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The King v Jacobs Group (Australia) Pty Ltd [2023] HCA 23

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 3 counts of bribing a foreign public official contrary to ss 11.5(1) and 70.2(1) of the Commonwealth Criminal Code. Original sentence imposed a total fine of $1,471,500. The Crown appealed on the ground that the sentencing judge had erred in their determination of the maximum penalty applicable to the third count.

Maximum Sentence: Criminal Code s 70.2(5) prescribes the maximum penalty for body corporates for bribery of a foreign public official as being the greater of: 1,000 penalty units; if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence – 3 times the value of that benefit; and if the court cannot determine the value of that benefit – 10% of the annual turnover of the body corporate during the turnover period. Offender submitted that the value of the benefit obtained ought to be calculated as the amount received for performing its obligations under the illegitimately won contracts less the costs paid to third parties to enable that performance, excluding all such costs paid, or possibly paid, as part of the bribery offence (the ‘net benefit’ approach). Under this approach, 3 times the benefit received would be less than 1,000 penalty units, and so would not form the applicable maximum. The Crown submitted that the value of the benefit the respondent obtained was the total gross amount the respondent received for performing its obligations under the contracts. This amount was $10,130,354 which would result in a maximum penalty of over $30 million. The broader context of the statutory provisions supports the construction of the “value of the benefit … obtained” in s 70.2(5)(b) as meaning no more and no less than the value of what was received, irrespective of any costs, expenses or risks involved in the receipt. Accordingly, the Court of Criminal Appeal erred in holding that the primary judge did not err in determining that the maximum penalty under s 70.2(5) was 100,000 penalty units or $11 million pursuant to s 70.2(5)(a) of the Criminal Code. On the proper construction of s 70.2(5)(b), the maximum penalty in this case was three times $10,130,354, or $30,391,062. The penalty imposed should have been determined by reference to this maximum penalty. Appeal allowed. Matter remitted to the Court of Criminal Appeal for redetermination of sentence.

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