Citation: R v Jacobs Group (Australia) Pty Ltd [2023] NSWCCA 280
Court: NSW Court of Criminal Appeal
Date: 8 November 2023
Judge(s): Bell CJ; Walton J; Davies J
Background
The respondent company, formerly known as Sinclair Knight Merz Pty Ltd, pleaded guilty in 2020 to three offences of conspiring to cause a bribe to be offered to a foreign official under the Criminal Code Act 1995 (Cth). At sentencing in 2021, a dispute arose about how to calculate the maximum applicable penalty under s 70.2(5) of the Criminal Code, which sets the maximum as the greater of $11,000,000 or three times the value of the "benefit" obtained from the offending. The sentencing judge and, on appeal, the Court of Criminal Appeal both held that "benefit" meant net income from the relevant contracts, capping the maximum penalty at $11,000,000.
The High Court overturned that construction in August 2023, holding that "benefit" means gross income (the total value of the contracts awarded). The High Court remitted the matter to the Court of Criminal Appeal for redetermination of the sentence appeal under s 5D of the Criminal Appeal Act 1912 (NSW).
The sole question before the Court of Criminal Appeal was then a procedural one: should the Court itself conduct the resentencing, or should it exercise its power under s 12(2) of the Act to remit the matter to a single judge of the Supreme Court's Common Law Division?
Legal Issues
- Whether s 12(2) of the Criminal Appeal Act 1912 (NSW) requires a positive reason why the Court of Criminal Appeal could not do justice before it may remit a matter for resentencing to a trial court.
- Whether the Court of Criminal Appeal's power to resentence under s 5D of the Act has "primacy" over the broader power to remit under s 12(2).
- Whether the circumstances of this case made remittal to a single trial judge appropriate.
Decision
The Court rejected the Crown's argument that s 5D imposes an "obligation" to resentence, or that it takes primacy over the power to remit under s 12(2). The text of the Act does not support either characterisation. Treating s 5D as the default would risk denying an applicant an effective right of appeal against sentence where the sentencing process has miscarried.
Section 12(2) confers a broad, general discretion to remit matters to a trial court. The High Court has previously described s 12 as conferring wide powers on the Court of Criminal Appeal. The decision whether to remit is "very much case-dependent" and the circumstances in which the power will be exercised cannot be predicted in advance.
In exercising that discretion, the Court may consider the requirements of justice in the particular case alongside ordinary case management principles. Relevant factors drawn from earlier decisions include whether the defendant is in custody, the prospect of delay, a trial judge's familiarity with the matter, and whether remittal would preserve the parties' usual appeal rights.
In this case, the respondent was not in custody, reducing urgency. More significantly, the respondent indicated it was considering adducing further evidence about the net benefit obtained or loss incurred, a matter the High Court itself identified as potentially relevant to calibrating a proportionate sentence. If contested, that evidence would need to be tested. Those factors, taken together, made remittal to a single judge of the Common Law Division the appropriate course.
Orders Made
- The matter was remitted to a single judge of the Common Law Division of the Supreme Court for the imposition of sentence in accordance with the High Court's decision in The King v Jacobs Group (Australia) Pty Ltd [2023] HCA 23.
Key Takeaways
- Section 12(2) of the Criminal Appeal Act 1912 (NSW) confers a broad, general discretion on the Court of Criminal Appeal to remit a matter to a trial court for resentencing, with no requirement that a positive impediment to appellate resentencing first be established.
- The power to resentence under s 5D does not take primacy over the power to remit under s 12(2); construing s 5D as an obligation would risk undermining an appellant's right to an effective appeal against sentence.
- The decision whether to remit is highly fact-specific; relevant considerations include the defendant's custody status, likelihood of delay, the trial court's familiarity with the matter, and preservation of the parties' ordinary appeal rights.
- Where a party proposes to adduce fresh or contested evidence on resentencing, that supplies an additional reason favouring remittal to a trial court over resentencing by the appellate court.
- Preservation of the parties' usual rights to seek leave to appeal from the resentencing is a legitimate factor in the remittal discretion, as confirmed in both this decision and BQ v R [2023] NSWCCA 34.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), ss 5D, 6(3), 7(1A), 12(2)
- Criminal Code Act 1995 (Cth), ss 11.5, 70.2
Cases
- The King v Jacobs Group (Australia) Pty Ltd, Formerly Known as Sinclair Knight Merz [2023] HCA 23
- R v Jacobs Group (Australia) Pty Ltd [2022] NSWCCA 152
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- AW v The King [2023] NSWCCA 92
- BQ v R [2023] NSWCCA 34
- Watson v R [2020] NSWCCA 215
- Campbell v R [2018] NSWCCA 87
- BC v R (No 2) [2019] NSWCCA 142
- Baxter v R [2018] NSWCCA 28
- O'Neil-Shaw v The Queen [2010] NSWCCA 42
- Hopoi v R [2014] NSWCCA 263
- Munro v R [2006] NSWCCA 350
- Pritchard v R [2007] NSWCCA 305
- R v Pamplin [2001] NSWCCA 327