THE COURT: On 3 September 2020, Jacobs Group (Australia) Pty Ltd (the Respondent), formerly known as Sinclair Knight Merz Pty Ltd, pleaded guilty to three offences of conspiring to cause a bribe to be offered to a foreign official, contrary to ss 11.5(1) and 70.2(1)(a)(iv) of the Criminal Code Act 1995 (Cth) (the Criminal Code).
The Respondent was sentenced in the New South Wales Supreme Court on 9 June 2021 at which time there was a dispute about the proper interpretation of the statutory formula for calculating the maximum penalty applicable for that offence contained in s 70.2(5). It provides that, where it is possible to determine the value of the benefit that a company has obtained from the offending, the maximum penalty is the greater of $11,000,000 or three times the value of the benefit. The Crown contended that the word "benefit" as there used meant gross income (the total value of the contracts awarded), while the Respondent contended that it meant the net income from the contracts. The sentencing judge accepted the Respondent's construction and held that the maximum applicable penalty was $11,000,000: R v Jacobs Group (Australia) Pt Ltd [2021] NSWSC 657.
On 11 July 2022, the Court of Criminal Appeal upheld the sentencing judge's construction of s 70.2(5) and dismissed the Crown's appeal: R v Jacobs Group (Australia) Pty Ltd [2022] NSWCCA 152.
On 2 August 2023, the High Court delivered judgment in The King v Jacobs Group (Australia) Pty Ltd, Formerly Known as Sinclair Knight Merz [2023] HCA 23 (Jacobs Group). The High Court allowed the Crown's appeal from the Court of Criminal Appeal decision, holding that the gross, rather than net, benefit was to be used in calculating the maximum penalty prescribed by s 70.2(5) of the Criminal Code. Thereafter, the High Court made the following order:
"The order of the Court of Criminal Appeal of New South Wales made on 11 July 2022, in so far as it dismissed the appeal against sentence for sequence three, be set aside and the matter be remitted to that Court for redetermination of that part of the appellant's appeal under s 5D of the Criminal Appeal Act 1912 (NSW)."
R v Jacobs Group [2023] NSWCCA 280 | Case summary | Zoe
This Court is now required to determine whether the resentencing exercise should be undertaken by the Court of Criminal Appeal or whether the matter should be remitted to a single judge of the Supreme Court for resentencing pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW) (the Act).
Although on 23 August 2023, in response to earlier communication from the Registrar of the Court, both parties confirmed their positions that it would be appropriate for the Court to remit the matter to a single judge, on 7 September 2023, the Crown submitted that the matter should not be remitted, and orders were then made for the parties to file submissions on the question.
[2]
The power to remit
Pursuant to s 5D of the Act, where the Director of Public Prosecutions or Attorney-General appeals to the Court of Criminal Appeal against any sentence pronounced by a court of trial, the Court has the power to "in its discretion vary the sentence and impose such sentence as to the said court may seem proper" (emphasis added).
Section 6(3) of the Act provides the following:
"On an appeal under section 5(1) against a sentence, the court, if it is of the opinion that some sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
Where the Court of Criminal Appeal quashes or varies the sentence passed at trial in respect of any count or part of an indictment, it may also quash or vary any other sentence passed at trial and pass such sentence in substitution as the court thinks is proper: s 7(1A) of the Act.
Sections 5D, 6 and 7 are contained in Part 3 of the Act which is headed "Right of appeal and determination of appeals".
Section 12(2) of the Act, contained in Part 4 which is headed "Procedure", provides that:
"12 Supplemental powers of the court
…
(2) The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made."
[3]
Submissions of the parties
The Crown submitted that, while s 12(2) provides a general power to remit, primacy should be given to s 5D and the Court of Criminal Appeal's "obligation" to proceed to resentence. In order for a matter to be remitted for resentencing, the Crown submitted, with reference to several cases, that there must be either some positive circumstance which would impede the ability of the Court of Criminal Appeal to conduct the re-sentencing exercise, or positive factors which render a trial court better suited to that task, such as the absence of critical findings of fact (citing O'Neil-Shaw v The Queen [2010] NSWCCA 42 (O'Neil-Shaw) at [56], Pritchard v R [2007] NSWCCA 305 and Hopoi v R [2014] NSWCCA 263) or the need for further evidence to be adduced which is likely to be contested: citing R v Pamplin [2001] NSWCCA 327 at [5] and Munro v R [2006] NSWCCA 350 at [25]-[26].
Although the Crown accepted that the categories of cases in which remitter pursuant to s 12(2) may take place are not closed and that s 12(2) should be construed "by reference to the myriad circumstances that the Court deals with", the Crown nonetheless submitted that there was no "instance where remitter has been ordered simply because a party, or even both parties, express that as their preference." Moreover, it was argued that the Respondent had put forward no circumstance which would justify remittal in this particular case.
In response, the Respondent submitted that the power to remit in s 12 is a broad one which this Court may exercise "whenever it thinks expedient or in the interests of justice." It disputed the Crown's contention that this Court has only remitted for resentencing cases where, due to some impediment, this Court would be unable to do justice or where there are circumstances that would render a trial court better able to do justice: citing AW v The King [2023] NSWCCA 92 (AW); Baxter v R [2018] NSWCCA 28; BC v R (No 2) [2019] NSWCCA 142. The Respondent also argued that there is nothing about the present case which would make remitter inappropriate or should otherwise constrain the Court's discretion to remit.
[4]
Consideration
As submitted by the Respondent, there is no constraint on the ability of the Court of Criminal Appeal to remit a matter for resentencing by a trial court. The text of the Act does not support the Appellant's characterisation of this Court's power to resentence pursuant to s 5D as an "obligation", nor does it support a construction of that power as having primacy over the power to remit pursuant to s 12(2). To so construe it would tend to "deny an applicant the right to effective appeal against sentence where the sentencing process has miscarried": O'Neil-Shaw at [30].
Section 12 has been described as conferring wide powers on the Court of Criminal Appeal: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [15].
Section 12(2) confers a broad, general discretion to remit a matter to a trial court and in doing so, to give directions subject to which a determination is to be made. The decision whether to remit is "very much case-dependent" (AW at [66] per Mitchelmore JA) and the circumstances in which the power will be exercised "are varied and cannot be predicted in advance": Campbell v R [2018] NSWCCA 87 at [72] per Hamill J.
In deciding whether to remit, this Court may have reference to the requirements of justice in the particular case as well as ordinary principles of case management. Adamson J (as her Honour then was) in Watson v R [2020] NSWCCA 215 (Watson) at [24] in deciding to remit a matter to the District Court for resentencing considered factors such as the fact that the Applicant was at liberty, the likelihood that there would be little delay, the extensive knowledge of the matter held by the District Court judge and the fact that resentencing in the Court of Criminal Appeal would substantially curtail the parties' rights of appeal. Similarly, in BQ v R [2023] NSWCCA 34, the Court held that remittal for resentencing was the most "sensible and practical course" and also gave weight to the fact that doing so would "preserve the usual appeal rights of both parties": at [287]-[288].
As in Watson, in this case, the Respondent is not in custody which makes re-sentencing less pressing and, if the re-sentencing task is performed by a trial court, this will preserve the Respondent and the Crown's usual rights to seek leave to appeal from any sentence imposed by reference to the proper construction of s 70.2(5) of the Criminal Code, as explained by the High Court.
Further, the Respondent submitted that it is considering adducing further evidence concerning any net benefit obtained or loss incurred by the Respondent which the High Court in Jacobs Group at [53] said might be used by the sentencing judge to "calibrate the relevance of those circumstances, in the context of all other factors to be considered, to ensure the penalty imposed is proportionate to all circumstances of the offence". If the Respondent were to adduce additional evidence, the Crown would be entitled to seek to test or challenge such evidence. This supplies an additional reason why remitter to a single judge of the Common Law Division is appropriate.
In our opinion, it is appropriate that the matter be remitted to a single judge of the Common Law Division for the imposition of sentence in accordance with Jacobs Group.
[5]
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Decision last updated: 08 November 2023