Police v Falevalu [2007] WSSC 63 (7 August 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

PUA JUNIOR FALEVALU
male of Satapuala and Aleisa.
Accused

Counsel: L M Su’a for prosecution
Accused in person

Sentence: 07 August 2007

Sapolu CJ

SENTENCE

The charges

The accused appears for sentence on five counts of infringement of copyright laid by the prosecution under ss.6(1)(a) and 27(1) of the Copyright Act 1998. The maximum penalty for each count is a fine not exceeding $25,000 or imprisonment for a term not exceeding five years or both. Section 27(1) provides that when fixing a fine the Court shall take into particular account the accused’s profits attributable to the infringement. To all five counts the accused pleaded guilty at the earliest opportunity.

The offending

According to the summary of facts, the accused on three different occasions reproduced and sold without authority the musical works of one Tolumaanave Misiluki Su’a, a well known local musician, who is the complainant in this matter. These musical works were in the form of a Compact Disc (CD) and were reproduced on a computer and sold by the accused to three different people at the price of $15 for each CD.

The summary of facts states that between November 2006 and March 2007 an individual named Taveta Aso approached the accused and asked for a copy of the complainant’s volume 34 CD (the CD). The accused then obtained the original CD and duplicated two copies. The accused kept one copy of the CD for himself and gave one copy to Taveta Aso for $15.

On a different occasion between November 2006 and March 2007 Taveta Aso approached the accused again and asked for another copy of the CD. The accused then gave the copy of the CD he had kept for himself to Taveta Aso for another $15.

On 26 January 2007, a different individual approached the accused and purchased from him a copy of the complainant’s CD for $15. On that same day, the said Taveta Aso informed the complainant that the accused has been reproducing and selling copies of his CD at the price of $15 per copy. The complainant then asked Taveta Aso to purchase a copy of the CD from the accused for confirmation. So on 29 January 2007, Taveta Aso and another individual each purchased a copy of the CD at $15 a copy from the accused. A copy was given to the complainant who confirmed it was a reproduction of his musical works. The matter was then reported to the police who seized three softwares already installed in the accused’s computer and a rewritable hardware device which had been used by the accused for reproducing the complainant’s CD.

The total amount the accused received from his unauthorised reproduction and sale of complainant’s CD was $75.

The accused told the Court that he sold copies of the complainant’s CD to only one person and that was Taveta Aso.

The accused

The accused is a 23 year old male of Satapuala and Aleisa. As it appears from the pre-sentence report, the accused has a wife who is seven months pregnant. He has had a good educational background and is presently employed as an accounts clerk earning a salary of $220 a week. After this matter was reported to the police, the accused went and apologised to the complainant’s wife who refused to accept the apology as the complainant was overseas.

Mitigating features

The accused’s plea of guilty at the earliest opportunity and the fact that he is a first offender are mitigating features.

The decision

In passing sentence in this case, it would be appropriate to look at the totality of the accused’s offending. There were five separate, unauthorised sales by the accused of the complainant’s CD though it was done on four separate occasions. I would also take into account the gravity of the offending and the need for deterrence in this type of case. It has been a matter of grave concern to our musical artists for a number of years that their works were being unlawfully reproduced and sold by others. With the ready availability of computers which can be used to reproduce musical works in CD form, the risk of copyright infringement of musical works has increased.

I would also take into account the total amount of $75 which the accused gained from his unauthorised reproduction and sale of the complainant’s CD. Likewise the accused’s personal circumstances which show that he has a wife who is seven months pregnant and that he earns $220 as an accounts clerk.

I would also take into account the accused’s plea of guilty at the earliest opportunity and the fact that he is a first offender. I am not satisfied from the material before the Court that the accused was conducting a commercial enterprise when he unlawfully reproduced the complainant’s CD.

After consideration of all these matters including the need for deterrence in this type of case, I agree with the submissions by the prosecution that the appropriate penalty in this case should be a monetary fine. In the cases of Lai-Ha v McCusker [2000] FCA 1174; Chen v NSW Police Service [2003] FCA 589; Peter Balasoglor Bell v The State of Queensland [2006] FCA 1788; the Federal Court of Australia imposed fines for what were far more serious copyright infringements than in the present case. The accused is fined $80 on each count so that he has to pay a total fine of $400. I would also order that the softwares and hardwares used by the accused in the reproduction of the complainant’s CD and which were seized by the police be produced to the Court for destruction.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution