Parity
173 The "parity principle" was summarised in the following terms in CDPP v WWO at [299]:
… That principle requires that like offenders should be treated in a like manner, though allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances: Green v The Queen (2011) 244 CLR 462 at [28]. The notion of consistency does not equate to numerical equivalence: see Hili at [46]-[54]. Rather, equal justice "requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'": Postiglione at 301. Disparity between the sentences imposed on co-offenders will be justified by differences such as "age, background, criminal history, general character and the part each has played in the relevant criminal conduct": Green at [31]; see also R v Li [2010] NSWCCA 125; 202 A Crim R 195 at [5].
174 There will almost always be differences between the objective and subjective elements in any case involving multiple offenders. The question, at the sentencing stage (as opposed to the appellate stage) is whether any material differences between the sentences to be imposed on co-offenders are warranted or justifiable having regard to those different objective and subjective elements.
175 In separate proceedings I have convicted both Aussie Skips and Aussie Recycling of an offence against both s 45AF(1) of the Competition and Consumer Act. I imposed a fine on each company of $1,750,000. Bingo, on the one hand, and Aussie Skips and Aussie Recycling, on the other, are undoubtedly co-offenders or like offenders. The parity principle undoubtedly applies in those circumstances.
176 The application of the principle is difficult and complex in the circumstances of this case for several reasons.
177 First, as already adverted to, while the Aussie Companies and Bingo were co-offenders, the Prosecutor chose to conduct separate prosecution proceedings against them. Often co-offenders are tried and sentenced together. That was not the case here. Bingo filed written submissions dealing with parity issues well after the sentence hearing in this matter; prompted, no doubt, by submissions made on behalf of the Aussie Companies in their separate sentence proceedings.
178 Second, the agreed facts upon which Aussie Skips and Aussie Recycling were sentenced, while similar to the agreed facts in this matter, differed in some, albeit fairly minor, respects. It may perhaps be inferred that the differences between the agreed facts was a product of the plea negotiations. In considering the parties' submissions concerning parity, the Court must be astute to ensure that Bingo is sentenced on the basis of the agreed facts and evidence that was before the Court in its case. It is well recognised that sentences imposed on co-offenders may be based upon different factual findings if the evidence before either the same or a different sentencing judge differs: Gaggioli v The Queen [2014] NSWCCA 246 at [27].
179 Third, for reasons that are unclear, but again appear to have something to do with the respective plea agreements that the Prosecutor entered with the offenders, the Prosecutor proceeded with different charges against Aussie Skips and Aussie Recycling. Both Aussie Skips and Aussie Recycling were charged with only one offence of making a cartel arrangement with Bingo, though offences involving the giving effect to of that arrangement were to be taken into account pursuant to s 16BA of the Crimes Act. Bingo, on the other hand, is to be sentenced in respect of two offences; one offence of making the cartel arrangements with Aussie Skips and Aussie Recycling and one offence of giving effect to those cartel arrangements.
180 The parity principle nevertheless applies where co-offenders are not charged with the same offences, despite the practical difficulties in comparing the sentences imposed on co-offenders who have been charged with different crimes: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30]; Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [201]-[203]. There are particular difficulties where one co-offender has been charged with a particular offence whereas the other co-offender was sentenced on the basis that the corresponding offence was to be taken into account pursuant to s 16BA of the Crimes Act or a similar procedure in cognate legislation: see Azari v The Queen [2021] NSWCCA 199 at [76]. Indeed, in Dunn v The Queen [2018] NSWCCA 108 at [16], it was held that the parity principle does not apply in those circumstances because "[t]here is no relevant comparison between a sentence that has been imposed for an offence … and an unspecified increase in a sentence imposed for another offence by reason of the corresponding charge being taken into account" by virtue of a procedure similar to s 16BA of the Crimes Act.
181 Fourth, and significantly, the maximum penalty which applied in respect of both offences to which Bingo pleaded guilty was significantly higher than the maximum penalty faced by Aussie Skips and Aussie Recycling. As has already been noted, the maximum penalty for each of the offences to which Bingo pleaded guilty was calculated by reference to Bingo's turnover in accordance with ss 45AF(3)(c) and 45AG(3)(c) of the Competition and Consumer Act. The total penalty in respect of each offence was $40,200,000 - making a total overall maximum penalty of $80,400,000. The maximum penalty for the offences to which both Aussie Skips and Aussie Recycling pleaded guilty was only $10,000,000 because s 45AF(3)(b) and (c) did not apply in the circumstances of their case. Differences between the maximum penalties that apply to the offences committed by co-offenders can and should be taken into account in applying the parity principle. The differences between the applicable maximum penalties may explain the differences between the sentences imposed on the co-offenders: see for example Gaggioli at [36]. Where there are different maximum penalties, the result is that "the relevant comparison is more broad and impressionistic than might otherwise be the case": Hanley v The Queen [2018] NSWCCA 262 at [56].
182 Even putting those complications to one side, there are some material differences between objective seriousness of the offences committed by the co-offenders and some material differences between their subjective circumstances. Those differences must be considered when it comes to ensuring that there is no marked disparity between the sentences imposed such as might give rise to a justifiable sense of grievance.
183 In relation to the objective seriousness of the offending, the offences committed by Bingo were objectively more serious than those committed by Aussie Skips and Aussie Recycling because it was not only the instigator of the cartel arrangements, through Mr Tartak, but also a significantly larger corporation with a much larger market share and therefore more market power. While Aussie Skips and Aussie Recycling were by no means reluctant or unenthusiastic participants, it does not follow that their criminality was as serious as that of the instigator. As for Bingo's size and market power, while that is also an important subjective circumstance, it is also relevant in assessing the criminality involved in the offending. It is generally more serious for a larger public company with significant market power to instigate cartel conduct than it is for a smaller private company to agree to participate in that cartel conduct.
184 There are, however, some aspects of Bingo's subjective circumstances which are more favourable than Aussie's subjective circumstances. Bingo's evidence concerning its contrition and the steps it had taken to rehabilitate and prevent any future offending was more impressive than the evidence which was adduced on behalf of the Aussie Companies. Bingo also cooperated with the ACCC to a certain extent. Finally, unlike Aussie Recycling, Bingo has not been convicted of any offence, though that it is a relatively minor difference given the nature of the offence committed by Aussie Recycling, which was of a materially different nature to a cartel offence.
185 As complicated as the exercise may be, I have endeavoured to ensure that there is no marked or unjustifiable disparity between the sentences imposed on Bingo, on the one hand, and Aussie Skips and Aussie Recycling, on the other, and that the respective sentences do not gives rise to any justifiable sense of grievance. I have also endeavoured to ensure that the different sentences are explicable on the basis of the different charges, the different maximum penalties, the differences in the objective seriousness of their offending and the differences between their subjective circumstances.
186 The differences between the objective and subjective elements of the respective offences committed by Mr Tartak, on the one hand, and Mr Roussakis, on the other, will be considered separately in the context of the reasoning concerning the sentence to be imposed on Mr Tartak. Needless to say, the question of parity will also have to be considered in the context of the sentencing of the Aussie Companies and Mr Roussakis.