Hamm v Middleton [1999] FCA 777

Hamm v Middleton [1999] FCA 777

The offences were serious copyright infringements and required a penalty reflecting general deterrence and the defendant's course of conduct in running The Laser Disc Shop, but the offending fell at the lower end of the scale because these were first offences, the defendant was previously of good character, the case involved parallel importing rather than piracy or illegal copying, the importing was open and through recognised channels, and the defendant acted under a foolhardy but mistaken belief that the conduct was lawful. An overall fine of $4,500, divided among the three offences, together with costs on one matter and delivery up of the infringing discs, was appropriate.

Jurisdiction
Australia
Judgment Date
21 May 1999
Procedural Posture
Criminal Prosecution for Offences Under the Copyright Act 1968 (cth) / Sentencing After Guilty Pleas
Outcome
The defendant was convicted on all three counts, fined a total of $4,500, ordered to pay $400 in costs on SG 120 of 1998, and ordered to deliver up the infringing laser video discs to the copyright owners.
Legal Topics
['parallel Importing of Laser Video Discs' 'sale, Possession and Importation of Infringing Copies' 'delivery Up of Infringing Articles' 'general Deterrence' 'monetary Penalties']
['copyright' 'criminal Law' 'sentencing'] ['parallel Importing of Laser Video Discs' 'sale, Possession and Importation of Infringing Copies' 'delivery Up of Infringing Articles' 'general Deterrence' 'monetary Penalties']

Case Brief

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Procedural Posture

Criminal Prosecution for Offences Under the Copyright Act 1968 (cth) / Sentencing After Guilty Pleas

Legal Issues

  1. 1 ['What penalties should be imposed after the defendant pleaded guilty to being knowingly concerned in offences involving the sale, possession for sale or hire, and importation of infringing laser video discs.' "Whether the Court should take into account the defendant's broader course of conduct in operating The Laser Disc Shop when sentencing for the three charged offences." 'Whether the seized infringing laser video discs should be delivered up to the owners of the copyright concerned.']

Ratio Decidendi

The offences were serious copyright infringements and required a penalty reflecting general deterrence and the defendant's course of conduct in running The Laser Disc Shop, but the offending fell at the lower end of the scale because these were first offences, the defendant was previously of good character, the case involved parallel importing rather than piracy or illegal copying, the importing was open and through recognised channels, and the defendant acted under a foolhardy but mistaken belief that the conduct was lawful. An overall fine of $4,500, divided among the three offences, together with costs on one matter and delivery up of the infringing discs, was appropriate.

Court Disposition

The defendant was convicted on all three counts, fined a total of $4,500, ordered to pay $400 in costs on SG 120 of 1998, and ordered to deliver up the infringing laser video discs to the copyright owners.

Orders

  • ['In SG 120 of 1998, the defendant be convicted on one count for a contravention of s 132(2A)(a) of the Copyright Act 1968 (Cth).' 'In SG 120 of 1998, the defendant be fined the sum of $2,000.00.' "In SG 120 of 1998, the defendant pay the prosecutor's costs fixed at $400.00." 'In SG 120 of 1998, the fine and costs...