Pontello, J. v Plenty, D.C

[1989] FCA 222

JUDGMENT No. a.6.a.Y-

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
\
NEW SOUTH WALES DISTRICT REGISTRY i	NO. NG45 of 1989

1      No. NG65-71 of 1989

GENERAL DIVISION 1

BETWEEN:  JOHN PONTELLO

~ppllcant

AND :  DAVID CORBET PLENTY

Respondent

20 March 1989

REASONS FOR JUDGMENT

LOCKHART J.

David Corbet Plenty is charged with an offence under S. 132(2A)(a) of the Copyright Act 1968. It is alleged that on 31 May 1988 at Harris park he had in his possession 17 infringing videos, being copies of 11 films, for the purpose of letting them for hire. The defendant conducts a video retail business at Greenacre. He was approached at his video shop by Mr. Walter Reich and agreed to purchase from Mr. Reich the infringing videos for $25 each, which he then

embarked on selling or hiring through his shop.

Film piracy is a very serious problem throughout the world. The financial losses to individuals in this country are considerable. The fact that piracy results in untaxed illegal dealings in copyright materials means that there is also a considerable loss of taxation revenue. That offences of this krnd are regarded seriously by the legislature is evidenced by the penalties provlded for infringement in the Copyright Act. The maximum fine for-an offence of the kind with which the defendant has been charged is $1,500 for each article to which the offence relates or a maximum of two years imprisonment of both. However, where a flne is imposed the fine cannot exceed a total of $50,000. Thls is the penalty imposed in the case of a natural person; other penalties are imposed in the case of offences committed by bodies corporate.

The defendant is a slngle man aged 56 who is self
employed in a business at Greenacre. The Australian Federal

Police have described him as belng co-operative with them in

offences which relate to the same or related articles being	relation to these offences. He has no prior offences except
offences under the Trade Marks Act 1955. In September of 1988 the defendant was convicted after enterlng a plea of guilty of various offences under the Trade Marks Act. He was fined $250 in respect of each relevant count of possessing articles to whlch a forged registered trademark was applied, in all a total of $1,000.
The offences under the Copyright Act with whlch the defendant has been charged relate, as I have said, to some 17 articles. The Court's power to impose a fine could not therefore reach the maximum of $50,000 prescribed. Although there 1s provision for imposing a custodial sentence, in my opinion it is not appropriate to do so in thls case. The defendant has expressed regret at what he has done and sald that it will not be repeated. He appears to be a man of good character. This is his first offence of a case of thls kind and I take into account, in that regard, the trade mark offences which are closely related to these.
It is unlikely that there will be a repetitlton of an offence of this kind by the defendant but I must nevertheless also take into account the clear legislative policy inherent in the penalties for which provision is made in the Copyright Act. I impose a fine of $300 for each of the 17 articles to which this offence relates, making a total of $5,100. The Court also orders that all infringing coples of videos which
were in the defendant's possession and are now in the possession of the Australian Federal Police be delivered up
to the Australian Federal Police for destruction.
I allow four months to the defendant to pay the fines imposed; the four months to date from today.

I certify that this and the preceding two

(2) pages are a true copy of the reasons

for judgment herein of the Honourable Mr.

J%?Ea rt .

Asso iate
Date: 26 March 1989