Case: Australian Competition and Consumer Commission v Skippy Australia Proprietary Limited [2006] FCA 1343
Outcome: considered
I note that in Australian Competition and Consumer Commission v Chubb Security Australia Proprietary Limited [2004] FCA 1750 , 30 December 2004, under the heading "Parity", Bennett J, with respect, helpfully, surveyed a number of authorities which dealt with the question of penalty in the context of that case. There was some submission made to me that a like exercise might be undertaken in this case by reference to the circumstances of and the sentences imposed in Australian Competition and Consumer Commission v Skippy Australia Proprietary Limited [2006] FCA 1343 , and Australian Competition and Consumer Commission v Allans Music Group Proprietary Limited [2002] FCA 1552. 30 It seems to me, though, that the circumstances of this case have a uniqueness which limits the utility of that exercise. I have noted, however, and see force in the submission made on behalf of the Corporate Defendant, that so far as the Allans Music case is concerned, this ought not be approached on the basis that one is sentencing a defendant who has demonstrated market power. Equally, I see force in the submission that there was an additional aggravating quality in the Skippy case, lent by the threat posed to the safety of children by the nature of the conduct in respect of the product in question. 36 It seems to me that were I to impose individual penalties in this case, of an order that would reflect a proportion of the maximum, the aggregate result would be out of all relationship with the gravity of the criminal conduct, having regard to the totality principle. That being so, I have, in reflecting upon the application of s 4K and that totality principle, come to a view that I ought to impose but one penalty and that that penalty should be $220,000. In coming to that view, I have considered those cases in respect of penalty to which I've referred already, namely, the Skippy case and the Allen's Music case although, as I have observed, it seems to me that there is a uniqueness about this case which does limit the utility, even in a proportionality exercise. 37 The submission that was made on behalf of the Commission is that a short time ought to be allowed in respect of the payment of the penalty by way of fine. One aspect of that short tine that was put forward was 14 days, although, I did not detect any particular rigidity in that reference, as opposed to the submission that it should not be so long as to allow the Defendant anything more than a reasonable opportunity to ascertain whether or not it was indeed in a position to meet the amount of the fine. The submission made on behalf of the Defendant was that one ought to allow one month. Given the amount of the fine that I have come to regard as appropriate and the facts - little though they may be - that are known to the Court in relation to the Corporate Defendant, it would be in the interests of justice to allow that slightly longer period of one month. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 28 July 2008 Counsel for the Applicant: Mr Boddice S.C. Counsel for the Applicant: Ms Mellifont Solicitor for the Applicant: Commonwealth Director of Public Prosecutions Counsel for the Respondents: Mr Walker S.C. Counsel for the Respondents: Mr McCafferty Solicitor for the Respondents: Nyst Lawyers Dates of Hearing: 7, 8 &amp; 9 July 2008 Date of Judgment: 9 July 2008 Schedule "A" Count for First Defendant Date of Offence Newspaper Invoice date &amp; number Stock 1 17 January 2003 Heard Sun, Melbourne. CB147 9/1/03 AHA001 3 " " CB152 15/1/03 DC245 5 " " CB369 30/12/02 CBD013 7 " " CB167 30/1/03 YH006 9 24 January 2003 Daily Telegraph, Sydney CB147 9/1/03 AHA008 11 " " CB152 15/1/03 DC245 13 " " CB369 30/12/02 CBD006 15 " " CB167 30/1/03 YH002 17 26 January 2003 Sunday Telegraph, Sydney CB147 9/1/03 AHA006 19 " " CB152 15/1/03 DC245 21 " " CB369 30/12/02 CBD005 23 " " CB167 30/1/03 YH004 25 21 February 2003 West Australian, Perth CB147 9/1/03 AHA014 27 " " CB168 8/1/03 YH010 29 " " CB166 23/1/03 RH008 31 " " CB165 22/1/03 ELE039 33 " " CB156 28/1/03 DC012959 35 1 March 2003 West Australian, Perth CB187 6/2/03 AHA029 37 " " CB168 8/1/03 YH011 39 " " CB166 23/1/03 RH003 41 " " CB165 22/1/03 ELE034 43 " " CB156 28/1/03 DC013118 45 8 March 2003 The Advertiser, Adelaide CB187 6/2/03 AHA027 47 " " CB156 22/1/03 DC012958 49 " " CB163 21/2/03 ELE056 * No need to elect. Charge as is. 51 " " CB166 23/1/03 RH019 53 " " CB167 30/1/03 YH007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1103.html