Appeal Against Sentence For Counterfeit DVDS Dismissed: Ly v The Queen [2014] FCAFC 175
Thursday 15 January 2015 @ 10.34 a.m. | IP & Media
The Full Federal Court has dismissed an appeal against the sentence given in a County Court of Victoria case involving counterfeit DVDs. According to the case, "[t]he applicant appears to be the first person in Victoria to be sentenced on these offences to a term of immediate imprisonment." [at 119]. Mr Phong Ly had been sentenced to 12 months of imprisonment after being convicted of two offences, one under s 132AJ(1) of the Copyright Act 1968 (Cth) and one under s 148(1) of the Trade Marks Act 1995 (Cth). Mr Ly appealed against the sentence on eight separate grounds, all of which were dismissed by the Court.
Facts
The case was the result of several search warrants executed by the Australian Federal Police on three locations: “DVD World” – a shop owned by Mr Ly in Springvale South, another shop occupied by Mr Ly in Noble Park and Mr Ly’s home. They seized 216 Nintendo Wii games and 55,000 DVDs, two computer towers, seven DVD burner towers and five printers from the DVD World shop; another 4,000 DVDs from the Noble Park shop; and 2,300 DVDs and more DVD burners from the home. All DVDs were examined and catalogued, and the AFP concluded that:
“a small number of discs found at the Noble Park Shop were found to be genuine, but the overwhelming majority of discs seized from the three addresses bore the indicia of counterfeits” [at 13].
Mr Ly admitted he had “copied some DVD movies” [at 19] when interviewed by the AFP officers. He had previously been convicted of breaching copyright and trade marks laws.
Jurisdictional issues
The appeal hit an initial hurdle as the applicant originally filed for leave to appeal in the Court of Appeal of the Supreme Court of Victoria. Their Honours noted that:
“Regrettably, it appears that little attention was given by the parties to whether the Court of Appeal had jurisdiction to entertain the appeal” [at 2].
The Crown eventually concluded that the Federal Court had jurisdiction. In the circumstances, the Full Federal Court granted an extension of time to file the application for leave to appeal and leave to appeal.
Decision
Their Honours rejected all eight of the grounds of appeal, finding no errors in the judgment of the sentencing judge. They found that the sentencing judge had not proceeded on the assumption that all the DVDs seized were necessarily counterfeit (this was a disputed issue at trial). However, the “enterprise unquestionably involved counterfeit DVDs” [at 75] and their Honours decided:
“[i]t was open to the sentencing judge to have regard to the evidence of the uncharged conduct, including the possession of a large number of counterfeit DVDs (or DVDs bearing the indicia of being counterfeit) which were not the subject of the charges, in this way. His Honour did not err in any way in his treatment of the representative nature of the charges and the evidence concerning the DVDs not the subject of the charges” [at 84].
They also rejected an argument that the sentence was manifestly excessive, saying that “offences of this sort under the Copyright Act and Trade Marks Act are objectively serious offences… reflected in the fact that the legislature has seen fit to provide for a penalty of up to five years in prison for the offences” [at 122]. They also noted that "[t]he need for general deterrence is particularly acute in respect of offences, such as these, which are… difficult, time consuming and expensive to detect…” [at 122].
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Sources:
Ly v The Queen [2014] FCAFC 175
