74 years old. Unblemished record. Suffering from atrial fibrillation, prostatomegaly, gastritis, stress, anxiety, depression, poor memory, impaired sense of smell, impaired hearing and tinnitus. Sentenced to 18 months imprisonment … for manufacturing Ugg Boots.
Tabloid news shows might contend that this scenario is unjust, contrasting it to examples of lesser sentences delivered to people said to be far more deserving of punishment (probably without any reference to the mitigating factors at play in those cases). However, rather than being sensationalist, it’s important to take an objective look at the issues relevant to sentencing in intellectual property disputes.
It is rare to see any term of imprisonment handed down for manufacturing counterfeit products. Such conduct is generally met with a fine, an award of damages and/or an injunction and costs. But this case went beyond intellectual property infringement; the court had ordered various people to cease manufacturing or selling sheepskin footwear bearing the “UGG” logo. Contravening court orders amounts to contempt of court, which is criminal in nature. As discussed in our previous post, three of those people had already been found guilty of contempt and had recieved 3 year, 12 month and 3 month sentences.
Josef Vaysman (described above) was sentenced to 18 months imprisonment (12 of which were to be suspended conditional on continued compliance with orders of the court). Josef’s appeal against the severity of the sentence was based primarily on his age, poor health, the view that the sentencing judge did not properly consider alternatives to imprisonment and parity of sentencing. Now, the Full Court has upheld the appeal and released Josef on the basis of the time already served (which was approximately 50 days).
All three judges on the Full Court considered Josef’s health and age to be relevant to reducing his sentence. While they were cautious of the risk that poor health could become a licence to commit crimes, they agreed that it should mitigate the term of punishment if:
- because of the offender’s health, imprisonment would be an increased burden; or
- imprisonment would have a gravely adverse effect on the offender’s health.
Also relevant was that, prior to this matter, the severest sentence handed down for contempt of court was 12 months imprisonment. It was accepted that more serious penalties could be appropriate; Justice Besanko even referred to the 3 years handed down to one of the other respondent’s in this matter as “warranted“. However, Josef’s breaches were considered less flagrant and the sentencing judge was said to have “strayed outside the appropriate range of sentences“.
The judges on appeal also noted that deprivation of a person’s liberty ought to be seen as a last resort. Their Honours considered that the sentencing judge did not adequately consider alternatives to sentencing; interestingly, it was held that the sentencing judge should have considered imposing fines despite Josef having been declared bankrupt. Their view was that Josef should have been given a period of 6 months to try to repay the fines, failing which he would serve a term in prison in lieu of payment.
Despite upholding the appeal and releasing Josef, the court confirmed that an order involving some period of imprisonment was warranted (even Josef’s own counsel agreed that a suspended sentence was appropriate). You can read the full decision here.