REASONS FOR JUDGMENT
MOORE J
1 I have had the benefit of reading the reasons for judgment of Middleton and Gordon JJ in a draft form. I gratefully adopt and do not repeat their Honours' account of the background and I also gratefully adopt their summary of the general principles to be applied in sentencing appeals. However, I take a different approach to one of the issues raised in this appeal. It concerns whether the primary judge erred in her consideration of whether there had been the one course of conduct in relation to the events in February 2006 described by Middleton and Gordon JJ at [31] to [33].
2 I accept, as Middleton and Gordon JJ noted at [40] and [41], a sentencing judge is not obliged to engage in the process of determining whether several acts constituting individual offences should be viewed as a course of conduct. However, the primary judge did so in this matter. Accordingly the starting point is not whether it was necessary for the primary judge to engage in the process of analysing the facts deploying this analytical tool but rather it is whether, having done so, any error is manifest in the way the primary judge went about it.
3 It is convenient to repeat the primary judge's findings about what occurred on 15 and 17 February 2006. As to 15 February 2006, her Honour said in the liability judgment ([2009] FCA 52 at [33]):
Having regard to the evidence and s 140 of the Evidence Act 1995 (Cth), I find that, at the meeting of 15 February 2006, Mr Mates made demands on Mr Goss that Mr Deans, Mr O'Donnell and Ms Singleton be re-employed at the Mount Street site, and that Mr Deans and Mr O'Donnell be appointed as shop stewards and Ms Singleton be appointed as OH&S officer. All three individuals had previously been employed at the Mount Street site. Further, I find that Mr Mates threatened trouble at the site and that the project was "not going to happen" if his demands were not met. These threats constituted threatening to take action with intent to coerce Hardcorp to employ these three persons on the project at Mount Street and, amongst other things, to allocate to Ms Singleton the responsibilities or duties of OH&S officer on the project as it recommenced.
4 In the same judgment the primary judge made the following findings about what occurred on 17 February 2006 (at [56]):
Accordingly, having regard to the evidence of Mr Goss, Mr Malbourne and Mr Palmer and s 140 of the Evidence Act, I find that, at the meeting of 17 February 2006, Mr Mates made demands on Mr Goss that the former shop stewards and the former OH&S officer (Mr Deans, Mr O'Donnell and Ms Singleton) be re-employed at the Mount Street site, and be appointed as shop stewards and as OH&S officer. Further, I find that Mr Mates threatened that the project would never recommence if his demands were not met. The Union and Mr Mates maintained that this was an unlikely threat given that the project had commenced. It must, however, be borne in mind that the recommencement was in its infancy. The purport of Mr Mates' threat was clear: the project would not get going again in any real sense unless Hardcorp met his demands. These threats on Mr Mates' part constituted threatening to take action with intent to coerce Hardcorp to employ Mr Deans, Mr O'Donnell and Ms Singleton on the project at Mount Street and, amongst other things, to allocate to Ms Singleton the responsibilities or duties of OH&S officer on the recommencing project.
5 In the penalty judgment ([2009] FCA 1040 at [74]), her Honour dealt with the appellants' submission that the events of February 2006 should be seen as one multifaceted course of conduct in the following passage:
The contraventions on 15, 17 and 21 February 2006 had the same purpose, namely, to coerce Hardcorp to re-employ Messrs Deans and O'Donnell and Ms Singleton at the Mount Street site and, amongst other things, to have Ms Singleton appointed as OH&S officer on the Mount Street site. This was the common thread running through the offending conduct of 15, 17 and 21 February 2006. To this extent, the comparison with Hamberger v Construction, Forestry, Mining and Energy Union [2002] FCA 585 is justified. Further, the fact of this common thread should be taken into account in fixing penalties, but, in my view, the contravening conduct is not, for this reason, properly seen as one course of conduct. This is because the conduct comprising each of the contraventions was separate and distinct in time and place, and in the coercion that the Union exerted. The conduct on 15 February 2006 involved demands and threats to cause trouble at the Mount Street site if the demands were not met. The conduct on 17 February 2006 involved similar demands and threats but on a different day and place, and in a different context with different participants in the occasion of the contravention. The conduct on 21 February 2006 involved Mr Mates coming on to the site and shutting down the crane. Therefore, these are three separate and distinct contraventions: compare Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at 396-399 [41]-[55]; [2008] FCAFC 70 at [41]-[55] per Stone and Buchanan JJ. (Emphasis added)
6 During argument in the appeal, there was discussion about whether her Honour meant, in the highlighted passage, that the contravening conduct was not, for the identified reason alone, properly seen as one course of conduct. For my part I have endeavoured to focus on the substance of what her Honour has said rather than the niceties of particular language and I am content to accept that her Honour meant that the existence of the common thread did not, by itself, dictate a conclusion that there was one course of conduct particularly having regard to the matters discussed in the remainder of the paragraph.
7 However even reading her Honour's reasons in this way, I am satisfied that her Honour did not approach the question of whether there had been one course of conduct with a view to ascertaining whether the conduct was sufficiently similar to be able to say that notwithstanding that there were three events each constituting an offence, they should be viewed together or in some lesser combination, as a manifestation of singular criminality. It would be apparent from the judgment of the Full Court in Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417 at [25] the enquiry about whether a person has engaged in a course of conduct is directed to a more fundamental question, namely what was the criminality associated with the acts of the accused or defendant. So much is also apparent from the judgment of Owen JA in Royer v Western Australia [2009] WASCA 139 at [30] quoted in Williams. Assessing whether a person has, for the purposes of sentencing, engaged in a course of conduct should not be divorced from this more fundamental question. In my respectful opinion the primary judge in this case appears not to have approached the question in this way. This, at base, is the error of principle in her Honour's approach as I perceive it. It is not a question answered by reciting differences and similarities in the acts said to constitute the course of conduct. Rather, it is a question answered by evaluating the differences and similarities in the acts to determine whether, ultimately, they are or are not a manifestation of singular criminality.
8 I focus, for the moment, on the events of 15 and 17 February 2006. The first point to note is that her Honour described the conduct on 17 February 2006 as involving similar demands to those made on 15 February 2006. While, by itself, it is probably of no great import, the facts as found establish that the demands were not similar. They were precisely the same. It is true that the language used was slightly different (15 February 2006 - "the project was "not going to happen"" and 17 February 2006 - "the project would not get going again") but the substance of the threat made on each of those two days was that the project would not recommence unless the demand to employ the three individuals was met. Accordingly the starting point is that on each of these two days precisely the same threat was made for precisely the same purpose. The first point of distinction noted by her Honour was that each of the contraventions was separate and distinct in time and place. However almost always, when applying this tool of analysis, the contraventions will be distinct in time in the sense that they took place at different times. This tool of analysis is ordinarily deployed because there are events constituting contraventions occurring over a period of time. It is, with respect, of no real moment to note this point of difference. Similarly, it appears to me, the fact that the contraventions occurred at different places is of no moment unless that fact is of itself significant in determining the criminality of the conduct.
9 In the present case the fact that the contravention occurred at Mr Goss's offices on 15 February 2006 and at the CFMEU's offices on 17 February 2006 does not appear to me to have any bearing on the criminality of Mr Mates' conduct. It was suggested by counsel for the respondent in the appeal that the two locations constituted different environments impacting on the way the threats would have been understood and the gravity of them. There was, it was submitted, an additional element of gravitas attending the making of the threat at the CFMEU's offices. However this is mere speculation. Our attention was not drawn to any evidence which would support a finding that Mr Goss, to whom the threats were directed, felt any different about the threat or reacted any differently to it on each of the two days it was made because of where it was made. More importantly, no finding of fact was made to this effect.
10 The other two factors identified by her Honour were that the threats were made in a different context with different participants. It is not entirely clear what her Honour meant when she spoke of context. It was suggested by counsel for the respondent that this referred to the fact that the conversation on 15 February 2006 was a private conversation between Mr Goss and Mr Mates and the conversation on 17 February 2006 involved other participants. If so, it is, in substance, the same factor that followed immediately, namely there were different participants. Counsel for the respondent suggested in the appeal that the presence of the other two members of Mr Goss's management team together with another organiser from the CFMEU again added gravitas to the threat made on 17 February 2006. However again this is mere speculation. No evidence was given by any one that the threat made on that day was understood or perceived to be any more seriously advanced than the threat made on 15 February 2006 or that there was an apprehension on Mr Goss's part, because of the different location and additional participants, that the repetition of the threat on that latter day somehow rendered it more coercive in its effect. Nor do I think it can reasonably be inferred that Mr Mates intended that the repetition of the threat on 17 February 2006 in these different circumstances would create a coercive force of a greater magnitude than that created when the threat was made on 15 February 2006. In any event, no finding to this effect was made. At worst for the case against him and the CFMEU, it could be inferred the repetition of the threat was to ensure it was not forgotten by Mr Goss. However that does not, in my opinion, taint the repetition with a greater measure of criminality.
11 The making of the threat on 15 February 2006 and its repetition on 17 February 2006 was a manifestation of the same criminality. The provision Mr Mates contravened on each day, s 43 of the Building and Construction Industry Improvement Act 2005 (Cth), is intended to prevent particular conduct as part of a broader statutory purpose of promoting norms of conduct in the building industry which Parliament has concluded are appropriate. The factors identified by the primary judge do not, in my opinion, sustain the conclusion that the conduct on 17 February 2006 involved an additional measure of criminality. Mr Mates simply performed the same unlawful act twice.
12 However the primary judge's approach to events of 21 February 2006 was, in my respectful opinion, unexceptionable. The conduct on that day was different in character to that of 15 and 17 February 2006. It involved the implementation of the threat by, as her Honour noted, Mr Mates coming onto the site and shutting down the crane. That there are different degrees of criminality associated with making a threat, on the one hand, and making it and then implementing it, on the other, is, it appears to me, obvious.
13 It is appropriate, as it was in Williams, that this Full Court consider what penalty should be imposed for the offences committed on 15 and 17 February 2006. No party in this appeal submitted that in the event that error was established, the matter should be remitted to the primary judge for resentencing. The error has a significant effect on what is the maximum penalty and this is not a case where this Full Court should exercise the discretion not to intervene notwithstanding demonstrated error: R v Allpass (1993) 72 A Crim R 561 at [5].
14 Before addressing what is the appropriate penalty for the offences committed on 15 and 17 February 2006, it is appropriate to mention one matter of relevance though peripherally. Section 43 creates an offence of organising or taking action or threatening to organise or take action in order to coerce a company to employ a person as an employee or contractor or allocate them particular responsibilities. It is clear from s 43(2) that the offence is one that can only be committed by an organisation or company. However Mr Mates was found to have contravened the section. The learned primary judge did not address how, notwithstanding the limiting effect of s 43(2), an individual could be prosecuted for breaching that section though I immediately acknowledge that it appears not to have been an issue at the final hearing and was an issue raised only in passing earlier in the proceedings and in the context of s 38. If there is an answer, it would appear to lie in s 48(2), which treats a person who has been a party to a contravention of a civil penalty provision as having contravened the provision. Whether this provision of general application was intended to render nugatory the limiting effect of the express provision in s 43(2) appears not, as just noted, to have been an issue before the primary judge and was not before us. Also, this issue may have been resolved by an authority of which I am not aware. However it appears to me to be a somewhat surprising result. For present purposes in relation to sentencing, the significance of s 43(2) is that the section is one intended, in its primary focus, to capture the conduct of bodies corporate and not individuals.
15 One starting point in considering what is the appropriate penalty is the seriousness of the offence viewed objectively: Veen v R (No 2) (1988) 164 CLR 465 per Mason CJ, Brennan, Dawson and Toohey JJ and R v Dodd (1991) 57 A Crim R 349 involving, not in any definitive way, a comparison between the case under consideration and the worst possible case. Relevant to this task is the maximum penalty which can be treated as the penalty appropriate for the worst possible case: Markarian v The Queen (2005) 228 CLR 357 at [31]. The maximum penalty is $110,000. Section 43 applies to a range of conduct. In so far as it draws a distinction between organising or taking action, on the one hand, or threatening to do so, on the other, it probably can be said that the more serious type of case comprehended by the section is when action is taken rather than simply threatened. The aphorism "actions speak louder than words" provides, in a summary way, why that can be said. The section would also comprehend conduct of a most serious kind where the company which is the victim of the conduct was the subject of a demand to do something that was utterly antithetical to it and where, if the demand was met, the consequences would be greatly damaging most probably, though not exclusively, in an economic sense. For example a union might demand that a builder employ a large number of employees and that those employees be members of that union. That might occur in circumstances where employing that number would be immediately financially ruinous and in circumstances where the employer would, in any event, be resolutely opposed to employing a unionised workforce.
16 Another example might involve a building contractor. The section appears to be sufficiently widely drafted to comprehend the conduct of a corporation which was the head contractor on a building project. This is signalled by the "first person" being identified in s 43(2) as including a constitutional corporation for the purposes of s 43(1). The head contractor might, for illegitimate commercial reasons, insist upon a principal sub-contractor (tendering for work) employing nominated businesses or individuals as sub-contractors as a condition for securing the tendered work. The relevant action would be rejecting the tender. Securing the tender may be vital to the continuation of the principal sub-contractor's business by providing profits and cash flow during a downturn in the industry. Secret commissions may be involved. Acceding to the demand may deny the principal sub-contractor profits of great commercial importance.
17 Also relevant in considering what might be the worst possible case, would be the form of the coercive conduct (or threatened conduct). Again for example, historically, in the Australian building industry, building employees stopping concrete pours midway through the pour (with the enormous damage done to both equipment in which the partly poured concrete hardens as well as the building under construction - sometimes requiring the partly poured set concrete to be jackhammered and removed) was an egregious form of industrial action: see the commentary of the Australian Conciliation and Arbitration Commission in Re Australian Building Construction Employees' and Builders Labourers' Federation (1986) 301 CAR 23.
18 I now focus on the facts of this case. I am, at this point, considering only the threat made by Mr Mates. It is difficult to identify, with any particularity, what was the action which was threatened. That is because the threat was not a threat to take particular action but rather a threat to take such action as might be necessary to stop the building project recommencing. This, it seems to me, points in opposite directions in assessing the seriousness of the offence. On the one hand, the consequences of the threatened action were obviously serious, namely that the project would not recommence in circumstances where it had encountered great financial difficulties. On the other hand Mr Goss was not being threatened with particular action which would obviously have the threatened consequence. In other words the threat was generalised and vague.
19 While no express findings were made by the primary judge about the consequences of the demand being acceded to, several observations can be made. The first is that the three individuals Mr Mates was insisting be employed had already been employed by Mr Goss on the project. I speak in terms of being employed by Mr Goss conscious of the fact that three employees had, in fact, been employed by a company controlled by Mr Goss and the fresh employment would have been with another company controlled by Mr Goss. However, the fact is they had been employed. Secondly there was evidence given by Ms McDonald (whose evidence the primary judge generally accepted) that at the meeting of 15 February 2006 Mr Goss was rejecting the demand on the footing that former employees would not be required at that time on the project because it was just starting up again and there was no need for a full crew. Specifically Mr Goss saw no need for a shop steward because there were only a few men on site at that stage but he was not adverse to the appointment of a shop steward as work progressed. Mr Goss also said there was no need to employ the person Mr Mates was nominating as the OH&S officer because there was already one on site. As to the evidence of the conversation on 17 February 2006, it appeared to be to the effect that Mr Goss had told Mr Mates that he could not afford to re-employ the three people though the evidence of Mr Palmer concerning the discussion suggests that Mr Goss did not discount the possibility of employing one of them (Mr O'Donnell). What this suggests is that the consequences of Mr Goss acceding to the demands of Mr Mates were not dire and, putting aside the unlawful use of threats, the demands were not completely unreasonable.
20 Another particular aspect of the contravening conduct in this case was that after the threat was first made on 15 February 2006, Mr Goss was prepared to meet again with Mr Mates on 17 February 2006. In other words Mr Goss was prepared to continue to discuss matters with Mr Mates notwithstanding the threat he had earlier made. The demands associated with the threat were not so unreasonable as to foreclose any further discussion about them.
21 In my opinion, the making of the threat by Mr Mates was, while serious, not particularly serious having regard to the subject matter of the demand to which the threat was directed and the vague nature of the action threatened notwithstanding the clear and serious objective of the threatened action. Obviously the making of the threat was not trivial and clearly involved unlawful conduct the BCII Act is intended to eliminate. Other factors noted by the primary judge in the penalty judgment are also relevant and I am content to adopt her Honour's analysis and conclusions concerning them with one qualification. At [39], her Honour observed that similar unlawful conduct in the past is relevant and may justify a heavier penalty than otherwise might be imposed. If her Honour meant that the CFMEU, because of prior contraventions, could not gain the benefit (in the form of a lesser penalty) of being a first or infrequent offender, then what her Honour said was unexceptionable. If, however, her Honour was suggesting the penalty should be increased beyond what was appropriate having regard to the seriousness of the offence then I doubt this is correct. This issue was addressed by the High Court in Baumer v The Queen (1988) 166 CLR 51 at 57-58. It is wrong, in principle, to increase a sentence beyond what is considered to be appropriate having regard to the seriousness of the offence because of prior convictions. However I acknowledge that this area of the law on sentencing is not free from subtlety as evidenced by, for example, the discussion in Challis v R (2008) 188 A Crim R 154 per Hoeben J at [30]-[38].
22 Having regard to the earlier discussion in this judgment about the seriousness of the offence and the matters discussed by the primary judge an appropriate penalty to be imposed on the CFMEU for the contravention of s 43 arising from the threat made by Mr Mates is, in my opinion, $15,000.
23 I now consider the issues raised in the appeal concerning the contravention on 21 February 2006. I have already rejected the submission by the appellants that this conduct ought be viewed as part of the same course of conduct as the threat made on 15 and 17 February 2006 for the purposes of imposing a penalty. The only other attack made by the appellants on the penalty is that it was manifestly excessive. The penalty imposed on the CFMEU was $38,500. It is not, to my mind, plainly apparent that this penalty is excessive: Dinsdale v The Queen (2000) 202 CLR 321 at 325. Also I am satisfied that the penalties of $15,000 and $38,500 are, in aggregate, just and appropriate.
24 The orders I would make would be to allow the appeal in part, set aside orders 1 and 2 of 16 September 2009, order in lieu that a penalty of $15,000 be imposed on the CFMEU in respect of the contraventions of s 43 on 15 and 17 February 2006 and make consequential orders to order 7 but otherwise dismiss the appeal. I would make no order as to costs in the appeal.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.