The offender was convicted following pleas of guilty to 1 count of aiding, abetting, counselling, or procuring another person to give effect to a cartel provision contrary to s 44ZZRG(1) of the Trade Practices Act 1974 (Cth) (‘TPA’) and s 79(1)(a) of the Competition and Consumer Act 2010 (Cth) (‘CCA’), 1 count of being knowingly concerned in another person giving effect to a cartel provision contrary to s 44ZZRG(1) of the TPA and s 79(1)(c) of the CCA, and 1 count of aiding, abetting, counselling, or procuring another person to attempt to make a contract, agreement or understanding (CAU) containing a cartel provision contrary to s 44ZZRF(1) of the Trade Practices Act and ss 79(1)(aa) and 79(1)(a) of the Competition and Consumer Act. Additional cartel offences were taken into account under s 16BA.
Nature and Circumstances: Offender was had responsibility for all aspects of the marketing and sale of SNBB, including deciding the price at which SNBB was sold. Count 1 includes offender aiding, abetting, counselling or procuring 7 different CAUs containing price fixing provisions. Offending conduct occurred over a very significant period and can only be characterised as deliberate and systematic. Offender was actively involved in policing and enforcing compliance with the CAUs. There was an ongoing course of conduct in respect to each CAU. Offending was covert in nature. On count 2, offender was not involved in making the CAU. Offender had full knowledge of the CAU when they gave effect to it. Offender earned substantial wages from their work and earned a commission of about $1,723,502.86.
General Deterrence: There are features of offending which lead to general deterrence being a primary sentencing consideration, for example: its nature as a long standing deliberate systemic course of conduct; that it was undertaken for financial gain; and difficulties in detection, investigation and prosecution of these offences.
Cooperation: Offender has cooperated with the authorities by giving interviews to the ACCC, providing an induced statement, and giving an ongoing undertaking to cooperate. The ACCC evaluated the information provided in the interview and induced statement process to be of low assistance. Offender did not provide any material information regarding offending conduct that was not already known to the ACCC. Offender’s assistance has not been used in any current ACCC investigation and is unlikely to be used in any future investigation. Offender’s statement reflects poor recollection which impacts the likelihood and possible extent of any future cooperation.
Rehabilitation: Offender has good prospects of rehabilitation which means specific deterrence is of less importance. The consequences of discovery of the offending and the effect it has had on offender, as well as punishment, make recidivism unlikely. Offender is no longer involved in SNBB sales. Offender has consented to being disqualified from holding a position as a director, which will require them to step down from that position in their own business and from other boards. Offender is generally remorseful and contrite.
Offender sentenced to 32 months imprisonment to be served by way of an Intensive Correction Order with the additional condition to perform 400 hours of community service work and to pay a fine of $50,000. Offender was disqualified from managing corporations for 5 years under s 86E(1A) of the Competition and Consumer Act 2010 (Cth).
