Follow the links below for a full discussion of the Recommendations.
RECOMMENDATION 1
Consideration should be given to the adoption of the relevant provisions of Part 2.5 (Corporate Criminal Liability) of the Criminal Code Act 1995 (Cth) as part of the law of New South Wales.
RECOMMENDATION 2
The Crimes (Sentencing Procedure) Act 1999 (NSW) should expressly provide that the objectives of sentencing in section 3A apply to corporate offenders.
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.
RECOMMENDATION 4
In sentencing a corporation, a court, in addition to or instead of imposing a fine, should be able to make one or more other orders that it considers will best achieve the objectives of sentencing. These orders are:
Each order should be capable of being a separate, non-exclusive sanction.
The orders should form part of the general sentencing regime but should be expressed to apply only to corporations.
The orders should not detract in any way from existing legislative provisions and common law that are applicable to the sentencing of corporations.
RECOMMENDATION 5
Equity fines should not be a sentencing option.
RECOMMENDATION 6
As part of an order for disqualification a court may, among other matters:
- prevent the corporation from engaging in certain commercial activities;
- revoke or suspend a licence held by the corporation;
- disqualify the corporation from entering specified contracts;
- deny the corporation the use of its profits for a fixed period of time.
RECOMMENDATION 7
A provision relating to the dissolution of corporations should contain a statement to the following effect: “to extent necessary to do so, this provision is declared a Corporations legislation displacement provision”.
RECOMMENDATION 8
In ordering the dissolution of a corporation a court should have the power to order that shareholders and directors cannot reincorporate in certain circumstances, including where the new corporation is intended to carry on the same activities as the dissolved corporation.
The court may also order that the directors and shareholders of the dissolved corporation cannot have any beneficial interests in a corporation that substantially conducts the same activities as the dissolved corporation.
Such an order should be imposed only once any other person bound by it has been given an opportunity to be heard by the court prior to sentencing.
RECOMMENDATION 9
A court should have the power to make a correction order on such terms and subject to such conditions as it sees fit, including, but not limited to:
(a) internal discipline orders;
(b) organisational reform orders; and
(c) punitive injunctions.
RECOMMENDATION 10
Where a court orders a corporate offender to fund a community project, the project should bear a reasonable relationship to the offence and/or the objectives of the sentence.
RECOMMENDATION 11
Before sentencing a corporation to community service, the court must give any individual named in the order an opportunity to be heard.
RECOMMENDATION 12
The court should have the power to order that:
The costs of the publicity order should be borne by the offender.
RECOMMENDATION 13
The courts should have the power to stipulate in a publicity order:
(a) the target audience of the publicity;
(b) the content of the publicity, including the fact of conviction, the nature of the offence, its consequences, the nature of any punishment imposed and such other information the court deems relevant;
(c) the media to be used, or other method of implementation.
RECOMMENDATION 14
The court should have the power to restrain the publication or continued publication of any material that may have the effect of countering the intended effects of a publicity order.
RECOMMENDATION 15
The cost to a corporation of carrying out any sentencing orders together with the cost of any fine should not exceed the maximum amount of the fine applicable to the offence.
In any case, a Local Court may not impose orders the cost of which exceeds the maximum amount for which the General Division of a Local Court has jurisdiction.
RECOMMENDATION 16
A court may fix such a period as it considers necessary or expedient for carrying out the terms of an order, subject to the following:
(a) orders issued by Local Courts shall have effect for a maximum period of 3 years;
(b) orders issued by higher courts shall have effect for a maximum period of 3 years, except when the court considers there is good reason for a longer period (and has provided reasons in writing);
(c) any order may by discharged at any time before the time limit fixed by the court when the corporation provides proof of satisfactory compliance.
RECOMMENDATION 17
Courts should have a wide discretion to order the management, control, administration and supervision of their sentencing orders, including the appointment of suitable persons or organisations to supervise and/or report on a corporation’s compliance.
Courts should have the power to order that the corporate offender pay the costs of the supervision.
RECOMMENDATION 18
Upon breach of an order, the corporation should be brought before the sentencing court to be re-sentenced. The court may do any of the following:
(a) continue or extend the term of the order;
(b) impose additional or more restrictive conditions on the order; and
(c) revoke the order(s) and re-sentence the corporation.
RECOMMENDATION 19
The court may authorise a relevant regulatory agency to:
(a) do anything that is necessary or expedient to carry out any action that remains to be done under the order;
(b) publicise the failure of the corporation to comply with the order; and
(c) recover from the corporation any cost the agency incurs in taking these actions.
RECOMMENDATION 20
Penalties that apply specifically to corporations should be included in the enforcement procedures in the Fines Act 1996 (NSW), namely orders for incapacitation, community service orders and correction orders.
RECOMMENDATION 21
It should be an offence for individual corporate officers and employees to impede compliance with the terms of any order.
RECOMMENDATION 22
In cases where professional assessment of a corporation’s characteristics is required, a court should have the power to appoint a suitable person or persons to prepare a report on the corporation.
The Court should also be able to order that the corporation pay the costs of preparing the report.
The Court should be able to consider all relevant information prior to the sentencing of a corporation including, where relevant, the criminal records of its high-level personnel.
RECOMMENDATION 23
The court should be able to require the attendance at the sentencing proceedings of any of the officers of a corporation it considers appropriate in the circumstances.
“Officers of the corporation” include its directors, company secretary and executive officer.
