Case: Trade Practices Commission v Cue Design Pty Ltd &amp; Anor (1996) 85 A Crim R 500
Outcome: considered
The case for the Commission was, and remains, that the mischief involved is similar to that which was disclosed in Trade Practices Commission v Cue Design Pty Ltd &amp; Anor (1996) 85 A Crim R 500. So it is that the submission of the Commission is that the following passage from the reasons for judgment in that case, at page 505, is apposite: What I need to determine, for the purpose of assessing penalty, is Cue's motive in involving itself in the dual-priced swing tags in the manner in which it did. If [the product manager] truthfully stated that it did not occur to her that members of the buying public would infer from the two prices that the garments had been on sale at the higher prices for any substantial period of time then she is either very naive or recklessly indifferent to the perceptions of the buying public. 16 Then a little later : In my opinion, the natural and probable consequence of a dual-priced swing tag is that members of the buying public would assume that the garment had previously been offered for sale at the higher of the two prices and was now available at the lower price. 17 Then a little later still, at page 508: I regard the conduct of the defendants as serious breaches of the TPA. It was conduct that preyed on the gullibility of the public. 19 The submission has been made on behalf of the Corporate Defendant that this particular feature of the case, which is not challenged by the Commission in terms of the factual accuracy of the response, is a matter going to mitigation in the sense that this is not a case where a diamond of at least a particular comparability in terms of type had never been offered for sale. I agree, and I do take that into account in mitigation of penalty. That is not to say, however, that there is not a discrete vice revealed by the conduct of the same ilk as that revealed in the Cue case. 20 So far as penalty is concerned, one is constrained to have regard to particular factors by the terms of s 16A of the Crimes Act 1914 (Cth) ("Crimes Act") . Other judges of this Court have taken the view that the factors listed in s 16A(2) of the Crimes Act are not exhaustive of considerations that are relevant in the imposition of penalty in respect of a Federal offence. I respectfully agree. In particular, one does not see, in s 16A , a reference to general deterrence as a sentencing consideration, nor does one see reference to having regard to the objects of the statute which makes provision for the particular Federal offence. 21 In this instance, it is relevant to recall that a particular purpose of the Trade Practices Act is consumer protection. Further, offences against the Trade Practices Act are not always easy to detect or, at least, insofar as they are detected, involve a considerable investment in public funds in their investigation and prosecution. The Trade Practices Act also represents a value judgement by the Australian Parliament as to particular standards of commercial morality that should obtain in our country. I bear all of these factors in mind in relation to sentencing, apart from having regard to s 16A(2), list of factors.