Analysis and Conclusion
22 At the time of sentencing the appellant, the transcript records the Magistrate as having said:
"Ms Le you have pleaded guilty to the eleven charges that are before the court. Basically all associated with infringing copyright in one way or another, the possessing the devices for infringing copyright, selling items etcetera.
You are a person who has at this point a previous conviction for offences in the same area or previous convictions. You were dealt with extremely leniently on that occasion This is a large scale operation by you aimed at obviously making money for yourself at the expense of persons who are entitled to receive money from these goods.
There is little that can be said in your favour in terms of the operation that you were involved in. It was obviously a large scale commercial operation. The matters you rely upon in terms of hardship were basically hardship for your son. Matters I have some doubts about in terms of just how truthfully based they are and if they do have, I accept your son at nineteen is a person who is, with his medical problem, his autistic problem, is a person who needs permanent help and assistance but there is a system within our community that adequately addresses that and I do not consider the hardship type issues you have put to me here today are matters that I am going to place any great weight on.
Taking into account your previous matter and previous conviction in this area, the large scale operation involved that is reflected by these charges, I consider that gaol is the only option. I have considered all other appropriate penalties and I consider nothing other than full time gaol is the appropriate penalty and I note from the presentence report my options are fairly limited in relation to the type of penalty anyway if it is going to be gaol it cannot be periodic detention."
23 In Kovac, a Full Court of this Court said (at 642, 643):
"In Harris v R (1954) 90 CLR 652, the High Court considered an appeal against sentence under s 64(1) of the Papua New Guinea Act 1949 to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Court of the Territory. The court held that it would not interfere with a sentence of imprisonment imposed unless it was satisfied that the discretion exercised by the court imposing the sentence miscarried or was unsound or unreasonable in its exercise. In a joint judgment, Dixon CJ, Fullagar, Kitto and Taylor JJ cited with approval a passage from the decision of the High Court in Cranssen v R (1936) 55 CLR 509. In the latter case, after pointing out that an appeal against sentence is an appeal from a discretionary act of the court responsible for the sentence, Dixon, Evatt and McTiernan JJ (at 519) said: 'The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority;' Following this citation their Honours (at p 656) in Harris' Case added: 'It is not enough in applying those principles that the judges of this court should regard the sentence as greater than they themselves would have imposed'."
24 These principles were referred to again by another Full Court in R v Tait (1979) 24 ALR 473, following which the Court said (at 476):
"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v R (1913) 16 CLR 336 at 339-40; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v R (1928) 41 CLR 230 at 249; Griffiths v R (1977) 15 ALR 1 at 15-17)."
25 As indicated at [14] above, the appellant identified two errors in the sentencing procedure in the present case. The first was said to be a failure to consider all possible alternatives to full-time imprisonment, contrary to the provisions of s 17A of the Crimes Act. The difficulty with this alleged error is that, at the time of sentencing, his Honour said:
"I have considered all other appropriate penalties and I consider nothing other than full-time gaol is the appropriate penalty …"
In my view, this alleged error cannot be sustained.
26 The other error in the sentencing procedure identified by the appellant is the alleged failure of his Honour to apply and properly record the utilitarian discount given for a plea of guilty. In prefacing the imposed sentence, his Honour did refer to the appellant's guilty plea and was obviously mindful of it. It is just not possible to know to what extent, if any, his Honour took it into account in the exercise of his sentencing discretion.
27 I would not be prepared to interfere with the sentence his Honour imposed on the basis of this alleged error.
28 In my view, the only real question raised by this appeal is whether the nature of the sentence imposed, when considered in relation to the offences and the circumstances of the case, is so excessive as to manifest "convincing evidence" that in some way the exercise of the discretion has miscarried or is unsound. As the authorities to which I have referred make clear, it is not enough that I might regard the sentence as greater than what I would have imposed.
29 It appears to be common ground between the appellant and the Crown that no person convicted of the offences for which the appellant pleaded guilty and was convicted has been incarcerated in prison. Custodial sentences have been imposed but invariably have been effectively suspended by orders made pursuant to s 20(1)(b) of the Crimes Act directing the immediate release of the offender sentenced to imprisonment upon giving security, by recognizance or otherwise, to the satisfaction of the court, for compliance with the conditions referred to in para (a) of s 20(1).
30 However, those facts themselves do not lead to the conclusion that the sentence imposed on the appellant was so excessive as to manifest "convincing evidence" that the exercise of his Honour's discretion miscarried. Any such conclusion could only be reached by weighing those comparative facts against the maximum penalties as a measure of the seriousness with which the legislature views such offences - five years imprisonment for the Copyright Act offences - having regard to the principle of general deterrence, the need for specific deterrence particularly in the face of conviction for a past similar offence, rejecting as I do, the appellant's submission for discounting this factor for the media publicity this case received, and the scale of the illegal commercial operation carried on by the appellant. So weighed and measured, the sentence imposed by his Honour does not, on its face, exhibit the character of being so excessive that the exercise of the discretion is put in doubt.
31 I have come to the conclusion that I should not interfere with the term of imprisonment of 12 months for each offence to be served concurrently, however, I reduce the non-release period from eight months to three months on the same recognizance.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.