Citation: R v Allianz Australia Insurance Ltd (ACN 000 122 850); R v AWP Australia Pty Ltd (ACN 097 227 177) (No 2) [2025] NSWSC 202
Court: Supreme Court of New South Wales
Date: 13 March 2025
Judge(s): Rothman J
Background
On 28 February 2025, the Supreme Court sentenced a large insurance company (the corporate defendant) on six criminal offences, imposing a total fine of $13.5 million. The Court did so purportedly under s 4K(4) of the Crimes Act 1914 (Cth), a provision that governs how multiple charges against the same person may be treated for sentencing purposes.
After judgment was delivered, the Court's attention was drawn to a High Court decision, Putland v The Queen, which clarified the proper scope of s 4K(4). That provision applies only where the charges were joined in the same information, complaint or summons, a condition that flows from s 4K(3). The Court acknowledged it had overlooked this limitation when imposing the original penalty.
This second judgment addressed whether the Court could correct that error, and if so, how the penalty should be restructured.
Legal Issues
- Whether the original penalty was imposed "otherwise than in accordance with the law" because the Court had misapplied s 4K(4) of the Crimes Act 1914 (Cth) by overlooking the requirement in s 4K(3)
- Whether s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW), picked up by s 68 of the Judiciary Act 1903 (Cth), permitted the Court to reopen proceedings and correct the penalty
- How the total fine of $13.5 million should be restructured across the six individual offences
Decision
Issue 1: Error in the original sentence
The Court accepted that its earlier application of s 4K(4) was flawed (at [2]). Section 4K(4) is conditioned on s 4K(3), which requires the charges to have been brought in the same information, complaint or summons. The Court had not addressed that precondition. Although the relevant passage in Putland v The Queen arose in an agreed context, Rothman J observed that the High Court's acceptance of the agreement, and the remarks of the justices, constituted the kind of obiter that lower courts are bound to follow, a position confirmed by subsequent decisions of the Court of Criminal Appeal (at [2]).
Issue 2: Power to reopen
Section 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) expressly permits a court to reopen proceedings where a penalty has been imposed otherwise than in accordance with the law, so that a lawful penalty may be substituted. That provision was made applicable to these federal offence proceedings through s 68 of the Judiciary Act 1903 (Cth) (at [3]). The Court was satisfied that the preconditions for reopening were met.
Issue 3: Restructured penalty
The Court exercised the power under s 43 to amend the penalty. Rather than imposing the fine as a single aggregate figure under s 4K(4), the Court imposed a separate fine of $2.25 million for each of the six offences. The total financial outcome remained $13.5 million (at [4]).
Orders Made
- The reasons for judgment issued on 28 February 2025 are amended.
- The penalty imposed on Allianz Australia Insurance Ltd is amended so that a fine of $2.25 million is imposed for each of the six offences of which the company was convicted, totalling $13.5 million.
Key Takeaways
- Section 4K(4) of the Crimes Act 1914 (Cth) applies only where the conditions in s 4K(3) are satisfied, namely that the charges were joined in the same information, complaint or summons. Courts must address that precondition before relying on the provision (at [2]).
- High Court observations accepted on an agreed point, even if technically obiter, carry sufficient authority that intermediate courts are required to follow them, consistent with the approach taken by the NSW Court of Criminal Appeal (at [2]).
- Under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW), as applied through s 68 of the Judiciary Act 1903 (Cth), a court may reopen criminal proceedings and substitute a lawful penalty where the original penalty was imposed contrary to law (at [3]).
- Correcting the legal basis for a sentence need not alter the total financial penalty. Here, the restructured sentence distributed the same $13.5 million across six individual fines without changing the overall quantum (at [4]).
- The decision illustrates that s 68 of the Judiciary Act operates as the mechanism by which NSW sentencing procedural provisions are picked up and applied in proceedings for federal offences heard in state courts (at [3]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), s 4K
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Judiciary Act 1903 (Cth), s 68
Cases
- Akkawi v R (No 2) [2013] NSWCCA 72
- Alramadan v DPP (NSW) (No 2) [2008] NSWCCA 69
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
- Putland v The Queen (2004) 218 CLR 174
- R v Jones; R v Hili (No 2) [2010] NSWCCA 195