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

The offender was sentenced following pleas of guilty to 3 counts 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 Commonwealth Criminal Code. Original sentence imposed a $67,500 fine in relation to sequence 1, $54,000 fine in relation to sequence 2 and $1,350,000 fine in relation to sequence 3, with a guilty plea discount of 25% and further discounts of 30% and 10% allowed for the offender’s past and future assistance to law enforcement agencies. Crown appealed on grounds that the sentencing judge erred in identifying the ‘benefit’ within the meaning of s 70.2(5)(b) and accordingly erred in identifying the maximum penalty for sequence 3, the sentencing judge erred in relation to sequence 3 in not taking into account that the fine imposed would be treated as a cost of doing business, the sentencing judge constructively failed to take into account general deterrence and that the sentences were manifestly inadequate.

Maximum Sentences: The benefit being referred to in s 70.2(1) of the Commonwealth Criminal Code is that received or obtained by the recipient of the bribe. The benefit may be monetary or not and need not be proprietary. Contrastingly, the focus of s 70.2(5) of the Commonwealth Criminal Code is on the ‘value of the benefit’ to be determined. That connotes something that falls to be assessed if it can be. The benefit is relevantly the contract secured by way of payment of the bribe. The value of the contract to the party required to perform it is not the contract price per se but the monetary advantage that will be derived from its performance. The value or benefit is not the contract price but the contract price less costs of its performance. Sentencing judge’s construction of s 70.2(5) was correct.

General Deterrence: Crown submitted that the fine imposed for sequence 3 in fact left a substantial portion of the agreed benefit derived by SKM from its unlawful conduct with the offender, which could scarcely operate as any kind of general deterrence to potential wrongdoers. Crown submitted there was no deterrence at all in such an outcome. To reduce the notional sentence and importance of the consideration of general deterrence, as the sentencing judge appears to have done by reference to the desirability of encouragement of good conduct, is to run the risk of double counting. An ultimate penalty of $1,350,000, referable to a maximum of $11 million, for an offence assessed to have been at the mid-range of objective seriousness and which left the wrongdoing company with a net benefit of several hundred thousands of dollars in respect of sequence 3, suggests either that the importance of general deterrence has been given effect to in name only or the sentencing discretion has miscarried so as to result in an adequate penalty, or both. To reach this conclusion is not to establish a principle that a fine in the context of the foreign bribery provisions could never be less than the benefit obtained.

Leave to appeal granted. Appeal dismissed. As this is a Crown appeal, the mere identification of error in sentencing does not in and of itself justify the imposition of a new sentence. The circumstances of the case are highly fact-specific and offers little by way of precedential value. Crown appeals should be rare, and the purpose of s 5D of the Criminal Appeal Act (Cth) is not the mere correction of error, which the present case raises.
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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