Case: R v Ellis (1986) 6 NSWLR 603
Outcome: cited
its written submissions, the Crown submitted that: (1) In considering a severity appeal for Commonwealth offences, the court is required to have regard to the matters set out in Part 1B of the Crimes Act , and more specifically to the matters set out under s 16A , which provides a list of non-exclusive factors that a court should take into account when sentencing a federal offender: R v El Karhani (1990) 21 NSWLR 370. (2) The governing principle under s 16A(1) is the imposition of a sentence which is of a "severity appropriate in all the circumstances of the offence". (3) The Court must consider the matters adverted to under s 16A(2) , together with the important consideration of general deterrence: R v El Karhani ; R v Paull (1990) 20 NSWLR 427, per Hunt J. (4) The following sentencing principles are directly applicable in the present case: General Deterrence (5) In R v El Karhani , the NSW Court of Criminal Appeal reaffirmed the principle of general deterrence when sentencing for Commonwealth offences and agreed with Hunt J R v Paull at 377F. The Court (Kirby P, Campbell &amp; Newman JJ) at 377H also cited Street CJ (writing for the Court) in Rushby [1977] 1 NSWLR 594 at 597 598. (6) General deterrence is of particular importance in sentencing for Copyright Act and Trade Marks Act offences. (7) In Hamm v Middleton (1999) 44 IPR 656, Von Doussa J sentenced the defendant to three offences under s 132(1)(b), 132(2A)(a) and 132(1)(d)(i) of the Copyright Act and remarked (at [18]): "However, there is also the question of general deterrence. It is important in these types of offences, which are not always easy to detect and that have the potential to interfere with important rights in the community, that the penalty fixed be sufficient to deter others that might be minded to engage in similar conduct. That is a matter which I must take into account here." (8) The legislature has also reflected the seriousness with which it considers such offences by prescribing custodial sentences as maximum penalties. In particular, the Copyright Act offences stipulate a maximum penalty of five years imprisonment on summary conviction: s 132(6AA) Copyright Act . (9) In the present case the appellant's high level of criminality is reflected in her role of infringing copyright and affixing false trade mark labels on a large number of pirated video cassettes, before renting these copyright-infringed items to the general public. The Section 16A(2) "Check List" Considerations (10) In addition to the principle of general deterrence, s 16A(2) of the Crimes Act provides a "check list" which the Court is to have regard to when sentencing an offender for a Commonwealth offence. Section 16A(2)(a): "The Nature and Circumstances of the Offence" (11) The offences for which the appellant pleaded guilty and was convicted are objectively serious, as reflected by the maximum penalties five years imprisonment for the copyright offences and 12 months imprisonment for the trade mark offences: see [6] above. (12) The appellant traded in the pirated videos by renting them to the public for monetary gain. The presence of the television and extensive video equipment in her home and the large quantity of copyright-infringed video cassettes (over 35,000) demonstrates the high volume commercial extent of her criminality. The fact that the appellant has previously been convicted of similar offences also negates any suggestion that this was an isolated or "one-off' offence. (13) The Court is entitled to take into account the context and surrounding circumstances of the crime. Although 11 representative charges were ultimately prosecuted and the appellant pleaded guilty to these, this Court is not limited to only considering the facts arising from just these charges. While this Court cannot rely on the surrounding circumstances to aggravate penalty and increase the sentence, it is entitled to take these factors into account in reaching the conclusion that this was not an isolated incident so there is no warrant to extend leniency: see Holyoak (1995) 82 A Crim R 502 (at 509 511) per Allen J (Handley JA and Hulme J agreeing). Section 16A(2)(c): "If the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character that course of conduct" (14) Under s 16A(2)(c) , the Court is entitled to take into account the fact that the offence forms part of a course of conduct consisting of a series of criminal acts of the same and similar character: Hamm v Middleton at [15]. (15) Prior to the search warrant being executed, undercover representatives of the copyright holder rented copyright-infringed videos from the appellant on three occasions. (16) This course of conduct serves to further demonstrate that the purpose of the appellant's possession of the copy-infringed items was to achieve a commercial gain for her own benefit. Section 16A(2)(f): "The degree to which the person has shown contrition for the offence: (i) by taking action to make reparation for any loss resulting from the offence; or (ii) in any other manner"; and s 16A(2)(g): "If the person has pleaded guilty to the charge in respect of the offence that fact" (17) The offences committed by the appellant were detected after the execution of a search warrant on her home on 7 February 2006 by the NSW Police. On 14 March 2006, the appellant was arrested and charged. After two court dates (27 April 2006 and 8 June 2006), the appellant entered pleas of guilty and was convicted and sentenced on 30 June 2006 at Liverpool Local Court. (18) The Crown acknowledges that the appellant's pleas of guilty to the charges occurred at a relatively early stage. By her plea, the appellant can be said to have "facilitated the course of justice" (otherwise referred to as the utilitarian effect): R v Ellis (1986) 6 NSWLR 603 at 604; R v Winchester (1992) 58 A Crim R 345. (19) However, the pleas of guilty entered by the appellant were made in circumstances where she faced an overwhelming Crown case, namely: &#8226; Just prior to the execution of the search warrant, the appellant had on three prior occasions rented out pirate videos to undercover representatives of the copyright holder, Status Investigations &amp; Security Pty Ltd; and &#8226; Over 35,000 copyright-infringed videocassettes (the large majority bearing the "TVB" trade mark) and recording equipment (19 video recorders and two television sets) were located in her home. Accordingly, the appellant's pleas of guilty must be seen in the context of an acknowledgement of the strength of the Crown case and a recognition of the inevitable: R v Winchester . Section 16A(2)(h): "The degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences" (20) The appellant has not cooperated in any way with the authorities in the investigation of the offences. Section 16A(2)(k): "The need to ensure that the person is adequately punished for the offence" (21) The following should be taken into account: &#8226; The strength of the Crown case. &#8226; The objective gravity of the offence. &#8226; The need for general deterrence. &#8226; The need for a strong subjective deterrence aspect. Section 16A(2)(m): "The character, antecedents, age, means and physical and mental condition of the person" Criminal antecedents (22) On 15 May 2002, the appellant was convicted on a number of Copyright Act infringement offences at Liverpool Local Court (see criminal history tendered on sentence). In relation to these offences, the appellant was placed on a good behaviour bond for two years with a self-surety of $500 and fined various amounts. Accordingly, the appellant cannot claim to be a person of good character. (23) In any event, the Courts have repeatedly held that less weight is accorded to good character for "white collar" or fraud-related crime where the need for general deterrence is strong: R v Thompson (1975) 11 SASR 217 (per Bray CJ at 222); R v El-Rashid (unreported, Court of Criminal Appeal, NSW, 7 April 1995); R v Williams [2005] NSWSC 315 ; R v Ronen and Ors [2005] NSWSC 991 ; R v Cooper [2006] NSWSC 609. The Appellant's Subjective Features (24) The appellant's subjective features are identified in two pre-sentence reports dated 22 June 2006 and 20 September 2006. She is a single mother aged 53 with two children, one being an autistic son now aged 20 who is living at a residential home and away from the appellant (see (26) (27) below). (25) At the time of the preparing of these reports the appellant was unemployed and receiving social security benefits. She does not suffer from any physical or mental health conditions. At the time of execution of the search warrant, the appellant was living in her mortgaged home. Section 16A(2)(p): probable effects of any sentence on offender's family or dependants (26) Section 16A(2)(p) of the Crimes Act requires the Court to consider the probable effects of any sentence would have upon the offenders' family or dependants. The applicable test is whether the family members will suffer "exceptional hardship" as a result of any sentence imposed when evaluated against the objective criminality of the offences: R v Maslen &amp; Shaw (1995) 79 A Crim R 199 at 209. (27) The appellant has a son aged 20 years old who has been diagnosed as having a "severe level of Intellectual Disability ... Autism Spectrum Disorder and a Mood Disorder." According to a report provided by the Department of Ageing, Disability &amp; Home Care dated 23 January 2006, the appellant's son had received treatment and accommodation from several residential health care centres. As at June 2006, the appellant reported in her pre-sentence report that "her son is currently residing in hospital care due to associated problems with having autism." (at page 1). Reliance on third party reports tendered at sentence (28) Considerable caution should be exercised in relying on reports containing hearsay material provided by an offender and such evidence should be given limited weight. Appropriate Sentencing Range (29) The proper approach to sentencing involves the weighing of all relevant factors in order to reach a conclusion that a particular penalty is the one that should be imposed. In doing so a court should avoid taking a mathematical approach in which there are increments to or decrements from a predetermined range of sentences. Such an approach departs from principle because it does not take into account the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. It is also wrong because singling out a circumstance and attributing to it a specific numerical or proportionate value distorts the difficult balancing exercise which the sentencing judge must perform: Markarian v The Queen [2005] HCA 25 ; (2005) 215 ALR 213 (per Gleeson CJ, Gummow, Hayne and Callinan JJ at [37] [39]); and Wong v The Queen [2001] HCA 64 ; (2001) 207 CLR 584 (at [74] [76]). (30) However, in a simple case where the circumstances of the crime have to be weighed against one or a small number of other important matters, some "indulgence" in an arithmetical process (legislative requirements apart) may be permitted. But as a general rule courts should no longer add or subtract item by item passages of time in order to fix the time an offender must serve in prison: Markarian at [39]. The Custodial Sentence Imposed by the Local Court (31) Pursuant to the Court's consideration of relevant provisions under Part 1 B of the Crimes Act and the principle of general deterrence, the objective seriousness of the offence, the repeal of s 16G of the Crimes Act and the applicable maximum penalties, the Magistrate at first instance was well within his discretion to impose concurrent full-time custodial sentences in relation to the six Copyright Act offences and five Trade Marks Act offences. (32) In imposing these penalties, the Magistrate had proper regard for the following principles: (a) the need for general deterrence; (b) the need for specific deterrence, in circumstances where the appellant had previously been convicted for similar offences under the Copyright Act ; (c) the objective seriousness and criminality of these offences and the legislative intent of Parliament; (d) the reduction in sentence for contrition (demonstrated by the early plea) is tempered by the strength of the Crown case and a recognition of the inevitable. (e) the subjective features of the appellant, including the medical condition of her son. (33) It is further submitted that the Magistrate's sentence of 12 months imprisonment as a head sentence with an effective custodial sentence of 8 months was within the permissible range. (34) While the penalties for the Copyright Act offences may be at the higher end of the scale, the Crown submits that they are not manifestly excessive, given that the allowable maximum penalty for offences under ss 132(6AA) and (6A) of the Copyright Act is five years imprisonment on summary conviction.