Director of Public Prosecutions v Sezdirmezoglu

[2015] VCC 1286

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00314

THE QUEEN

v

TIMOTHY SEZDIRMEZOGLU

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2015; 31 August 2015; 4 September 2015
DATE OF SENTENCE:	11 September 2015
CASE MAY BE CITED AS:	DPP v SEZDIRMEZOGLU
MEDIUM NEUTRAL CITATION:	[2015] VCC 1286

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 2 ½ year period; selling DVDs at market stall with former partner and online; investigation by AFACT and warning given to offender prior to arrest; lack of connection between drug and alcohol abuse and offending

Legislation Cited:     Copyright Act 1986 (Cth) ss 132AE(1), 132AJ(1); Crimes Act 1914 (Cth) ss16A(1), s16A(2)

Cases Cited:R v Renzella [1999] VSCA 85; R v Verdins [2007] VSCA 102; DPP v Ly [2014] VCC 1514; Ly v The Queen [2014] FCAFC 175

Sentence:Charge 1: with conviction, CCO for two years with 350 hours unpaid community work with conditions of supervision, assessment/treatment for mental health issues and judicial monitoring; Charge 2:  Fine of $3000 with conviction.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr M. Camilleri	CDPP
For the Offender	Mr R Van De Wiel (at plea) Mr J. Valos (at sentence)	Valos Black and Associates

HER HONOUR:

1Timothy Sezdirmezoglu, you have pleaded guilty to one charge of selling infringing copies of subject matters in which copyright subsisted at the time of sale contrary to s.l32AE(1) of the Copyright Act 1968 (Cth). Also you have pleaded guilty to one charge of possessing infringing copies of subject matters in which copyright subsisted at the time of possession with the intention of selling the infringing copies contrary to s.132AJ(1) of the Copyright Act.

2The maximum penalty for Charge 1 is five years imprisonment or a fine of $60,500 or both.  The maximum penalty for Charge 2 is five years imprisonment or a fine of $93,500 or both.  These are an indication of the relative seriousness with which the Commonwealth Parliament regards these offences. 

3You have also admitted a prior criminal history to which I shall refer later. 

4The circumstances giving rise to these charges are outlined in detail in a prosecution opening, which I shall not repeat in full, but was tendered as an exhibit. I shall set out some of the details, to assess the seriousness and extent of the offending. 

5The first charge arises from your conduct over a period of almost two and a half years.  Between 13 April 2012 and 11 September 2014, you set up and conducted a business of selling copies of DVDs and Blu-ray discs which infringed copyright.  These were sold from a regular market stall and from an internet site, both of which were established by you. You are said to have engaged in this conduct together with Ms Jessica Murphy with whom you were in a relationship over some of that period.  She has also been charged with these or similar offences, but I am told that she denies the charges against her, so I make no finding as to her actual involvement.

6According to the chronology you have given to Mr Joblin, you had not formed the relationship with Ms Murphy as early as April 2012 when you set up the market stall, and soon afterwards the internet site.

7You initiated the setting up of a stall at the Caribbean Gardens Market in Scoresby from which to sell DVDs and Blu-ray discs.  On 13 April 2012 you entered into a stall hire agreement with the market operator giving your email address and mobile phone number.  A year later you signed a “Regular Stall Holder” Hire Agreement.  In that document you acknowledged that you had read and understood the terms and conditions of being a regular stallholder, which conditions included that the sale of counterfeit goods was a criminal offence and was prohibited.

8As at September 2014 you were renting up to six tables at that market.  You sold DVDs and other discs on all three market days, being Wednesdays, Fridays and Sundays.  The table hire fees were minimal. The market management has estimated that your stall would sell up to 500 DVDs a week, and your stall was said to attract many customers to the market.

9In addition to the market stall business, from about May 2012 you also operated an internet site for the sale of films on DVD.  The web site had a heading denoting that it was a "DVD importer direct to public. Certified Dealer".  It also notified potential customers that the business also operated at the Caribbean Gardens Market, and the days and the address of that market. The web site contained a list of more than 250 titles of cinematograph films, most of which are owned or exclusively licensed for sale, by Australian Screen Association, (“ASA”) member companies.  The web site gave various prices and offered free postage and handling for sales of three or more DVDs.  Your name and email address were the contact for placement of orders. 

10The Australian Federation Against Copyright Theft (“AFACT”), now called Australian Screen Association (“ASA”), has the role of investigation of unauthorised copying of films and television shows. 

11In May 2012 an investigator from AFACT attended the Caribbean Gardens Market at the stall operated by you.  A covert purchase was made of a well-known film on DVD and another on Blu-ray.  Each was found to be an infringing copy.

12Some days later, lawyers acting for AFACT wrote to you to advise that you had been detected offering for sale AFACT films without authority at the Caribbean Gardens Market and through the web site.  That letter advised you of the illegality of that conduct and required you to cease infringing copyright in AFACT films and television programs.  The letter also sought payment of damages for the infringements that were detected.

13That letter was hand delivered on 5 June 2012 to 1 Cedar Street, Mentone, being what had been your known address at the time, and it was received by a woman who stated that she was your mother. Three weeks later the solicitor who had sent the letter telephoned you on your mobile phone number and left a voice message.  Later that day you telephoned the solicitor.  In that conversation, she told you about the content of the letter which you claimed you had not received.  You said that on receipt of a copy of the letter, you would forward it to your barrister so that your barrister could discuss its contents with the lawyers acting for AFACT.  You also claimed that you had thrown out all copied Blu-ray discs, and your supplier was in the United Kingdom.  You also said that you expected to receive a fine.

14The lawyer re-sent the letter dated 31 May 2012 to you on 21 June 2012.  No further communication from you, or any lawyer acting on your behalf, was received, so follow-up legal correspondence from AFACT's solicitors was sent to you by post and email on four occasions between mid-July and mid November 2012.

15On 6 October 2013 the original investigator attended your stall at Caribbean Gardens Market and purchased three films from you - one on DVD, and two on Blu-ray.  This transaction was secretly filmed.  All three films were found to be infringing copies.  The same investigator attended your stall again about six weeks later and again observed you offering DVDs for sale.

16She attended again about three weeks later, and saw Jessica Murphy with you behind the stall.  She covertly purchased a film.  It was an infringing copy.  Also, examination found that the DVDs and Blu-ray discs purchased by the investigator had been duplicated on recordable discs, a form of film not distributed by any ASA or MPA members. 

17On 17 December 2013 the ASA reported you and Ms Murphy to the Australian Federal Police (‘AFP’).  On various occasions between March and September 2014, AFP agents made observations of you, you and Ms Murphy, and you and your mother at the market stall at Caribbean Market where DVDs were displayed for sale. 

18Your conduct in selling infringing discs of films over that whole period, both at the market stall, and online, is the basis of Charge 1. 

19On 11 September 2014 Federal Police executed search warrants at your residence and on three vehicles associated with you.  Inside the house were found large quantities of DVDs and Blu-ray discs found in various rooms of the house and the garage.  Many were stored in cardboard boxes, many in spindles of approximately 100 discs accompanied by approximately the same number of slips or DVD covers.  The discs and covers showed characteristics of being infringing copies mostly purporting to be Region 1, or Region All, and they lacked correct Australian classification and consumer advice.

20There were thousands of DVDs and Blu-ray discs containing cinematograph films or TV programs found in your house. Also found were various commercial invoices, receipts and a contract from Spot On Self Storage in your name.  Also found were printers, DHL documentation, money transfer documents, shipping documents, DVD covers and multiple advertising signs with pricing and classification.  Finally, $7,184.95 in Australian cash was found in the kitchen. 

21In the white Mercedes delivery van parked on the driveway of your residence, and registered to a company of which you were the sole director, there were found a large number of boxes containing thousands of clearly infringing DVDs, and signs advertising DVDs for sale at various prices. The prices for which you were selling these items were well below, not only recommended retail, but also wholesale, prices for legitimate DVDs of similar films.

22In another vehicle searched, registered in your mother's name, police found quantities of DVDs and also Australian Customs and Border Protection notices of seizure issued to Jessica Murphy and documents with waybill numbers. 

23In the third vehicle searched, also registered to the company of which you were sole director, there were found multiple discs and jacket covers in the boot, and a receipt and storage contract with Spot On Storage in East Bentleigh.  It was dated as recently as 1 September 2014.

24While the search warrant was being executed at your residence, a DHL delivery van came to the premises and the driver attempted to deliver a cardboard box.  It had a commercial invoice attached addressed to a different female name at your address.  It had English and Chinese lettering.  The invoice described the contents as 1,000 pieces of Alloy phone cases, but the contents were in fact 100 counterfeit DVD discs of a particular film.  Police took custody of the box.

25A warrant executed at the Spot On Storage facility, for which the contract had been found in your name, led to a pallet being found with a number of cardboard boxes wrapped in plastic.  These were found to contain a number of clear plastic DVD cases.

26The numbers of DVDs found were estimated using a method of grouping like type boxes together, counting the contents of a sample, and then extrapolating to the numbers of like boxes. This led to an estimate of 51,980 DVDs that were seized and alleged to be counterfeit.  From these 782 individual copy DVD films, including multiple copies of the same titles, were examined and all were found to be infringing copies.  A schedule sets out the findings.

27All discs found at your house and in the vehicles were determined to infringe copyright, and all had been imported into Australia without the authorisation or permission of the copyright claimants, their agents or the licensed Australian distributors.

28Charge 2 of possession of infringing copies of discs is based on the discs found and seized on 11 September 2014. 

29Other relevant aspects of the subsequent investigation were that, of the discs examined, one title was found to be of extremely poor quality and finished before the titles ended, and many others did not contain any copyright warnings. 

30An estimate based on an industry average price of legitimate DVDs and Blu-rays for 2013, was of a potential loss to the copyright claimants or distributors of some $683,000. 

31Your mobile phone was seized, and later examination found in its memory various digital images relating to the DVD business conducted by you and Ms Murphy.  These included photos of DVD film titles, of Jessica Murphy at the market stall, copy Australian Customs and Border Protection seizure notices addressed to Ms Murphy, lists of movie titles, DHL tracking records of consignments from Hong Kong, and other records of payments.

32You were arrested on 11 September 2014 and charged.  You elected to make “no comment” responses to police questioning.  That was your legal right but it shows no inclination towards co-operation by you.  You were bailed that day on these charges, but have spent some time in custody this year to which I shall refer later.

33You pleaded guilty to these charges at a relatively early stage, and before witnesses were required to give evidence at a committal hearing, and your plea saved the need for a trial in this case. I have given you considerable credit for facilitating the course of justice in this way, and your plea reflects that you have accepted responsibility for your offending conduct.  At this stage that is in contrast to the approach taken by Ms Murphy, but I make no findings in relation to her. 

34I turn now to your personal history and circumstances.  You are now aged 30.  I am told that you grew up in a household where you were exposed to your father's violence towards your mother, especially when affected by alcohol, with which he had a long-term problem.  I am told that he was aggressive and stern towards you and your brother.  Your brother gives a slightly different impression.  Your mother said that your father did not have a close relationship with his children. 

35On the other hand, Mr Joblin, who has assessed you three times commencing in 2011 for various court appearances, including this one, reported in July 2011, and has repeated in subsequent reports, that you described your father in very positive terms, and that his death in December 2010 had been an ongoing issue for you. 

36You started abusing drugs in your teens, and by age 18 or 19 were hospitalised after an amphetamine-induced psychotic episode.  You were apparently diagnosed with anxiety and depressive disorders.  I was told that there was also a diagnosis of a schizophrenic condition, although I do not have any psychiatric opinion confirming that.  I am told that you were prescribed medication - Lexapro for anxiety and depression, and Risperidone for mood instability.  I am told that both those medications have been prescribed at various times over the intervening years, and that they are your current medications. 

37I am told that in the three years following your first psychotic episode in your late teens, you had periods of psychiatric instability, including needing CAT team attention, attempting suicide, and also once trying to attack your brother.

38After your time in hospital, you seem to have left the family business in which you had started, being your father's painting business, and tried to set up various business interests of your own, including selling on the internet. 

39Your first court appearance was for theft in 2003, that being the same year as your psychotic episode, and further offending in 2004 followed for violence, which I was told occurred during a psychotic period. 

40I heard evidence from your mother that in an attempt to remove you from the associations with friends with whom you got into trouble, your family moved to Queensland in 2006.  She says that it worked well until you suffered a serious injury at work falling from a scaffold, in 2008. You suffered a head injury and also injured your hand which prevented you resuming work as a painter. Your mother says that you were diagnosed with post-traumatic stress disorder after that accident, consistent with what Mr Joblin reports he has read in the report, which I do not have, from a Dr Byth in Queensland.  Your counsel said there had been much effort made to obtain a copy of that report, but it had not become available. 

41I am told that after that fall and your injuries from it, you took to alcohol again, and your behaviour got you into further criminal trouble.  You had formed a relationship before the work accident, and although that continued when you returned to Victoria and under some difficulty, including a reconciliation when your partner was pregnant, the relationship ended badly in early 2011, and your partner returned to Queensland taking your young child with whom you no longer have contact. 

42The whole family returned to live in Victoria in, as best I can tell, about 2009. 

43Mr Ian Joblin, forensic psychologist, provided a report for you for a court appearance in 2011.  As I have said, he indicates he had read a report from Dr Byth who treated you in Queensland who had considered that your fall may have resulted in panic attacks and post-traumatic stress disorder (‘PTSD’) type symptoms.

44Mr Joblin, when he saw you in July 2011, also noticed you being described as mildly depressed and anxious by Dr Byth.  Mr Joblin considered that you presented reasonably well, did not appear psychotic and that alcohol had been a constant battle, on the information he had. He considered you were suffering from an adjustment disorder with anxiety and depression. He felt you needed professional attention due to your fragility in relation to alcohol.  He thought you should continue the counselling you were attending and needed some supervision.  He did not consider you were anti-social but simply had difficulty adjusting to stressors and answered those inappropriately with alcohol.  The stability, he thought could continue, clearly did not after the mother of your first child moved back to Queensland.  It is clear that even before then, you had also resorted to excessive alcohol.  That is reflected in documents from SEADS from which you sought counselling in 2011.

45Correspondence for the purposes of a court appearance in August 2011 indicates that you were attending counselling with SEADS to address your alcohol use, working on issues relating to your self-esteem, communication skills, and anger management relapse prevention strategies.  Alcohol was obviously seen as central to those issues, and you were being urged to say no to alcohol being offered in any social situation.

46As I have said, your criminal history started in the same year as your psychotic episode.  You have a prior criminal record of which I calculate there to have been eight prior court appearances including for breaches of the three community based but supervised orders that had been imposed. Relevantly, your prior offences include many of dishonesty, starting with theft in 2003.  I am told that charges of obtaining by deception and going equipped to steal in 2009 related to cheques which had bounced.  In November 2011 you appeared at Melbourne Magistrates Court on numerous charges, including 27 charges of obtaining property by deception, together with firearms and driving charges.  I am told that the deception charges related to your selling car parts on the internet, for which you were paid, but did not send the parts. A term of imprisonment ordered to be served by an Intensive Corrections Order was contravened, for which you were fined and ordered to serve further time on another Intensive Corrections Order. 

47Your other prior offences have included violence in 2004, failures to answer bail and several driving infringements including forging an identification mark required under the Road Safety Act, the latter coming before a court on
26 April 2012 when you received an aggregate fine.  That, of course, is the same month when you started the stall at Caribbean Gardens Market.

48You do not have any prior offences specifically for breaches of copyright or similar laws. 

49A neuropsychological assessment of you was conducted by Mr Matthew Hughes while you were in custody earlier this year.  The test results produced a full IQ score in the borderline range, with verbal comprehension and working memory both in the low/average range, perceptual reasoning in the borderline range, but processing speed within the middle of the average range.  You were found to demonstrate rather poor memory abilities, below average list learning abilities, and overall significant difficulties with memory and new learning.  For higher cognitive functioning you had some significant difficulties on specific tasks as set out in Mr Hughes' report.  He concluded that your intellectual functioning abilities were generally within expectations with some variability.  He found you presented with poor memory performances on tasks of moderate to severe level, and also difficulty shifting your mental set showing reduced mental flexibility.

50With your history of significant alcohol abuse, Mr Hughes said that if that were corroborated, he believed aspects of your memory and executive function were consistent with an alcohol induced neurocognitive disorder.  He also felt you have difficulties with judging appropriate actions and difficulty with having appropriate foresight.  He considered that sustained abstinence from alcohol, with provision of thiamine, should lead to some improvement in your cognitive abilities.  However, if cognitive function had been reduced by cerebral insults, namely injury, such as the head injury from falling from a scaffold, it is less likely that there will be improvement.

51He did feel you had adequate day to day memory function.  He considered you would benefit from strategies to assist with organisation and planning.  He did not offer an opinion as to any possible causal link or contribution between your cognitive limitations and the offences in this case. 

52Indeed, in my view, the nature of these offences does not sit well with there being any serious impairment in your ability to plan and carry out activities that you knew were infringing copyright laws. Even allowing for you having conducted, or continued to conduct, this business together with Ms Murphy, there is considerable evidence of you carrying out activities involved in the business without her prompting or planning, including the hiring of the market stalls, being the primary contact person for the internet sales, and keeping track of deliveries and payments in your mobile phone applications. 

53Mr Joblin assessed you again in July of this year while you were on bail for these charges.  He had available Mr Hughes' report, but he noted no difficulty in your cognitive or memory functioning when he interviewed you.  He considered you remain fragile in relation to depression, and that you have had adverse reactions to stressors in your life occurring at the time of those reactions.  He thought you were making strenuous and creditable efforts, not only to avoid alcohol, but also to work with your brother, and if that can continue, he thought you would be able to stabilise.

54There are some events since your arrest on 11 September last year that are of particular relevance to the sentence I must decide.  You were released on the same day on bail, and remained living with Ms Murphy and your young child for the next three months after you had both been arrested and charged.

55However, in late December, the two of you went to Ballarat with more counterfeit DVDs and set up a stall at a market there.  I infer that those DVDs were imported after police had seized all that you had on 11 September last year. You were found in possession of close to 10,000 counterfeit discs at a stall at a market in Ballarat and charged as a result. 

56I am told that it was very soon after that that your relationship with Ms Murphy finally broke down, and you moved into your mother's home to live.  Your mother knew that you were drinking heavily but did not know where as she did not see it occur.  Then, on 20 January of this year, when very heavily intoxicated, you drove to a drive-in bottle shop where there was an incident.  You were refused service, and ultimately as a result of returning there, police were called.  You were arrested and taken to hospital and placed in an induced coma.  Your blood alcohol reading was over 0.601%.  You remained in hospital being treated for alcohol poisoning for some days. 

57Although you were regarded as being in custody from 20 January for charges arising out of that drink/driving incident at the bottle shop, you were apparently discharged home by the hospital, and had to be re-arrested and taken into custody. Charges arising from the 20 January 2015 incident were heard at Melbourne Magistrates' Court on 18 May, together with charges arising from the DVD sales in December 2014. The sentence imposed for the drink/driving related charges involved some of imprisonment and some of a CCO to follow imprisonment, and 119 days of pre-sentence detention was declared reckoned served under s.18 of the Sentencing Act.  That represented the period from 20 January to 18 May 2015.

58In the meantime, your bail on the matters for which I sentence you had been revoked, but you were granted bail on them again on 21 May.  As a result there remain four days of pre-sentence detention in respect of these charges which have not otherwise been taken into consideration on any other charges. 

59While in custody, both your mental and physical health improved considerably.  Your mother gave evidence before me, and said that she saw you get healthier in your mind - a clearer head - and in your body, as you were working out in the gym.  She described this as a major improvement she saw in you. 

60As I have said, on 18 May the Magistrates' Court imposed not only a term of imprisonment, being the 119 days you had spent in custody until then, but also a Community Corrections Order (‘CCO’) with conditions, mainly in relation to alcohol, requiring total abstinence from alcohol by you. You have also been under strict bail conditions on the charges I am dealing with including a curfew.  You have been living at your mother's house, and she believes she can tell that you have not been drinking.  Police came once and administered a breath test which was clear.

61You have also been working for your brother's painting business.  As you are disqualified from driving a car for a very considerable period, you have been collected each morning, either by your brother or by another worker from his business, and you have also been driven home.  Apart from that, you have been going to the gym most days, to which I gather you walk, or at least go by public transport. 

62I am told that you have also, in recent months, undertaken hypnotherapy from a Dr Bruce Alexander.  You say this is helping you, and as it was recommended by your sister, your mother and brother have supported you doing this.  You are described by your mother as positive and happy and comfortable with your family now, and that you are not associating with your old friends. 

63Your mother also tells me you have no assets and are earning about $1,200 a week from your brother and saving from that. 

64Your brother gave evidence that you are currently working for him and working very well at various tasks.  He said you are managing to work with both hands, despite your previous hand injury, but the tasks are varied.  He says you are mentally really quite well, and seem keen to work, and that seems to be keeping you happy.  He has instructed a site foreman to keep an eye on you, to help refine your skills, and another employee drives you home, or collects you from home, if your brother cannot.  Your brother has seen no sign of you drinking.  He employs eight or nine workers apparently, and has plenty of work so that he will continue to have work for you, if you continue to want to do that work and perform satisfactorily.

65I turn now to apply the specific considerations which I must under s.16A of the Crimes Act to the circumstances of this case although I shall not repeat all the detail of the various circumstances I have already outlined. 

66Section 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.

67Although 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 the sentence must be stern enough to send the message to people who may be tempted to engage in this type of offending, that to do so will attract serious punishment.

68Infringing 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.  It also impacts those obeying copyright laws by paying for legitimate authorised copies of the works and undermines the viability of the businesses of those selling legitimate authorised copies of the works. It also undermines the confidence of customers purchasing them, such as those who might have purchased the poor copies or those cut short at the end.

69Further there is impact on public revenue.  The Second Reading Speech, when the amendments to these sections were introduced, makes clear these are the types of considerations which prompted the imposition of the maximum penalties that were imposed.  It has been confirmed by various other courts that these are important considerations requiring the application of just and sufficient punishment, and general deterrence.

70Just because you have shown no understanding of why your offending was wrong does not decrease the seriousness of these aspects of the offending in which you engaged.

71Your offending lasted over a period of almost two and a half years.  Your motivation was to make money, you say, to support the lifestyle that your partner wanted.  It is clear that you and she required considerable cash flow, living in an expensive house, at least for the second year of this offending, paying $990 per week in rent and running at least three expensive vehicles. You have intimated that it was Ms Murphy who had expensive tastes or requirements, but you apparently shared that lifestyle with her, and there is nothing to indicate that you tried to reduce expenses or limit that lifestyle. 

72The extent of the business involved, not only the selling, but also the arranging for importation of the products, deliveries of them to you and then deliveries of internet sales. The documentation found supports that this involved some complexity. 

73Of particular concern is that within a few months of commencing selling the DVDs, you were on notice from the correspondence and communications with lawyers acting for ASA, that what you were doing was wrong - was in breach of copyright - and yet you disregarded that and continued.  You seem to have thought that it was worth paying a fine if it came to that.  Although I have no information about what profit was actually being made, I infer that it was sufficiently profitable a business for you to regard and expect a fine to be a small price to pay.  I have no information about the cost of the discs and their importation, but your overheads were minimal, with very low stall hire fees at the market, an internet website, and operating your business from your residence. There is no evidence of you being under any particular pressure to engage in this offending. 

74I regard the nature and circumstances of your offending as at a relatively high level of culpability for each of these offences. 

75I also regard specific deterrence as an important factor in your sentence.  That means that the sentence must be severe enough to discourage you personally from repeating this type of offending, or indeed, any other offending. 

76You have a prior criminal record that does you no credit and includes numerous charges of dishonesty, but I note none of this nature, unlike in some of the other cases to which I was referred in which an offender has had similar charges previously. 

77I regard as of concern that you did not cease the offending when put on notice that you should by the ASA lawyers.  I regard of even more concern that after being charged with these offences, you proceeded with Ms Murphy to go to Ballarat to sell DVDs only three months later, having presumably imported more since you were charged.  The relevance of that conduct is that being charged with the current offences was not enough in itself to dissuade you from repeating the offending conduct.  I regard the need to send the message to you that you must stop this type of offending as an important factor in my sentence – that is, specific deterrence.

78I have already said that your plea of guilty to these charges entitled you to considerable leniency for facilitating the course of justice and accepting responsibility for your offending.  I do not, however, infer much in the way of contrition or remorse on your part.  Beyond the fact of entering a plea of guilty it cannot be said that you have shown any particular co-operation with authorities. Your agreement to the forfeiture of the items seized, or not opposing it, was in effect inevitable, at least in relation to the infringing discs, so does not show much effort at co-operation on your part.  Nor do I see any real sign of insight into why your offending was wrong.  You saw it as an easy way of making money and proceeded with it. 

79As recently as your interview last week with the CCO assessor, you showed no insight into why your offending was wrong, and I am not at all convinced that you would have considered ceasing the offending if you had not been stopped by police seizing all of your stock on 11 September last year.  Indeed, the subsequent offending three months later seems to confirm that.

80Your mental health and assessed cognitive limitations do not seem to me to reduce your culpability for this offending.  Your counsel said there was no reliance on the principles in Verdins case, conceding that there is nothing to indicate that your mental health, or any diminished concentration or cognitive functioning, caused you to take up selling counterfeit DVDs.  However, he submitted that I should regard you as a vendor with a mental health condition and that your mental health condition is severe and that could reduce your moral culpability. He argues, further, that having these conditions makes you less of a vehicle for general deterrence without modification.  Further, it was submitted, that I cannot guess how you would be treated in prison now that you are sober.

81I am not satisfied that the evidence about your history of mental health problems or your cognitive limitations on recent testing, or indeed, your long-term abuse of alcohol, reduces your moral culpability, that is your blameworthiness, or the application of general or specific deterrence in this case. 

82First, there is no evidence of a causal connection between any of those conditions and your participation in this offending.  There is no evidence that you were suffering symptoms of depression, anxiety or schizophrenia or post-traumatic stress disorder at all during the period of the offending, although I am prepared to infer from your history that it is unlikely that symptoms of depression and anxiety, and perhaps PTSD type symptoms, had completely disappeared during that entire period.  Nevertheless there is no obvious reason why they would have caused you to engage in this offending.

83The evidence about you abusing alcohol is that in mid-2011 you were determined to tackle the problem and undergoing counselling for it, and the next information is that it was after the breakup of your relationship with Ms Murphy, after this offending had ceased, that you drank heavily leading to the events on 20 January of this year. 

84Secondly, the evidence about your mental health problems is that they were induced initially by drug abuse and that subsequent relapses inter-related with perhaps some drug abuse, but in particular alcohol abuse.  In these circumstances, even if those mental health conditions, or limitations of cognition or thinking power had contributed to your commission of these offences, the reduction in moral culpability or usefulness as a vehicle for general deterrence, would be highly questionable. 

85Finally, the submission that I cannot guess how you might be treated in prison now that you are sober, is misconceived if it is aimed at urging that as a factor in mitigation.  While it is appropriate to take into account in mitigation any condition or circumstance which might render the serving of time in prison harder for the particular offender than for others, the proposition here is somewhat the converse of that. 

86In this case there is no evidence that any condition you suffer might make imprisonment harder for you than for others without any such condition. Further, the only evidence about how you might fare in prison is your mother's evidence that, during your four months in custody earlier this year, both your mental and physical health significantly improved.  That was certainly following your having sunk to a particularly low state, drinking to the point of alcohol poisoning, but I cannot find that if you were to enter prison sober, you may find it harder than for others.  I reject that submission.

87I have been referred by the prosecution to a number of other decisions, including from interstate courts dealing with similar charges, and also the defence put before me a further case, the matter of Cao, dealt with in the middle of this year in the Melbourne Magistrates' Court. 

88In particular I am referred to the decision in Ly[1], both at first instance in this court, and the decision on appeal to the Full Federal Court. In that case a sentence of 12 months imprisonment with recognisance release after eight months was not found excessive on appeal.  I have read carefully and considered the Federal Court's analysis of the seriousness of offences of this type and the sentencing considerations that apply. 

[1]DPP v Ly [2014] VCC 1514; Ly v The Queen [2014] FCAFC 175

89I gather from that decision that it was the first instance of a court in Victoria imposing a sentence requiring immediate imprisonment for offending of this nature, and it was upheld.  I note there were factors in that case that differ from yours, including that in that case the offender was actually manufacturing counterfeit copies of DVDs of the relevant recordings, and also had previously been charged with very similar offending for which a fine had been imposed. The circumstances had also reached the stage of a shop being rented and opened for the sale of various items including counterfeit DVDs and similar. In that case there was some evidence of the actual significant profits being made, although that does not seem to me to warrant there being a great distinction between that and the present case. 

90Taking all of these matters into account, and synthesising them as I must, I have decided by a very fine margin indeed that in your circumstances I will not impose a sentence of imprisonment.  I cannot emphasise too strongly how close I have come to imposing imprisonment, and that should be a warning to you that, if you breach the Community Corrections Order I am going to impose, you will be brought back in front of me and can expect no leniency.

91The factor that has caused me to decide against imprisonment in this case is that you have earlier this year spent four months in prison, albeit in respect of different and subsequent offences.  I would need to take that period of time into account on the issue of totality.  A sentence of imprisonment, if I imposed it, would have been for no more than a few months having regard to other cases reflecting current sentencing practice, and having regard to what I consider the relevant factors in your case.  There would then have been a Recognisance Release Order which would not have provided direct supervision of your conduct. 

92I am satisfied that you have shown a genuine effort, as a result of the four months you spent in custody earlier this year, to turn your life around.  That has involved, in particular, tackling your major problem with alcohol which of course has no direct affect on the offences for which I am sentencing you. Your efforts towards rehabilitation have brought you back under the direct supervision of your mother and brother, who seem to be strong and stabilising influences on you, and they have been watching closely your behaviour to make sure you have not slipped back into either alcohol use or associations that could lead you into further wrongdoing. 

93In all of these circumstances I have decided that, rather impose a sentence of imprisonment, with release on recognisance after a short further period in custody, it is in the community's best interests and meets the need for both general and specific deterrence, for you to be required to perform considerable unpaid community work as a penalty, and also to be supervised over an extended period.

94I have also taken into account, under the principles of R v Renzella that you have spent an extra four days in custody in respect of the current charges that is beyond those dealt with by the Magistrates' Court on 18 May of this year.  Those four days will not be reckoned served as I am not imposing imprisonment, but they have been a part of the salutary lesson you should have learnt from this offending. 

95Would you stand up now please. 

96Timothy Sezdirmezoglu, on Charge 1 you are convicted and sentenced to a Community Corrections Order for two years commencing today.  The conditions on that order are that you must perform 350 hours of unpaid community work, be subject to supervision, and submit to assessment and treatment, as directed, for mental health issues. 

97I am also imposing judicial monitoring in this case.  I do not do that often but I am going to require you to attend back before me in just over three months' time.  I am going to set that date as Monday 14 December 2015 at 10 am. 

98In addition to those conditions all usual terms of a Community Corrections Order apply.  I know you have been told them recently when assessed. I know you are subject to a Community Corrections Order imposed by the Magistrates' Court and should know them, but I am going to repeat them briefly here.

99First, you must report within two clear working days after today to the local Community Corrections office.  You will know where it is because you are already attending.  The order will say that you must report by 4 pm next Tuesday 15 September even though there may be argument as to whether that is two clear working days away.  I recommend you report by then. 

100You must report to Community Corrections officers any change in the address of where you are living or where you are working.  You must seek permission from community corrections officers before you are allowed to leave Victoria.  You must submit to visits by Community Corrections officers.  You must obey all lawful instructions of community corrections officers and in particular you must commit no further offences of any nature while subject to that order. 

101If you fail to comply with any of the conditions or terms, or if you commit any further offences, you can expect to be brought back in front of me and dealt with for contravention of that order.  For contravention you may be found guilty of that in itself as a further offence and sentenced to up to three months imprisonment.  Further, you may face re-sentencing on the charges on which I am now sentencing you, or you may face a variation including an extension or increase in the terms of the Community Corrections Order.  All of that would depend on the circumstances of the contraventions.  Do you understand those terms?

102OFFENDER:  Yes, Your Honour.

103HER HONOUR:  Do you agree to comply with all of those terms and conditions?

104OFFENDER:  yes, Your Honour.

105HER HONOUR:  On Charge 2, I am imposing a substantial fine.  I am imposing a fine of $3,000.  I will allow a stay, if it is sought, of reasonable proportions.  I am imposing that fine to indicate the seriousness of the amount of counterfeit material found in your possession on 11 September and I have made it higher than an amount you apparently were fined for the subsequent offences dealt with in the Magistrates' Court.

106I state that, but for your pleas of guilty, I would have imposed a term of imprisonment.  If you had been found guilty of these charges by a jury, I would have imposed a total effective sentence between the two charges of 15 months imprisonment with release on recognisance after ten months. 

107Finally, I make each of the ancillary orders that were sought as to disposal and forfeiture.  There is also a destruction order.  I will go through those shortly but you can take a seat while the orders are being prepared.  While those are being prepared; is there anything overlooked?

108MR VALOS:  No, Your Honour.

109MR CAMILLERI:  If I could just clarify, the fine is with conviction, obviously, Your Honour.

110HER HONOUR:  The fine is certainly with conviction.  Sorry, I thought I had said conviction.  Sorry, I said conviction for the CCO.  There is a conviction with the fine, yes, certainly.  The fine is payable to Victorian or Commonwealth authorities?

111MR CAMILLERI:  Commonwealth authorities.

112HER HONOUR:  Yes, you had better tell us, Mr Camilleri exactly to whom it is payable to go into the order.

113MR CAMILLERI:  Perhaps I could give that detail to your associate.  I don't have ‑ ‑ ‑ 

114HER HONOUR:  You can.  I think something has got to go into the order now.  Is it the Australian Federation Against Copyright Theft?

115MR CAMILLERI:  No.

116HER HONOUR:  No.

117MR CAMILLERI:  The agency was the Australian Federal Police.

118HER HONOUR:  Yes.

119MR VALOS:  Your Honour, could I get instructions in relation to the payment of the fine?

120MR CAMILLERI:  Just bear with me a second, Your Honour.

121HER HONOUR:  Yes.  Or to the Commonwealth DPP, we'll see.

122MR CAMILLERI:  Your Honour, I don't wish to give you incorrect information, it's something I would need ‑ ‑ ‑ 

123HER HONOUR:  Yes, I'll ask my associate.  The computer rules us on this, the computerised orders.  I'm just not sure if something can be entered to have that clarified.

124MR CAMILLERI:  I'll have enquiries made over the phone instantly. 

125HER HONOUR:  I would imagine that the fine is collected in the same way through the County Court registry.

126MR CAMILLERI:  Yes.

127HER HONOUR:  To whom it is to be paid is the question.  While we're finalising the other parts of the orders if that could be checked it would be useful.

128MR CAMILLERI:  Thank you.

129HER HONOUR:  Thank you.  Yes, that's the CCO, if it can be shown to both counsel to check it covers the matters I mentioned.  Also it's forfeiture of the various printers and ink cartridges and the Australian cash of $7,184.95?

130MR CAMILLERI:  Correct.

131HER HONOUR:  All right, do I need to sign five copies of that? Mr Camilleri, there are five copies.  Obviously, one to the defence and one on the file and one to you, but where do the – do you get three back or ‑ ‑ ‑ 

132MR CAMILLERI:  No, what I need is the original back for the police to then act on ‑ ‑ ‑ 

133HER HONOUR:  On it, all right.

134MR CAMILLERI:  ‑ ‑ ‑  so if I get one original.

135HER HONOUR:  Obviously you'll get a signed copy.  I have signed five copies because it was presented to us as five copies.  Do you know where the other three go?

136MR CAMILLERI:  One goes on the court file, Your Honour.

137HER HONOUR:  Yes, yes, one to the defence, one on the court file, one back to you to give to the ‑ ‑ ‑ 

138MR CAMILLERI:  I'll take the other three.

139HER HONOUR:  You can take the other three back but before I start with signing five copies of what is the destruction order in respect of ‑ ‑ ‑ 

140MR CAMILLERI:  Three copies, Your Honour, for that.

141HER HONOUR:  Three is enough for that?

142MR CAMILLERI:  If you sign three copies, yes.

143MR VALOS:  One for each (indistinct).

144HER HONOUR:  This is said not to operate until the date of finalisation of Ms Murphy's prosecution and this sets out – yes, this has elaborate schedules of all the items as in the DVDs and covers and things, all right.  Is there anything ‑ ‑ ‑ 

145MR VALOS:  No, Your Honour.

146HER HONOUR:  Is that CCO in a form to be signed?

147MR VALOS:  Yes, Your Honour.

148MR CAMILLRI:  Yes.

149HER HONOUR:  I'll have my Associate approach Mr Sezdirmezoglu.  Do you want to go with her, Mr Valos?

150MR VALOS:  No, Your Honour, I'll undertake that task again at the end of the court proceedings. 

151HER HONOUR:  All right.

152MR VALOS:  In relation to the fine; would Your Honour grant a stay of three months?

153HER HONOUR:  Three months?

154MR VALOS:  Three months.

155(Orders signed and acknowledged.)

156HER HONOUR:  I haven't initialled all the schedules.  Do you want me to initial the pages of the schedule?

157MR CAMILLERI:  I refer to in the order. 

158HER HONOUR:  They are.

159MR CAMILLERI:  It's a matter for you.

160HER HONOUR:  I think that's enough, yes, there's three copies of that, thank you.  I will now sign that Community Corrections Order. 

161I want to make clear to you, Mr Sezdirmezoglu, I came very close to sending you back to prison, but what you have to realise is these are serious conditions imposed.  Three hundred and fifty hours of unpaid community work will require very considerable input by you particularly as I have heard how many hours a week you are working for your brother's painting company.  He is going to be flexible enough to release you to comply with your community corrections obligations, but that's a considerable amount of time and you're going to have to do it.

162If there is any particular reason, not just work, that you find you cannot be doing it, you are entitled to apply for a variation in the order.  I recommend if that occurs, something stopping you doing it, you apply for that variation, rather than be breached on the order.

163I am aware that there were fines imposed earlier this year, and I have imposed a substantial fine on one of the charges, and that was moderated actually because of the amount of unpaid community work or it would have been higher. 

164I do regard these charges as both very serious and your involvement in this activity as very serious, but I am giving you the chance to prove that you do have the resolution to set your life back on a better course.  I am giving you the opportunity to do that but do not overlook that, if you let the time go by without complying, you are likely to be back in front of me where leniency is unlikely to be shown, although I will have to take into account any circumstances that have arisen after I have imposed the order, obviously.

165I have signed the Community Corrections Order and that will be copied and a copy provided for both parties.  I had signed the fourth ‑ ‑ ‑ 

166MR CAMILLERI:  Thank you, Your Honour, in relation to the fine, Your Honour, my instructions are that it is a conviction fine not payable to any specific party.  It's only costs that would go to the Commonwealth agency.

167HER HONOUR:  The County Court will just collect it and put it into consolidated revenue?

168MR CAMILLERI:  Correct, Your Honour.

169HER HONOUR:  State consolidated revenue, not Federal.  Is that going to work in the computer?  The fine is never paid to parties.  Compensation is payable to parties but a fine is just to the State.  The computer says you must so we must if we want it to produce an order. 

170What might be a better option is that the finalised orders that involve that can be emailed to you.

171MR VALOS:  Yes, Your Honour.

172HER HONOUR:  Whether it is late today or next week, once my Associate has managed to see if she can talk the computer into doing what we want.  The CCO has been signed, and the orders have been made, and the finalised version will be forwarded.

173MR CAMILLRI:  If Your Honour pleases. 

174HER HONOUR:  Is there anything I need to ‑ ‑ ‑ 

175MR CAMILLERI:  There is no other matter I wish to raise with Your Honour.

176HER HONOUR:  I was just looking whether anything should be handed back, but I think they will have to be sorted out before anything can be returned, and the defence exhibits will be kept for the appeal period and eventually returned.  All right, could we adjourn the court please and that is until 10.30 Tuesday.

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