Sentencing principles
92 The offenders fall to be sentenced in accordance with Pt 1B of the Crimes Act, which requires that the sentence imposed by the court be of a "severity appropriate in all the circumstances of the offence": s 16A(1) of the Crimes Act.
93 In determining the sentence to be passed, in addition to any other matters, the Court must take into account the matters set out in s 16A(2) as far as they are relevant and known to the Court. This list relevantly includes: the nature and circumstances of the offence: s 16A(2)(a); if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character, that course of conduct: s 16A(2)(c); any injury, loss or damage resulting from the offence: s 16A(2)(e); the degree to which the person has shown contrition for the offence: s 16A(2)(f); if the person has pleaded guilty to the charge in respect of the offence, that fact, the timing of the plea, and the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence: s 16A(2)(g); the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences: s 16A(2)(h); the deterrent effect that any sentence or order under consideration may have on the offender: s 16A(2)(j) (specific deterrence); the deterrent effect that any sentence or order under consideration may have on other persons: s 16A(2)(ja) (general deterrence); the need to ensure that the person is adequately punished for the offence: s 16A(2)(k); the character, antecedents, age, means and physical and mental condition of the person: s 16A(2)(m); if the person's standing in the community was used by the person to aid in the commission of the offence, that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates: s 16A(2)(ma); the prospects of rehabilitation of the person: s 16A(2)(n); and the probable effect that any sentence or order under consideration would have on any of the person's family or dependents: s 16A(2)(p).
94 It is important to recall that in sentencing, a court may not take into account facts adverse to the interests of the offender unless those facts are established beyond reasonable doubt. For facts in favour of the offender, it is enough that those facts are proved on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]. As to the latter, the onus is on the offender to establish those mitigating factors. That said, as noted above, s 16A requires that those matters be taken into account so far as they are "relevant and known to the court". That is not to be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted: Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [21]-[22].
95 The sentencing process involves the judge weighing all the relevant circumstances and making a judgment as to what is the appropriate sentence. It involves the balancing of many different and conflicting features: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [75]. This has been described as a process of "instinctive synthesis", namely, as described by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51], "the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case".
96 I will refer to further sentencing principles relevant to the s 16A factors when addressing the submissions advanced in respect to each offender. However, given each of the offenders who fall to be sentenced pleaded guilty, it is appropriate to refer in more detail to the effect of that on the sentencing process.
97 The court is required to take into account not only the fact of the plea of guilty, but also its timing and the degree to which the timing resulted in any benefit to the community or any victim of, or witness to, the offence: s 16A(2)(g). This requires the court to take into account the utilitarian effect of the plea, in addition to any subjective significance that may flow from it (for example, as a reflection of remorse or contrition, or a willingness to facilitate the course of justice). The utilitarian value involves an objective assessment to be undertaken. On the other hand, if an offender has demonstrated contrition involving facilitating the course of justice as evidenced by the plea, this is a subjective factor and involves an enquiry as to the attitude of the offender and an assessment of contrition. It may be taken into account in the offender's favour: s 16A(2)(f), see Bae v R [2020] NSWCCA 35 at [55]-[57]; Khalid v R [2020] NSWCCA 73; (2020) 102 NSWLR 160 at [88]. Although there is no requirement in the Crimes Act to specify or quantify the reduction given for the guilty plea, it has become the practice in some states to do so (NSW, for example, but cf Victoria). It follows, though, that the failure to do so is not an error. This topic of specifying the reduction was only addressed in the sentencing hearing for Thi Huong Nguyen. The Director recognised that there was a difference in practice between NSW and Victoria, and did not urge that a percentage discount must be given. It was accepted that it was not an error to specify a discount. Following the introduction of s 16A(2)(g), its operation was considered by Johnson J in Bae (with whom Bell P and Walton J agreed), concluding at [57]:
The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender.
98 The approach described in Bae has repeatedly been applied.
99 The advantage of specifying the reduction for the utilitarian value of the plea is that it recognises the degree of discount for the step taken, and provides, inter alia, guidance to others as to the possible impact of a plea of guilty on the sentencing process. It also provides transparency in the sentencing process, as it is (with assistance to law enforcement authorities) the only aspect of the sentencing process where a discount is given. Other factors, both mitigatory and otherwise, are weighed in the instinctive synthesis sentencing process.
100 There is a dearth of authority on sentencing in respect to contraventions of the criminal cartel provisions in the CCA, with only the cases of Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha [2017] FCA 876; (2017) 254 FCR 235 (NYK); Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd [2019] FCA 1170; (2019) 137 ACSR 75 (K-Line); and CDPP v Wallenius Wilhelmsen Ocean AS [2021] FCA 52; (2021) 386 ALR 98 (WWO) (all interrelated matters concerning CAUs in a shipping context), which specifically address the nature of these types of offences.
101 Before considering the cases in respect to each offender, it is appropriate to make some general observations about the nature of cartel offences.
102 First, as Wigney J observed in WWO at [170]:
It is trite to observe that cartel conduct generally involves anti-competitive conduct of a very serious nature that should be emphatically condemned and deterred by the imposition of appropriately stern penalties. Prior to 2009, cartel conduct attracted only civil penalties. The fact that cartel conduct was criminalised in 2009 no doubt reflects the fact that Parliament regarded it sufficiently serious as to attract "opprobrium and societal condemnation in a way that the imposition of a civil penalty cannot": CDPP v NYK at [215]-[216], also at [1] which reproduces the Minister's Second Reading Speech; CDPP v K-Line at [275], [278].
103 Second, aligned with that observation, the maximum penalty for a company for a contravention of s 44ZZRG, is calculated by reference to s 44ZZRG(3), which states as follows:
Penalty
(3) An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following:
(a) $10,000,000;
(b) if the court can determine the total value of the benefits that:
(i) have been obtained by one or more persons; and
(ii) are reasonably attributable to the commission of the offence;
3 times that total value;
(c) if the court cannot determine the total value of those benefits - 10% of the corporation's annual turnover during the 12‑month period ending at the end of the month in which the corporation committed, or began committing, the offence.
104 The provision is rather unusual in that it provides for alternative maximum penalties, based on either benefits obtained or annual turnover: NYK at [210]. In respect to the latter, the maximum penalty varies depending on the amount of annual turnover.
105 In relation to Vina Money, s 44ZZRG(3)(b) does not apply, because the "total value of the benefits" cannot be determined due to difficulties in calculating the advantages obtained by Vina Money reasonably attributable to the commission of the offence. It is accepted that the annual turnover of Vina Money during the 12-month period ending at the end of the month in which it committed or began committing each offence was less than $100 million, and accordingly, the maximum fine is that contained in s 44ZZRG(3)(a): $10,000,000.
106 The maximum penalty for the individual offenders, in this case Ngoc Le, Khai Tran, Tony Le and Thi Huong Nguyen, is that in s 79(1): a term of imprisonment not exceeding 10 years, or a fine not exceeding 2,000 penalty units (equating to $220,000), or both: s 79(1)(e).
107 In this regard, in Markarian, the plurality observed at [31]:
…careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
108 Third, in NYK at [220] and later in K-Line at [279]-[281] and WWO at [174]-[175], Wigney J recognised that some guidance as to relevant sentencing factors can be gained from civil penalty cases in respect to cartel conduct. In those cases he referred to the convenient summary of the principles in Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited [2016] FCA 1516; (2016) 118 ACSR 124 (ANZ) at [86]-[89]:
[86] In general terms, the factors that may be relevant when fixing a pecuniary penalty may conveniently be categorised according to whether they relate to the objective nature and serious [sic] of the offending conduct, or concern the particular circumstances of the contravenor in question (what sentencing judges commonly refer to as the offender's "subjectives" or the "subjective circumstances").
[87] The factors relating to the objective seriousness of the contravention include: the extent to which the contravention was the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness; whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time; if the contravenor is a corporation, the seniority of the officers responsible for the contravention; the existence, within the corporation, of compliance systems and whether there was a culture of compliance at the corporation; the impact or consequences of the contravention on the market or innocent third parties; and the extent of any profit or benefit derived as a result of the contravention.
[88] The factors that concern the particular circumstances of the contravenor (where the contravenor is a corporation) generally include: the size and financial position of the contravening company; whether the company has been found to have engaged in similar conduct in the past; whether the company has improved or modified its compliance systems since the contravention; whether the company (through its senior officers) has demonstrated contrition and remorse; whether the company had disgorged any profit or benefit received as a result of the contravention, or made reparation; whether the company has cooperated with and assisted the relevant regulatory authority in the investigation and prosecution of the contravention; and whether the company has suffered any extra-curial punishment or detriment arising from the finding that it had contravened the law.
[89] The size of the contravening corporation does not of itself justify a higher penalty than might otherwise be imposed: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; 327 ALR 540 at 559-561 [89]-[92]. The size of the corporation may, however, be particularly relevant in determining the size of the pecuniary penalty that would operate as an effective deterrent. The sum required to achieve that object will generally be larger where the company has vast resources: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265; 215 ALR 301 at 309 [39]; Australian Competition and Consumer Commission v Apple Pty Limited [2012] FCA 646 at [38].
109 Although there are differences between the civil process and the criminal process, the factors referred to in ANZ are not surprising, and are really matters of common sense, given the nature of cartel offences. Having recited in WWO the above passage, Wigney J went on to observe at [175]:
Many of the relevant factors or considerations that have been noted in the civil penalty context have been replicated, to varying degrees, in the list of mandatory considerations found in s 16A(2) of the Crimes Act. It is also important to emphasise that those factors or considerations should not be treated as a "rigid catalogue or checklist" to be applied in each case: see CDPP v NYK at [220]; CDPP v K-Line at [281]. It ultimately remains a matter for the Court to consider the nature and objective seriousness of the offending conduct by assessing all of the relevant facts and considerations…
110 Fourth, the nature of cartel offences are such that general deterrence is of particular importance; indeed, ordinarily, it is a weighty or primary sentencing consideration.
111 In NYK, Wigney J correctly said at [273]-[274]:
[273] First, as has already been noted, cartel conduct is notoriously difficult to detect, investigate and prosecute. It often involves large and sophisticated corporate offenders who can deploy their considerable resources and position to minimise the risk of detection. It is generally accepted that general deterrence is a weighty consideration in sentencing for offences which are difficult to detect and investigate: see for example R v Curtis (No 3) [2016] NSWSC 866 at [51]-[53]; R v Hannes [2000] NSWCCA 503; 158 FLR 359 at [394]; R v Rivkin [2004] NSWCCA 7; 184 FLR 365 at [423]. The importance of general deterrence has also been accepted in imposing penalties for anti-competitive conduct in the civil penalty context: ABB Transmission at [16]; Australian Competition and Consumer Commission v J McPhee & Son (Australia) Pty Ltd (No 5) [1998] FCA 310; J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365; 172 ALR 532 at [157].
[274] Second, cartel conduct is an essentially economic or commercial crime that generally involves the offender weighing up whether the benefit or profit from the conduct is likely to outweigh the risks of detection and penalisation. Sentences imposed for such offences should be set so that others who may engage in such a weighing exercise will come to appreciate that the risks are likely to outweigh the benefits: that the likely penalty will be such that it could not be regarded as an acceptable cost of doing business. This consideration has also been accepted in the civil penalty context: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 at [62]-[63]; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [65]-[66]; Australian Competition and Consumer Commission v Visa Inc [2015] FCA 1020; 339 ALR 413 at [114].
112 As general deterrence is a paramount sentencing consideration, factors personal to the offender such as good character and other mitigatory factors are necessarily afforded less weight than they otherwise might be: Gajjar v R [2008] VSCA 268; (2008) 192 A Crim R 76 at [27] and [28]; DPP (Cth) v Page [2006] VSCA 224 at [37]; DPP (Cth) v Thomas [2016] VSCA 237; (2016) 53 VR 546 at [193]; R v Nguyen and Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [72].
113 Fifth, the nature of cartel offending is such that it may not be possible to ascertain or quantify the consequence on the market. Nonetheless, as Wigney J observed in WWO at [242]:
It would be wrong, however, to approach this offence as if it were a victimless offence, simply because no specific individual or quantified loss can be identified. The cartel offence in s 44ZZRG(1) is part of a suite of provisions in the CCA that are designed to protect the integrity of Australia's markets and economic system: see also s 2 of the CCA. Australia's economy, like other free-market economies, is based on the philosophy that private enterprise and competition will foster productivity, efficiencies and innovation for the greater good of the economy and the community generally. Cartel conduct, like other anti-competitive behaviour, is inimical to, destructive of and may lead to a loss of public confidence in, Australia's markets and economic system. That is so even where the conduct, as here, is eventually uncovered and punished.
114 Finally, I observe that there are no comparative sentencing cases within the meaning of the concept described in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [53]-[54] and The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [28]-[29]. This is the first occasion on which individuals, rather than corporations, fall to be sentenced for this type of offending. The shipping cartel cases of NYK, K-Line and WWO involve only corporations and have features which do not apply in this case, as I discuss below at [130]. That said, the nature of this type of offending bears similarities to features often present in other white collar crime, for example, the difficulties in detection, the complexity of the investigation, and the financial advantage sought to be gained. Principles relevant to those topics may, depending on the circumstances, be equally applicable to this type of offending. So much is reflected in the observations in NYK and later cases.
115 In the context of the above, I turn to the question of the objective gravity of the offending conduct.