• Factors of general application
• Factors relevant to sentencing corporate offenders
• The offender's circumstances
• A legislative restatement

4.1 This chapter examines the principal factors that courts take into account in determining the appropriate sentence (mainly a fine under current law) to be imposed for a corporate offender. These factors originate at common law and are stated in general sentencing legislation.¹ The weight attributed to each factor is very much case-specific and lies in the discretion of the sentencing court. In exercising that discretion, the judge endeavours to make the punishment fit the crime as well as the particular circumstances of the offender. The discretion involves a synthesis of all factors relevant to the offence and offender to formulate an appropriate sentence.²

4.2 Particular statutes include lists of factors that are relevant to the sentencing of corporate offenders. These statutes apply only in certain areas of law, for example environmental law³ or trade practices law.⁴ The relevant provisions are not specific to corporate offenders and may also apply to individual offenders. However, the breach of these statutes is such that they are more likely to be committed by corporate offenders than by individuals.

4.3 The lists of relevant factors in these statutory provisions are usually open-ended and non-exhaustive, and so allow the sentencing court to take other matters into account.⁵ The listed factors represent only a small proportion of those that are commonly referred to by the courts when sentencing corporate offenders.⁶ The factors are listed in the relevant statutes in no order of priority or importance and no attempt is made to state whether a particular factor is relevant as an aggravating or mitigating factor.

FACTORS OF GENERAL APPLICATION

4.4 General sentencing legislation in New South Wales includes a list of mitigating and aggravating factors that the courts may take into account in determining sentence. The list, found in section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), is not exhaustive but is “in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law”.⁷ This section was designed with individual offenders in mind. These two factors on the list, for instance, clearly only apply to individual offenders:

• where the offence was committed while the offender was on conditional liberty in relation to an offence;
• the offender was not fully aware of the consequences of his or her actions because of the offender’s age or disability.

FACTORS RELEVANT TO SENTENCING CORPORATE OFFENDERS

4.6 Three major factors are relevant at sentencing:⁸

• the general aims of sentencing (considered in Chapter 3);
• the objective seriousness of the offence, such as whether or not the consequences were foreseeable, the extent of the harm caused, and whether the commission of the offence was deliberate;
• the circumstances of the offender – its characteristics as well as its response to the occurrence of the offence and charge.⁹

Objective seriousness of the offence

4.8 The “seriousness” of the offence is the most important factor in establishing an appropriate penalty.¹⁰ The relative seriousness of the offence is determined by reference to a worst case for which the maximum penalty is provided.¹¹ The seriousness of the offence forms the yardstick of the “objective” penalty, which (by instinctive synthesis) is augmented by aggravating factors or reduced by mitigating circumstances – an approach followed on countless occasions.¹² Generally, the objective seriousness of the offence is of greater importance to the assessment of the penalty than any mitigating factors.¹³ This is particularly so in the case of corporate offenders since the humane considerations that might apply to the sentencing of some individual offenders will not usually apply to corporations.

4.9 The key reasons for the importance given to the objective seriousness of the offence are the need for proportionality between the wrongdoing and the punitive response, and for specific and general deterrence.¹⁴ The objectives of proportionality and deterrence are particularly relevant when the offence is committed in the commercial arena, since deterrence is unlikely to be achieved when the penalties imposed are not adequate.¹⁵

4.10 Factors that go to the seriousness of an offence include:

• the gravity with which the offence is viewed by the community;
• the extent of any harm, or risk of harm, resulting from the offence;
• whether the offence involved systematic or deliberate defiance of the law; and
• the foreseeability of the offence or its consequences.

4.11 Courts have long regarded the maximum penalty as an indication of the gravity of the offence because it reflects the legislative view of the seriousness of the offending conduct.¹⁶

4.12 The courts view high or increased maximum penalties as an indicator of the “community concern”, expressed by the Parliament, to which they should give effect when assessing the relative seriousness of a particular offence.¹⁷ Increases in maximum penalties can be taken as an intention on the part of Parliament to denounce and deter particular behaviour.¹⁸ A marked increase in a maximum penalty, for example, tripling it, may be taken as an indication that Parliament intended existing sentencing patterns to be sharply increased.¹⁹ Increases in sentencing patterns do not have to be exactly proportional to increases in the statutory penalties²⁰ and “offences of low criminality remain offences of low criminality even if the maximum penalty is increased” since “the increase can readily be recognised as operating as a deterrent to wilful disregard of statutory obligations”.²¹

Extent of the harm caused

4.13 The nature and extent of any harm caused as a result of the commission of an offence may be a factor in determining objective seriousness. Legislation and case law take harm into account in one of two ways:

• the gravity of actual harm is considered indicative of the seriousness of the offence;
• the potential risk of harm from the offence is considered indicative of the seriousness of the offence. It is common for courts to find that despite little or no actual harm arising, the potential for harm was significant and should be taken into account on sentence.²²

• actual disturbance to fauna, flora and aquatic life;
• the time period for which the disturbance lasted;
• the geographical extent of the damage;
• the cost of cleanup operations; and
• any ongoing effects.²⁴

4.16 In occupational health and safety cases, a significant body of case law follows similar principles. Thus, assessment of the seriousness of an offence is not dependent upon the occurrence of serious harm, but may be indicated by it, especially in cases of loss of life.²⁷ Further, a breach where serious harm was highly likely might be assessed on a different basis to a breach where such consequences were unlikely.²⁸ The courts have, therefore, recognised that the greater the risk and gravity of harm in a given situation, the higher the duty to take precautions, even if such precautions are expensive or difficult to adopt.²⁹ However, on some occasions, the court has emphasised that serious or fatal injuries resulting from an offence do not mean that the court will automatically impose a heavier penalty.³⁰

Systematic or deliberate defiance of the law

4.17 Generally, if the offence involves systematic and deliberate defiance of the law, it will be characterised as more serious, and therefore attract a higher penalty.

4.18 For example, one factor to be taken into account under s 76 of the Trade Practices Act 1974 (Cth) is the “deliberateness of the contravention and the period over which it extended”,³¹ particularly when senior management of a large company is involved in the contravention.³² Establishing proportional relationship between the deliberateness of the wrongdoing and the severity of the penalty is seen as essential to deterring the offender and others from making commercial decisions in defiance of the law.³³

4.19 Environmental protection cases also support the principle that systematic or deliberate contravention of the law will attract stronger penalties. The NSW Court of Criminal Appeal has noted that high maximum penalties were provided by the legislation to cover, for instance, offences “committed deliberately after a cost/benefit analysis by the perpetrator”.³⁴ If the offence can be characterised as “deliberate”, “repeated”, “flagrant” or motivated primarily by economic considerations, it will be treated as more serious, and therefore attract a higher penalty.³⁵

Foreseeability of the offence or its consequences

4.20 Another factor is whether the offender should have foreseen the event or its consequences. If an offence is deemed to have been foreseeable, the court will view it as more serious, and the offender as more culpable for allowing the event or its consequences to occur. The offence will thereby warrant a higher penalty. Foreseeability is relevant to the assessment of penalty regardless of whether it is an element of the offence itself.³⁶

4.21 In occupational health and safety cases foreseeability is determined as follows:

Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act … the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence …

The standard of foreseeability is objective, but it is not necessary that the precise causal circumstances of exposure to the risk and the consequent accident were reasonably foreseeable ...³⁷

4.23 In occupational health and safety cases the guiding rationale in considering issues of foreseeability is provided by the general aims of the Occupational Health and Safety Act 2000 (NSW). Because the Act is directed toward the implementation of safe systems of work,³⁹ the foreseeability of a safety risk in respect of the actual harm caused, the potential for harm, or both, will count toward the gravity of the offence and thereby increase the penalty.⁴⁰

4.24 The degree of foreseeability of the harm or potential for harm caused by an offence is often found to be relevant to the seriousness of environmental offences. The Protection of the Environment Operations Act 1997 (NSW) requires a sentencing court to consider:

the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence.⁴¹

THE OFFENDER’S CIRCUMSTANCES

4.26 This section deals with factors that relate to the offender, its characteristics and also its response to the occurrence of the offence and charge, including:

• the offender’s financial circumstances;
• the presence of corporate compliance systems;
• whether the corporation accepts responsibility or cooperates with authorities;
• whether management is involved in or tolerates the criminal activity;
• the corporation’s prior criminal record;
• the offender’s corporate character; and
• the effect of the sentence on the provision of public services.

4.27 Section 6 of the Fines Act 1996 (NSW) provides that in the exercise of its discretion to fix the amount of a fine, the court is required to consider any information regarding the means of the accused as is reasonably and practicably available to the court. Courts have used this provision to reduce the amount of the fine imposed where it appeared that the financial circumstances of the accused did not warrant a high penalty.⁴³ Independently of this statutory provision, courts have developed a sentencing principle that the financial circumstances of the offender are to be taken into account when determining the fine to be imposed.⁴⁴ Subject always to the objective seriousness of the offence, if the corporation is financially able to pay a large fine, the court may impose an amount in the upper range.⁴⁵

4.28 Size of the company. Among the financial circumstances that a court considers important is the size of the corporation.⁴⁶ The court is entitled to take into account the fact that the business of the offender is large in size with substantial assets. A fine that would operate as no significant imposition on a large corporation might well ruin a smaller one.⁴⁷ Depending on the objective seriousness of the offence, large corporations that contravene a particular law can expect penalties in the upper reaches of the range.⁴⁸

4.29 On the other hand, courts will not usually impose a high penalty on a small company if the penalty will be oppressive or cause undue hardship to the company, or render the company’s business unviable.⁴⁹ For example, the New South Wales Industrial Relations Commission reduced a sentence upon finding that the imposition of a fine of $160,000 on a company with net assets of $31,000 was demonstrably oppressive.⁵⁰ It is not the function of the court to impose a penalty that would put a company out of business or into liquidation.⁵¹ Courts are also mindful of possible negative consequences that a harsh fine might have on innocent third parties, such as the corporation’s employees.⁵²

4.30 Other financial circumstances. The courts have looked at other financial circumstances when determining the appropriate amount of fine including: the fact that the company had gone through low profit years; was burdened with bad debts and had reinvested all profits back into the company;⁵³ was paying back substantial debt; ran at a loss and supported five family members;⁵⁴ or was experiencing deteriorating trading conditions.⁵⁵

4.31 Where a court regards a corporation as the alter ego of its owners, it may look at the financial circumstances of the latter, even though they are not parties to the case, in determining the financial capacity of the company to pay a fine.⁵⁶

Corporate compliance systems

4.32 The absence or inadequacy of procedures in the corporation to prevent the contravention of the law may aggravate the penalty.⁵⁷ On the other hand, the existence of such a system may result in a more lenient penalty.⁵⁸ For example, steps taken by the company to educate employees prior to the breach or the existence of a company policy against breaches of the law have been held to be relevant.⁵⁹ Steps taken by the corporation after the occurrence of the offence, such as the adoption or improvement of policies and procedures to prevent further contravention may be taken into account to mitigate the penalty.⁶⁰

4.33 Most of the New South Wales cases where the presence or absence of corporate compliance systems have been held relevant have been in the areas of occupational health and safety,⁶¹ environment protection and contempt by publication. There is, however, a lack of clarity in the cases as to what is required for a compliance system to help mitigate the severity of corporate penalties. There is some confusion over whether the mere existence of a compliance system is sufficient or if the corporation must prove that the system has the capacity to prevent and detect violations of the law. The standards by which the effectiveness of such programs could be gauged are not apparent.

4.34 In cases under the Trade Practices Act 1974 (Cth), the Federal Court has held that an important factor in mitigation is whether the company has a corporate culture conducive to compliance with the Act. Evidence of educational programs and disciplinary or other corrective measures in response to an acknowledged contravention may be given.⁶² However, the court will only mitigate the penalty if the company provides specific evidence of a compliance system aimed at preventing breaches of the Act.⁶³ Mere policy statements by the board or other senior management regarding an intention to adopt a compliance system will not be sufficient.⁶⁴

4.35 The Commission is of the view that it should not be sufficient for a compliance program to exist or for a corporation merely to exhort its officers and employees to obey the law. Case law supports the view that a compliance program must also be a successful management tool with the demonstrated capacity to prevent, detect and remedy breaches that may occur in the daily conduct of the company’s business.⁶⁵ Hence, shortcomings in a compliance system that contribute to the commission of an offence may aggravate the penalty.⁶⁶ It is unclear, however, what factors the courts will look at in determining the capacity of a compliance program to be successful and effective. For example, is the occurrence of an offence determinative of an inquiry into whether the compliance program as a whole is ineffective?

4.36 In the United States, the Guidelines for Sentencing of Organizations provide for substantial reductions in the amount of the fine to be imposed if the organisational offender had an effective compliance program.⁶⁷ The US Sentencing Commission’s commentary on the Guidelines states that an effective compliance program requires a corporation to have:

• established compliance standards and procedures that are “reasonably capable of reducing the prospect of criminal conduct” by its employees and other agents;
• made specific officers in important positions within the corporation responsible for overseeing compliance with the standards and procedures;
• taken due care not to delegate “substantial discretionary authority” to persons who have a propensity to engage in illegal activities;
• taken steps to communicate the standards and procedures effectively to all employees and other agents;
• taken reasonable steps to achieve compliance with the standards;
• consistently enforced the standards through appropriate disciplinary mechanisms, including the disciplining of individuals responsible for an offence and of those who failed to detect offences;
• taken all reasonable steps, after an offence has been detected, “to respond appropriately to the offense and to prevent further similar offenses”.⁶⁸

Acceptance of responsibility and cooperation with the authorities

4.38 Courts have recognised that repentance and remorse are relevant to reducing a sentence in appropriate cases. It might be argued that remorse “cannot be felt by a corporate abstraction”.⁷⁰ However, it has been held that factors evincing contrition by a natural person charged with a serious crime under the general criminal law apply equally to corporations.⁷¹ Corporate contrition may be evidenced in a number of ways:

• a plea of guilty;
• cooperation with investigators, regulators and prosecutors;
• stopping the offending conduct voluntarily; or
• making reparation.

4.40 Co-operation with investigators, regulators and prosecutors. The consequences that flow when a natural person charged with a serious crime cooperates with the authorities arise equally when a corporate offender co-operates.⁷⁶ For example, the fact that a company’s management reports an accident in the workplace to WorkCover on the day it happens may be a factor that goes towards the company getting a substantial discount at sentencing. The important factors in determining whether a discount should be allowed, as well as the amount of the discount, include matters such as the nature of the co-operation; whether it had the potential to assist the investigation significantly; whether information was provided which the offender did not believe was already in the possession of the authorities; and whether the consequence of providing such assistance was likely to increase the risk of prosecution or to lead to the prosecution of others.⁷⁷

4.41 Discontinuing the offending conduct. An offender’s prompt action in discontinuing unlawful conduct after discovery of its illegality is relevant in determining an appropriate penalty.⁷⁸

4.42 Reparation. Remedial action undertaken by a corporate offender to repair any harm done is a very important consideration in sentencing.⁷⁹ Hence, a corporation convicted of an air pollution offence was given a substantial discount because, after being charged, it expended considerable amounts of capital to mitigate the pollution.⁸⁰ In convictions relating to occupational health and safety, steps taken to address the risk to safety highlighted by a workplace accident, and the assistance provided to the victim or the victim’s relatives have also been taken into account as mitigating factors.⁸¹

Involvement in or tolerance of criminal activity by management

4.43 Whether the contravention arose out of the conduct of senior management or at a lower level is relevant in the assessment of the appropriate penalty.⁸² The higher the level of management implicated in the contravention, the more serious the infringement and the higher the level of penalty that will be imposed.⁸³ An issue that arises in this context relates to the nature of the conduct of management and other individuals in the corporation. It is clear that active participation by management in the offence can be an aggravating factor. But it must also be the case that tolerance or ignorance of the offence by corporate officers and directors can, in appropriate circumstances, be relevant. The Federal Court has considered the fact that several corporate officers became aware of illegal conduct but did nothing to correct it as relevant in determining the appropriate sentence.⁸⁴

4.44 In the United States, the Guidelines for Sentencing of Organisations provide for the aggravation of the penalty if:

(1) an individual within “high-level personnel” of the organisation participated in, condoned, or was wilfully ignorant of the offence; or

(2) tolerance of the offence by “substantial authority personnel” was pervasive throughout the organisation.⁸⁵

Prior criminal record

4.46 An offender’s prior record is relevant at sentencing. A good record will invariably be taken into account in the offender’s favour.⁸⁷ One previous conviction may not necessarily be taken as evidence of a bad record when other circumstances are considered, such as the size and extent of the operations of the corporation.⁸⁸ However, a record of recent breaches of the law may show that the offence was not aberrant and will aggravate the penalty.⁸⁹

Corporate character

4.47 A corporation’s “character” or reputation may be taken into account during sentencing in the same way as that of an individual. Generally, evidence of good character reduces the severity of the penalty imposed. A clean prior record will usually be taken as an indication of good character.⁹⁰ They are, however, not synonymous.⁹¹ Courts look at many other factors that may indicate a “fine corporate character”⁹² or “good industrial citizenship”.⁹³ Such factors may relate to the nature of the corporation’s business, the contribution that its business makes to the community or to the particular industry to which it belongs, and the fact that it is generating employment. The following examples are illustrations of the kinds of factors courts have taken into account when determining the character of a corporation:

• The corporation’s business, although for its own commercial profit, offered some benefit to the community, in that it served an environmentally useful purpose.⁹⁴
• The corporation, convicted of polluting waters, had a strong environmental commitment, and was making efforts to increase standards Australia-wide on fuel decanting operations.⁹⁵
• The corporation provided employment and produced “work of excellence”.⁹⁶
• The corporation was undertaking charitable work, and gave funding to research, even though it also received some benefit from these activities.⁹⁷
• The predecessor of the corporation, which had been operating for decades, suffered financial loss and went into liquidation. The corporation was formed by the children of the directors of the previous company to avoid the bankruptcy of their parents, and in the process paid off the creditors of the former company and saved jobs.⁹⁸
• The corporation made efforts to rehire and accommodate an injured worker.⁹⁹

Effect on provision of services to the public

4.49 In one of the Commission’s consultation meetings, government regulators pointed out a difficulty in cases involving entities that render service to the public.¹⁰² It was said that while there is a need to ensure that these entities are treated like others when they breach the law, courts must also consider any adverse consequences a heavy fine might have for the community. For example, a fine imposed on the State Rail Authority might affect services to the commuting public if the fine is so great that it impacts on the SRA’s capacity to operate efficiently. The concern for a penalty’s effects on services beneficial to the community should also be taken into account in cases involving non-government corporations.¹⁰³

A LEGISLATIVE RESTATEMENT

4.50 The Commission is of the view that legislation should contain a non-exhaustive list of the more important aggravating and mitigating factors that a court should take into account when sentencing corporate offenders to make the punishment fit the crime and the circumstances of the offender. The Commission stresses that the judicial officer’s discretion in identifying and synthesising the factors relevant to the offence and offender remains crucial to reaching an appropriate sentence. The illustrative list of relevant important factors is intended to be no more than a useful guide for both the court and corporations themselves. It would not in any way limit judicial discretion.

4.51 In addition to clarifying that relevant factors in section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) apply to corporate offenders, the Commission considers that there is a need to add other factors that are particularly relevant to corporate offenders.

Aggravating factors

4.52 The aggravating factors that ought to be identified in legislation are:

• Foreseeability of the offence or its consequences. If the accused could have reasonably foreseen the occurrence of the offence and any harm caused or likely to be caused, this should be indicative of the seriousness of the offence and favour the imposition of a higher penalty.¹⁰⁴
• Involvement in or tolerance of the criminal activity by management. The legislation should clarify the nature of the relevant managerial conduct. In particular, it should be made clear that, in addition to active management participation in the offence, tolerance or wilful ignorance of the offence may also aggravate the penalty. The United States Guidelines for Sentencing of Organizations provide a useful comparative model,¹⁰⁵ especially for identifying the corporate officers and employees who ought to be targeted by such a provision.
• Absence of an effective compliance program. The cases indicate that the absence or inadequacy of procedures in the corporation to prevent the contravention of the law may aggravate the penalty.¹⁰⁶ This is likely to be relevant only where a compliance program ought in all the circumstances to have been in place. Case law has developed a test on the adequacy of compliance programs for purposes of sentencing.¹⁰⁷

4.53 The mitigating factors that ought to be added to the legislative list are:

• Financial circumstances of the offender. Courts should be able to tailor the penalty to the financial situation of the corporation so that the imposition of a penalty, within the appropriate range, is not oppressive, or would not cause undue hardship or render the company’s business unviable.¹⁰⁸
• Presence of an effective compliance program. A compliance program must be effective and not merely a matter of form for its presence to be a mitigating factor.¹⁰⁹
• Stopping unlawful conduct promptly and voluntarily. Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) already recognises the predominant ways that an offender’s contrition may be evinced. These include a plea of guilty by the offender,¹¹⁰ assistance by the offender to law enforcement authorities,¹¹¹ and the making of reparations for any injury, loss or damage.¹¹² An offender’s voluntary action in stopping the unlawful conduct within a reasonable time after its discovery is a further factor that should be added to the legislative statement.¹¹³
• Effect of the penalty on services to the public. The courts should be able to take into account any adverse effects a penalty might have on the provision of public services.

RECOMMENDATION 3
Legislation should provide that, in addition to the factors listed in section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) that are relevant to the sentencing of corporate offenders, a court is to take into account the following matters in determining the appropriate sentence for a corporate offender:


Aggravating Factors:

(a) the corporation could have reasonably foreseen the occurrence of the offence and any harm caused or likely to be caused;

(b) individuals who have substantial control of the organisation, or who have a substantial role in policy making, participated in, condoned, or were wilfully ignorant of the offence;

(c) tolerance of the offence by members of management and others who exercise a substantial measure of discretion in acting on behalf of the corporation was pervasive throughout the corporation;

(d) the corporation did not have, at the time of the offence, an effective compliance program designed to prevent and detect violations of the law.


Mitigating Factors:

(a) the financial circumstances of the corporation;

(b) the corporation had, at the time of the offence, an effective compliance program designed to prevent and detect violations of the law;

(c) the corporation stopped the unlawful conduct within a reasonable time of its discovery;

(d) the effect of the penalty on services to the public.


The matters referred to above should be in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

1. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A.

2. Wong v The Queen (2001) 207 CLR 584; Cameron v The Queen (2002) 76 ALJR 382.

3. Protection of the Environment Operations Act 1997 (NSW) s 241. See also Pesticides Act 1999 (NSW) s 109.

4. Trade Practices Act 1974 (Cth) s 76.

5. See for example, the Protection of the Environment Operations Act 1997 (NSW) s 241(2).

6. For example, while there are only four listed factors in the Trade Practices Act 1974 (Cth) s 76, the courts usually refer to others. In Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076, French J identified nine relevant factors (including those listed in s 76) in determining the appropriate penalty for breach of the Trade Practices Act 1974 (Cth).

7. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(1).

8. R G Fox and A Freiberg, Sentencing: State and Federal law in Victoria (2nd ed, Oxford University Press, 1999) at 181.

9. For a discussion of the objective seriousness of the offence and the circumstances of the offender, see NSW Law Reform Commission, Sentencing (Discussion Paper 33, 1996), ch 5.

10. Veen v The Queen (No 2) (1988) 164 CLR 465. See also Patton v Fletcher Construction Australia Limited (No 2) [2003] NSWIRComm 94 at para 4.

11. Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 (Kirby P). See also Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch’ng) (1999) 90 IR 464 at 474;

12. See WorkCover Authority of NSW (Inspector Farrell) v Forgacs Shipyard Pty Ltd [2001] NSWIRComm 227; WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163; WorkCover Authority of NSW v Profab Industries Pty Ltd (2000) 49 NSWLR 700; WorkCover Authority of NSW (Inspector Bourne) v Delta Pty Ltd [2000] NSWIRComm 67; Fletcher Construction Australia Ltd v WorkCover Authority of NSW (Inspector Fisher) (1999) 91 IR 66.

13. Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch’ng) (1999) 90 IR 464 at 475.

14. R v Radich [1954] NZLR 86 at 87, cited with approval by the NSWCCA in R v Rushby [1977] 1 NSWLR 594 at 598.

15. Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR ¶40-091 at 17,896.

16. R v Oliver (1980) 7 A Crim R 174 at 177 (Street CJ).

17. Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 (Kirby P).

18. R v Howland (1999) 104 A Crim R 273 at 279 (Spigelman CJ). Followed in Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd (2001) 105 IR 348; Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610.

19. R v Slattery (1996) 90 A Crim R 519 at 524 (Hunt CJ at CL). This has been followed in WorkCover Authority of NSW (Inspector Reynolds) v NorthPower [2001] NSWIRComm 104 at para 155; WorkCover Authority of NSW (Inspector Donnelly) v Riverina Wool Combing Pty Ltd [2000] NSWIRComm 29 at para 38.

20. Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 119 LGERA 440; Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25.

21. Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at para 37. See also Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 119 LGERA 440.

22. See, eg, Environment Protection Authority v Simplot Australia Pty Ltd [2001] NSWLEC 264; Environment Protection Authority v J K Williams Contracting Pty Ltd [2001] NSWLEC 13; Environment Protection Authority v Supreme Poultry & Chickens Pty Ltd [2001] NSWLEC 215; Environment Protection Authority v Ferrcom Pty Ltd [1999] NSWLEC 162.

23. Protection of the Environment Operations Act 1997 (NSW) s 241(1)(a).

24. See, for example, Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66; Environment Protection Authority v The Shell Company of Australia Ltd [2000] NSWLEC 16; Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156; Environment Protection Authority v CSR Ltd [2001] NSWLEC 267; Environment Protection Authority v Heggies Bulkhaul Limited [2003] NSWLEC 77.

25. Trade Practices Act 1974 (Cth) s 76(1).

26. Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 at 52,155.

27. Genner Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Guillarte) (2001) 110 IR 57 at 72; WorkCover Authority of NSW (Inspector Lancaster) v BHP Steel (AIS) Pty Ltd (2001) 111 IR 181; Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch’ng) (1999) 90 IR 464 at 476.

28. Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610 at 650.

29. WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239; WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182.

30. See, for example, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456.

31. Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 at 52,152. See also Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR ¶40-091.

32. Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR ¶41-375 at 40,167.

33. Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238 at 240-241; Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR ¶41-375 at 40,167; Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR ¶40-091 at 17,896.

34. Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 119 LGERA 440 at para 57.

35. See Environment Protection Authority v Energy Services International Pty Ltd [2001] NSWLEC 59; Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25. But see Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at para 29, where the NSW Court of Criminal Appeal stated that the deliberate actions of an employee will not necessarily count against the corporation.

36. Foreseeability is most often raised in occupational health and safety and environmental cases, where liability is strict and causality is irrelevant.

37. Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27. Approved in Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610. See also WorkCover Authority of NSW (Inspector Ankucic) v McDonald’s Australia Ltd (2000) 95 IR 383; WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (2000) 101 IR 261; WorkCover Authority of NSW (Inspector Bourne) v Delta Pty Ltd [2000] NSWIRComm 67.

38. Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610 at 646.

39. Drake Personnel Ltd v WorkCover Authority of NSW (Inspector Ch’ng) (1999) 90 IR 432 at 452-453; Haynes v CI & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159; Hannah v Ricegrowers Co-operative Ltd (NSW Industrial Court, No 88/1990, Fisher P, 20 November 1990, unreported).

40. See WorkCover Authority of NSW (Inspector Dubois) v Transfield Pty Ltd [2000] NSWIRComm 204; WorkCover Authority of NSW (Inspector Richey) v State Rail Authority of NSW [2000] NSWIRComm 205; WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (2000) 101 IR 261; WorkCover Authority of NSW (Inspector Ankucic) v McDonald’s Australia Ltd (2000) 95 IR 383.

41. Protection of the Environment Operations Act 1997 (NSW) s 241(c). See Environment Protection Authority v Heggies Bulkhaul Limited [2003] NSWLEC 77; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 699-700 (Kirby P).

42. See Environment Protection Authority v Duke Eastern Gas Pipeline Pty Ltd [2002] NSWLEC 84; WorkCover Authority of NSW (Inspector Lancaster) v BHP Steel (AIS) Pty Ltd (2001) 111 IR 181; Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25; Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156; Environment Protection Authority v Simplot Australia Pty Ltd [2001] NSWLEC 40.

43. Workcover Authority of NSW (Inspector Mansell) v Hayman Industries Pty Ltd [2003] NSWIRComm 154; Mosman Municipal Council v Menai Excavations Pty Ltd (2002) LGERA 89 at para 36 (Lloyd J); WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at para 27.

44. WorkCover Authority of NSW (Inspector Patton) v P & M Denton Building Constructions Pty Ltd [2003] NSWIRComm 17 at para 77; Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR ¶41-833 at para 58; WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at para 7; Australian Competition and Consumer Commission v Mayo International Pty Ltd (No 3) (1998) ATPR ¶41-655 at 41,284.

45. Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR ¶41-375; Registrar of the Court of Appeal v John Fairfax Group Pty Ltd (NSWCA, No 40478/92, 21 April 1993, unreported); Trade Practices Commission v Carlton United Breweries Ltd (1990) 24 FCR 532.

46. Trade Practices Commission v Carlton United Breweries Ltd (1990) 24 FCR 532; Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR ¶41-375; Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 419.

47. Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 119 LGERA 440; Trade Practices Commission v Carlton United Breweries Ltd (1990) 24 FCR 532; Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR ¶41-375.

48. Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076.

49. WorkCover Authority of NSW (Inspector Reynolds) v PF Thearle & Co Pty Ltd [2001] NSWIRComm 105; WorkCover Authority of NSW (Inspector Robinson) v Milltech Pty Ltd [2001] NSWIRComm 192; Smith v Cnizonom (NSWLEC, 25 March 1982, unreported).

50. Manpac Industries Pty Ltd v WorkCover Authority of NSW (Inspector Glass) (2001) 106 IR 435.

51. Attorney General v Mayas Pty Ltd (NSWCA, No 174/83, 28 March 1984, unreported).

52. In Smith v Cnizonom (NSW LEC, 25 March 1982, unreported) the court stated that a substantial penalty for the offender could create undue hardship on the company and could cause employment problems.

53. WorkCover Authority of NSW (Inspector Lancaster) v Burnshaw Constructions Pty Ltd [2001] NSWIRComm 306.

54. WorkCover Authority of NSW (Inspector Howard) v General Beton Co Pty Ltd (2001) 107 IR 278.

55. WorkCover Authority of NSW (Inspector Robinson) v Milltech Pty Ltd [2001] NSWIRComm 192.

56. WorkCover Authority of NSW (Inspector Dubois) v Galicia Constructions Pty Ltd [2000] NSWIRComm 195 (a company was formed to enable a builder to secure a building contract, and the builder and his wife were the only directors and shareholders of the company).

57. Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSWCA, No 40236/96, 11 March 1998, unreported) at 22-26 (Priestly J), at 6-11 (Powell J); Harkianakis v Skalkos (NSWCA, No 40514/96, 15 October 1997, unreported) at 6-9 (Mason P); Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076; R v David Syme & Co Ltd [1982] VR 173 at 182 (Marks J).

58. See, for example, Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (in liquidation) (1992) 7 BR 364.

59. Trade Practices Commission v Annand and Thompson Pty Ltd (1987) ATPR ¶40-772; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285.

60. Environment Protection Authority v Supreme Poultry & Chickens Pty Ltd [2001] NSWLEC 215; State Rail Authority of NSW v WorkCover Authority of NSW (Inspector Dubois) (2000) 102 IR 218; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; Trade Practices Commission v Annand and Thompson Pty Ltd (1987) ATPR ¶40-772.

61. See, for example, Patton v Fletcher Construction Australia Limited (No 2) [2003] NSWIRComm 94.

62. Australian Competition and Consumer Commission v Nissan Motor Company (Australia) Pty Ltd (1998) ATPR ¶41-660; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238; Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR ¶41-375; Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076; Trade Practices Commission v Malleys Ltd (1979) 25 ALR 250.

63. Trade Practices Commission v CC (NSW) Pty Ltd (No 2) (1995) ATPR ¶41-406.

64. Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076.

65. Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238. See also C Parker and O Conolly, “Is there a duty to implement a corporate compliance system in Australian law?” (2002) 30 Australian Business Law Review 273 at 285-286 for an analysis of ACCC v Australian Safeway Stores Pty Ltd and related cases.

66. Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238; ACCC v Nissan Motor Company (Australia) Pty Ltd (1998) ATPR ¶41-660.

67. United States Sentencing Commission, Guidelines manual (2002) § 8C2.5(f).

68. United States Sentencing Commission, Guidelines manual (2002) § 8C2.5(f), Commentary.

69. United States Sentencing Commission, Guidelines Manual (2002) § 8C2.5(f), Commentary.

70. Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR ¶41-375 at 40,169.

71. Alcatel Australia Ltd v WorkCover Authority of NSW (1996) 70 IR 99 at 106-107.

72. WorkCover Authority of NSW (Inspector Stewart) v Siemans Dematic Pty Ltd (No 2) [2003] NSWIRComm 45; WorkCover Authority of NSW (Inspector Blume) v TMP Worldwide eResourcing [2003] NSWIRComm 37; Environment Protection Authority v Heggies Bulkhaul Limited [2003] NSWLEC 77; Holroyd City Council v Skyton Developments Pty Ltd [2002] NSWLEC 32; Environment Protection Authority v Johnson & Johnson Pacific Pty Ltd (2001) 114 LGERA 169; Environment Protection Authority v J K Williams Contracting Pty Ltd [2001] NSWLEC 13; WorkCover Authority of NSW (Inspector Buggy) v P&O Ports Ltd [2000] NSWIRComm 249; Commissioner for Consumer Affairs v Reject Shop (Australia) Pty Ltd [1999] NSWSC 62.

73. Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610; Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 419; Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR ¶41-375.

74. See Environment Protection Authority v J K Williams Contracting Pty Ltd [2001] NSWLEC 13; Environment Protection Authority v Johnson & Johnson Pacific Pty Ltd (2001) 114 LGERA 169; WorkCover Authority of NSW (Inspector Buggy) v P&O Ports Ltd [2000] NSWIRComm 249; Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (NSWCA, No 40139/90, 11 October 1990, unreported).

75. R v Craven (1995) 17 ACSR 368.

76. Alcatel Australia Ltd v WorkCover Authority of NSW (1996) 70 IR 99 at 106-107.

77. Alcatel Australia Ltd v WorkCover Authority of NSW (1996) 70 IR 99 at 107. For more recent examples of the application of this principle, see Environment Protection Authority v Heggies Bulkhaul Limited [2003] NSWLEC 77; WorkCover Authority of NSW (Inspector Suliman) v Favelle Favco Cranes Pty Ltd [2003] NSWIRComm 150; WorkCover Authority of NSW (Inspector Vierow) v J Gardner (NSW) Contractors Pty Ltd [2003] NSWIRComm 19; Workcover Authority of NSW (Inspector Mansell) v Hayman Industries Pty Ltd [2003] NSWIRComm 154.

78. Trade Practices Commission v Malleys Ltd (1979) 25 ALR 250.

79. Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701. See also Environment Protection Authority v Heggies Bulkhaul Limited [2003] NSWLEC 77; Environment Protection Authority v Supreme Poultry & Chickens Pty Ltd [2001] NSWLEC 215; Environment Protection Authority v J K Williams Contracting Pty Ltd [2001] NSWLEC 13.

80. Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701; See also Environment Protection Authority v Heggies Bulkhaul Limited [2003] NSWLEC 77 at para 32; Environment Protection Authority v Simplot Australia Pty Ltd [2001] NSWLEC 40 at para 27 (Bignold J); Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 at para 55 (Lloyd J).

81. WorkCover Authority of NSW (Inspector Buggy) v P & O Ports Ltd [2000] NSWIRComm 249; WorkCover Authority of NSW (Inspector Dubois) v Transfield Pty Ltd [2000] NSWIRComm 204.

82. Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076.

83. Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR ¶41-375.

84. Trade Practices Commission v Dunlop Australia (1980) 30 ALR 469.

85. United States Sentencing Commission, Guidelines manual (2002) § 8C2.5(b), Commentary. The extent of the aggravation of the penalty depends on the number of employees of the corporation.

86. United States Sentencing Commission, Guidelines manual (2002) § 8A1.2, Commentary.

87. WorkCover Authority of NSW (Inspector Vierow) v J Gardner (NSW) Contractors Pty Ltd [2003] NSWIRComm 19; Patton v Fletcher Construction Australia Limited (No 2) [2003] NSWIRComm 94; Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66; Environment Protection Authority v J K Williams Contracting Pty Ltd [2001] NSWLEC 13; Environment Protection Authority v The Shell Company of Australia Ltd [2000] NSWLEC 16; Attorney General (NSW) v Time Inc Magazine Co Pty Ltd (NSWCA, No 40331/94, 21 October 1994, unreported); Attorney General (NSW) v Macquarie Publications Pty Ltd (1988) 40 A Crim R 405 at 410 (Kirby P); Director of Public Prosecutions (Cth) v Australian Broadcasting Corporation (1987) 7 NSWLR 588 at 615; Hinch v Attorney General (Vic) [1987] VR 721 at 752 (Kaye J); Trade Practices Commission v Malleys Ltd (1979) 25 ALR 250.

88. WorkCover Authority of NSW (Inspector Ankucic) v McDonald’s Australia Ltd (2000) 95 IR 383; Environment Protection Authority v The Shell Company of Australia Ltd [2000] NSWLEC 16.

89. Environment Protection Authority v Virotec International Ltd [2002] NSWLEC 110; WorkCover Authority of NSW (Inspector Olive) v Transfield Pty Ltd [2001] NSWIRComm 295.

90. WorkCover Authority of NSW (Inspector Ankucic) v McDonald’s Australia Ltd (2000) 95 IR 383; Environment Protection Authority v Devro-Teepak Pty Ltd [2000] NSWLEC 275 at para 24; Environment Protection Authority v Camberwell Coal Pty Ltd [1999] NSWLEC 193 at para 16 (Cowdroy J).

91. Melbourne v The Queen (1999) 198 CLR 1 at 42 (Kirby J).

92. WorkCover Authority of NSW (Inspector Howard) v General Beton Co Pty Ltd (2001) 107 IR 278 at 282.

93. WorkCover Authority of NSW (Inspector Vierow) v J Gardner (NSW) Contractors Pty Ltd [2003] NSWIRComm 19 at para 18; WorkCover Authority of NSW (Inspector Ankucic) v McDonald’s Australia Ltd (2000) 95 IR 383 at 454.

94. Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701; Environment Protection Authority v Virotec International Ltd [2002] NSWLEC 110.

95. Environment Protection Authority v The Shell Company of Australia Ltd [2000] NSWLEC 16.

96. WorkCover Authority of NSW (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34.

97. Environment Protection Authority v Virotec International Ltd [2002] NSWLEC 110.

98. WorkCover Authority of NSW (Inspector Howard) v General Beton Co Pty Ltd (2001) 107 IR 278.

99. WorkCover Authority of NSW (Inspector Vassel) v Duff Bros Pty Limited [2000] NSWIRComm 78.

100. Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238.

101. Trade Practices Commission v ICI Australia Operations Pty Ltd (1991) 105 ALR 115.

102. Government Regulation and Prosecution Agencies, Consultation. See also United States Sentencing Commission, Guidelines manual (2002) § 8C4.7, which allows departures from the Guidelines’ fine range if the offender is a public entity.

103. The Australian Red Cross Society is an example of a non-government corporation which renders valuable services to the public.

104. See para 4.20-4.25.

105. See para 4.43-4.45.

106. See para 4.32.

107. See para 4.35.

108. See para 4.29.

109. See para 4.33-4.37.

110. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(k).

111. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(m).

112. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(i).

113. See para 4.41.