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Snapshot

  • Individuals have been sentenced for cartel conduct for the first time since such conduct was criminalised in 2009.
  • Custodial sentences (suspended) were recently imposed on four individuals involved in the Vina Money cartel.
  • The sentencing decision suggests the Federal Court will not be reluctant to impose significant custodial sentences in the future.

Criminal cartel offences were introduced in the Competition and Consumer Act 2010 (Cth) (‘CCA’) in July 2009. Competition and criminal law practitioners have long waited to see whether individuals found guilty of a criminal cartel offence will be subject to custodial sentences. The Federal Court’s sentencing of four individuals in Commonwealth Director of Public Prosecutions v Vina Money Transfer Pty Ltd [2022] FCA 665 (‘Vina Money prosecution’) has answered that question with a resounding ‘yes’. The sentencing decision provides an indication of what individuals can expect in the event that they are found guilty of engaging in criminal cartel conduct. The decision also suggests the Court will not be reluctant to impose significant custodial sentences where appropriate.

The legislative framework: criminal cartels and sentencing

A corporation commits an offence if it makes, or gives effect to, a contract or arrangement, or arrives at an understanding (‘CAU’), and that CAU contains a cartel provision (CCA, ss 45AD, 45AF, 45AG). The requisite fault element for the criminal offence is ‘knowledge or belief’. That is, the corporation knows or believes that it is entering into a CAU that contains a cartel provision (CCA, ss 45AF, 45AG, Criminal Code cl 5.3).

Individuals who attempt to contravene, aid, abet, counsel, procure or induce a corporation to contravene a cartel offence provision, conspire with others to do so, or are knowingly concerned in a contravention, are taken also to have contravened the cartel prohibition (s 79(1) CCA). Under s 79(1) of the CCA and s 4B(2) of the Crimes Act 1914 (Cth) (‘Crimes Act’), individuals can be sentenced to up to ten years gaol and/or ordered to pay a fine not exceeding 2,000 penalty units (currently $440,000).

Section 16A of the Crimes Act sets out the matters to which a court must have regard in sentencing a federal offender. The overarching principle is that a court must impose a sentence of a ‘severity appropriate in all the circumstances of the offence’ (s 16A(1)). The Court must take into account the matters in s 16A(2), including:

  • the nature and circumstances of the offence;
  • the degree of contrition shown by the defendant;
  • whether the defendant has pleaded guilty or cooperated in the investigation of the offence;
  • the deterrent effect of any penalty;
  • the need to ensure the defendant is adequately punished; and
  • the character and background of the defendant.

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