Charles Ng and Peter Tran were each sentenced to 18 months imprisonment, suspended for three years on a AU$1,000 good behaviour bond. Deputy chief magistrate Graeme Henson told a packed court room at the Downing Centre Local Court in Sydney this afternoon that the lack of monetary gain by the defendants, the youthfulness of the accused and the early plea of guilty were factors in suspending the custodial sentence.
The counsel for Ng, Chris Levingston, earlier told the court that Ng's crime was "committed in plain sight". "This is a crime which is extremely common, relatively hard to detect, and with substantial penalties for people who engage in this activity," said Levingston. "Mr Ng was a scavenger, he was not a person who set out to break the back of the music industry."
Ng was contrite, and eager to recommend to people considering activities similar to his to refrain from doing so, said Levingston.
The counsel for Tran, Michael Burke of Marsdens Law Group, earlier told the court there were strong prospects for rehabilitation, and emphasis should be placed on that. Burke also pointed out that Tran is 19 years old, and was legally a minor when the illegal activity began two years ago. "This was no exercise to gain profit from the music industry," said Burke.
Tommy Le, who had created compilation albums and distributed them on the MP3 WMA Land Web site - and for whom the Commonwealth Department of Public Prosecution (CDPP) had not sought a custodial sentence - was sentenced to 200 hours community service. For aiding and abetting him in this Ng was also sentenced to 200 hours community service. Tran, who had entered a medical certificate indicating he was medically unfit for such service, was fined AU$5,000 and placed on a AU$1,000 good behaviour bond for three years.
Michael Speck, the general manager of Music Industry Piracy Investigations (MIPI) who submitted evidence to the CDPP, labelled the decisions "curious".
"The court portrayed copyright infringement as a most serious crime but then chose not to jail these men," Speck told ZDNet Australia . "I wonder how much music you need to steal before you go to jail? Certainly if you'd gone into a shop and stolen this much music there'd be no question of jail."
Phil Tripp, managing partner of Immedia who yesterday released the results of a survey showing many in the music industry disagreed with the current copyright law, told ZDNet Australia the sentence would not scare anyone.
"The seriousness of the crime is such that a suspended sentence is a slap in the face of the industry and a slap on the wrist for the defendants," said Tripp.
The solicitors representing the defendants believed deputy chief magistrate Henson considered all the aspects of the case when handing down his judgement. "The beauty of having a senior magistrate is that he did take everything into account," Burke told ZDNet Australia . He said the sentence was severe enough to be a deterrent while being compassionate enough on a subjective level to the individuals involved.
In the judgement Henson referred to several cases in the US and UK where custodial sentences were handed down, although he pointed out that this was not the only way in which copyright infringing acts were dealt with. He also noted this case was different to those cited in that there was no monetary gain by the defendants.
Relations between MIPI and the CDPP turned frosty, with the music industry agency formally withdrawing its application for costs associated with the trial - in which it sought reimbursement for costs related to witness expenses and preparing documents such as statements - citing confusing messages from the Commonwealth Director of Public Prosecutions (CDPP).
"This series of mixed and inconsistent messages received from the CDPP and the way and timing in which they were delivered, leave the victims with no reasonable alternative but to withdraw this application," said Speck in his affidavit on the issue.
"Charles Ng and Peter Tran were each sentenced to 18 months imprisonment, suspended for three years on a AU$1,000 good behaviour bond"
Next time guys just bash some poor elderly pensioner over the head and steal their pension cheque as you'll get a third of the punishment - unless of course that pensioner was related to someone like Michael Speck, the general manager of Music Industry Piracy Investigations (MIPI) who submitted evidence to the CDPP.
Is it any wonder why more and more people see the legal system as an extension of big business for getting what they want?