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Butler v R [2023] NSWCCA 100

The offender was sentenced following a plea of guilty to 1 count of importing and selling goods where there is a registered trade mark on the goods without the permission of the registered owner contrary to s 148(1) of the Trade Marks Act 1995 (Cth). Original sentence imposed 2 years and 3 months imprisonment, to be released on recognizance after 1 year and 2 months. Offender appealed on the grounds that the sentencing judge failed to assess the applicant’s prospects of rehabilitation and risk of reoffending, and that they have a justifiable sense of grievance in relation to the sentence imposed upon them as compared with the sentence imposed upon their co-offender.

Rehabilitation: It could not be said that the applicant’s prospects of rehabilitation were either irrelevant or not known to the court. Not only was the question of rehabilitation relevant in the applicant’s sentencing, there was also significant material known to the sentencing court relevant to such a finding. The applicant specifically addressed factors relevant to s 16A(2)(n) before the sentencing judge. Despite this, the sentencing judge made no finding as to whether the applicant had good prospects of rehabilitation or not, despite making positive findings in relation to the other co-offenders. It is to be accepted that it can be difficult to sentence co-offenders at the same time when they have very different cases, but caution must be exercised to avoid a situation whereby in making detailed findings in relation to one offender, aspects of a co-offender’s case are overlooked.

Parity: The sentencing judge was satisfied that co-offender was the one who planned and initiated the scheme; that offender was their subordinate whose criminality was largely directed by the co-offender; that offender would not have been involved had it not been for co-offender; that co-offender became involved 3 months after the scheme was initiated; and that offender’s criminality after May 2019 was passive in that they were simply storing the items. There can be no doubt that although offender’s criminality was serious, the criminality of co-offender was objectively greater given that they had designed and orchestrated it and directed the co-offenders. Despite the findings made by their Honour as to their respective roles, offender received a longer term of imprisonment than the co-offender. There is nothing wrong in principle with one co-offender’s subjective case being so powerful that a lower sentence is appropriate even though his or her criminality is higher. But in offender’s case, having regard to all of the relative objective and subjective factors as between offender and co-offender, they have established, objectively, the basis for a justifiable sense of grievance.

Leave to appeal granted. Appeal allowed. Offender resentenced 2 years imprisonment to be released on recognizance of $1,000 pursuant to be of good behaviour for 11 months.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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