Le v The Queen

Case [2007] FCA 1463

FEDERAL COURT OF AUSTRALIA

Le v The Queen [2007] FCA 1463

COPYRIGHT & TRADE MARKS  - conviction for offences under Copyright Act 1968 (Cth) and Trade Marks Act 1995 (Cth) – appeals against severity of sentences imposed for custodial sentence with non-release period – the Court’s jurisdiction – whether errors in sentencing – principle against interference with exercise of sentencing discretion

Copyright Act 1968 (Cth) ss 131B, 132(2A)(a), 132(3), 132(6AA), 132(6A)
Trade Marks Act 1995 (Cth) ss 148(e), 149, 190, 191, 195
Federal Court of Australia Act 1976 (Cth) ss 24, 25, 32
Crimes Act 1914 (Cth) s 4J, 16A, 17A, 20(1)(b)

Hamm v Middleton (1999) 44 IPR 656 cited
Holyoak v The Queen (1995) 82 A Crim R 502 cited
Kovac v The Queen (1977) 15 ALR 637 applied
Markarian v The Queen (2005) 215 ALR 213 cited
R v Cooper [2006] NSWSC 609 cited
R v El Karhani (1990) 21 NSWLR 370 cited
R v Ellis (1986) 6 NSWLR 603 cited
R v El-Rashid (unreported, Court of Criminal Appeal, NSW, 7 April 1995) cited
R v Maslen & Shaw (1995) 79 A Crim R 199 cited
R v Paull (1990) 20 NSWLR 427 cited
R v Ronen and Ors [2005] NSWSC 991 cited
R v Tait (1979) 24 ALR 473 applied
R v Thompson (1975) 11 SASR 217 cited
R v Thomson; R v Houlton (2000) 49 NSWLR 383 cited
R v Williams [2005] NSWSC 315 cited
R v Winchester (1992) 58 A Crim R 345 cited
Wong v The Queen (2001) 207 CLR 584 cited

THE THO LE v THE QUEEN
NSD 127 OF 2007

EDMONDS J
18 SEPTEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 127 OF 2007

ON APPEAL FROM LIVERPOOL LOCAL COURT

BETWEEN:

THE THO LE
Appellant

AND:

THE QUEEN
Respondent

JUDGE:

EDMONDS J

DATE OF ORDER:

18 SEPTEMBER 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The sentence imposed on the appellant by his Honour Magistrate Shepherd at Liverpool Local Court on 30 June 2006 be and is hereby varied by substituting a non-release period of three months for the eight months stipulated, with credit being given for the five days the appellant was in custody following her conviction on 30 June 2006 pending lodgment of an appeal.

2.Accordingly, the appellant is to serve a term of imprisonment of twelve (12) months to commence on 18 September 2007 and to expire on 17 September 2008 to be released on 12 December 2007, upon giving security by recognizance of $1,000 on condition that the appellant is to be of good behaviour for three (3) years.

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

NSD 127 OF 2007

ON APPEAL FROM LIVERPOOL LOCAL COURT

BETWEEN:

THE THO LE
Appellant

AND:

THE QUEEN
Respondent

JUDGE:

EDMONDS J

DATE:

18 SEPTEMBER 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. This…

Continue reading Le v The Queen

Sign in free to access the full text

Details
AGLC
Le v The Queen [2007] FCA 1463
Case
[2007] FCA 1463
Decision Date

CaseChat Overview and Summary

In the matter of Le v The Queen, the appellant appealed against the severity of sentences imposed by the Liverpool Local Court for convictions under the Copyright Act 1968 (Cth) and the Trade Marks Act 1995 (Cth). The appellant was sentenced to 12 months' imprisonment, to be released after eight months, for multiple copyright and trademark infringement offences. The primary legal issue before the court was whether the sentence imposed was appropriate given the nature of the offences and the appellant's circumstances. The appellant argued that the sentence was excessive, noting that no other similar offenders had been given custodial sentences. The Crown conceded that no custodial sentences had been previously imposed for the same offences.

The court considered the principles guiding appeals against sentences, emphasizing that intervention is warranted only when the sentence appears unreasonable or the discretion was improperly exercised. The court examined the appellant's arguments regarding the objective features of the offence, the deterrent effect of the sentence, and the prospect of rehabilitation. The appellant highlighted her unique circumstances, including her role as a full-time caregiver for her autistic son, and the potential for rehabilitation given her recent release from this responsibility. The court ultimately found that while the offences were serious, the appellant's unique situation and the opportunity for rehabilitation warranted a reduced custodial sentence. The sentence was varied to a non-release period of three months, with credit for time already served.

The final orders were that the appellant is to serve a term of imprisonment of twelve months, to commence on 18 September 2007, and to expire on 17 September 2008, to be released on 12 December 2007 upon giving security by recognizance of $1,000 on condition that the appellant is to be of good behaviour for three years.

Orders

Orders of the court

1. The sentence imposed on the appellant by his Honour Magistrate Shepherd at Liverpool Local Court on 30 June 2006 be and is hereby varied by substituting a non-release period of three months for the eight months stipulated, with credit being given for the five days the appellant was in custody following her conviction on 30 June 2006 pending lodgment of an appeal.

2. Accordingly, the appellant is to serve a term of imprisonment of twelve (12) months to commence on 18 September 2007 and to expire on 17 September 2008 to be released on 12 December 2007, upon giving security by recognizance of $1,000 on condition that the appellant is to be of good behaviour for three (3) years.

Background

Background to the litigation

This is an appeal against the severity of sentences imposed upon the appellant for her conviction for six offences under the Copyright Act 1968 (Cth) and for five offences under the Trade Marks Act 1995 (Cth).BACKGROUND On 30 June 2006, the appellant pleaded guilty at Liverpool Local Court to the following offences:·Five breaches of copyright by possession of an article for sale/hire: s 132(2A)(a) Copyright Act.·One of possessing a device for infringing copyright on a work: s 132(3) Copyright Act; and·Five of possessing goods with falsely applied trade marks: s 148(e) Trade Marks Act. In relation to each of the 11 offences, the appellant was convicted and sentenced to 12 months’ imprisonment, to be released after eight months on a recognizance release order upon entering into a bond to be of good behaviour for three years, with a self-surety of $1,000. The sentences were imposed concurrently. The appellant was remanded into custody following her conviction on 30 June 2006. On 5 July 2006 the appellant was granted conditional bail after she lodged an appeal against the severity of her sentence. The appellant has spent five days in custody referable to this matter.THE OFFENCE AND PENALTY PROVISIONS The relevant offence and penalty provisions which are the subject of this appeal are contained in ss 132(2A), 132(3), 132(6AA), 132(6A) of the Copyright Act as it stood at the relevant time; and ss 148(e) and 149 of the Trade Marks Act: Breach copyright by possession of article for sale/hire: s 132(2A)(a) Copyright Act:“(2A) A person shall not, at a time when copyright subsists in a work, have in his or her possession an article for the purpose of:(a) selling, letting for hire, or by way of trade, or with the intention of obtaining a commercial advantage or profit, offering or exposing for sale or hire, the article;(b) distributing the article for the purpose of trade, or with the intention of obtaining a commercial advantage or profit, or for any other purpose to an extent that will affect prejudicially the owner of the copyright in the work; or(c) by way of trade, or with the intention of obtaining a commercial advantage or profit, exhibiting the article in public;if the person knows, or ought reasonably to know, the article to be an infringing copy of the work.”Possess device for infringing copyright on work: s 132(3) Copyright Act:“(3) A person shall not, at a time when copyright subsists in a work, make or have in his or her possession a device that the person knows, or ought reasonably to know, is to be used for making infringing copies of the work.”…Penalties specified under s 132(6AA) and (6A) Copyright Act:“(6AA) If:(a) a person contravenes subsection (1), (2) or (2A); and(b) the article to which the contravention relates is an infringing copy because it was made by converting a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form;the person is guilty of an offence punishable on summary conviction by a fine of not more than 850 penalty units and/or imprisonment for not more than 5 years.…(6A) A person who contravenes subsection (3), (5), (5AA), (5A), (5B), (5C), (5D), (5DA) or (5DB) is guilty of an offence punishable on summary conviction by a fine of not more than 550 penalty units and/or imprisonment for not more than 5 years.Note: A corporation may be fined up to 5 times the amount of the maximum fine. See subsection 4B(3) of the Crimes Act 1914.”Possess goods with falsely applied trade marks: s 148 Trade Marks Act:“A person is guilty of an offence if the person intentionally: (a) sells goods; or(b) exposes goods for sale; or(c) has goods in his or her possession for the purpose of trade or manufacture; or(d) imports goods into Australia for the purpose of trade or manufacture;knowing that, or reckless of whether or not:(e) a falsified registered trade mark is applied to them or in relation to them; or(f) a registered trade mark has been unlawfully removed from them; or(g) a registered trade mark is falsely applied to them or in relation to them.”Penalty specified under s 149 Trade Marks Act:“A person guilty of an offence under section 145, 146, 147 or 148 is punishable on conviction by:(a) a fine not exceeding 500 penalty units; or(b)imprisonment for a period not exceeding 2 years; or (c) by both a fine and a term of imprisonment.…”MAXIMUM PENALTIES

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EDMONDS J
Counsel for the Crown conceded what the appellant submitted by reference to the NSW Judicial Commission statistics she relied on, that he had been unable to find any custodial sentences, in the physical sense, for the offences for which the appellant has pleaded guilty.ANALYSIS AND CONCLUSION At the time of sentencing the appellant, the transcript records the Magistrate as having said:“Ms Le you have pleaded guilty to the eleven charges that are before the court. Basically all associated with infringing copyright in one way or another, the possessing the devices for infringing copyright, selling items etcetera.You are a person who has at this point a previous conviction for offences in the same area or previous convictions. You were dealt with extremely leniently on that occasion This is a large scale operation by you aimed at obviously making money for yourself at the expense of persons who are entitled to receive money from these goods.There is little that can be said in your favour in terms of the operation that you were involved in. It was obviously a large scale commercial operation. The matters you rely upon in terms of hardship were basically hardship for your son. Matters I have some doubts about in terms of just how truthfully based they are and if they do have, I accept your son at nineteen is a person who is, with his medical problem, his autistic problem, is a person who needs permanent help and assistance but there is a system within our community that adequately addresses that and I do not consider the hardship type issues you have put to me here today are matters that I am going to place any great weight on.Taking into account your previous matter and previous conviction in this area, the large scale operation involved that is reflected by these charges, I consider that gaol is the only option. I have considered all other appropriate penalties and I consider nothing other than full time gaol is the appropriate penalty and I note from the presentence report my options are fairly limited in relation to the type of penalty anyway if it is going to be gaol it cannot be periodic detention.” In Kovac, a Full Court of this Court said (at 642, 643):“In Harris v R (1954) 90 CLR 652, the High Court considered an appeal against sentence under s 64(1) of the Papua New Guinea Act 1949 to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Court of the Territory. The court held that it would not interfere with a sentence of imprisonment imposed unless it was satisfied that the discretion exercised by the court imposing the sentence miscarried or was unsound or unreasonable in its exercise. In a joint judgment, Dixon CJ, Fullagar, Kitto and Taylor JJ cited with approval a passage from the decision of the High Court in Cranssen v R (1936) 55 CLR 509. In the latter case, after pointing out that an appeal against sentence is an appeal from a discretionary act of the court responsible for the sentence, Dixon, Evatt and McTiernan JJ (at 519) said: ‘The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court’s authority;’ Following this citation their Honours (at p 656) in Harris’ Case added: ‘It is not enough in applying those principles that the judges of this court should regard the sentence as greater than they themselves would have imposed’.”

Ratio Decidendi

Legal Principle Established

Established by: EDMONDS J

Dealing with each of the matters in turn, the appellant submitted that the time in full-time custody already spent (five days), together with a community service order, lengthy if need be, would be adequate punishment, and that any greater level of punishment meted by the Court would exceed that which is just and appropriate with respect to the objective features of the offence committed. In this regard, the appellant relies on sentencing statistics published by the Judicial Commission of New South Wales in 2007 and annexed to her written submissions which illustrate that over the period October 2002 to September 2006 in the case of 90 offenders convicted of breaching s 132 of the Copyright Act and in respect of 102 offenders convicted of breaching s 148 of the Trade Marks Act, none were imprisoned. Any that were given a custodial sentence were immediately released pursuant to s 20(1(b) of the Crimes Act. This, the appellant submits, provides a measure for this Court to assess the objective criminality of the offence and thus a guide as to what level of punishment is adequate.b. The deterrent effect that any sentence or order under consideration may have on the person The appellant submitted that the Court should consider the wide publicity that has been given to the case and the manner in which the appellant was identified – television footage of approximately four minutes duration screened on the nightly news broadcast by a major television station in Sydney on the evening of Friday, 7 July 2006 clearly identifying the appellant’s face – as impacting on the sentencing factor of deterrence. Given the magnitude of the publicity and the inevitable consequence that the appellant is now publicly known and identified for this case, interactions of the appellant with her friends and the community almost always now raise the subject of the offence and her subsequent incarceration. With this unique factor in mind, the appellant submitted that specific deterrence has to some extent been achieved by the media publicity over the incident, as the appellant will continually be reminded of the imprisonment that was given to her. The appellant further submitted that the weight that ought to be attributed to the need for specific deterrence in light of her prior sentence for a similar offence on 15 May 2002 (resulting in $1,520 in fines and a recognizance to be on good behaviour for two years) should be discounted because of the subsequent media publicity surrounding the case, the manner in which it clearly identified the appellant and the ensuing effect on the identity of the appellant and how she is now known amongst her friends and the community. Finally, it was submitted that general deterrence has also to some extent been achieved by the prominence of the media publicity, and thus in the appellant’s submission should be factored into the final sentence that this Court is being asked to substitute.c. The prospect of rehabilitation of the person It was submitted:(1)That the need to rehabilitate the appellant for her inevitable participation in the community should be given greater prominence in deciding upon the appropriate sentence. The appellant is a 53 year old unemployed pensioner mother of two children, aged 20 and 27 years of age. The youngest of these children, Angelo Polese, was born in 1986, and since that time has had severe autism. The appellant has thus been required to provide full-time care for her severely disabled child with little assistance from other persons. She has done this at home for 20 years, and this has required her to be ever present at home with her disabled child, giving her full-time attention.(2)That the appellant was required to be constantly at home is the root cause for the psychological state which resulted in the offences for which she is presently before this Court. Her instructions are that collecting of videos began as a need to keep occupied when housebound caring for her child, resulting in a library. Lending of her personal collection led to copying for loan, and this behavior formed the basis of her social interaction with the outside community, which would otherwise have been non-existent due to her child’s needs.(3)At the beginning of 2006, Angelo attacked the appellant and substantially injured her. He was subsequently placed in the care of the Department of Ageing, Disability & Home Care, where he remains to this day. It is feared that he is unstable and may attack people in his vicinity again, including his mother, and so he is to remain in the care of the Department indefinitely.(4)Since the beginning of 2006, the appellant has regained a liberty that she has not known for more than 20 years. That she is no longer housebound means that the psychological state which resulted in the offences before the Court is less likely to recur. She is now able to actively partake in the community as “normal” people who are not housebound do. She thus now has a support network that she did not have for some 20 years, including regular church attendances with her daughter. She has also expressed a desire to work part-time.(5)The appellant has taken active steps to address the psychological trauma caused by the full-time care she provided to her severely disabled child for 20 years and the consequent psychological state attendant upon the commission of these offences, by attending a clinical psychiatrist where she has commenced a course of medication. There was annexed to the appellant’s written submissions a letter from a Dr Thomas Luong dated 8 February 2007 concerning the appellant’s depressive disorder, and the treatment that she is receiving for it.(6)All of these changes have only recently become possible and should give prominence to the need to rehabilitate the appellant to be a positive participant in the community. A full-time custodial sentence would be counter-productive to the unique hardship endured by the appellant and the renewed opportunity that is now present before the Court to redress the causes of the offences being committed in the first place. A full-time custodial sentence would also unjustly burden the community with its expense.(7)As prison is a measure of last resort, full-time custody for the appellant, in the ultimate, is unjust and inappropriate, given the unique changed circumstances before the Court and the unique opportunity to rehabilitate the appellant: s 17A Crimes Act.THE CROWN’S SUBMISSIONS