General Sentencing Principles
- Multiple or Continuing Offences
- Double Punishment
- Part IB: Sentencing of Federal Offenders
- Taking into Account Other Offences
- Victim of the Offence
- One Transaction Rule
- Section 16A
- Sentencing Factors
- Totality Principle
- Nature and Circumstances of the Offence
- Physical Condition
- Injury, Loss or Damage
- Consistency in Federal Sentencing
- Mental Condition
- The Impact of COVID-19 on Federal Sentencing
- Offender’s Family and Dependants
- Failure to Comply with Order or Obligation
- Course of Conduct
- Hardship to the Offender
- Contrition and Reparation
- Cultural Background
- Guilty Plea
- Adequacy of Punishment
Sentencing Options and Procedures
- Additional Sentencing Alternatives
- Breach of Conditional Release Bonds After Conviction
- Commencement of Federal Sentences
- Cumulative and Concurrent Sentences
- Conditional Release Orders After Conviction
- Hospital Orders
- Custodial Sentence
- Summary Disposition for Mental Illness
- Non Parole Period and Recognizance Release Orders
- Release on Parole or Licence
- Pre-Release Schemes and Leave of Absence
- Program Probation Orders
- Psychiatric Probation Orders
- Options without Proceeding to Conviction
- Table of Options
- Victim Impact Statements
- Sentencing Methodology
- Particular Sentencing Circumstances
- Ancillary Orders
The content on this page was last reviewed on 24 April 2023.
A provision of a law of the Commonwealth relating to indictable offences or summary offences shall, unless the contrary intention appears, be deemed to refer to bodies corporate as well as to natural persons.
Similarly, s 12.1 of the Criminal Code (Cth) provides:
(1) This Code applies to bodies corporate in the same way as it applies to individuals. It so applies with such modifications as are set out in this Part, and with such other modifications as are made necessary by the fact that criminal liability is being imposed on bodies corporate rather than individuals.
(2) A body corporate may be found guilty of any offence, including one punishable by imprisonment.
Offences committed by corporations can, in some circumstances, also lead to natural persons being liable for the offending conduct. For example, s 74(5) of the Shipping Registration Act 1981 (Cth) expressly outlines the consequences for natural persons where a corporation commits an offence against the Shipping Registration Act 1981 (Cth):
Where a corporation commits an offence against this Act, a director, manager, secretary or other officer of the corporation who is in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the offence, is taken to also have committed that offence and is punishable accordingly.
This page outlines the sentencing principles applicable to the sentencing of corporations for federal offences. It does not address pecuniary or administrative penalty regimes that apply to corporations except where those principles have been applied by courts when sentencing corporations for federal offences. For the principles applicable to sentencing individuals for white-collar offences see: Sentencing Individual Offenders for White-Collar Offences.
There are no sentencing options in the Crimes Act 1914 (Cth) which apply specifically to corporations. However, due to the non-corporeal nature of corporations, many sentencing options available to courts when sentencing natural persons cannot be imposed on corporations.
On conviction, a Court may impose a fine on a corporation convicted of a federal offence: Crimes Act 1914 (Cth) s 4B(3).
In addition to s 4B(1) of the Crimes Act 1914 (Cth) and s 12.1 of the Criminal Code (Cth) which provide for the general application of federal offences to corporations, specific offence provisions also directly criminalise certain conduct undertaken by and on behalf of corporations. For example, the Competition and Consumer Act 2010 (Cth) criminalises cartel conduct by corporations: ss 45AF and 45AG.2
Where an offence provision does not specify a maximum penalty that applies to a body corporate, the maximum penalty is calculated in accordance with s 4B(3) of the Crimes Act 1914 (Cth). The section permits a Court to impose a fine of up to five times the ‘amount of the maximum pecuniary penalty that could be imposed by the court on a natural person convicted of the same offence’.
Where an offence does not provide for a maximum pecuniary penalty for a natural person a court can apply s 4B(2) of the Crimes Act 1914 (Cth) to determine the relevant figure to be used in the s 4B(3) calculation.
Section 4B(2) outlines the method a court uses to calculate the fine that may be imposed instead of, or in addition to, a period of imprisonment where there is no fixed penalty for the relevant offence provision.
Pecuniary penalties–natural persons and bodies corporate
(2) Where a natural person is convicted of an offence against a law of the Commonwealth punishable by imprisonment only, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding the number of penalty units calculated using the formula:
Term of Imprisonment x 5
‘Term of Imprisonment’ is the maximum term of imprisonment, expressed in months, by which the offence is punishable.
(2A) Where a natural person is convicted of an offence against a law of the Commonwealth in respect of which a court may impose a penalty of imprisonment for life, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding 2,000 penalty units.
Accordingly, where an offence provision only provides for a term of imprisonment to be imposed by a Court on a natural person, the maximum fine is calculated by combining the operation of s 4B(2) with s 4B(3).
This approach was confirmed in the Explanatory Memorandum, Crimes Legislation Amendment Bill 1987 (Cth) which states (at 11):
[Section 4B(3)] … provides that bodies corporate are subject to pecuniary penalties equal to five times the amount applicable to natural persons convicted of the same offence, irrespective of whether the pecuniary penalty for the natural persons is found in the law creating the indictable offence or whether the pecuniary penalty is derived pursuant to proposed sub-section 4B(2). This provision is consistent with recently enacted legislation and reproduces the effect of paragraph 16(2)(b) of the Crimes Act, but applies to all offences against laws of the Commonwealth.
The different methods that apply to determining the maximum fine that may be imposed on a corporation where no fixed penalty is included in the offence provision are demonstrated in the table below.
|Maximum penalty for a natural person||Maximum fine for a corporate offender||Rationale|
|20 penalty units||100 penalty units (5 × 20 penalty units)||There is a fixed penalty unit number for a natural person. Accordingly, s 4B(3) applies to allow a court to impose a fine on a corporate offender of up to five times that number of penalty units|
|2 years imprisonment||600 penalty units (12 months × 2 years × 5 penalty units × 5)||There is no fixed penalty unit number for a natural person. Accordingly, s 4B(2) operates to permit a court to impose a fine on a natural person of five times the length of imprisonment expressed in months. Section 4B(3) then applies, to multiply this maximum fine by five for a corporate offender|
|Life imprisonment||10,000 penalty units (5 × 2,000 penalty units)||Section 4B(2A) operates to enable a court to impose a fine of 2,000 penalty units on a natural person. Section 4B(3) then determines the penalty that applies for a corporate offender as five times this amount.|
Offence provisions may specifically outline a higher or lower maximum penalty that applies in relation to offences committed by corporations. For example, s 73F(2) of the Defence Act 1903 (Cth) expressly provides for a 2 penalty unit fine in the case of an individual and a 20 penalty unit fine for a body corporate for an offence of unlawfully giving or obtaining information as to defences contrary to s 73A. This is higher than the maximum penalty that would otherwise be calculated through the operation of s 4B(3) of the Crimes Act 1914 (Cth).
Parliament can also impose variable maximum penalties for offences committed by corporations. For example, the cartel conduct offence regime imposes different maximum penalties depending on the corporation involved and the benefit obtained by reason of the offending conduct.
The maximum penalty that can be imposed for offences against ss 45AF and 45AG of the Competition and Consumer Act 2010 (Cth) are the greater of the following:
- if the court can determine the total value of the benefits that:
- have been obtained by one or more persons; and
- are reasonably attributable to the commission of the offence;
- 3 times that total value;
- if the court cannot determine the total value of those benefits—10% of the corporation’s annual turnover during the 12‑month period ending at the end of the month in which the corporation committed, or began committing, the offence.
A similar approach applies to the offence of bribing a foreign official contrary to s 70.2(5) of the Criminal Code (Cth), with the maximum fine that may be imposed on a corporation being the greatest of:
- 100,000 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;
- if the court cannot determine the value of that benefit—10% of the annual turnover of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the conduct constituting the offence occurred.
Importantly, for both the cartel conduct and foreign bribery calculations, where the benefit obtained through the offending conduct can be calculated the court does not go on to assess the turnover for the body corporate for the relevant 12 month period.
The High Court in The King v Jacobs Group (Australia) Pty Ltd  HCA 23 considered the meaning of ‘benefit’ in the context of foreign bribery offences. The case concerned the bribery of officials in the Philippines and Vietnam to secure government contracts worth approximately $10 million, the performance of which cost the company approximately $7.5 million (excluding the amount of the bribes).
The High Court considered the legislative history and broader statutory context in holding that, properly construed, the term ‘benefit’ in s 70.2(5)(b) of the Criminal Code (Cth) is concerned with the gross value of the unlawfully obtained contracts. The joint judgment of Kiefel CJ, Gageler, Gordon, Steward, Gleeson and Jagot JJ held at :
… in the present case, the contracts had been wholly performed and all money due under them had been paid. In these circumstances, on its proper construction, s 70.2(5)(b) required the value of the benefit obtained by the respondent and its related bodies corporate to be determined as the sum of the amounts the respondent in fact received under the contracts secured by the bribery. No deduction could properly be made for any costs incurred in performing the contracts. Deducting such costs is antithetical to the meaning of “value of the benefit … obtained” in s 70.2(5)(b).
The joint judgment distinguished the purpose of s 70.2(5)(b) from the pecuniary penalty scheme under the Proceeds of Crime Act 2002 (Cth), stating at :
A legislative purpose of requiring the proceeds of crime to be disgorged, of its nature, calls for a targeted approach focusing on the funds tainted by illegality, albeit subject to any contrary provision. A maximum penalty for a crime of obtaining a benefit by bribery is a different context involving no such focus.
In the result, the High Court overturned the finding of both the trial judge and the NSW Court of Criminal Appeal, that the benefit in the context of s 70.2 of the Criminal Code (Cth) meant the benefit obtained from the contract less any losses incurred performing the contract (excluding the cost of the bribes themselves): R v Jacobs Group (Australia) Pty Ltd  NSWCCA 152 – (Bell CJ, Walton and Davies JJ agreeing). The application of the ‘net’ benefit approach yielded an amount (approximately $8 million) lower than the ‘floor’ penalty of 100,000 penalty units (approximately $11 million): see Criminal Code (Cth) s 70.2(5)(a)). The gross benefit approach yielded a maximum penalty of approximately $30 million.
Where a court is sentencing a corporate offender for multiple related offences that are joined in ‘the same information, complaint or summons’ the court may impose an aggregate sentence pursuant to s 4K of the Crimes Act 1914 (Cth). If a court chooses to impose an aggregate sentence under this provision, the maximum penalty will be calculated by adding the maximum penalties that apply for each offence: s 4K(4).
Courts when sentencing corporate offenders for a series of indictable offences may therefore only impose an aggregate sentence where a state or territory sentencing provision permitting such an approach is picked up and applied by the operation of s 68 of the Judiciary Act 1903 (Cth): see, eg, Commonwealth Director of Public Prosecutions v Joyce  FCA 1423 at –.4
The maximum penalty for an offence is generally an important guidepost in sentencing: Muldrock v The Queen  HCA 39, . In particular, the maximum penalty can help provide a guide as to the legislative view of the seriousness of the offending conduct: Elias v The Queen  HCA 31, .
Where a maximum penalty for a corporation is calculated on the basis of annual turnover (where the benefit resulting from the conduct cannot be calculated), courts have indicated that some caution should be applied when considering the maximum penalty in sentencing as it may not reflect the criminality of the offending conduct.
For example, in Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha  FCA 876, Wigney J stated at  that:5
One can readily comprehend why the legislature chose to include a maximum penalty for cartel offences which may be based on the offending corporation’s annual turnover. … That said, in some cases a maximum penalty based on the offending corporation’s annual turnover may not provide a realistic guide to the objective seriousness of the offending conduct or criminality involved in the offence. It is, for example, possible to imagine a case where a large corporation with a very high annual turnover committed a single relatively minor offence against s 44ZZRG. As the following discussion reveals, however, this case is not such a case. [Emphasis added]
This is not to say, however, that the maximum penalty is not relevant to the sentencing exercise. In Commonwealth Director of Public Prosecutions v Wallenius Wilhelmsen Ocean AS  FCA 52, Wigney J (applying Nippon Yusen Kabushiki Kaisha) stated at :
It may be accepted, essentially for the reasons given in the passage from CDPP v K-Line just cited, that where the maximum penalty for an offence against s 44ZZRG of the CCA is calculated by reference to the offending corporation’s annual turnover, some degree of caution or circumspection should generally be applied in treating the maximum penalty as a relevant ‘guidepost’ or ‘yardstick’ in determining the appropriate penalty. It cannot, however, be accepted that there was any relevant disconnect between WWO’s size, reflected in its annual turnover, and the seriousness of its offending, such that the maximum penalty of $48,532,493 provides no useful or reliable guidepost or yardstick in determining the appropriate penalty. WWO’s submission to that effect is based on an overly simplistic and flawed approach to the assessment of the seriousness of cartel offences generally and the offence committed by it specifically. [Emphasis added]
A rolled-up charge is ‘a charge in which more than one contravention of the relevant offence provision, or more than one episode of criminality, is particularised as part of the charge’: Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha  FCA 876, . In general, rolled-up charges are brought where the offender has agreed to plead guilty, and with the consent of the offender (because such a charge might otherwise be liable to a complaint of duplicity: see MA v Police  SASCFC 99 at  (Peek J, Kourakis CJ and Stanley JJ agreeing).
Given the nature of offences committed by corporations, it is not uncommon for corporations to be sentenced for one or more rolled-up charge(s).6
In terms of assessing the criminality of a rolled-up charge, the court will look at the whole of the relevant conduct as particularised. For example, in Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha  FCA 876, Wigney J stated at :7
In sentencing for a rolled-up charge, the Court is required to assess the criminality of an offender’s conduct as particularised. The issue for the Court on sentence is the criminality disclosed by the offence, not the number of charges … The more contraventions or episodes of criminality that form part of the rolled up charge, the more objectively serious the offence is likely to be … That said, the maximum penalty for the rolled-up charge is the maximum penalty for one offence, not the aggregate of the penalties for what could have been charged as separate offences … [Citations omitted]
Courts have noted that offences such as cartel conduct and bribery of foreign officials are inherently serious offences, demonstrated by the high maximum penalties that apply for these offences.
For example, in Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd  FCA 1170, Wigney J stated at :
It may readily be accepted that cartel conduct must generally be approached by the Court on the basis that it involves serious anti-competitive conduct which must be emphatically deterred by the imposition of appropriately stern penalties …
In Commonwealth Director of Public Prosecutions v Wallenius Wilhelmsen Ocean AS  FCA 52 Wigney J stated at :8
It is trite to observe that cartel conduct generally involves anti-competitive conduct of a very serious nature that should be emphatically condemned and deterred by the imposition of appropriately stern penalties. Prior to 2009, cartel conduct attracted only civil penalties. The fact that cartel conduct was criminalised in 2009 no doubt reflects the fact that Parliament regarded it sufficiently serious as to attract ‘opprobrium and societal condemnation in a way that the imposition of a civil penalty cannot’ … [Citations omitted]
Similarly, in describing the offending conduct of conspiring to bribe a foreign official, Adamson J in R v Jacobs Group (Australia) Pty Ltd  NSWSC 657,  noted comments from the Second Reading Speech of the Criminal Code Amendment (Bribery of Foreign Officials) Act 1999 (Cth) that:
Bribery distorts attempts at international competitive bidding, bribes themselves are non-productive and are therefore paid from profits and bribes distort trade in that contracts are not based on merit and can lead to production of poor quality goods and services. In the aid context, bribery can lead to a very poor selection of projects, and this can in turn lead to diversion of resources away from areas of greatest need.
Adamson J went on to note at  that:
… the Philippines conspiracy and the Vietnam conspiracy were paradigm examples of the type of conduct which the Convention and the legislation enacted by Australia to fulfil its obligations under the Convention was designed to criminalise and prevent. Those individuals involved can be taken to have known that what they were doing was criminal. They took elaborate steps to hide their offending from those outside the inner circle within the company so that it would not be detected by the company’s usual compliance procedures. The offending conduct continued, as set out in the narrative of facts, for about a decade.
On appeal, Adamson J was found to have erred in placing too little weight on the importance of general deterrence or through affording too much weight to the offender’s co-operation with authorities. The aspects of Adamson J’s reasons at ,  were not, however, criticised by the Court on appeal: see R v Jacobs Group (Australia) Pty Ltd  NSWCCA 152, –, nor in issue in the Crown’s successful appeal to the High Court: The King v Jacobs Group (Australia) Pty Ltd  HCA 23.
Sections 16A(2)(d)–(e) of the Crimes Act 1914 (Cth) require a court to take into account the personal circumstances of any victims of the offence, and any injury, loss or damage that results from the offending conduct. Where an offence has been committed by a corporation, there may not be evidence of the quantum of the harm suffered by the offending conduct, or it may not be possible to calculate with certainty the referable loss or damage from the offending conduct.
Courts have noted, however, that offences of this nature are not victimless crimes, and have considered the broader impacts of the offending conduct.
For example, in Commonwealth Director of Public Prosecutions v Wallenius Wilhelmsen Ocean AS  FCA 52,  Wigney J stated:9
It would be wrong, however, to approach this offence as if it were a victimless offence, simply because no specific individual or quantified loss can be identified. … Australia’s economy, like other free-market economies, is based on the philosophy that private enterprise and competition will foster productivity, efficiencies and innovation for the greater good of the economy and the community generally. Cartel conduct, like other anti-competitive behaviour, is inimical to, destructive of and may lead to a loss of public confidence in, Australia’s markets and economic system …
Depending on the particular offence, parity can be a relevant consideration when sentencing corporate offenders. In particular, for offences such as cartel conduct, the offending conduct requires multiple co-offenders to be involved.
The parity principle holds that there cannot be a marked disparity between sentences imposed on co-offenders.10
In relation to natural persons, courts have noted that disparity between sentences imposed for co-offenders can be justified by differences between them such as ‘age, background, criminal history, general character and the part each has played in the relevant criminal conduct’: Green v The Queen  HCA 49, . See further: Parity.
Courts have held that this principle applies as between sentences imposed on corporations involved in the same offending conduct. In assessing parity between corporations, courts have considered it relevant to compare the size of the companies, their role in the offending conduct, the assistance they provided to authorities and the circumstances in which they pleaded guilty which can explain the differences in fines imposed for the same offending conduct: Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd  FCA 1170, –.
Where the respective companies are large corporations with significant resources, the size of the company may be given less weight in assessing parity. For example, in Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd  FCA 1170 the Court stated at :
As has already been noted, it is generally accepted that the size of the offending corporation is a relevant consideration … however, the comparative differences in the size of K-Line and its co-offender NYK is not a particularly significant consideration. There is no question that K-Line is still a very large corporation with substantial resources. While it may readily be accepted that a sentence which involves a large fine will cause it some hardship or financial pain, that is essentially what is necessary to ensure that the punishment achieves not only specific deterrence, but importantly also general deterrence. K-Line did not submit that it did not have the capacity to pay a large fine. Nor was there any evidence to suggest as much.
General deterrence has been found to be of particular importance when sentencing offenders for white-collar crime offences. The general rationale for that approach was outlined by the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v Gregory  VSCA 145,  where the Court stated that:11
… general deterrence is likely to have a more profound effect in the case of white collar criminals. White collar criminals are likely to be rational, profit seeking individuals who can weigh the benefits of committing a crime against the costs of being caught and punished.
When sentencing corporations for white-collar crime offences courts have noted that offences of this kind ‘are notoriously difficult to detect, investigate and prosecute’ and often involve ‘large and sophisticated corporate offenders who can deploy their considerable resources and position to minimise the risk of detection’ heightening the need for general deterrence: Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha  FCA 876, .
Similarly, courts have noted that the economic or commercial rationale underpinning offences committed by corporations means that the penalties imposed need to be high enough to ensure that other corporations ‘come to appreciate that the risks are likely to outweigh the benefits: that the likely penalty will be such that it could not be regarded as an acceptable cost of doing business’: Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha  FCA 876, .12
Similar comments were made by Abraham J in Commonwealth Director of Public Prosecutions v Alkaloids of Australia Pty Ltd  FCA 1424,  where her Honour noted that ‘[t]here is a need to deter those who may see a possible penalty as a cost of doing business’.
In the civil penalty context, courts have similarly emphasised the importance of ensuring that companies do not begin to view fines as part of the ‘cost of doing business’. In Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission  FCAFC 49 where the Full Federal Court stated at :
… in cases where the contravening conduct is concealed and not easily detected, deterrence (both general and specific) may justify a penalty that is many multiples of the profits made from the contravening conduct. If the contravening conduct is concealed and the risk of detection is low, a penalty equivalent to or just exceeding the profits earned may be regarded by the contravener as ‘an acceptable cost of doing business’ on a strict cost-benefit analysis because of the overall likelihood of financial gain from the conduct. That principle has been long recognised in the context of cartel contraventions, which are typically concealed and difficult to detect … [Emphasis added]
Specific deterrence may be a matter that is afforded less weight when sentencing corporate offenders, where the offender can demonstrate that it has taken steps to ensure that the offending conduct does not occur again: Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha  FCA 876, . In that case, the Court had recognised that the offender had:
… already taken extensive steps to not only change its corporate culture, but also establish structures, systems and processes to ensure that there is minimal risk of a similar cartel offence being committed in the future.
Courts have acknowledged the significance of corporations co-operating with government agencies and pleading guilty at the earliest opportunity. In particular, courts have recognised that offences involving corporations often involve secrecy and are difficult to detect and as such co-operation and/or an offender’s plea of guilty are of significant public benefit in bringing to light offences that may otherwise have remained undetected: Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha  FCA 876, . In that case, the Court considered an appropriate discount for the company’s ‘past cooperation, assistance, plea of guilty and contrition and remorse reflected in the cooperation and plea’ as being 40%.13
Care must be taken by courts to not provide too much weight to the assistance of a corporate offender. In R v Jacobs Group (Australia) Pty Ltd  NSWCCA 152, Bell CJ (Walton and Davies JJ agreeing) found that the primary judge erred in reducing the notional starting point of the sentence and then separately awarding a discrete discount on account of the offender’s role in bringing the offending to light. Bell CJ stated at :
There is, in my opinion, force in the Crown’s attack on  … where, in the context of general deterrence, the sentencing judge returned to the notion of ‘rewarding’ a self-reporting company that she had introduced in  of her sentencing judgment, as reproduced at  above. Any such reward is to be effectuated by the giving of a generous discount from the sentence that would otherwise have been imposed. To reduce that notional sentence and the importance of the consideration of general deterrence, as the primary judge appears to have done in SJ  by reference to the desirability of encouragement of good conduct, is to run the risk of double counting … [Emphasis added]
The Court of Criminal Appeal dismissed the appeal in exercise of its residual discretion. The judgment was subsequently overturned by the High Court on appeal, but on the basis of a different issue, and the reasons of the High Court do not cast doubt on the correctness of the comments extracted above: see The King v Jacobs Group (Australia)  HCA 23.
Before imposing a fine on a person for a federal offence the court must take into account the financial circumstances of the corporation: s 16C of the Crimes Act 1914 (Cth).
In Commonwealth Director of Public Prosecutions v Alkaloids of Australia Pty Ltd  FCA 1424, Abraham J summarised the principles relevant to applying s 16C to corporations at :
A Court must also take into account the financial circumstances of the offender, in addition to any other relevant matters, before imposing a fine: s 16C of the Crimes Act. An offender’s capacity to pay is relevant, but not decisive … Capacity to pay is only one of many factors to be considered … A person’s capacity to pay cannot result in the imposition of fines that do not reflect the objective seriousness of the conduct or have the necessary general deterrent effect … The Court must apply the statutory mandate and impose a sentence that is of the severity appropriate in all the circumstances of the offence: s 16A(1) of the Crimes Act. It should be noted that these principles are to be applied in this case in circumstances where, as explained above, there are limitations on the material AOA chose to rely on as to its financial position. … [Some citations omitted]
In Commonwealth Director of Public Prosecutions v Vina Money Transfer Pty Ltd  FCA 665, – Abraham J expressly noted that the fact that a corporate offender would not be able to pay a fine imposed did not prevent the Court from imposing the fine.
3.9 Application of principles from pecuniary penalty cases when sentencing for cartel conduct offences
When sentencing corporate offenders for cartel conduct, courts have applied principles relevant to the determination of civil pecuniary penalties. In Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha  FCA 876, Wigney J outlined at  that most of the factors relevant to the determination of civil pecuniary penalties effectively replicated the considerations contained in s 16A of the Crimes Act 1914 (Cth) and that there was no reason to think they would not be equally applicable in a sentencing context.
In relation to determining the appropriate fine in a criminal context, Wigney J, however, considered that penalties imposed in civil cases, where the cases were settled on the basis of an agreed penalty and joint submissions, were of ‘little assistance’ to the determination of an appropriate sentence in the criminal context.14
In Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited  FCA 1516, the Court summarised the principles relevant to sentencing corporate offenders for cartel conduct offences.
The Court summarised (at ) the factors relevant to the objective seriousness of the contravention. These factors include the deliberate nature of the offending, the period of time it occurred over and the seniority of the individuals involved:
The factors relating to the objective seriousness of the contravention include: the extent to which the contravention was the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness; whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time; if the contravenor is a corporation, the seniority of the officers responsible for the contravention; the existence, within the corporation, of compliance systems and whether there was a culture of compliance at the corporation; the impact or consequences of the contravention on the market or innocent third parties; and the extent of any profit or benefit derived as a result of the contravention.
The Court summarised (at ) the factors relevant to assessing the circumstances of the contravening corporation, including the size of the company and any previous infractions:
The factors that concern the particular circumstances of the contravenor … generally include: the size and financial position of the contravening company; whether the company has been found to have engaged in similar conduct in the past; whether the company has improved or modified its compliance systems since the contravention; whether the company (through its senior officers) has demonstrated contrition and remorse; whether the company had disgorged any profit or benefit received as a result of the contravention, or made reparation; whether the company has cooperated with and assisted the relevant regulatory authority in the investigation and prosecution of the contravention; and whether the company has suffered any extra-curial punishment or detriment arising from the finding that it had contravened the law.
- See also s 12.1 of the Criminal Code (Cth).
- The cartel provisions were previously found at ss 44ZZRA–44ZZRI of the Trade Practices Act 1976 (Cth) however following amendments in 2009 the provisions were moved into the Competition and Consumer Act 2010 (Cth) in ss 44ZZRF and 44ZZRG. The offence provisions are now contained in ss 45AF and AG of the Competition and Consumer Act 2010 (Cth). The maximum penalties for cartel conduct offences for corporations and the civil penalty regime for corporations and individual offenders were increased by the Treasury Laws Amendment (More Competition, Better Prices) Bill 2022 (Cth).
- See further Multiple or Continuing Offences.
- See further Multiple or Continuing Offences: An aggregate sentence may be imposed for indictable federal offences only where a state or territory scheme permits.
- See also Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd  FCA 1170 at .
- See also 2.4 Sentencing an Offender for Multiple Related Offences.
- See also Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd  FCA 1170 at –
- These comments were cited with approval in Commonwealth Director of Public Prosecutions v Alkaloids of Australia Pty Ltd  FCA 1424 at .
- See also Commonwealth Director of Public Prosecutions v Vina Money Transfer Pty Ltd  FCA 665,  where the Court rejected a submission that the cartel advantaged consumers by ensuring that small ‘independent’ banks continued to operate.
- See further Parity.
- This case was discussed in the context of a federal bribery offence in R v Jacobs Group (Australia) Pty Ltd  NSWCCA 152, –.
- These comments were cited with approval in Commonwealth Director of Public Prosecutions v Vina Money Transfer Pty Ltd  FCA 66, .
- Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha  FCA 876 at –.
- Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha  FCA 876,  (Wigney J).