Case: AFP v Natcomp Technology Australia (unreported, Downing Centre Local Court, 18 July 2006)
Outcome: referred to
Crown also conceded before me that it had inadvertently misled his Honour when reference was made to a comparative case of AFP v Natcomp Technology Australia (unreported, Downing Centre Local Court, 18 July 2006). The Crown, when putting its submissions before the Magistrate, mistakenly stated that the penalty imposed in the Natcomp matter had been a total of $20,000, whereas in truth the total was $8,000. Mr Lancaster, who appeared for Interville, accepts that the concessions made by the Crown are correct, and accepts that the Crown misled the Magistrate, albeit quite inadvertently. I have before me the transcript of the proceeding before Magistrate McIntosh on 25 November 2008. His Honour dealt with the matter very late in the afternoon, after a lengthy day dealing with a large number of traffic offences. That is, of course, not to be taken as being criticism of his Honour, but rather it demonstrates the pressure under which the Magistrate was when he came to consider the question of sentencing. The transcript records that his Honour's initial reaction was to impose a fine of $7500 for sequence number 21 and $500 for each other matter. That would have brought the total sentence to a figure of $17,000. However, it was at that point that the Crown made reference to the Natcomp matter, and errantly described the total fine in the matter at $20,000. In light of this, the Magistrate said that he would "have to up the ante." His Honour then dealt with the matter, and made his remarks on sentencing which appear at pages 77 to 78 of the Appeal Book. I will not set out the remarks in full, but his Honour observed that these offences are becoming common in the film, television, and music industries, and call for heavy penalties to be imposed. His Honour observed that he was dealing with serious offences which call for heavy penalties to be imposed to "get the message out" that film and music piracy is not to be countenanced. His Honour took into account a number of matters which he was required to consider in determining the penalties to be imposed. His Honour took into account the fact that Interville had pleaded guilty at the very first opportunity; that copyright piracy was not the main part of Interville's business, which was the operation of an Internet caf&eacute;, and that the copyright infringements were "a by-product" of the business. His Honour also took into account the fact that he was asked to make a forfeiture order in relation to certain hardware, which was said to have a replacement value of $15,000. Moreover, he took into account the financial situation of the company which showed that it was a comparatively small business, with a net profit in its accounts for the year ending 30 June 2008 of approximately $21,000. As I have said, his Honour took into account in determining the penalty for sequence 21 the 20 matters set out in relation to section 16BA of the Crimes Act , and what he had been told about the effect of the decision in Natcomp . In considering the question of the severity of the sentence, I am required to have regard to the matters set out in Part IB of the Crimes Act and, in particular, the matters set out in section 16A. Section 16A(2) sets out a non-exhaustive list of matters which the Court is required to take into account.