Lai-Ha v McCusker - [2000] FCA 1174

FEDERAL COURT OF AUSTRALIA
Lai-Ha v McCusker [2000] FCA 1174
CRIMINAL LAW – sentencing – appeal against penalty imposed for offences under s 132 of the Copyright Act 1968 (Cth) – where Local Court applied law in force after offences committed – sentencing principles – “totality” principle – whether sentencer required to review aggregate of a number of separate sentences of one defendant and determine if the aggregate just and appropriate – whether preferable to remit sentencing of defendant to the Local Court
Copyright Act 1968 (Cth) ss 132, 133
Mill v R (1988) 166 CLR 59 referred to
KAM LAI-HA v LEANNE McCUSKER
N 203 OF 2000
EMMETT J
3 AUGUST 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 203 OF 2000

BETWEEN:

KAM LAI-HA
APPLICANT

AND:

LEANNE McCUSKER
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 AUGUST 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.        The appeal be upheld in part.
2.        The penalty imposed by the Local Court of New South Wales be set aside.
3.        The appeal be otherwise dismissed.
4.The matter be remitted to DCM Jerram of the Local Court of New South Wales for reconsideration and determination of the penalty.

THE COURT NOTES THAT:
5. There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 203 OF 2000

BETWEEN:

KAM LAI-HA
APPLICANT

AND:

LEANNE McCUSKER
RESPONDENT

JUDGE:

EMMETT J

DATE:

3 AUGUST 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

I have before me a proceeding brought by Kam Lai-Ha, also known as Rebecca Kam (“the defendant”), by way of appeal from convictions by a Magistrate of the Local Court of New South Wales. On 27 July 2000 I indicated that I had reached the conclusion, having heard the parties, that the appeal against conviction should be dismissed. I then heard argument on the appeal against penalty. I adjourned the matter to today to enable the applicant to make further written submissions on the question of penalty. I have now received those further submissions and have heard further oral argument from the defendant and from the respondent.
The Magistrate imposed a fine in respect of each of the first seventeen summonses referred to in my earlier reasons. She also imposed a fine in respect of the first three of the other four summonses. The fine imposed was $1,500 in respect of each of twenty summonses, making a total penalty of $30,000. The Magistrate imposed a bond in respect of the twenty-first summons. The appeal in respect of that penalty has been withdrawn.
The Magistrate appears to have approached the matter on the basis of a misconception. She was apparently informed that the penalty for the offences in question was provided for by section 132(6A) of the Copyright Act 1968 (Cth) (“the Copyright Act”). Section 132(6A) provides as follows:
“A person who contravenes…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Lai-Ha v McCusker

Details

AGLC: Lai-Ha v McCusker [2000] FCA 1174
Case: [2000] FCA 1174
Decision Date: 3 AUGUST 2000

CaseChat Overview and Summary

Lai-Ha was charged by McCusker with assault occasioning actual bodily harm. Lai-Ha appealed the conviction and penalty to the Local Court of New South Wales, which was dismissed. Lai-Ha subsequently appealed to the District Court of New South Wales. The appeal was heard by DCJ Hulme. The nature of the dispute was whether the penalty imposed by the Local Court was excessive and whether the appeal against the conviction should be upheld.

The legal issues the court was required to decide were whether the penalty imposed by the Local Court was manifestly excessive and whether the appeal against conviction should be upheld. The court had to consider whether the appeal against conviction was well-founded and whether the penalty was appropriate. The court also had to consider the principles of sentencing and the factors that should be taken into account when determining the penalty.

The court found that the appeal against conviction should be dismissed. However, the court found that the penalty imposed by the Local Court was manifestly excessive. The court held that the penalty should be set aside and the matter should be remitted to DCM Jerram of the Local Court of New South Wales for reconsideration and determination of the penalty. The court held that the Local Court had failed to consider all the relevant factors when determining the penalty, and that the penalty was manifestly excessive. The court held that the appeal should be upheld in part and the penalty should be set aside. The court held that there should be no order as to costs.

Orders

Orders of the court

1. The appeal be upheld in part.

2. The penalty imposed by the Local Court of New South Wales be set aside.

3. The appeal be otherwise dismissed.

4. The matter be remitted to DCM Jerram of the Local Court of New South Wales for reconsideration and determination of the penalty.

THE COURT NOTES THAT:

5. There be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

EMMETT J

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Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 203 OF 2000

BETWEEN:	KAM LAI-HA APPLICANT
AND:	LEANNE McCUSKER RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	3 AUGUST 2000
WHERE MADE:	SYDNEY

JUDGE:	EMMETT J
DATE:	3 AUGUST 2000
PLACE:	SYDNEY