FEDERAL COURT OF AUSTRALIA Chen v NSW Police Service [2003] FCA 589 COPYRIGHT – Appeal from criminal conviction for infringement of copyright on severity of sentence where good behaviour bond with terms as to monetary penalty imposed. JIN HUA CHEN V NSW POLICE SERVICE N 397 OF 2003 JACOBSON J 13 JUNE 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 397 of 2003 BETWEEN: JIN HUA CHEN APPLICANT AND: NSW POLICE SERVICE RESPONDENT JUDGE: JACOBSON J DATE OF ORDER: 13 JUNE 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. There is to 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 397 of 2003 BETWEEN: JIN HUA CHEN APPLICANT AND: NSW POLICE SERVICE RESPONDENT JUDGE: JACOBSON J DATE: 13 JUNE 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal against the severity of a sentence given by a magistrate in the Local Court on a conviction for eight offences of copyright infringement under ss 132(1)(b) and 132(2A)(a) of the Copyright Act 1968 (Cth) ("the Act"). 2 The appeal is brought under s 131B(2) of the Act. It is well established that the Court's jurisdiction under this section includes appeals in criminal proceedings; see Lai Ha v McCusker [2000] FCA 1173 at [6] – [8]. 3 The applicant pleaded guilty before the magistrate to the eight offences. She was placed on a good behaviour bond for five years. Under the terms of the bond she was ordered to pay a pecuniary penalty of $1000 in respect of each of the eight offences, that is, a total of $8,000. 4 The magistrate ordered that the penalty was to be paid by monthly instalments of $100. Thus, the amount of the penalty will be payable over a period of slightly under seven years. 5 The magistrate also ordered delivery up under s 133 of the Act of two computers owned by the applicant and which were found to contain infringing films. 6 The penalty which was imposed was well below the maximum. Section 132(6AB) of the Act provided that a person contravening s 132(1) or s 132(2A) is guilty of an offence punishable on summary conviction by a fine of not more than 550 penalty units and/or imprisonment for not more than five years. Each penalty unit was an amount of $110 and, accordingly, the maximum fine for each offence was $60,500; see Crimes Act 1914 (Cth), s 4AA(1). 7 The facts of the matter were set out in a facts sheet which was tendered before the magistrate. 8 The facts sheet reveals that for a number of months prior to April 2002, investigators from the Australian Film and Visual Securities Office ("AFVSO") had covertly purchased a number of DVDs from a stall conducted by the applicant at the Penrith markets. The investigators examined the DVDs and found them to be in breach of copyright. 9 On 1 May 2002, search warrants were granted to the police. As a result, a large number of infringing items were obtained. 10 One of the warrants was executed at the applicant's brother's premises and this produced music CDs, DVDs, numerous blank disks, paperwork and business cards in the applicant's name. 11 The items located at the applicant's brother's premises, which he identified to the police as belonging to the applicant, included 411 "burnt" CDs containing infringing films. 12 The items seized from the Penrith markets included 49 DVDs which held infringing films and 11 "burnt" CDs containing infringing films. 13 The items seized from the applicant's premises included two computers which were found to contain files of infringing films. These were the computers which the magistrate ordered to be delivered up under s 133 of the Act. 14 The applicant was subsequently interviewed at Penrith Police Station where she admitted selling infringing copies of DVDs at the Penrith market but she stated that she had purchased them from another person at the Fairfield markets and had not produced them herself. 15 Importantly, she also stated that she knew the sale of the DVDs was illegal but that she needed the money in order to pay for her son's tuition fees. 16 Following the interview, the applicant was charged with 11 offences of copyright infringement. The first five charges covered the sale of DVDs by the applicant at the Penrith market on four occasions, namely 30 January 2002, 13 February 2002, 27 February 2002 and 24 April 2002. Charges 6 to 11 were for possession for sale of infringing DVDs obtained during execution of the search warrants. 17 Three of the charges were not proceeded with but it is not possible to tell why these charges were not pressed. Those which were not pressed were one of two offences of 13 February 2002, one offence of 24 April 2002 and one offence of 1 May 2002. 18 Nevertheless, it is plain that the offences to which the applicant pleaded guilty occurred on at least three separate occasions at her stall at the Penrith market. 19 Moreover, it is also plain that the volume of infringing material seized, the paperwork and business cards indicated that the applicant was conducting a commercial enterprise. This is also evident from the fact that two computers were seized containing infringing films. 20 The magistrate described the enterprise as a commercial one and I agree with that description. 21 The applicant, who appeared in person before me, endeavoured to put to me that the statement of facts in the facts sheet was inaccurate. She told me that the scale of the business was much smaller than the document would suggest but I do not consider that I can accept this submission. It seems to me that there is no basis for proceeding other than upon the footing that the facts sheet is accurate. 22 The applicant was represented before the magistrate by a barrister who was assisting legal aid in the Penrith Local Court on 17 December 2002. He addressed the magistrate on penalty. 23 In imposing sentence the magistrate took into account the fact that the applicant was conducting a commercial enterprise and that it was necessary to deter others from engaging in such activities. 24 The magistrate also applied his mind to what should be the total amount of the penalty, ie $8,000, and the applicant's means. He offered the possibility of payment by instalments and the transcript records that the applicant's counsel stated that he was instructed that his client would be in a position to pay approximately $100 per month. 25 In her submissions before me, the applicant did not put anything which had not been put to the magistrate by her counsel. 26 She told me that she was a single mother with an asthmatic son and that she has very little financial means. 27 However, I cannot accept these submissions as a reason for reducing the penalty. First, I note that there is no evidence as to the applicant's means. Indeed, the facts sheet suggests that her financial position is not as poor as she suggests. For example, the search warrants issued on 1 May 2002 included a warrant executed on two motor vehicles owned by the applicant, namely a Toyota Camry and a Nissan van. 28 Second, the magistrate expressly took into account the applicant's financial circumstances and her counsel stated on instructions that she was in a position to pay instalments in the amount which the magistrate ordered. 29 The magistrate looked at the totality of the criminal behaviour and asked himself what was the appropriate sentence for all of the offences. This was the appropriate way of considering the question; see Lai Ha v McCusker [2000] FCA 1174 at [9]. 30 The penalty which the magistrate imposed was at the bottom end of the range. The magistrate took into account the objective gravity of the offence and the subjective circumstances of the particular offender; see R v Morgan (1993) 70 A Crim R 368 at 371 per Hunt CJ. 31 The penalty which the magistrate imposed was consistent with others which have been imposed for this type of offence; see Hamm v Middleton [1999] FCA 777 per von Doussa J ("Hamm") and Ly v Jenkins (2001) 114 FCR 237 per Moore, Sackville and Kiefel JJ. 32 The applicant told me that there were two recent cases where persons were sentenced to penalties of $2, 000 to $5, 000 for what were said to be similar offences to hers. 33 There was no evidence provided to me of the facts of those cases. It is therefore impossible to tell what were the objective or subjective circumstances of those matters. Accordingly I cannot make any comparison of those matters to the present case. 34 Further, the magistrate was entitled to take into account deterrence as a legitimate factor in the determination of an appropriate penalty; see R v Wong (1999) 48 NSWLR 340 at [127] per Spigelman CJ and Hamm at [18]. 35 For all these reasons, in my opinion, the penalty which was imposed was a proper one. Costs 36 The respondent, very fairly, did not ask for costs and therefore I do not propose to make a costs order. I should add that the respondent took this position because if an appeal had been taken to the District Court, as it was before the matter was transferred by the District Court to this Court, the practice would have been not to ask for costs. I agree that the same approach ought to be taken here. 37 Accordingly, the orders which I propose to make are that the application be dismissed and that there be no order as to costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson . Associate: Dated: 13 June 2003 The applicant appeared in person. Counsel for the Respondent: Mr A L Hill Solicitor for the Respondent: NSW Police Legal Services Date of Hearing: 11 June 2003 Date of Judgment: 13 June 2003