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 ………………………… (d) if it is not the first conviction of the person of an offence by reason of a contravention of that section and the article or each article to which the contravention relates is an infringing copy of a cinematograph film: (i) if the person is a natural person - a fine not exceeding $1,500 for the article, or for each article to which the offence relates or imprisonment for a period not exceeding 5 years, or both;" 6 Under section 133(2)(b)(i): "133(2) Where a fine is imposed upon the person by virtue of subsection (1) in relation to an offence committed by the person and there is more than one article to which the offence relates: ……………………… (b) where the person is prosecuted before any other court – the fine imposed in respect of that offence shall not exceed: (i) if the person is a natural person - $10,000;" 7 Each of the first 17 summonses related to video cassettes in respect of the same cinematograph film. In some cases, the summons relate to only two video cassettes and in one case there are as many as eight video cassettes comprising infringing copies of the same film. There were in excess of 80 video cassettes involved in the 17 summonses. There was only one video cassette involved in each of the other four summonses. The informant accepts that, having regard to the way in which the summonses were framed, the maximum fine that should be imposed in respect of each summons is $10,000. That follows from section 133(2)(b)(i). 8 Several questions have arisen before me as to the appropriate principles to be adopted in sentencing in the present circumstances. One approach is to determine what would be an appropriate penalty in respect of each infringing video cassette. There would, of course, be a maximum of $1,500 in respect of each cassette and in respect of some of the summonses the imposition of that maximum would be restricted by the additional maximum of $10,000 per summons. 9 However, attention has been drawn to the principle of "totality" in sentencing. The effect of that principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is just and appropriate. 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". When cases of multiplicity of offences come before a court, the court must not content itself by doing arithmetic and passing the sentence that the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences: see Mill v R (1988) 166 CLR 59 at 63. 10 A question arises as to whether the application of that principle in the present circumstance would require that the maximum aggregate penalties that could be imposed should be limited to $10,000, having regard to the provisions of section 133(2). I am not presently persuaded that that is the effect of the application of that principle. However, I have formed the view that it would be preferable for this Court not to impose a penalty without having had the benefit of the consideration of that question by an experienced Magistrate, properly advised as to the applicable law. 11 I consider, therefore, that the appropriate course is to uphold the appeal in so far as it is an appeal against penalty and set aside the Magistrate's order imposing that penalty. I propose then to remit the proceeding to the Magistrate for further hearing and determination of the appropriate penalty in the light of my conclusion that the convictions should stand. The informant makes no application for costs and accordingly I will make no order. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 20 August 2000 Counsel for the Applicant: Mr J C Papayanni Solicitor for the Applicant: W Chan & Co Counsel for the Respondent: Ms M Cinque Solicitor for the Respondent: Director of Public Prosecutions (Commonwealth) Date of Hearing: 27 July & 3 August 2000 Date of Judgment: 3 August 2000