FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Boyle [2015] FCA 1039

THE COURT ORDERS THAT:

1.    The respondent pay a fine of $3,500 within 3 months; in default, 2 months’ imprisonment.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The respondent has pleaded guilty to two identically worded offences, namely:

On 20 June 2011 Michael Boyle, in purported compliance with a notice issued under s 155(1)(c) of the Competition and Consumer Act 2010 (Cth), knowingly gave evidence that was false or misleading, contrary to s 155(5)(b) of the Competition and Consumer Act 2010 (Cth).

2    The respondent committed the offences by making false statements in the course of a compulsory examination conducted by the applicant. The examination was conducted in the course of an investigation into a product known as SensaSlim, a product promoted as an appetite suppressant by a company called SensaSlim Pty Ltd. The investigation also concerned the involvement of Peter Foster in the supply of SensaSlim.

3    At the relevant time, s 155(1) of the Trade Practices Act 1974 (Cth) and Competition and Consumer Act gave the chairperson of the applicant the power to issue a notice requiring a person to attend for examination in certain circumstances. Section 155(5) of both Acts provides that a person shall not, in purported compliance with a notice, knowingly furnish information or give evidence that is false or misleading. The maximum penalty for an offence against s 155(5) is 20 penalty units or imprisonment for 12 months.

4    Mr Foster promoted SensaSlim from 2009. It was an oral spray. It was promoted as a weight loss product. The product was distributed through a network of franchises by SensaSlim Pty Limited. A considerable proportion of that company’s business consisted of selling the franchise rights.

5    In 2009, the respondent became an investor in the SensaSlim business. He paid a substantial amount of money into bank accounts associated with the business. Before the official launch of the SensaSlim franchises on 30 November 2010, the respondent also agreed to act as the public face of SensaSlim. On 2 December 2010, the respondent resigned as a director of SensaSlim Pty Ltd when he became concerned about the business and Mr Foster’s involvement in it, having spelled out his intention to do so before the launch.

6    In March 2011, the applicant commenced an investigation into SensaSlim and Mr Foster’s involvement in it. The applicant’s investigation resulted in a successful prosecution of Mr Foster for contempt of earlier orders of the Federal Court of Australia: ACCC v Chaste Corporation (No 3) [2013] FCA 984.

7    As part of its investigation, the applicant compulsorily examined a number of persons associated with SensaSlim. On 2 June 2011, the chairman of the applicant issued notices to the respondent pursuant to s 155(1)(c) of the Trade Practices Act and the Competition and Consumer Act to attend for examination.

8    On 20 June 2011, the respondent attended the applicant’s offices in Sydney and was examined. During the examination the respondent was asked questions as to the involvement of Mr Foster in SensaSlim. The gravamen of each of the offences is a false denial by the respondent that Mr Foster was involved with the SensaSlim business. The answers given by the respondent were knowingly false in that he knew that Mr Foster was involved in the SensaSlim business. He gave the false answers with the intention of concealing the involvement of Mr Foster.

9    On 1 February 2012, the respondent participated in a further interview with officers of the applicant. During that interview the respondent admitted that the statements he had made at the examination on 20 June 2011 were false and that he knew this when he gave his answers.

10    The respondent said that the reason he had made the false statements was because he feared for his own life as well as the safety of his girlfriend and a friend who was also involved with the SensaSlim business. The respondent does not claim that any threats were made directly to him. However, he was aware that threats had been made against him to his friend by Mr Foster. By his plea of guilty, the respondent acknowledges that the perceived threats do not raise the defence of duress.

11    On 16 September 2014, the respondent was served with an Information and Summons in respect of the offences. He cooperated with the applicant and indicated that he intended to plead guilty at an early stage.

12    Section 16A(1) of the Crimes Act 1914 (Cth) requires that a Court must impose a sentence that is of a severity appropriate in all the circumstances of the case. Section 16A(2) sets out a number of matters which must be taken into account. The matters that are particularly significant to the sentence that must be imposed in this case are as follows.

13    General, as well as specific, deterrence of offences of this type is a particularly important factor. The authorities emphasise that the giving of false evidence undermines the administration of justice: Director of Public Prosecutions v Couper (2013) 41 VR 128, R v Irwin [1999] NSWCCA 361, Forsyth v The Queen [2015] WASCA 36, Australian Competition and Consumer Commission v Neville [2007] FCA 1583. The purpose of a sentence is not only to punish the offender, but to make it plain that the commission of this type of offence will attract serious punishment.

14    The respondent’s contrition and cooperation with the applicant are significant factors to take into account.

15    The applicant accepts that the respondent’s offences were influenced by his perception of the threats that were made. If the situation is examined objectively, there were obvious alternatives to lying available to the applicant, such as going to the police. However, there is uncontested evidence that the respondent was receiving treatment for a psychiatric condition at the time he committed the offences, and I accept that this condition affected his perception of the seriousness of the threats and affected his judgment to some extent. That does not excuse his conduct, but makes it somewhat easier to understand why he was tempted to act as he did.

16    The respondent is 35 years old. He has no other criminal history. He is employed and has a young child. He was well regarded by his friends, family and business associates before he became involved with Mr Foster. He has the support of his family and is no doubt acutely aware of the distress that his conduct has caused them. I accept that it is unlikely that the respondent will offend again.

17    I have had regard to a schedule of comparable sentences produced to the Court. I consider that the appropriate penalty is a fine. I would have also ordered that the respondent perform community service but for difficulties stemming from the fact that the order would be made under the Penalties and Sentences Act 1992 (Qld) when the respondent lives in New South Wales.

18    I will impose a fine of $3,500 on the respondent with three months to pay. The fine of $3,500 will be the total fine in respect of both offences. In default of payment, the respondent will be imprisoned for 60 days.

Associate:

Dated:    28 September 2015