Case: R v Tait (1979) 24 ALR 473
Outcome: applied
principles were referred to again by another Full Court in R v Tait (1979) 24 ALR 473, following which the Court said (at 476): "An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v R [1913] HCA 32 ; (1913) 16 CLR 336 at 339-40; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v R [1928] HCA 28 ; (1928) 41 CLR 230 at 249; Griffiths v R (1977) 15 ALR 1 at 15-17)." As indicated at [14] above, the appellant identified two errors in the sentencing procedure in the present case. The first was said to be a failure to consider all possible alternatives to full-time imprisonment, contrary to the provisions of s 17A of the Crimes Act . The difficulty with this alleged error is that, at the time of sentencing, his Honour said: "I have considered all other appropriate penalties and I consider nothing other than full-time gaol is the appropriate penalty ..." In my view, this alleged error cannot be sustained. The other error in the sentencing procedure identified by the appellant is the alleged failure of his Honour to apply and properly record the utilitarian discount given for a plea of guilty. In prefacing the imposed sentence, his Honour did refer to the appellant's guilty plea and was obviously mindful of it. It is just not possible to know to what extent, if any, his Honour took it into account in the exercise of his sentencing discretion. I would not be prepared to interfere with the sentence his Honour imposed on the basis of this alleged error. In my view, the only real question raised by this appeal is whether the nature of the sentence imposed, when considered in relation to the offences and the circumstances of the case, is so excessive as to manifest "convincing evidence" that in some way the exercise of the discretion has miscarried or is unsound. As the authorities to which I have referred make clear, it is not enough that I might regard the sentence as greater than what I would have imposed. It appears to be common ground between the appellant and the Crown that no person convicted of the offences for which the appellant pleaded guilty and was convicted has been incarcerated in prison. Custodial sentences have been imposed but invariably have been effectively suspended by orders made pursuant to s 20(1)(b) of the Crimes Act directing the immediate release of the offender sentenced to imprisonment upon giving security, by recognizance or otherwise, to the satisfaction of the court, for compliance with the conditions referred to in para (a) of s 20(1). However, those facts themselves do not lead to the conclusion that the sentence imposed on the appellant was so excessive as to manifest "convincing evidence" that the exercise of his Honour's discretion miscarried. Any such conclusion could only be reached by weighing those comparative facts against the maximum penalties as a measure of the seriousness with which the legislature views such offences five years imprisonment for the Copyright Act offences having regard to the principle of general deterrence, the need for specific deterrence particularly in the face of conviction for a past similar offence, rejecting as I do, the appellant's submission for discounting this factor for the media publicity this case received, and the scale of the illegal commercial operation carried on by the appellant. So weighed and measured, the sentence imposed by his Honour does not, on its face, exhibit the character of being so excessive that the exercise of the discretion is put in doubt. I have come to the conclusion that I should not interfere with the term of imprisonment of 12 months for each offence to be served concurrently, however, I reduce the non-release period from eight months to three months on the same recognizance. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 18 September 2007 Counsel for the Applicant Mr Q Nguyen Counsel for the Respondent Mr C Ng Solicitor for the Respondent Commonwealth Director of Public Prosecutions Date of Hearing: 27 April 2007 Date of Judgment: 18 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1463.html