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DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH -v- NG, TRAN & LEE Contravention of Copyright Act 1968 Downing Centre Local Court 18th November 2003 REMARKS ON SENTENCE The three defendants before this court are charged with a number of offences in contravention of the Copyright Act 1968. Each defendant has entered a plea of guilty to each of the charges the gravamen of which involves the distribution of copyrighted material in the form of music through the use of an internet web site created and maintained by the defendant Ng and accessed for the purpose of further distribution of copyrighted materials by the defendants Tran and Le. No demurrer is taken with the statement of facts in relation to each defendant. The facts tendered in relation to the defendant Ng contain within them elements of aggravation. The Crown asserts that both Ng and Tran "knew that his activities would breach copyright and were illegal. As early as 15 October 2002 he considered in an e-mail to Tran the possibility of prosecution for breach of copyright and evinced disdain for the capacity of Australian authorities to successfully prosecute them. ,,1Elsewhere in the same statement of facts it is asserted that the defendant Ng had been warned by Optus on numerous occasions about copyright infringement and "was aware that downloading from the Internet or making infringing copies was illegal. ,,2They further assert that in order to avoid detection the defendant determined that all participants in the operation would use I Facts in matter ofCDPP -V- Ng p.5 2 Ibid p.5 nicknames. Clearly whatever may have been a possibly naIve involvement in the setting up and operation of this website became a course of reasoned and determined conduct to continue with known unlawful activity. From at least October 2002 the Crown in my view is entitled to rely on a degree of calculated pre-meditation to continue with the operation as an aggravating circumstance in the commission of the offences by Ng, and by association Tran and Le. I reject the assertion that the defendant Ng, and by virtue of the nature of the e-mail communication between him and Tran, that the totality of their conduct is attributable to nothing more than youthful bravado and was immature and poorly considered. Although the facts tendered in the case of Ng are silent on the volume and frequency of visits to his website 'the facts tendered by the Crown in relation to the defendant Tran assert that the website had been in operation for at least 12 months and according to the prosecution " was a significant distribution point for unauthorised copies of sound recordings. During the time it operated the Website had user traffic of over 7 million hits. ,,3. Those facts confirm that Tran was aware his activities needed to be hidden from Australian Internet Service Providers (ISPs), that he was familiar with ISP policies directed at preventing the operation of such sites, that he encouraged other people to download mp3 files and provided advice on how to accomplish that task...gave tutorials on how to upload information from the Website and helped to take preventative measures to ensure visitors to the Website could not follow a link to afile and 'steal it,4From the perspective of this court the involvement and manner of conduct of the defendant Tran also contains within it circumstances of aggravation agreement with Ng to continue involvement in known illegal copyright infringement. As the Crown submits, the level of criminality of Ng and Tran are similar in frequency and degree. The culpability of the defendant Le is accepted by the Crown to be less serious than that of his fellow accused. His involvement occupies a lesser period and although he too used his computer skills to produce a number of compilation recordings which were in turn provided to Ng and Tran for access through their web site and to an indeterminate number of other unnamed persons within the community and club industry there is no evidence of the level of overt premeditation in continuing a course of conduct in defiance of the law as exhibited in the behaviour ofNg and Tran. Nonetheless the activities of each defendant represent, 3 Facts in matter ofCDPP -V- Tran p.3 4 ibid p.6 2 by the very nature of their pleas of guilty an open acknowledgement of the inherent unlawfulness of infringing copyright. As the Crown says: " It is the view of the Australian music industry that the unauthorised distribution of musical worb causes great loss to the music industry. The copyright owners derive income from the sale of recordings in various formats, mostly CD format. The artists on the recordings derive income from the receipt of royalties from the sale of their recordings. It is the view of the Australian (and overseas) music industry that the distribution of unauthorised recorded music reduces the likelihood of sales of CDS,,5. The Crown further points out "that it is extremely difficult to prevent piracy of recorded music by the use of technology. It is also difficult to detect and identify persons involved in such piracy. ,,6 The preventative methods put in place by the defendants Ng and Tran, and by inference Le, through the use of nicknames corroborates the Crown's assertion in this regard. The Crown concedes it is impossible to quantify the real loss to the music industry. The reason for that is obvious. The asserted fact that there were 7 million hits on the defendants' websites does not necessarily equate with the downloading of 7 million recordings, nor (as I understand it) that each hit would be limited to downloading only one item. Calculation of precise economic loss is, would think, an impossibile task. The only sound inference that this court can draw for the purpose of sentence is that the loss to the music industry is significant, without attempting in any way to quantify it. In this regard I do not accept the submission made by counsel for the defendant Ng that "No evidence has been adduced or been led which has identified the loss which it is said that the industry has suffered as a result of the activities.. ,,7. The court is entitled in my view to draw on its own experience to conclude that the offer of access to popular music (however that may be defined) free of charge is likely to be a highly persuasive motivator for those sections of the community who know of and visit Websites such as these with the same level of scant regard for breaching copyright as shown by each defendant. The difficulty lies in the quantification of loss with exactitude not the acceptance of the reality of significant loss. It is also in my view, prevention of the potential for loss towards which the Copyright Act 1968 is directed and in relation to which the principles of general and special deterrence assume particular importance within the sentencing exercise, not to 5 Statement of facts CDPP -y- Le p.3 6 Statement of facts CDPP -y- Ng p.6 7 Defence counsel submissions on behalf ofNg p.5 3 the exclusion of the other two generally accepted main principles of retribution and rehabilitation but in furtherance of the legislative intent that this type of conduct be discouraged within the community. The sentencing of these defendants, although undertaken in a state Court takes place within the purview of Commonwealth law. The general principles on sentence are set out in Section 16A of the Commonwealth Crimes Act 1914. Although this Court is well familiar with those principles and would not ordinarily re-state them in full on sentence the public interest in these proceedings persuades me to the view that I should formally place them on the record and include them as an addendum to this judgment so that the media may become better informed as to the many and varied heads of consideration a court is required to take into account at this time. Inasmuch as these provisions express the legislative intent of the Federal parliament they express the approach of the community and it is perhaps not inappropriate for this Court to attempt, yet again to inform the community that Courts sentence by reference to the law not to the loudest or most strident, and invariably ill informed voice promoted through the various forms of media. I have taken the view of the need to express this reality before proceeding to the detail of sentence because of what I perceive to be the level of community interest in the outcome of these proceedings. Section 16A of the Act is expressed in the following terms: ( see annexure) Clearly the nature and circumstances of these offences have already been referred to in my earlier remarks and do not bear repeating. They form part of continuous course of conduct of similar behaviour taking place over a lengthy period of time. The personal circumstances of the victims, in this case the community, which is entitled to have people pay due regard and respect for the laws which govern good order within society is embraced within this terminology. So too a discrete section of the community in the form of the music industry, made up of artists, producers, distributors and retailers. It should not be forgotten that the breach of a copyright which deprives the artist and producer of a level of income also has a consequential effect throughout the commercial sector of society. Every level of the music industry depends upon a profitable return to maintain its viability and to employ persons within that particular sector of society. Whether it be the original artist or the truck 4 driver who delivers the copies to legitimate retail outlets or the shop assistant who sells the finished product for a market driven price, the pirating of copyright drills down deeply within the economy and has the capacity, where it occurs on a grand scale to work a significant disadvantage to society. It is trite to say that no one greatly suffers as a result of this type of behaviour or "that everyone is doing it" .That is not to the point. Subsections (d) and (e) make the impact of these offences a relevant consideration. In the case of each of the defendants their pleas of guilty are accepted as genuine and indicative of contrition. This is despite the equivocation expressed within the respective pre-sentence reports as to their lack of knowledge of the illegality of their conduct which is directly contradicted by the Crown's statement of facts. The court is prepared to accept that those ill founded comments to the Probation service represent nothing more than the general approach of persons guilty of criminal offending behaviour, particularly the very young, to seek to rationalise or self justify their conduct. I am prepared to accept as I have said the pleas entered at an early stage in these proceedings as attracting the appropriate level of discount on sentence and that those pleas will be of significant relevance in the final determination. The bravado spoken of by Counsel for the defendant Ng I have no doubt dissipated with immediacy when it became clear that despite his arrogant disrespect for both the law and law enforcement agencies, his legal predicament became apparent. So too I suspect with the other defendants. It often comes as a great shock to people to find that they are neither above nor beyond the reach of the law. Such a reality should be well and truly taken on board by others within the community who are either involved in or contemplating involvement in similar activities. Each of the Pre-Sentence reports highlight what appears to be a genuine level of concern as to the prospective outcome of these proceedings. There is no doubt the prospect of imprisonment is greatly, and with justification, held in fear for despite the entry of pleas of guilty the focus of the Crown and defence counsel has been on imprisonment and general deterrence as the appropriate focal considerations urged upon this coUrt. The Crown in its helpful and detailed submissions on sentence for each offender has referred this court to a number of analogous decisions dealing with breaches of copyright both within Australia and the United Kingdom. I propose to 5 deal firstly with those in the United Kingdom and to also refer to the results of my own research in relation to analogous proceedings within the United States of America. Each of the legal systems within the respective countries are comparable with that existing within the Commonwealth of Australia and each provide a measure of assistance so far as the general approach taken to offences of this type. In Christopher Lewis [1997]1 Cr. App.R (8) 208 The Court of Appeal reduced a sentence of imprisonment of27 months to 12 months on the basis of an early plea and good character for offences similar in nature, involving the downloading and distribution of computer games over a three month period. In those proceedings the court had a discrete quantification of the economic loss which this court would have to say, appears inferentially less than that involved in these proceedings. In allowing the appeal and reducing the sentence however the Lords of Appeal re-affirmed the need for deterrence. In these proceedings it should not be lost sight of that the course of conduct, particularly by the defendants Ng and Tran took place over a much longer period of time. In the appeal of Neville Emmanuel Gross [1'996] 2 Cr. App.R (8) 189 a sentence of imprisonment of2 years was reduced by the Court of Appeal to 12 months for making copies of videotapes on a commercial scale and in circumstances where the appellant had been previously convicted of similar conduct. In the course of delivering its judgment the Court of appeal said: "It was apparent from the sentencing remark., that Judge Lockhart clearly understood the nature of this enterprise. It was as he rightly remarked an operation which had tremendous potential for profit, which required a great deal of investment effort and planning. The appellant would have gained greatly had he not been caught and the industry and public would have been the losers. He said it was behaviour for which only a custodial sentence could be justified, particularly in light of the conditional discharge imposed for offences on a much lesser scale but a few months earlier. He also observed that this was a growing and illegal method of trading. This Court agrees with all those remark.,. " In reaching its conclusions the Court of Appeal expressly endorsed its earlier approach in the matter of Paul Geoffrey Kemp [1995] 16 Cr. App. R. (8) at 941 confirming the approach on sentence which should be one of imprisonment. In the 6 appeal of Ian Dukett [1998] 2 Cr. App.R.(S) at 59 in course of delivering its decision the Court said at p.60 : "Infringement of copyright is widespread. It does, in an ethical sense, involve stealing other men's property, and in its cumulative effect is able to cause serious damage to legitimate commercial and proprietorial interests. Although the applicant did not engage in this dishonest business in a substantial way, his damage and those of many like him contribute to the damage to which we have referred. A serious view is to be taken of the distribution by way of business and the recording for such distribution of pirated material which if bought legitimately would cost substantial sums of money. " It is clearly the case that so far as English law is concerned, the general approach appears to be one where imprisonment presents as the most appropriate outcome for this type of activity, the length of imprisonment varying, as would be expected, with the objective seriousness of the conduct within these categories of offences and the antecedents of the offender. The position in the United States appears to mirror that in the United Kingdom. Without going into the particulars of each case in detail, my research has been confined to identifying a general approach and confirms that the overwhelming response within that country has been to impose terms of imprisonment for this type ofbehaviour.8 This court has also been referred by the Crown to the decision of the Federal Court in Hamm -v- Middleton 44 IPR 656. In that decision Von Doussa J. imposed a penalty of $4500 for 3 offences against the Copyright Act 1968. In the course of delivering his decision His Honour re-emphasised the need to provide for general deterrence and to sentence on the principle of totality. The Court adopts both those observations in the context of these proceedings. It will be abundantly clear by now the focus of this court on sentence approaches that urged upon it by the Crown. It certainly does not embrace the submission by Mr. Bazzi on behalf of the defendant Le that his culpability is amenable to disposition by the non recording of a conviction pmsuant to Section 19B of the Commonwealth Crimes Act. Whilst the level of his conduct is said to be of lesser seriousness than that of his co accused it is nonetheless conduct which falls within the parameters of 8 http://www.cybercrime.gov/ipcases.htm 7 consideration by courts within the common law world as justifying consideration of the imposition of a gaol sentence. To acquiesce in a submission for such lenience would be in my view to fall into appellable error. As the Court of Criminal Appeal said in Regina -v- Home [1999] NSWCCA 391 in allowing a Crown appeal against inadequacy of sentence "Misguided judicial kindness thus becomes unintended cruelty ". No court should sentence oblivious to the right of the Crown to challenge the appropriateness of the sentence and this Court does not intend to do so. I reject Mr. Bazzi' s submission on behalf of his client. What then is the appropriate sentence? Clearly this must be determined by reference to a "reasonable proportionality between a sentence and the circumstances of the Crime and to have regard to the gravity of the offence viewed objectively. Each crime As Veen (No.2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity. ,,9 The court has already referred to the objective seriousness of the offence. It needs no restating. What does need restating in order that there be no misapprehension as to the manner through which this court seeks to arrive at a just sentence are the principles enunciated in R. -v- Rushby [1977] 1 NSWLR 594 where Street J. said at 597: "The law upon the matter of sentencing is well stated in the judgment of the Court of Appeal in New Zealand in R., -v- Radich a passage which has been cited in other judgments on numerous subsequent occasions: ' one of the main purposes of punishment... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will be met with severe punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe of punishment does, and will prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment or with only a light punishment. If a court is weakly merciful and does not impose a sentence commensurate with the seriousness of a crime it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand justice and humanity both require that the previous character and conduct and probable future life and conduct of the individual offender and the effect of the sentence on these should also be given a most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment. " 9 Regina -v- Whyte [2002] NSWCCA 343 at par .157 R The maximum penalty for each of the offences before me is 5 years imprisonment or a fine of 550 penalty units. Clearly the legislature regards the offences as serious. It would also appear that the penalties provided in the Commonwealth of Australia are greater than those applicable in analogous legislation in the United Kingdom. This is a factor to be borne in mind when considering the relativity of the sentences dealt with within the Court of Appeal in the United Kingdom referred to earlier in this judgment. It is one of the reasons why this Court has indicated that it is concerned only with the general approach taken in other jurisdictions rather than the discrete sentences imposed. In these matters the Crown mges the court to impose terms of imprisonment. This may not be done on a whim, as indeed it never can be in any court exercising federal or state jmisdiction. Imprisonment is described as the option of last resort. Section 17 A of the Commonwealth Crimes Act requires the Court to consider all other available sentences and not to impose a term of imprisonment "unless it is satisfied that no other sentence is appropriate in all the circumstances ". It is clear from the decision of the Federal Court in Hamm -v- Middleton (supra) that imprisonment is not the inevitable outcome of offences under the Copyright Act 1968. That reality is confirmed by the decisions of the Federal Court in Kam Lai-Ha -v- McCusker BC 200004929 and Jin Hua Chen -v- NSW Police Service BC 200302971 wherein fines were determined to be an appropriate penalty having regard to the circumstances of those offences. However, in the context of these proceedings the court is of the view that the offending behaviom far outweighs the objective seriousness of those other decisions of the Federal Court. It is also of the view that the persuasive natme of the authorities to which I have been referred requires the court to consider sentences of or in the natme of imprisonment. In arriving at such a conclusion I am mindful of the relative youthfulness of each of the offenders. Generally" Youthfulness of an offender is a recognised mitigating factor. Generally the younger the offender the greater the weight that should be given to the element of youth. However, youth cannot be used as a cloak of convenience in order to shelter from accepting proper responsibility for criminal behaviour"lo. The 10 Sentencing Manual Judicial Commission ofNSW p.279 9 commenced so too, given the widespread publicity given to these proceedings has general deterrence. It remains however for the court to determine what its contribution should be towards re-affirming the principles of retribution, deterrence and rehabilitation. That may be shortly stated. Despite the pleas of guilty and the youth of the offenders, despite the strong likelihood of successful rehabilitation, despite the acceptance by this Court that there was no commercial gain received by any of the defendants the objective seriousness of the conduct for the reasons to which I have already adverted in terms of its impact upon the community and the need to emphasise general deterrence the imposition of a custodial outcome on the two principal offenders, Ng and Tran, is warranted. It remains to determine, having regard to the totality of the conduct measured against the penalties available for the offence how such sentences should be imposed. I am told, and accept that the jurisdictional limit of this Court is not constrained by the State limit of two years. Even if it were the principles set out in R. -v- Doan would have required me to sentence against the maximum penalty not the jurisdictional limit. In determining the length of any term of imprisonment I am obliged in my view to evaluate the worth of the plea of guilty by each defendant. Suffice it to say each defendant appears to have been full and frank with authorities from the very beginning. I would in such circumstances give full value in terms of a discount for the plea of guilty and the age of the defendants and equate it at 33%. The objective seriousness of the offences, although serious cannot be said to be at the highest level of offences of this nature. Without the benefit of contrition, good character and the utilitarian value of the plea a sentence in the order of2-2.5 years would in my view be justified. As a consequence in so far as the offences of distributing the copyrighted 10 material are concerned and having regard to the objective seriousness of those offences I have come to the view that the appropriate sentence of imprisonment for the offenders Ng. And Tran is one of 18 months. For the offences of aiding and abetting the defendant Le in his involvement it is my view that the defendant Ng should receive identical sentences. In that regard note the Crown does not seek a custodial outcome, a factor I am bound to take into account. I shall return to this issue shortly. In coming to a conclusion that sentences of imprisonment are warranted for the offenders Ng and Tran I am further required to consider the manner in which they should be undertaken. It has been urged upon me by counsel for both defendants that such sentences should be suspended. In support of those submissions I have been infomled of the ages of the defendants and those subjective features in their background conducive to long teml rehabilitation which support such an outcome. The suspension of a sentence of imprisonment is an option available under the Commonwealth Crimes Act. It is a sentencing option not readily understood by the general public (including the media). In the case of Christin Robert Dinsdale [2000] HCA 54 the High Court said: 'I The question of what factors will determine whether a suspended sentence will be imposed once it is decided that a term of imprisonment is appropriate is presented starkly because in cases where the suspended sentence is served completely without re-offending the result will be that the offender incurs no custodial punishment indeed no actual coercive punishment beyond the public entry of a conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law and this statement is given credence by the terms and structure of the statute. However in practice it is not always viewed that way by the public, by victims of criminal wrong doing or even by offenders themselves. This disparity of attitudes illustrates the tension that exists between the component parts of this sentencing option: the decision to impr5ison and the decision to suspend." In Regina -v- Zamagias [2002] NSWCCA 17 the Court of Criminal Appeal also addressed the issue of suspending a sentence of imprisonment and said: "A sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognized that the fact that the executi80n of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question whether any particular sentencing alternative including a 11 Suspended sentence is an appropriate or adequate form of punishment must be considered on a case by case basis having regard to the nature of the offence committed the objective seriousness of the criminality involved the need for general deterrence or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to ob serve that although the purpose of punishment is the protection of the community that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate " Mindful of those observations I take into account the factor which separates the conduct of these two offenders from that of other cases to which I have been referred, namely the lack of commercial gain. That factor together with the you7thfulness of the offenders persuades me to the view that whilst imprisonment is warranted, the sentences should be suspended. For the offences of distributing the copyrighted material the defendants Ng and Tran are sentenced to imprisonment for a period of 18 months, representing the totality of the conduct. The execution of the sentences are suspended immediately upon entering a bond pursuant to Section 29(1)(b) in the sum of one thousand dollars to be of good behaviour for a period of 3 years. Should either offender breach the good behaviour bond they will be called back before this court. It a breach is as a result of a return to the sort on conduct wh8ch brings them before the court today they can b e assured that the inevitable likelihood is they will be sent to gaol full time. Turning to the offences involving the defendant Le and the conduct of the defendants Ng in aiding and abetting hymn in the commission of those offences, I have taken into account the indication given by the Crown and those other factors by counsel for each defendant submitted on the plea. It is the view of this court that each defendant should be sentenced in identical terms for those offences. It is the further view of this Court that the offences should be served by way of the performance of community service. Community Service has been expressed by the legislature to be a form of imprisonment albeit one which enables the offender to serve such sentence outside of prison and within the community to repay the debt accrued as a result of the commission of the offence. It seems to me to be an appropriate outcome given the nature of the conduct. Each defendant Ng and Le, again applying the principles of 12 totality, is sentenced to undertaken 200 hours community service. Two hundred hours community service is deemed to equate with 12 months imprisonment. If it is not performed fully and satisfactorily it lies within the capacity of the court to reinforce the offender's obligation by calling him back before the court and proceeding according to law. For that purpose they are to report to the relevant probation service within 7 days. In ordinary circumstances the defendant T4ran would receive the same sentence. However, as the pre-sentence report indicates, he is considered medically unfit to undertake community service. The law requires me in such circumstances to go down the sentencing hierarchy. In substitution for what otherwise would have been an order for community service the defendant Tran is convicted on the charges of aiding and abetting the distribution of copyrighted material and ordered to enter a bond pursuant to the provisions of Section 20 of the Crimes Act 1914, self in the sum of $1000 to be of good behaviour for the next three years and to pay a pecuniary penalty in the sum of $5000.