COMPARABLE sentencing decisions
15 Although Part 1B of the Crimes Act does not specifically provide for sentencing judges to take current sentencing practices into account, the High Court has recently stated that, with federal offences, it is implicit in that Part that a sentencing judge "must have regard to current sentencing practices throughout the Commonwealth": see R v Pham [2015] HCA 39 (Pham) at [23] per French CJ, Keane and Nettle JJ. Their Honours explained the justification for this approach in the following terms (at [24]):
As Kirby J observed in Putland v The Queen, a federal offence is, in effect, an offence against the whole Australian community and so the offence is the same for every offender throughout the Commonwealth. Hence, in the absence of a clear statutory indication of a different purpose or other justification, the approach to the sentencing of offenders convicted of such a crime needs to be largely the same throughout the Commonwealth. Further, as Gleeson CJ stated in Wong, the administration of criminal justice functions as a system which is intended to be fair, and systematic fairness necessitates reasonable consistency. And, as was observed by the plurality in Hili, the search for consistency requires that sentencing judges have regard to what has been done in comparable cases throughout the Commonwealth.
(Emphasis added and footnotes excluded)
16 To assist in achieving the consistency mentioned immediately above, the Commission has provided me with a schedule of comparable sentencing decisions. In considering that schedule, I have borne in mind the observations in Pham that there is a twofold purpose to be served. The first is that such decisions may "provide guidance as to the identification and application of relevant sentencing principles". The second is that the exercise may enable me to determine whether comparable decisions yield "discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence": see Pham at [26]. However, I also heed the Court's warning that the range of sentences so disclosed is not necessarily the correct range, or otherwise determinative of the upper and lower limits of sentencing discretion. Rather, the sentencing task is "inherently and inevitably more complex than that": see Pham at [27], referring to Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54] and [60]; and Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [24]-[28] per French CJ, Hayne, Kiefel and Bell JJ.
17 Bearing these observations in mind, I have set out below the salient features of the comparable decisions in the Commission's schedule.
18 In Australian Competition and Consumer Commission v GIA Pty Ltd [2002] ATPR 41-902; [2002] FCA 1298, the Commission brought charges against GIA Pty Ltd and Mr Eric Thompson, the managing director of the company, alleging contraventions of s 155(5)(b) of the TPA. Section 155(1) notices had been issued to the defendants requiring them to furnish information about the importation, alteration and re-sale of polo shirts from China, which were advertised as fine hand-made Tasmanian knitwear. Mr Thompson responded to that notice on behalf of GIA and provided false information to the Commission. All of the defendants pleaded guilty to charges that they had contravened s 155(5)(b) of the TPA. GIA was fined $5,000 and Mr Thompson was fined $1,000. In passing sentence, Heerey J noted that the conduct of the defendants was a "serious offence" that "hinder[ed] and obstruct[ed] … the protection of consumers" (at [19]).
19 In Neville, the respondent, Mr Neville, pleaded guilty to two charges of contravening s 155(5)(b) of the TPA. Mr Neville was a real estate agent who gave false and misleading evidence to the Commission about his involvement in a scheme to prevent a competing realtor advertising an offer of a "flat fee" commission. Mr Neville was fined $2,160 and ordered to perform 200 hours of community service. Material factors influencing this penalty included that Mr Neville was a 63 year old man with no prior convictions, that he was unlikely to re-offend and that he appreciated the seriousness of his offence.
20 In Australian Competition and Consumer Commission v Narnia Investments Pty Ltd [2009] ATPR 42-279; [2009] FCA 395, Mr Simon Clarke was the sole director of Narnia Investments Pty Ltd (Narnia). Narnia was served with a s 155(1) notice requiring it to furnish information concerning its sale of a hair replacement solution to a person on a disability pension for $15,500. In response, Mr Clarke furnished false information to the Commission. Narnia was subsequently charged with an offence under s 155(5)(b) of the TPA and Mr Clarke was charged with aiding and abetting that offence under s 11.2 of the Criminal Code Act 1995 (Cth). They both pleaded guilty. Mr Clarke was fined $1,400 and Narnia was fined $5,600.
21 In Australian Competition and Consumer Commission v Boyle [2015] FCA 1039, Mr Boyle was served with two s 155(1) notices to give evidence and attend an examination about an oral spray product called SensaSlim, which purported to effect weight loss. In response, he provided false information. In particular, he denied any knowledge of a Mr Foster who was involved with the sale of the SensaSlim product. Mr Boyle claimed that he had provided this false information because threats had been made against him. The Court accepted that a psychiatric condition from which he was suffering had affected his perception of the seriousness of the threats concerned. He pleaded guilty to two charges under s 155(5)(b) and was fined $3,500; in default, two months' imprisonment.
22 All of the above decisions involved charges of providing false information or evidence to the Commission in response to a notice served under s 155(1) of the TPA rather than, as in this case, a charge of failing to comply with such a notice. However, in Rana, North J was required to deal with the latter situation. Significantly, his Honour rejected a submission made on behalf of the defendant that "there is less culpability in a failure to respond to a s 155 notice at all than by providing a misleading or false response": see Rana at [64]. I respectfully agree with that approach. In Rana, Mr Paul Rana was the director of three entities, collectively referred to as the NuEra companies. His son, Mr Micheal Rana, was the sole director of a separate company, although it was accepted he was under the influence of his father. Mr Paul Rana, Mr Micheal Rana and the NuEra companies were each served with s 155(1) notices requiring them to furnish information and documents concerning representations the NuEra companies had made to the effect that a particular system promoted by them was suitable for treating terminal illness. Mr Paul Rana pleaded guilty to refusing or failing to comply with the s 155 notice issued to him personally and he also pleaded guilty to aiding, abetting, counselling or procuring one of the NuEra companies in failing to comply with the notice issued to it. In separate proceedings, he was found guilty (after two pleas of not guilty) of the same offence in respect of two other NuEra companies. His son, Micheal Rana, pleaded guilty to one such offence. Mr Paul Rana was sentenced to six months' imprisonment. Mr Micheal Rana was sentenced to two months' imprisonment, but released on a recognisance of $1,000, to be of good behaviour for 18 months.