Case: Markarian v The Queen [2005] HCA 25 ; (2005) 228 CLR 357
Outcome: cited
as there is no single, correct sentence, so too there is no single, correct amount of a pecuniary penalty: cp Markarian v The Queen [2005] HCA 25 ; (2005) 228 CLR 357 at 371 [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ. In arriving at an appropriate penalty, a court must give careful attention to the maximum provided for in the Act. The maximum invites comparison between the worst possible case and the case before the Court. And the maximum can provide a yardstick when balanced with the other relevant factors: Markarian 228 CLR at 372 [30]-[31]. In this respect, ordinarily the worst possible case for a civil penalty would not be equivalent to the worst possible case for a criminal penalty under the corresponding section in the Act. That is because, first, the purpose of the Parliament providing for the civil penalty was to enable the Authority to use that power to address conduct not warranting the use of the corresponding criminal provision or the suspension or cancellation of a licence. Secondly, if a person has been convicted of an offence (e.g. under s 139(3)) constituted by substantially the same conduct as attracts a civil penalty (e.g. under s 140A(3)) then s 205L prohibits the Court making a civil penalty order against that person. And, s 205M stays civil penalty proceedings if criminal proceedings have been or are later commenced in respect of substantially the same conduct. If the person is convicted, then s 205M(2) provides for the civil penalty proceedings to be dismissed, but the stay is lifted if the person is acquitted. Conversely, s 205N authorises criminal proceedings to be commenced in the opposite situation; i.e. after a civil penalty order has been made. This preserves the option of later prosecution where, for example further evidence has come to light showing that a more severe penalty is called for than that in the civil penalty order. There is a prosecutorial discretion to bring criminal proceedings under s 205N. Ordinarily, some enlivening factor must arise after the conclusion of the civil penalty order proceedings to warrant the initiation of the criminal proceedings so that they would not be seen as an abuse of process in light of the policy in ss 205L and 205M (e.g. if facts subsequently were discovered, casting a different light on an apparently middle range contravention for which a civil penalty was appropriate, prosecution might be warranted). The assessment of a pecuniary penalty that is appropriate, having regard to all relevant factors under s 205F(3) is, like a criminal sentence, the result of the "process of instinctive synthesis" described in Markarian 228 CLR at 373-374 [36]-[37] and Wong v The Queen [2001] HCA 64 ; (2001) 207 CLR 584 at 611-612 [74] - [76] per Gaudron, Gummow and Hayne. If what is suggested by the parties as an appropriate penalty is unreasonable or plainly unjust, the court can reject it on similar principles to those used when sentences are either manifestly excessive or inadequate: cf Markarian 228 CLR at 370-371 [25]; Lukatela v Birch (2008) 223 FLR 1 at 7 [25]-[26]. In Minister for Industry Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR p41-993 at 48,632 [77] Branson, Sackville and Gyles JJ said: "Just as the criminal court will take into account the prosecution's views on the appropriate sentence, so the court in the civil penalty case, as NW Frozen Foods explained, will take account of the regulator's position. But in neither case is the court relieved from the responsibility of exercising its own judgment as to the appropriate sentence (in criminal cases), or whether the proposed penalty is within the appropriate range for the contravention (in civil penalty cases). In each case, the Court should be satisfied that it is being given accurate, reliable and complete information on critical questions."