Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd [2019] FCA 1170

FEDERAL COURT OF AUSTRALIA

Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd [2019] FCA 1170 File number: NSD 1932 of 2017

Judge: WIGNEY J

Date of judgment: 2 August 2019

Catchwords: CRIMINAL LAW – sentencing – cartel conduct – giving effect to a cartel provision against s 44ZZRG(1) of the Competition and Consumer Law Act 2010 (Cth) – where offender is a corporation – where employees of corporation not residents or citizens of Australia – where offending conduct occurred outside Australia – where offender plead guilty to a single rolled-up offence against s 44ZZRG(1) – consideration of appropriate sentence – where offender provided bulk shipping services of "roll on, roll off" cargo to Australia – where penalties imposed on offender in overseas jurisdictions – where statement of contrition made – where offender gave evidence of measures implemented to strengthen compliance – consideration of sentencing factors in s 16A(2) of the Crimes Act 1914 (Cth) – where multiple offences committed against s 44ZZRG over many years – where sentence proceedings conducted on the basis of agreed facts – consideration of appropriate discounts for mitigating factors including plea of guilty, cooperation with law enforcement agencies and remorse – consideration of specific and general deterrence in sentencing cartel conduct – consideration of totality principle and parity with sentence imposed on co-offender.

Legislation: Competition and Consumer Act 2010 (Cth) ss 4F, 5, 44ZZRB, 44ZZRD(1), 44ZZRD(2), 44ZZRD(4), 44ZZRG(1), 44ZZRG(2), 44ZZRG(3), 44ZZRK, 45AK, 76(1), 76(1A), Pt X ss 10.17 and 10.17A Crimes Act 1914 (Cth) ss 16A(1), 16A(2)(a), 16A(2)(c), 16A(2)(d), 16A(2)(e), 16A(2)(f), 16A(2)(g), 16A(2)(h), 16A(2)(j), 16A(2)(ja), 16A(2)(k), 16A(2)(m), 16A(2)(n), 16AC, Part IB Criminal Code Act 1995 (Cth) ss 5.3, 5.6(1) Criminal Procedure Act 1986 (NSW) s 91 Evidence Act 1995 (Cth) s 191