The King v Jacobs Group (Australia) Pty Ltd

Case [2023] HCA 23


HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ

THE KING  APPELLANT

AND

JACOBS GROUP (AUSTRALIA) PTY LTD
FORMERLY KNOWN AS SINCLAIR KNIGHT MERZ     RESPONDENT

The King v Jacobs Group (Australia) Pty Ltd

[2023] HCA 23

Date of Hearing: 12 April 2023
Date of Judgment: 2 August 2023

S148/2022

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal of New South Wales made on 11 July 2022, in so far as it dismissed the appeal against sentence for sequence three, and remit the matter to that Court for redetermination of that part of the appellant's appeal under s 5D of the Criminal Appeal Act 1912 (NSW).

On appeal from the Supreme Court of New South Wales

Representation

J T Gleeson SC with C J Tran for the appellant (instructed by Commonwealth Director of Public Prosecutions)

B W Walker SC with N M Kirby for the respondent (instructed by Jones Day)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The King v Jacobs Group (Australia) Pty Ltd

Statutes – Construction – Where respondent pleaded guilty to offences of conspiracy to cause offer of provision of bribe to foreign public official contrary to ss 11.5 and 70.2(1) of Criminal Code (Cth) – Where s 70.2(5) of Criminal Code (Cth) relevantly prescribed maximum monetary penalty for offence as not more than greatest of: (a) 100,000 penalty units; or (b) if court can determine value of benefit that body corporate obtained that is reasonably attributable to conduct constituting offence, three times value of that benefit – Where parties agreed "benefit" obtained was securing contracts for carrying out construction projects – Where parties also agreed "benefit" obtained was money received for performing contracts – Whether s 70.2(5)(b) required value of benefit obtained by respondent to be determined as sum of amounts respondent in fact received under contracts secured by bribery – Whether deduction could properly be made for any costs incurred in performing contracts.

Words and phrases – "any advantage", "benefit", "bribery", "effective, proportionate, and dissuasive", "fine", "foreign public official", "gross amount", "international obligations", "maximum penalty", "monetary penalty", "net benefit", "obtained directly or indirectly", "OECD Convention", "reasonably attributable", "sentence", "value of the benefit".

Criminal Code (Cth), s 70.2.

  1. KIEFEL CJ, GAGELER, GORDON, STEWARD, GLEESON AND JAGOT JJ.   If a body corporate bribes, or conspires to bribe, a foreign public official[1], it is liable to be punished on conviction by a monetary penalty[2]. The issue in this appeal is the proper construction of s 70.2(5) of the Criminal Code (Cth)[3], which is a provision that prescribes the maximum monetary penalty for that offence as a fine not more than the greatest of the following:

    "(a)     100,000 penalty units[[4]];

    (b)if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly…

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AGLC
The King v Jacobs Group (Australia) Pty Ltd [2023] HCA 23
Case
[2023] HCA 23
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning the sentencing of Jacobs Group (Australia) Pty Ltd for offences under the *Criminal Code* (Cth), specifically conspiracy to offer bribes to foreign public officials. The dispute centred on the calculation of the maximum monetary penalty prescribed by s 70.2(5)(b) of the *Criminal Code*, which allows for a penalty up to three times the value of the benefit obtained by the body corporate that is reasonably attributable to the offending conduct. The parties agreed that the "benefit" included securing construction contracts and the money received for performing those contracts.

The primary legal issue before the High Court was whether s 70.2(5)(b) required the value of the benefit obtained by the respondent to be calculated as the gross amount received under the secured contracts, or if deductions for costs incurred in performing those contracts were permissible. This question involved the interpretation of the phrase "value of the benefit" and what was "reasonably attributable" to the conduct constituting the offence.

The High Court, in a joint judgment, found no basis in the text, context, or purpose of s 70.2(5)(b) to confine the ordinary meaning of "benefit" by allowing for deductions of costs. The Court reasoned that the value of the money received under the contracts, at the time of receipt, was the full amount, and any further value accruing from the use of that money was also reasonably attributable to the offence. Consequently, the maximum penalty should have been calculated as three times the gross amount of money received under the contracts, which was $10,130,354, leading to a maximum penalty of $30,391,062.

The High Court allowed the appeal, set aside the order of the Court of Criminal Appeal of New South Wales that dismissed the appeal against sentence for sequence three, and remitted the matter to that Court for redetermination of that part of the appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal of New South Wales made on 11 July 2022, in so far as it dismissed the appeal against sentence for sequence three, and remit the matter to that Court for redetermination of that part of the appellant's appeal under s 5D of the Criminal Appeal Act 1912 (NSW).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, GAGELER, GORDON, STEWARD, GLEESON AND JAGOT JJ EDELMAN J
For the reasons given in the joint judgment there is no basis in the text, context, or purpose of s 70.2(5)(b) of the Criminal Code to confine the application of the ordinary meaning of benefit in this way. The value of $10,130,354 received is, at the time of receipt, $10,130,354, with additional value that may accrue from the opportunity to use, or from the use of, that money which is also reasonably attributable to the conduct constituting the offence. Three times the amount of money received is $30,391,062. That should have been the maximum penalty under s 70.2(5).Conclusion The appeal should be allowed and orders made as proposed in the joint judgment.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, GAGELER, GORDON, STEWARD, GLEESON AND JAGOT JJ, EDELMAN J

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