At or about the same time
147 As to whether the offences occurred at or about the same time, Smithers J observed in Ducret v Colourshot Pty Ltd (1981) 35 ALR 503 ('Ducret') at 508:
'Whether in the ordinary affairs of mankind it may be said that an event occurred at about the same time as another event, depends largely on the context.'
His Honour also commented that, according to the words 'at or about the same time'their ordinary meaning, s 79(2) of the Act would seem to reflect the principle that a man shall not be punished twice for the same offence. He favoured a practical, rather than strict, application in determining whether the coincidence in time of the offences was so close as to impart unity to them.
148 On that basis, Smithers J was of the view that the span of time contemplated must reflect an 'emphasis on the notion of contemporaneity of the contraventions rather than the notion of the collection into a fictional unity of contraventions separated by a distinct, measurable and substantial period of time' (at 508). The offences must be so close together 'that there is a basis in reality for attributing to them a unity in the commission of the actus reus of each offence': (Trade Practices Commission v Advance Bank Australia Limited (1993) ATPR 41-229 ('Advance Bank') at 41,164 per Gummow J applying Ducret).
149 Smithers J concluded in Ducret that separate contraventions committed at an interval of two months could not reasonably be regarded as having occurred at about the same time but that offences committed within four days of each other could be said to occur at about the same time (at 508). Gummow J did not accept in Advance Bank that advertisements appearing over a period of three weeks appeared at or about the same time. In Trade Practices Commission v Sun Alliance Australia Ltd (1994) ATPR 41-286, Einfeld J adopted the views of Gummow J in Advance Bank on the application of s 79(2) of the Act and found, at 41, 851, that 'the placing of the advertisements over a three-week period precludes any conclusion that the offences were so close together in time that there was a basis in reality for attributing to them a unity in the commission of them'.
150 In Farrow at 65, the prosecutor conceded and von Doussa J accepted that groups of offences, one group occurring over a period of 23 days, occurred at or about the same time. In that case, representations were made to a series of investors to invite them to engage in a business activity. Similarly in Thompson v Magnamail (No 1) (1977) ATPR 40-032 it was submitted by counsel for the defendant, the prosecution did not argue to the contrary and St John J accepted that s 79(2) applied to three offences resulting from two advertisements nearly six months apart. In neither case were reasons given for the acceptance.
151 In Hartwich Spender J found that groups of offences, two of which were committed 6 weeks and 5 days apart occurred at or about the same time. Those dates represented the time frame in which representations were made by named persons to specified persons to invite them to engage in a specific business activity. His Honour did not elaborate on the reason for the application; it would seem to have been inherent in the nature of the offences themselves.
152 In Australian Competition and Consumer Commission v The Vales Wine Co Pty Ltd (1996) ATPR 41-528 at 42,776 - 42,777 O'Loughlin J made an 'assessment' that s 79(2) applied to three offences that occurred over a period of 47 days, which were said to be 'sufficiently close in point of time' but not to an additional offence which occurred eight or nine months later. His Honour made no reference to Ducret and did not give detailed reasons for his conclusion, made without the benefit of counsel's submissions.
153 In Australian Competition and Consumer Commission v Nissan Motor Co (Aust) Pty Ltd (1998) ATPR 41-660, offences on 21 September 1996 and 10 October 1996 were held not to have occurred at or about the same time. In Crossan v Commons (1985) ATPR 40-542, nine advertisements published between 5 January 1983 and 16 February 1983 were held not to have occurred at or the same time; however, invitations to engage in business which were made between 1 January 1983 and 5 January 1983 were held to constitute one offence.
154 Chubb submits that s 79(2) applies because all of the offences came about due to one course of conduct and systemic failure rather than planned and separate incidents. This, it is submitted, makes it permissible to group all charges under one provision. It would follow that a single penalty should be imposed in respect of those charges and assessed on the basis that the maximum penalty is the maximum for one of those charges under that provision.
155 The ACCC submits that s 79(2) is not applicable because the contraventions did not occur at or about the same time. They occurred over a seventeen month period and, with limited exceptions, each offence was separated by periods of a week or more.
156 The ACCC submits that the only offences which occurred within days of each other and which could 'conceivably be regarded as having occurred at or about the same time' were charges 5 and 6 (both on 17 September 2001), charges 8 and 9 (12 and 16 November 2001) and charges 11 and 12 (20 and 21 December 2001). However, the submission was that even these do not qualify for grouping under s 79(2).
157 Mr Fagan says, constrained by authority (Cue), that a difference in place and identity of personnel who take the action that constitutes the offending conduct does not prevent the application of s 79(2). Time is the relevant factor but it is necessary, he submits, to consider the interaction between the nature of the offences and the time over which they were committed to determine whether the section applies.
158 Mr Fagan draws attention to the fact that the offences have been committed with respect to different customers and on different runs. He submits that, while offences committed with respect to the same run and within days of each other may arguably be considered to be at or about the same time for the purposes of s 79(2), it is the ACCC's contention that the more appropriately applicable section is s 4K of the Crimes Act, which gives the Court some flexibility in fixing an appropriate penalty.
159 There is a tension in Mr Fagan's submissions. On one hand he submits that the Court should consider 26 separate offences individually and not regard them as a single offence. On the other hand, he submits that Chubb cannot properly suggest that the problem arose because of the delegation to franchisees, as Chubb's function was the monitoring of the performance of the franchisees and it was Chubb that entered into the contracts and made the commitment to provide the mobile security services. In referring to the 'representational character' of the offences, Mr Fagan emphasises that they took place in the context of a 'systemic breach of the provisions'. This tends to characterise Chubb's responsibility in terms of a single, if continuing, breakdown.
160 The same tension arises in Mr Bathurst's submissions. He relies upon the systemic failure but draws attention to the actions of the individual service providers. Mr Bathurst's primary submission is that the offences arose out of one matter and, although the actions the subject of these charges occurred over a lengthy period of time, there exists a unity in the commission of the actus reus for the purpose of s 79(2).
161 The offence is one committed by Chubb not by the sub-contractors, licensees or franchisees. The elements of Chubb's offences are relevantly, for the purposes of s 58(b) of the Act, at the time of acceptance of payment for the services there were reasonable grounds, of which Chubb was aware or ought reasonably to have been aware, for believing that it would not be able to supply the services.
162 For s 75AZL(3) of the Act, the elements are the same, except that at the time of acceptance there must be reasonable grounds for believing that Chubb will not be able to supply the services. There is no requirement in s 75AZL(3) of the Act of actual or constructive knowledge on the part of Chubb. It is in this sense that this provision can be said to create a strict liability offence. Chubb admits for the purpose of s 58(b) of the Act, that it was aware or ought reasonably to have been aware of the grounds for the believe that it was unable to supply the promised services.
163 The approach of Mr Fagan concentrates on the element of the time of acceptance as separating the offences.
164 Mr Bathurst's approach, on the other hand, emphasises that the existence of the reasonable grounds for believing that Chubb would not be able to supply the services arose from what he described as the systemic failure of Chubb's systems.
165 To my mind, the grounds for believing that Chubb would not be able to supply the services was not Chubb's awareness of the failures within the runs but the state of the runs themselves. Those failures were not constant over time or between runs. The failures did not exist in all runs for which consideration was accepted by Chubb nor were all persons within the runs the subject of some failure deprived of the services for which they had contracted. At the time of acceptance of payment, Chubb may well have been able to supply services to a particular client.
166 The systemic failure meant that Chubb was not monitoring service delivery in the various runs. In each case, the new client was added to an existing run. Before that occurred, Chubb should have satisfied itself that the operator of the run could provide that service. In each case Chubb failed to do so.
167 This means, in my view, that the there was not a single offence comprising the systemic failure. The audits carried out by Chubb have shown which runs were not providing contracted services and the reasons for that failure. Chubb's failure meant that, at the time of the acceptance of consideration from each client the subject of each charge, Chubb was not aware whether or not the service provider would be able to supply the services to that client in that run.
168 Section 79(2) of the Act links the nature of the contravention and the time. Smithers J in Ducret referred to the context of the contravention in deciding whether they occurred in or about the same time.
169 The reference in s 79(2) is to the contraventions being 'of the same nature or a substantially similar nature and to have occurred at or about the same time' (emphasis added). Chubb's submissions rely on a single systemic failure on the part of Chubb. That takes care of the first of these requirements, as effectively conceded by the ACCC. To my mind, s 79(2) does not apply to a single systemic failure without regard to the time of the offences committed as a result of that failure or the context of that failure or the actions that were part of Chubb's 'systems' during that time.
170 Chubb's procedures which were, as discussed above, in theoretical operation during the Charge Period, should have resulted in monthly reviews by State General Managers that should have alerted them to deficiencies in operations.
171 The contraventions of s 58(b) occurred over a time period of over six months. The contraventions of s 75AZL occurred over nearly eleven months. The promised provision of services was to a number of different clients in different States in respect of different runs operated by different licensees or franchisees. While these latter factors do not of themselves preclude the application of s 79(2), they are matters that assist in determining the context of the time period.
172 In my opinion, it cannot be said that all of the contraventions of s 58(b) or all of the contraventions of s 75AZL occurred at or about the same time.
173 That is not, however, the end of the matter. It is submitted that there were some charges that relate to dates of acceptance of the consideration for services to be provided that were on or about the same time and should be grouped by reason of the application of s 79(2) of the Act.