Matta v Australian Competition & Consumer Commission [2000] FCA 729 | Case summary

FRENCH J: 1 I agree for the reasons given by Kiefel J that the appeal should be dismissed. In Lanham v Brake (1983) 13 A Crim R 293, Cox J said of s 19B of the Crimes Act 1914 that: "…the exercise of a s 19B discretion requires more than the mere establishment of one of the par (b) conditions." (at 300) 2 Quoting Windeyer J from Cobiac v Liddy (1969) 119 CLR 257, he said: "Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration." 3 The exercise of the discretion under s 19B is exceptional. For the reasons given by Justice Kiefel, his Honour, in my opinion, properly exercised his discretion in that regard. Even had it been demonstrated that he approached that task with the unduly narrow focus asserted on behalf of the appellant, that would not have led the Court necessarily to intervene - R v Johnston (1987) 45 SASR 482 at 485- 486. 4 This was not an appropriate case for the invocation of s 19B when proper regard is had to all the factors which his Honour identified including the seriousness of the offence and the want of remorse on the part of the appellant. The appellant was not able to enjoy the benefit of a plea of guilty in the submission in mitigation and had the burden of an adverse finding as to his credit in relation to evidence given by him at the hearing. 5 There is one observation that his Honour made that I would like to remark upon in passing. He accepted the submission put to him that the only purpose underlying penalties for contraventions of the Act was the deterrent purpose. That observation is debatable. There is authority in favour of that proposition in respect of contraventions of Part 4 of the Act. While substantial pecuniary penalties may be imposed under s 76 in respect of such contraventions, they are not imposed pursuant to criminal proceedings, as criminal proceedings do not lie against a person by reason only that a person has contravened a provision of Part 4. Contraventions of Part 5, however, do attract, as in this case, criminal proceedings. They may involve questions of public safety, dishonest conduct and the like, which may properly require responses that are not only deterrent but also mark the Court's disapproval of the conduct in question. In the present case, no issue arises directly based upon the purpose to be served by the pecuniary penalties. It is, if anything, a consideration which would have weighed against the appellant and which could properly have been taken into account by his Honour. In the event, the disposition was, if anything, on the lenient side. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

KIEFEL J: 6 On 29 October 1999, the appellant was convicted of two offences of having been directly knowingly concerned in a contravention of s 65C(1)(a) of the Trade Practices Act 1974 (Cth) by Shercind Pty Ltd. Each of the two offences involved the supply by a company of which the appellant was a director to another company of sunglasses which did not comply with relevant Australian standards. The appellant was an optician. The sunglasses ought to have been labelled as unsuitable for use when driving, but were not. 7 On 5 November 1999, Dowsett J ordered that on each count the appellant be fined $500, to be paid within three months, and that he pay the respondent's costs of the proceedings. His Honour declined to apply the provisions of s 19B of the Crimes Act 1914 (Cth). The effect of that was that a conviction was to be recorded. 8 In his reasons, his Honour identified the following factors as relevant: that the absence of the required warning on the sunglasses posed a safety threat to persons whilst driving and could affect other persons; his serious view of the offences; that those who manufactured and supplied sunglasses had both a legal and moral duty to comply with Australian standards which were designed to meet real needs; that the appellant was aware that the sunglasses did not comply with the relevant standards and were supplied notwithstanding non-compliance; that the offences were motivated by commercial considerations, and that a punishment must be such as to pose a deterrent to others who may be minded to ignore the standards. On the other hand, his Honour took into account the appellant's age and the fact that he would be faced with a substantial bill for legal costs. This was influential in particular with respect to the extent of the fine, the prosecutor having pressed for a larger penalty. His Honour also took into account that, to an extent, the appellant had been overborne by his business partner. As against that, the appellant was found by his Honour to have been aware of the standards of his profession as an optician and the relevant legal requirements. 9 His Honour rejected a submission that a conviction should not be recorded. It was submitted before his Honour that the appellant needed to be registered by the Optical Dispensers Board in New South Wales and that a conviction relating to the field in which he worked would create a serious obstacle to his achieving registration again, his registration having lapsed. 10 The appellant relied on three grounds in his notice of appeal, although there are, in fact, only two, the third amounting to no more than one of failure to give reasons. It is submitted that his Honour failed to have regard to other submissions which had been made to him with respect to penalty and, further, that the consideration that a regulatory authority such as the Optical Dispensers Board be made aware of the appellant's conduct was irrelevant to the exercise of the discretion under s 19B; alternatively, his Honour gave it undue weight. 11 The contention that there were submissions which were not taken into account by his Honour is, in my view, erroneous. It was submitted before his Honour that his Honour ought to take into account the appellant's youth. His Honour did take into account what he described as his relative youth. Similarly, his Honour took into account as an extenuating circumstance the fact that the appellant was overborne, although clearly he did not think that it ought to be accorded great weight. It was also submitted before his Honour that the likelihood of the appellant not re-offending might be taken into account since his Honour had found that he was remorseful, until it was pointed out in argument, by his Honour, that that was not the finding he had made. The nature of the offence was pointed to, the counsel for the appellant seeking to derive some benefit from a comparison of penalties in cases where safety of children was involved. It is clear, however, that his Honour considered the safety needs of drivers to be sufficiently serious to warrant a fine, although not one as great as had been imposed in those cases, and to require the conviction to be recorded. 12 As to the second submission, his Honour dealt with the effect upon the prospect of registration in these terms: "It is suggested that I ought not record a conviction against him simply because he wishes to be involved in the calling of optician, and a recorded conviction may prejudice him in this regard. I am, however, of the view that where an offence is directly relevant to the offender's calling, it is all the more important that the fact of such conviction be available to those responsible for regulating admission to that calling. It may be that with the passage of time the significance of the conviction abates, but I think it proper that anybody considering this man's suitability for registration as an optician should be aware of these offences. I consider it appropriate to record convictions in respect of both counts, and I do so." 13 His Honour was there dealing with a submission in mitigation which had regard to the effect of a recorded conviction. His Honour was saying that it did not avail the appellant. This seems to have been misunderstood by the appellant as amounting to a reason for s 19B not being applied and a conviction then being recorded. This is not the case. It is clear that his Honour was not inclined to exercise the discretion under s 19B because of the serious view he took of the offences, which involved aspects of safety for the public, that the appellant was aware of the standards to be applied and what they required, and that he was motivated by commercial and financial considerations. Although the question of the appellant's ability to follow his profession was actually raised by the appellant's counsel in submissions before his Honour, it was submitted before this Court that it was not relevant to an exercise of s 19B that the authorities, or possible employers, be informed of the conviction. To the contrary, however, it has been accepted as a proper consideration that the public, the authorities, and potential employers should know of what is, after all, the truth of the matter: see Re Briese (1997) 92 ACrimR 75. That is not to say that it stands as the reason that a conviction be recorded, but rather that the submission that a conviction be withheld from the information of the public and others should be rejected. 14 The principles relevant to an appeal against sentence are well known. It is not possible in this case, in my view, to point to any improper exercise of the discretion. His Honour took into account factors relevant to the case and the appellant's circumstances and weighed them. The exercise of discretion could not be said to have miscarried. I add that, in my view, a reference to the penalties finally imposed by his Honour, including the recording of conviction, nowhere leads to a conclusion of unreasonableness such that some miscarriage in the process can be inferred. No other factors personal to the appellant stand out, in my view, as having required the exercise of the discretion in his favour. In my view, the appeal should be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Matta v Australian Competition & Consumer Commission

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