CHANT v THE NUANCE GROUP (AUSTRALIA) PTY LIMITED [2012] NSWSC 399

Supreme Court New South Wales

Medium Neutral Citation: CHANT v THE NUANCE GROUP (AUSTRALIA) PTY LIMITED [2012] NSWSC 399 Hearing dates: 21 September 2011 Decision date: 27 April 2012 Jurisdiction: Common Law Before: Hall J Decision: 1.That an appropriate penalty in respect of the offence committed on 23 December 2009 the subject of Proceedings No 2011/96572, taking into account the matters on Form 1, after allowing the discount of 25% for the defence plea, is $225,000. 2. In respect of each of the remaining 6 offences, I fix a penalty, after allowing a discount of 25% for the defendant's plea to each offence, a penalty of $18,750. The total amount of the fines will be $337,500. As applied for by the Prosecutor and not opposed by the defendant, I make an order under s 122 of the Fines Act that one half of the fines be paid to the NSW Ministry of Health. I make an order that the defendant pay the Prosecutor's costs of the proceedings in the amount of $50,000 as agreed. Catchwords: Sentencing - offences under s 16 of the Public Health (Tobacco) Act 2008 - prohibit advertising by display of tobacco advertisement - sentencing principles for multiple offences - principle of totality - objective seriousness of offence - close to mid-range offences - penalties imposed. Legislation Cited: Commonwealth Places (Application of Laws) Act 1970 (Cth) Crimes Act 1914 (Cth) Criminal Procedure Act 1986 Customs Act 1901 (Cth) Public Health (Tobacco) Act 2008 Tobacco Advertising Prohibition Act 1992 (Cth) Cases Cited: Connelly v Director of Public Prosecution [1964] AC 1254 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Jago v District Court (NSW) (1989) 168 CLR 23 Momcilivic v R [2011] HCA 34 Rogers v R (1994) 181 CLR 251 Walton v Gardiner (1993) 177 CLR 378 Williams v Spautz (1992) 174 CLR 509 Category: Principal judgment Parties: CHANT, Dr Kerry, CHIEF HEALTH OFFICER, NSW DEPARTMENT OF HEALTH v THE NUANCE GROUP (AUSTRALIA) PTY LIMITED Representation: P: B Hodginkson SC, I Bourke D: R T Beech-Jones SC/K C Morgan Attorney General (Intervenor): M G Sexton SC SG/C Lenehan P: NSW Department of Health D: Freehills Attorney General (Intervenor): Crown Solicitor's Office File Number(s): 2011/96416