Ly v The Queen [2014] FCAFC 175

FEDERAL COURT OF AUSTRALIA

Ly v The Queen [2014] FCAFC 175 Citation: Ly v The Queen [2014] FCAFC 175

Appeal from: DPP v Ly [2014] VCC 1514

Parties: PHONG LY v THE QUEEN

File number: VID 715 of 2014

Judges: KENNY, BENNETT AND WIGNEY JJ

Date of judgment: 17 December 2014

Catchwords: COPYRIGHT – offence under s 132AJ(1) of the Copyright Act 1968 (Cth) – possession of infringing DVDs with the intention of selling – penalty imposed TRADE MARK – offence under s 148(1) of the Trade Marks Act 1995 (Cth) – exposure of goods for sale without the permission of the registered owner of the trade marks applied – penalty imposed PRACTICE AND PROCEDURE – appeal against sentences imposed by a Judge of the County Court of Victoria under s 132AJ(2) of the Copyright Act 1968 (Cth) and under s 148(1) of the Trade Marks Act 1995 (Cth) – jurisdiction of the Federal Court under s 131B(2)(a) of the Copyright Act 1968 (Cth) and s 30AA of the Federal Court of Australia Act 1976 (Cth) to hear and determine an appeal against sentence imposed under s 132AJ(2) of the Copyright Act 1968 (Cth) – associated jurisdiction of the Federal Court under s 32 of the Federal Court of Australia Act 1976 (Cth) to hear and determine an appeal against the sentence imposed under s 148(1) of the Trade Marks Act 1995 (Cth) – application for leave to appeal under s 30AB of the Federal Court of Australia Act 1976 (Cth) – leave granted CRIMINAL LAW – sentencing – appeal against severity of sentence – representative counts – whether the sentencing judge breached the principle in The Queen v De Simoni – whether the sentencing judge denied the applicant procedural fairness in making a finding concerning the applicant's motivation – whether the sentencing judge erred in making other factual findings – whether the sentence was manifestly excessive