Lai-Ha v McCusker [2000] FCA 1174

FEDERAL COURT OF AUSTRALIA

Lai-Ha v McCusker [2000] FCA 1174 CRIMINAL LAW – sentencing – appeal against penalty imposed for offences under s 132 of the Copyright Act 1968 (Cth) – where Local Court applied law in force after offences committed – sentencing principles – "totality" principle – whether sentencer required to review aggregate of a number of separate sentences of one defendant and determine if the aggregate just and appropriate – whether preferable to remit sentencing of defendant to the Local Court

Copyright Act 1968 (Cth) ss 132, 133 Mill v R (1988) 166 CLR 59 referred to KAM LAI-HA v LEANNE McCUSKER N 203 OF 2000 EMMETT J 3 AUGUST 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 203 OF 2000

BETWEEN: KAM LAI-HA

APPLICANT

AND: LEANNE McCUSKER

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 3 AUGUST 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be upheld in part. 2. The penalty imposed by the Local Court of New South Wales be set aside. 3. The appeal be otherwise dismissed. 4. The matter be remitted to DCM Jerram of the Local Court of New South Wales for reconsideration and determination of the penalty.

THE COURT NOTES THAT: 5. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 203 OF 2000

BETWEEN: KAM LAI-HA

APPLICANT

AND: LEANNE McCUSKER

RESPONDENT

JUDGE: EMMETT J

DATE: 3 AUGUST 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 I have before me a proceeding brought by Kam Lai-Ha, also known as Rebecca Kam ("the defendant"), by way of appeal from convictions by a Magistrate of the Local Court of New South Wales. On 27 July 2000 I indicated that I had reached the conclusion, having heard the parties, that the appeal against conviction should be dismissed. I then heard argument on the appeal against penalty. I adjourned the matter to today to enable the applicant to make further written submissions on the question of penalty. I have now received those further submissions and have heard further oral argument from the defendant and from the respondent. 2 The Magistrate imposed a fine in respect of each of the first seventeen summonses referred to in my earlier reasons. She also imposed a fine in respect of the first three of the other four summonses. The fine imposed was $1,500 in respect of each of twenty summonses, making a total penalty of $30,000. The Magistrate imposed a bond in respect of the twenty-first summons. The appeal in respect of that penalty has been withdrawn. 3 The Magistrate appears to have approached the matter on the basis of a misconception. She was apparently informed that the penalty for the offences in question was provided for by section 132(6A) of the Copyright Act 1968 (Cth) ("the Copyright Act"). Section 132(6A) provides as follows: "A person who contravenes subsection (1), (2), (2A), (3), (5), or (5AA) is guilty of an offence punishable on summary conviction by a fine of not more than 550 penalty points and/or imprisonment for not more than 5 years." 4 As indicated in my reasons of 27 July 2000, the convictions are for offences under section 132(1) and 132(2A). The Magistrate proceeded on the basis that a penalty point was worth $110. Accordingly, the maximum fine under section 132(6A) for each offence on that basis was $60,500. The maximum pecuniary penalty therefore was fines totalling $1,210,000. 5 However section 132(6A) was not inserted into the Copyright Act until 30 July 1998. The offences were committed some months before that day. At the time of the offences the penalty was provided for in section 133 of the Copyright Act. Section 133(1)(d)(i) provided as follows: "133(1) A contravention by a person of subsection (1), (2), or (2A) of section 132 is an offence punishable on summary conviction