Citation: R v Jacobs Group (Australia) Pty Ltd [2024] NSWSC 1000
Court: Supreme Court of New South Wales
Date: 14 August 2024
Judge: Harrison CJ at CL
Background
Jacobs Group (Australia) Pty Ltd, formerly known as Sinclair Knight Merz Pty Ltd, pleaded guilty in September 2020 to three counts of conspiring to bribe foreign public officials, contrary to the Criminal Code Act 1995 (Cth). The offences involved a conspiracy to cause offers of benefits to be made to Vietnamese public officials, with the intention of obtaining or retaining business. The conduct the subject of sequence 3 occurred between February 2010 and June 2012.
The company was originally sentenced in June 2021 by Adamson J. The Crown appealed, but the Court of Criminal Appeal dismissed that appeal in July 2022. The High Court then allowed the Crown's further appeal in August 2023, setting aside the Court of Criminal Appeal's decision with respect to sequence 3 and remitting the matter for redetermination. The Court of Criminal Appeal subsequently remitted the matter to a single judge of the Supreme Court for resentencing on sequence 3 alone.
The resentencing proceeded on the basis of agreed facts and both parties expressly endorsed all of Adamson J's original findings of fact. The matter therefore came to Harrison CJ at CL on a relatively narrow footing, with two key differences from the original sentencing exercise.
Legal Issues
- What is the correct maximum penalty applicable to sequence 3, and how should it inform the sentence?
- Whether the sentencing judge may treat the desirability of encouraging corporate self-reporting as a factor when determining the starting point for the fine, as distinct from allowing a discount for assistance under the Crimes Act 1914 (Cth)
- What discount, if any, should be allowed for the company's guilty plea, its past assistance to authorities, and its undertaking to provide future assistance?
- How should general and specific deterrence be balanced against the exceptional cooperation provided by the company?
Decision
The court identified two material differences from the original sentencing exercise. First, the correct maximum penalty for sequence 3 was $30,391,062, calculated as three times the contracted revenue of approximately $10.13 million received from the relevant projects. This was significantly higher than the $11 million figure applied by Adamson J, and the correct maximum was relevant to arriving at a proportionate sentence. The court assessed the offending as falling within the mid-range of objective seriousness.
Second, the Court of Criminal Appeal had found that Adamson J erred by placing weight on the desirability of encouraging self-reporting when fixing the notional starting point for the fine, as distinct from when allowing a sentencing discount for assistance. Harrison CJ at CL accepted that error and proceeded accordingly: the encouragement of self-reporting could properly inform the assistance discount, but it should not operate as a countervailing factor that diminishes the weight given to general deterrence or effectively reduces the sentence's deterrent effect.
The court allowed a 25% discount for the guilty plea, consistent with Adamson J's original approach. A combined discount of 40% was allowed for assistance: 30% for the company's past assistance (described as exemplary and extraordinary in respect of a practically undetectable form of offending) and 10% for the undertaking to provide future assistance under s 16AC of the Crimes Act 1914 (Cth). The court declined to grant any greater discount for assistance, finding that doing so would dilute the deterrent effect of the sentence and conflict with the statutory sentencing framework.
Starting from a pre-discount fine of $7,500,000, the court reduced that figure by 25% to $5,625,000 for the guilty plea, then applied the combined 40% assistance discounts to arrive at a final fine of $3,375,000.
Orders Made
- Jacobs Group (Australia) Pty Ltd is convicted of sequence 3.
- In respect of sequence 3, a fine of $3,375,000 is imposed.
Key Takeaways
- The correct maximum penalty is a material sentencing consideration: the High Court's finding that the applicable maximum for sequence 3 was approximately $30.4 million (not $11 million) directly affected the proportionality of the resentencing exercise.
- A sentencing court may take the policy of encouraging corporate self-reporting into account when determining a discount for assistance, but that consideration must not be applied in a way that counterbalances or undermines the weight given to general deterrence.
- Under ss 16A and 16AC of the Crimes Act 1914 (Cth), separate discounts are available for past assistance and for an undertaking to provide future assistance; here those were assessed at 30% and 10% respectively, together with a 25% guilty plea discount, reflecting the company's wholly exceptional cooperation.
- Where a company has self-reported practically undetectable criminal conduct and provided substantial assistance that was described as essential to prosecuting both the company and individual accused, that assistance can attract a substantial discount without that discount being characterised as a "reward" that offsets the need for deterrence.
- No lesser discount than that applied by Adamson J was warranted on the facts, but no greater discount was permissible without risking dilution of the sentence's deterrent effect and conflict with the statutory sentencing framework.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 11.5(1), 70.2(1)(a)(iv), 70.2(5)
- Crimes Act 1914 (Cth), ss 16A, 16AC
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23(3)
- Criminal Appeal Act 1912 (NSW), s 5D
Cases:
- The King v Jacobs Group (Australia) Pty Ltd formerly known as Sinclair Knight Merz Pty Ltd [2023] HCA 23; (2023) 97 ALJR 595
- R v Jacobs Group (Australia) Pty Ltd [2023] NSWCCA 280
- R v Jacobs Group (Australia) Pty Ltd [2022] NSWCCA 152
- R v Jacobs Group (Australia) Pty Ltd [2021] NSWSC 657
- R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151