R v Jacobs Group (Australia) Pty Ltd [2022] NSWCCA 152

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Jacobs Group (Australia) Pty Ltd [2022] NSWCCA 152 Hearing dates: 16 February 2022 Date of orders: 11 July 2022 Decision date: 11 July 2022 Before: Bell CJ at [1] Walton J at [132] Davies J at [133] Decision: Appeal dismissed Catchwords: CRIME – appeals – appeal against sentence – by Crown against inadequacy – Court's discretion to intervene – principles concerning Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) – where error was established in the sentencing judge's reasoning – where the circumstances of the case are highly fact-specific and offer little by way of precedential value – where the arguments advanced on appeal involve refinements to those advanced at first instance – where a resentencing exercise would amount to a mere correction of error SENTENCING – relevant factors on sentence – maximum penalty – calculation of maximum penalty for an offence of conspiring to cause a bribe to be offered to a foreign public official, contrary to ss 11.5(1) and 70.2(1)(a)(iv) of the Criminal Code Act 1995 (Cth) – where amount of the maximum penalty expressed as a multiple of "benefit" derived from impugned conduct – construction of the word "benefit" in s 70.2(5)(b) of the Criminal Code – where foreign government contracts to provide services in relation to public infrastructure projects were procured – whether "benefit" should be interpreted to mean gross income (i.e. the total value of the contracts awarded) or the net income obtained from those contracts STATUTORY INTERPRETATION – immediate context – consistency of meaning – calculation of maximum penalty for an offence of conspiring to cause a bribe to be offered to a foreign public official, contrary to ss 11.5(1) and 70.2(1)(a)(iv) of the Criminal Code Act 1995 (Cth) – where the amount of the maximum penalty turns upon the construction of the word "benefit" in s 70.2(5)(b) of the Criminal Code – whether "benefit" in s 70.2(5)(b) should be given the same meaning as in s 70.2(1)(a)-(b), which creates the substantive offence – where statutory context requires or results in different meanings being ascribed to the same term in a statutory provision SENTENCING – relevant factors on sentence – deterrence – general deterrence – where corporate offender reported its own misconduct, and subsequently provided substantial assistance to law enforcement authorities – where sentencing judge allowed significant discounts for the offender's past and future assistance to law enforcement authorities – where sentencing judge also had regard to the desirability of encouraging the self-reporting of corporate misconduct when considering the importance of general deterrence, and determining the starting point for the sentences to be imposed – where sentencing judge considered that the prevention of offending is better achieved by rewarding a self-reporting company than by imposing a substantial fine – whether such an approach amounted to a failure adequately to take general deterrence into account SENTENCING – Crown appeal against inadequacy of sentence – Court's discretion to intervene – principles concerning Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) – where error was established in the sentencing judge's reasoning – where the circumstances of the case are highly fact-specific and offer little by way of precedential value – where the arguments advanced on appeal involve refinements to those advanced at first instance – where a resentencing exercise would amount to a mere correction of error Legislation Cited: Competition and Consumer Act 2010 (Cth) ss 76(1A), 45AF(3), 45AG(3) Crimes Act 1914 (Cth) ss 16A(1), 16A(2)(j)-(ja), 16AC Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth), Schedule 8 Criminal Appeal Act 1912 (NSW) s 5D Criminal Code Act 1995 (Cth) ss 11.5(1), 12.2, 12.3 70.1, 70.2(1), 70.2(5) Cases Cited: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 Agius v The Queen (2013) 248 CLR 601; [2013] HCA 27 CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 Director of Public Prosecutions (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145 Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 Green v The Queen (2010) 244 CLR 462; [2011] HCA 49 Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kline v Official Secretary to the Governor-General (2013) 249 CLR 645; [2013] HCA 52 Lacey v Attorney-General of Queensland (2011) 242 CLR 573; [2011] HCA 10 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 381 ALR 601 R v Ellis (1986) 6 NSWLR 603 R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489 Registrar of Titles (WA) v Franzon (1975) 132 CLR 611; [1975] HCA 41 Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29 Selig v Wealthsure Pty Ltd (2015) 255 CLR 661; [2015] HCA 18 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20 Tabcorp Holdings Ltd v Victoria [2016] HCA 4; (2016) 328 ALR 375 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24; [2021] FCAFC 49 Texts Cited: Replacement Explanatory Memorandum, Crimes Legislation Amendment (Serious and Organised Crime) Bill (No 2) 2009 (Cth) Category: Principal judgment Parties: Crown (Applicant) Jacobs Group (Australia) Pty Ltd (Respondent) Representation: Counsel: