A joint project of the National Judicial College of Australia, the Commonwealth
Director of Public Prosecutions, and the Judicial Commission of NSW
Last Updated: 18 December 2012
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of corporations under the Crimes Act 1914 (Cth)
A corporation can commit a federal offence: s 4B.
The non-exhaustive list of matters in s 16A(2) must be taken into account by the court when passing sentence on a federal offender. Where relevant and known these principles apply to corporations as well as individuals.
An example of the relevance and application of each of the general sentencing principles contained in s 16A(2) to corporate offenders is given by the Federal Court in ACCC v Chubb Security Australia Pty Ltd  FCA 1750,  - .
Global sentencing and the totality principle have been relevant to the sentencing of corporations for offences which arise under the same federal provision.
Setting a sentence for a corporate offender may require the Court to consider the intersection of the relevant offence provision with the sentencing principles as they apply under the Crimes Act 1914 (Cth) for a federal offence.
For example, in ACCC v Santo Pennisi  FCA 2100, - the Court discussed the maximum penalty that may be applicable under the Crimes Act 1914 (Cth) for 28 corporate offences against the Trade Practices Act 1978:
Although not expressly listed in the Crimes Act 1914 (Cth), the principle of general deterrence is a matter which should be taken into account in determining the sentence to be passed on an offender: see R v Sinclair (1990) 51 A Crim R 418, ; DPP (Cth) v Said Khodor El Karhani (1990) 21 NSWLR 370, - .
General deterrence has assumed importance as a consideration when sentencing corporate offenders.This is particularly so for breaches of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)): ACCC v Skippy Australia Pty Ltd  FCA 1343, . This was highlighted by von Doussa J in Trade Practices Commission v Farrow (1990) 95 ALR 53 who stated at :
Where the Court thinks fit, a corporate offender may benefit from a discount on the sentence imposed.
Discounts can be provided for:
There are no sentencing options in the Crimes Act 1914 (Cth) which apply specifically to corporations.
Due to their non-corporeal nature, many sentencing options available against natural persons cannot be imposed on corporations.
A fine is defined in s 3(2) of the Crimes Act 1914 (Cth).
Note: A penalty unit under s 4AA of the Crimes Act 1914 (Cth) means $110.
Under the Crimes Act 1914 (Cth) s 4B(3), where the Court thinks fit, it may impose a fine upon a corporation convicted of a federal offence.
The fine may be up to five times the amount of the maximum pecuniary penalty that could be imposed by the court on a natural person convicted of the same offence.
A fine may be imposed on a corporation for an offence that is stated to be punishable by imprisonment only. The Explanatory Memorandum, Crimes Legislation Amendment Bill 1987 (Cth) states that:
Note: section 4B(2) provides that a court may, if it thinks fit and if the contrary intention does not appear, impose a fine on a natural person for an offence that is stated to be punishable by imprisonment only.
Calculating the Fine
The quantum of the fine is to be calculated in accordance with the formula in s 4B(2):
Where the maximum term of imprisonment for an offence is six months, then the maximum pecuniary penalty available against a natural person would be 6 months x 5 = 30 penalty units.
This calculates a pecuniary penalty of: 30 x 110 = $3,300.
For a corporation the maximum available fine would be five times that amount: $3,300 x 5 = $16,500.
Section 4J of the Crimes Act 1914 (Cth) prescribes the maximum fines that may be imposed for certain indictable offences which are dealt with summarily.
Section 4JA prescribes the maximum fines that may be imposed for some indictable offences punishable by fine only which may be dealt with summarily.[Top]
In addition to other relevant matters, the court must take into account the financial circumstances of the offender before imposing a fine: s 16C(1).
Note: the Court is not prevented from imposing a fine where the Court cannot ascertain an offender's financial circumstances: s 16C(2).
Courts have imposed fines on corporate offenders, notwithstanding that the corporation is in liquidation.
The Courts have found this to be consistent with the importance placed on the principle of general deterrence: ACCC v Fila Sport Oceania  FCA 376, - ; ACCC v Vales Wine Co Pty Ltd (1996) ATPR 41-528, . See also Fines.
 Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [30.3].