Commonwealth Director of Public Prosecutions v Aussie Skips Bin Services Pty Ltd; Aussie Skips Recycling Pty Ltd; Roussakis
[2024] FCA 122
•23 February 2024
FEDERAL COURT OF AUSTRALIA
Commonwealth Director of Public Prosecutions v Aussie Skips Bin Services Pty Ltd; Aussie Skips Recycling Pty Ltd; Roussakis [2024] FCA 122
File number(s): NSD 1093 of 2022 Judgment of: WIGNEY J Date of judgment: 23 February 2024 Catchwords: CRIMINAL LAW – sentencing – cartel conduct – making an arrangement containing a cartel provision – giving effect to a cartel provision – where corporate offender provided collections services and processing services for building and demolition waste in the Sydney metropolitan region – where the offender and its chief executive officer pleaded guilty – consideration of objective seriousness of the cartel offences – consideration of appropriate discounts for mitigating factors including plea of guilty and cooperation with law enforcement agencies – consideration of specific and general deterrence in sentencing cartel conduct – consideration of totality principle and parity with sentence imposed on co-offenders – consideration whether disqualification order should be made under s 86E of the Competition and Consumer Act 2010 (Cth) – appropriate sentence Legislation: Competition and Consumer Act 2010 (Cth) ss 45AF, 45AG, 79(1), 79A, 86E, 154X, 155
Corporations Act 2001 (Cth) ss 206B(1), 206G
Crimes Act 1914 (Cth) Pt IB, ss 16A, 16AC, 16BA, 16C, 17A, 19AC, 20(1)(b), 20AB
Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 2 Div 3, Pt 5, ss 7, 17C, 17D, 66, 67, 69, 73, 73
Cases cited: Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450; [2022] HCA 13
Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 2) (2002) 190 ALR 169; [2002] FCA 559
Australian Competition and Consumer Commission v Apple Pty Limited [2012] FCA 646
Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301; [2005] FCA 265
Australian Competition and Consumer Commission v Renegade Gas Pty Ltd (trading as Supagas NSW) [2014] FCA 1135
Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) (2007) 244 ALR 673; [2007] FCA 1617
Australian Securities and Investments Commission v Wooldridge [2019] FCAFC 172
Azari v The Queen [2021] NSWCCA 199
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1
Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2006) 65 ATR 547; [2006] QCA 558
Chief Executive Officer of Customs v Jing [2007] NSWSC 1354
Commissioner for Corporate Affairs (WA) v Ekamper (1987) 12 ACLR 519
Commonwealth Director of Public Prosecutions v Alkaloidsof Australia Pty Ltd [2022] FCA 1424
Commonwealth Director of Public Prosecutions v Joyce [2022] FCA 1423
Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd (2019) 137 ACSR 575; [2019] FCA 1170
Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha (2017) 254 FCR 235; [2017] FCA 876
Commonwealth Director of Public Prosecutions v Vina Money Transfer Pty Ltd (2022) 294 FCR 449; [2022] FCA 665
Commonwealth Director of Public Prosecutions v Wallenius Wilhelmsen Ocean AS (2021) 386 ALR 98; [2021] FCA 52
Darter v Diden (2006) 94 SASR 505; [2006] SASC 152
Director of Public Prosecutions (Cth) v El Karhani (1990) 97 ALR 373; 21 NSWLR 370
Director of Public Prosecutions (Cth) v Page [2006] VSCA 224
Dunn v The Queen [2018] NSWCCA 108
Einfeld v The Queen (2010) 200 A Crim R 1; [2010] NSWCCA 87
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
Environment Protection Authority v Hanna [2018] NSWLEC 80
Gaggioli v The Queen [2014] NSWCCA 246
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hanley v The Queen [2018] NSWCCA 262
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Imbornone v The Queen [2017] NSWCCA 144
Jahandideh v The Queen [2014] NSWCCA 178
Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60
Johnson v The Queen (2004) 218 CLR 451; [2004] HCA 15
Kovacevic v Mills (2000) 76 SASR 404; [2000] SASC 106
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Morris McMahon & Co Pty Limited v Safework NSW [2019] NSWCCA 36
Mourtada v The Queen [2021] NSWCCA 211
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Curtis (No 3) (2016) 114 ACSR 184; [2016] NSWSC 866
R v Geddes (1936) 36 SR (NSW) 554
R v Hannes (2000) 36 ACSR 72; [2000] NSWCCA 503
R v Pullen (2018) 87 MVR 47; [2018] NSWCCA 264
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7
R v Zamagias [2002] NSWCCA 17
Smith v The Queen (1991) 25 NSWLR 1
Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3
Tapper v The Queen (1992) 39 FCR 243
Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75
Tyler v The Queen (2007) 173 A Crim R 458; [2007] NSWCCA 247
Wany v Director of Public Prosecutions (NSW) (2020) 103 NSWLR 620; [2020] NSWCA 318
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Xiao v The Queen (2018) 329 FLR 1; [2018] NSWCCA 4
Division: General Division Registry: New South Wales National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 320 Date of last submissions: 21 May 2023 Date of hearing: 22-23 May 2023 Counsel for the Prosecutor: Mr P Strickland SC with Mr C Tran and Ms S Andrews Solicitor for the Prosecutor: Commonwealth Director of Public Prosecutions Counsel for the Accused: Mr M Thangaraj SC with Ms S Palaniappan Solicitor for the Accused: Mr S Macedone of Macedone Legal ORDERS
NSD 1093 of 2022 BETWEEN: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor
AND: AUSSIE SKIPS BIN SERVICES PTY LTD
Accused
AUSSIE SKIPS RECYCLING PTY LTD
Accused
EMMANUEL NICKOLAS ROUSSAKIS
Accused
ORDER MADE BY:
WIGNEY J
DATE OF ORDER:
23 FEBRUARY 2024
THE COURT ORDERS THAT:
1.A conviction be entered against Aussie Skips Bin Services Pty Ltd for the offence of making a cartel provision contrary to s 45AF(1) of the Competition and Consumer Act 2010 (Cth) as particularised in charge 1 in the indictment dated 31 March 2023 (count 1).
2.Aussie Skips Bin Services Pty Ltd pay a fine of $1,750,000 in respect of its conviction of count 1.
3.A conviction be entered against Aussie Skips Recycling Pty Ltd for the offence of making a cartel provision contrary to s 45AF(1) of the Competition and Consumer Act 2010 (Cth) as particularised in charge 2 in the indictment dated 31 March 2023 (count 2).
4.Aussie Skips Recycling Pty Ltd pay a fine of $1,750,000 in respect of its conviction in respect of count 2.
5.A conviction be entered against Emmanuel Nickolas Roussakis for the offence of aiding, abetting, counselling or procuring Aussie Skips Bin Services Pty Ltd and Aussie Skips Recycling Pty Ltd to each contravene a cartel offence provision, namely s 45AF(1) of the Competition and Consumer Act 2010 (Cth), as particularised in charge 3 in the indictment dated 31 March 2023 (count 3).
6.The following sentence be imposed on Emmanuel Nickolas Roussakis in respect of count 3:
(a)Imprisonment for 18 months to commence on 23 February 2024 and end on 23 August 2025, with such imprisonment to be served by way of intensive correction in the community pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW); and
(b)A fine of $75,000;
(c)The following conditions are to apply to the intensive correction order referred to in order 6(a):
(i)the standard conditions prescribed by s 73 of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely that Emmanuel Nickolas Roussakis must not commit an offence and must submit to supervision by a community corrections officer; and
(ii)an additional condition pursuant to s 73A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely that Emmanuel Nickolas Roussakis perform community service work for 300 hours.
7.Pursuant to s 86E of the Competition and Consumer Act 2010 (Cth), Emmanuel Nickolas Roussakis be disqualified from managing corporations for a period of five years commencing on 23 February 2024.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TABLE OF CONTENTS
FACTS RELATING TO THE OFFENCES
[12]
The waste management industry
[13]
Collections services and processing services in the Sydney region
[19]
Aussie Skips and Aussie Recycling
[25]
The context and circumstances in which the arrangements were made
[27]
The making of the arrangements
[30]
Giving effect to the arrangements
[38]
Abandonment of the arrangements
[48]
The impact of the arrangements
[49]
THE OFFENCES
[51]
MAXIMUM PENALTIES
[60]
ADDITIONAL EVIDENCE ADDUCED BY THE PROSECUTOR
[65]
EVIDENCE ADDUCED BY THE ACCUSED
[69]
Evidence relating to Aussie Skips and Aussie Recycling
[70]
Evidence relating to Mr Roussakis
[80]
GUILTY PLEAS
[84]
RELEVANT SENTENCING PROVISIONS AND PRINCIPLES
[86]
Matters which the Court must take into account
[88]
MAXIMUM PENALTIES
[92]
THE SENTENCES TO BE IMPOSED ON AUSSIE SKIPS AND AUSSIE RECYCLING
[96]
The objective seriousness of the offences in question
[98]
The nature and circumstances of the offence - s 16A(2)(a) of the Crimes Act
[99]
The duration and scale of the offending conduct
[104]
The extent to which the conduct was deliberate, systematic and covert
[108]
Seniority of the offending officer(s) and corporate culture
[112]
Benefits obtained as a result of the conduct
[116]
Injury, loss or damage resulting from the offence – s 16A(2)(e) of the Crimes Act
[135]
Course of conduct – s 16A(2)(c) of the Crimes Act
[140]
Other factors or considerations
[142]
Overall assessment of the seriousness of the offences
[145]
Other offences – ss 16A(2)(b) and 16BA of the Crimes Act
[149]
Aussie Skips’s and Aussie Recycling’s subjective circumstances
[156]
Contrition and remorse – s 16A(2)(f) of the Crimes Act
[158]
Guilty plea – s 16A(2)(g) of the Crimes Act
[162]
Cooperation – s 16A(2)(h) of the Crimes Act
[167]
Character, antecedents, and prospects of rehabilitation – s 16A(2)(m) and (n) of the Crimes Act
[169]
Financial circumstances – s 16C of the Crimes Act
[177]
Deterrence – s 16A(2)(j) and (ja) of the Crimes Act
[191]
Need for adequate punishment - s 16A(2)(k) of the Crimes Act
[197]
Totality
[198]
Sentences imposed on corporations in other cartel offence cases
[200]
Parity
[205]
The appropriate sentence for Aussie Skips and Aussie Recycling
[220]
THE SENTENCE TO BE IMPOSED ON MR ROUSSAKIS
[228]
Differences between the Aussie Companies’ offences and Mr Roussakis’s offences
[229]
The objective seriousness of the offence
[234]
Other offences - ss 16A(2)(b) and 16BA of the Crimes Act
[240]
Mr Roussakis’s subjective circumstances
[243]
Character and antecedents – s 16A(2)(m) of the Crimes Act
[244]
Contrition – s 16A(2)(f) of the Crimes Act
[246]
Prospect of rehabilitation – s 16A(2)(n) of the Crimes Act
[247]
Plea of guilty and co-operation – s 16A(2)(g) and (h) of the Crimes Act
[248]
Financial circumstances – s 16C of the Crimes Act
[249]
Deterrence – s 16A(2)(j) and (ja) of the Crimes Act
[250]
Other subjective considerations
[252]
Sentences imposed on individuals in other cartel cases
[256]
Parity
[269]
The appropriate sentence to impose on Mr Roussakis
[274]
Is imprisonment the only appropriate sentence?
[276]
The appropriate term of the sentence of imprisonment
[284]
Should the Court make a recognizance release order?
[287]
Is it appropriate for imprisonment to be served by way of an intensive correction order?
[291]
Imposition of a fine
[303]
DISQUALIFICATION
[308]
CONCLUSION AND DISPOSITION
[316]
REASONS FOR JUDGMENT
WIGNEY J:
Aussie Skips Bin Services Pty Ltd (Aussie Skips), Aussie Skips Recycling Pty Ltd (Aussie Recycling), and the former chief executive officer of both those corporations, Mr Emmanuel Nickolas Roussakis, have each pleaded guilty to an offence of making an arrangement containing a cartel provision contrary to s 45AF(1) of the Competition and Consumer Act 2010 (Cth). The Court must now impose sentences in respect of those offences.
Aussie Skips is a waste management company which provides collections services for mixed building and demolition waste in the Sydney metropolitan region. Collections services involve the collection and transportation of waste in skip bins to facilities for processing. Aussie Recycling is a waste management company which provides processing services for building and demolition waste in the Sydney. Processing services involve the sorting, processing and recycling of waste.
Mr Roussakis was the chief executive officer of both Aussie Skips and Aussie Recycling at the time the offences were committed. Aussie Skips and Aussie Recycling shared a common head office and staff and were part of a family group of companies. Unless it is necessary to refer to them individually, Aussie Skips and Aussie Recycling will be referred to collectively as the Aussie Companies.
Several other companies provided collections services and processing services in respect of building and demolition waste in Sydney. The largest provider of both collections services and processing services was Bingo Industries Ltd. The chief executive officer of Bingo at the time of the offences was Mr Daniel Tartak.
Over a five-day period commencing on 20 May 2019, Mr Roussakis and Mr Tartak engaged in a series of communications during which they made arrangements concerning the prices at which their respective companies would provide collections services and processing services. The essence of the arrangement in respect of collections services was that Bingo would maintain a price increase of 25% which it had advised its customers it would implement from 1 July 2019 and that Aussie Skips would increase its prices by at least 20%. The essence of the arrangement concerning processing services was that Bingo would maintain a price increase of at least $60/tonne and $35/m3 at its processing facilities which were near Aussie Recycling’s facility at Strathfield South and that Aussie Recycling would increase its prices at its Strathfield South facility by at least $50/tonne and $27.5/m3.
Over the following three months, Aussie Skips and Aussie Recycling gave effect to those arrangements, aided by Mr Roussakis.
Aussie Skips and Aussie Recycling were both charged with an offence of intentionally making an arrangement with Bingo which contained a cartel provision contrary to s 45AF(1) of the Competition and Consumer Act. The charge against Aussie Skips concerned the arrangement which contained a cartel provision in respect of prices in the market for collections services. The charge against Aussie Recycling concerned the arrangement which contained a cartel provision in respect of prices in the market for processing services.
Mr Roussakis was charged with two offences; one offence of aiding and abetting Aussie Skips to contravene s 45AF(1) of the Competition and Consumer Act by making an arrangement containing a cartel provision and one offence of aiding and abetting Aussie Recycling to contravene s 45AF(1) of the Competition and Consumer Act by making an arrangement containing a cartel provision. Aussie Skips, Aussie Recycling, and Mr Roussakis each pleaded guilty to those offences.
The Aussie Companies and Mr Roussakis each asked the Court to take into account, when passing sentence upon them in respect of the offences to which they have pleaded guilty, the fact that they have admitted their guilt in respect of another offence. That procedure is available pursuant to s 16BA of the Crimes Act 1914 (Cth). The offence which both Aussie Skips and Aussie Recycling requested the Court to take into account was in each case an offence of giving effect to an arrangement that contained a cartel provision contrary to s 45AG(1) of the Competition and Consumer Act. Mr Roussakis asked the Court to take into account an offence of aiding and abetting the Aussie Companies to give effect to arrangements with Bingo which contained cartel provisions contrary to s 45AG(1) of the Competition and Consumer Act.
The task for the Court, in sentencing the Aussie Companies and Mr Roussakis in respect of the offences to which they have pleaded guilty, is to impose penalties that are of a severity appropriate in all the circumstances. The maximum penalty for the offence committed by Aussie Skips and Aussie Recycling is $10,000,000. The maximum penalty for the offence committed by Mr Roussakis is a term of imprisonment not exceeding 10 years, or a fine not exceeding $420,000, or both.
The Prosecutor, the Commonwealth Director of Public Prosecutions, also applied for an order, pursuant to s 86E of the Competition and Consumer Act, the effect of which was to disqualify Mr Roussakis from managing corporations for a period of five years.
FACTS RELATING TO THE OFFENCES
The primary facts relating to the offences upon which Aussie Skips, Aussie Recycling, and Mr Roussakis are to be sentenced were for the most part not in dispute. The Prosecutor tendered a single statement of agreed facts in respect of Aussie Skips, Aussie Recycling, and Mr Roussakis. Following is a short summary or distillation of the material facts. Unless stated otherwise, the facts relate to the period during which the offences were committed.
The waste management industry
The waste management industry in New South Wales generally dealt with three streams of waste: building and demolition waste, commercial and industrial waste, and municipal waste.
Companies in the waste management industry generally provided one or more of three types of services in respect of building and demolition waste: collections services, processing services, and disposal services.
Collections services, or skip bin services, involve the physical collection and transporting of building and demolition waste in skip bins to facilities for processing. Waste processors charged collectors a fee to accept and process the waste. Those fees were generally calculated by the tonnage of waste or the cubic metre size of the skip bin containing the waste.
Processing services, or “tipping”, involved the sorting, processing, and recycling of waste. Material would be sorted into its component parts and reusable material would be recycled or further processed and resold.
Disposal services involved disposing of residual waste that could not be recycled, primarily by way of landfill.
The pricing of the services in the industry were affected by landfill disposal costs. Those costs were to some extent passed through to recycling and collections pricing.
Collections services and processing services in the Sydney region
Bingo was the largest provider of collections services for mixed building and demolition waste in Sydney. It operated about 165 collections trucks and had an estimated market share of 22% in respect of collections services. In the 12 months preceding August 2018, its estimated revenue from collections services alone was $134 million.
Aussie Skips was the second largest provider of collections services for building and demolition waste in Sydney. It operated about 25 collections trucks and had an estimated market share of 3% in respect of collections services. In the 12 months preceding August 2018, its estimated revenue from collections services was $26 million.
Several other companies also provided collections services in the Sydney. The next largest provider after Aussie Skips, a business known as Grasshopper, operated 18 trucks, had a market share of 2% and in the twelve-month period prior to August 2018 generated revenue of $12 million. None of the other companies that provided collections services had a market share of more than 2%. Most had a market share of 1% or less.
Bingo was also the largest provider of processing services for mixed building and demolition waste in Sydney. It operated nine processing facilities in the Sydney region. Those facilities were located at Greenacre, Revesby, Auburn, Alexandria, Artarmon, Smithfield, Eastern Creek, Minto, and St Marys. As at 22 November 2018, Bingo had approximately 21% of the market capacity to process mixed building and development waste in Sydney, based on the capacity of processing facilities.
Aussie Recycling was a smaller participant in the processing services market for building and demolition waste in Sydney. It operated only one processing facility at Strathfield South. Aussie Recycling’s facility was approximately one kilometre from Bingo’s Greenacre facility and about eight kilometres from Bingo’s Revesby and Auburn facilities. As at 22 November 2018, there were approximately 13 other companies that provided processing services in Sydney. Three of those companies operated two processing facilities and the balance operated only one facility.
Aussie Skips competed with Bingo and others in the market for collections services in Sydney and Aussie Recycling competed with Bingo and others in the market for processing services in Sydney.
Aussie Skips and Aussie Recycling
Aussie Skips and Aussie Recycling were related companies. They shared a common head office and staff, including a sales manager, business development manager, operations manager, office manager, and administrative staff. They also had common shareholders. As noted earlier, Mr Roussakis was the chief executive officer of both Aussie Skips and Aussie Recycling.
The directors of both Aussie Skips and Aussie Recycling were recorded as being Mr Nick Roussakis and Ms Sandra Roussakis. Mr Nick Roussakis and Ms Sandra Roussakis are Mr Roussakis’s parents. Both Aussie Skips and Aussie Recycling had 100 issued shares. Mr Nick Roussakis owned 50 shares in each of those companies and Ms Sandra Roussakis owned the other 50 shares in each company. By August 2019, however, the shares in both companies previously held by Mr Nick Roussakis and Ms Sandra Roussakis were held by Aussie Waste Industries Pty Ltd. Mr Nick Roussakis and Ms Sandra Roussakis were both directors of Aussie Waste and each held 50 of its 100 issued shares.
The context and circumstances in which the arrangements were made
Prior to 1 July 2019, many building and demolition waste processors in New South Wales, including Aussie Recycling and Bingo, transported and disposed of residual waste in Queensland landfills. That was generally a cheaper alternative to disposing of the waste in New South Wales landfills. That was because Queensland landfills did not have a waste levy, whereas New South Wales landfills did.
In November 2018, however, the Queensland Government announced that it would re-introduce a waste levy, and, in February 2019, the relevant legislation in Queensland was amended to re-introduce a waste levy of $75.00/tonne, commencing on 1 July 2019.
The pricing of both collections services and processing services was affected by landfill disposal costs. Those costs to some extent flowed through to the pricing of collections and recycling pricing. It follows that the reintroduction of the waste levy in Queensland from 1 July 2019 was likely to affect the pricing of collections and processing services by those waste management companies that utilised Queensland landfills.
The making of the arrangements
At 2.30pm on 20 May 2019, Mr Roussakis and Mr Tartak met at a café in Belfield, a suburb of Sydney. The meeting was held at Mr Tartak’s request. The events that followed that meeting support the inference that Mr Tartak and Mr Roussakis discussed the increased prices that Bingo and the Aussie Companies were proposing to charge for their services.
At 3.41pm on the same day, Bingo sent a letter by email to its customers which advised that it would increase its prices for both collections services and processing services from 1 July 2019. The letter advised that there was to be a 25% price increase for collections services and that the price for processing services was to be increased by $35/m3 and $60/tonne for processing mixed building and demolition waste at Bingo’s Sydney processing facilities, other than Eastern Creek, where the fees would be increased by $28/m3 and $50/tonne. Those price increases were greater than the amount that was required to directly offset the anticipated additional costs arising from the reintroduction of the waste levy in Queensland.
It may be inferred that Bingo’s letter to its customers was emailed shortly after the meeting between Mr Roussakis and Mr Tartak, but that the content of the letter had been determined prior to the meeting.
A copy of Bingo’s letter to its customers was also circulated internally to various employees of the Aussie Companies during the afternoon of 20 May 2019. At 4.51pm on 20 May 2019, the Aussie Companies’ operations manager, who was a former Bingo employee, emailed a calendar invitation to various of the Aussie Companies’ officers and employees, including Mr Roussakis. The meeting referred to in the calendar invitation was to be held at 7.45am on 21 May 2019. The calendar invitation stated: “Please come prepared on how we should sit in the market come July 1, 2019”.
At 8.27am on 21 May 2019, Mr Roussakis sent a WhatsApp message to Mr Tartak which queried the meaning of an expression used in Bingo’s letter to its customers concerning its price increases. Mr Tartak responded to that message shortly thereafter and answered the query. WhatsApp is an encrypted text message service.
Mr Roussakis and Mr Tartak thereafter exchanged a lengthy series of WhatsApp messages. Those messages were sent and received on 21 May and 23 May 2019. Mr Roussakis also exchanged a series of WhatsApp messages with a senior employee of Bingo. That senior employee is referred to as AB in the agreed statement of facts. That exchange was instigated by Mr Roussakis and concerned the pricing of collections services. In a prior WhatsApp message, Mr Roussakis had asked Mr Tartak whether AB knew that he and Mr Tartak had met.
It is unnecessary to set out the full content of the WhatsApp messages. It suffices to note that the overall effect of the communications was that Mr Roussakis agreed, on behalf of Aussie Skips, that Aussie Skips would increase its prices for collections services by at least 20% and Mr Tartak, on behalf of Bingo, agreed that Bingo would maintain the price increase of at least 25% for collections services that it had announced to its customers, save that the price increase could be as low as 22% for “top tier” customers. Mr Roussakis also agreed, on behalf of Aussie Recycling, that Aussie Recycling would increase its prices by at least $50/tonne and $27.5/m3 for processing services at its Strathfield South facility and that Bingo would maintain the price increase of at least $60/tonne and $35/m3 for processing services at its facilities near Aussie Recycling’s facility at Strathfield South.
Mr Roussakis was aware that the arrangements he made, on behalf of both Aussie Skips and Aussie Recycling, with Mr Tartak on behalf of Bingo, had the purpose and likely effect of fixing the price of collections services and processing services that the companies provided to their customers. Mr Roussakis was also aware that Aussie Skips and Aussie Recycling competed with Bingo in respect of the provision of those services.
Giving effect to the arrangements
At 8.11am on 24 May 2019, the Aussie Companies distributed a letter to its customers which outlined its increased prices for collections services and processing services. The letter advised that the prices for Aussie Skips’s collections services for building and demolition waste would increase by 20% and that Aussie Recycling’s processing services for building and demolition waste would increase by $50 per tonne and $27.50/m3 excluding GST. Mr Roussakis had sent both Mr Tartak and AB a draft or earlier version of this letter via WhatsApp on 23 May 2019. It may be inferred that Bingo was sent a copy of the Aussie Companies’ letter to its customers shortly after the Aussie Companies emailed it to their customers. A copy of the letter was circulated to certain Bingo staff members by AB at 9.12am on 24 May 2019.
The WhatsApp communications between Mr Roussakis, on the one hand, and Mr Tartak and AB, on the other, concerning their respective companies’ price increases continued after 24 May 2019.
Commencing on around 30 May 2019, Mr Roussakis sent a number of messages to Mr Tartak, AB and others in an effort to arrange a meeting. In one of those messages, Mr Roussakis stated that he was “just as exposed as you are” and that he was “committed just as much as you for this to work”.
The meeting eventually occurred on 4 June 2019 at Mr Roussakis’s home. It was attended by Mr Roussakis, the business development manager at the Aussie Companies, as well as Mr Tartak, and AB. On the following day, Mr Roussakis and Mr Tartak exchanged WhatsApp messages in which they discussed their competitors’ pricing.
Mr Roussakis also exchanged WhatsApp messages with Mr Tartak on 24 June and 4 July 2019, sent WhatsApp messages to Mr Tartak on 24 July and 8 August 2019 and engaged in several WhatsApp exchanges with AB in June, July, and August 2019. It is again unnecessary to set out the full content of those messages. In summary, they referenced the arrangements that had been made between the Aussie Companies and Bingo, discussed pricing, and included complaints, mainly by Mr Roussakis, that the Aussie Companies were losing customers. Some of the messages included suggestions or accusations, mostly by Mr Roussakis, but in later messages also by AB, that the arrangements were not being adhered to. Mr Roussakis also met with AB at a café on 12 June 2019.
Despite some of the claims made in the WhatsApp exchanges between Mr Roussakis, AB, and Mr Tartak, Bingo and the Aussie Companies generally adhered to, and gave effect to, the provisions in the arrangements concerning their pricing for collections services and processing services in the period from 24 May to 31 August 2019.
The Aussie Companies implemented and generally maintained the price increases in respect of collections services and processing services that they had announced to their customers.
In relation to collections services, Aussie Skips increased the price that it charged its customers by: 20% in approximately 9% of cases; between 20-25% in approximately 22% of cases; and 20% or more in approximately 46% of cases.
In relation to processing services, Aussie Recycling increased the price it charged its customers by: exactly $50/tonne or $27.5/m3 (excluding GST) in approximately 25% of cases; and $50/tonne or $27.5/m3 (excluding GST) in approximately 39% of cases.
Mr Roussakis assisted, and was knowingly involved, in the Aussie Companies’ adherence to the arrangements. He was, as chief executive officer, undoubtedly involved in pricing decisions and, as noted earlier, continued his communications with Mr Tartak and AB concerning the price increases during June, July, and August 2019.
Abandonment of the arrangements
The Aussie Companies effectively abandoned the arrangements they had made with Bingo by 1 September 2019. That was largely the result of market pressures which forced the Aussie Companies to reduce their prices below those that had been agreed with Bingo.
The impact of the arrangements
As a result of the arrangement between Aussie Skips and Bingo concerning their pricing in respect of collections services, there was a real chance that some customers of Aussie Skips and Bingo would pay more than they otherwise would have for collections services in Sydney. Mr Roussakis, and through him Aussie Skips, were aware that there was a real chance that the prices charged by Aussie Skips and Bingo for collections services pursuant to the arrangement would have an impact the prices that their competitors charged their customers in Sydney.
Similarly, as a result of the arrangement between Aussie Recycling and Bingo concerning their pricing in respect of processing services, there was a real chance that customers of Aussie Recycling at its Strathfield South facility, and Bingo’s customers at its Greenacre, Revesby, and Auburn processing facilities (those being the facilities closest to Aussie Recycling’s Strathfield South facility) would pay more than they otherwise would have for processing services. There was also a possibility that customers that tipped building and demolition waste at other processing facilities in Sydney could also have paid prices different to those they would have paid had the arrangement not been made and implemented. Mr Roussakis and Aussie Recycling were aware that there was a real chance that the prices charged by Aussie Recycling and Bingo for processing services pursuant to the arrangement would most likely have an impact on the prices that their competitors charged their customers in Sydney.
THE OFFENCES
The indictment presented by the Prosecutor contained the following charge against Aussie Skips:
1.Between about 20 May 2019 and about 24 May 2019 at Strathfield South in the State of New South Wales and elsewhere, Aussie Skips Bin Services Pty Ltd intentionally made an arrangement with Bingo Industries Ltd which contained a cartel provision, knowing or believing that the arrangement contained a cartel provision.
Contrary to section 45AF(1) of the Competition and Consumer Act 2010 (Cth).
Particulars of Arrangement
Bingo Industries Ltd and Aussie Skips Bin Services Pty Ltd made an arrangement about the price of skip bin services in respect of mixed building and demolition waste in the Sydney Metropolitan region that:
i.Bingo Industries Ltd would maintain a price increase of at least 25% (save that the price increase may be as low as 22% for top tier customers); and
ii.Aussie Skips Bin Services Pty Ltd would increase its prices by at least 20%,
from at least 1 July 2019 (the Collections Arrangement).
Aussie Skips entered a plea of guilty to that charge.
Aussie Skips also asked the Court to take into account, pursuant to s 16BA of the Crimes Act, an additional offence. That offence related to giving effect to the cartel provision in respect of its pricing for collections services. That offence was particularised in the following terms in the notice filed pursuant to s 16BA:
[From about 24 May 2019 until at least 31 August 2019, at Strathfield South, New South Wales and elsewhere,] Aussie Skips Bin Services Pty Ltd intentionally gave effect to a cartel provision contained in an arrangement made with Bingo Industries Ltd (ACN 617 748 231), knowing or believing that the arrangement contained a cartel provision, contrary to section 45AG(1) of the Competition and Consumer Act 2010 (Cth).
Particulars
a.Between about 20 May 2019 and about 24 May 2019, Aussie Skips Bin Services Pty Ltd intentionally made an arrangement with Bingo Industries Ltd about the price of skip bin services in respect of mixed building and demolition waste in the Sydney Metropolitan region that:
i.Bingo Industries Ltd would maintain a price increase of at least 25% (save that the price increase may be as low as 22% for top tier customers); and
ii.Aussie Skips Bin Services Pty Ltd would increase its prices by at least 20%,
from at least July 2019 (the Collections Arrangement).
b.Aussie Skips Bin Services Pty Ltd gave effect to the cartel provision contained in the Collections Arrangement.
The indictment contained the following charge against Aussie Recycling:
2.Between about 20 May 2019 and about 24 May 2019 at Strathfield South in the State of New South Wales and elsewhere, Aussie Skips Recycling Pty Ltd intentionally made an arrangement with Bingo Industries Ltd which contained a cartel provision, knowing or believing that the arrangement contained a cartel provision.
Contrary to section 45AF(1) of the Competition and Consumer Act 2010 (Cth).
Particulars of Arrangement
Bingo Industries Ltd and Aussie Skips Recycling Pty Ltd made an arrangement about the price of processing services for the mixed building and demolition waste stream that:
i.Bingo Industries Ltd would maintain a price increase of at least $60/tonne and $35/m3 at its facilities proximate to Aussie Skips Recycling Pty Ltd’s Strathfield South facility; and
ii.Aussie Skips Recycling Pty Ltd would increase its prices by at least $50/tonne and $27.50/m3 at its Strathfield South facility,
from at least 1 July 2019 (the Processing Arrangement).
Aussie Recycling entered a plea of guilty to that charge.
Aussie Recycling also asked the Court to take into account, pursuant to s 16BA of the Crimes Act, an additional offence. That offence related to giving effect to the cartel provision in the arrangement concerning prices for processing services. That offence was particularised in the following terms in the notice filed pursuant to s 16BA:
[From about 24 May 2019 until at least 31 August 2019, at Strathfield South, New South Wales and elsewhere,] Aussie Skips Recycling Pty Ltd intentionally gave effect to a cartel provision contained in an arrangement made with Bingo Industries Ltd (ACN 617 748 231), knowing or believing that the arrangement contained a cartel provision, contrary to section 45AG(1) of the Competition and Consumer Act 2010 (Cth).
Particulars
a.Between about 20 May 2019 and about 24 May 2019, Aussie Skips Recycling Pty Ltd intentionally made an arrangement with Bingo Industries Ltd about the price of processing services for the mixed building and demolition waste stream that:
i.Bingo Industries Ltd would maintain a price increase of at least $60/tonne and $35/m3 at its facilities proximate to Aussie Skips Recycling Pty Ltd’s Strathfield South facility; and
ii.Aussie Skips Recycling Pty Ltd would increase its prices by at least $50/tonne and $27.50/m3 at its Strathfield South facility,
from at least 1 July 2019 (the Processing Arrangement).
b.Aussie Skips Recycling Pty Ltd gave effect to the cartel provision contained in the Processing Arrangement.
The indictment contained the following charge against Mr Roussakis:
3.Between about 20 May 2019 and about 24 May 2019 at Strathfield South in the State of New South Wales and elsewhere, Emmanuel Nickolas Roussakis did aid, abet, counsel or procure Aussie Skips Bins Services Pty Ltd and Aussie Skips Recycling Pty Ltd to each contravene a cartel offence provision, namely, section 45AF(1) of the Competition and Consumer Act 2010 (Cth), in that Aussie Skips Bin Services Pty Ltd and Aussie Skips Recycling Pty Ltd each intentionally made an arrangement with Bingo Industries Ltd containing a cartel provision, which to the knowledge or belief of Aussie Skips Bin Services Pty Ltd, Aussie Skips Recycling Pty Ltd and Emmanuel Nickolas Roussakis each contained a cartel provision.
Contrary to section 45AF(1) with section 79(1)(a) of the Competition and Consumer Act 2010 (Cth).
Particulars of Arrangement
a. Emmanuel Nickolas Roussakis did aid, abet, counsel or procure Aussie Skips Bin Services Pty Ltd to make the Collections Arrangement.
b. Emmanuel Nickolas Roussakis did aid, abet, counsel or procure Aussie Skips Recycling Pty Ltd to make the Processing Arrangement.
Mr Roussakis entered a plea of guilty to the charge.
Mr Roussakis also asked the Court to take into account, pursuant to s 16BA of the Crimes Act an additional offence. That offence related to giving effect to the cartel provisions in both the arrangement between Aussie Skips and Bingo which contained a cartel provision concerning prices in respect of collections services and the arrangement between Aussie Recycling and Bingo which contained a cartel provision concerning prices in respect of processing services. That offence was particularised in the following terms in the notice filed pursuant to s 16BA:
[From about 24 May 2019 until at least 31 August 2019, at Strathfield South, New South Wales and elsewhere,] Emmanuel Nickolas Roussakis did aid, abet, counsel or procure Aussie Skips Bin Services Pty Ltd (ACN 615 153 985) and Aussie Skips Recycling Pty Ltd (ACN 614 855 506) to each contravene a cartel offence provision, namely, section 45AG(1) of the Competition and Consumer Act 2010 (Cth), in that Aussie Skips Bin Services Pty Ltd and Aussie Skips Recycling Pty Ltd each intentionally gave effect to a cartel provision contained in arrangements each made with Bingo Industries Ltd, which to the knowledge or belief of Aussie Skips Bin Services Pty Ltd, Aussie Skips Recycling Pty Ltd and Emmanuel Nickolas Roussakis each contained a cartel provision, contrary to section 45AG(1) with section 79(1)(a) of that Act.
Particulars
a.Between about 20 May 2019 and about 24 May 2019, Aussie Skips Bin Services Pty Ltd intentionally made an arrangement with Bingo Industries Ltd about the price of skip bin services in respect of mixed building and demolition waste in the Sydney Metropolitan region that:
i.Bingo Industries Ltd would maintain a price increase of at least 25% (save that the price increase may be as low as 22% for top tier customers); and
ii.Aussie Skips Bin Services Pty Ltd would increase its prices by at least 20%,
from at least 1 July 2019 (the Collections Arrangement).
b.From about 24 May 2019 until at least 31 August 2019, Aussie Skips Bin Services Pty Ltd gave effect to the cartel provision contained in the Collections Arrangement.
c.Between about 20 May 2019 and about 24 May 2019, Aussie Skips Recycling Pty Ltd intentionally made an arrangement with Bingo Industries Ltd about the price of processing services for the mixed building and demolition waste stream that:
i.Bingo Industries Ltd would maintain a price increase of at least $60/tonne and $35/m3 at its facilities proximate to Aussie Skips Recycling Pty Ltd’s Strathfield South facility; and
ii.Aussie Skips Recycling Pty Ltd would increase its prices by at least $50/tonne and $27.50/m3 at its Strathfield South facility,
from at least 1 July 2019 (the Processing Arrangement).
d.From about 24 May 2019 until at least 31 August 2019, Aussie Skips Recycling Pty Ltd gave effect to the cartel provision contained in the Processing Arrangement.
MAXIMUM PENALTIES
At the time the Aussie Companies committed the offences in question, the maximum penalty for an offence committed against each of ss 45AF(1) and 45AG(1) was a fine not exceeding the greater of: $10,000,000; or, if the court could determine the total value of the benefits that were obtained by one or more persons and that were reasonably attributable to the commission of the offence, three times that total value; or, if the court could not determine the total value of those benefits, 10% of the corporation’s annual turnover during the 12‑month period ending at the end of the month in which the corporation committed, or began committing, the offence: ss 45AF(3) and 45AG(3) of the Competition and Consumer Act.
The parties agreed that the maximum penalty applicable to both the offence committed by Aussie Skips and the offence committed by Aussie Recycling was $10,000,000. That was because both the benefit and turnover bases for calculating the maximum penalty were either inapplicable or did not result in a figure which exceeded $10,000,000.
As for the benefit basis, the Prosecutor contended that the Court could not, or would not, be able to determine the total value of the benefits obtained by Aussie Skips and Aussie Recycling that were reasonably attributable to the commission of the offences they each committed. Aussie Skips and Aussie Recycling appeared to agree with that contention. While they adduced evidence from an accountant concerning the benefits obtained by them during the offending period, they did not submit that the accountant’s evidence in that regard could prove the total benefits for the purpose of calculating the maximum penalty. The accountant’s evidence concerning the benefits obtained by Aussie Skips and Aussie Recycling is discussed later in these reasons.
As for the turnover basis, it was agreed that the applicable turnover in the case of Aussie Skips for the relevant period was $14,400,000 and that the appliable turnover in the case of Aussie Recycling for the relevant period was $20,800,000. Obviously 10% of those turnover figures is less than $10,000,000.
As for the maximum penalty applicable to the offence committed by Mr Roussakis, a person who is not a body corporate and who, by virtue of having aided, abetted, counselled, or procured a person to commit a cartel offence provision, is taken to have contravened that provision, is punishable by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both: s 79(1) of the Competition and Consumer Act. A penalty unit at the time Mr Roussakis aided and abetted the Aussie Companies’ commission of the cartel offences was $210. It follows that the maximum penalty in respect of each of the offences committed by Mr Roussakis is 10 years imprisonment, or a fine of $420,000, or both.
ADDITIONAL EVIDENCE ADDUCED BY THE PROSECUTOR
The Prosecutor relied on affidavit evidence from an officer of the Australian Competition and Consumer Commission (ACCC), Mr Blake Donald. Mr Donald’s evidence primarily related to some aspects of the ACCC’s investigation of the offences. Mr Donald’s affidavit also annexed extracts from the ACCC’s register which recorded the directorships and ownership of Aussie Skips, Aussie Recycling and Aussie Waste.
Mr Donald’s evidence concerning the ACCC’s investigation was, in summary, that on 4 December 2019, officers of the ACCC executed a search warrant at the Aussie Companies’ business premises in Strathfield South. That search warrant had been issued to Mr Donald pursuant to s 154X of the Competition and Consumer Act. The ACCC subsequently issued and served on the Aussie Companies a series of notices under s 155 of the Competition and Consumer Act. Those notices, which were dated 3 December 2020, 3 June 2021, and 9 April 2021, required the Aussie Companies to furnish specified information and produce specified documents relevant to the ACCC’s investigation. The Aussie Companies complied with those notices. On 17 December 2020, the ACCC sent a letter to the legal advisers who were acting for the Aussie Companies and Mr Roussakis. Those letters outlined the ACCC’s allegations concerning cartel conduct by the Aussie Companies and Mr Roussakis. Mr Roussakis was invited to cooperate by attending an interview. He subsequently declined that invitation.
The Prosecutor tendered criminal history reports in respect of Aussie Recycling and Mr Roussakis. Those reports indicate that on 21 July 2022, Aussie Recycling and Mr Roussakis were convicted in the District Court of New South Wales of an occupational health and safety offence. It is common ground that those offences arose out of the workplace death of an employee. It may be inferred that those offences were very serious, particularly given the penalties that were imposed. Aussie Recycling was fined $525,000 and Mr Roussakis was fined $60,000. Mr Roussakis has also been dealt with in respect of various other minor offences, including: an offence of dishonestly gaining a benefit or advantage in January 2001; various driving offences in December 2007; and using offensive language and common assault in December 2009. Those offences were all dealt with summarily and resulted in either no conviction being recorded or, in some cases, the imposition of fines or good behaviour bonds.
Finally, the Prosecutor tendered a sentencing assessment report in respect of Mr Roussakis prepared by a community corrections officer of Corrective Services NSW. That report records that Mr Roussakis told the officer that when he committed the offence he was “ignorant to the legal and moral implications of his actions” and that his motivation was “to improve the company’s finances during a period of reported economic struggle”. Mr Roussakis also reported his embarrassment. The officer assessed that there was a low risk of Mr Roussakis offending. The officer also made some recommendations which are potentially relevant to the available sentence options. Those recommendations will be addressed later in these reasons.
EVIDENCE ADDUCED BY THE ACCUSED
The Aussie Companies and Mr Roussakis adduced evidence in support of their pleas in mitigation.
Evidence relating to Aussie Skips and Aussie Recycling
As previously adverted to, the Aussie Companies adduced evidence from an accountant, Mr Maurizio Zappacosta. That evidence addressed three topics.
The first topic addressed by Mr Zappacosta concerned the benefits obtained by both Aussie Skips and Aussie Recycling during the period of offending, both in terms of turnover and net profit or loss. Mr Zappacosta’s evidence, in summary, was that the benefits obtained during the offending period were, in the case of Aussie Skips, an increase in turnover of $107,120, and in the case of Aussie Recycling, an increase in turnover of $162,131. Mr Zappacosta also appeared to suggest that, once the increased costs incurred as a result of the reintroduction of the Queensland landfill level were factored in, Aussie Recycling suffered a loss of $662,659.
The second topic addressed by Mr Zappacosta was a comparison of the financial positions of Aussie Skips, Aussie Recycling, and Bingo. The key points that emerge from Mr Zappacosta’s analysis of the financial records of those companies are as follows:
·The combined turnover of Aussie Skips and Aussie Recycling was: $5,659,325 (for the period 1 July to 31 August 2019); $26,747,099 for the 2019 financial year; and $33,513,159 for the 2020 financial year. In calculating those figures, Mr Zappacosta excluded invoices issued by Aussie Skips to Aussie Recycling and vice versa.
·Bingo’s current and historical turnover was: $395,739,000 (for the 2019 financial year); $478,629,000 (for the 2020 financial year); and $485,400,000 (for the 2022 financial year).
·The combined net equity position of Aussie Skips and Aussie Recycling was: $4,228,625 as of 24 May 2019 and $3,928,905 as of 31 August 2019; $3,744,791 as at the end of the 2019 financial year; and $1,551,708 as at the end of the 2020 financial year.
·The net equity position of Bingo was: $826,450,000 for the 2019 financial year; $858,912,000 for the 2020 financial year; and $986,987,000 for the 2022 financial year.
·The combined figures for net profit for Aussie Skips and Aussie Recycling were: a loss of $307,802 for the 2019 financial year; a loss of $2,193,283 for the 2020 financial year; and a profit of $2,068,114 for the 2022 financial year.
·The profit figures for Bingo were: a net profit after tax of $22,265,000 for the 2019 financial year; a net profit after tax of $66,014,000 for the 2020 financial year; and a net loss after tax of $35,300,000 for the 2022 financial year.
The third topic addressed by Mr Zappacosta concerned the capacity of Aussie Skips and Aussie Recycling to pay any fine that may be imposed. Mr Zappacosta’s opinion in that regard was, in summary, that a combined fine above $1,711,000 would cause Aussie Skips and Aussie Recycling to become insolvent.
Mr Zappacosta was cross-examined by the Prosecutor and aspects of his evidence were challenged and disputed. The main challenges were to Mr Zappacosta’s evidence concerning his calculation of the benefits derived by Aussie Skips and Aussie Recycling during the period of the offence and his opinion concerning the ability of those companies to pay any fine. The cogency, reliability and relevance of Mr Zappacosta’s evidence will be discussed in detail later in these reasons.
The Aussie Companies adduced affidavit evidence from Mr Mitchell Palmer, the operations manager of Aussie Waste and its controlled entities, including Aussie Skips, Aussie Recycling and a company called Aussie Skips Commercial Pty Ltd. Mr Palmer collectively referred to those entities as Aussie Industries. Mr Palmer commenced his employment with Aussie Skips Commercial in August 2021 and was appointed operations manager of Aussie Industries in January 2022. His evidence relevantly included that Aussie Industries employs about 80 full time staff and that Aussie Skips owned 40 trucks and 5,000 skip bins. Aussie Recycling has two processing centres; the facility at Strathfield South and a facility at Greenacre which is authorised to accepted general solid waste, but not building and demolition waste.
Mr Palmer stated that Aussie Industries had a “strong emphasis on fostering a culture of compliance” and that to achieve that goal it had “developed a set of policies and procedures to guide [its] work processes”. Mr Palmer did not, however, provide any meaningful detail concerning any specific policies relevant to anti-competitive conduct. He did, however, express the view that Aussie Industries now “has measures in place to ensure that the conduct that led to the current charges does not happen again”. The main “measure” identified by Mr Palmer was that “no one person has complete control over pricing decisions”.
The Aussie Companies also adduced evidence from Ms Annastasia Tsihlis, the chief financial officer of Aussie Waste and its controlled entities. Ms Tsihlis’s evidence included the following:
In my opinion, the matters which led to the current charges will not be repeated. Aussie Recycling and Aussie Skips were only able to enter into the arrangements subject of the current charges because former CEO, Emmanuel Roussakis, had complete and solitary control of the prices set and charged, with no oversight from others in the business. The prices charged for skip bins and tipping are now calculated following a structured and collaborative process between the sales, operations, and finance team. I am involved in this process, as are Nansi Philips (General Manager) and Mitchell Palmer (Operations Manager).
Ms Tsihlis also referred to Aussie Industries’ engagement with various charities.
The Aussie Companies tendered a statement from Ms Nansi Philips, the general manager of Aussie Waste and its controlled entities. The evidence in that statement was similar in many respects to the evidence of Mr Palmer and Ms Tsihlis. Ms Philips also expressed the view that the “matters” which led to the current charges will not be repeated because they were due to the “rogue actions” of Mr Roussakis as opposed to any “broader compliance issues”. She noted that Mr Roussakis is no longer solely involved in determining prices.
Evidence relating to Mr Roussakis
While Mr Roussakis did not himself give evidence, he did tender a letter to the Court signed by him. In that letter, Mr Roussakis expresses a degree of contrition and seeks to explain the circumstances surrounding his offending conduct. As discussed later in these reasons, I accept that Mr Roussakis is contrite and remorseful. It is, however, difficult to afford much weight to the statements made by Mr Roussakis in his letter concerning the circumstances surrounding his offending in circumstances where he did not give evidence and the account in his letter was unable to be tested by the Prosecutor: R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 at [58]-[59] and [79]; Imbornone v The Queen [2017] NSWCCA 144 at [57]; Commonwealth Director of Public Prosecutions v Alkaloidsof Australia Pty Ltd [2022] FCA 1424 at [180] (CDPP v Alkaloids). In particular, statements made by Mr Roussakis in his letter to the effect that at the time of the offences the Aussie Companies were “struggling financially”, and that he considered that the Aussie Companies were “at the mercy of Bingo”, have to be treated with considerable caution and circumspection.
Mr Roussakis adduced opinion evidence from a consultant forensic psychiatrist, Dr Antony Henderson. Dr Henderson’s evidence, in summary, was that in his opinion Mr Roussakis was suffering from a major depressive disorder at the time of his offending conduct. He also expressed the view that “Mr. Roussakis’ offending behaviour was consequent to the overwhelming pressure placed on him by his family for the company to be successful and his need to gain parental approval in the context of his self-esteem difficulties related to his invalidating childhood” and a specific experience he suffered as a child. The childhood experience was discussed in Dr Henderson’s report, though those parts of Dr Henderson’s report are subject to non-publication orders and cannot to be referred to with any specificity in these reasons. I have, however, taken that evidence into account. Finally, Dr Henderson expressed the opinion, from a psychological perspective, that Mr Roussakis was “at very low risk of engaging in further offending behaviour”.
It should perhaps be noted that Dr Henderson’s report records several hearsay assertions by Mr Roussakis concerning the circumstances surrounding his offending. To give but one example, the report records that Mr Roussakis claimed that “he was not aware of illegality or seriousness of the offending at the material time”. As indicated earlier in the context of Mr Roussakis’s letter, hearsay statements of that nature must be treated with caution and circumspection in circumstances where Mr Roussakis did not give evidence.
Finally, Mr Roussakis tendered 11 character references from his parents, friends, business colleagues, persons associated with the Greek Orthodox Church and the Aussie Companies employees. The consistent theme of those references is that Mr Roussakis is a well-respected member of his community who has supported various charitable endeavours. His parents, business colleagues and the employees of the Aussie Companies all speak of Mr Roussakis’s work ethic and the trust they placed in him. Mr Roussakis is generally regarded as a caring and compassionate man who goes out of his way to help others. He is a well-respected member of the Greek Orthodox community. Many of the references refer to Mr Roussakis’s shame, regret and remorse in respect of his offending behaviour.
GUILTY PLEAS
There is no dispute that Aussie Skips, Aussie Recycling, and Mr Roussakis entered their pleas of guilty to the offences at the earliest stage.
An indictment charging each of the offenders was first filed on 14 December 2022. The indictment was filed in circumstances where there were no committal proceedings. It is clear that the Prosecutor proceeded on that basis because the offenders had already indicated that they intended to plead guilty. Within days of the filing of the indictment, the offenders filed a document, dated 15 December 2022, which confirmed their intention to plead guilty. Mr Roussakis was arraigned and entered a plea of guilty at the first case management hearing on 27 February 2023. While Aussie Skips and Aussie Recycling may not have entered formal pleas of guilty until some later stage, there was never any doubt that they intended to plead guilty.
RELEVANT SENTENCING PROVISIONS AND PRINCIPLES
The statutory provisions pursuant to which the Aussie Companies and Mr Roussakis are to be sentenced are primarily found in Pt IB of the Crimes Act.
The overarching principle in Pt IB is that any sentence imposed by the Court must be of a “severity appropriate in all the circumstances of the offence”: s 16A(1) of the Crimes Act.
Matters which the Court must take into account
Section 16A(2) of the Crimes Act details the matters that the Court must take into account so far as they are relevant and known to the Court. Those matters relevantly include: the nature and the circumstances of the offence; other offences (if any) that are required or permitted to be taken into account; if the offence forms part of a course of conduct, that course of conduct; the personal circumstances of any victim of the offence; any injury, loss or damage resulting from the offence; the degree to which the offender has shown contrition for the offence; if the offender has pleaded guilty, that fact; the degree to which the offender has cooperated with law enforcement agencies in the investigation of the offence or other offences; the deterrent effect of any sentence on the offender or any other person; the need to ensure that the offender is adequately punished for the offence; the character and antecedents of the offender; and the prospect of rehabilitation of the offender.
The Court must identify and ascribe weight to the relevant factors and make a value judgment as to what is the appropriate sentence given those factors; a process sometimes referred to as “instinctive synthesis”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51].
The factors that are of relevance in sentencing the Aussie Companies and Mr Roussakis are specifically identified and considered later in these reasons.
The “checklist” of matters detailed in s 16A(2) does not exclude other relevant considerations, including common law sentencing principles: Director of Public Prosecutions (Cth) v El Karhani (1990) 97 ALR 373; 21 NSWLR 370 at 377-378; Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1 at [18]; Johnson v The Queen (2004) 218 CLR 451; [2004] HCA 15 at [15]. Sentencing principles such as totality and proportionality are important considerations in fixing a sentence of a severity appropriate in all the circumstances: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [25]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [78].
Maximum penalties
The maximum penalty for an offence is often viewed as a “yardstick” that bears on the ultimate discretionary determination of the sentence for the offence: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. It can also be taken to represent the legislature’s assessment of the seriousness of the offence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [31]. The maximum penalty, however, is only one of many factors that should be taken into account when determining the appropriate sentence. In some cases and in some circumstances, however, it may provide little to no assistance: Markarian at [65]; R v Geddes (1936) 36 SR (NSW) 554 at 555-556. As the High Court has observed, “[i]t is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted”: Elias at [27].
The maximum penalty for an offence against ss 45AF and 45AG of the Competition and Consumer Act is not a single specified sum or formula. The provision instead provides for alternative maximum penalties.
As discussed earlier, the maximum penalty in respect of the offences committed by Aussie Skips and Aussie Recycling is $10,000,000. That is because it is not possible to determine the total value of the benefits obtained by one or more persons that were reasonably attributable to the commission of the offences and 10% of the annual turnover of both corporations for the relevant period was less than the sum of $10,000,000: see ss 45AF(3) and 45AG(3) of the Competition and Consumer Act.
As also discussed earlier, the maximum penalty in Mr Roussakis’s case is a term of imprisonment not exceeding 10 years, or a fine not exceeding $420,000, or both.
THE SENTENCES TO BE IMPOSED ON AUSSIE SKIPS AND AUSSIE RECYCLING
Aussie Skips and Aussie Recycling may conveniently be dealt with together.
The appropriate course to adopt in determining the appropriate sentences to impose on Aussie Skips and Aussie Recycling respectively is to identify and ascribe weight to the factors relevant to those sentences, including, but not necessarily limited to, those referred to in s 16A(2) of the Crimes Act. Those factors may conveniently be categorised as those that are relevant to the objective seriousness of the offences and the offending conduct and those that relate to the subjective or personal circumstances of the offender in question. Before doing that, it is helpful to briefly identify the main points of contention between the parties.
The objective seriousness of the offences in question
The factors that are relevant to assessing the seriousness of the offences include: the nature and circumstances of the offence; the duration and scale of the offences; the extent to which the offences were deliberate, systematic and covert; the nature and extent of any benefits obtained as a result of the offence; any loss or damage caused by the offence; and whether the offences formed part of a course of conduct.
The nature and circumstances of the offence - s 16A(2)(a) of the Crimes Act
Section 16A(2)(a) provides that the Court must take into account “the nature and circumstances of the offence”.
Cartel conduct generally involves anti-competitive conduct of a very serious nature that should be emphatically condemned and deterred by the imposition of appropriately stern penalties. Such conduct is “extremely destructive of the competition on which the prosperity of a free market economy depends”: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) (2007) 244 ALR 673; [2007] FCA 1617 at [306]. It can “never really be considered as anything other than serious”: Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 2) (2002) 190 ALR 169; [2002] FCA 559 at [13]. While Visy and ABB were both civil penalty cases, the observations concerning the seriousness of cartel conduct apply equally to cartel offences.
Prior to 2009, cartel conduct attracted only civil penalties. The fact that cartel conduct was criminalised in 2009 no doubt reflects the fact that Parliament regarded it as sufficiently serious to attract “opprobrium and societal condemnation in a way that the imposition of a civil penalty cannot”: CDPP v NYK at [215]-[216]; see also [1] in which the Minister’s Second Reading Speech in respect of the Bill that criminalised cartel conduct is reproduced; see also CDPP v K-Line at [275], [278].
The objective seriousness of cartel offences is reflected in the substantial maximum penalties. It is, however, undoubtedly necessary to have regard to the specific facts and circumstances of the offences committed by the offender in question.
As has already been noted, the factors or considerations which are generally considered to be relevant in assessing the objective seriousness of cartel offences include: the duration and scale of the offending conduct; the extent to which the conduct was deliberate, systematic and covert; the seniority of the officers or employees involved in the offences; the existence or otherwise of any corporate culture of compliance; the profit or benefit attributable to the conduct; and any loss or damage arising from the conduct: see CDPP v NYK at [219]-[220]; CDPP v K-Line at [279]-[281]; Commonwealth Director of Public Prosecutions v Wallenius Wilhelmsen Ocean AS (2021) 386 ALR 98; [2021] FCA 52 (CDPP v WWO) at [174]-[175].
The duration and scale of the offending conduct
Aussie Skips and Aussie Recycling have both only been charged with an offence of making an arrangement with Bingo which contained a cartel provision contrary to s 45AF(1) of the Competition and Consumer Act. Strictly speaking, the conduct on the part of Aussie Skips and Aussie Recycling which constituted the making of the relevant arrangements occurred over a five-day period – 20 to 24 May 2019. It would, however, be erroneous to confine attention to that five-day period when considering the objective seriousness of that offending for the purposes of sentencing. That would ignore the fact that the arrangements that Aussie Skips and Aussie Recycling made with Bingo persisted for a little over three months – from about 24 May to about 31 August 2019. It is also relevant to note that the arrangements did not come to an end because the participants recognised that the making of those arrangements was wrong or for any altruistic reasons. Rather, the arrangements were effectively abandoned by the Aussie Companies as a result of market pressure and commercial self-interest.
Even if it were somehow appropriate to confine attention to the relatively short period during which the relevant arrangements were made given that Aussie Skips and Aussie Recycling have only been charged with making the arrangements, it will be recalled that both Aussie Skips and Aussie Recycling have requested the Court to take into account, pursuant to s 16BA of the Crimes, their commission of offences under s 45AG(1) of the Competition and Consumer Act which involve giving effect to the arrangements. The manner in which those offences are to be taken into account will be addressed in more detail later. It suffices at this point to note that the duration of those offences was a little over three months – a not-insubstantial period.
It may readily be accepted that the duration of the cartel arrangements in question was not as long as the cartel arrangements in most of the other reported cartel offence cases. The facts of those cases and their relevance to the sentencing exercise in this matter will be discussed later. The point to note for present purposes is that the fact that the duration of the cartel arrangements in this matter was less than was the case in other matters does not mean that the duration of the offending conduct in this matter was short or insubstantial.
As for the scale or scope of the offending conduct, the relevant cartel arrangements concerned the fixing or maintenance of prices between major competitors in the market for waste management collections services and processing services in Sydney. Those were large, lucrative, and important markets. To give but one example of the scale of the relevant markets, the combined turnover of Aussie Skips and Aussie Recycling during the 12-month period ending May 2019 was approximately $14,400,000.
The extent to which the conduct was deliberate, systematic and covert
Cartels, by their very nature, generally involve deliberate conduct and require a significant degree of planning and deliberation. They are also likely to be covert and involve conduct which is carried out in such a way as to avoid detection by regulatory authorities: CDPP v NYK at [239]; CDPP v K-Line at [298].
There could be little doubt that the conduct of both Aussie Skips and Aussie Recycling, through Mr Roussakis, was deliberate. It may be inferred from the nature and content of Mr Roussakis’s communications with Mr Tartak that Mr Roussakis knew exactly what he was doing and well-knew that it was unlawful. He may not have known the precise details of the criminal offences that he was causing the companies to commit, but it may readily be inferred that he knew it was wrong. That is apparent from, among other things, the nature and content of the communications between Mr Roussakis and Mr Tartak. For the reasons given earlier, I give little weight to the hearsay assertions by Mr Roussakis which are recorded in his letter to the Court and Dr Henderson’s report.
There likewise could be little doubt that the conduct which gave rise to the cartel arrangements, and the way in which those arrangements were implemented, was covert. The meetings that Mr Roussakis had with Mr Tartak did not occur on either of their business premises and most of their communications took place over WhatsApp, which, as noted earlier, is an encrypted messaging application the records of which cannot be readily accessed by persons other than those who participate in the communications. The arrangements were not otherwise recorded or documented. While Mr Roussakis appears to have disclosed the substance of the arrangements to some other Aussie officers or employees, that says more about the absence of any culture of compliance at the Aussie Companies than it does about the covert nature of the arrangements. Contrary to the submission advanced on behalf of the Aussie Companies and Mr Roussakis, the fact that cartel conduct is almost invariably covert does not mean that the covert nature of the arrangements in any given case cannot be considered to be a relevant indicator of the seriousness of the offending conduct.
While the cartel arrangements may have been deliberate and covert, it is difficult to see how they could fairly or accurately be characterised as highly planned or systematic. The arrangements were made essentially through a few meetings between Mr Tartak and Mr Roussakis and a series of WhatsApp messages. Those meetings and communications were fairly ad-hoc and somewhat unsophisticated. No organised or methodical systems were put in place to give effect to or monitor the arrangements. That perhaps also goes some way towards explaining how and why the arrangements ultimately broke down.
Seniority of the offending officer(s) and corporate culture
This was not a case where the cartel arrangements were made and given effect to by lower-level management. The arrangements were made between the chief executive officers of Aussie Skips and Aussie Recycling on the one hand, and Bingo on the other.
It is also clear that there was no culture of compliance in respect with competition laws at the Aussie Companies. That is readily apparent from the nature and content of many of Mr Roussakis’s communications, including those where he effectively conveyed the substance of the cartel arrangements to other Aussie Companies officers or employees. There is no suggestion that, at least prior to the commission of the offences, the Aussie Companies had ever put in place any policies or procedures to prevent, or deter anti-competitive conduct or had even educated their staff about the unlawful nature of anti-competitive behaviour.
It is no answer to assert or submit, as Aussie and Mr Roussakis did, that Mr Roussakis was not legally trained, and that the Aussie Companies were “too small and unsophisticated” to have put any relevant policies in place. First, for the reasons already given, the assertion that Mr Roussakis was not aware of the illegality or seriousness of the offending conduct is rejected. In any event, as the chief executive officer of a not-insubstantial business, Mr Roussakis ought to have made it his business to educate himself and the employees of the companies that he managed about the unlawful nature of anti-competitive conduct, including cartel conduct.
Second, the assertion that the Aussie Companies were too small and unsophisticated to have put in place any relevant policies has no evidentiary basis. Indeed, it is contrary to the evidence. The Aussie Companies may have been private companies, but they operated large businesses. As noted earlier, the combined turnover of Aussie Skips and Aussie Recycling during the 12-month period ending May 2019 was approximately $14,400,000. As at May 2023, the Aussie Companies had 80 full time staff, a number of whom occupied senior management positions such as sales manager, operations manager, and business development manager. The suggestion that a business of that size and nature was not required to have any policies concerning anti-competitive conduct has little if any merit. It is also somewhat inconsistent with the fact, relied on by the Aussie Companies and Mr Roussakis, that the Aussie Companies now apparently realise that they should have had appropriate policies and systems in place to prevent conduct anti-competitive conduct. The evidence in that regard is considered later in the context of specific deterrence and rehabilitation.
Benefits obtained as a result of the conduct
In assessing the seriousness of a cartel offence, it is relevant to have regard to any benefits that the offender obtained as a result of the offence. That is no doubt why one of the methods by which the maximum penalty may be calculated involves the determination of the financial benefits that were obtained as a result of the offence. Experience shows, however, that it is frequently very difficult to calculate or quantify, in monetary terms, the benefits obtained that may be said to be reasonably attributable to the commission of the offence.
As adverted to earlier, the Aussie Companies and Mr Roussakis appeared to concede that it was not possible to determine the “total value of benefits” obtained by one or more persons that were reasonably attributable to the commission of the offence for the purposes of s 45AF(3)(b) of the Competition and Consumer Act. They did, however, adduce evidenced from an accountant, Mr Zappacosta, in order to establish the benefit which accrued to them as a result of their offending conduct.
The Aussie Companies and Mr Roussakis contended that the “gross benefit” derived from the offences was reflected in the increased turnover of Aussie Skips and Aussie Recycling during the period that the cartel arrangements were in place. That was the period between 24 May and 31 August 2019. The relevant “turnover”, in that context, was said to be “total sales revenue … derived in the ordinary course of business”. That apparently excluded inter-group transactions, including invoices issued by Aussie Skips to Aussie Recycling and vice versa. Mr Zappacosta calculated that Aussie Skips’s turnover while the cartel provisions were in place increased by $107,120, and that Aussie Recycling’s turnover increased by $162,131. Those amounts were said to reflect the benefits derived from the offending conduct. Mr Zappacosta also appeared to suggest that, once the increased costs incurred by Aussie Skips as a result of the reintroduction of the Queensland landfill level were factored in, Aussie Recycling suffered a loss of $662,659 during the period that the cartel arrangements were in place.
Based on Mr Zappacosta’s calculations, the Aussie Companies and Mr Roussakis submitted that they accrued only a “minimal gross benefit” from their offending. Moreover, in their submission, the “aggregate turnover increase was much lower than the increased costs resulting from the introduction of the [Queensland] levy”. It followed, so it was submitted, that the offences were not objectively very serious.
There are a number of problems with Mr Zappacosta’s analysis and the submissions which were based on it.
First, some aspects of the methodology employed by Mr Zappacosta are highly questionable. The methodology involved examining invoices for the period 1 May 2019 to 31 August 2019 and calculating the difference between the minimum and maximum prices for that period. In relation to processing services, the analysis was limited to mixed waste only and consideration was only given to price increases that Mr Zappacosta considered exceeded the price increases that were agreed as part of the cartel arrangement ($54.99 per tonne or $27.49 per cubic metre). For collections services, the analysis was limited to price increases of 20% or more. Mr Zappacosta then deducted the entirety of the increased costs from his figure for increased turnover to produce what he suggested was a net loss figure.
There are at least three problems with the methodology employed by Mr Zappacosta.
The facts, matters, and circumstances that are relevant and must be considered in determining the appropriate sentence to impose on Mr Roussakis have been identified and discussed in detail throughout these reasons. Those facts, matters, and circumstances, broadly speaking, relate to the objective seriousness of the offences committed by Mr Roussakis and to Mr Roussakis’s subjective circumstances, particularly those that mitigate and indicate that he should be afforded a degree of leniency. In determining whether imprisonment is the only appropriate circumstances, it is necessary to consider and weigh all those facts, matters, and circumstances in the balance. It is also necessary to have regard to the sentencing principles to which reference has already been made.
Having considered and weighed all the relevant facts, matters, and circumstances, I am satisfied that no sentence other than one involving imprisonment is appropriate in Mr Roussakis’s case. While some of Mr Roussakis’s subjective circumstances compel a degree of leniency, the objective seriousness of his offences are such as to require a sentence of imprisonment.
The legislature has seen fit to provide a maximum penalty for cartel offences committed by an individual which includes imprisonment for up to ten years. That reflects how seriously the legislature views cartel offences. There could also be little doubt that the legislature chose to provide penalties which include imprisonment because the prospect of a sentence of imprisonment provides a real and powerful deterrent for would-be cartel offenders. The possibility, if not prospect, of imprisonment would no doubt make officers and employees of other corporations think twice before committing their corporations to cartel arrangements given the possibility, if not prospect, that they may be imprisoned if they do.
The cartel offences committed by Mr Roussakis are also objectively very serious offences. Without wishing to unnecessarily repeat what has already been said, Mr Roussakis, as the chief executive officer of not-insubstantial private companies, caused those companies to enter arrangements which included cartel provisions. Those cartel provisions concerned the prices that those companies and their main competitor in the relevant markets would charge for their services. There could be little doubt that the cartel provisions had an impact on price competition in the relevant markets with the result that there was a real chance that certain customers would pay more than they otherwise would have for the relevant services. The markets in question – the markets for collections services and processing services for building and demolition waste in Sydney – were substantial and lucrative markets.
It is true, as Mr Rourssakis submitted, that the cartel arrangements were made over a matter of days. They also ceased after only a few months. The direct monetary benefits derived by Aussie Skips and Aussie Recycling from the increased prices charged pursuant to the cartel arrangements were also relatively modest. It does not follow that the offence committed by Mr Roussakis was not serious. The offence is undoubtedly less serious than it would have been if the cartel arrangements had persisted for longer. It does however not follow that the offence were not very serious. The direct monetary benefits from the price rises are also not a true or complete picture of the benefits derived from the offending conduct. The offending conduct also had deleterious effects, including the suppression and distortion of price competition in the markets in question.
It is also necessary to have regard to the criminality involved in the offence that Mr Roussakis has requested the Court to have regard to pursuant to s 16BA of the Crimes Act. It is unnecessary to rehearse what has already been said concerning that offence and the manner and means by which it may be taken into account in sentencing Mr Roussakis. It suffices to note that the criminality involved in the offence was also serious, though to an extent it arose out of the course of conduct that gave rise to the offences for which Mr Roussakis is to be sentenced.
The seriousness of Mr Roussakis’s offending must be weighed against his subjective circumstances. It may be accepted that Mr Roussakis was generally a man of good character, though he had been convicted of some relative minor offences some time ago, and more recently a serious offence arising from a workplace or industrial accident. He was also well regarded and respected by his colleagues, employees, and friends. It may also be accepted that he is contrite and remorseful. That is reflected in his early plea of guilty. His early plea also had a utilitarian benefit. He has good prospects of rehabilitation and there is a relatively low risk of him reoffending. Any sentence involving imprisonment will have a deleterious effect on his family.
As compelling as some of Mr Roussakis’s subjective circumstances may be, I am not persuaded that they outweigh the objective seriousness of his offending such as to warrant or compel the conclusion that some penalty other than imprisonment would or may be appropriate. Rather, I am satisfied that the objective seriousness of Mr Roussakis’s offending and the important deterrent effect of a sentence of imprisonment in the case of cartel offences compel the conclusion that no sentence other than imprisonment would be appropriate in Mr Roussakis’s case. I am not satisfied that the imposition of a fine, even a large fine, would be a sentence of a severity appropriate in all the circumstances. Nor am I satisfied that any non-custodial sentence in Pt 2 Div 3 of the Sentencing Procedure Act that the Court could impose on Mr Tartak by virtue of s 20AB of the Crimes Act would be of a severity appropriate in all the circumstances. In particular, I do not accept that a community correction order would be an appropriately severe penalty.
The appropriate term of the sentence of imprisonment
The process of determining the length of the term of imprisonment that should be imposed on Mr Roussakis in respect of the offence again involves considering and weighing the relevant facts, matters, and circumstances and making a value judgment as to the sentence which would be of a severity appropriate in all the circumstances having regard to the established sentencing principles. It is again unnecessary to repeat what has already been said concerning the facts, matters, and circumstances relevant to the objective seriousness of the offence committed by Mr Roussakis and Mr Roussakis’s subjective circumstances.
Having considered and weighed all those facts, matters, and circumstances, in my judgment the appropriate sentence of imprisonment to impose in respect of the offence is a sentence of 18 months’ imprisonment. In arriving at that sentence, I have applied a discount of 25% for Mr Roussakis’s early plea of guilty. But for that early plea and assistance, the appropriate sentence would have been two years’ imprisonment.
As discussed later, I also propose to impose a fine on Mr Roussakis.
Should the Court make a recognizance release order?
Section 19AC of the Crimes Act provides, in effect, that where a sentencing court imposes a sentence of imprisonment on a federal offender the term of which is between six months and three years, the court is required to make a recognizance release order in respect of that sentence unless “the court is satisfied that such an order is not appropriate having regard to … the nature and circumstances of the offence or offences concerned; and … the antecedents of the person”.
Section 20(1)(b)(i) of the Crimes Act relevantly provides that “[w]here a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit … sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in [s 20(1)(a)] … either immediately or after the person has served a specified period of imprisonment …”. In determining what recognizance release order should be made, the Court is required to take into account all of the relevant circumstances, including the matters in s 16A(2) of the Crimes Act, as well as the requirement in s 16A(1) that the sentence imposed must be of a severity appropriate in all the circumstances of the offence: see Hili v The Queen at [40]. In determining what period of imprisonment should be served, the sentencing court must have regard to the objective gravity of the offending and general deterrence: Director of Public Prosecutions (Cth) v Page [2006] VSCA 224 at [53]-[54]; CDPP v Vina Money Transfer at [198]; CDPP v Joyce at [187].
I do not consider that it would be appropriate to make an order under s 20(1)(b) of the Crimes Act directing that Mr Roussakis be released immediately. That would not be a sentence of a severity appropriate in all of the circumstances of the offence. Indeed, it would be far too lenient in all the circumstances. In arriving at that conclusion, I have had regard to all of the facts, matters, and circumstances, including those that relate to the objective seriousness of the offence and those that relate to Mr Roussakis’s subjective circumstances. In my view, the objective seriousness of the offence and the importance of general deterrence when sentencing for cartel offences makes immediate release under s 20(1)(b) of the Crimes Act inappropriate.
I also do not consider that it is appropriate to make a recognizance order under s 20(1)(b) of the Crimes Act directing that Mr Roussakis be released after serving a specified term of imprisonment. That is essentially because I have determined that it would be more appropriate to order that Mr Roussakis serve his sentence of imprisonment by way of an intensive correction order.
Is it appropriate for imprisonment to be served by way of an intensive correction order?
I am satisfied that it would be appropriate to make an intensive correction order directing that Mr Roussakis’s sentence of imprisonment be served by way of intensive correction in the community pursuant to s 7 of the Sentencing Procedure Act and s 20AB of the Crimes Act. Section 20AB(1AA)(a)(ix) specifically identifies an order that is known as an “intensive correction order” as being an additional sentencing alternative which is available under s 20AB.
A court cannot make, or consider making, an intensive correction order unless and until it has determined that no sentence other than imprisonment is appropriate and has determined the appropriate term of the sentence without regard to the manner in which the sentence will or should be served: Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3 at [62]; Wany v Director of Public Prosecutions (NSW) (2020) 103 NSWLR 620; [2020] NSWCA 318 at [18]; R v Zamagias [2002] NSWCCA 17 at [26]. I have, for the reasons already given, determined that no sentence other than imprisonment is appropriate in Mr Roussakis’s case and have determined the appropriate length or terms of that imprisonment. I have made those determinations without regard to the potential availability of an intensive correction order.
The sentencing procedure for intensive correction orders is set out in Pt 5 of the Sentencing Procedure Act. Those procedures are also relevantly picked up by s 20AB of the Crimes Act: Mourtada v The Queen [2021] NSWCCA 211 at [20]; CDPP v Joyce at [168].
Section 66(1) of the Sentencing Procedure Act provides that “community safety” is the paramount consideration when determining whether to make an intensive correction order and s 66(2) provides that when considering community safety, the court “is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the risk of reoffending”. That requirement “recognises that: community safety is not achieved by simply incarcerating an offender, but that incarceration may have the opposite effect; and the concept of community safety is linked with considerations of rehabilitation, which is more likely to occur with supervision and access to programs in the community”: CDPP v Joyce at [168] citing R v Pullen (2018) 87 MVR 47; [2018] NSWCCA 264 at [84]; see also Stanley at [83]-[88].
Section 67 of the Sentencing Procedure Act contains a list of offences and types of offences in respect of which an intensive correction order is not available as a sentencing option. The offence committed by Mr Roussakis does not fall within that list. Section 68 provides that intensive correction orders are not available where the term of imprisonment exceeds certain specified durations. Those durations relevantly include, where two or more offences are committed, the duration of the term of imprisonment imposed for all the offences exceeds three years. The sentence of imprisonment that I have determined to be appropriate in Mr Roussakis’s case obviously does not exceed three years.
In considering whether it is appropriate to make an intensive correction order I have considered the contents of an assessment report in respect of Mr Roussakis prepared by a community corrections officer of Corrective Services NSW: see s 17C and s 69 of the Sentencing Procedure Act. That report, among other things, assessed that there was a low risk of Mr Roussakis reoffending and that Mr Roussakis was suitable to undertake community service work. While the report does not specifically refer to the availability or suitability of an intensive correction order, it may nevertheless be inferred that it is a “relevant assessment report” for the purposes of s 17D(1) of the Sentencing Procedure Act. Even if that was not the case, I am nevertheless satisfied that there is sufficient information before the Court to justify the making of an intensive correction order without obtaining a relevant assessment report: see s 17D(1A) of the Sentencing Procedure Act.
My reasons for considering that it is appropriate to make an intensive correction order in Mr Roussakis’s case may be briefly stated. In my view, community safety would be better served by Mr Roussakis serving his sentences in the community subject to supervision and conditions. I am also of the view that an intensive correction order is more likely to address any risk of Mr Roussakis reoffending rather than full-time detention. I consider that both the community and Mr Roussakis would be better served by Mr Roussakis serving his imprisonment by way of intensive correction in the community as opposed to full-time detention.
As discussed in detail earlier in these reasons, I am satisfied that there is a low risk of Mr Roussakis reoffending and that Mr Roussakis’s prospects of rehabilitation are good. Mr Roussakis’s prospects of rehabilitation are in my view likely to be enhanced by the standard conditions of an intensive correction order, which are that the offender must not commit any offence and must submit to supervision by a community corrections officer.
I also consider that it is appropriate to impose an additional condition that Mr Roussakis perform 300 hours of community service: see s 73A(2)(d) of the Sentencing Procedure Act. I note in that regard, that the assessment report indicates that Community Corrections can provide up to 21 hours of community service work per month. As noted earlier, the assessment report states that Mr Roussakis has been assessed as suitable to undertake community service work: see s 73A(3) of the Sentencing Procedure Act. In my view, the requirement to perform community service work is likely to further enhance Mr Roussakis’s prospects of rehabilitation. The requirement to submit to supervision and engage in community work is likely to cause Mr Roussakis to pause and reflect on his wrongdoing in a way which is positive and likely to deter any future reoffending. I doubt that the same could be said if Mr Roussakis is subject to full-time detention. I doubt that full-time custody would be more likely to positively address any risk that Mr Roussakis might reoffend, particularly given the nature of Mr Roussakis’s offending and his subjective circumstances.
I should reiterate that, while Mr Roussakis submitted that the Court could not, or would not, be satisfied that no sentence other than imprisonment would be appropriate in all the circumstances of the case, he did not submit that, if the Court was so satisfied and imposed a term of imprisonment, it would not be open to the Court or appropriate to make an intensive corrections order. The Prosecutor also did not submit that the Court could not, or should not, make an intensive correction order and effectively conceded that the Court would not err if it made such an order.
I should also note in that context that, while issues and qualifications have been raised about the availability of intensive correction orders in the exercise of federal jurisdiction (see in particular Mourtada at [15]-[17]), neither party raised any such issues or qualifications. That may well have been because an intensive correction order was made by Abraham J in CDPP v Joyce. In any event, I have proceeded on the basis that there was no issue as to the availability of an intensive correction order in the circumstances of this case.
I do not consider that any other special conditions should be imposed under s 73A(2) of the Sentencing Procedure Act.
Imposition of a fine
As has already been noted, the maximum penalty for the offence committed by Mr Roussakis is a term of imprisonment not exceeding 10 years, or a fine not exceeding $420,000, or both. In my view, Mr Roussakis should be required to pay a fine in addition to the term of imprisonment to be served by way of intensive corrections order. That is appropriate and necessary to ensure that the overall sentence which is imposed is of a severity appropriate in all the circumstances.
Cartel offences are essentially economic crimes. Many economic crimes are motivated by greed, self-interest, and financial gain. While there is no direct evidence that Mr Tartak was motivated by his own financial gain, it may readily be inferred that he was motivated by the Aussie Companies’ economic interests and the indirect benefits he might thereby derive as the Aussie Companies’ chief executive officer. A fine is also often an effective way of deterring economic crimes because it strikes at the heart of the motivation for the offending.
There was no evidence concerning Mr Roussakis’s financial circumstances. As discussed earlier, while s 16C(1) of the Crimes Act requires the Court to take into account the financial circumstances of an offender before imposing a fine for a federal offence, s 16C(2) provides that the inability to determine an offender’s financial circumstances does not prevent the Court from imposing a fine. Moreover, Mr Roussakis did not submit that he did not have the financial capacity to pay a fine.
I have determined, in all the circumstances, that it is appropriate to fine Mr Roussakis $75,000 in addition to the sentences of imprisonment to be served by way of intensive correction orders. In determining the appropriate amount of the fine, I have taken into account and applied an appropriate discount to reflect Mr Roussakis’s early plea of guilty.
I should finally note that I acknowledge that the sentence that I will impose on Mr Roussakis is not quite as severe as the sentence I have decided to impose on Mr Tartak. As discussed earlier in the context of the discussion concerning parity, the difference may be explained on the basis that: Mr Roussakis was charged with only one offence, unlike Mr Tartak who pleaded guilty to two offences; Mr Roussakis asked the Court to take into account only one additional offence pursuant to s 16BA of the Crimes Act; the objective seriousness of the offending conduct in the two cases was different; and the offenders’ subjective circumstances were slightly different.
DISQUALIFICATION
The Prosecutor applied for an order pursuant to s 86E of the Competition and Consumer Act disqualifying Mr Roussakis from managing a corporation for a period that the Court considers appropriate. Section 86E provides that the Court can make such an order if satisfied that the person against whom the order is sought has been involved in a contravention of Pt IV of the Act. Part IV of the Act includes the cartel offence provisions. I am in those circumstances satisfied that the Court can make a disqualification order against Mr Roussakis. The only issue is whether the Court should exercise its discretion to make such an order.
That issue can be dealt with shortly, particularly because Mr Roussakis did not oppose the making of a disqualification order. The primary purpose of a disqualification order is to protect the public, though it has also been said that disqualification orders can be imposed by way of deterrence and punishment: Australian Competition and Consumer Commission v Renegade Gas Pty Ltd (trading as Supagas NSW) [2014] FCA 1135 at [90]-[94]. The facts or circumstances that may be relevant to whether a disqualification order should be made include: the nature of the contraventions in question; the risks to the public if, in light of the contraventions, the defendant is permitted to manage a corporation; the interests of shareholders, creditors, and employees of any corporation managed by the defendant; the character of the defendant and his or her honesty and competence; and, any hardship to the defendant and their business interests that would follow from a disqualification order: see Renegade Gas at [95]-[96] citing Commissioner for Corporate Affairs (WA) v Ekamper (1987) 12 ACLR 519 at 525.
The facts and circumstances of this matter are such that it is appropriate for the Court to exercise its discretion in favour of making a disqualification order against Mr Roussakis for a period of five years. There are sound reasons to conclude that a disqualification order is appropriate in order to protect the public from any risk that Mr Roussakis may be involved in future contraventions if permitted to continue to manage corporations.
The offence committed by Mr Roussakis was undoubtedly serious and involved a serious departure from the appropriate duties and standards that should be observed by senior managers of corporations. Mr Roussakis unilaterally committed the Aussie Companies to unlawful anticompetitive arrangements in circumstances where, it may be inferred, he was aware of the unlawful nature of the arrangements. While I accept that Mr Roussakis is contrite, the risks of him reoffending are relatively low, and his prospects of rehabilitation are good, the nature of his offence is such that there is nevertheless a strong need to protect the public by ensuring that he is unable to occupy any management position for a period of time. That is a powerful consideration which weighs in favour of making a disqualification order.
Mr Roussakis did not point to any consideration which weighed against the making of a disqualification order. He is apparently no longer the chief executive officer of the Aussie Companies and there is no reason to believe that the shareholders (ultimately his parents), creditors, and employees of Ausie and related companies would be worse off if a disqualification order was made against Mr Roussakis. While I accept that a disqualification order may cause Mr Roussakis some hardship in the future as it may make it more difficult for him to secure employment, the fact that he has been convicted of a cartel offence would in any event most likely make any prospective employer wary of placing Mr Roussakis in a position of responsibility without supervision. I doubt that a disqualification order will add considerably to Mr Roussakis’s difficulties in that regard. I also accept that the difficulties that Mr Roussakis may encounter in securing employment in the future, including by reason of a disqualification order, may result in some hardship to his family. In my view, however, any hardship that may be suffered by Mr Roussakis and his family as a result of a disqualification order is significantly outweighed by the need to protect the public.
While previous authorities have noted that a disqualification order may be imposed by way of deterrence and punishment, I doubt that it would be appropriate to make a disqualification order for either of those purposes, particularly if there is no need to protect the public. Punishment and deterrence are objectives or considerations that are highly relevant when determining the appropriate sentences to be imposed on an offender. In my view, however, the predominant, if not only, purpose of a disqualification order is the protection of the public. I do not propose to make the disqualification order for the purpose of punishing or deterring Mr Roussakis. I do not consider that the disqualification order is part of the sentence imposed on him in respect of his offences. As previously indicated, however, in determining the appropriate sentences, I have taken into account that I would be making a disqualification order on the basis that it can be seen as a form of extra-curial punishment.
It should also perhaps be noted in this context that the Prosecutor submitted that Mr Roussakis would, in any event, be automatically disqualified from managing a corporation for five years pursuant to s 206B(1)(b) of the Corporations Act 2001 (Cth). The correctness of that submission would depend on whether the offence committed by Mr Roussakis could accurately be categorised as either an offence concerning “the making, or participation in making, of decisions that affect the whole or a substantial part of the business of the corporation”, or an offence concerning “an act that has the capacity to affect significantly the corporation’s financial standing” or as an offence involving dishonesty: see s 206B(1)(a)(i) and (ii) and (b)(ii) of the Corporations Act. The offence committed by Mr Roussakis, at first blush at least, would appear to fall into one or more of those categories. The Prosecutor nevertheless sought a disqualification order under s 86E of the Competition and Consumer Act to ensure that the ACCC was given notice of any application that Mr Roussakis might make for leave to manage a corporation pursuant to s 206G of the Corporations Act.
I am satisfied that the disqualification of Mr Roussakis from managing corporations is justified and that the appropriate period of disqualification is five years. I accordingly propose to make a disqualification order to that effect pursuant to s 86E of the Competition and Consumer Act.
CONCLUSION AND DISPOSITION
Convictions will be entered against Aussie Skips, Aussie Recycling and Mr Roussakis in accordance with their pleas of guilty to the counts in the indictment presented against them.
The appropriate sentence to impose on Aussie Skips in respect of the offences it committed is a fine of $1,750,000.
The appropriate sentence to impose on Aussie Recycling in respect of the offences it committed is a fine of $1,750,000. The total or aggregate fine against the Aussie Companies is accordingly $3,500,000.
The appropriate sentence to impose on Mr Roussakis in respect of the offence he committed is a sentence of imprisonment for 18 months. That sentence is to be served by way of intensive correction in the community, the conditions of which include that he perform 300 hours of community service. Mr Roussakis will also be fined $75,000. Orders will be made to that effect.
Finally, it is appropriate to make an order under s 86E of the Competition and Consumer Act disqualifying Mr Roussakis from managing corporations for a period of five years.
I certify that the preceding three hundred and twenty (320) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate:
Dated: 23 February 2024
5
30
4