R v Jacobs Group

CA 46 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 PZ v R [2015] NSWCCA 317 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Ellis (1986) 6 NSWLR 603 R v Jousif; R v I Elomar; R v M Elomar [2017] NSWSC 1299; (2017) 325 FLR 108 R v NP [2003] NSWCCA 195 Sabra v R [2015] NSWCCA 38; (2015) 257 A Crim R 33 Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29 Serious Fraud Office v XYZ Limited [2016] Lloyd's Rep FC 517; [2016] 7 WLUK 211 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 Texts Cited: Commonwealth Director of Public Prosecutions, Best Practice Guidelines: Self-reporting of foreign bribery and related offending by corporations (20 December 2017) Commonwealth House of Representatives, Parliamentary Debates (Hansard), 3 June 1999 OECD Convention on Combating Bribery of Public Officials in International Business Transactions (entered into force on 15 February 1999) Category: Sentence Parties: Regina (Crown) Jacobs Group (Australia) Pty Ltd (Offender) Representation: Counsel: G Craddock SC / S Flood (Crown) T Game SC / A Bonnor (Offender) B Walker SC / N A Wootton (Offender)

Solicitors: Director of Public Prosecutions (Cth) (Crown) Jones Day (Offender) File Number(s): 2018/154158

Introduction

1. Jacobs Group (Australia) Pty Ltd (the company) stands to be sentenced for three offences contrary to ss 11.5(1) and 70.2(1)(a)(iv) of sch 1 of the Criminal Code Act 1995 (Cth) (the Criminal Code) of conspiracy to cause an offer of the provision of a bribe to a foreign official. The precise charges in the further amended Court Attendance Notice are extracted below. On 3 September 2020, the company pleaded guilty in the Local Court and the matter was committed for sentence to this Court.
2. The three charges relate to two conspiracies. Sequence 1 relates to a conspiracy in the Philippines between 1 January 2000 and 20 May 2005 (the Philippines conspiracy). Sequences 2 and 3 relate to a conspiracy in Vietnam between 1 December 2006 and 15 June 2012 (the Vietnam conspiracy). Sequence 2 charges the period up to 19 February 2010 and sequence 3 charges the period from 20 February 2010. It was common ground that the reason for sequences 2 and 3 being charged separately was that there was an amendment to the maximum penalty for the offence which commenced on 20 February 2010: Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth), Schedule 8. This approach has been authorised by the High Court: Agius v The Queen (2013) 248 CLR 601; [2013] HCA 27 at [34]-[49] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
3. The maximum penalty for sequences 1 and 2 is $330,000. For the reasons given below, the maximum penalty for sequence 3 is $11m (being 100,000 times $110, which was the value of one penalty unit at the relevant time).
4. There are several factors which are relevant to the sentence to be imposed on the company, each of which will be addressed below. In the present case, the two most important factors are: first, the objective seriousness of the offending; and second, the assistance given by the company to authorities, by detecting the conduct, reporting it to the Australian Federal Police (AFP), investigating it thoroughly and providing the results of its investigation to the AFP, assisting the Crown, and undertaking to provide future assistance to the Crown in its prosecution of the individuals concerned.
5. Mr Game SC appeared with Ms Bonnor for the company on the sentence generally. Mr Walker SC appeared with Ms Wootton for the company on the question of the meaning of "benefit" in s 70.2(5)(b) of the Criminal Code, a matter which was crucial to the determination of the maximum penalty for the sequence 3 offence.
6. Except where otherwise specified, all references in these reasons to currency are references to the Australian dollar and all references to the Crimes Act are references to the Crimes Act 1914 (Cth).

The facts

1. Most of the narrative set out below is derived from three agreed statements of facts. The first statement of facts formed the basis of the company's plea in the Local Court. The second supplementary statement of facts was designed to augment the statement of facts by providing more detail. The further supplementary statement of facts, which replaced [154]-[169] of the supplementary statement of facts, addressed the facts relevant to the calculation of the maximum penalty for sequence 3. These three statements of fact contain much detail which is not reproduced in these reasons. These reasons are intended to provide a sufficient narrative of the offending conduct for the purposes of sentencing.
2. The statements of facts contain agreements about the involvement of certain individuals who were associated with the company. These agreements as to the facts are binding only as between the company and the Crown (s 191 of the Evidence Act 1995 (NSW)) and form the factual basis of the sentence to be imposed on the company. They are not binding on the individuals concerned, some of whom have been charged with foreign bribery offences and are awaiting trial, having entered pleas of not guilty.
3. The narrative has also been augmented, particularly in relation to the company's post-offence conduct, by the unchallenged affidavit evidence of Matthew Latham, a solicitor at Jones Day who was retained by the company.

The corporate structure of the company

1. During the period of the offending and up to and including December 2013, the company was known as Sinclair Knight Merz Pty Ltd. Between 1 January 2000 and 15 June 2012, the company was part of a group of companies that provided consulting, engineering and project delivery services in Australia and overseas (the SKM Group). The company divided its business into five units up to July 2008 and four units thereafter. The units included the Water and Environment Business Unit. There were about 50 operation centres divided between the business units.
2. Between 1999 and 2013, the company was a private, employee-owned company. As such, it was subject to less stringent disclosure and governance requirements than those which applied to public companies. Nonetheless, it voluntarily adopted several such standards. During this period, voting and equity shares were issued as a reward to some of the company's employees for their performance and contribution to the business. To become a shareholder, an employee had to meet certain criteria and be invited to become a shareholder by a "Nominations Committee" that was established by the board of the parent company.
3. The day-to-day management of the group to which the company belonged was delegated to its Chief Executive Officer (CEO). As referred to below, this position was held by Paul Dougas throughout the relevant period until 26 June 2011 when he was replaced by Santo Rizutto.

Compliance measures

1. From a time before the commencement of the Philippines conspiracy, the company used a Corporate Compliance Manual which was revised from time to time. It contained the following passage: "CP5, Corrupt Practices Act The risk of corrupt practices being undertaken in the various jurisdictions in which we operate needs to be monitored carefully so that members of the Sinclair Knight Merz Group continue to act as good corporate citizens. Some jurisdictions in which we operate in have different methods of arranging and winning work, due to cultural and operational differences. Management response is that our project managers understand the way the Sinclair Knight Merz Group wishes to undertake business, on a global basis, in a professional and ethical manner ... Any type of corrupt practices are actively discouraged. Examples of this might include attempting to bribe an official, putting in a cover bid, collusion with other tenderers etc ... The unacceptable nature of this conduct is to be reinforced to our staff through risk management training modules ... The Project Manager, Operations Centre Manager and Business Unit leader have accountability for ensuring that these practices do not occur ... In the event an issue of this sort does arise then it must be immediately reported to the Chief Operations Officer."
2. The Corporate Compliance Manual was complemented by a Risk Training Manual which included the following statement of principle: "We support ethical behaviour in all our jurisdictions. Corrupt Practices: Some jurisdictions in which we operate prohibit the making of payments or incentives to officials, eg Australia and the US have penalties for this sort of behaviour. We are committed to maintaining ethical behaviour in all the countries in which we operate. Any incidents of this need to be reported to the relevant Chief Operations Officer."

The engagement of Jones Day

1. The company first engaged Jones Day as its solicitors to provide particular advice in 2008. Subsequently, in about early 2012, the company engaged Jones Day to implement a "transformational merger or acquisition" to overcome the limitations of the employee-owned company structure and provide better opportunities for the company to maintain global competitiveness. This project was known as Project Moscato.

The merger

1. Ultimately, in 2013, the company was acquired by Jacobs Engineering Group Inc (Jacobs Group), a company which was listed on the New York Stock Exchange, through a merger between a Jacobs Group subsidiary and the company. Following the merger, Jones Day was retained by Jacobs Group in relation to the offending by the company. These matters are significant in the context of what the company did when others outside the inner circle of the offending learned that the company had caused bribes to be paid to foreign public officials in Vietnam and the Philippines, which are addressed further below.
2. As part of the merger, on 8 September 2013, the company's parent companies entered into a Merger Implementation Deed (the deed) with Jacobs Group under which a subsidiary would acquire all of the voting and equity shares in the company from its shareholders in return for a cash payment. The deed provided for an escrow account to cover various payments for which the subsidiary would otherwise be liable, including any fine imposed by this Court. This matter was relied upon by Mr Game, who emphasised that the fine would be paid by "real people" who had once worked for the company, principally as engineers, although most of them would have had no connection with, or knowledge of, the offending conduct.

SODA

1. The SKM Overseas Development Assistance (SODA) Centre was a small operations centre within the company's Water and Environment Business Unit. In 2012, SODA contributed about 1% to the SKM Group's total annual revenue.
2. SODA's activities fell into two separate categories. First, it provided project management and technical services for engineering projects run by the Australian Agency for International Development (AusAid), which administered the Federal Government's overseas development policies in the Asia/Pacific region. Secondly, SODA provided such services for public works projects in developing countries which were funded by the World Bank or the Asian Development Bank. The conduct which is the subject of the charges relates solely to the second category.
3. Between 1 January 2000 and 15 June 2012, SODA tendered for, and was awarded, contracts to provide engineering project management services for public works projects in the Philippines and Vietnam which were funded by loans from either the Asian Development Bank or the World Bank. Most of the "in-country" engineering and technical services for these projects were provided by sub-contractors engaged by SODA.

Paul Dougas

1. From 19 February 1996 until his retirement on 26 June 2011, Paul Dougas was the CEO and Managing Director of the company. As such, he was required and authorised to manage the company. Because of his position, Mr Dougas was a "high managerial agent" of the company for the purposes of s 12.3 of the Criminal Code.

Geoffrey Linke

1. Geoffrey Linke was General Manager of the Water and Environment Business Unit from 9 July 2001 until 27 June 2010. In that role he oversaw SODA's activities and reported directly to Mr Dougas.

Mark Read

1. Mark Read was the company's Chief Operations Officer (COO) for the Asia Pacific from July 2001 until February 2004. He reported to Mr Dougas. He resigned from the company on 18 April 2008.

Lyndsay Chapple

1. Lyndsay Chapple was an engineer who, in December 1999, was appointed the company's Country Manager for the Philippines and was based in Manila until 2006. In that role he was responsible for finding and bidding on donor-funded projects in the Philippines. On 5 July 2012, the company suspended his employment, which was terminated on 17 August 2012.

Mohit Kumar

1. From 1 September 2004 until 7 June 2006, Mohit Kumar was the company's Philippines Operations Centre Manager. He reported to Mr Linke. He subsequently occupied other positions within the company.

Yolanda Fernandez

1. Yolanda Fernandez, a Philippine national, was the company's Business Development Manager in Manila from 28 June 1999 until she was retrenched on 28 June 2006. In that role, she provided business development and project support, and liaised with Filipino public officials during the tender process. She reported to Mr Chapple.

Adam Carey

1. Adam Carey was the Commercial Manager of the Water and Environment Business Unit from 12 May 2003 until 11 April 2005. He occupied various roles within the company until 17 August 2012, when the company terminated his employment.

Andrew Counihan

1. From 15 October 2007 until 24 September 2011, Mr Counihan was a consultant employed by the company in SODA, based in Kuala Lumpur. He reported to Mr Chapple and Mr Kumar. From 25 September 2011, he was Acting Business Manager of SODA. His employment was suspended on 5 July 2012 and terminated on 17 August 2012.

Paul Casamento

1. From 25 August 2008 until 21 August 2011, Mr Casamento was the Commercial Manager of the Water and Environment Business Unit and was based in Melbourne. In that role, he was responsible for the unit's global operations. He reported to the General Manager of the unit, initially Mr Linke, and subsequently Mark Clarke. From 22 August 2011 until 19 August 2012, he was the Project Director responsible for providing overall direction and support to Project Moscato, which, as described above, was the sale of the company to Jacobs Group.

Nguyen Ngoc Thang

1. Nguyen Ngoc Thang, though not an employee of the company, was its in-country agent in Vietnam. In that role, he liaised with Vietnamese government officials concerning services provided by the company for the Vietnam Urban Upgrade Program. He also arranged for an office to be set up and fitted out, and identified specialist contractors and, if they were retained by the company, monitored their performance.

The genesis of the Philippines conspiracy and its terms

1. In late 1999, Mr Chapple took up the position as Country Manager for the Philippines. In about 2000, Ms Fernandez intimated to Mr Chapple that it was necessary for the company to pay bribes in order to be awarded contracts in the Philippines. Mr Chapple passed on this information to Mr Dougas who informed him that any such payments had to meet the following guidelines: 1. the payments had to be made at arm's length through a third party and not through the company; 2. those within the company who were aware of the payments had to be kept to "an absolute minimum"; 3. the payments should only be made after the contract was awarded to the company; and 4. the payment should always be recorded through an auditable invoice.
2. Because of his position, the conduct of Mr Dougas is attributed to the company. His discussion with Mr Chapple constituted the Philippines conspiracy. From time to time between early 2000 and 20 May 2005, the following other persons who were associated with the company became parties to the Philippines conspiracy: Mr Read, Mr Linke, Mr Kumar and Ms Fernadez.
3. In the early 2000s, Mr Read suggested to Mr Chapple that the company should place a limit of 5% of the overall project price for the illegitimate payments. During the Philippines conspiracy, illegitimate payments were referred to by Mr Chapple, and later Mr Kumar, as "external marketing costs" and "marketing development fees", among other similar terms.
4. In about April 2001, Mr Chapple asked Mr Read for his approval for the payment of a bribe on the Metropolitan Manila Air Quality Improvement Sector Development Program (also referred to as the "Manila Air project"). Mr Read approved the payment of a bribe as long as it did not exceed 5% of the contract price. Mr Chapple communicated the approval to Ms Fernandez who later told him that she had negotiated the payment with a Filipino official. Sometime after 26 May 2001, the company was shortlisted as a firm to engage in the Manila Air project.

The potential merger

1. In early May 2001, the company was in discussion with Gregory Asia about a possible merger. Mr Dougas understood from discussions with Ian Thompson (the Operations Centre Manager for the company based in the United Kingdom) that Gregory Asia was concerned that there be no payments to win work (bribes), but that they were comfortable with third party "service fees" which did not involve direct payments by the company. Following these discussions, Mr Dougas sent an email, which was copied to the company's senior executive team, in which he said: "We need to be assured that no bribes or up-front inducements are being paid to secure work from a client or their employees. This is illegal and against our values as directors and managers. Agents or sub consultants who provide services in client coordination after we have been appointed are acceptable as long as we have transparent fee for service arrangement."
2. Mr Dougas met with Mr Chapple on 10 July 2001 and told him that their practice of making "facilitation payments" had become known to a potential merger partner (Gregory Asia). Mr Dougas told Mr Chapple that his promotion to Asia Regional Manager/COO in Asia had been stopped.

The operation of the Philippines conspiracy

1. In respect of each payment, the company would receive an invoice from a third party (not the recipient of the bribe), purporting to charge for "marketing" or similar.
2. The first relevant contract during this period was the contract, entered into on 29 August 2001, to provide consulting services relating to the implementation of the Pasig River Environmental and Rehabilitation Sector Development Program. Subsequently, the company submitted a proposal to the Metropolitan Waterworks and Sewerage System to provide construction supervision in relation to the Manila Second Sewerage Project. On 26 June 2002, the company learned that its proposal was successful.
3. In the meantime, the company's accounts team in Sydney raised questions about invoices which were received by the company in the Philippines for so-called "external marketing costs". These questions prompted Mr Chapple to write to the company's Regional Manager, Terry Petersen, in an email which was copied to Mr Dougas and Binu Katari, in which he said: "Our external marketing costs were incurred through the agreed third party, and were paid to the third party in response to BIR approved invoices from this marketing company … The confusion caused in Sydney accounts is because we are trying to keep the background … to the smallest possible circle of folk."
4. The company continued to tender for work in the Philippines and continued to agree to make payments to Filipino officials if and when it was awarded contracts. The contracts for which the company submitted tenders were public works contracts. For example, on 25 September 2002, the Philippines Government invited technical and financial proposals in respect of the Mindanao Basic Urban Services Sector Project. The project was funded in part by a loan from the Asian Development Bank to the Land Bank of the Philippines and was designed to provide basic urban infrastructure in Mindanao, the second largest island in the Philippines.
5. On 10 October 2003, Mr Chapple sent an email to Mr Read (with whom he had communicated in early 2001 about bribes being referred to as "external marketing costs") seeking his approval for payments to be made in respect of three further projects, the "Manila Air project", the "Manila Sewerage project" and the Mindanao Basic Urban Services Sector Project. He referred to these payments as "this horrid topic" and concluded the email by saying: "… I would like to ask your approval for the two cheques required, as a way of keeping the circle of folk involved to a minimum. The amounts exceed my local approval authority for cheques and I see no need to get Joe Alban and the GM's involved in this issue unless you so wish."

1. Sometime between 21 March 2004 and 2 April 2004, Mr Linke travelled to Manila. While he was in the Philippines, he discussed the payment of bribes with Mr Chapple. On 6 August 2004, Mr Chapple sent Mr Linke an email in which he sought approval for a payment which was in the order of 5% of the contract price. Mr Chapple said, in part: "Could you please confirm that this is OK. The usual method would be used. This involves a genuine tax approved invoice [which] will be received from a locally registered company with whom we have a great relationship; they will be paid by cheque with all local taxes also paid, and take out their handling fee; and then this other company delivers the payment in cash to the external marketers. … A phone call response will be fine if you wish to avoid too much detail in emails."
2. In September 2004, Mr Kumar took over from Mr Chapple as the Operations Centre Manger for the company in the Philippines. Mr Chapple retained the role of Country Manager and, as such, reported to Mr Kumar, who reported to Mr Linke. In early 2005, Mr Chapple explained the Philippines conspiracy to Mr Kumar, who told him that he had grown up, and worked, in developing countries and knew "how these things work".
3. On 15 February 2005, Mr Kumar sent an email to Mr Linke, which was copied to Mr Chapple, seeking Mr Linke's approval for a payment via a third party to public officials for awarding the company the contract for the Institutional Strengthening Master Plan Project. Mr Linke gave his approval, which led to the last payment in the table set out above.
4. I assess the objective seriousness of the sequence 2 offence as falling within the mid-range.

Sequence 2: the Vietnam conspiracy from 1 December 2006 to 19 February 2010

1. Mr Chapple went to Vietnam to investigate the potential for the company to obtain contracts there. While there, he met Mr Thang, who was then the in-country agent for Landell Mills Ltd, an international development consulting firm. Through Mr Chapple, the company retained Mr Thang as its in-country agent to provide the services referred to above.
2. Between not later than 26 June 2007 and 19 February 2010, Mr Linke, Mr Chapple and Mr Carey agreed that the company would cause bribes to be paid to Vietnamese public officials with a view to the company, through SODA, retaining or obtaining public works contracts in Vietnam, which were assessed and supervised by the Vietnamese Municipal Project Management Unit. Because of Mr Linke's position as a "high managerial agent" of the company for the purposes of s 12.3 of the Criminal Code, his conduct is attributed to the company.
3. In fulfilment of the conspiracy, the company caused bribes to be paid in Vietnam in respect of the company's provision of technical or consulting services under a contract for the Vietnam Urban Upgrade Program which was executed by Mr Chapple on behalf of the company on 25 September 2007. The terms of the Vietnam conspiracy were, in substance, the same as those of the Philippines conspiracy. From time to time between 1 December 2006 and 19 February 2010, Mr Kumar, Mr Counihan and Mr Thang each entered into and became parties to the Vietnam conspiracy.
4. The company entered into the following two contracts with Nhat Phuong Investment & Trading Company Ltd (NPIT) and Hai Dang Tourism Development and Investment Joint Stock Company (HDT), with which Mr Thang was associated: Date Entity Stated purpose of contract 18 August 2008 NPIT Trading services in relation to the Vietnam Urban Upgrade Program 2 October 2009 HDT Arranging logistics for study tour in Korea

1. The underlying purpose of each of these two contracts was to facilitate the payment of bribes to Vietnamese public officials relating to the Vietnam Urban Upgrade Program. Monies paid by the company in respect of invoices issued pursuant to these contracts were intended to be re-directed by Mr Thang to public officials, with the intention that such payments would influence them in their consideration of the company's tenders for the Vietnam Urban Upgrade Program. The company caused the following amounts to be paid, which totalled USD$68,604.33 (approximately AUD$80,962.31), with the intention that the payee would pay them to the relevant foreign official: Date Amount in AUD Payee entity Description on invoice 19 Jun 2009 $16,938.45 NPIT Delivery of Construction Project Management training course (with specific reference to the contract). $14,115.38 20 Aug 2009 $16,260.75 NPIT Delivery of Construction Project Management training course (with specific reference to the contract). 4 Dec 2009 $7,298.10 NPIT Delivery of Construction Project Management training course (with specific reference to the contract). 29 Jan 2010 $14,070.33 HDT Arranging logistics for study tour to Korea [no such arrangements were made; there was neither a tour, nor an intention that there be one]. $12,279.30

1. I assess the objective seriousness of the sequence 2 offence as also falling within the mid-range.

Sequence 3: the Vietnam conspiracy from 20 February 2010 to 15 June 2012

1. As referred to above, this sequence is a continuation of the same conspiracy as is the subject of sequence 2 but has been separated by reason of the amendment to the maximum penalty for the offence which commenced on 20 February 2010. As with sequence 2, the company's liability for sequence 3 arises by reason of the conduct and position of Mr Linke.
2. The company terminated the Vietnam conspiracy on 15 June 2012. At some time between 20 February 2010 and 15 June 2012, Mr Casamento entered into and became a party to the Vietnam conspiracy.
3. For the reasons given above, I have not referred to all of the agreed facts concerning this or any other sequence. However, it is important to note that on or about 12 February 2010, the Vietnamese Municipal Project Management Unit invited tenders for consulting services for detailed design, construction supervision and implementation management of the Thanh Hoa Comprehensive Socioeconomic Development Project Metro, which was designed to improve urban infrastructure in the city of Thanh Hoa. Mr Counihan prepared a spreadsheet which made provision for bribes to be caused to be paid, which was disguised in the spreadsheet as "PM support". The amount of this item was USD$280,000. At this time, Mr Linke was still the General Manager of the Water and Environment Business Unit.
4. During the period of sequence 3, the company continued to perform its contract for the Vietnam Urban Upgrade Program. It also entered into contracts for the following further projects in Vietnam: Name of project Company's involvement Thanh Hoa Comprehensive Socioeconomic Development Project Metro (Thanh Hoa) Signed contract on 8 September 2010. Da Nang Priority Infrastructure Investment Project (Da Nang) Signed contract between 6 and 12 January 2012.

1. As with sequence 2, the company entered into contracts with entities associated with Mr Thang to provide a cover for the bribes which would be paid to these entities with the intention that they would be forwarded to the public officials who were to receive them. The contracts which were entered into, or negotiated for that purpose are as follows: Date Mr Thang or the entity associated with him Title of contract/ apparent purpose Relevant project Contract price (converted to AUD if indicated) 9 Jul 2010 Mr Thang "Contract for project pursuit and implementation support" Thanh Hoa AUD$107,157.90 15 Oct 2010 NPIT Provision of "project management services" Thanh Hoa US$29,800.00 15 Dec 2011* HTD Provision of "resourcing project management and project implementation support services" Thanh Hoa AUD$67,160.04 May 2011 NPIT Provision of "project management and project implementation support services" Da Nang AUD$98,360.89

• Mr Chapple falsely backdated the agreement to 5 July 2011.

1. In the period covered by sequence 3, the company caused the following amounts to be paid (which totalled AUD$204,661.21) with the intention that the payee would pay them to the relevant foreign official: Date of payment (except where indicated) Amount in AUD Payee entity Contract to which payment referable 29 September 2010 $10,339.00 HDT Vietnam Urban Upgrade Program 28 January 2011 $5,439.55 NPIT Vietnam Urban Upgrade Program 21 March 2011 $9,483.53 NPIT Vietnam Urban Upgrade Program 21 July 2010 $29,214.35 Mr Thang 9 July 2010 contract (see above table) $29,214.35 31 May 2011 $24,510.42 Mr Thang 9 July 2010 contract (see above table) 15 September 2010 (invoice date) $14,755.40 NPIT 15 October 2010 contract (see above table) 14 January 2011 $14,755.40 NPIT 15 October 2010 contract (see above table) (invoice date) 18 August 2011 $15,070.83 NPIT May 2011 (see above table) 16 December 2011 $31,205.69 HTD 15 December 2011 (falsely backdated by company to 5 July 2011) $20,672.69

Da Nang Project

1. The Da Nang Project was a Vietnamese Government project to upgrade urban infrastructure in Da Nang City and was partly funded by the World Bank. The project was divided into a number of stages. The company was involved in the third stage.
2. In early April 2011, Mr Chapple, Mr Counihan and other members of SODA, were working on two versions of a budget for the Da Nang Project. One of the budgets indicated, in a line item labelled "project management support", an amount of USD$119,700, which was referable to the expected costs of bribes to Vietnamese officials in respect of the project. A subsequent budget had a revised figure of USD$105,140 for this line item. Mr Casamento gave commercial approval for this proposal.
3. After the company had been chosen as the successful tenderer (but before the contract had been signed), Mr Counihan sent Mr Thang a draft contract for the logistics and project management support, which set out various payment milestones. When Mr Thang saw the figures, he complained that the amount of USD$105,140 was insufficient. Mr Counihan sent him the budget from which the figure had been derived.
4. On 17 August 2011, Mr Thang sent Mr Counihan an invoice in the amount of USD$15,771 (AUD$15,070.83). Mr Counihan sought approval for payment of the invoice from Mr Carey. The invoice was paid on 18 August 2011. It can be seen from the above tables that this money was the only amount paid by the company in respect of the Da Nang Project which was intended, ultimately, to be paid to a public official as a bribe.
5. The contract for the Da Nang Project was ultimately signed by the company between 6 January 2012 and 12 January 2012. On 3 May 2012, Mr Thang sent Mr Counihan an invoice from NPIT in the sum of USD$63,084. On 7 May 2012, Mr Chapple sent Mr Thang an email (which was copied to Mr Counihan and Mr Carey) in which he asserted that the invoice was not in accordance with the agreed schedule. Mr Thang expressed his displeasure at not being able to pay the people who "came to Hanoi last week", "expected us to do our commitment" and were "not happy".

Other projects which did not result in amounts being caused to be paid as bribes

1. Aside from these projects, the company was also involved in two other projects, the Hai Phong Roads Budget Upgrade Project (the Hai Phong Roads Project) and the Northern Mountains Project, which will be considered in turn.

The Hai Phong Roads Project

1. The company did not lodge a successful tender for the Hai Phong Roads Project and did not cause any bribes to be paid in respect of it.
2. In early to mid-October 2010, Mr Counihan created two versions of a draft budget for the project, which he described as "actual" and "alternative". In the actual budget, the project management support costs were said to be USD$343,859.07. In the alternative budget, the figure for the same line item was said to be USD$22,000. In a covering email to Mr Carey dated 12 October 2010, which attached both budgets, Mr Counihan wrote: "As per the file names, I'm sure you get the picture around each draft budget which basically have a similar bottom line. To the alternative presentation version, I've made the following changes: - massively increased the rates of the international structural eng and demand modeller from LB - PM support has become 'project implementation support' and is only USD22k - in the profit analysis sheet, the highlighted numbers have been increased to the same profitability as the actual budget."
3. In SODA's standard form of spreadsheet, the amount for other projects in which the amount allocated for project management support costs typically appears in the "profit analysis" tab; however, in the actual budget, the relevant line item is blank. Instead, these costs appear elsewhere in a separate tab. This line item constituted the company's budget for the bribes to be paid for the Hai Phong Roads Project.

The Northern Mountains Project

1. The Northern Mountains Project was funded by the Asian Development Bank. It was designed to upgrade irrigation infrastructure and roads in the Northern Mountains area of Vietnam and was administered by the Vietnamese Government through the Vietnamese Ministry of Agriculture and Rural Development (the Ministry). Mr Thang suggested an entity with which he was associated to assist the company to be awarded the contract. Mr Counihan prepared various budgets for the project, which he sent to Mr Chapple. The line item for "PM support", a euphemism for bribes, was initially USD$128,000 but, following a response from Mr Thang, was increased in a subsequent budget to USD$240,763. Mr Chapple shared his concern about Mr Thang's demands in an email to Mr Counihan in which he said that "Mr T is still thinking 10% I fear".
2. A subsequent budget for the project, which was more widely circulated, made no allowance for "PM support".
3. In discussions between Mr Chapple and Mr Thang, Mr Thang expressed great concern that he was having to pay the public officials out of his own funds and was required to wait to be reimbursed by the company. Mr Counihan was also involved in placating Mr Thang.
4. In late September 2011, the company was short-listed for the Northern Mountains Project. This led to the Ministry requesting a further proposal from the company. The company produced further budgets. One version of the budget included a single line item for "PM support" in an amount of USD$103,915. Another spreadsheet included a line item for "National Specialist" in an amount of USD$687,375. In the final budget, the amount for this line item had been increased by USD$109,500 to USD$796,875. In an email, Mr Chapple explained to Mr Counihan that the "PM costs were embedded in Thang's rates". This version of the budget was also sent to others in the company for the purpose of a commercial review which it was undertaking.
5. On 14 November 2011, the company submitted a tender for the Northern Mountains Project. At that time, the company intended to enter into an agreement with an entity associated with Mr Thang, who had been involved in the pre-bid activities for that tender. Before the tender process for the Northern Mountains Project was complete, the company became aware (as set out below) of the possibility that its officers or employees had caused bribes to be paid to public officials in order to obtain contracts within SODA.

The benefit obtained by the company from the sequence 3 offending

1. By reason of the amendment to the maximum penalty which came into force on 20 February 2010, it is necessary to address the "benefit" obtained by the company from the sequence 3 offending. The underlying figures have been agreed between the parties.
2. As set out above, the company performed services in respect of three projects in Vietnam during the period covered by sequence 3, for which it was paid a total of AUD$10,130,354 (gross income). In order to establish the net benefit to the company, the parties have agreed on various deductions from its gross income. The first category, the "pass through costs", comprises the payments which the company made to third parties to comply with its contracts. The second category, which is a subset of the pass through costs, comprises money which caused the eventual payment of bribes. The third category, which is also a subset of the pass through costs, comprises all payments made to Mr Thang. Although some of the payments made to Mr Thang were for lawful purposes, the company has agreed to deduct from the pass through costs all of the payments made to Mr Thang. The company's accounts also include incidental expenses. Project Vietnam Urban Upgrade Program Thanh Hoa Da Nang Gross income $1,334,240 $4,356,333 $4,439,781 Pass through costs $704,921 $3,133,664 $3,919,643 From which deduct: Moneys which were caused to be paid as bribes - $25,262.08 - $164,328.30 - $15,071 All payments to Mr Thang (whether unlawful or not) Nil - $76,107 - $27,821 All other expenses, whether unlawful or not Not deducted (out of abundant caution) Not deducted (out of abundant caution) Not deducted (out of abundant caution) Revised total expenses $679,558* $2,893,229 $3,876,751 Total retained by company (gross income less revised total expenses) $654,682 $1,463,104 $563,030

• I note that this figure appears to be erroneous since the sum of the figures is $679,659. The error in this figure has a consequential effect on the total retained by the company, which should be $654,581; the revised total expenses (set out below), which should be $7,449,658.62; and the net benefit (set out below), which should be $2,680,715.38. These slight discrepancies are immaterial because of the view to which I have come on the meaning of "benefit" in s 70.2(5)(b) of the Criminal Code and because I am bound by the parties' agreement: s 191 of the Evidence Act.

1. Thus, the net benefit obtained by the company (on the bases set out above and as agreed by the parties) is: $10,130,354 Gross income -$7,449,538 Less revised total expenses $2,680,816 Net benefit (rounded)

1. The particular significance of these figures will be addressed below in the consideration of the meaning of the word "benefit" in s 70.2(5)(b) of the Criminal Code, which determines the maximum penalty for sequence 3.

The company's post-offence conduct

1. Although the company's post-offence conduct is the subject of agreed facts, greater detail as to what occurred can be found in the unchallenged affidavits of Mr Latham affirmed on 26 April 2021 and 28 May 2021. Because of the reliance placed by both the company and the Crown on the company's post-offence conduct, it is necessary to recount in some detail what occurred.

The involvement of Jones Day in the company's vendor due diligence

1. In early 2012, the company selected Jones Day to assist with its proposed transformational merger or acquisition of the company referred to above as Project Moscato. Project Moscato was managed by the company internally through a working group which was led by Mr Casamento. Its members included Peter Scott (the then Chair of the parent company), Mr Rizutto (the company's CEO), David Kent (an external consultant), representatives of Greenhill & Co (an investment bank) and Mr Latham.
2. Mr Latham appreciated that, as the potential merger partners would be likely to be US, UK or European companies, a key focus of the due diligence of the potential partner would be the company's compliance with anti-bribery and corruption laws. To that end, as part of the vendor due diligence, Mr Latham made enquiries of the company in order to ensure that there would be no "surprises" which would adversely affect the negotiations or the company's value. During this process, Helen Gillies, the company's general counsel and risk manager, also informed Mr Latham that the company had engaged KPMG to undertake an analysis of its existing controls to ensure that it met current regulatory requirements.
3. Ms Gillies also informed Mr Latham that, in 2011, the company had, as a result of the enactment of the Bribery Act 2010 (UK), undertaken an internal assessment of its anti-bribery and corruption procedures. The prohibition against corrupt practices in the Corporate Compliance Manual was fortified by a document, entitled "Appropriate Business Practices Policy", which stated that: "SKM's staff or agents should not, directly or through a third party offer or promise any personal or improper advantage (whether financial or otherwise) in order to secure a more advantageous business outcome. This applies to both government and private sector partners ... Employees, and contractors, of SKM should be aware that the offering or receiving of improper benefits may result in termination by SKM and possible criminal sanction from the relevant authorities."
4. The company also required its employees and officers to undertake an anti-bribery and anti-corruption training course to explain the company's policies. Approximately 2,400 staff completed the course in the first year of its operation.
5. In April 2012, Ms Gillies suggested that the vendor due diligence that Mr Latham was undertaking ought include an investigation of SODA, in part because it operated in various countries in Asia where there was thought to be a high risk of corruption. On this basis, Mr Latham arranged to meet with Mr Casamento and Mr Carey, who was then in charge of SODA. This was an important suggestion since Mr Latham had not considered that SODA would be of potential interest to a proposed merger partner because of the minimal contribution it made to the company's overall business (less than 1% of the company's annual revenue). Indeed, Mr Latham was told that the company had considered shutting down SODA's operations prior to 2012, in part because of its negligible margins.

The meeting on 19 April 2012

1. On 19 April 2012, Mr Latham, Mr Casamento and Mr Carey met, as planned, to discuss SODA. Mr Latham asked whether there were any concerns about bribery and corruption. In what Mr Game submitted, and I accept, was a "guileless" remark, Mr Carey answered that SODA had been paying bribes to public officials in Vietnam for some years under the guise of training contracts or tours and that this practice had been endorsed by the company's senior management. Mr Latham was alarmed by this disclosure because of the potential consequences for Project Moscato.
2. Mr Latham and Mr Casamento informed Ms Gillies of what had transpired. She, too, was shocked and informed Tim Boyle, the company's COO, who informed Mr Rizutto. As a consequence, the company conducted an internal inquiry into the disclosure made by Mr Carey, which was to be led by Mark Grey, the company's Regional Manager in Asia. On 3 May 2012, Mr Latham, Ms Gillies and Mr Grey met with Mr Carey to obtain further detail of SODA's operations and the context in which the payments had been made. Mr Latham formed the impression that Mr Carey was resiling from the disclosures he had made and was not as forthcoming as he had been at the previous meeting. Mr Grey's internal inquiry, which continued for about another six weeks, was inconclusive.

Project Blue: the independent investigation

1. Mr Latham communicated his view to the Project Moscato Working Group that prospective merger partners would not be satisfied with such an inconclusive inquiry. This led Mr Rizutto to decide that it was necessary for an independent inquiry to be conducted by the company's external advisers. On about 5 June 2012, the company engaged Jones Day as the principal external adviser to conduct this task. Jones Day engaged KPMG to help with various forensic matters, including the storage and analysis of large volumes of the company's data, including emails and other documents. The company agreed with Jones Day that the investigation into SODA ought review its operations for the past decade (2002-2012). The investigation was referred to as Project Blue.
2. Jones Day was instructed to determine the truthfulness or otherwise of Mr Carey's disclosures and to identify any other information which might be relevant to any other questionable business practices that SODA had engaged in. Jones Day instructed KPMG to undertake a "rest of business" analysis of the company to ensure that the issues with SODA were not representative of systemic failures of governance or compliance throughout the company's business.
3. The company allowed Jones Day to have unlimited access to all of its employees and all of its records, including electronic records, and imposed no restraint on the fees that might be charged for the work it did. The data which was analysed comprised approximately 2.6 million emails and other documents which were transferred to a storage platform which enabled key-word searches to be conducted across the data.
4. Between early June and mid-October 2012, Jones Day conducted 51 separate interviews of 25 current or former company employees, including Mr Carey and Mr Chapple. Jones Day reviewed about 54,700 emails and 70 volumes of hard copy records relating to projects in which SODA was involved. At one stage, 10 lawyers and paralegals from Jones Day were involved in the investigation.
5. Because of the potential conflicts between the company and those of its employees who were potentially implicated, Mr Latham recommended to Mr Rizutto that the company encourage any senior managers against whom allegations had been made to obtain independent legal advice and that the company pay for such legal advice. Mr Rizutto accepted this recommendation. The investigation led to Project Moscato being put on hold pending the conclusion of the investigation.

The conclusions of the investigation

1. The investigation culminated in a 177-page draft report which was submitted to Mr Rizutto and the board of the parent company. The report concluded as follows: 1. various of the company's employees, including Mr Carey, Mr Chapple and Mr Counihan had paid money to third parties which was intended to be paid as bribes to public officials in Vietnam and the Philippines; 2. some of the allegations made by those interviewed, including that members of the company's senior management were complicit in the conduct referred to in (1), appeared to be supported by contemporaneous emails.
2. I accept Mr Latham's opinion that, due to the complexity of the schemes involved and the subterfuge used by Mr Carey, Mr Chapple and Mr Counihan to conceal the money which was intended to be paid as bribes, it would have been nigh impossible (without inside knowledge) to detect or appreciate the significance of what had occurred within SODA without the benefit of the company's independent investigation. The obfuscation was necessary because those associated with the company knew that causing bribes to be paid was wrong and was not permitted or condoned by the company as a whole, notwithstanding the delinquency of a few of its officers.

Disciplinary action taken by the company

1. On 5 July 2012, the company suspended the employment of Mr Chapple, Mr Carey, Mr Counihan and Aman Mehta, a senior consultant within SODA. On 2 August 2012, Mr Linke's employment was also suspended. As a result of the findings of the internal investigation, the company terminated the employment of Mr Chapple and Mr Carey on 17 August 2012. It terminated Mr Mehta's and Mr Linke's employment on 27 August 2012, and Mr Counihan's employment on 14 September 2012.

The company's decision to self-report

1. In late August 2012, Jones Day presented a working draft of its report of the investigation to the board of the parent company, excluding those directors who were conflicted. At that stage, the report was subject to legal professional privilege. The findings of the report demonstrated to its readers that the company, which many had believed to be a professional, ethical company, had engaged in conduct which, if proved to the requisite standard, was criminal. The non-conflicted directors of the parent company voted unanimously to self-report the matters which were the subject of the investigation report to the AFP, the World Bank, the Asian Development Bank and AusAid and, to that end, to waive legal professional privilege on the report and provide it to these entities.
2. I accept Mr Latham's evidence as to his understanding of the reasons why the parent company's directors decided to self-report as follows: "I was informed by the SKMM [Sinclair Knight Merz Management Pty Ltd] directors that they had decided to make the self-report because they determined: (i) the matters the subject of the Project Blue Investigation Report were sufficiently serious to warrant self-reporting; (ii), it was the correct moral and ethical approach to take; and (iii) it was in the best interests of the company and its shareholders to make the self-report. The self-report was made by the SKMM directors with the knowledge that doing so may result in criminal proceedings being brought against the company, and former or current employees who were involved in the conduct and who appeared to have acted unlawfully."
3. On 31 August 2012, the company provided the unredacted working draft of the investigation report to the AFP. On 31 August 2012, it self-reported to the Asian Development Bank and, on 1 September 2012, it self-reported to the World Bank. None of the recipients of the draft report had any inkling that the company had engaged in bribery. From September 2012, the company cooperated and assisted the World Bank in its investigation into the company's conduct. As referred to below, the company provided significant assistance to the AFP and to the Crown.
4. In August 2012, the company terminated the agency agreement between the company and Mr Thang.
5. In early September 2012, the company formed a working group, which it named "Project Strengthen", to implement its anti-bribery and corruption recommendations globally. At about this time, the company made several operational changes, which included the following: removing day-to-day oversight of SODA's business dealings from anyone who had worked there and conferring the role of day-to-day oversight on Steve Raby, who had no prior involvement with SODA; requiring all SODA employees to report to Mr Raby and obtain his approval (together with Mr Grey) for all payments; imposing a self-moratorium on bidding on any new projects which were sponsored or funded by either the World Bank or the Asian Development Bank; considering whether SODA ought be closed down once its existing contracts had been performed; and analysing how the bribery could have been prevented (and what steps ought be taken to ensure that it did not recur). It also revised its anti-bribery and anti-corruption training program. Mr Rizutto told Mr Latham that what had occurred in the Philippines and Vietnam gave the company the opportunity to become a market leader in anti-bribery and anti-corruption because of its own experience by demonstrating what could be done to redress the harm, rehabilitate the company and ensure that there was no recurrence.

The company's self-report to the World Bank and the Asian Development Bank

1. The final report was also provided to the World Bank in January 2013. In January 2013, Mr Latham went to Manila to brief the Asian Development Bank's Office of Anti-Corruption and Integrity on the findings of the investigation and the steps the company had taken to ensure that it would not happen again.
2. In July 2013, the company concluded a negotiated resolution agreement with the World Bank. It also entered a negotiated resolution agreement with the World Bank Sanctions Board, which imposed a conditional non-debarment on the company for two and a half years. In August 2013, the Asian Development Bank informed the company that it would enter into a confidential negotiated resolution agreement, on the basis of the company's self-reporting and ongoing assistance.

Further assistance provided by the company to the AFP

1. Between November 2012 and July 2013, the company heard nothing from the AFP. On 30 July 2013, the AFP wrote to Jones Day and said that it was highly likely that the AFP would need further assistance in relation to its ongoing investigation. On 19 August 2013, the AFP wrote to Jones Day and said that it "greatly appreciates the actions of yourselves and the company in self-reporting" and it is "hoping to work collaboratively with the company to resolve the matter as efficiently as possible". From August 2013 onwards, Jones Day continued to provide documents and information to the AFP on request and also met with the AFP to explain documents and the investigation report. The evidence established that very considerable assistance, in terms of time and cost, was provided by the company through Jones Day to the AFP. The assistance extended to draft witness statements having been prepared by Jones Day which were provided to the AFP and finalised.
2. I accept that the requests made by the AFP of Jones Day were met in a timely and efficient way and reflected the expertise of the firm, its knowledge of the company's operations and its particular expertise in SODA's business which had been derived from its investigation and the preparation of the report. The readiness of Jones Day to comply with such requests derived from the company's commitment to redressing its wrongdoing by, in essence, funding the investigation into it.
3. From 25 May 2015 until 18 November 2015, no further contact was forthcoming from the AFP. On 18 November 2015, the AFP wrote to Jones Day, informing them that, due to "operational commitments", the investigation had not progressed. Contact was resumed in January 2016.
4. In mid-2016, Mr Latham, Tim L'Estrange and Peter Brabant from Jones Day, met with representatives of the AFP, including Commander Peter Crozier, the Manager of the AFP's Fraud and Anti-Corruption Unit, who gave evidence at the sentence hearing, which is referred to below.
5. Throughout 2016 and 2017, the AFP continued to liaise with Jones Day and obtain assistance in its analysis of the company's conduct and further material.
6. On 4 September 2016, the AFP prepared, and provided to Jones Day, a draft statement of facts which set out a narrative of the offending conduct and proposed a negotiated plea. Mr Latham observed that the draft statement of facts owed much to the investigation report and to the statements which had been obtained from Mr Carey and Mr Chapple (in return for immunity from prosecution). In December 2016, Jones Day met with the AFP. At this meeting, Mr Latham informed Commander Crozier that the company was concerned about the length of time which it was taking the AFP to investigate the offence. He also told the AFP that there appeared to be critical gaps in the AFP's understanding of what had actually occurred, as was evident in the draft statement of facts. He offered to assist the AFP to fill in the gaps. It was not until February 2017 that the AFP accepted Jones Day's offer, which involved Jones Day providing the AFP with its own analysis of the SODA projects in Vietnam. Further factual analyses were provided by Jones Day to the AFP throughout 2017 and additional documents were provided to the AFP on 24 July 2017.

DETAILS OF OFFENCE SEQ No:- 2 Description of Offence: Conspiracy to cause offer of bribe to foreign public official Time and Date of Offence: Between about 1 December 2006 and 19 February 2010 Place of Offence: At Sydney in the State of New South Wales and elsewhere Jacobs Group (Australia) Pty Ltd (ACN 001 024 095), formerly known as Sinclair Knight Merz, did conspire with Lyndsay Gordon Chapple, Adam Ward Carey, Mohit Kumar, Geoffrey Kym Linke, Andrew William Counihan, and Nguyen Ngoc Thang to cause the offer of the provision of benefits to be made to other persons, being benefits not legitimately due to those persons, with the intention of influencing foreign public officials in Vietnam in the exercise of their official duties as foreign public officials in order to obtain or retain business. Short Particulars: Particulars of the projects (i) Vietnam Urban Upgrade Program. Statutory Provision Describing Offence: Sections 11.5(1) and 70.2(1)(a)(iv) of the Criminal Code (Cth) Law Part Code/Law Part Modifier Code/Generic Modifier Code: 41450/41454/51

DETAILS OF OFFENCE SEQ No:- 3 Description of Offence: Conspiracy to cause offer of bribe to foreign public official Time and Date of Offence: Between about 20 February 2010 and 15 June 2012 Place of Offence: At Sydney in the State of New South Wales and elsewhere Jacobs Group (Australia) Pty Ltd (ACN 001 024 095), formerly known as Sinclair Knight Merz, did conspire with Lyndsay Gordon Chapple, Adam Ward Carey, Mohit Kumar, Geoffrey Kym Linke, Andrew William Counihan, Paul Joseph Casamento and Nguyen Ngoc Thang to cause the offer of the provision of benefits to be made to other persons, being benefits not legitimately due to those persons, with the intention of influencing foreign public officials in Vietnam in the exercise of their official duties as foreign public officials in order to obtain or retain business. Particulars of the projects (i) Vietnam Urban Upgrade Program; Short Particulars: (ii) Thanh Hoa Comprehensive Socioeconomic Development Project Metro; (iii) Hai Phong Roads Upgrade Project; (iv) Da Nang Priority Infrastructure Investment Project; and (v) The Northern Mountains Project. Statutory Provision Describing Offence: Sections 11.5(1) and 70.2(1)(a)(iv) of the Criminal Code (Cth) Law Part Code/Law Part Modifier Code/Generic Modifier Code: 41450/41454/51

1. Notwithstanding the circumstance that the company had been charged, the company continued to provide assistance to the AFP and the CDPP in the post-charge period. This assistance included Mr Latham meeting with senior counsel retained by the CDPP to discuss aspects of the Crown case against individual accused persons, with a view to Mr Latham providing further assistance, as required, to the Crown case.
2. On 27 February 2020, the committal hearing was conducted in the Local Court. With the consent of the Crown, Mr Game cross-examined two witnesses, one of whom was Mr Carey. The cross-examination was designed to establish that Mr Linke was a "high managerial agent" for the purposes of s 12.3 of the Criminal Code and that other members of the Vietnam conspiracy were not. This was undertaken for the purposes of the company entering a plea on the basis of agreed facts as to its liability.
3. In May 2021, the Crown asked Jones Day to provide privileged material which derived from the investigation conducted by Jones Day for the company. The company instructed Jones Day that it was prepared to waive legal professional privilege on such material (including interviews conducted by Jones Day with the company's employees) as long as the individuals concerned were notified in advance so that they could be given an opportunity to assert an associated claim for privilege. This administrative burden was borne by Jones Day at the company's expense.
4. On 27 May 2021, the company gave an undertaking, pursuant to s 16AC of the Crimes Act to co-operate in the prosecution of Mr Casamento, Mr Counihan, Mr Dougas, Mr Linke and Mr Read. The undertaking is in the following terms: "Pursuant to section 16AC of the Crimes Act 1914 (Cth), Jacobs Group does hereby undertake to take all reasonable steps to facilitate: 1. the giving of full, frank and truthful evidence by current employees of Jacobs Group and by Matthew Latham, Partner, Jones Day in accordance with any witness statement previously provided or given in furtherance of this undertaking, in the extant criminal proceedings against: • Paul Casamento • Andrew Counihan • Paul Dougas • Geoffrey Linke • Mark Read 2. the provision of voluntary witness statements, where available, from current employees of Jacobs Group, as is reasonably required by the Australian Federal Police (AFP) for the purpose of the extant criminal proceedings referred to in paragraph 1; and 3. the attendance of the witnesses referred to at [2] above, and of Matthew Latham, Partner, Jones Day, where reasonable prior notice has been provided, at conferences with representatives of the AFP or the Commonwealth Director of Public Prosecutions (CDPP) in relation to the extant criminal proceedings referred to in paragraph 1 above, and the provision of supplementary voluntary statement(s) of any further evidence in relation to matters arising from any such conference which that person is capable of providing."

The determination of the maximum penalty

1. The maximum penalty is an important guidepost in the exercise of the sentencing discretion: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). There is a dispute between the parties as to the maximum penalty applicable to sequence 3, which needs to be determined at the outset.
2. The word "benefit" in s 70.2 of the Criminal Code is defined in s 70.1 as including "any advantage and is not limited to property." Section 70.2(5) relevantly provides for the maximum penalty as follows: "An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following: (a) 100,000 penalty units; (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence - 3 times the value of that benefit; (c) if the court cannot determine the value of that benefit - 10% of the annual turnover of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the conduct constituting the offence occurred."
3. It was common ground that the measure in s 70.2(5)(c) did not apply since the benefit could be determined. The dispute concerned the meaning of "benefit".
4. If "benefit" in s 70.2 of the Criminal Code means, as the company contended, net benefit, the maximum penalty for sequence 3 is $11m as three times the net benefit is $8,042,448 (or, on the corrected figure, $8,042,146.14), which is less than $11m. If "benefit" means, as the Crown contended, the gross income, the maximum penalty for sequence 3 is three times $10,130,354, which is $30,391,062, since this figure is greater than $11m.
5. The Crown was unable to identify any basis on which the value of the contract would represent the benefit to the company. It conceded that the consequence of the construction for which it contended was that the maximum penalty for an offence under s 70.2 of the Criminal Code would be the same for a loss-making contract, a profitable contract or a break-even contract as long as the contract price was the same. The only rationale given by the Crown for such a capricious consequence was that it was easier to work out contract price than to work out net benefit and it could not be expected that such an important guidepost in the sentencing process as maximum penalty would require, potentially, detailed calculations and value judgments.

The sentencing principles

1. The company is to be sentenced in accordance with Pt IB of the Crimes Act, taking into account that the maximum penalty for each of sequences 1 and 2 is $330,000 and the maximum penalty for sequence 3 is $11m.
2. The starting point is s 16A of the Crimes Act which provides, relevantly, as follows: "16A Matters to which court to have regard when passing sentence etc. - federal offences (1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: (a) the nature and circumstances of the offence; … (c) 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; (e) any injury, loss or damage resulting from the offence; … (f) the degree to which the person has shown contrition for the offence: (i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) in any other manner; … (g) if the person has pleaded guilty to the charge in respect of the offence: (i) that fact; and (ii) the timing of the plea; and (iii) 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; (h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences; (j) the deterrent effect that any sentence or order under consideration may have on the person; (ja) the deterrent effect that any sentence or order under consideration may have on other persons; (k) the need to ensure that the person is adequately punished for the offence; (m) the character … of the person; (n) the prospect of rehabilitation of the person; …"
3. It is plain from the prefatory words of s 16A(2) of the Crimes Act, that the Court may take into account all relevant matters and is not constrained by the list that follows. However, it is convenient to address the relevant matters by reference to the section and make reference in the reasons to any other matters taken into account.
4. Section 16AC of the Crimes Act requires the Court, if it reduces the sentence by reason of the offender's undertaking to cooperate with law enforcement agencies relating to an offence, to state that the sentence has been reduced for that reason and specify the sentence that would have been imposed but for that reduction.

The nature and circumstances of the offences and whether it constitutes a course of conduct

1. Although the company has pleaded guilty to three offences, for which separate sentences are to be imposed, it is useful to make general remarks about Division 70 of the Criminal Code before turning to the particular offences since this is the offence to which the charges of conspiracy relate.
2. The Criminal Code Amendment (Bribery of Foreign Officials) Act 1999 (Cth) introduced Division 70 into the Criminal Code for the purpose of implementing Australia's obligations under the Convention. The then Attorney-General, the Honourable Daryl Williams QC, said in his Second Reading Speech on the Bill which became the 1999 Amendment: "The purpose of the bill is ... to provide for new offences prohibiting the bribery of foreign officials ... by Australians or companies incorporated in Australia. The offences are designed to implement the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions, which is a very significant response by the international community to the problem of transnational corruption ... The bill is very much one of the consequences of globalisation. We live in a time of unparalleled social and cultural interactions which demand that we have an international perspective in relation to our ethical and value systems as well as the conduct of business. I believe the bill and subsequent ratification of the convention will convey a message to the world and the Australian community that the parliament takes the problem of bribery seriously. There are those who believe official corruption is part of the way of life in some countries. However, it is almost always illegal and I doubt that it really reflects the true community values of the country concerned. However, where laws are not enforced for any reason, corruption will thrive. ... It is important that Australia should support the OECD's initiative to combat the bribery of foreign public officials and take a principled stand against corruption ... There is good business sense, as much as morality, in introducing this legislation. Bribery distorts attempts at international competitive bidding, bribes themselves are non-productive and are therefore paid from profits and bribes distort trade in that contracts are not based on merit and can lead to production of poor quality goods and services. In the aid context, bribery can lead to a very poor selection of projects, and this can in turn lead to diversion of resources away from areas of greatest need." (Commonwealth House of Representatives, Parliamentary Debates (Hansard), 3 June 1999 at 6044-6045) [Emphasis added.]

Sequence 1: the Philippines conspiracy

1. It was accepted by the company that sequence 1 spans five and a half years from early 2000 to May 2005. The company's guilt is founded on the entry by Mr Dougas into the Philippines conspiracy. I am satisfied that Mr Dougas and Mr Chapple formed the agreement which comprised the Philippines conspiracy in about 2001, prior to the company being short-listed for the Manila Air project. The terms of the conspiracy included that payments would only be made at arm's length through a third party and recorded through an auditable invoice. The conspiracy was designed to facilitate the company's winning of contracts in the Philippines.
2. The first invoice was not, however, issued by Intelmar until 16 October 2003. The company made the first payment on 8 December 2003. The invoicing and payments to Intelmar spanned the period from October 2003 until February 2005 and were made in connection with projects for improved sewerage, basic urban services, air quality, river rehabilitation and technical assistance.
3. I accept the Crown's submission that the objective seriousness of the offending is not to be determined merely by the amount caused to be paid as bribes since the relative poverty of the developing country might cause a distortion between the currency of an offending company and the level of payment required by local officials for preferment. In other words, the price acceptable to government officials in developing countries to corrupt the tendering process might be relatively low. Nor is the objective seriousness to be determined by the benefit obtained by the company through its offending conduct. However, these are relevant factors.
4. Having regard to the time over which the conspiracy endured, the amounts the company caused to be paid as bribes, the nature of the relevant contracts and the harm done by the offending conduct, I regard the offending as objectively serious and within the mid-range.

Sequences 2 and 3: the Vietnam conspiracy

1. Because sequences 2 and 3 concern the one Vietnam conspiracy, it is necessary to ensure that the criminality of the whole conspiracy is not double-counted in the sentences imposed for each. The separate periods of each must be considered to ensure appropriate apportionment.
2. The company's liability for the Vietnam conspiracy is based on the entry into the agreement by Mr Linke, the then general manager of the Water and Environment Business Unit, which included SODA. The conspiracy was already on foot before Mr Linke joined it on 26 June 2007 (when he was told of its terms in relation to two projects in Vietnam) and continued after he left the unit on 27 June 2010, when he ceased to have any role in or control over SODA. The company terminated the Vietnam conspiracy on 15 June 2012 when it directed Mr Chapple to cause the bid for the Northern Mountains Project to lapse, having learned of the conduct the subject of the proceedings (at least in broad terms) in April 2012. Having regard to this context, I propose to address sequences 2 and 3 separately.

Sequence 2: 1 December 2006 until 19 February 2010

1. The period covered by sequence 2 from 1 December 2006 until 19 February 2010 was three years and two and a half months. The company joined the conspiracy when Mr Linke joined it on 26 June 2007. Accordingly, the company was a party to the conspiracy for approximately 2 years and 8 months of sequence 2. During this period, the company caused bribes to be offered to Vietnamese public officials with respect to the Vietnam Urban Upgrade Program, the contract for which was executed on 25 September 2007.

Sequence 3: 20 February 2010 until 15 June 2012

1. The balance of the period of the conspiracy was two years and four months from 20 February 2010 until 15 June 2012. The company accepted that its criminal liability did not end when Mr Linke ceased to have a role in the Water and Environment Business Unit and that it continued until the company terminated the conspiracy on 15 June 2012.
2. Despite the shorter period, sequence 3 concerned five projects. Mr Linke was in a relevant managerial position for the performance of one overt act in pursuance of the conspiracy during this period: the preparation of the spreadsheet by Mr Counihan in March 2010 (referred to in the narrative above). Once Mr Linke had left the Water and Environment Business Unit, the company remained a passive participant of the Vietnam conspiracy until its termination in June 2012.

Loss, injury or damage resulting from the conduct

1. The Crown accepted that the company had the skills and expertise required to construct much-needed infrastructure in the Philippines and Vietnam and did not suggest that any incompetent consultants were retained as a result of the bribes. The company was well qualified to tender for public works projects, which were funded by the World Bank or the Asian Development Bank. Nonetheless, the acts performed in pursuance of the two conspiracies corrupted the selection process for several contracts and thereby tended to reinforce the assumption, referred to by the Attorney-General in the Second Reading Speech, that corruption of public officials was part of the way of doing business in those countries. I accept that the offending conduct has caused damage in this sense.

The relationship between remorse, contrition and rehabilitation; and the plea of guilty and past and future assistance

1. There is a degree of overlap between remorse and contrition, the plea of guilty, the past assistance and the undertaking to give future assistance. Each of these factors relate to the company's response when it learned of the offending conduct. The relationship between these factors was addressed by Hayne J in AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [113], who said as follows: "An offender who confesses to crime is generally to be treated more leniently than the offender who does not. And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty to offences that were known. Leniency is extended to both offenders for various reasons. By confessing, an offender may exhibit remorse or contrition. An offender who pleads guilty saves the community the cost of a trial. … And the offender who confesses to what was an unknown crime may properly be said to merit special leniency. That confession may well be seen as not motivated by fear of discovery or acceptance of the likelihood of proof of guilt; such a confession will often be seen as exhibiting remorse and contrition."
2. In the context of New South Wales offences, it was held in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32(5)] (Howie J, McClellan CJ at CL and Simpson J agreeing) that "there is to be no component in the discount [for a plea of guilty] for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the 'Ellis discount'; Lewins [2007] NSWCCA 189; S [2008] NSWCCA 186." I regard this dictum as applicable to the present case, although the present case concerns Commonwealth offences.
3. The plea of guilty and the assistance will be separately addressed and the discount for these matters will, for the reasons given below, be quantified. The facts other than the plea and the assistance will be taken into account as part of the instinctive synthesis to arrive at a figure for each sequence which will then be discounted for the plea and the assistance. I note that the expression instinctive synthesis is, as the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) explained in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, at [37], designed "to make plain that the sentencer is called on to reach a single sentence which … balances many different and conflicting features."

Remorse, contrition and rehabilitation

1. Remorse is a substantial factor in determining whether an offender is unlikely to re-offend and has good prospects of rehabilitation. The timing of the company's initial self-report is highly significant to remorse and contrition, as is its immediate reaction to the disclosure made by Mr Carey. Both indicate that the company's corporate culture was law-abiding and vigilant to detect and address errant conduct by its employees and officers. The company could have kept the suspected wrongdoers in their positions of power and responsibility; it could have allowed the contract for the Hai Phong Roads Project to be awarded to it; and it could have entered into negotiations for the Northern Mountains Project contract, for which it was the first-ranked firm. These contracts had the potential to be significantly more valuable than the ones which SODA had already won for the company and they promised greater profits. Had these two projects gone ahead, SODA would have, presumably increased in importance to the company and raised its revenue beyond the paltry 1% which it had contributed to the company's annual revenue in 2012. However, the company did none of these things.
2. When the assertion that bribes had been paid by the company to foreign officials was brought to the attention of Mr Rizutto (the CEO), the company did everything that could be done to investigate the offending and report it to the authorities (not only the AFP, but also ASIC, the World Bank and the Asian Development Bank). To borrow the words of Hayne J in the passage extracted above, the company, by confessing to an "unknown crime" can be seen to have been motivated, not by "fear of discovery or acceptance of the likelihood of proof of guilt" but rather by "remorse and contrition".
3. It does not detract from this finding that the company's motive in self-reporting was, first, to ensure that its vendor's due diligence was such that no potential purchaser would have cause to refrain from putting a bid on the basis of concern about SODA's wrongdoing; and, secondly, to manage any damage to (if not enhance) its corporate reputation. Nonetheless, it was a costly exercise in contrition and rehabilitation which effectively required the company to bring itself to justice since, absent the company's self-report, the crime would have almost certainly passed undetected.

Specification of a discount for the plea of guilty, past assistance and an undertaking to assist

1. Unlike s 23(4)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Crimes Act does not require the percentage discount for assistance to be specified in the reasons for judgment. However, s 16AC(2)(b) of the Crimes Act requires the Court to specify the sentence that would have been imposed but for the reduction for the offender's undertaking to cooperate with law enforcement agencies in proceedings relating to any offence. Because sentencing involves a process of instinctive synthesis, it is generally unorthodox to quantify the weight given to any particular factor which has been taken into account, absent a statutory exception. Mr Game contended that, notwithstanding the absence of a statutory requirement to specify the percentage discount for the plea of guilty and the past assistance already given by the company, I should quantify the percentage discounts for each of these matters. I accept his submission that, if I were not to quantify the percentage discount for past assistance, the company would be effectively deprived of the acclamation to which it is entitled. Further, the educative purpose of encouraging offenders to do as the company has done, would be lost, or at least muted, if the sentence was not specific as to the company's "reward" (in terms of a discount) for its past assistance.

The plea of guilty

1. It was common ground that the company's plea was entered at an early stage. Although the Crimes Act does not specify the quantum of the discount to be applied to the sentence for an early plea of guilty, it has been generally accepted that a discount of 25% is appropriate. The specification of the amount of the discount has been held to be desirable in the interests of transparency: Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 at [279]-[280] (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ). The sentence will accordingly be discounted by 25% for the early plea which has significant utilitarian value in the saving of time and costs. In assessing the discount for the early plea, I have not made allowance for the considerable assistance provided by the company to the AFP and the CDPP since this is to be the subject of a separate allowance, considered below.

The extent to which the offender has cooperated with law enforcement agencies

1. It was common ground that the past assistance given by the company to the AFP and the CDPP was to be taken into account, either under s 16A(2)(h) of the Crimes Act or the common law.

Past assistance

1. It is not for this Court to question why, given the company's incomparable assistance to authorities, without which the authorities would not have been aware that any offending had occurred, it was nonetheless charged with the offences. The exercise of prosecutorial discretion is not, except in cases of improper purpose, a matter which is either reviewable by the court or an appropriate subject for judicial comment: Maxwell v The Queen (1996) 184 CLR 501 at 514 (Dawson and McHugh JJ); [1996] HCA 46, cited with approval in Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [34]-[35] (French CJ, Hayne, Kiefel, Bell and Keane JJ). The application of the Guidelines is a matter purely for the CDPP.
2. However, the extraordinary assistance provided, and to be provided, by the company to the investigating and prosecuting authorities pulls in a different direction from the seriousness of the offending. In R v Ellis (1986) 6 NSWLR 603 at 604D-E, Street CJ referred to "the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence." His Honour said, of present relevance: "The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned." [Emphasis added.]
3. The principles in R v Ellis, which have produced what has become known as the "Ellis discount", have been given statutory force, for crimes against New South Wales laws, by s 23 of the Crimes (Sentencing Procedure) Act: CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [41] (French CJ and Gageler J) and [71] (Kiefel, Bell and Keane JJ). In Ahmad v R [2021] NSWCCA 30, the Court of Criminal Appeal (Leeming JA, Harrison J and myself) at [36] described the onus which lies on an offender who seeks a discount for assistance as being "to establish precisely what information or assistance the offender has provided and its value, truthfulness, completeness, reliability, [and] timeliness". As there is no Commonwealth equivalent to s 23 of the Crimes (Sentencing Procedure) Act for past assistance (but noting that reduction for cooperation in the future is provided for in s 16AC of the Crimes Act), the common law principles apply.

Undertaking to provide further assistance

1. The findings as to past assistance are set out above. However, the extent of the past assistance ought not be allowed to overshadow the undertaking to provide future assistance in the trials of the individual accused persons named in the undertaking. In effect, the company has offered to provide its resources and the considerable expertise and knowledge of Mr Latham and others at Jones Day to assist the Crown to prove its case against the individual accused. This amounts to future assistance of the highest order.

Specific deterrence

1. I regard the post-offence conduct of the company as exemplary. There is no need for particular weight to be given to specific deterrence in the present case. I note the Crown's acceptance that the company "has made very significant changes to company policies and procedures in order to prevent a recurrence of offending of a like nature".

General deterrence

1. The purpose of general deterrence is to deter others from committing the same or a similar crime. This is commonly regarded as being best achieved by the imposition of a punishment on the wrongdoer. But in the present case, for the reasons given above, the prevention of this particular crime is more readily advanced by rewarding the self-reporting company, who assists the investigating and prosecuting authorities, rather than by punishing it with a substantial fine, with all the opprobrium associated with such a penalty. Nonetheless, I have taken into account the need to deter others from committing similar crimes, as well as the need to encourage corporations such as the company to self-report.

Delay

1. The company relied on delay as a mitigating factor: Sabra v R [2015] NSWCCA 38; (2015) 257 A Crim R 33 at [45], Bellew J, Meagher JA and Schmidt J agreeing. The delay between the company's self-reporting and the laying of charges has been summarised above. It is plain from the narrative that none of the delay was attributable to the company, which responded to requests from the AFP and the CDPP with exemplary speed. While it must be accepted that complex crime requires allocation of resources and time, in this case, the company was always at hand, ready to assist the AFP in understanding and appreciating what had occurred and providing draft witness statements and documentary evidence to establish it.
2. The first significant delay was between 31 August 2012, when the working draft of the investigation report was provided to the AFP, and mid-2013. It was not until 3 July 2013 that the AFP Operations Committee decided to investigate the matter, following which it was referred to the AFP Brisbane Office for investigation. On 17 July 2013, when Jones Day received the first of many requests from the AFP for documents, the company was able to deduce that the AFP had decided to investigate the matter. The second significant delay also took about a year and occurred in 2015 due to the AFP's other "operational commitments". In 2016 and 2017, further delay occurred, presumably because the AFP had other priorities. There was another delay of about 10 months before the company was ultimately served with the Court Attendance Notice. These delays, which total about three years, have not been adequately or satisfactorily explained. Delay constitutes a further significant mitigating factor.

Conclusion

1. In Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [24], Gleeson CJ, McHugh, Gummow and Hayne JJ described sentencing as "a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money." With this in mind, I propose to specify the discount to be applied for the plea and past and future assistance before indicating the sentences I would have imposed but for the discounts.
2. As set out above, I propose to allow a discount of 25% for the company's plea of guilty. I propose to allow a combined discount of 40% for the company's past assistance and undertaking to assist in the future. The figure is of this order because of the matters I have set out above, which make the present a truly extraordinary case of self-reporting of a practically undetectable crime and the provision of substantial assistance to the investigating and prosecuting authorities, without which it would have been almost impossible to bring either the company or the individual accused (who are yet to be tried) to justice. Of that 40%, 30% is for the past assistance and 10% is for the undertaking pursuant to s 16AC of the Crimes Act to give future assistance.
3. I propose to adopt the method endorsed by the Court of Criminal Appeal in R v NP [2003] NSWCCA 195 (Hodgson JA at [30], Simpson J agreeing at [47] and James J agreeing at [59]). Thus, I propose to apply the 25% discount to the starting point for the fine and apply the discount for assistance to the resultant figure.

Sequence 1

1. The fine which would have been imposed but for the plea of guilty and discount for assistance is $150,000. I allow a discount of 25% for the plea of guilty, with the consequence that the fine is reduced to $112,500. Applying the discount of 30% for past assistance results in a figure of $78,750. A further discount of 10% (amounting to $11,250), for the undertaking to give future assistance, will also be applied. Accordingly, the fine to be imposed for sequence 1 is $67,500.

Sequence 2

1. The fine which would have been imposed but for the plea of guilty and discount for assistance is $120,000. I allow a discount of 25% for the plea of guilty, with the consequence that the fine is reduced to $90,000. Applying the discount of 30% for past assistance results in a figure of $63,000. A further discount of 10% (amounting to $9,000), for the undertaking to give future assistance, will also be applied. Accordingly, the fine to be imposed for sequence 2 is $54,000.

Sequence 3

1. The fine which would have been imposed but for the plea of guilty and discount for assistance is $3m. I allow a discount of 25% for the plea of guilty, with the consequence that the fine is reduced to $2,250,000. Applying the discount of 30% for past assistance results in a figure of $1,575,000. A further discount of 10% (amounting to $225,000), for the undertaking to give future assistance, will also be applied. Accordingly, the fine to be imposed for sequence 3 is $1,350,000.

Orders

1. For the reasons given above, I make the following order and impose the following penalties: 1. Jacobs Group (Australia) Pty Ltd is convicted of sequences 1, 2 and 3 on the further amended Court Attendance Notice. 2. In respect of sequence 1, a fine of $67,500 is imposed. 3. In respect of sequence 2, a fine of $54,000 is imposed. 4. In respect of sequence 3, a fine of $1,350,000 is imposed.

Amendments 20 April 2022 - Publication restriction removed - judgment published DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 April 2022