Pontello v Giannotis

(i) if the person is a natural person - a fine not exceeding $1500 for the article, or for each article, to which the offence relates or imprisonment for a period not exceeding 2 years or both;

Since there was a total of nine articles involved, the maximum monetary penalty which may be imposed pursuant to that section as it then was, is $13,500. It is necessary to have regard to the particular facts in this case. A large number of video laser films, which were genuine products of the copyright owners of those films, were found on the Gold Coast in premises with which Mr Searle was associated. Those discs were seized in September 1995. Informations associated with those discs were not issued until October 1996 and, as I indicated, Mr Searle was convicted in October 1998 in respect of one of the three informations which had been proferred in October 1996. I am told from the bar table, and it is not disputed, that Mr Searle was made bankrupt in July of this year with a deficiency of liabilities over assets in excess of $350,000. He is currently employed as a shop assistant at a very modest salary. He is 36 years of age, married, and is expecting a child in 1999. He has no previous convictions. The personal circumstances of the defendant therefore suggest that the Court's attitude to penalty ought be lenient. On the other hand, as the section makes plain by the possibility of imprisonment for the breach with which I am presently concerned, the information on which Mr Searle has been convicted is for a serious offence. I recognise that in this case - unlike Pontello v Ceselli (1989) 16 IPR 645, Pontello v Plenty and Pontello v Giannotis (1989) 16 IPR 174, where the offences in those cases concerned pirate copies - the video laser discs the subject of the information on which Mr Searle was convicted, are genuine articles which were the subject of parallel importation contrary to the provisions of s 132 of the Copyright Act. Moreover, it seems to me that not only is there interference with the proprietary rights of others for gain, the evidence here establishes that there was a deliberate flouting by Mr Searle of the provisions of the Copyright Act; a matter which the legislature by the penalties which it imposes for such a breach, indicates is to be regarded very seriously. As early as May 1993 Mr Searle had been advised of the provisions of the Act and the possible penalties that might be imposed for contraventions of it. On the evidence I am quite satisfied that he was aware that his conduct was unlawful and it was conduct that was embarked on for financial gain. The question then is how best to reflect the seriousness of the breach with the personal circumstances of the defendant. It seems to me not irrelevant in that question to consider the question of costs. Here the prosecution failed in two of the three informations it proferred against the defendant, and was successful, in the remaining information only in respect of a small number of articles compared with the number of articles which were the subject of the information. The circumstance that the company B.W. Searle Pty Ltd is in liquidation and Mr Searle is bankrupt are factors which also have to be considered. I think the costs order that I have to make has to reflect the fact that there has been a substantial failure by the prosecution in the charges that it brought against Mr Searle. Two of the charges failed completely. In respect of the third charge, the conviction was in respect of considerably fewer articles than the prosecutor had alleged. In the particular circumstances of this case, I think that a fair way of resolving the question of costs is that, in respect of all three proceedings, I should order that the defendant have one-third of its costs to be paid by the prosecutor, those costs to be taxed if not agreed. That is a broad-brush way of dealing with the question where in respect of two matters the prosecutor failed, and in respect of a third matter it succeeded; and I have, in a way quite favourable to the prosecution, set off the costs in respect of the two matters in which it failed against the costs of the one matter in which it succeeded. On the question of penalty to be imposed in respect of the charge on which the prosecution was successful, I have had regard to the observations and the penalties that were imposed in each of the three cases to which I have earlier referred. Having regard to the personal circumstances of Mr Searle and notwithstanding the serious nature of the offence and the deliberate flouting of the provisions of the Copyright Act that the conviction involves, I think, in the circumstances, that I ought to deal, as Shepherd J did in Pontello v Giannotis in proceedings QG189 of 1996, pursuant to s 20 of the Crimes Act 1914, Commonwealth. I order that the defendant be released without sentence being passed upon him, on his entering into a recognizance in the sum of $5000, on condition that he will be of good behaviour for a period of two years from today. I direct that the recognizance be taken before a Registrar of the Court. In respect of the offence alleged in proceedings QG189 of 1996 and in respect of which I, in my reasons of 23 October 1998, indicated that I was satisfied beyond reasonable doubt, I convict the defendant.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Solicitor for the Applicant: Commonwealth Director of Public Prosecutions