Case: Trade Practices Commission v CSR Limited (1991) ATPR 41-076
Outcome: discussed
It is necessary to note these facts because the prosecutor has urged that the factors relevant to penalty are those outlined by French J (as he then was) in Trade Practices Commission v CSR Limited (1991) ATPR 41-076 at 52,152 ( TPC v CSR Limited ). The defendant contended that those factors should be applied with some caution, because (it was argued) TPC v CSR Limited was decided before the introduction of Pt 1B of the Crimes Act and involved a civil pecuniary penalty imposed for contraventions of ss 46 and 47 (misuse of market power and exclusive dealing) in Pt IV of the TP Act for restrictive trade practices, rather than for contravention of a consumer protection provision of the TP Act in Pt V, or for present purposes now Pt VC. Part VC Offences was introduced into the TP Act by the Treasury Legislation Amendment (Application of Criminal Code ) Act (No 1) 2001 (Cth). 13 The judgment in TPC v CSR Limited was given on 20 December 1990 but concerned conduct engaged in from 1 May 1998 and until 5 September 1990 when consent injunctive orders were made. It is clear that the penalty imposed in that case was imposed in respect of contraventions of Pt IV of the TP Act, and was determined under s 76 of the TP Act as a civil pecuniary penalty. That does not make the observations of French J in that case irrelevant, but I accept the submission on behalf of the defendant that they should not be the starting point for determining the appropriate penalty in this matter. In any event, I do not think that the factors identified by French J in TPC v CSR Limited in any significant respect are different from those now specified in s 16A(2) of the Crimes Act . Section 16A(2)(a) of the Crimes Act directs attention to the nature and circumstances of the offence. That encompasses certain of the factors identified by French J. Section 16A(2) of the Crimes Act directs attention to the injury, loss or damage resulting from the offence. That too is a matter to which French J referred. Sections 16A(2)(f) , (g) and (h) of the Crimes Act direct attention to the contrition of the offender, the cooperation with the law enforcement agency, and whether there has been a plea of guilty to the charge in respect of the offence. That, in general terms, is encompassed also within the factors mentioned by French J. Sections 16A(2)(k) and (m) of the Crimes Act direct attention to the need to ensure that the person is adequately punished and to the personal elements of the offence. I think those factors are also encompassed within the factors identified by French J where he refers to the size of the contravening company and its degree of power in the market (not a matter directly relevant to a contravention of s 75AZC(1)(g) of the TP Act). Section 16A(2)(j) of the Crimes Act directs attention to the deterrent effect of the sentence upon the offender. That too was noted by French J. In certain circumstances, the matters referred to by French J will in fact fall into subsets of the matters listed in s 16A(2) of the Crimes Act . 14 I propose first to consider the factors specifically mentioned in s 16A(2) of the Crimes Act which are relevant in the circumstances. There is another relevant matter, namely, deterrence. Deterrence has two elements, namely specific deterrence of the offender and general deterrence in the community. It is also necessary to impose a penalty of sufficient magnitude to signal to the community the significance of the offending and to ensure that those who operate in a like commercial environment would be reminded of the consequences of contravention of the like provisions. The object of the TP Act is "to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection". The defendant's conduct, as it acknowledged, was both serious and inconsistent with that object. The penalty imposed must be such as to reinforce in the mind of the community the consequences of non-compliance with the relevant legislative prescription as to how that object is to be achieved.