R v Jacobs Group (Australia) Pty Ltd - [2023] NSWCCA 280

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Jacobs Group (Australia) Pty Ltd [2023] NSWCCA 280
Hearing dates: On the papers
Date of orders: 8 November 2023
Decision date: 08 November 2023
Before: Bell CJ; Walton J; Davies J.
Decision:
Remit the matter to a single judge of the Common Law Division for sentencing in accordance with R v Jacobs Group (Australia) Pty Ltd [2023] HCA 23.

Catchwords:
SENTENCING – Resentencing – Powers of appellate court to remit for resentencing – where High Court made orders remitting the matter to the Court of Criminal Appeal for resentencing pursuant to s 5D of the Criminal Appeals Act 1912 (NSW) – whether s 12(2) of the Criminal Appeals Act 1912 (NSW) requires that remittal only occur where there is a positive reason why the Court of Criminal Appeal could not do justice in resentencing or which makes a trial court better suited to the resentencing exercise

Legislation Cited:
Criminal Appeals Act 1912 (NSW) ss
Criminal Code Act 1995 (Cth) ss 11.5 and 70.2

Cases Cited:
AW v The King [2023] NSWCCA 92
Baxter v R [2018] NSWCCA 28
BC v R (No 2) [2019] NSWCCA 142
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
BQ v R [2023] NSWCCA 34
Campbell v R [2018] NSWCCA 87
Hopoi v R [2014] NSWCCA 263
Munro v R [2006] NSWCCA 350
O’Neil-Shaw v The Queen [2010] NSWCCA 42
Pritchard v R [2007] NSWCCA 305
R v Jacobs Group (Australia) Pty Ltd [2022] NSWCCA 152
R v Pamplin [2001] NSWCCA 327
The King v Jacobs Group (Australia) Pty Ltd, Formerly Known as Sinclair Knight Merz [2023] HCA 23
Watson v R [2020] NSWCCA 215

Category: Procedural rulings
Parties: The Crown (Appellant)
Jacobs Group Australia Pty Ltd (Respondent)
Representation:
Counsel:

G P Craddock (Appellant)
B Walker with N Kirby (Respondent)

Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
Jones Day (Respondent)

File Number(s): 2018/154158
Publication restriction: N/A
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2021] NSWSC 657

Date of Decision:

09 June 2021

Before:

Adamson J

File Number(s):

2018/154158

JUDGMENT

THE COURT: On 3 September 2020, Jacobs Group (Australia) Pty Ltd (the Respondent), formerly known as Sinclair Knight Merz Pty Ltd, pleaded guilty to three offences of conspiring to cause a bribe to be offered to a foreign official, contrary to ss 11.5(1) and 70.2(1)(a)(iv) of the Criminal Code Act 1995 (Cth) (the Criminal Code).
The Respondent was sentenced in the New South Wales Supreme Court on 9 June 2021 at which time there was a dispute about the proper interpretation of the statutory formula for calculating the maximum penalty applicable for that offence contained in s 70.2(5). It provides that, where it is possible to determine the value of the benefit that a company has obtained from the offending, the maximum penalty is the greater of $11,000,000 or three times the value of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWCCA 280
Decision Date: 08 November 2023

CaseChat Overview and Summary

The case before the court involved a matter of resentencing following an appeal. The defendant, Jacobs Group (Australia) Pty Ltd, was subject to a resentencing order by the High Court, which directed the Court of Criminal Appeal to reconsider the original sentence. This appeal arose under sections 5D and 12(2) of the Criminal Appeals Act 1912 (NSW), with the central issue being the conditions under which the Court of Criminal Appeal can remit a case to a trial court for resentencing. Specifically, the court had to determine whether section 12(2) of the Act mandated that a remittal to the trial court for resentencing should only occur if there was a positive reason preventing the Court of Criminal Appeal from achieving a just sentence, or if the trial court was better suited to the task.

The court examined the statutory language and legislative history to understand the intent behind section 12(2). It considered whether the provision imposed an absolute requirement for a specific reason to exist before a remittal could occur or if it allowed for a more discretionary approach by the Court of Criminal Appeal. The analysis included looking at precedent cases and the practical implications of each interpretation. The court concluded that section 12(2) did not strictly mandate a positive reason for remittal but rather provided the Court of Criminal Appeal with the discretion to decide whether remittal was appropriate based on the circumstances of the case.

The court's reasoning led to the determination that the Court of Criminal Appeal had the authority to remit a case for resentencing without needing a specific positive reason, provided that such a decision was made in the interests of achieving a just outcome. This interpretation balanced the need for judicial efficiency and the importance of ensuring sentences are appropriately determined. The court's decision upheld the broad discretion granted to the Court of Criminal Appeal under the statute, allowing it to make informed decisions on remittal based on the unique facts of each case.

The final orders were that the matter was remitted to the Court of Criminal Appeal for resentencing, with the understanding that the Court could exercise its discretion in deciding whether to remit the case to a trial court or proceed with resentencing itself.

Orders