CDPP v Kawasaki Kisen Kaisha Ltd (FCA)
Federal Court of Australia
Justice Wigney
[2019] FCA 1170 (2 August 2019)
Issue: criminal cartel, sentencing
Catchwords
CRIMINAL LAW – sentencing – cartel conduct – giving effect to a cartel provision against s 44ZZRG(1) of the Competition and Consumer Law Act 2010 (Cth) – where offender is a corporation – where employees of corporation not residents or citizens of Australia – where offending conduct occurred outside Australia – where offender plead guilty to a single rolled-up offence against s 44ZZRG(1) – consideration of appropriate sentence – where offender provided bulk shipping services of “roll on, roll off” cargo to Australia – where penalties imposed on offender in overseas jurisdictions – where statement of contrition made – where offender gave evidence of measures implemented to strengthen compliance – consideration of sentencing factors in s 16A(2) of the Crimes Act 1914 (Cth) – where multiple offences committed against s 44ZZRG over many years – where sentence proceedings conducted on the basis of agreed facts – consideration of appropriate discounts for mitigating factors including plea of guilty, cooperation with law enforcement agencies and remorse – consideration of specific and general deterrence in sentencing cartel conduct – consideration of totality principle and parity with sentence imposed on co-offender.
File number
NSD 1932 of 2017
In brief
In 2016, following an investigation by the ACCC, the Commonwealth Department of Public Prosecutions (CDPP) charged Kawasaki Kisen Kaisha (K-Line) with cartel conduct in contravention of the Competition and Consumer Act 2010. This relates to the same cartel for which the first criminal conviction was imposed in 2017 (see NYK).
The charges allege cartel conduct relating to the international shipping of cars, trucks, and buses to Australia between July 2009 and September 2012.
K-Line pleaded guilty to cartel conduct. Sentencing judgment was delivered on 2 August 2019.
K-line was ordered to pay a fine of $34.5 million for giving effect to a cartel provision contrary to s 44ZZRG(1).
The maximum penalty available was $100m, with discounts given for an early guilty plea and cooperation.