooms in your home.  The prosecutor describes your home as a “workshop” for this activity, and I agree.

49You have presented yourself as an intelligent young woman, and I have no reason to disbelieve that.  You were not suffering from any intellectual or mental health impediment, nor the effects of any substance abuse that might have made it more difficult for you to understand what was occurring.  I am not satisfied on the balance of probabilities that by the time of the period covered by Charge 1 you were not well aware that the disks that were being imported and sold by you and Mr Sezdirmezoglu were not legitimate and were counterfeit.

50It is argued that your culpability should be seen as lowered as a result of the effects on you of your relationship with Mr Sezdirmezoglu.  It is argued that you were so passionately in love with him that you at first accepted all he told you, and later he was so controlling of you emotionally that you did not dare question him and felt morally or emotionally obliged to support him in his business.  He is said to have become particularly possessive and jealous of you once you became pregnant.

51I have already sentenced Mr Sezdirmezoglu.  I am aware that he has a history of drug and alcohol abuse and drug induced psychosis.  I am also aware that his family seem to have defended and supported him in ways that reinforced his instabilities.  You apparently knew him from your school years and started a relationship with him before his previous partner had departed. Your father, in his evidence before me, made clear that he regarded Mr Sezdirmezoglu  as both unstable and manipulative from the start, although your friends' and your uncle’s references describe him as appearing caring and calm early in the relationship. 

52I accept and take into account that you were only just 23 years old when the relationship started, and may well have allowed romantic hopes to cloud your view of his shortcomings for longer than the clarity of hindsight might support. I also accept that you may have felt emotionally obliged to support his business venture.  These matters may explain your continued involvement in the offending over the extended period it lasted.  Nevertheless, however manipulative and emotionally demanding he may have become by the time of your pregnancy, I am not satisfied that you did not well know that what you were doing was wrong and in breach of copyright laws long before that, nor that the money it was providing for your and his lifestyle was not still of significant ongoing motivation.

53I do accept that the selling of the counterfeit DVDs was not your original idea, that Mr Sezdirmezoglu started it before you became involved with him and that you joined him to assist him.  Further it is not said that you were involved with the internet sales in which he was also engaged, and some of the large quantity of disks found at your home on 11 September last year would have been referable to that side of the business. All of these features indicate that your culpability - your blameworthiness - should be assessed as at a considerably lesser level than his on both charges.  

54There was no direct victim or any specific loss or damage to any person resulting from this offending in the material before me, but as I have already said, an estimate has been made of a very large amount of money to which copyright owners and distributors are estimated to have otherwise been entitled had those been legitimate copies that were being sold by you and Mr Sezdirmezoglu. There is also the indirect harm to authorised sellers and to customers and to public revenue.

55So far as remorse or contrition is concerned, these are matters I must consider under s.16A(2)(f). Several references on your behalf describe you as being very remorseful and ashamed. So does the report of Mr Abbott but that, like some of the references, is addressed only to your subsequent offending last December. I accept that you are now very sorry for the situation in which you find yourself, facing these charges and potential consequences for your employment or career. Some objective circumstances do not support that you recognised your wrongdoing or felt real remorse for it, or at least not for some time afterwards. Specifically, your further offending on 21 December 2014 does not reflect fulsome contrition. It is implicit in the fact that you had a stall full of DVDs on that day that they had been imported since the police seized all of your stock on 11 September, so the decision to participate in sales on that date is not a purely impulsive action on that day or responsive only to emotional pressure from Mr Sezdirmezoglu on that day. By that time, even though not yet charged with these offences, real remorse or contrition could be expected to have caused you to resist Mr Sezdirmezoglu's emotional pressure to continue to sell those disks. Further your failure to plead guilty until after being committed for trial, while that was your legal right, does not reflect immediate contrition.

56I do take into account your plea of guilty under sub-paragraph 16A(2)(g).  Although not at the earliest opportunity, and after requiring two witnesses to be cross-examined at the committal hearing, you have pleaded guilty promptly after that and avoided the need for any further preparation for a trial. You are entitled to some benefit for facilitating the course of justice in that way and for having now accepted at least some responsibility for your offending, although it is circumscribed with the excuses that I have described.  I have allowed some leniency for your plea of guilty and will explain at the end the extent of that leniency.

57There is no other specific cooperation with authorities in this case to take into account. 

58Under s.16A(2)(j) I have taken into account the deterrent effect that any sentence or order may have on you. I do not regard this as of high significance in your case, and I accept that the predicament in which you now find yourself is likely to have a salutary effect on you, and that together with your prior lack of criminal offending and your relatively young age still, I can be satisfied that there is not a significant risk of you re-offending. I say that even though you did re-offend little more than three months after police arrested you for these offences, but I accept that you were still living with Mr Sezdirmezoglu at that stage and that without his involvement on an ongoing basis from here on, you are unlikely to set about this type of offending again.

59For ss.16A(2)(m) and (n), I have already outlined your personal history. I take into account particularly that you were 23 years old when this offending commenced, and of course that commenced in company with your then partner who was already involved in the offending. I take into account that you are still of an age to be regarded as a youthful offender where your prospects of rehabilitation should be a prominent factor in your sentence, and that although you have a subsequent court appearance for similar offences, those arose out of the same relationship and overall background circumstances as those for which I sentence you. You are now the mother of a young child, and I accept that you have shown your resolve to care for her while also returning to full time work to build a future for yourself and her. I note you have been paying for childcare while you have returned to work full-time in the meantime.

60Notwithstanding the implication of the views of psychologist Mr Abbott, who assessed you for the hearing in the Magistrates' Court earlier this year, I do not regard any psychological condition which you may suffer as relevant to the offences for which I sentence you.  He was clearly told only of the 21 December offending, which he interpreted as impulsive conduct on your part for which he recommended some psychological treatment. Not only did you not attempt to follow up with any such treatment, it is clear from the offending for which I sentence you that there was nothing impulsive about it.  It is not suggested by your counsel that there is any aspect of your mental health or intellectual functioning which could be said to enliven the principles in Verdins' case in mitigation of your sentence.

61I take into account that you had no history of criminal offending before these events, and you are entitled to have that taken into account to your credit.  I also note that this is in contrast to Mr Sezdirmezoglu who did have several prior offences, although not copyright related.

62Under s.16A(2)(p), I must take into account the probable effect of any sentence on any of your family or dependents. During the hearing I pointed out to your counsel that for hardship to your child to be taken into account in mitigation, I would need to be satisfied that such hardship was exceptional under the principles in Markovic's case. However, as I have already mentioned, I have taken into account as relevant to your rehabilitation that you are the mother of an infant child who is in your sole care, even though there is support from your father and uncle and friends, and that as you are working full-time and apparently aiming to study for your real estate agent's qualification as well, you will have little enough time for your daughter, and that further infringement into that time is likely to impact heavily on her.

63As already explained, I regard the objective seriousness of your participation in this offence as lower than that of Mr Sezdirmezoglu, your co-offender on these charges, and there are further features of his circumstances, including his prior criminal record and his instability through drug and alcohol addiction causing mental health problems, making his prospects of rehabilitation much more guarded than yours.  Those factors also differentiate your circumstances from his.

64He was sentenced to a Community Corrections Order of two years' duration with quite onerous conditions for punishment as well as for therapeutic and rehabilitative purposes.  As I said on sentencing him, the reason I ultimately did not impose a term of imprisonment on him was that he had spent more than four months in prison earlier this year, albeit mainly for subsequent charges, which appeared to have had a very salutary effect upon him.  There had also been a few days beyond the serving of that different sentence which were attributable to these offences.

65As I said during your hearing last week, I am not going to impose a term of imprisonment on you.  I should only do so if satisfied that no less severe sentence could achieve all sentencing purposes.  However, as I also said in the hearing, I am satisfied that a good behaviour bond, as was urged by your counsel, falls well short of reflecting the seriousness of the offending, given its duration and motivation, in order to convey sufficiently general deterrence, denunciation and just punishment. I have decided to impose fines for both of these offences which necessarily will carry convictions under the Commonwealth sentencing provisions. 

66Stand up now, please Ms Murphy.

67Jessica-Lee Murphy, on Charge 1 of selling DVDs that infringed copyright between 6 March 2013 and 11 September 2014, you are convicted and fined $3,500.

68On Charge 2 of possessing infringing DVDs on 11 September 2014, you are convicted and fined $1,500.

69The total fine is therefore $5,000.  I state that had you not pleaded guilty but been found guilty on these charges on trial, but all other circumstances being the same including the call on your time beyond your work of your young child, I would have imposed a total effective sentence of 12 months' imprisonment and released you on recognisance to be of good behaviour for two years.  You can take a seat now. 

70There were no ancillary orders because I had already made them on Mr Sezdirmezoglu's matter, as I understand it.

71MR CAMILLERI:  That's correct.

72HER HONOUR:  Is there documentation for the fine or the - from the Commonwealth.  I think it has to be payable to the AFP, I think last time you sought instructions about that but my associate found out that the fine - the order says it is to be paid to the Australian Federal Police.  That's what normally happens with Commonwealth matters, that's what we have been told.  I think last time you thought it was going to be payable to the County Court ultimately after checking.

73MR CAMILLERI:  Yes, that's correct.

74HER HONOUR:  Yes, the money gets paid to the Court Registry.  There's no doubt about that but it then I think gets paid on to the AFP.

75MR CAMILLERI:  That may be some administration arrangement but ‑ ‑ ‑

76HER HONOUR:  I think as a Commonwealth matter that's where it ends up.

77MS KERMATH:  Your Honour, can we have some time to pay?

78HER HONOUR:  How long are you seeking?  You can approach your client to get some instructions.

79MS KERMATH:  Your Honour, if she could have six months to be able to pay it in full, Your Honour.  It would be better to pay it in full.

80HER HONOUR:  She could make instalment payments along the way, that would be better but ‑ ‑ ‑

81MS KERMATH:  Because if she pays in full, she just comes to court and pays the Registry unless there is BPAY, Your Honour.  I think there is BPAY.

82HER HONOUR:  I don't involve myself in the process of how the money - how fines physically get paid.

83MS KERMATH:  Well, in the Magistrates' Courts, Your Honour, there is BPAY but I don't know ‑ ‑ ‑

84HER HONOUR:  There may well be.  What I am prepared to do is give some reasonable time to pay but what I might do - I think six months without anything being paid doesn't send the message that this is real and immediate and has to be faced.  What I am prepared to do so not to make it too complicated is to allow three months for the payment of $2,500 and six months for the balance of the further $2,500 so that there is some - it is brought forward to a degree.

85MS KERMATH:  Yes, Your Honour, that sounds good (indistinct).

86HER HONOUR:  A stay of three months for the payment of the first $2,500 and six months for the balance of $2,500.  I am waiting for the order so I can sign off on it now and then there is a copy.  The computerised system will not accept as to what I want to convey here.  It may be that we will have to get the copy - it may have to be played with to see how the computer will accept it to convey what I want and forward it to the parties afterwards.  I think we will have to defer the actual working of the order and my signing off on it until we see what can be constructed in the system here.  It is not so usual for all the sentences here to be fines as opposed to potentially sometimes with other orders, at least not for an actual person.  However, I will have those orders once signed forwarded.

87So the net effect is a total of fine, it is $3,500 on the first charge, $1,500 on the second, a total fine - I want to make very clear that is - they are to be totalled, they are not concurrent, total fine of $5,000 with three months to pay the first $2,500 and six months the balance.

88MS KERMATH:  As Your Honour pleases.

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