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CDPP v Wallenius Wilhelmson Ocean AS [2021] FCA 52

The offender was sentenced following a plea of guilty to one count of giving effect to a cartel provision offence contrary to 44ZZRG(1) of the Competition and Consumer Act (Cth)  

Nature and Circumstances: Offence committed by WWO was very serious offence in all the circumstances. Cartels are widely condemned as the most egregious forms of anti-competitive behaviour. Cartel conduct harms consumers, businesses and the economy, and is likely to increase prices, reduce choice and distort innovation processes. WWO’s conduct was covert, deliberate, systematic and involved planning and deliberation. It is not possible to determine the benefit derived, but there can be little doubt that WWO would have benefited from its conduct in giving effect to the cartel provision. Benefits a corporation may derive from a cartel offence are not limited to profits. Non-adherence in the context of cartel arrangements is not necessarily a significant mitigating factor. Cheating between cartelists is a common feature of many cartels.  

Contrition: Beyond guilty plea, there is little if anything that WWO was or is genuinely contrite or remorseful. Absence of apology or express statement of regret and contrition by any senior officer of WWO makes it difficult to accept that WWO is genuinely remorseful and contrite. Implementing compliance and training measures demonstrate that WWO knows it has done wrong and needs to change its way, but that falls well short of sort of genuine contrition that is deserving of any significant weight in the sentencing exercise.  

General Deterrence: Cartel conduct is notoriously difficult to detect, investigate and prosecute. It involves large and sophisticated corporate offenders who can deploy considerable resources and position to minimise risk of detection. Cartel conduct is economic crime generally involving offender weighing up whether the expected benefit from the conduct outweighs the risk of detection and punishment.  

Extra-Curial Punishment: Some weight must be given to overseas penalties imposed on WWO, however overseas penalties were not demonstrated to have been imposed in respect of conduct of subject charge, except for US and European Commission penalties. While overseas penalties are very large, so too is WWO.  

Parity: Sentence imposed on NYK was fine of $25 million. Sentence imposed on K-Line was fine of $34.5 million. WWO’s offending was less serious than NYK and K-Line. WWO’s offending occurred over a period which was relevantly similar to the period over which NYK and K-Line occurred. Specific offending conduct occurred on two occasions in 2009 and then a 1 year period between June 2011 and July 2012. WWO did not, on the agreed facts and evidence, provide any assistance to the ACCC.  

Offender fined $24 million. Fine incorporated 20% discount for WWO’s early plea of guilty.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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