Case: Kam Lai-Ha v McCusker [2000] FCA 1174 ; (2000) 49 IPR 44
Outcome: followed
third decision to which Interville referred was the decision of Emmett J in Kam Lai-Ha v McCusker [2000] FCA 1174 ; (2000) 49 IPR 44 at [9] . There, Emmett J observed that when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total it is always necessary for the Court to take a last look at the total to see whether "it looks wrong." The Court must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all of the offences. His Honour there referred to the decision of the High Court in Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 63, where the High Court made reference to the principle of totality stated in the leading text of Thomas, Principles of Sentencing. It seems to me that in the present case, the essential error which was made by the Magistrate was that his Honour failed to have regard to the principle of totality. His Honour took into account most of the matters which were put to him by Mr Lancaster, but he fell into error, albeit inadvertently, at least in part because of the inadvertent mistakes made in the submissions of the Crown. One of the matters which the learned Magistrate failed to take into account was the publicity which was given to Interville's offences. Mr Lancaster asked me to take that into the account on the question of deterrence. Whilst it has some bearing, it seems to me that I must, in accordance with the well-known principles referred to above, give some weight to the need for the factor of general deterrence to be taken into account in determining the appropriate penalty, notwithstanding the deterrent effect of the publicity. The Magistrate was also asked to take into account the fact that changes had been made in the administration and conduct of Interville's business. It appears that his Honour had regard to this. It is also important to bear in mind that Mr Phae is now, and was at the time when the matter came before the Magistrate, the only operating director. The other director, Mr Lee, had resigned from the company, and Mr Phae had implemented measures to prevent a recurrence of the offences. These measures included steps taken to prevent downloads and education of staff members. Mr Lancaster also asked me to take into account the fact that the company is not a large company, and that whilst the offences are to be dealt with upon the basis that the company is a corporate offender, I should approach the matter upon the basis of the size of the company. However, this raises a point to which the Crown referred, namely, that in the case of personal offenders, there is a greater range of punishments, which include imprisonment and community service. I therefore have to take this into account in assessing the appropriate penalty. Mr Lancaster accepted that the offence is a serious one. He submitted that the figure initially contemplated by the Magistrate of $17,000 was an appropriate approach because it starts with the $33,000 maximum figure and applies the relevant discounts. He also submitted that the figure of $500 per additional offence was appropriate. On the other hand, the Crown submitted that the sequence 21 offence should carry a larger penalty and that the other penalties of $2000 for sequences 22 to 40 were within the range and should remain. In my view, taking into account all of the matters which have been put to me this morning, the approach which I ought to take is that to which Emmett J referred in Kam Lai-Ha . I think this exposes the error in the Magistrate's reasoning and I would have thought that taking all these matters into account the appropriate penalty ought to be $30,000. In arriving at that figure, I have determined that the appropriate penalty for sequence 21 should be $20,000 and that the amount for each of sequences 22 to 40 should be $1,000. This would bring the total to $39,000 but I will reduce it to $30,000 because, in my view, to order more than $30,000 in total would "look wrong". In coming to this view I have taken into account the fact that Interville has incurred additional legal expenses as a result of the Magistrate's inadvertent error. I do not think it is necessary to engage in a mathematical exercise for the reasons that I have referred to above.