Courses of conduct?
36 The respondents submitted that the various contraventions arose out of a single course of conduct and that, as a result, the Court should impose no more than a single penalty on each respondent.
37 It may be accepted that the offending conduct which took place at the two sites on various days was directed to the same end: forcing Grocon to accept the Union's demands. It may also be accepted that, save in one instance, the respondents contravened the same two provisions of the Act on each occasion. It does not, however, necessarily follow that a single course of conduct was involved which should attract a single penalty for each respondent.
38 The contravening conduct varied in severity and nature from day to day and from site to site. The details appear in the liability judgment and are summarised below at [72]-[179].
39 Similar issues arose when Cavanough J was determining appropriate penalties for the CFMEU's contempts of court. In Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) (2014) 241 IR 288 at 324-5 his Honour said that:
"In my view, the contempts committed in relation to the [Myer] Emporium site were not unconnected, either as between themselves or in relation to the McNab Site contempt. Nevertheless, I do not accept that the connectedness of the Emporium site contempts and the McNab site contempt mean that I am obliged to fix, in the first place, a penalty that would be appropriate if the 28 August 2012 contempt stood alone, and then merely add nominal or minor penalties for the remaining breaches. … Although all of the contemptuous behaviour comprehended by the Emporium site and McNab site contempts was interrelated, each finding of contempt was framed by reference to a different day. And, as the CFMEU itself submitted, there were some differences between the events which happened on the different days. On the other hand, I do not think that the difference relied on (such as the variation in the number attending and the absence or presence of an attempt by the Grocon workers to gain access to the Emporium site) tended to reduce the objective seriousness of the contempts significantly. And, as the Grocon plaintiffs submit, the ongoing nature of the disobedience tended to worsen it. I would accept that the CFMEU should gain the benefit of the 'single course of conduct' principle and the totality principle, but … I consider that I should impose individual penalties for each of the five findings of contempt comprised within the first and second contempt applications …"
40 The "single course of conduct" principle to which his Honour referred was explained in the decision of this Court in Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1. In their joint judgment Middleton and Gordon JJ said that:
"39 As the passages in Williams explain, a 'course of conduct' or the 'one transaction principle' is not a concept peculiar to the industrial context. It is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is 'the same criminality' and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions.
…
41 As noted above (see [15]), the principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, the court must ensure that the offender is not punished twice for the same conduct. In other words, where two offences arise as a result of the same or related conduct that is not a disentitling factor to the application of the single course of conduct principle but a reason why a court may have regard to that principle, as one of the applicable sentencing principles, to guide it in the exercise of the sentencing discretion: Johnson v R (2004) 205 ALR 346; [2004] HCA 15 at [3]-[4] and [34] and Attorney-General v Tichy (1982) 30 SASR 84 at 92-93 (Tichy). It is a tool of analysis (Tichy at 93) which a court is not compelled to utilise: Royer v Western Australia [2009] WASCA 139 at [21]-[34] and [153]-[156] (Royer).
42 A court is not compelled to utilise the principle because, as Owen JA said in Royer at [28], '[d]iscretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks'. The exercise of the sentencing discretion does not fall to be exercised in a vacuum. It is a matter of judgment to be exercised according to the facts of each case and having regard to conflicting sentencing objectives: see McHugh J in AB v R (1999) 198 CLR 111; 165 ALR 298; [1999] HCA 46 at [14]. For the same reasons, and contrary to the appellants' submissions, even if offences are properly characterised as arising from the one transaction or a single course of conduct, a judge is not obliged to apply concurrent terms if the resulting effective term fails to reflect the degree of criminality involved. Or, in the case of fines, a judge is not obliged to start from the premise that if there is a single course of conduct, the maximum fine is, in the present case, $110,000 for the CFMEU and $22,000 in the case of Mr Mates."
(Original emphasis.)
41 When fixing pecuniary penalties the Court has a wide discretion. In exercising that discretion the Court is not bound to treat a series of discrete contraventions of the Act as a single contravention simply because the conduct which gave rise to the contraventions took place for the same or substantially the same purpose. What the Court must do, however, is to ensure that a respondent is not punished twice for the same misconduct.
42 While it may be possible to discern a single course of conduct on a particular day during the currency of a protracted industrial campaign, it does not follow that the conduct over the whole period should be treated as a single course and a single contravention to which a single penalty up to the statutory maximum applies: see Director, Fair Work Building Industry Inspectorate v Cradden [2015] FCA 614 at [16]-[18] (Logan J).
43 In determining appropriate penalties in this case it is necessary to have regard to the particular conduct of each respondent on particular days. That conduct, in each case, varied in its nature, gravity, location and effect from day to day. The blockade at the McNab Site, for example, prevented trucks bringing equipment on to the site and prevented some vehicles leaving. It did not, however, prevent managers and workers entering and leaving the site. The blockade at the Myer Emporium Site prevented workers entering the site on some but not all days. At the McNab Site no attempt was made by the police to facilitate access by the vehicles. At the Myer Emporium Site, on some days, the police attempted to assist workers to enter the site. On some days they were successful; on one they were not. At each site the blockades began and ended on single days and were resumed on a following or later day. This required a conscious decision on the part of those involved in the blockade to attend or not attend the sites on particular days. I consider that the relevant conduct should be assessed and a penalty fixed on a day by day basis. Once this process is complete it will be necessary, in each case, to stand back, apply the totality principle, and ensure that the sum of the penalties imposed are proportionate to the gravity of the particular respondent's offending when viewed as a whole.