Matta v Australian Competition & Consumer Commission [2000] FCA 729

FEDERAL COURT OF AUSTRALIA

Matta v Australian Competition & Consumer Commission [2000] FCA 729 SENTENCING - legality of decision to record conviction for contraventions of Trade Practices Act - analysis of s 19B Crimes Act 1914 (Cth) conferring discretion to discharge offender without conviction - where conviction relevant to vocation - circumstances surrounding offence - peculiarities of offender Crimes Act 1914 (Cth) s 19B Trade Practices Act 1974 (Cth) s 65C(1)(a) Lanham v Brake (1983) 13 A Crim R 293 followed R v Johnston (1987) 45 SASR 482 followed Re Briese (1997) 92 A Crim R 75 Cited

SHEREF JOSHUA MATTA v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Q 284 of 1999 FRENCH, KIEFEL, MERKEL JJ 19 MAY 2000 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 284 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SHEREF JOSHUA MATTA

APPELLANT

AND: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

RESPONDENT

JUDGES: FRENCH, KIEFEL, MERKEL JJ

DATE OF ORDER: 19 MAY 2000

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 284 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SHEREF JOSHUA MATTA

APPELLANT

AND: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

RESPONDENT

JUDGES: FRENCH, KIEFEL, MERKEL JJ

DATE: 19 MAY 2000

PLACE: BRISBANE

REASONS FOR JUDGMENT

FRENCH J: 1 I agree for the reasons given by Kiefel J that the appeal should be dismissed. In Lanham v Brake (1983) 13 A Crim R 293, Cox J said of s 19B of the Crimes Act 1914 that: "…the exercise of a s 19B discretion requires more than the mere establishment of one of the par (b) conditions." (at 300) 2 Quoting Windeyer J from Cobiac v Liddy (1969) 119 CLR 257, he said: "Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration." 3 The exercise of the discretion under s 19B is exceptional. For the reasons given by Justice Kiefel, his Honour, in my opinion, properly exercised his discretion in that regard. Even had it been demonstrated that he approached that task with the unduly narrow focus asserted on behalf of the appellant, that would not have led the Court necessarily to intervene - R v Johnston (1987) 45 SASR 482 at 485- 486. 4 This was not an appropriate case for the invocation of s 19B when proper regard is had to all the factors which his Honour identified including the seriousness of the offence and the want of remorse on the part of the appellant. The appellant was not able to enjoy the benefit of a plea of guilty in the submission in mitigation and had the burden of an adverse finding as to his credit in relation to evidence given by him at the hearing. 5 There is one observation that his Honour made that I would like to remark upon in passing. He accepted the submission put to him that the only purpose underlying penalties for contraventions of the Act was the deterrent purpose. That observation is debatable. There is authority in favour of that proposition in respect of contraventions of Part 4 of the Act. While substantial pecuniary penalties may be imposed under s 76 in respect of such contraventions, they are not imposed pursuant to criminal proceedings, as criminal proceedings do not lie against a person by reason only that a person has contravened a provision of Part 4. Contraventions of Part 5, however, do attract, as in this case, criminal proceedings. They may involve questions of public safety, dishonest conduct and the like, which may properly require responses that are not only deterrent but also mark the Court's disapproval of the conduct in question. In the present case, no issue arises directly based upon the purpose to be served by the pecuniary penalties. It is, if anything, a consideration which would have weighed against the appellant and which could properly have been taken into account by his Honour. In the event, the disposition was, if anything, on the lenient side. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.