Federal Court of Australia

Commonwealth Director of Public Prosecutions v Aussie Skips Bin Services Pty Ltd; Aussie Skips Recycling Pty Ltd; Roussakis [2024] FCA 122

ORDERS

THE COURT ORDERS THAT:

1.    A conviction be entered against Aussie Skips Bin Services Pty Ltd for the offence of making a cartel provision contrary to s 45AF(1) of the Competition and Consumer Act 2010 (Cth) as particularised in charge 1 in the indictment dated 31 March 2023 (count 1).

2.    Aussie Skips Bin Services Pty Ltd pay a fine of $1,750,000 in respect of its conviction of count 1.

3.    A conviction be entered against Aussie Skips Recycling Pty Ltd for the offence of making a cartel provision contrary to s 45AF(1) of the Competition and Consumer Act 2010 (Cth) as particularised in charge 2 in the indictment dated 31 March 2023 (count 2).

4.    Aussie Skips Recycling Pty Ltd pay a fine of $1,750,000 in respect of its conviction in respect of count 2.

5.    A conviction be entered against Emmanuel Nickolas Roussakis for the offence of aiding, abetting, counselling or procuring Aussie Skips Bin Services Pty Ltd and Aussie Skips Recycling Pty Ltd to each contravene a cartel offence provision, namely s 45AF(1) of the Competition and Consumer Act 2010 (Cth), as particularised in charge 3 in the indictment dated 31 March 2023 (count 3).

6.    The following sentence be imposed on Emmanuel Nickolas Roussakis in respect of count 3:

(a)    Imprisonment for 18 months to commence on 23 February 2024 and end on 23 August 2025, with such imprisonment to be served by way of intensive correction in the community pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW); and

(b)    A fine of $75,000;

(c)    The following conditions are to apply to the intensive correction order referred to in order 6(a):

(i)    the standard conditions prescribed by s 73 of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely that Emmanuel Nickolas Roussakis must not commit an offence and must submit to supervision by a community corrections officer; and

(ii)    an additional condition pursuant to s 73A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely that Emmanuel Nickolas Roussakis perform community service work for 300 hours.

7.    Pursuant to s 86E of the Competition and Consumer Act 2010 (Cth), Emmanuel Nickolas Roussakis be disqualified from managing corporations for a period of five years commencing on 23 February 2024.

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

TABLE OF CONTENTS

REASONS FOR JUDGMENT

WIGNEY J:

1    Aussie Skips Bin Services Pty Ltd (Aussie Skips), Aussie Skips Recycling Pty Ltd (Aussie Recycling), and the former chief executive officer of both those corporations, Mr Emmanuel Nickolas Roussakis, have each pleaded guilty to an offence of making an arrangement containing a cartel provision contrary to s 45AF(1) of the Competition and Consumer Act 2010 (Cth). The Court must now impose sentences in respect of those offences.

2    Aussie Skips is a waste management company which provides collections services for mixed building and demolition waste in the Sydney metropolitan region. Collections services involve the collection and transportation of waste in skip bins to facilities for processing. Aussie Recycling is a waste management company which provides processing services for building and demolition waste in the Sydney. Processing services involve the sorting, processing and recycling of waste.

3    Mr Roussakis was the chief executive officer of both Aussie Skips and Aussie Recycling at the time the offences were committed. Aussie Skips and Aussie Recycling shared a common head office and staff and were part of a family group of companies. Unless it is necessary to refer to them individually, Aussie Skips and Aussie Recycling will be referred to collectively as the Aussie Companies.

4    Several other companies provided collections services and processing services in respect of building and demolition waste in Sydney. The largest provider of both collections services and processing services was Bingo Industries Ltd. The chief executive officer of Bingo at the time of the offences was Mr Daniel Tartak.

5    Over a five-day period commencing on 20 May 2019, Mr Roussakis and Mr Tartak engaged in a series of communications during which they made arrangements concerning the prices at which their respective companies would provide collections services and processing services. The essence of the arrangement in respect of collections services was that Bingo would maintain a price increase of 25% which it had advised its customers it would implement from 1 July 2019 and that Aussie Skips would increase its prices by at least 20%. The essence of the arrangement concerning processing services was that Bingo would maintain a price increase of at least $60/tonne and $35/m3 at its processing facilities which were near Aussie Recycling’s facility at Strathfield South and that Aussie Recycling would increase its prices at its Strathfield South facility by at least $50/tonne and $27.5/m3.

6    Over the following three months, Aussie Skips and Aussie Recycling gave effect to those arrangements, aided by Mr Roussakis.

7    Aussie Skips and Aussie Recycling were both charged with an offence of intentionally making an arrangement with Bingo which contained a cartel provision contrary to s 45AF(1) of the Competition and Consumer Act. The charge against Aussie Skips concerned the arrangement which contained a cartel provision in respect of prices in the market for collections services. The charge against Aussie Recycling concerned the arrangement which contained a cartel provision in respect of prices in the market for processing services.

8    Mr Roussakis was charged with two offences; one offence of aiding and abetting Aussie Skips to contravene s 45AF(1) of the Competition and Consumer Act by making an arrangement containing a cartel provision and one offence of aiding and abetting Aussie Recycling to contravene s 45AF(1) of the Competition and Consumer Act by making an arrangement containing a cartel provision. Aussie Skips, Aussie Recycling, and Mr Roussakis each pleaded guilty to those offences.

9    The Aussie Companies and Mr Roussakis each asked the Court to take into account, when passing sentence upon them in respect of the offences to which they have pleaded guilty, the fact that they have admitted their guilt in respect of another offence. That procedure is available pursuant to s 16BA of the Crimes Act 1914 (Cth). The offence which both Aussie Skips and Aussie Recycling requested the Court to take into account was in each case an offence of giving effect to an arrangement that contained a cartel provision contrary to s 45AG(1) of the Competition and Consumer Act. Mr Roussakis asked the Court to take into account an offence of aiding and abetting the Aussie Companies to give effect to arrangements with Bingo which contained cartel provisions contrary to s 45AG(1) of the Competition and Consumer Act.

10    The task for the Court, in sentencing the Aussie Companies and Mr Roussakis in respect of the offences to which they have pleaded guilty, is to impose penalties that are of a severity appropriate in all the circumstances. The maximum penalty for the offence committed by Aussie Skips and Aussie Recycling is $10,000,000. The maximum penalty for the offence committed by Mr Roussakis is a term of imprisonment not exceeding 10 years, or a fine not exceeding $420,000, or both.

11    The Prosecutor, the Commonwealth Director of Public Prosecutions, also applied for an order, pursuant to s 86E of the Competition and Consumer Act, the effect of which was to disqualify Mr Roussakis from managing corporations for a period of five years.

FACTS RELATING TO THE OFFENCES

12    The primary facts relating to the offences upon which Aussie Skips, Aussie Recycling, and Mr Roussakis are to be sentenced were for the most part not in dispute. The Prosecutor tendered a single statement of agreed facts in respect of Aussie Skips, Aussie Recycling, and Mr Roussakis. Following is a short summary or distillation of the material facts. Unless stated otherwise, the facts relate to the period during which the offences were committed.

The waste management industry

13    The waste management industry in New South Wales generally dealt with three streams of waste: building and demolition waste, commercial and industrial waste, and municipal waste.

14    Companies in the waste management industry generally provided one or more of three types of services in respect of building and demolition waste: collections services, processing services, and disposal services.

15    Collections services, or skip bin services, involve the physical collection and transporting of building and demolition waste in skip bins to facilities for processing. Waste processors charged collectors a fee to accept and process the waste. Those fees were generally calculated by the tonnage of waste or the cubic metre size of the skip bin containing the waste.

16    Processing services, or “tipping”, involved the sorting, processing, and recycling of waste. Material would be sorted into its component parts and reusable material would be recycled or further processed and resold.

17    Disposal services involved disposing of residual waste that could not be recycled, primarily by way of landfill.

18    The pricing of the services in the industry were affected by landfill disposal costs. Those costs were to some extent passed through to recycling and collections pricing.

Collections services and processing services in the Sydney region

19    Bingo was the largest provider of collections services for mixed building and demolition waste in Sydney. It operated about 165 collections trucks and had an estimated market share of 22% in respect of collections services. In the 12 months preceding August 2018, its estimated revenue from collections services alone was $134 million.

20    Aussie Skips was the second largest provider of collections services for building and demolition waste in Sydney. It operated about 25 collections trucks and had an estimated market share of 3% in respect of collections services. In the 12 months preceding August 2018, its estimated revenue from collections services was $26 million.

21    Several other companies also provided collections services in the Sydney. The next largest provider after Aussie Skips, a business known as Grasshopper, operated 18 trucks, had a market share of 2% and in the twelve-month period prior to August 2018 generated revenue of $12 million. None of the other companies that provided collections services had a market share of more than 2%. Most had a market share of 1% or less.

22    Bingo was also the largest provider of processing services for mixed building and demolition waste in Sydney. It operated nine processing facilities in the Sydney region. Those facilities were located at Greenacre, Revesby, Auburn, Alexandria, Artarmon, Smithfield, Eastern Creek, Minto, and St Marys. As at 22 November 2018, Bingo had approximately 21% of the market capacity to process mixed building and development waste in Sydney, based on the capacity of processing facilities.

23    Aussie Recycling was a smaller participant in the processing services market for building and demolition waste in Sydney. It operated only one processing facility at Strathfield South. Aussie Recycling’s facility was approximately one kilometre from Bingo’s Greenacre facility and about eight kilometres from Bingo’s Revesby and Auburn facilities. As at 22 November 2018, there were approximately 13 other companies that provided processing services in Sydney. Three of those companies operated two processing facilities and the balance operated only one facility.

24    Aussie Skips competed with Bingo and others in the market for collections services in Sydney and Aussie Recycling competed with Bingo and others in the market for processing services in Sydney.

Aussie Skips and Aussie Recycling

25    Aussie Skips and Aussie Recycling were related companies. They shared a common head office and staff, including a sales manager, business development manager, operations manager, office manager, and administrative staff. They also had common shareholders. As noted earlier, Mr Roussakis was the chief executive officer of both Aussie Skips and Aussie Recycling.

26    The directors of both Aussie Skips and Aussie Recycling were recorded as being Mr Nick Roussakis and Ms Sandra Roussakis. Mr Nick Roussakis and Ms Sandra Roussakis are Mr Roussakis’s parents. Both Aussie Skips and Aussie Recycling had 100 issued shares. Mr Nick Roussakis owned 50 shares in each of those companies and Ms Sandra Roussakis owned the other 50 shares in each company. By August 2019, however, the shares in both companies previously held by Mr Nick Roussakis and Ms Sandra Roussakis were held by Aussie Waste Industries Pty Ltd. Mr Nick Roussakis and Ms Sandra Roussakis were both directors of Aussie Waste and each held 50 of its 100 issued shares.

The context and circumstances in which the arrangements were made

27    Prior to 1 July 2019, many building and demolition waste processors in New South Wales, including Aussie Recycling and Bingo, transported and disposed of residual waste in Queensland landfills. That was generally a cheaper alternative to disposing of the waste in New South Wales landfills. That was because Queensland landfills did not have a waste levy, whereas New South Wales landfills did.

28    In November 2018, however, the Queensland Government announced that it would re-introduce a waste levy, and, in February 2019, the relevant legislation in Queensland was amended to re-introduce a waste levy of $75.00/tonne, commencing on 1 July 2019.

29    The pricing of both collections services and processing services was affected by landfill disposal costs. Those costs to some extent flowed through to the pricing of collections and recycling pricing. It follows that the reintroduction of the waste levy in Queensland from 1 July 2019 was likely to affect the pricing of collections and processing services by those waste management companies that utilised Queensland landfills.

The making of the arrangements

30    At 2.30pm on 20 May 2019, Mr Roussakis and Mr Tartak met at a café in Belfield, a suburb of Sydney. The meeting was held at Mr Tartak’s request. The events that followed that meeting support the inference that Mr Tartak and Mr Roussakis discussed the increased prices that Bingo and the Aussie Companies were proposing to charge for their services.

31    At 3.41pm on the same day, Bingo sent a letter by email to its customers which advised that it would increase its prices for both collections services and processing services from 1 July 2019. The letter advised that there was to be a 25% price increase for collections services and that the price for processing services was to be increased by $35/m3 and $60/tonne for processing mixed building and demolition waste at Bingo’s Sydney processing facilities, other than Eastern Creek, where the fees would be increased by $28/m3 and $50/tonne. Those price increases were greater than the amount that was required to directly offset the anticipated additional costs arising from the reintroduction of the waste levy in Queensland.

32    It may be inferred that Bingo’s letter to its customers was emailed shortly after the meeting between Mr Roussakis and Mr Tartak, but that the content of the letter had been determined prior to the meeting.

33    A copy of Bingo’s letter to its customers was also circulated internally to various employees of the Aussie Companies during the afternoon of 20 May 2019. At 4.51pm on 20 May 2019, the Aussie Companies’ operations manager, who was a former Bingo employee, emailed a calendar invitation to various of the Aussie Companies’ officers and employees, including Mr Roussakis. The meeting referred to in the calendar invitation was to be held at 7.45am on 21 May 2019. The calendar invitation stated: “Please come prepared on how we should sit in the market come July 1, 2019”.

34    At 8.27am on 21 May 2019, Mr Roussakis sent a WhatsApp message to Mr Tartak which queried the meaning of an expression used in Bingo’s letter to its customers concerning its price increases. Mr Tartak responded to that message shortly thereafter and answered the query. WhatsApp is an encrypted text message service.

35    Mr Roussakis and Mr Tartak thereafter exchanged a lengthy series of WhatsApp messages. Those messages were sent and received on 21 May and 23 May 2019. Mr Roussakis also exchanged a series of WhatsApp messages with a senior employee of Bingo. That senior employee is referred to as AB in the agreed statement of facts. That exchange was instigated by Mr Roussakis and concerned the pricing of collections services. In a prior WhatsApp message, Mr Roussakis had asked Mr Tartak whether AB knew that he and Mr Tartak had met.

36    It is unnecessary to set out the full content of the WhatsApp messages. It suffices to note that the overall effect of the communications was that Mr Roussakis agreed, on behalf of Aussie Skips, that Aussie Skips would increase its prices for collections services by at least 20% and Mr Tartak, on behalf of Bingo, agreed that Bingo would maintain the price increase of at least 25% for collections services that it had announced to its customers, save that the price increase could be as low as 22% for “top tier” customers. Mr Roussakis also agreed, on behalf of Aussie Recycling, that Aussie Recycling would increase its prices by at least $50/tonne and $27.5/m3 for processing services at its Strathfield South facility and that Bingo would maintain the price increase of at least $60/tonne and $35/m3 for processing services at its facilities near Aussie Recycling’s facility at Strathfield South.

37    Mr Roussakis was aware that the arrangements he made, on behalf of both Aussie Skips and Aussie Recycling, with Mr Tartak on behalf of Bingo, had the purpose and likely effect of fixing the price of collections services and processing services that the companies provided to their customers. Mr Roussakis was also aware that Aussie Skips and Aussie Recycling competed with Bingo in respect of the provision of those services.

Giving effect to the arrangements

38    At 8.11am on 24 May 2019, the Aussie Companies distributed a letter to its customers which outlined its increased prices for collections services and processing services. The letter advised that the prices for Aussie Skips’s collections services for building and demolition waste would increase by 20% and that Aussie Recycling’s processing services for building and demolition waste would increase by $50 per tonne and $27.50/m3 excluding GST. Mr Roussakis had sent both Mr Tartak and AB a draft or earlier version of this letter via WhatsApp on 23 May 2019. It may be inferred that Bingo was sent a copy of the Aussie Companies’ letter to its customers shortly after the Aussie Companies emailed it to their customers. A copy of the letter was circulated to certain Bingo staff members by AB at 9.12am on 24 May 2019.

39    The WhatsApp communications between Mr Roussakis, on the one hand, and Mr Tartak and AB, on the other, concerning their respective companies’ price increases continued after 24 May 2019.

40    Commencing on around 30 May 2019, Mr Roussakis sent a number of messages to Mr Tartak, AB and others in an effort to arrange a meeting. In one of those messages, Mr Roussakis stated that he was “just as exposed as you are” and that he was “committed just as much as you for this to work”.

41    The meeting eventually occurred on 4 June 2019 at Mr Roussakis’s home. It was attended by Mr Roussakis, the business development manager at the Aussie Companies, as well as Mr Tartak, and AB. On the following day, Mr Roussakis and Mr Tartak exchanged WhatsApp messages in which they discussed their competitors’ pricing.

42    Mr Roussakis also exchanged WhatsApp messages with Mr Tartak on 24 June and 4 July 2019, sent WhatsApp messages to Mr Tartak on 24 July and 8 August 2019 and engaged in several WhatsApp exchanges with AB in June, July, and August 2019. It is again unnecessary to set out the full content of those messages. In summary, they referenced the arrangements that had been made between the Aussie Companies and Bingo, discussed pricing, and included complaints, mainly by Mr Roussakis, that the Aussie Companies were losing customers. Some of the messages included suggestions or accusations, mostly by Mr Roussakis, but in later messages also by AB, that the arrangements were not being adhered to. Mr Roussakis also met with AB at a café on 12 June 2019.

43    Despite some of the claims made in the WhatsApp exchanges between Mr Roussakis, AB, and Mr Tartak, Bingo and the Aussie Companies generally adhered to, and gave effect to, the provisions in the arrangements concerning their pricing for collections services and processing services in the period from 24 May to 31 August 2019.

44    The Aussie Companies implemented and generally maintained the price increases in respect of collections services and processing services that they had announced to their customers.

45    In relation to collections services, Aussie Skips increased the price that it charged its customers by: 20% in approximately 9% of cases; between 20-25% in approximately 22% of cases; and 20% or more in approximately 46% of cases.

46    In relation to processing services, Aussie Recycling increased the price it charged its customers by: exactly $50/tonne or $27.5/m3 (excluding GST) in approximately 25% of cases; and $50/tonne or $27.5/m3 (excluding GST) in approximately 39% of cases.

47    Mr Roussakis assisted, and was knowingly involved, in the Aussie Companies’ adherence to the arrangements. He was, as chief executive officer, undoubtedly involved in pricing decisions and, as noted earlier, continued his communications with Mr Tartak and AB concerning the price increases during June, July, and August 2019.

Abandonment of the arrangements

48    The Aussie Companies effectively abandoned the arrangements they had made with Bingo by 1 September 2019. That was largely the result of market pressures which forced the Aussie Companies to reduce their prices below those that had been agreed with Bingo.

The impact of the arrangements

49    As a result of the arrangement between Aussie Skips and Bingo concerning their pricing in respect of collections services, there was a real chance that some customers of Aussie Skips and Bingo would pay more than they otherwise would have for collections services in Sydney. Mr Roussakis, and through him Aussie Skips, were aware that there was a real chance that the prices charged by Aussie Skips and Bingo for collections services pursuant to the arrangement would have an impact the prices that their competitors charged their customers in Sydney.

50    Similarly, as a result of the arrangement between Aussie Recycling and Bingo concerning their pricing in respect of processing services, there was a real chance that customers of Aussie Recycling at its Strathfield South facility, and Bingo’s customers at its Greenacre, Revesby, and Auburn processing facilities (those being the facilities closest to Aussie Recycling’s Strathfield South facility) would pay more than they otherwise would have for processing services. There was also a possibility that customers that tipped building and demolition waste at other processing facilities in Sydney could also have paid prices different to those they would have paid had the arrangement not been made and implemented. Mr Roussakis and Aussie Recycling were aware that there was a real chance that the prices charged by Aussie Recycling and Bingo for processing services pursuant to the arrangement would most likely have an impact on the prices that their competitors charged their customers in Sydney.

THE OFFENCES

51    The indictment presented by the Prosecutor contained the following charge against Aussie Skips:

1.    Between about 20 May 2019 and about 24 May 2019 at Strathfield South in the State of New South Wales and elsewhere, Aussie Skips Bin Services Pty Ltd intentionally made an arrangement with Bingo Industries Ltd which contained a cartel provision, knowing or believing that the arrangement contained a cartel provision.

Contrary to section 45AF(1) of the Competition and Consumer Act 2010 (Cth).

Particulars of Arrangement

Bingo Industries Ltd and Aussie Skips Bin Services Pty Ltd made an arrangement about the price of skip bin services in respect of mixed building and demolition waste in the Sydney Metropolitan region that:

i.    Bingo Industries Ltd would maintain a price increase of at least 25% (save that the price increase may be as low as 22% for top tier customers); and

ii.    Aussie Skips Bin Services Pty Ltd would increase its prices by at least 20%,

from at least 1 July 2019 (the Collections Arrangement).

52    Aussie Skips entered a plea of guilty to that charge.

53    Aussie Skips also asked the Court to take into account, pursuant to s 16BA of the Crimes Act, an additional offence. That offence related to giving effect to the cartel provision in respect of its pricing for collections services. That offence was particularised in the following terms in the notice filed pursuant to s 16BA:

[From about 24 May 2019 until at least 31 August 2019, at Strathfield South, New South Wales and elsewhere,] Aussie Skips Bin Services Pty Ltd intentionally gave effect to a cartel provision contained in an arrangement made with Bingo Industries Ltd (ACN 617 748 231), knowing or believing that the arrangement contained a cartel provision, contrary to section 45AG(1) of the Competition and Consumer Act 2010 (Cth).

Particulars

a.    Between about 20 May 2019 and about 24 May 2019, Aussie Skips Bin Services Pty Ltd intentionally made an arrangement with Bingo Industries Ltd about the price of skip bin services in respect of mixed building and demolition waste in the Sydney Metropolitan region that:

i.    Bingo Industries Ltd would maintain a price increase of at least 25% (save that the price increase may be as low as 22% for top tier customers); and

ii.    Aussie Skips Bin Services Pty Ltd would increase its prices by at least 20%,

from at least July 2019 (the Collections Arrangement).

b.    Aussie Skips Bin Services Pty Ltd gave effect to the cartel provision contained in the Collections Arrangement.

54    The indictment contained the following charge against Aussie Recycling:

2.    Between about 20 May 2019 and about 24 May 2019 at Strathfield South in the State of New South Wales and elsewhere, Aussie Skips Recycling Pty Ltd intentionally made an arrangement with Bingo Industries Ltd which contained a cartel provision, knowing or believing that the arrangement contained a cartel provision.

Contrary to section 45AF(1) of the Competition and Consumer Act 2010 (Cth).

Particulars of Arrangement

Bingo Industries Ltd and Aussie Skips Recycling Pty Ltd made an arrangement about the price of processing services for the mixed building and demolition waste stream that:

i.    Bingo Industries Ltd would maintain a price increase of at least $60/tonne and $35/m3 at its facilities proximate to Aussie Skips Recycling Pty Ltd’s Strathfield South facility; and

ii.    Aussie Skips Recycling Pty Ltd would increase its prices by at least $50/tonne and $27.50/m3 at its Strathfield South facility,

from at least 1 July 2019 (the Processing Arrangement).

55    Aussie Recycling entered a plea of guilty to that charge.

56    Aussie Recycling also asked the Court to take into account, pursuant to s 16BA of the Crimes Act, an additional offence. That offence related to giving effect to the cartel provision in the arrangement concerning prices for processing services. That offence was particularised in the following terms in the notice filed pursuant to s 16BA:

[From about 24 May 2019 until at least 31 August 2019, at Strathfield South, New South Wales and elsewhere,] Aussie Skips Recycling Pty Ltd intentionally gave effect to a cartel provision contained in an arrangement made with Bingo Industries Ltd (ACN 617 748 231), knowing or believing that the arrangement contained a cartel provision, contrary to section 45AG(1) of the Competition and Consumer Act 2010 (Cth).

Particulars

a.    Between about 20 May 2019 and about 24 May 2019, Aussie Skips Recycling Pty Ltd intentionally made an arrangement with Bingo Industries Ltd about the price of processing services for the mixed building and demolition waste stream that:

i.    Bingo Industries Ltd would maintain a price increase of at least $60/tonne and $35/m3 at its facilities proximate to Aussie Skips Recycling Pty Ltd’s Strathfield South facility; and

ii.    Aussie Skips Recycling Pty Ltd would increase its prices by at least $50/tonne and $27.50/m3 at its Strathfield South facility,

from at least 1 July 2019 (the Processing Arrangement).

b.    Aussie Skips Recycling Pty Ltd gave effect to the cartel provision contained in the Processing Arrangement.

57    The indictment contained the following charge against Mr Roussakis:

3.    Between about 20 May 2019 and about 24 May 2019 at Strathfield South in the State of New South Wales and elsewhere, Emmanuel Nickolas Roussakis did aid, abet, counsel or procure Aussie Skips Bins Services Pty Ltd and Aussie Skips Recycling Pty Ltd to each contravene a cartel offence provision, namely, section 45AF(1) of the Competition and Consumer Act 2010 (Cth), in that Aussie Skips Bin Services Pty Ltd and Aussie Skips Recycling Pty Ltd each intentionally made an arrangement with Bingo Industries Ltd containing a cartel provision, which to the knowledge or belief of Aussie Skips Bin Services Pty Ltd, Aussie Skips Recycling Pty Ltd and Emmanuel Nickolas Roussakis each contained a cartel provision.

Contrary to section 45AF(1) with section 79(1)(a) of the Competition and Consumer Act 2010 (Cth).

Particulars of Arrangement

a.    Emmanuel Nickolas Roussakis did aid, abet, counsel or procure Aussie Skips Bin Services Pty Ltd to make the Collections Arrangement.

b.    Emmanuel Nickolas Roussakis did aid, abet, counsel or procure Aussie Skips Recycling Pty Ltd to make the Processing Arrangement.

58    Mr Roussakis entered a plea of guilty to the charge.

59    Mr Roussakis also asked the Court to take into account, pursuant to s 16BA of the Crimes Act an additional offence. That offence related to giving effect to the cartel provisions in both the arrangement between Aussie Skips and Bingo which contained a cartel provision concerning prices in respect of collections services and the arrangement between Aussie Recycling and Bingo which contained a cartel provision concerning prices in respect of processing services. That offence was particularised in the following terms in the notice filed pursuant to s 16BA:

[From about 24 May 2019 until at least 31 August 2019, at Strathfield South, New South Wales and elsewhere,] Emmanuel Nickolas Roussakis did aid, abet, counsel or procure Aussie Skips Bin Services Pty Ltd (ACN 615 153 985) and Aussie Skips Recycling Pty Ltd (ACN 614 855 506) to each contravene a cartel offence provision, namely, section 45AG(1) of the Competition and Consumer Act 2010 (Cth), in that Aussie Skips Bin Services Pty Ltd and Aussie Skips Recycling Pty Ltd each intentionally gave effect to a cartel provision contained in arrangements each made with Bingo Industries Ltd, which to the knowledge or belief of Aussie Skips Bin Services Pty Ltd, Aussie Skips Recycling Pty Ltd and Emmanuel Nickolas Roussakis each contained a cartel provision, contrary to section 45AG(1) with section 79(1)(a) of that Act.

Particulars

a.    Between about 20 May 2019 and about 24 May 2019, Aussie Skips Bin Services Pty Ltd intentionally made an arrangement with Bingo Industries Ltd about the price of skip bin services in respect of mixed building and demolition waste in the Sydney Metropolitan region that:

i.    Bingo Industries Ltd would maintain a price increase of at least 25% (save that the price increase may be as low as 22% for top tier customers); and

ii.    Aussie Skips Bin Services Pty Ltd would increase its prices by at least 20%,

from at least 1 July 2019 (the Collections Arrangement).

b.    From about 24 May 2019 until at least 31 August 2019, Aussie Skips Bin Services Pty Ltd gave effect to the cartel provision contained in the Collections Arrangement.

c.    Between about 20 May 2019 and about 24 May 2019, Aussie Skips Recycling Pty Ltd intentionally made an arrangement with Bingo Industries Ltd about the price of processing services for the mixed building and demolition waste stream that:

i.    Bingo Industries Ltd would maintain a price increase of at least $60/tonne and $35/m3 at its facilities proximate to Aussie Skips Recycling Pty Ltd’s Strathfield South facility; and

ii.    Aussie Skips Recycling Pty Ltd would increase its prices by at least $50/tonne and $27.50/m3 at its Strathfield South facility,

from at least 1 July 2019 (the Processing Arrangement).

d.    From about 24 May 2019 until at least 31 August 2019, Aussie Skips Recycling Pty Ltd gave effect to the cartel provision contained in the Processing Arrangement.

MAXIMUM PENALTIES

60    At the time the Aussie Companies committed the offences in question, the maximum penalty for an offence committed against each of ss 45AF(1) and 45AG(1) was a fine not exceeding the greater of: $10,000,000; or, if the court could determine the total value of the benefits that were obtained by one or more persons and that were reasonably attributable to the commission of the offence, three times that total value; or, if the court could not determine the total value of those benefits, 10% of the corporation’s annual turnover during the 12‑month period ending at the end of the month in which the corporation committed, or began committing, the offence: ss 45AF(3) and 45AG(3) of the Competition and Consumer Act.

61    The parties agreed that the maximum penalty applicable to both the offence committed by Aussie Skips and the offence committed by Aussie Recycling was $10,000,000. That was because both the benefit and turnover bases for calculating the maximum penalty were either inapplicable or did not result in a figure which exceeded $10,000,000.

62    As for the benefit basis, the Prosecutor contended that the Court could not, or would not, be able to determine the total value of the benefits obtained by Aussie Skips and Aussie Recycling that were reasonably attributable to the commission of the offences they each committed. Aussie Skips and Aussie Recycling appeared to agree with that contention. While they adduced evidence from an accountant concerning the benefits obtained by them during the offending period, they did not submit that the accountant’s evidence in that regard could prove the total benefits for the purpose of calculating the maximum penalty. The accountant’s evidence concerning the benefits obtained by Aussie Skips and Aussie Recycling is discussed later in these reasons.

63    As for the turnover basis, it was agreed that the applicable turnover in the case of Aussie Skips for the relevant period was $14,400,000 and that the appliable turnover in the case of Aussie Recycling for the relevant period was $20,800,000. Obviously 10% of those turnover figures is less than $10,000,000.

64    As for the maximum penalty applicable to the offence committed by Mr Roussakis, a person who is not a body corporate and who, by virtue of having aided, abetted, counselled, or procured a person to commit a cartel offence provision, is taken to have contravened that provision, is punishable by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both: s 79(1) of the Competition and Consumer Act. A penalty unit at the time Mr Roussakis aided and abetted the Aussie Companies’ commission of the cartel offences was $210. It follows that the maximum penalty in respect of each of the offences committed by Mr Roussakis is 10 years imprisonment, or a fine of $420,000, or both.

ADDITIONAL EVIDENCE ADDUCED BY THE PROSECUTOR

65    The Prosecutor relied on affidavit evidence from an officer of the Australian Competition and Consumer Commission (ACCC), Mr Blake Donald. Mr Donald’s evidence primarily related to some aspects of the ACCC’s investigation of the offences. Mr Donald’s affidavit also annexed extracts from the ACCC’s register which recorded the directorships and ownership of Aussie Skips, Aussie Recycling and Aussie Waste.

66    Mr Donald’s evidence concerning the ACCC’s investigation was, in summary, that on 4 December 2019, officers of the ACCC executed a search warrant at the Aussie Companies’ business premises in Strathfield South. That search warrant had been issued to Mr Donald pursuant to s 154X of the Competition and Consumer Act. The ACCC subsequently issued and served on the Aussie Companies a series of notices under s 155 of the Competition and Consumer Act. Those notices, which were dated 3 December 2020, 3 June 2021, and 9 April 2021, required the Aussie Companies to furnish specified information and produce specified documents relevant to the ACCC’s investigation. The Aussie Companies complied with those notices. On 17 December 2020, the ACCC sent a letter to the legal advisers who were acting for the Aussie Companies and Mr Roussakis. Those letters outlined the ACCC’s allegations concerning cartel conduct by the Aussie Companies and Mr Roussakis. Mr Roussakis was invited to cooperate by attending an interview. He subsequently declined that invitation.

67    The Prosecutor tendered criminal history reports in respect of Aussie Recycling and Mr Roussakis. Those reports indicate that on 21 July 2022, Aussie Recycling and Mr Roussakis were convicted in the District Court of New South Wales of an occupational health and safety offence. It is common ground that those offences arose out of the workplace death of an employee. It may be inferred that those offences were very serious, particularly given the penalties that were imposed. Aussie Recycling was fined $525,000 and Mr Roussakis was fined $60,000. Mr Roussakis has also been dealt with in respect of various other minor offences, including: an offence of dishonestly gaining a benefit or advantage in January 2001; various driving offences in December 2007; and using offensive language and common assault in December 2009. Those offences were all dealt with summarily and resulted in either no conviction being recorded or, in some cases, the imposition of fines or good behaviour bonds.

68    Finally, the Prosecutor tendered a sentencing assessment report in respect of Mr Roussakis prepared by a community corrections officer of Corrective Services NSW. That report records that Mr Roussakis told the officer that when he committed the offence he was “ignorant to the legal and moral implications of his actions” and that his motivation was “to improve the company’s finances during a period of reported economic struggle”. Mr Roussakis also reported his embarrassment. The officer assessed that there was a low risk of Mr Roussakis offending. The officer also made some recommendations which are potentially relevant to the available sentence options. Those recommendations will be addressed later in these reasons.

EVIDENCE ADDUCED BY THE ACCUSED

69    The Aussie Companies and Mr Roussakis adduced evidence in support of their pleas in mitigation.

Evidence relating to Aussie Skips and Aussie Recycling

70    As previously adverted to, the Aussie Companies adduced evidence from an accountant, Mr Maurizio Zappacosta. That evidence addressed three topics.

71    The first topic addressed by Mr Zappacosta concerned the benefits obtained by both Aussie Skips and Aussie Recycling during the period of offending, both in terms of turnover and net profit or loss. Mr Zappacosta’s evidence, in summary, was that the benefits obtained during the offending period were, in the case of Aussie Skips, an increase in turnover of $107,120, and in the case of Aussie Recycling, an increase in turnover of $162,131. Mr Zappacosta also appeared to suggest that, once the increased costs incurred as a result of the reintroduction of the Queensland landfill level were factored in, Aussie Recycling suffered a loss of $662,659.

72    The second topic addressed by Mr Zappacosta was a comparison of the financial positions of Aussie Skips, Aussie Recycling, and Bingo. The key points that emerge from Mr Zappacosta’s analysis of the financial records of those companies are as follows:

    The combined turnover of Aussie Skips and Aussie Recycling was: $5,659,325 (for the period 1 July to 31 August 2019); $26,747,099 for the 2019 financial year; and $33,513,159 for the 2020 financial year. In calculating those figures, Mr Zappacosta excluded invoices issued by Aussie Skips to Aussie Recycling and vice versa.

    Bingo’s current and historical turnover was: $395,739,000 (for the 2019 financial year); $478,629,000 (for the 2020 financial year); and $485,400,000 (for the 2022 financial year).

    The combined net equity position of Aussie Skips and Aussie Recycling was: $4,228,625 as of 24 May 2019 and $3,928,905 as of 31 August 2019; $3,744,791 as at the end of the 2019 financial year; and $1,551,708 as at the end of the 2020 financial year.

    The net equity position of Bingo was: $826,450,000 for the 2019 financial year; $858,912,000 for the 2020 financial year; and $986,987,000 for the 2022 financial year.

    The combined figures for net profit for Aussie Skips and Aussie Recycling were: a loss of $307,802 for the 2019 financial year; a loss of $2,193,283 for the 2020 financial year; and a profit of $2,068,114 for the 2022 financial year.

    The profit figures for Bingo were: a net profit after tax of $22,265,000 for the 2019 financial year; a net profit after tax of $66,014,000 for the 2020 financial year; and a net loss after tax of $35,300,000 for the 2022 financial year.

73    The third topic addressed by Mr Zappacosta concerned the capacity of Aussie Skips and Aussie Recycling to pay any fine that may be imposed. Mr Zappacosta’s opinion in that regard was, in summary, that a combined fine above $1,711,000 would cause Aussie Skips and Aussie Recycling to become insolvent.

74    Mr Zappacosta was cross-examined by the Prosecutor and aspects of his evidence were challenged and disputed. The main challenges were to Mr Zappacosta’s evidence concerning his calculation of the benefits derived by Aussie Skips and Aussie Recycling during the period of the offence and his opinion concerning the ability of those companies to pay any fine. The cogency, reliability and relevance of Mr Zappacosta’s evidence will be discussed in detail later in these reasons.

75    The Aussie Companies adduced affidavit evidence from Mr Mitchell Palmer, the operations manager of Aussie Waste and its controlled entities, including Aussie Skips, Aussie Recycling and a company called Aussie Skips Commercial Pty Ltd. Mr Palmer collectively referred to those entities as Aussie Industries. Mr Palmer commenced his employment with Aussie Skips Commercial in August 2021 and was appointed operations manager of Aussie Industries in January 2022. His evidence relevantly included that Aussie Industries employs about 80 full time staff and that Aussie Skips owned 40 trucks and 5,000 skip bins. Aussie Recycling has two processing centres; the facility at Strathfield South and a facility at Greenacre which is authorised to accepted general solid waste, but not building and demolition waste.

76    Mr Palmer stated that Aussie Industries had a “strong emphasis on fostering a culture of compliance” and that to achieve that goal it had “developed a set of policies and procedures to guide [its] work processes”. Mr Palmer did not, however, provide any meaningful detail concerning any specific policies relevant to anti-competitive conduct. He did, however, express the view that Aussie Industries now “has measures in place to ensure that the conduct that led to the current charges does not happen again”. The main “measure” identified by Mr Palmer was that “no one person has complete control over pricing decisions”.

77    The Aussie Companies also adduced evidence from Ms Annastasia Tsihlis, the chief financial officer of Aussie Waste and its controlled entities. Ms Tsihlis’s evidence included the following:

In my opinion, the matters which led to the current charges will not be repeated. Aussie Recycling and Aussie Skips were only able to enter into the arrangements subject of the current charges because former CEO, Emmanuel Roussakis, had complete and solitary control of the prices set and charged, with no oversight from others in the business. The prices charged for skip bins and tipping are now calculated following a structured and collaborative process between the sales, operations, and finance team. I am involved in this process, as are Nansi Philips (General Manager) and Mitchell Palmer (Operations Manager).

78    Ms Tsihlis also referred to Aussie Industries’ engagement with various charities.

79    The Aussie Companies tendered a statement from Ms Nansi Philips, the general manager of Aussie Waste and its controlled entities. The evidence in that statement was similar in many respects to the evidence of Mr Palmer and Ms Tsihlis. Ms Philips also expressed the view that the “matters” which led to the current charges will not be repeated because they were due to the “rogue actions” of Mr Roussakis as opposed to any “broader compliance issues”. She noted that Mr Roussakis is no longer solely involved in determining prices.

Evidence relating to Mr Roussakis

80    While Mr Roussakis did not himself give evidence, he did tender a letter to the Court signed by him. In that letter, Mr Roussakis expresses a degree of contrition and seeks to explain the circumstances surrounding his offending conduct. As discussed later in these reasons, I accept that Mr Roussakis is contrite and remorseful. It is, however, difficult to afford much weight to the statements made by Mr Roussakis in his letter concerning the circumstances surrounding his offending in circumstances where he did not give evidence and the account in his letter was unable to be tested by the Prosecutor: R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 at [58]-[59] and [79]; Imbornone v The Queen [2017] NSWCCA 144 at [57]; Commonwealth Director of Public Prosecutions v Alkaloids of Australia Pty Ltd [2022] FCA 1424 at [180] (CDPP v Alkaloids). In particular, statements made by Mr Roussakis in his letter to the effect that at the time of the offences the Aussie Companies were “struggling financially”, and that he considered that the Aussie Companies were “at the mercy of Bingo”, have to be treated with considerable caution and circumspection.

81    Mr Roussakis adduced opinion evidence from a consultant forensic psychiatrist, Dr Antony Henderson. Dr Henderson’s evidence, in summary, was that in his opinion Mr Roussakis was suffering from a major depressive disorder at the time of his offending conduct. He also expressed the view that “Mr. Roussakis’ offending behaviour was consequent to the overwhelming pressure placed on him by his family for the company to be successful and his need to gain parental approval in the context of his self-esteem difficulties related to his invalidating childhood” and a specific experience he suffered as a child. The childhood experience was discussed in Dr Henderson’s report, though those parts of Dr Henderson’s report are subject to non-publication orders and cannot to be referred to with any specificity in these reasons. I have, however, taken that evidence into account. Finally, Dr Henderson expressed the opinion, from a psychological perspective, that Mr Roussakis was “at very low risk of engaging in further offending behaviour”.

82    It should perhaps be noted that Dr Henderson’s report records several hearsay assertions by Mr Roussakis concerning the circumstances surrounding his offending. To give but one example, the report records that Mr Roussakis claimed that “he was not aware of illegality or seriousness of the offending at the material time”. As indicated earlier in the context of Mr Roussakis’s letter, hearsay statements of that nature must be treated with caution and circumspection in circumstances where Mr Roussakis did not give evidence.

83    Finally, Mr Roussakis tendered 11 character references from his parents, friends, business colleagues, persons associated with the Greek Orthodox Church and the Aussie Companies employees. The consistent theme of those references is that Mr Roussakis is a well-respected member of his community who has supported various charitable endeavours. His parents, business colleagues and the employees of the Aussie Companies all speak of Mr Roussakis’s work ethic and the trust they placed in him. Mr Roussakis is generally regarded as a caring and compassionate man who goes out of his way to help others. He is a well-respected member of the Greek Orthodox community. Many of the references refer to Mr Roussakis’s shame, regret and remorse in respect of his offending behaviour.

GUILTY PLEAS

84    There is no dispute that Aussie Skips, Aussie Recycling, and Mr Roussakis entered their pleas of guilty to the offences at the earliest stage.

85    An indictment charging each of the offenders was first filed on 14 December 2022. The indictment was filed in circumstances where there were no committal proceedings. It is clear that the Prosecutor proceeded on that basis because the offenders had already indicated that they intended to plead guilty. Within days of the filing of the indictment, the offenders filed a document, dated 15 December 2022, which confirmed their intention to plead guilty. Mr Roussakis was arraigned and entered a plea of guilty at the first case management hearing on 27 February 2023. While Aussie Skips and Aussie Recycling may not have entered formal pleas of guilty until some later stage, there was never any doubt that they intended to plead guilty.

RELEVANT SENTENCING PROVISIONS AND PRINCIPLES

86    The statutory provisions pursuant to which the Aussie Companies and Mr Roussakis are to be sentenced are primarily found in Pt IB of the Crimes Act.

87    The overarching principle in Pt IB is that any sentence imposed by the Court must be of a “severity appropriate in all the circumstances of the offence”: s 16A(1) of the Crimes Act.

Matters which the Court must take into account

88    Section 16A(2) of the Crimes Act details the matters that the Court must take into account so far as they are relevant and known to the Court. Those matters relevantly include: the nature and the circumstances of the offence; other offences (if any) that are required or permitted to be taken into account; if the offence forms part of a course of conduct, that course of conduct; the personal circumstances of any victim of the offence; any injury, loss or damage resulting from the offence; the degree to which the offender has shown contrition for the offence; if the offender has pleaded guilty, that fact; the degree to which the offender has cooperated with law enforcement agencies in the investigation of the offence or other offences; the deterrent effect of any sentence on the offender or any other person; the need to ensure that the offender is adequately punished for the offence; the character and antecedents of the offender; and the prospect of rehabilitation of the offender.

89    The Court must identify and ascribe weight to the relevant factors and make a value judgment as to what is the appropriate sentence given those factors; a process sometimes referred to as “instinctive synthesis”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51].

90    The factors that are of relevance in sentencing the Aussie Companies and Mr Roussakis are specifically identified and considered later in these reasons.

91    The “checklist” of matters detailed in s 16A(2) does not exclude other relevant considerations, including common law sentencing principles: Director of Public Prosecutions (Cth) v El Karhani (1990) 97 ALR 373; 21 NSWLR 370 at 377-378; Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1 at [18]; Johnson v The Queen (2004) 218 CLR 451; [2004] HCA 15 at [15]. Sentencing principles such as totality and proportionality are important considerations in fixing a sentence of a severity appropriate in all the circumstances: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [25]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [78].

Maximum penalties

92    The maximum penalty for an offence is often viewed as a “yardstick” that bears on the ultimate discretionary determination of the sentence for the offence: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. It can also be taken to represent the legislature’s assessment of the seriousness of the offence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [31]. The maximum penalty, however, is only one of many factors that should be taken into account when determining the appropriate sentence. In some cases and in some circumstances, however, it may provide little to no assistance: Markarian at [65]; R v Geddes (1936) 36 SR (NSW) 554 at 555-556. As the High Court has observed, “[i]t is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted”: Elias at [27].

93    The maximum penalty for an offence against ss 45AF and 45AG of the Competition and Consumer Act is not a single specified sum or formula. The provision instead provides for alternative maximum penalties.

94    As discussed earlier, the maximum penalty in respect of the offences committed by Aussie Skips and Aussie Recycling is $10,000,000. That is because it is not possible to determine the total value of the benefits obtained by one or more persons that were reasonably attributable to the commission of the offences and 10% of the annual turnover of both corporations for the relevant period was less than the sum of $10,000,000: see ss 45AF(3) and 45AG(3) of the Competition and Consumer Act.

95    As also discussed earlier, the maximum penalty in Mr Roussakis’s case is a term of imprisonment not exceeding 10 years, or a fine not exceeding $420,000, or both.

THE SENTENCES TO BE IMPOSED ON AUSSIE SKIPS aND AUSSIE RECYCLING

96    Aussie Skips and Aussie Recycling may conveniently be dealt with together.

97    The appropriate course to adopt in determining the appropriate sentences to impose on Aussie Skips and Aussie Recycling respectively is to identify and ascribe weight to the factors relevant to those sentences, including, but not necessarily limited to, those referred to in s 16A(2) of the Crimes Act. Those factors may conveniently be categorised as those that are relevant to the objective seriousness of the offences and the offending conduct and those that relate to the subjective or personal circumstances of the offender in question. Before doing that, it is helpful to briefly identify the main points of contention between the parties.

The objective seriousness of the offences in question

98    The factors that are relevant to assessing the seriousness of the offences include: the nature and circumstances of the offence; the duration and scale of the offences; the extent to which the offences were deliberate, systematic and covert; the nature and extent of any benefits obtained as a result of the offence; any loss or damage caused by the offence; and whether the offences formed part of a course of conduct.

The nature and circumstances of the offence - s 16A(2)(a) of the Crimes Act

99    Section 16A(2)(a) provides that the Court must take into account “the nature and circumstances of the offence”.

100    Cartel conduct generally involves anti-competitive conduct of a very serious nature that should be emphatically condemned and deterred by the imposition of appropriately stern penalties. Such conduct is “extremely destructive of the competition on which the prosperity of a free market economy depends”: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) (2007) 244 ALR 673; [2007] FCA 1617 at [306]. It can “never really be considered as anything other than serious”: Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 2) (2002) 190 ALR 169; [2002] FCA 559 at [13]. While Visy and ABB were both civil penalty cases, the observations concerning the seriousness of cartel conduct apply equally to cartel offences.

101    Prior to 2009, cartel conduct attracted only civil penalties. The fact that cartel conduct was criminalised in 2009 no doubt reflects the fact that Parliament regarded it as sufficiently serious to attract “opprobrium and societal condemnation in a way that the imposition of a civil penalty cannot”: CDPP v NYK at [215]-[216]; see also [1] in which the Minister’s Second Reading Speech in respect of the Bill that criminalised cartel conduct is reproduced; see also CDPP v K-Line at [275], [278].

102    The objective seriousness of cartel offences is reflected in the substantial maximum penalties. It is, however, undoubtedly necessary to have regard to the specific facts and circumstances of the offences committed by the offender in question.

103    As has already been noted, the factors or considerations which are generally considered to be relevant in assessing the objective seriousness of cartel offences include: the duration and scale of the offending conduct; the extent to which the conduct was deliberate, systematic and covert; the seniority of the officers or employees involved in the offences; the existence or otherwise of any corporate culture of compliance; the profit or benefit attributable to the conduct; and any loss or damage arising from the conduct: see CDPP v NYK at [219]-[220]; CDPP v K-Line at [279]-[281]; Commonwealth Director of Public Prosecutions v Wallenius Wilhelmsen Ocean AS (2021) 386 ALR 98; [2021] FCA 52 (CDPP v WWO) at [174]-[175].

The duration and scale of the offending conduct

104    Aussie Skips and Aussie Recycling have both only been charged with an offence of making an arrangement with Bingo which contained a cartel provision contrary to s 45AF(1) of the Competition and Consumer Act. Strictly speaking, the conduct on the part of Aussie Skips and Aussie Recycling which constituted the making of the relevant arrangements occurred over a five-day period – 20 to 24 May 2019. It would, however, be erroneous to confine attention to that five-day period when considering the objective seriousness of that offending for the purposes of sentencing. That would ignore the fact that the arrangements that Aussie Skips and Aussie Recycling made with Bingo persisted for a little over three months – from about 24 May to about 31 August 2019. It is also relevant to note that the arrangements did not come to an end because the participants recognised that the making of those arrangements was wrong or for any altruistic reasons. Rather, the arrangements were effectively abandoned by the Aussie Companies as a result of market pressure and commercial self-interest.

105    Even if it were somehow appropriate to confine attention to the relatively short period during which the relevant arrangements were made given that Aussie Skips and Aussie Recycling have only been charged with making the arrangements, it will be recalled that both Aussie Skips and Aussie Recycling have requested the Court to take into account, pursuant to s 16BA of the Crimes, their commission of offences under s 45AG(1) of the Competition and Consumer Act which involve giving effect to the arrangements. The manner in which those offences are to be taken into account will be addressed in more detail later. It suffices at this point to note that the duration of those offences was a little over three months – a not-insubstantial period.

106    It may readily be accepted that the duration of the cartel arrangements in question was not as long as the cartel arrangements in most of the other reported cartel offence cases. The facts of those cases and their relevance to the sentencing exercise in this matter will be discussed later. The point to note for present purposes is that the fact that the duration of the cartel arrangements in this matter was less than was the case in other matters does not mean that the duration of the offending conduct in this matter was short or insubstantial.

107    As for the scale or scope of the offending conduct, the relevant cartel arrangements concerned the fixing or maintenance of prices between major competitors in the market for waste management collections services and processing services in Sydney. Those were large, lucrative, and important markets. To give but one example of the scale of the relevant markets, the combined turnover of Aussie Skips and Aussie Recycling during the 12-month period ending May 2019 was approximately $14,400,000.

The extent to which the conduct was deliberate, systematic and covert

108    Cartels, by their very nature, generally involve deliberate conduct and require a significant degree of planning and deliberation. They are also likely to be covert and involve conduct which is carried out in such a way as to avoid detection by regulatory authorities: CDPP v NYK at [239]; CDPP v K-Line at [298].

109    There could be little doubt that the conduct of both Aussie Skips and Aussie Recycling, through Mr Roussakis, was deliberate. It may be inferred from the nature and content of Mr Roussakis’s communications with Mr Tartak that Mr Roussakis knew exactly what he was doing and well-knew that it was unlawful. He may not have known the precise details of the criminal offences that he was causing the companies to commit, but it may readily be inferred that he knew it was wrong. That is apparent from, among other things, the nature and content of the communications between Mr Roussakis and Mr Tartak. For the reasons given earlier, I give little weight to the hearsay assertions by Mr Roussakis which are recorded in his letter to the Court and Dr Henderson’s report.

110    There likewise could be little doubt that the conduct which gave rise to the cartel arrangements, and the way in which those arrangements were implemented, was covert. The meetings that Mr Roussakis had with Mr Tartak did not occur on either of their business premises and most of their communications took place over WhatsApp, which, as noted earlier, is an encrypted messaging application the records of which cannot be readily accessed by persons other than those who participate in the communications. The arrangements were not otherwise recorded or documented. While Mr Roussakis appears to have disclosed the substance of the arrangements to some other Aussie officers or employees, that says more about the absence of any culture of compliance at the Aussie Companies than it does about the covert nature of the arrangements. Contrary to the submission advanced on behalf of the Aussie Companies and Mr Roussakis, the fact that cartel conduct is almost invariably covert does not mean that the covert nature of the arrangements in any given case cannot be considered to be a relevant indicator of the seriousness of the offending conduct.

111    While the cartel arrangements may have been deliberate and covert, it is difficult to see how they could fairly or accurately be characterised as highly planned or systematic. The arrangements were made essentially through a few meetings between Mr Tartak and Mr Roussakis and a series of WhatsApp messages. Those meetings and communications were fairly ad-hoc and somewhat unsophisticated. No organised or methodical systems were put in place to give effect to or monitor the arrangements. That perhaps also goes some way towards explaining how and why the arrangements ultimately broke down.

Seniority of the offending officer(s) and corporate culture

112    This was not a case where the cartel arrangements were made and given effect to by lower-level management. The arrangements were made between the chief executive officers of Aussie Skips and Aussie Recycling on the one hand, and Bingo on the other.

113    It is also clear that there was no culture of compliance in respect with competition laws at the Aussie Companies. That is readily apparent from the nature and content of many of Mr Roussakis’s communications, including those where he effectively conveyed the substance of the cartel arrangements to other Aussie Companies officers or employees. There is no suggestion that, at least prior to the commission of the offences, the Aussie Companies had ever put in place any policies or procedures to prevent, or deter anti-competitive conduct or had even educated their staff about the unlawful nature of anti-competitive behaviour.

114    It is no answer to assert or submit, as Aussie and Mr Roussakis did, that Mr Roussakis was not legally trained, and that the Aussie Companies were “too small and unsophisticated” to have put any relevant policies in place. First, for the reasons already given, the assertion that Mr Roussakis was not aware of the illegality or seriousness of the offending conduct is rejected. In any event, as the chief executive officer of a not-insubstantial business, Mr Roussakis ought to have made it his business to educate himself and the employees of the companies that he managed about the unlawful nature of anti-competitive conduct, including cartel conduct.

115    Second, the assertion that the Aussie Companies were too small and unsophisticated to have put in place any relevant policies has no evidentiary basis. Indeed, it is contrary to the evidence. The Aussie Companies may have been private companies, but they operated large businesses. As noted earlier, the combined turnover of Aussie Skips and Aussie Recycling during the 12-month period ending May 2019 was approximately $14,400,000. As at May 2023, the Aussie Companies had 80 full time staff, a number of whom occupied senior management positions such as sales manager, operations manager, and business development manager. The suggestion that a business of that size and nature was not required to have any policies concerning anti-competitive conduct has little if any merit. It is also somewhat inconsistent with the fact, relied on by the Aussie Companies and Mr Roussakis, that the Aussie Companies now apparently realise that they should have had appropriate policies and systems in place to prevent conduct anti-competitive conduct. The evidence in that regard is considered later in the context of specific deterrence and rehabilitation.

Benefits obtained as a result of the conduct

116    In assessing the seriousness of a cartel offence, it is relevant to have regard to any benefits that the offender obtained as a result of the offence. That is no doubt why one of the methods by which the maximum penalty may be calculated involves the determination of the financial benefits that were obtained as a result of the offence. Experience shows, however, that it is frequently very difficult to calculate or quantify, in monetary terms, the benefits obtained that may be said to be reasonably attributable to the commission of the offence.

117    As adverted to earlier, the Aussie Companies and Mr Roussakis appeared to concede that it was not possible to determine the “total value of benefits” obtained by one or more persons that were reasonably attributable to the commission of the offence for the purposes of s 45AF(3)(b) of the Competition and Consumer Act. They did, however, adduce evidenced from an accountant, Mr Zappacosta, in order to establish the benefit which accrued to them as a result of their offending conduct.

118    The Aussie Companies and Mr Roussakis contended that the “gross benefit” derived from the offences was reflected in the increased turnover of Aussie Skips and Aussie Recycling during the period that the cartel arrangements were in place. That was the period between 24 May and 31 August 2019. The relevant “turnover”, in that context, was said to be “total sales revenue … derived in the ordinary course of business”. That apparently excluded inter-group transactions, including invoices issued by Aussie Skips to Aussie Recycling and vice versa. Mr Zappacosta calculated that Aussie Skips’s turnover while the cartel provisions were in place increased by $107,120, and that Aussie Recycling’s turnover increased by $162,131. Those amounts were said to reflect the benefits derived from the offending conduct. Mr Zappacosta also appeared to suggest that, once the increased costs incurred by Aussie Skips as a result of the reintroduction of the Queensland landfill level were factored in, Aussie Recycling suffered a loss of $662,659 during the period that the cartel arrangements were in place.

119    Based on Mr Zappacosta’s calculations, the Aussie Companies and Mr Roussakis submitted that they accrued only a “minimal gross benefit” from their offending. Moreover, in their submission, the “aggregate turnover increase was much lower than the increased costs resulting from the introduction of the [Queensland] levy”. It followed, so it was submitted, that the offences were not objectively very serious.

120    There are a number of problems with Mr Zappacosta’s analysis and the submissions which were based on it.

121    First, some aspects of the methodology employed by Mr Zappacosta are highly questionable. The methodology involved examining invoices for the period 1 May 2019 to 31 August 2019 and calculating the difference between the minimum and maximum prices for that period. In relation to processing services, the analysis was limited to mixed waste only and consideration was only given to price increases that Mr Zappacosta considered exceeded the price increases that were agreed as part of the cartel arrangement ($54.99 per tonne or $27.49 per cubic metre). For collections services, the analysis was limited to price increases of 20% or more. Mr Zappacosta then deducted the entirety of the increased costs from his figure for increased turnover to produce what he suggested was a net loss figure.

122    There are at least three problems with the methodology employed by Mr Zappacosta.

123    The first problem is that, in limiting the analysis to invoices issued between 1 May 2019 and 31 August 2019, the analysis ignored price increases relating to customers who had not been invoiced in the period between 1 May and 30 June 2019. For example, if a customer was invoiced before 1 May 2019, but not invoiced again until July 2019, the analysis would ignore any price increases referable to that customer. In contrast, the ACCC’s analysis of the invoices included the consideration of invoices in January, February, March, and April 2019. That is apparent from the agreed facts and was not disputed by the Aussie Companies or Mr Roussakis. There is therefore a possibility, if not a likelihood, that Mr Zappacosta’s analysis ignored some relevant price increases.

124    The second problem with the methodology is that, in limiting the analysis to price increases that exceeded what Mr Zappacosta considered to be the agreed increase (in the case of processing services) and price increases which equalled or exceeded the agreed price (in the case of collections services), the analysis ignored price increases after the cartel arrangements that were in place that were equal to or slightly less than the agreed increase (in the case of processing services) or slightly less than the agreed increase (in the case of collections services). Price increases below those that were agreed may equally have been facilitated by the cartel arrangements: see, in analogous circumstances, the reasoning in CDPP v NYK at [233]. The problem with this aspect of Mr Zappacosta’s methodology is particularly acute in the case of the processing services. That is because Aussie Recycling’s agreed price increase was $50 per tonne, not $54.99 per tonne as Mr Zappacosta appears to have assumed. More significantly, it was an agreed fact that Aussie Recycling increased its prices by exactly $50 per tonne or $27.5 per cubic metre in approximately 25% of cases. Mr Zappacosta’s analysis appears to have ignored all those price increases.

125    The inference or conclusion that Mr Zappacosta’s methodology and analysis is likely to have significantly miscalculated and underestimated the price increases that followed the cartel arrangement is supported by the fact that his own analysis appears to suggest that Aussie Recycling’s turnover in the period 1 July to 31 August 2019 increased by $480,341 as a result of the total price increases that occurred during that period. Even that figure may be unreliable given that it appears to have been the product of Mr Zappacosta’s examination of only those invoices dated after 1 May 2019.

126    The third problem with Mr Zappacosta’s methodology concerns his calculation of a net loss figure by deducting the figure for increased costs flowing from the Queensland levy from his figure for the Aussie Companies’ increased turnover arising from all price increases during the period 1 July 2019 to 31 August 2019. That aspect of the methodology is at best questionable. The increased costs resulting from the Queensland levy were no doubt incurred in respect of, or spread across, all Aussie Companies customers, not just those customers who suffered a price increase in accordance with Mr Zappacosta’s limited analysis.

127    Second, even putting to one side the problems with Mr Zappacosta’s methodology, his findings and opinions are inconsistent with, or at least difficult to reconcile with, the agreed facts. The agreed facts include that between 1 July and 31 August 2019, Aussie Skips increased its prices in respect of collections services by 20% or more in 46% of cases and Aussie Recycling increased its prices for processing services by $50/tonne or $27.5/m3 or more in 39% of cases. Mr Zappacosta’s analysis, on the other hand, would suggest that only 17.7% of the Aussie Companies’ customers (250 out of 1,411) were affected by a price increase. That perhaps underlines the inaccuracy and unreliability of Mr Zappacosta’s analysis. The agreed facts should be preferred to Mr Zappacosta’s questionable analysis.

128    In all the circumstances, I am far from persuaded that Mr Zappacosta’s calculation of the increased turnover during the period is accurate or reliable. I am equally unpersuaded by and reject his opinions concerning the benefit derived by the Aussie Companies as a result of the offences.

129    Third, and perhaps more fundamentally, the underlying premise of the submissions based on Mr Zappacosta’s evidence is that the benefits derived from the cartel conduct were limited to the financial benefit derived from the price increases that occurred during the period of the cartel arrangements. That is a fundamental misconception.

130    The benefits that a corporation may derive from a cartel are not limited to quantifiable financial benefits, but include more intangible, but nonetheless extremely valuable, benefits: CDPP v NYK at [247]; CDPP v K-Line at [307]; CDPP v Alkaloids at [89]-[91]. In particular, where the cartel arrangements involve a form of price fixing or price maintenance, the benefits that flow to the parties to the cartel arrangement are not limited to those benefits that may be calculated by analysing the prices charged after, or as a result of, the arrangement. The benefits may include benefits that flow from the suppression or distortion of competition. Those benefits are unlikely to be able to be quantified. This case is a case in point.

131    It can be inferred from the facts of this case that Aussie Skips and Aussie Recycling benefitted from the cartel arrangements, albeit in a way that cannot be precisely quantified. There is no doubt that Aussie Skips and Aussie Recycling increased their prices following, and in accordance with, the cartel arrangements. It may be accepted that it was likely that both companies would have had to increase their prices to some extent following the reintroduction of the Queensland levy, though it cannot necessarily be inferred that they would have increased them to the same extent were it not for the cartel. Indeed, it is clear from some of Mr Roussakis’s WhatsApp exchanges with Mr Tartak that, but for the cartel arrangements, it was unlikely that Aussie Skips and Aussie Recycling would have increased their prices to the extent that they did. In one exchange, for example, Mr Roussakis said: “I can’t go up to say … 25% if you don’t”.

132    The more important point is that it is quite clear that the main point of the cartel arrangements that Aussie Skips and Aussie Recycling made with Bingo was to avoid the loss of customers which they might otherwise have suffered if they unilaterally increased their prices in response to the reintroduction of the Queensland levy. It may readily be inferred from the WhatsApp exchanges that both Mr Roussakis and Mr Tartak believed that if the Aussie Companies and Bingo coordinated their price increases, it was less likely that they would lose customers, not only to each other, but to other suppliers. As Mr Roussakis put it in one of his communications with Mr Tartak: “[w]e need to be on the same page if this is going to work … [i]n order for us to retain our current customers we need to play fair”. Mr Tartak agreed and Mr Roussakis replied: “I’m trusting you DT”.

133    While there were other service providers, the available inference is that Mr Roussakis and Mr Tartak both believed that if both the Aussie Companies and Bingo increased their prices, or maintained their increased prices, as they had agreed, the other smaller service providers would soon follow. During one of the WhatsApp exchanges, Mr Roussakis indicated that his feedback was that some of the other service providers were not going to put up their prices. He said, in that context: “[s]o we will definitely lose customers to them”. Mr Tartak responded: “[d]on’t believe it …[t]hey have to go up”. Mr Roussakis replied: “I hope so” and Mr Tartak said: “[t]rust me stick to your guns”. There was a sound basis for the belief that the other service providers – the companies that competed with Bingo and the Aussie Companies – would put up their prices if the Aussie Companies and Bingo did. There was at the very least a real chance that the prices charged by the two largest providers of collections services in the region would have an impact on how other competitors decided to set their prices.

134    It may accordingly be inferred that, putting to one side the direct financial benefits that accrued to Aussie Skips and Aussie Recycling as a result of their increased prices, both companies also benefited from the cartel arrangements because they were able to increase their prices without losing the customers they might otherwise have lost if they had unilaterally increased their prices. That was the very point of the arrangements with Bingo. It may readily be inferred that the Aussie Companies would not have continued to give effect to the arrangements for over three months if they were not deriving, or did not believe they were deriving, any benefit from them.

Injury, loss or damage resulting from the offence – s 16A(2)(e) of the Crimes Act

135    Section 16A(2)(e) provides that the Court must take into account “any injury, loss or damage resulting from the offence”.

136    There could be no doubt that the cartel arrangements between the Aussie Companies and Bingo resulted in injury, loss, and damage, both to many of their customers and to the relevant markets.

137    In relation to loss or damage suffered by the Aussie Companies’ customers, the agreed facts included some details of the increased prices paid by some Aussie Skips customers in respect of collections services and some Aussie Recycling customers in respect of processing services. It is unnecessary to descend into the detail of those specific price increases. It suffices to reiterate that it was an agreed fact that Aussie Skips increased the price that it charged its customers in respect of collections services by: 20% in approximately 9% of cases; between 20-25% in approximately 22% of cases; and 20% or more in 46% of cases. It was also an agreed fact that Aussie Recycling increased the price it charged its customers by: exactly $50/tonne or $27.5/m3 (excluding GST) in approximately 25% of cases; and $50/tonne or $27.5/m3 or more (excluding GST) in approximately 39% of cases.

138    As has already been noted, it may be accepted that Aussie Skips and Aussie Recycling were both likely to increase their prices to some extent as a result of the reintroduction of the Queensland levy. For the reasons already given, however, it can readily be inferred that, were it not for the cartel arrangements, the price increases would not have been as large as the price increases that were ultimately implemented. It is immaterial that it is not possible to precisely determine what price increases may have been implemented in the absence of the cartel arrangements. That is almost always going to be the case: CDPP v Alkaloids at [91]. Contrary to the submissions advanced on behalf of the Aussie Companies and Mr Roussakis, it is equally immaterial that there was no evidence concerning the personal circumstances of any “victim”: cf s 16A(2)(d) of the Crimes Act.

139    In relation to loss or damage to the relevant markets and the economic system generally, as was said in CDPP v WWO (at [242]): “[c]artel conduct, like other anti-competitive behaviour, is inimical to, destructive of and may lead to a loss of public confidence in, Australia’s markets and economic system”. The cartel arrangements in question in this matter undoubtedly suppressed and distorted price competition in the important markets for waste collections and processing services in Sydney.

Course of conduct – s 16A(2)(c) of the Crimes Act

140    Section 16A(2)(c) provides that “if the offence forms part of a course of conduct, consisting of a series of criminal acts of the same or similar character – that course of conduct” must be taken into account.

141    The principles that apply where the Court is sentencing for multiple offences arising from a course of conduct do not directly apply to the offences for which Aussie Skips and Aussie Recycling are to be sentenced. That is because those offences are single offences of making an arrangement containing a cartel provision. The course of conduct principles may, however, have some tangential or analogous relevance when it comes to taking into account the “giving effect to” offences pursuant to s 16BA of the Crimes Act. That is an issue which is addressed later.

Other factors or considerations

142    There are two other factors or considerations that are relevant in assessing the objective seriousness of the offending by Aussie Skips and Aussie Recycling.

143    First, while they both were significant participants in the markets for collections services and processing services in Sydney, they were significantly smaller and had considerably less market share and power than Bingo. Those differences are discussed in more detail later in the context of parity and the subjective circumstances of Aussie Skips and Aussie Recycling, though it may also be accepted that the differences are relevant when it comes to assessing the objective seriousness of the offences.

144    Second, it may readily be accepted that Aussie Skips and Aussie Recycling, through Mr Rousssakis, were not the instigators of the cartel arrangements. Mr Tartak made the first contact and arranged the first meeting. That said, it is also readily apparent from the WhatsApp exchanges that Mr Roussakis was far from a reluctant or unenthusiastic participant.

Overall assessment of the seriousness of the offences

145    The offences committed by Aussie Skips and Aussie Recycling were very serious offences which warrant condign sentences.

146    The cartel arrangements which Aussie Skips and Aussie Recycling made with Bingo resulted in the stifling and distortion of price competition in the large and relatively lucrative markets for waste collections services and processing services in the Sydney. Those arrangements persisted for just over three months and only ceased as a result of market pressures and commercial self-interest. The offending conduct was deliberate and covert and was carried out by the Aussie Companies’ most senior executive officer in circumstances where there was effectively no corporate culture of compliance in respect of competition law. While Aussie Skips and Aussie Recycling may not have been the instigators of the arrangements, they were willing and by no means reluctant or unenthusiastic participants.

147    While it may not be possible to calculate or quantify the total benefits obtained by Aussie Skips and Aussie Recycling as a result of its anti-competitive conduct, it may nevertheless be inferred that they materially benefited from the arrangements. They not only benefited from the price increases that were implemented in accordance with the arrangements, but were also able to avoid some competitive price pressures that they would otherwise have faced because of those price increases. The Aussie Companies’ submission that only a “minimal gross benefit” was derived from the offending conduct has no merit and cannot be accepted.

148    Similarly, while it is not possible to precisely identify the damage and loss wrought by the offending conduct, it is nevertheless clear that a not-insignificant proportion of the consumers of the relevant services in the markets in question were likely to, and did, pay more for collections services and processing services while the arrangements persisted. Some Aussie Skips and Aussie Recycling customers undoubtedly paid more for collections services and processing services than they would have but for the cartel arrangements.

Other offences – ss 16A(2)(b) and 16BA of the Crimes Act

149    As has already been noted, while both Aussie Skips is only to be sentenced for one offence relating to the making of the arrangement with Bingo which contained a cartel provision concerning prices for collections services, and Aussie Recycling is only to be sentenced for one offence relating to the making of the arrangement with Bingo which contained a cartel provision concerning prices for processing services, both Aussie Skips and Aussie Recycling also asked the Court to take into account offences relating to giving effect to those respective arrangements.

150    Section 16BA(1) of the Crimes Act provides that where a person is convicted of a federal offence and the Court is satisfied of certain conditions, the Court may, with the consent of the Prosecutor, ask the convicted person whether he or she admits his or her guilt in respect of all or any other specified offences and wishes them to be taken into account by the Court in passing sentence. Section 16BA(2) provides that if that person admits his or her guilt in respect of all or any of the other specified offences and wishes to have them taken into account, the Court may, if it thinks fit, take into account all or any of the those other offences in passing sentence on that person. The general effect and operation of s 16BA was summarised as follows in CDPP v WWO at [226]-[229]:

The general effect and operation of similar provisions which operate in New South Wales was helpfully explained by Spigelman CJ in Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146 (AG’s Application). The reasoning in AG’s Application applies equally to s 16BA of the Crimes Act: see R v Lamella [2014] NSWCCA 122 at [48].

The objective of taking other offences into account pursuant to provisions such as s 16BA of the Crimes Act is to ensure that the sentence imposed “is one which best meets the situation”: AG’s Application at [30]. The Court takes into account the other offences “with a view to increasing the penalty that would otherwise be appropriate for the particular offence” for which the offender is to be sentenced: AG’s Application at [42]. The increased penalty is effectively the product of the Court giving greater weight to two elements in the sentencing process: the first being the need for personal deterrence, as the commission of other offences will frequently indicate that the accused has engaged in a course of conduct; the second being “the community’s entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed”: AG’s Application at [42]. The additional penalty as a result of taking the s 16BA offences into account will not necessarily be small; sometimes it will be substantial: AG’s Application at [18].

The manner and degree to which other offences, which are taken into account pursuant to provisions such as s 16BA of the Crimes Act, can impinge upon elements relevant to the sentencing process will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking those other offences into account: AG’s Application at [44].

Section 16BA must be applied having regard to the basic common law principle that no one should be punished for an offence of which he or she has not been convicted. Section 16BA offences constitute an admission of guilt only: there is, relevantly, no conviction: AG’s Application at [23]. It follows that in taking the s 16BA offences into account, the sentencing judge is not imposing any punishment for those offences: AG’s Application at [29]. Rather, when taking the other (s 16BA) offences into account, the Court is concerned and concerned only with imposing a sentence for “the principal offence”; it is no part of the task of the sentencing court to determine appropriate sentences for s 16BA offences or to determine the overall sentence that would be appropriate for all the offences and then apply a “discount” for the use of the procedure under s 16BA: AG’s Application at [39]. The use of the s 16BA procedure, however, will generally result in a lower effective sentence than would have been imposed if the offender had been separately sentenced for the s 16BA offences: AG’s Application at [34].

151    The practical effect of the application of those principles to the exercise of the sentencing discretion in this case is essentially twofold.

152    First, although the Court is sentencing each of Aussie Skips and Aussie Recycling for the single offences to which they pleaded guilty, which relate to the making of the respective cartel arrangements with Bingo, the Court may, in the exercise of its sentencing discretion, take into account the offences which Aussie Skips and Aussie Recycling have admitted committing, which relate to giving effect to the arrangements, by increasing the penalties that would otherwise be appropriate for the offence to which each has pleaded guilty. Neither the Prosecutor nor the Aussie Companies submitted that the Court should not, in the exercise of its discretion, take the additional offences into account. Nor were there any considerations which would compel the Court to refuse to take those two offences into account as envisaged by s 16BA of the Crimes Act.

153    Second, the Court is not convicting Aussie Skips and Aussie Recycling, or imposing a discrete punishment, in respect of the additional offences which they have admitted. Nor is the Court required to quantify the effect of taking the two additional offences into account in sentencing for the offences for which they are to be sentenced. It may be expected that the use of the s 16BA procedure will result in a lower effective sentence than would have been imposed if Aussie Skips and Aussie Recycling had been sentenced not only for the offences to which they pleaded guilty, but also for the additional offences. It does not necessarily follow, however, that the effect or impact of taking the two s additional offences into account will necessarily be small.

154    The additional offences, which may conveniently be referred to as the s 16BA offences, involve some additional criminality that should be reflected in the sentences to be imposed in respect of the offences to which Aussie Skips and Aussie Recycling have pleaded guilty. As has already been noted, the s 16BA offences each concern giving effect to the cartel arrangements. The conduct involved in giving effect to the cartel arrangements was separate and discrete from the conduct involved in making the cartel arrangements. It occurred over an almost three-month period from about 24 May to about 31 August 2019. The conduct, like the conduct involved in the making of the cartel arrangements, was deliberate and covert. It gave rise to the benefits, and caused the losses, that have already been considered.

155    While the s 16BA offences involve some additional conduct and criminality, it would be fair to say that the additional conduct and criminality essentially formed part of the course of conduct between, principally, Mr Roussakis on behalf of the Aussie Companies and Mr Tartak on behalf of Bingo. That must and will be borne in mind when determining the extent to which the s 16BA offences increase the penalty that would otherwise be appropriate for the offences to which Aussie Skips and Aussie Recycling have pleaded guilty.

Aussie Skips’s and Aussie Recycling’s subjective circumstances

156    At the time they committed the offences, Aussie Skips and Aussie Recycling were part of a group of private companies ultimately beneficially owned by Mr Roussakis’s parents. Neither Aussie Skips, nor Aussie Recycling, as separate entities, could fairly be described as small, or insignificant, or unsophisticated. Nor could the group of companies of which they formed part. Both Aussie Skips and Aussie Recycling conducted lucrative businesses. They derived substantial revenue and turned over very large sums of money in conducting those businesses. As discussed in more detail later, while neither company recorded a profit in the financial period during which the offences were committed, those results must be considered in the context of the complex financial dealings between the companies in the group of which they formed part. The Aussie Companies’ current financial position is also discussed later.

157    Putting their financial position to one side for the moment, both Aussie Skips and Aussie Recycling were significant participants in the waste management markets in Sydney. As has already been noted, Aussie Skips was the second largest competitor, or had the second largest market share, in the market for collections services in Sydney. Aussie Recycling had approximately 21% of the market capacity to process mixed building and demolition waste in Sydney, based on the capacity of processing facilities. Aussie Skips and Aussie Recycling were, however, considerably smaller and less powerful participants in the relevant markets than Bingo. That issue is addressed later in the context of parity.

Contrition and remorse – s 16A(2)(f) of the Crimes Act

158    Section 16A(2)(f) of the Crimes Act provides that a relevant matter that must be taken into account by the Court is “the degree to which the [offender] has shown contrition for the offence” by either “taking any action to make reparation for any injury, loss or damage resulting from the offence” or “in any other manner”.

159    There is no suggestion that Aussie Skips and Aussie Recycling have taken any action to make reparation for any injury, loss or damage resulting from their offences. It may perhaps be accepted that reparation may have been difficult given the difficulties, discussed earlier, involved in calculating or quantifying the loss or damage resulting from the offences. That said, the Aussie Companies did arrange for Mr Zappacosta to review the invoices for the purpose of calculating the benefits that flowed to the Aussie Companies. It would, in those circumstances, have been open to the Aussie Companies to pay some measure of recompense to its customers who had paid increased prices in line with the cartel arrangements. That has not occurred.

160    There was also no clear or unequivocal apology or statement of contrition and remorse from the directors and effective owners of the Aussie Companies, or current senior management. The Aussie Companies adduced affidavit evidence from the current operations manager and chief financial officer and tendered a statement from the current general manager. While the evidence of those officers addressed the current corporate culture and the steps that were taken, following the offences, to lessen the risk of any reoffending, there is no clear statement of contrition or remorse on behalf of the companies. Mr Roussakis’s letter to the Court contains an expression of his own remorse, though Mr Roussakis is no longer chief executive officer. The nature of Mr Roussakis’s current position with the Aussie Companies is somewhat unclear. Mr Nick Roussakis and Ms Sandra Roussakis, Mr Roussakis’s parents and the current directors of the Aussie Companies also provided a letter to the Court. That letter expresses disappointment in respect of Mr Roussakis’s actions but contains no apology on behalf of the Aussie Companies. Nor is there any other real indication of contrition or remorse.

161    The only clear indication of contrition and remorse on behalf of the Aussie Companies is their early pleas of guilty. The circumstances in which those pleas were entered were addressed earlier in these reasons. The importance of the pleas of guilty alone is discussed next. It may be accepted that the early pleas of guilty are demonstrable of a degree of contrition and remorse on behalf of the companies.

Guilty plea – s 16A(2)(g) of the Crimes Act

162    Section 16A(2)(g) provides that where an offender has pleaded guilty, the Court must have regard to that fact.

163    Factors relevant to the weight that should be given to a guilty plea and the discount that should be given for the guilty plea include: the timing of the guilty plea and whether it was entered at the earliest reasonable opportunity (see Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 at [22]); whether the plea was motivated by contrition or a genuine willingness to facilitate the course of justice, as opposed to being a recognition of the inevitable in the face of a strong prosecution case (see Tyler v The Queen (2007) 173 A Crim R 458; [2007] NSWCCA 247 at [114]); and the extent of any “utilitarian value” in the plea of guilty: Xiao v The Queen (2018) 329 FLR 1; [2018] NSWCCA 4; see also CDPP v WWO at [250]. It is generally considered desirable to quantify the sentence discount for a plea of guilty (Markarian at [24]), though there is no obligation to do so: Tyler at [112]; Xiao at [280]; Commonwealth Director of Public Prosecutions v Vina Money Transfer Pty Ltd (2022) 294 FCR 449; [2022] FCA 665 at [97] (CDPP v Vina Money Transfer).

164    Aussie Skips and Aussie Recycling entered pleas of guilty at the earliest possible stage of the proceeding. As discussed earlier, an indictment charging each of the offenders was first filed on 14 December 2022. The indictment was filed in circumstances where there had been no committal proceedings. There could be little doubt that the Prosecutor proceeded on that basis because the offenders had already indicated that they intended to plead guilty. Within days of the filing of the indictment, the offenders filed a document which confirmed their intention to plead guilty. Formal pleas of guilty were entered in Court at the earliest opportunity.

165    For the reasons already given, the early pleas of guilty may be taken to be a reflection of genuine contrition and a willingness to facilitate the course of justice on the part of both Aussie Skips and Aussie Recycling. There was also a significant utilitarian value in the early pleas of guilty as they avoided the need for any committal proceedings and trial.

166    The appropriate discount for the pleas of guilty is addressed later in these reasons.

Cooperation – s 16A(2)(h) of the Crimes Act

167    Section 16A(2)(h) provides that “the degree to which the [offender] has cooperated with law enforcement agencies in the investigation of the offence or of other offences” is a matter that the Court must take into account.

168    It is effectively common ground that the Aussie Companies did not provide any assistance or cooperation to the ACCC. While there was a faint suggestion that compliance with the s 155 notices issued by the ACCC could constitute cooperation, compliance with such notices is compulsory, not optional or voluntary. Little if any weight should be given to the fact that the notices were complied with.

Character, antecedents, and prospects of rehabilitation – s 16A(2)(m) and (n) of the Crimes Act

169    Section 16A(2)(m) of the Crimes Act relevantly provides that an offender’s character and “antecedents” are relevant matters that must be taken into account. Antecedents, in that context, refers to the offender’s criminal record, if any. Section 16A(2)(n) also specifies “the prospect of rehabilitation” as being a relevant matter.

170    As detailed earlier, Aussie Recycling was recently convicted of a serious work health and safety offence. That conviction occurred after the offending conduct in this matter. The offence is also not of the same character as the offence committed by Aussie Recycling in this matter. It does not, however, follow that the conviction in respect of that other offence can be entirely disregarded. It is generally indicative of a lax compliance culture and a need for deterrence.

171    Aside from that workplace health and safety conviction, Aussie Recycling has not previously been convicted of any offence or been the subject of any relevant proceeding involving a contravention of the Competition and Consumer Act. There is no evidence that Aussie Skips has previously been convicted of any offences or been the subject of any relevant regulatory proceedings. It does not follow from that fact alone that the Aussie Companies should be sentenced on the basis that they were good corporate citizens. Moreover, prior good character is not usually seen to be a particularly weighty consideration when sentencing for offences, like cartel offences, where general deterrence is a significant consideration: CDPP v NYK at [284]; CDPP v K-Line at [385]; CDPP v WWO at [292]; CDPP v Vina Money Transfer at [112]; CDPP v Alkaloids at [189].

172    Aussie Skips must nevertheless be given some credit for its prior good record in respect of relevant regulatory matters. The same can be said in respect of Aussie Recycling, though that credit must be tempered somewhat as a result of its conviction for the workplace health and safety offence.

173    As for rehabilitation, as discussed earlier, the Aussie Companies adduced evidence from their general manager, operations manager, and chief financial officer. That evidence addressed some matters that are relevant to the assessment of the Aussie Companies’ prospects of rehabilitation. It would not, however, be unfair or inaccurate to say that the evidence in respect of that issue was underwhelming.

174    The operations manager, Mr Palmer, asserted that there was a “strong emphasis on fostering a culture of compliance in [the Aussie Companies’] daily operations”. He also referred to the development of a “set of policies and procedures” that guided the Aussie Companies’ work processes. What little information was provided concerning those policies and procedures, however, tended to indicate that there were no policies and procedures that directly dealt with collusive or anti-competitive conduct. Mr Palmer’s evidence also tended to suggest that the only real measure that had been put in place to prevent any reoffending was to ensure that no one person had complete control over pricing decisions. That was also the effect of the evidence of the chief financial officer, Ms Tsihlis. She stated that prices are now “calculated following a structured and collaborative process between the sales, operations, and finance team”.

175    The current means by which prices are set at the Aussie Companies was also addressed in the statement evidence of the current general manager, Ms Philips. Aside from that, Ms Philips referred to the implementation of “policies, practices and procedures to educate staff and develop a strong culture of compliance”. Only one of the policies appeared to be directly relevant to collusive or anti-competitive conduct. Unfortunately, however, it provides little, if any, information or guidance in respect of the sort of anti-competitive conduct that is the focus of this case. The policy is entitled “Anti-Collusion and Bribery Policy”. It is four pages long. It defines a “collusive practice” as “an arrangement between two or more parties designed to achieve an improper purpose, including influencing improperly the actions of another party”. Broadly speaking that may encompass cartel conduct, though the policy contains no further educative material that directly addresses cartel conduct. The policy also amounts to little more than a prohibition of bribery and collusion, a statement that the Aussie Companies will investigate incidents of collusion or bribery, and a statement that a breach will constitute a disciplinary offence. While the policy refers to education and training programs, there is no clear evidence that any training relevant to anti-competitive or cartel policy has ever occurred. Nor is there any evidence concerning the content of any such education or training. It should also be noted that the policy was only implemented in April 2023.

176    The Aussie Companies submitted that they have “excellent prospects of rehabilitation”. The evidence does not support that submission. While it may be accepted that some positive steps have been taken to rehabilitate and minimise the risk of reoffending, I would describe the prospects of rehabilitation as being good, as opposed to excellent. One hopes that, following this judgment, further and more specific steps are taken to educate and train management and staff about the unlawful nature of cartel conduct.

Financial circumstances – s 16C of the Crimes Act

177    Section 16C(1) of the Crimes Act requires the Court to take into account the financial circumstances of an offender before imposing a fine for a federal offence. Section 16C(2) provides, however, that the inability to determine an offender’s financial circumstances does not prevent the Court from imposing a fine. Nor does the offender’s financial circumstances dictate the fine to be imposed. Capacity to pay is only one of many factors to be considered: Jahandideh v The Queen [2014] NSWCCA 178 at [15]-[17]; CDPP v WWO at [297]; see also Darter v Diden (2006) 94 SASR 505; [2006] SASC 152 at [30]. Perhaps more significantly, a “person’s capacity to pay cannot result in the imposition of fines that do not reflect the objective seriousness of the conduct or have the necessary general deterrent effect”: CDPP v Alkaloids at [220] citing Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2006) 65 ATR 547; [2006] QCA 558 at [96]-[98]; Chief Executive Officer of Customs v Jing [2007] NSWSC 1354 at [25]; see also Smith v The Queen (1991) 25 NSWLR 1 at 23-24; Environment Protection Authority v Hanna [2018] NSWLEC 80 at [267].

178    The Aussie Companies submitted that the imposition of a significant fine would have the “opposite effect as to that which is intended” because it would “remove Bingo’s biggest competitor from the market” (emphasis in original). It also submitted that a “significant fine will imperil the business and advantage the new owners of Bingo”. Those submissions appeared to be based on, or rely on, the opinion evidence of Mr Zappacosta that “a combined fine above $1,711,000 would cause Aussie Skips and Aussie Recycling to become insolvent”. The basis of that opinion was that “the business would be unable to operate without sufficient working capital”. Mr Zappacosta calculated that “the combined minimum net working capital requirement” of the companies was $1.4 million. That amount would be “sufficient to meet 3 weeks overhead expenses”.

179    There are a number of difficulties with the Aussie Companies’ submissions based on Mr Zappacosta’s evidence.

180    The first and most fundamental difficulty is that I categorically reject Mr Zappacosta’s evidence that a combined fine of $1,711,000 would cause Aussie Skips and Aussie Recycling to become insolvent. His opinion in that regard was unfounded and unsupported by reliable evidence and reasoning. His evidence was also less than impressive in a number of respects.

181    First, in expressing his opinion concerning insolvency, Mr Zappacosta failed to have regard to the complex financial relationships between the companies within the broader “family” group of companies controlled by or associated with Mr Roussakis’s parents. For convenience I will refer to that group of companies as the “Roussakis Group”.

182    Mr Roussakis agreed in cross-examination that in determining whether a company was insolvent – whether it was unable to pay its debts when they became due and payable – it was necessary to consider the commercial realities of the company. He also agreed, correctly, that in determining whether a company was insolvent, it was necessary to factor in its capacity to borrow money. Yet in expressing his opinion that the Aussie Companies would be rendered insolvent if fined $1,711,000, Mr Zappacosta failed to have regard to the commercial realities and in particular the obvious capacity and ability of the Aussie Companies to borrow money from other companies in the Roussakis Group.

183    Even the most cursory glance at the financial statements of Aussie Skips and Aussie Recycling for the 2021 and 2022 financial years discloses that there were very large flows of funds and “intergroup” loans between Aussie Skips, Aussie Recycling, Aussie Waste, Aussie Commercial, and ELG Transport Pty Ltd. Mr Roussakis confirmed that those companies, including ELG, were all part of the “family group”. It suffices to note only a few of those loans. Aussie Skips’s financial statements for 2022 show that Aussie Skips had loaned $25,093,783 to Aussie Waste and had received a loan of $24,897,631 from Aussie Recycling, though according to Mr Zappacosta they were balances of loan accounts. Similarly, Aussie Recycling’s financial statements for 2022 show that Aussie Recycling had: loaned Aussie Skips $24,897,631; loaned Aussie Commercial $1,043,794; and was owed $22,958,748 by Aussie Waste.

184    When questioned about those loans, Mr Zappacosta was unable to indicate the terms or purposes of those intercompany loans. That was perhaps surprising given that he was the accountant for the companies and had prepared the financial statements. Be that as it may, he assumed that the loans were for “working capital”, by which he appeared to mean that a company within the group would loan money to one of the other companies when that company needed to pay bills as they fell due.

185    Mr Zappacosta agreed that in considering the solvency of Aussie Skips and Aussie Recycling, he was required to take into account whether other companies in the Roussakis Group had the capacity to loan them money. He also agreed that if one of the other companies could lend them money for a period on favourable terms, that would be relevant to whether they were solvent or insolvent. It is abundantly clear, however, that Mr Zappacosta failed to have regard to those considerations when expressing his opinion that Aussie Skips and Aussie Recycling would become insolvent if a large fine was imposed. Somewhat surprisingly, Mr Zappacosta was unable to shed any light on the financial position of some of the other companies in the Roussakis Group that had loaned money to, or received loans from, Aussie Skips and Aussie Recycling, including ELG.

186    Second, Mr Zappacosta’s calculation of the equity positions of Aussie Skips and Aussie Recycling and his calculation of their working capital requirements appeared to be based on some fairly dubious or rubbery figures or accounting entries. It suffices again to give only a few examples.

187    The starting point for Mr Zappacosta’s analysis was the equity position of the two companies taken from their financial statements. Those equity figures were heavily influenced by the very large intercompany loans. Mr Zappacosta also deducted from the equity figure a very large amount, $2,387,980, which was said to represent capitalised legal fees. That figure represented legal fees that had been incurred and paid by Aussie Recycling. Curiously, they were recorded as a receivable in Aussie Recycling’s financial statements, though Mr Zappacosta appeared to suggest that that was an error. Putting that to one side, Mr Zappacosta’s rationale for deducting that figure from the figure representing equity was that it was of a capital nature and could not be expensed for revenue purposes. Even accepting, for the sake of argument, that that was a valid way to account for capitalised legal expenses, it is extremely difficult to see how or why that figure should be deducted from equity for the purposes of calculating working capital requirements, particularly if the analysis was supposed to have regard to commercial realities. As for Mr Zappacosta’s calculation of operating expenses, the figures used by Mr Zappacosta included very large amounts that Aussie Recycling paid to other companies within the Roussakis Group, including $443,653.89 paid to ELG for “Labour” and $500,000 for “Consultancy - Business”. Mr Zappacosta’s evidence seemed to indicate that ELG provided those consultancy services to Aussie Recycling. It is difficult to see why those intercompany expenses could validly be included in Mr Zappacosta’s solvency analysis, particularly if that analysis was meant to have regard to commercial realities.

188    In all the circumstances, I consider Mr Zappacosta’s financial analysis and his insolvency opinion to be highly questionable and unpersuasive. I reject his opinion that the Aussie Companies would be insolvent and unable to continue to carry on business if a combined fine of $1,711,000 was imposed. Even if Mr Zappacosta’s calculation based on equity and working capital requirements was accurate, which I doubt, I would in any event infer that, as a matter commercial reality, other companies within the Roussakis Group would be willing and able to loan Aussie Skip and Aussie Recycling money so as to meet any deficiency in working capital.

189    The second difficulty with the Aussie Companies’ submission that a significant fine would effectively put it out of business is that it ignores the fact that the Aussie Companies could apply to pay any fine by instalments. Mr Zappacosta’s analysis also fails to have regard to that possibility. There is no doubt that an order for payment of a fine by instalments can be made: see CDPP v WWO at [329]; CDPP v Alkaloids at [220]; s 79A(3) of the Competition and Consumer Act.

190    The third difficulty with the Aussie Companies’ submission concerning its financial position is that it fails to have regard to the principles referred to earlier. Those principles include that financial capacity is only one of many relevant factors that the Court must have regard to before imposing a sentence involving a fine and, perhaps more importantly, that a person’s capacity to pay cannot compel the Court to impose a fine which is not of a severity appropriate in all the circumstances of the offence, or which does not constitute adequate punishment. In Morris McMahon & Co Pty Limited v Safework NSW [2019] NSWCCA 36 at [94], it was said that, where there is evidence that a penalty may impose a considerable burden on the offender and potentially trigger insolvency, the result “may be that a lower penalty than that which would otherwise have been imposed will be arrived at”, but “that will not necessarily be the result”.

Deterrence – s 16A(2)(j) and (ja) of the Crimes Act

191    Section 16A(2)(j) of the Crimes Act provides that the Court must have regard to “the deterrent effect that any sentence or order under consideration may have on the [offender]”, and s 16A(2)(ja) provides that the Court must have regard to “the deterrent effect that any sentence or order under consideration may have on other persons”. Those two forms of deterrence are referred to as specific and general deterrence.

192    It is well-accepted that general deterrence is a particularly significant consideration in sentencing for cartel offences. That is so for at least two reasons. The first reason is that cartel conduct is notoriously difficult to detect, investigate, and prosecute. It is well-accepted that general deterrence is a weighty consideration in sentencing for offences which are difficult to detect and investigate: see R v Curtis (No 3) (2016) 114 ACSR 184; [2016] NSWSC 866 at [51]-[53]; R v Hannes (2000) 36 ACSR 72; [2000] NSWCCA 503 at [394]; R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at [423]; see also, in the specific context of cartel contraventions and offences: CDPP v NYK at [271]-[273]; CDPP v K-Line at [274], [357]-[361]; CDPP v WWO at [270]; CDPP v Vina Money Transfer at [110]. The second reason is that cartel conduct is an essentially economic or commercial crime that generally involves the offender weighing up whether the benefit or profit from the conduct is likely to outweigh the risks of detection and punishment. Sentences imposed for such offences should be set so that others who may engage in such a weighing exercise will come to appreciate that the risks are likely to outweigh the benefits and that the likely penalty will be such that it could not be regarded as an acceptable cost of doing business: CDPP v NYK at [211]; CDPP v K-Line at [274], [359]; CDPP v WWO at [271].

193    In relation to specific deterrence, when considering the size of the appropriate fine to impose on a corporation for a cartel offence, it is generally relevant to have regard to the size of the corporation and the financial resources available to it. That is because a fine of, say $1 million, is likely to operate as a significant deterrent in the case of a relatively small company, but is unlikely to have much deterrent effect in the case of a large company with financial resources measuring in the tens or hundreds of millions of dollars: see CDPP v WWO at [273]; see also in the civil penalty context, Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301; [2005] FCA 265 at [39]; Australian Competition and Consumer Commission v Apple Pty Limited [2012] FCA 646 at [38].

194    The Aussie Companies and Mr Roussakis took issue with the proposition that general deterrence was a particularly significant consideration in cartel cases. The basis of their submission in that regard appeared to be that the majority judgment in Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450; [2022] HCA 13, which drew a distinction between the principles that apply in imposing a pecuniary penalty and those that apply when passing a sentence for a criminal offence. It followed, so it was submitted, that it would be unsafe in sentence proceedings to rely on cases concerning pecuniary penalties.

195    That submission has no merit. The judgment in Pattinson concerns the principles to apply in civil penalty cases and says little concerning the principles that apply in criminal cases, including the principles relevant to general deterrence. In any event, the cases cited earlier in support of the proposition that general deterrence is a weighty consideration in sentencing for offences which are difficult to detect and investigate are criminal cases, not civil penalty cases.

196    The more important point to emphasise, in this context is that, while the relative importance of deterrence has been repeatedly referred to in the authorities dealing with sentencing for cartel offences, it should be made clear that s 16A does not create any hierarchy of matters to be considered by the Court and the need for deterrence in such cases should not be seen to operate as a fetter on the Court’s sentencing discretion: Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75 at [98]-[99] (Bell CJ, with whom Gleeson JA and Harrison, Adamson and Dhanji JJ agreed). While deterrence is no doubt an important consideration, all the relevant facts, matters, and circumstances must be considered and weighed when determining the appropriate sentence. That includes, where appropriate, personal mitigating circumstances such as prior good character and prospects for rehabilitation: Totaan at [99]-[100]; Kovacevic v Mills (2000) 76 SASR 404; [2000] SASC 106 at [43].

Need for adequate punishment - s 16A(2)(k) of the Crimes Act

197    The need to impose an adequate punishment in all the circumstances is largely self-evident and requires no elaboration. All the matters that have been considered earlier in these reasons concerning the objective seriousness of the offences and offending conduct and the Aussie Companies’ subjective circumstances must be taken into account in determining the punishment that is adequate in the circumstances.

Totality

198    The totality principle ordinarily applies where an offender is to be sentenced for two or more offences. In simple terms, the totality principle requires the sentencing judge to ensure that, when the individual sentences for each offence are aggregated, the total offence is just and appropriate and reflects the overall criminality: Mill v The Queen (1988) 166 CLR 59 at 62-63; [1988] HCA 70. The totality principle does not strictly apply to the circumstances of this case because Aussie Skips and Aussie Recycling are both to be sentenced for one offence only, albeit that other offences are to be taken into account pursuant to s 16BA of the Crimes Act.

199    There is, however, one sense in which the totality principle applies, essentially by analogy, to the circumstances of this case. The offences separately committed by Aussie Skips and Aussie Recycling essentially arose out of a single course of conduct between Mr Roussakis and Mr Tartak. That is reflected in the fact that Mr Roussakis has been charged with a single offence, albeit a “rolled-up” offence, of making cartel arrangements on behalf of both Aussie Skips and Aussie Recycling. Separate charges were required against Aussie Skips and Aussie Recycling because, while Mr Roussakis was chief executive officer and engaged in a single course of conduct involving both companies, they are nonetheless separate legal entities, albeit that they are related entities and are part of the same family group of companies. In those circumstances, it would be both reasonable and appropriate to ensure that, when the individual sentences imposed on Aussie Skips and Aussie Recycling are, broadly speaking, aggregated, the aggregate or total sentence is just and equitable and reflects the overall criminality involved in the conduct.

Sentences imposed on corporations in other cartel offence cases

200    The sentences that have been imposed in other cases involving cartel offences provide limited assistance, other than to the extent that they establish the relevant sentencing principles. It is doubtful that they could be said to disclose any applicable sentencing pattern nor establish any applicable range of sentences. The previous cases involved offending conduct that was different in many respects from the offending conduct in this matter, and offenders who had materially different subjective circumstances to the Aussie Companies’ subjective circumstances. There were also differences between the maximum penalties that applied in the previous cases. It is nevertheless worth briefly noting the sentences that have been imposed on corporations in the earlier cartel offence cases. The sentences that have previously been imposed on individuals will be considered later in the context of Mr Roussakis’s sentence.

201    The offending conduct in the three shipping cartel cases, CDPP v NYK, CDPP v K-Line, and CDPP v WWO, involved an international cartel between large multi-national shipping companies. The cartel involved the fixing of freight rates in respect of the shipment of motor vehicles, including on routes to and from Australia. Each of the shipping companies pleaded guilty to rolled-up charges of intentionally giving effect to the cartel provisions over relatively lengthy periods of time.

202    In CDPP v NYK, the maximum penalty was $100 million. The sentence imposed was a fine of $25 million, which incorporated a discount of 50% for an early guilty plea and past and future assistance to the authorities. In CDPP v K-Line, the maximum penalty was again $100 million. The fine imposed was $34.5 million, which incorporated a discount just over 28% for an early guilty plea and past assistance. In CDPP v WWO, the maximum penalty was approximately $48.5 million. The fine imposed was $24 million, which incorporated a discount of 20% for an early guilty plea.

203    In CDPP v Alkaloids, the corporate offender, a moderately sized family-owned company, produced a product which was used in pharmaceuticals. Almost all that product was exported. The offender pleaded guilty to two charges of giving effect to a cartel arrangement which had the purpose or effect of fixing the price of its product, limiting production, and allocating or rigging bids. It also pleaded guilty to one charge of attempting to make a cartel arrangement which had the purpose or effect of fixing the price or rigging bids. The maximum penalty for the offences was $10 million. The fines imposed on the offender totalled $1,987,500, incorporating a discount of 25% for its plea of guilty.

204    In CDPP v Vina Money Transfer, the corporate offender operated a money exchange and remittance business. It pleaded guilty to two offences of giving effect to a cartel arrangement which involved charging customers a common exchange rate and price for the remittance services. The maximum penalty for the offences was $10 million. The fines imposed on the offender totalled $1 million. It was accepted that the offender would not be able to pay any fine.

Parity

205    The “parity principle” was summarised in the following terms in CDPP v WWO at [299]:

… That principle requires that like offenders should be treated in a like manner, though allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances: Green v The Queen (2011) 244 CLR 462 at [28]. The notion of consistency does not equate to numerical equivalence: see Hili at [46]-[54]. Rather, equal justice “requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’”: Postiglione at 301. Disparity between the sentences imposed on co-offenders will be justified by differences such as “age, background, criminal history, general character and the part each has played in the relevant criminal conduct”: Green at [31]; see also R v Li [2010] NSWCCA 125; 202 A Crim R 195 at [5].

206    There will almost always be differences between the objective and subjective elements in any case involving multiple offenders. The question, at the sentencing stage (as opposed to the appellate stage) is whether any material differences between the sentences to be imposed on co-offenders are warranted or justifiable having regard to those different objective and subjective elements.

207    In separate proceedings I have convicted Bingo in respect of offences against both s 45AF(1) and s 45AG(1) of the Competition and Consumer Act imposed and imposed a fine of $15,000,000 in respect of each offence. Aussie Skips and Aussie Recycling, on the one hand, and Bingo, on the other, are undoubtedly co-offenders or like offenders. The parity principle undoubtedly applies in those circumstances.

208    The application of the principle is difficult and complex in the circumstances of this case for several reasons.

209    First, as already adverted to, while the Aussie Companies and Bingo were co-offenders, the Prosecutor chose to conduct separate prosecution proceedings against them. Often co-offenders are tried and sentenced together. That was not the case here. The parties in the Bingo proceeding filed written submissions dealing with parity issues well after the sentence hearing in that matter, prompted, no doubt, by submissions made on behalf of the Aussie Companies and Mr Roussakis in these proceedings.

210    Second, the agreed facts upon which Bingo was sentenced, while similar to the agreed facts in this matter, differed in some, albeit fairly minor, respects. It may perhaps be inferred that the differences between the agreed facts was a product of the separate plea negotiations. In considering the parties’ submissions concerning parity, the Court must be astute to ensure that the Aussie Companies and Mr Roussakis are sentenced on the basis of the agreed facts and evidence that was before the Court in their case. It is well recognised that sentences imposed on co-offenders may be based upon different factual findings if the evidence before either the same or a different sentencing judge differs: Gaggioli v The Queen [2014] NSWCCA 246 at [27].

211    Third, for reasons that are unclear, but again appear to have something to do with the respective plea agreements that the Prosecutor entered into with the offenders, the Prosecutor proceeded with different charges against Bingo, as compared to the charges against both Aussie Skips and Aussie Recycling. As already noted, Bingo was sentenced in respect of two offences; one offence of making the cartel arrangements with Aussie Skips and Aussie Recycling and one offence of giving effect to those cartel arrangements. Both Aussie Skips and Aussie Recycling were charged with only one offence of making a cartel arrangement with Bingo, though offences involving the giving effect to of that arrangement were to be taken into account pursuant to s 16BA of the Crimes Act.

212    The parity principle nevertheless applies where co-offenders are not charged with the same offences, despite the practical difficulties in comparing the sentences imposed on co-offenders who have been charged with different crimes: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30]; Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [201]-[203]. There are particular difficulties where one co-offender has been charged with a particular offence whereas the other co-offender was sentenced on the basis that the corresponding offence was to be taken into account pursuant to s 16BA of the Crimes Act or a similar procedure in cognate legislation: see Azari v The Queen [2021] NSWCCA 199 at [76]. Indeed, in Dunn v The Queen [2018] NSWCCA 108 at [16], it was held that the parity principle does not apply in those circumstances because “[t]here is no relevant comparison between a sentence that has been imposed for an offence … and an unspecified increase in a sentence imposed for another offence by reason of the corresponding charge being taken into account” by virtue of a procedure similar to s 16BA of the Crimes Act.

213    Fourth, and significantly, the maximum penalty which applied in respect of both offences to which Bingo pleaded guilty was significantly higher than the maximum penalty faced by Aussie Skips and Aussie Recycling. The maximum penalty for each of the offences to which Bingo pleaded guilty was calculated by reference to Bingo’s turnover in accordance with ss 45AF(3)(c) and 45AG(3)(c) of the Competition and Consumer Act. The total penalty in respect of each offence was $40,200,000 – making a total overall maximum penalty of $80,400,000. The maximum penalty for the offences to which both Aussie Skips and Aussie Recycling pleaded guilty is $10,000,000 because s 45AF(3)(b) and (c) do not apply in the circumstances of their case. Differences between the maximum penalties that apply to the offences committed by co-offenders can and should be taken into account in applying the parity principle. The differences between the applicable maximum penalties may explain the differences between the sentences imposed on the co-offenders: see for example Gaggioli at [36]. Where there are different maximum penalties, the result is that “the relevant comparison is more broad and impressionistic than might otherwise be the case”: Hanley v The Queen [2018] NSWCCA 262 at [56].

214    Even putting those complications to one side, in this case there are some material differences between the objective seriousness of the offences committed by the co-offenders and some material differences between their subjective circumstances. Those differences must be considered when it comes to ensuring that there is no marked or unwarranted disparity between the sentences imposed such as might give rise to a justifiable sense of grievance.

215    In relation to the objective seriousness of the offending, the offences committed by Bingo were objectively more serious because it was not only the instigator of the cartel arrangements, through Mr Tartak, but also a significantly larger corporation with a much larger market share and therefore more market power. While the Aussie Companies were not reluctant or unenthusiastic participants, it does not follow that the Aussie Companies’ criminality is as serious as that of the instigator. As for Bingo’s size and market power, while that is also an important subjective circumstance, it is also relevant in assessing the criminality involved in the offending. It is generally more serious for a larger public company with significant market power to instigate cartel conduct than it is for a smaller private company to agree to participate in that cartel conduct.

216    In relation to subjective circumstances, the main difference between the Aussie Companies and Bingo is their size and respective financial position. Bingo converted from a public company to a proprietary limited company on 28 July 2022. It remains, however, a large and profitable company with very sizeable assets. It is also part of an extremely large and profitable corporate group. There is no issue about its capacity to pay a large fine. Aussie Skips and Aussie Recycling are much smaller companies than Bingo. While they are also part of a larger corporate group, consisting of a number of proprietary limited companies ultimately owned by Mr Roussakis’s parents, the limited information concerning the financial position of the group would suggest that it is nowhere near as large and profitable as the Bingo group. While I have rejected some of Mr Zappacosta’s evidence, there was essentially no dispute about his comparison of the respective financial positions of Bingo and the Aussie Companies. Moreover, while I have rejected Mr Zappacosta’s opinion concerning the potential that the Aussie Companies will be rendered insolvent if a large fine is imposed, I accept that there are some constraints on the Aussie Companies’ capacity to pay a very large fine.

217    There are, however, some aspects of Bingo’s subjective circumstances which are more favourable than the Aussie Companies’ subjective circumstances. The Aussie Companies’ evidence concerning contrition and remorse and the steps that they have taken to rehabilitate and prevent any future offending was far less compelling that the evidence adduced by Bingo concerning those matters. Bingo also cooperated with the ACCC to a certain extent. That is reflected in the larger discount applied in Bingo’s case. Finally, unlike Aussie Recycling, Bingo had not been convicted of any offence, though that it is a relatively minor consideration given the nature of the offence committed by Aussie Recycling, which was of a different nature to the offence under consideration in this case.

218    As complicated as the exercise may be, I have endeavoured to ensure that there is no marked disparity between the sentences imposed on the Aussie Companies and Bingo and that the different sentences are explicable on the basis of the different charges, the different maximum penalties, the differences in the objective seriousness of their offending and the differences between their subjective circumstances. Needless to say, I have also endeavoured to ensure that the differences between the respective sentences do not gives rise to any justifiable sense of grievance on the part of either the Aussie Companies or Bingo.

219    The differences between the objective and subjective elements of the respective offences committed by Mr Roussakis, on the one hand, and Mr Tartak, on the other, will be considered separately in the context of the reasoning concerning the sentence to be imposed on Mr Roussakis.

The appropriate sentence for Aussie Skips and Aussie Recycling

220    The Prosecutor submitted that, “[h]aving regard to the applicable principles, in particular the need for general deterrence, the relevant objective and subjective factors and the maximum penalty”, the monetary penalty to be imposed on the Aussie Companies “should be significant”.

221    For its part, the Aussie Companies submitted that the fines imposed should be less than the fines imposed in CDPP v Alkaloids. Indeed, it submitted that the fine should be less than $112,500, that being the fine imposed in respect of one of the charges in CDPP v Alkaloids. The basis of that submission appeared to be that the offences committed by Aussie Skips and Aussie Recycling were less objectively serious than the offences committed by the corporate offender in CDPP v Alkaloids, in particular because the period of offending in this case was shorter.

222    That submission is rejected.

223    It would be erroneous and contrary to sentencing principles to sentence the Aussie Companies by starting with the sentence imposed in respect of one offence in another case (here, the fine imposed in respect of one offence in CDPP v Alkaloids) and then, by comparing and contrasting the facts and circumstances in that other case, determining that the sentence imposed in this case should be no more than the sentence imposed in the other case. For the reasons given earlier, the sentences that have been imposed in other cases involving cartel offences, including CDPP v Alkaloids, provide limited assistance in determining the appropriate sentences in this case, other than to the extent that they establish the relevant sentencing principles. The sentences imposed in the other cases involved different combinations of offences, offending conduct that was different in many respects from the offending conduct in this matter and offenders who had materially different subjective circumstances to the Aussie Companies’ subjective circumstances.

224    It may be accepted that the offending conduct in CDPP v Alkaloids was more serious in some respects than the Aussie Companies’ offending conduct, in particular because there were a number of cartel arrangements which were given effect to over a much lengthier period. By the same token, there are some elements of the offending in this case that make it more serious than in CDPP v Alkaloids, including the nature of the relevant markets, the impact on Australian consumers of the relevant services and the fact that the offending conduct involved the actions of the most senior company officers. The Aussie Companies’ submissions based on CDPP v Alkaloids also completely ignores the different subjective circumstances of the offender in that case. In any event, I do not consider it to be appropriate or fruitful to endeavour to arrive at the appropriate sentence in this matter by reasoning backwards from sentences imposed in other cases.

225    The facts and matters which are relevant and must be considered in fixing the appropriate sentence have been discussed at length earlier in this judgment. They include: the seriousness of the offences and offending conduct having regard to the nature, duration and scale of the cartel arrangements; the deliberate and covert nature of the conduct involved; the seniority of the officer involved in making the arrangements; the benefits that it may be inferred were likely to have been derived from the offences; the loss and damage, albeit largely unquantifiable loss or damage, that it may be inferred was likely to have been caused by the offences; the Aussie Companies’ contrition and remorse reflected in the early pleas of guilty; the Aussie Companies’ good prospects of rehabilitation; the need for the sentence to be imposed to have a deterrent effect on the Aussie Companies and others in a like position that might offend in the future; the Aussie Companies’ financial position and capacity to pay; and the Aussie Companies’ subjective circumstances generally. It is also necessary to take into account the s 16BA offences and have regard to the maximum penalties. All those matters must be weighed in the balance in determining the appropriate penalty.

226    I have determined that it is appropriate in all the circumstances to impose a fine of $1,750,000 on both Aussie Skips and Aussie Recycling. I have arrived at that figure in the following way. The starting point is that fines of $3,000,000 would be appropriate for the offence committed by Aussie Skips. A fine of $3,000,000 would also be an appropriate starting point for the offence committed by Aussie Recycling. I then apply a discount of 25% having regard to the early pleas of guilty. That results in fines of $2,250,000 for each of the offences committed by Aussie Skips and Aussie Recycling. It is appropriate in all the circumstances to moderate the fines having regard to the totality principle, which as explained earlier applies by analogy to the circumstances of this case given that in many respects Aussie Skips and Aussie Recycling, while separate legal entities, nevertheless operated as a single entity. The appropriate reduction to take into account totality is $500,000 in respect of each offence. The appropriate sentence for the offence committed by both Aussie Skips is therefore $1,750,000. The appropriate sentence for the offence committed by Aussie Recycling is also $1,750,000. The effect is a combined fine of $3,500,000 for the Aussie Companies. I have exposed the method by which the appropriate fines were calculated so as to provide transparency, not because I consider that sentencing is a mathematical exercise.

227    I recognise that the fines imposed on Aussie Skips and Aussie Recycling (and the combined fine) are significantly less than the fine imposed on Bingo. As explained earlier in the context of the discussion concerning parity, the difference may be explained on the basis of the differences between the offences (including s 16BA offences) in the two cases, the different applicable maximum penalties, the differences, albeit not substantial, between the objective seriousness of the offending conduct, and the different subjective circumstances, including the size of the respective corporations and their capacity to pay the fines imposed.

THE SENTENCE TO BE IMPOSED ON MR ROUSSAKIS

228    It is possible to address the sentence to be imposed on Mr Roussakis in somewhat briefer terms because many of the relevant matters, particularly those relating to the nature and seriousness of his offence and offending conduct, have already been addressed in the context of arriving at the sentences for Aussie Skips and Aussie Recycling. It is, however, necessary to deal at some length with Mr Roussakis’s subjective circumstances which compel a degree of leniency.

Differences between the Aussie Companies’ offences and Mr Roussakis’s offences

229    Before addressing the objective seriousness of the offence committed by Mr Roussakis and his subjective circumstances, it is important to highlight the differences between the offences for which Aussie Skips and Aussie Recycling are to be sentenced and the offence for which Mr Roussakis is to be sentenced.

230    The offence to which Mr Roussakis has pleaded guilty is, effectively, a “rolled-up” offence of aiding and abetting both Aussie Skips and Aussie Recycling to make cartel arrangements with Bingo. It is a rolled-up offence because it includes conduct which, strictly speaking, is capable of constituting two separate and discrete offences: an offence of aiding and abetting Aussie Skips to make a cartel arrangement and an offence of aiding and abetting Aussie Recycling to make a cartel arrangement.

231    The correct approach to take when imposing a sentence for a rolled-up offence was outlined as follows in CDPP v K-Line at [270]:

In sentencing a rolled-up charge, the Court is required to assess the criminality of an offender’s conduct as particularised. The issue for the Court on sentence is the criminality disclosed by the offence, not the number of charges: R v Knight [2004] NSWCCA 145 at [25]-[26]. The more contraventions or episodes of criminality that form part of the rolled-up charge, the more objectively serious the offence is likely to be: R v Richard [2011] NSWSC 866 at [65(f)]; R v Glynatsis [2013] NSWCCA 131; 230 A Crim R 99 at [66]; R v De Leeuw [2015] NSWCCA 183 at [116]. That said, the maximum penalty for the rolled-up charge is the maximum penalty for one offence, not the aggregate of the penalties for what could have been charged as separate offences: R v Richard at [105]; R v Donald [2013] NSWCCA 238 at [85].

232    The Prosecutor no doubt considered that it was appropriate to proceed with a rolled-up charge against Mr Roussakis because, while his conduct was capable of constituting two offences, the two offences arose out of a single course of conduct. In summary, both arrangements were made in the course of the meetings and WhatsApp messages between Mr Roussakis and Mr Tartak between 20 and 24 May 2019. Those meetings and communications effectively constituted a single course of conduct. Mr Tartak and Mr Roussakis did not have separate meetings and communications in respect of the two arrangements. It follows that, while it is appropriate to approach Mr Roussakis’s offence on the basis that it is more objectively serious because it involves two cartel arrangements which could have been charged as separate offences, that is not a particularly weighty consideration. That is because the two cartel arrangements arose out of a single course of conduct.

233    The offence which Mr Roussakis has asked the Court to take into account pursuant to s 16BA of the Crimes Act is also a rolled-up offence. That is because it involves Mr Roussakis aiding and abetting Aussie Skips and Aussie Recycling to give effect to the cartel arrangements that they had made with Bingo. Mr Roussakis’s conduct in that regard could, strictly speaking, have sounded in two offences. Once again, however, the Prosecutor has elected to proceed on the basis of a rolled-up offence, no doubt because Mr Roussakis’s conduct in aiding and abetting both Aussie Skips and Aussie Recycling was a single course of conduct. Nevertheless, in taking this offence into account pursuant to s 16BA of the Crimes Act, the Court should apply the principles concerning rolled-up offences referred to earlier.

The objective seriousness of the offence

234    It is unnecessary to repeat what was said earlier in these reasons concerning the objective seriousness of the offence committed by Mr Roussakis and the matters specified in s 16A(2)(a), (c) and (e) of the Crimes Act. The offending conduct which gave rise to the offences committed by Aussie Skips and Aussie Recycling was essentially the offending conduct engaged in by Mr Roussakis. It is readily apparent that it was Mr Roussakis who caused Aussie Skips and Aussie Recycling to make the cartel arrangements with Bingo. There is no sound basis upon which it could be concluded that Mr Roussakis’s culpability, as aider and abettor, is somehow less than Aussie Skips and Aussie Recycling’s culpability as principal offenders.

235    Aussie Skips and Aussie Recycling were relatively large companies and Mr Tartak was their most senior officer. Mr Roussakis’s offending conduct was covert and deliberate. He undoubtedly knew that what he was causing Aussie Skips and Aussie Recycling to do was wrong. That is no doubt why he did what he did in a covert fashion.

236    The cartel arrangements in question were undoubtedly significant and it may readily be inferred that Mr Roussakis knew that to be the case. The cartel arrangement effectively stifled and distorted the price competition in respect of both collections services provided by Bingo and Aussie Skips, and processing services provided by Bingo and Aussie Recycling, in Sydney. The market for those services was substantial and lucrative, including for Aussie Skips and Aussie Recycling. The revenue that Aussie Skips and Aussie Recycling derived from the provision of those services in Sydney was substantial.

237    As discussed earlier in the context of the offences committed by Aussie Skips and Aussie Recycling, there could be no doubt that the companies benefited in material ways from the cartel arrangements. The benefits were not limited to the financial benefits resulting from the higher prices charged by Aussie Skips and Aussie Recycling pursuant to the arrangements. They also benefited from the arrangements because they were able to maintain their higher prices without exposing themselves to the full risk of losing customers to Bingo and perhaps other competitors.

238    It is also clear that the cartel arrangements caused loss and damage, though it is difficult to precisely identify or quantify that loss or damage. The fact is that Aussie Skips increased its prices for collections services and that there was at the very least a real risk that those increased prices under the cartel arrangement would have an impact on the prices charged by other service providers in that market. Bingo also maintained its increased prices for collections services. There was a real chance that some customers of Aussie Skips and Bingo in Sydney would pay more than they otherwise would have for collections services. Likewise Aussie Recycling increased its prices for processing services and there was at the very least a real risk that those increased prices under the arrangement would have an impact on the prices charged by other service providers in that market. Bingo also maintained its increased prices for processing services. There was a real chance that some customers of Aussie Recycling and Bingo in Sydney would pay more than they otherwise would have for processing services. More significantly, for present purposes, Mr Roussakis well-knew that the cartel arrangements would have the price effects just referred to.

239    There could be no doubt that the offence committed by Mr Roussakis was objectively very serious.

Other offences - ss 16A(2)(b) and 16BA of the Crimes Act

240    As has already been noted, Mr Roussakis asked the Court to take into account another offence pursuant to s 16BA of the Crimes Act. That other offence is a rolled-up offence of aiding and abetting Aussie Skips and Aussie Recycling to give effect to the cartel arrangements they had made with Bingo.

241    The applicable principles in relation to taking offences into account pursuant to s 16BA of the Crimes Act were discussed earlier in the context of the offences committed by Aussie Skips and Aussie Recycling.

242    The offence that Mr Rousssakis has asked the Court to take into account involves some extra conduct and criminality that should be reflected in the sentence imposed in respect of the offence to which Mr Roussakis has pleaded guilty. Mr Roussakis’s conduct in aiding and abetting Aussie Skips and Aussie Recycling to give effect to the cartel arrangements was separate and additional to his conduct involved in aiding and abetting those companies to make the cartel arrangements. His conduct occurred over an almost three-month period. It was deliberate and covert and give rise to the benefits and caused the losses that have already been considered. It should be noted, however, that as was the case with the s 16BA offences taken into account in the context of the offences committed by Aussie Skips and Aussie Recycling, the conduct involved in the s 16BA offence by Mr Roussakis essentially formed part of an overall course of conduct.

Mr Roussakis’s subjective circumstances

243    Mr Roussakis’s subjective circumstances compel a degree of leniency. They can be addressed in brief terms, though that is not to understate their importance in arriving at the appropriate sentence. The applicable principles in respect of the subjective circumstances have for the most part been addressed earlier in the context of the sentences to be imposed on Aussie Skips and Aussie Recycling.

Character and antecedents – s 16A(2)(m) of the Crimes Act

244    Mr Roussakis has several prior convictions, though they are for offences which are quite different in nature to the offence in question in this matter. Most significantly, he has been convicted of a serious regulatory offence involving workplace safety. His has also been convicted of some more minor summary offences (though in some instances convictions were not recorded) in 2001, 2007, and 2009.

245    Despite those prior convictions, Mr Roussakis is generally regarded to be a man of good character. That is the common theme of the character references tendered on his behalf. Those character references, from Mr Roussakis’s parents, friends, business colleagues and fellow parishioners, indicate that Mr Roussakis is well-respected and trusted in the community. He is seen as caring and compassionate and has supported various charitable endeavours. He is to be given due credit for his good character in that regard.

Contrition – s 16A(2)(f) of the Crimes Act

246    I accept that Mr Roussakis is contrite and remorseful. While Mr Roussakis did not give evidence, he expressed his contrition and remorse in his letter to the Court. The character references also refer to his contrition and remorse. There is no reason to doubt that evidence, or to doubt the genuineness of Mr Roussakis’s contrition. Mr Roussakis’s contrition and remorse is also evidenced by his early plea of guilty.

Prospect of rehabilitation – s 16A(2)(n) of the Crimes Act

247    I am satisfied that the prospects of Mr Roussakis’s rehabilitation are generally good. I also accept that the risk of Mr Roussakis engaging in any further offending conduct, in particular conduct similar to, or of the same nature as, the offending the subject of this proceeding, is low. That is particularly so given that Mr Roussakis is unlikely to be placed in a position where he could engage in similar conduct, at least in the near future. I am also prepared to accept Dr Henderson’s opinion, from a psychological perspective, that the risks of reoffending by Mr Roussakis are very low. As discussed later, however, that is not to say that Mr Roussakis would not benefit from some supervision for a period of time.

Plea of guilty and co-operation – s 16A(2)(g) and (h) of the Crimes Act

248    As discussed earlier, Mr Roussakis entered a plea of guilty to an indictment filed in this Court at the earliest opportunity and without there having been a committal hearing. His early plea reflected his contrition and benefited the community because it avoided not only the need for committal proceedings, but also a potentially lengthy and complex trial. Mr Roussakis did not, however, separately cooperate or assist the authorities in any material way. I will specify the appropriate discount to apply in respect of Mr Roussakis’s plea later in these reasons.

Financial circumstances – s 16C of the Crimes Act

249    There was no direct evidence concerning Mr Roussakis’s financial circumstances. As noted earlier, however, inability to determine an offender’s financial circumstances does not prevent the Court from imposing a fine: s 16C(2) of the Crimes Act. The offender’s capacity to pay is in any event only one of the factors to be taken into account in determining whether the offender should be fined and, if so, what that fine should be.

Deterrence – s 16A(2)(j) and (ja) of the Crimes Act

250    The importance of general deterrence as a consideration in sentencing for cartel offences and applicable principles in respect of deterrence generally have been addressed earlier. It is unnecessary to repeat what was said in that regard in the context of the Aussie Companies’ sentences, save as to note that general deterrence is of as much importance in sentencing an individual offender as it is in sentencing a corporation.

251    As for specific deterrence, for the reasons already given, I consider that the likelihood of Mr Roussakis reoffending is relatively low and his prospect of rehabilitation is good. I take those findings into account in determining the weight that should be given to the need for specific deterrence in the particular circumstances of this case.

Other subjective considerations

252    Three other considerations relevant to Mr Roussakis’s subjective circumstances were revealed by the material that was tendered on his behalf.

253    First, it is relevant to have regard to the evidence of Dr Henderson concerning the incident that occurred when Mr Roussakis was a child and the effect that incident has had on his mental health. I also have had regard to Dr Henderson’s evidence that Mr Roussakis was likely suffering from a major depressive disorder when he engaged in the offending conduct. I give some weight to that evidence in assessing Mr Roussakis’s moral culpability.

254    Second, I also take into account that, as discussed later in these reasons, Mr Roussakis will be disqualified from managing a corporation for a period of five years because of his convictions. It is appropriate to take Mr Roussakis’s disqualification into account when determining the appropriate sentence: see, albeit in somewhat different contexts, Australian Securities and Investments Commission v Wooldridge [2019] FCAFC 172 at [56]-[57]; Tapper v The Queen (1992) 39 FCR 243 at 249. Mr Roussakis’s disqualification, coupled with the fact that he has effectively lost his job as chief executive officer of the Aussie Companies, are factors which are deserving of some weight in determining the appropriate sentence to impose: see CDPP v NYK at [276]-[277]; Commonwealth Director of Public Prosecutions v Joyce [2022] FCA 1423 at [161] (CDPP v Joyce). The fact that Mr Roussakis has suffered a fall from grace and a loss of pride and standing in the community, however, are considerations that are deserving of less weight because they are in effect the inevitable consequences of the offending conduct: Einfeld v The Queen (2010) 200 A Crim R 1; [2010] NSWCCA 87 at [89].

255    Third, the probable effect that the sentence imposed on Mr Roussakis will have on his family is a relevant consideration: s 16A(2)(p) of the Crimes Act. That is so even if there are no exceptional circumstances: Totaan at [93]. Mr Roussakis has a wife and three children, though there was little evidence concerning his family life. While there was no direct evidence concerning his family, it may be accepted that a sentence of imprisonment would have a significant adverse effect on Mr Roussakis’s family.

Sentences imposed on individuals in other cartel cases

256    There have been two other cases where individuals have been sentenced for aiding and abetting, or being knowingly concerned in, the commission of cartel offences by corporations. Both cases resulted in the imposition of sentences of imprisonment. It is useful to briefly consider the offending conduct and the sentences imposed in those cases, though as will be seen, there are material differences between the objective and subjective elements of those cases and this case.

257    As discussed earlier, in CDPP v Vina Money Transfer, the corporate offender was convicted and fined $1 million in respect of two offences of giving effect to cartel arrangements which, broadly speaking, involved charging customers a common exchange rate and price for the remittance services. Four individuals also pleaded guilty to offences involving them being knowingly concerned in giving effect to the cartel arrangements. None of the individual offenders were convicted of any offence of being knowingly concerned in the making of the cartel arrangements.

258    The first of the individual offenders, Van Ngoc Le was convicted of two offences, one of which involved him being knowing concerned in the corporate offender’s offence of giving effect to cartel arrangements over a four-and-a-half-year period. He was a director of the corporate offender. He was sentenced to an effective term of imprisonment of two years and six months, though he was released immediately pursuant to a recognizance release order. The term of imprisonment incorporated a 25% discount for the plea of guilty. There were some subjective circumstances which were considered favourable to the offender and compelled a degree of leniency.

259    The second of the individual offenders, Tony Le, was Van Ngoc Le’s son and an employee of the corporate offender. He was convicted of a single offence of being knowingly concerned in the corporate offender giving effect to a cartel arrangement over a 14-month period, a sentence which incorporated a 25% discount for the guilty plea. He was sentenced to imprisonment for nine months, though again he was released immediately pursuant to a recognizance release order.

260    The third offender, Khai Tran, was a director, employee or agent of one of the other corporate parties to the cartel arrangement. He was convicted of being knowingly concerned in that other party giving effect to a cartel arrangement over an almost three-year period. He was sentenced to imprisonment for a period of one year and seven months, a sentence which incorporated a 25% discount. He was again immediately released pursuant to a recognizance release order.

261    The fourth offender, Thi Huong Nguyen, was an employee or agent of one of the other corporate parties to the cartel arrangement. She was convicted of two offences of being knowingly concerned in that party giving effect to cartel arrangements, one of which was given effect to over an almost three-year period. It was accepted that she had limited awareness that her conduct was unlawful at the time. She had a prior conviction. She was sentenced to imprisonment for an effective term of two years and four months, incorporating a 20% discount for the guilty plea. She was also immediately released on a recognizance release order.

262    It may be accepted that the offences committed by the individual offenders in CDPP v Vina Money Transfer were in some respects more serious than the offending by Mr Roussakis in this matter. In particular, the cartel arrangements in CDPP v Vina Money Transfer were given effect to over a much lengthier period and the corporate offenders operated businesses in suburbs of both Sydney and Melbourne. That said, unlike in Mr Roussakis’s case, the individual offenders in CDPP v Vina Money Transfer were not chief executive officers and were only charged with being knowingly concerned in giving effect to cartel arrangements, as opposed to being knowingly concerned in the making of cartel arrangements. It would also appear that the market affected by the offending in this matter was more substantial and lucrative than the market in question in CDPP v Vina Money Transfer. It is also clear that the subjective circumstances of the individual offenders in CDPP v Vina Money Transfer were substantially different to Mr Roussakis’s subjective circumstances.

263    As discussed earlier, the corporate offender in CDPP v Alkaloids was a moderately sized family-owned company based in Queensland. It was convicted of three cartel offences. Two of the offences were offences of giving effect to a cartel arrangement which had the purpose or effect of fixing the price of its product, limiting production, and allocating or rigging bids. The other offence was an offence of attempting to make a cartel arrangement which had the purpose or effect of fixing the price or rigging bids. The market which was affected by the cartel arrangements was the market for a product which was used in pharmaceuticals. Almost all that product was exported. The cartel conduct was therefore unlikely to have had a significant impact on Australian consumers.

264    Mr Christopher Joyce was the export manager of the corporate offender. He pleaded guilty to three cartel offences: two offences of aiding and abetting the corporate offender to give effect to cartel arrangements, and one offence of aiding and abetting the corporate offender’s attempt to make a cartel arrangement. Mr Joyce also asked the Court to take into account seven offences identified in a schedule under s 16BA of the Crimes Act. Five of those offences were offences of aiding and abetting the corporate offender to make, or in two cases attempt to make, cartel arrangements. Two offences were offences of aiding and abetting the corporate offender to give effect to cartel arrangements.

265    The offences committed by Mr Joyce, in summary, involved multiple cartel arrangements with up to six competitors. Those cartel arrangements were given effect to over a nine-year period. Mr Joyce’s offending conduct was undoubtedly very serious. He had a senior role with the corporate offender and the conduct he engaged in was covert, deliberate and systematic. He was motivated by, among other things, financial benefit. While it was accepted that he felt humiliation and regret, he attempted to minimise his culpability and his evidence was found to be less than candid. Mr Joyce was sentenced to imprisonment for 32 months, a sentence which incorporated a 25% discount for the plea of guilty and assistance. That imprisonment was to be served by way of intensive correction order, the conditions of which included that Mr Joyce perform 400 hours of community service and pay a fine of $50,000.

266    It may again be accepted that the offences committed by Mr Joyce were in some respects more serious than the offending by Mr Roussakis in this matter. Mr Joyce was sentenced for three offences, as opposed to one offence in Mr Roussakis’s case, and seven further offences were taken into account pursuant to s 16BA of the Crimes Act, as opposed to one offence in Mr Roussakis’s case. The cartel arrangements involved more parties and were given effect to over a much lengthier period than those involved in Mr Tartak’s case.

267    Again, however, there are some elements of Mr Roussakis’s offending that are more serious than Mr Joyce’s offending. Mr Roussakis was the chief executive officer of the Aussie Companies, whereas Mr Joyce was simply an officer retained by the company, albeit a fairly senior one. The markets affected by Mr Roussakis’s offending conduct were substantial domestic markets, whereas the markets affected by Mr Joyce’s conduct were mainly overseas given that most of the relevant product was exported.

268    As discussed earlier in the context of the sentence to be imposed on the Aussie Companies, while it is relevant to have regard to the sentences imposed in other cases, it is not particularly useful or helpful to approach the sentencing exercise in respect of Mr Roussakis by comparing and contrasting the facts and circumstances of his case with the facts and circumstances of the other cases.

Parity

269    It is also necessary to have regard to the principles relating to parity, particularly because the Court will also be imposing a sentence on Mr Roussakis’s co-offender, Mr Tartak. The parity principle was discussed earlier. In summary, the Court must avoid any unjustified disparity between the sentences imposed on Mr Roussakis and Mr Tartak. It is necessary to consider, in that regard, whether there are any significant or material differences between the objective circumstances of the offending conduct by Mr Tartak and Mr Roussakis, or any material differences between their respective subjective circumstances, which would warrant or justify the imposition of materially different sentences. It is also relevant to have regard to the different offences to which Mr Roussakis and Mr Tatak are to be sentenced.

270    Some of the difficulties and complexities in applying the parity principle that were discussed earlier in the context of the Aussie Companies’ sentence also apply in the context of the application of the parity principle to the sentences imposed on Mr Roussakis and Mr Tartak.

271    In particular, Mr Roussakis is to be sentenced in respect of only one offence of aiding and abetting Aussie Skips and Aussie Recycling to make cartel arrangements with Bingo, whereas Mr Tartak pleaded guilty to two offences, one of aiding and abetting Bingo to make the cartel arrangement with Aussie Skips and one of aiding and abetting Bingo to give effect to the cartel arrangement with Aussie Skips. Mr Roussakis asked the Court to take into account one other offence pursuant to s 16BA of the Crimes Act, that offence being one of aiding and abetting Aussie Skips and Aussie Recycling to give effect to the cartel arrangements. Mr Tartak, on the other hand, asked the Court to take into account two other offences pursuant to s 16BA of the Crimes Act, those offences being offences of aiding and abetting Bingo to make the cartel arrangement with Aussie Skips and aiding and abetting Bingo to give effect to the cartel arrangement with Aussie Recycling.

272    There are also some material differences between the objective serious of the offending by Mr Roussakis and Mr Tartak and some differences in their subjective circumstances. In relation to the objective seriousness of the offending, as discussed earlier, Mr Tartak was the instigator of the cartel conduct. He was also the chief executive officer of a large public company which had more market power and a significantly higher market share than both Aussie Skips and Aussie Recycling. As for subjective circumstances, unlike Mr Roussakis, Mr Tartak cooperated and provided some assistance to the authorities. He also had no prior convictions.

273    I have endeavoured to ensure that the different sentences to be imposed on Mr Roussakis and Mr Tartak do not give rise to any justifiable sense of grievance and that the different sentences are explicable on the basis of the different offences, the differences in the objective seriousness of their offending and the differences between their subjective circumstances.

The appropriate sentence to impose on Mr Roussakis

274    The Prosecutor submitted that in all the circumstances, and particularly having regard to the inherent and objective seriousness of Mr Roussakis’s offending conduct, a sentence of imprisonment was the only appropriate sentence. The Prosecutor added, however, that she would “not be heard against any submission that an ICO [intensive correction order] with a community service work condition is within the range of available dispositions”. Intensive correction orders are a sentencing option provided by the Crimes (Sentencing Procedure) Act 1999 (NSW) which may, in an appropriate case, be picked up and applied to federal offenders by virtue of s 20AB of the Crimes Act.

275    Mr Roussakis submitted that the Court would not, or could not, be satisfied in the circumstances that no penalty other than imprisonment is appropriate. In his submission, the appropriate sentence was a community correction order, which is a non-custodial alternative provided by the Sentencing Procedure Act. The main basis of that submission was that “shame suffered alone is more than enough deterrent for Mr Roussakis … to never again repeat the conduct”. He also relied on the fact that he is “deeply remorseful” as evidenced by his early plea of guilty and that he is “indisputably a person of good character”. Mr Roussakis also appeared to suggest that his offence was not serious because it “occurred over a very small duration of a matter of months”.

Is imprisonment the only appropriate sentence?

276    The facts, matters, and circumstances that are relevant and must be considered in determining the appropriate sentence to impose on Mr Roussakis have been identified and discussed in detail throughout these reasons. Those facts, matters, and circumstances, broadly speaking, relate to the objective seriousness of the offences committed by Mr Roussakis and to Mr Roussakis’s subjective circumstances, particularly those that mitigate and indicate that he should be afforded a degree of leniency. In determining whether imprisonment is the only appropriate circumstances, it is necessary to consider and weigh all those facts, matters, and circumstances in the balance. It is also necessary to have regard to the sentencing principles to which reference has already been made.

277    Having considered and weighed all the relevant facts, matters, and circumstances, I am satisfied that no sentence other than one involving imprisonment is appropriate in Mr Roussakis’s case. While some of Mr Roussakis’s subjective circumstances compel a degree of leniency, the objective seriousness of his offences are such as to require a sentence of imprisonment.

278    The legislature has seen fit to provide a maximum penalty for cartel offences committed by an individual which includes imprisonment for up to ten years. That reflects how seriously the legislature views cartel offences. There could also be little doubt that the legislature chose to provide penalties which include imprisonment because the prospect of a sentence of imprisonment provides a real and powerful deterrent for would-be cartel offenders. The possibility, if not prospect, of imprisonment would no doubt make officers and employees of other corporations think twice before committing their corporations to cartel arrangements given the possibility, if not prospect, that they may be imprisoned if they do.

279    The cartel offences committed by Mr Roussakis are also objectively very serious offences. Without wishing to unnecessarily repeat what has already been said, Mr Roussakis, as the chief executive officer of not-insubstantial private companies, caused those companies to enter arrangements which included cartel provisions. Those cartel provisions concerned the prices that those companies and their main competitor in the relevant markets would charge for their services. There could be little doubt that the cartel provisions had an impact on price competition in the relevant markets with the result that there was a real chance that certain customers would pay more than they otherwise would have for the relevant services. The markets in question – the markets for collections services and processing services for building and demolition waste in Sydney – were substantial and lucrative markets.

280    It is true, as Mr Rourssakis submitted, that the cartel arrangements were made over a matter of days. They also ceased after only a few months. The direct monetary benefits derived by Aussie Skips and Aussie Recycling from the increased prices charged pursuant to the cartel arrangements were also relatively modest. It does not follow that the offence committed by Mr Roussakis was not serious. The offence is undoubtedly less serious than it would have been if the cartel arrangements had persisted for longer. It does however not follow that the offence were not very serious. The direct monetary benefits from the price rises are also not a true or complete picture of the benefits derived from the offending conduct. The offending conduct also had deleterious effects, including the suppression and distortion of price competition in the markets in question.

281    It is also necessary to have regard to the criminality involved in the offence that Mr Roussakis has requested the Court to have regard to pursuant to s 16BA of the Crimes Act. It is unnecessary to rehearse what has already been said concerning that offence and the manner and means by which it may be taken into account in sentencing Mr Roussakis. It suffices to note that the criminality involved in the offence was also serious, though to an extent it arose out of the course of conduct that gave rise to the offences for which Mr Roussakis is to be sentenced.

282    The seriousness of Mr Roussakis’s offending must be weighed against his subjective circumstances. It may be accepted that Mr Roussakis was generally a man of good character, though he had been convicted of some relative minor offences some time ago, and more recently a serious offence arising from a workplace or industrial accident. He was also well regarded and respected by his colleagues, employees, and friends. It may also be accepted that he is contrite and remorseful. That is reflected in his early plea of guilty. His early plea also had a utilitarian benefit. He has good prospects of rehabilitation and there is a relatively low risk of him reoffending. Any sentence involving imprisonment will have a deleterious effect on his family.

283    As compelling as some of Mr Roussakis’s subjective circumstances may be, I am not persuaded that they outweigh the objective seriousness of his offending such as to warrant or compel the conclusion that some penalty other than imprisonment would or may be appropriate. Rather, I am satisfied that the objective seriousness of Mr Roussakis’s offending and the important deterrent effect of a sentence of imprisonment in the case of cartel offences compel the conclusion that no sentence other than imprisonment would be appropriate in Mr Roussakis’s case. I am not satisfied that the imposition of a fine, even a large fine, would be a sentence of a severity appropriate in all the circumstances. Nor am I satisfied that any non-custodial sentence in Pt 2 Div 3 of the Sentencing Procedure Act that the Court could impose on Mr Tartak by virtue of s 20AB of the Crimes Act would be of a severity appropriate in all the circumstances. In particular, I do not accept that a community correction order would be an appropriately severe penalty.

The appropriate term of the sentence of imprisonment

284    The process of determining the length of the term of imprisonment that should be imposed on Mr Roussakis in respect of the offence again involves considering and weighing the relevant facts, matters, and circumstances and making a value judgment as to the sentence which would be of a severity appropriate in all the circumstances having regard to the established sentencing principles. It is again unnecessary to repeat what has already been said concerning the facts, matters, and circumstances relevant to the objective seriousness of the offence committed by Mr Roussakis and Mr Roussakis’s subjective circumstances.

285    Having considered and weighed all those facts, matters, and circumstances, in my judgment the appropriate sentence of imprisonment to impose in respect of the offence is a sentence of 18 months’ imprisonment. In arriving at that sentence, I have applied a discount of 25% for Mr Roussakis’s early plea of guilty. But for that early plea and assistance, the appropriate sentence would have been two years’ imprisonment.

286    As discussed later, I also propose to impose a fine on Mr Roussakis.

Should the Court make a recognizance release order?

287    Section 19AC of the Crimes Act provides, in effect, that where a sentencing court imposes a sentence of imprisonment on a federal offender the term of which is between six months and three years, the court is required to make a recognizance release order in respect of that sentence unless “the court is satisfied that such an order is not appropriate having regard to … the nature and circumstances of the offence or offences concerned; and … the antecedents of the person”.

288    Section 20(1)(b)(i) of the Crimes Act relevantly provides that “[w]here a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit … sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in [s 20(1)(a)] … either immediately or after the person has served a specified period of imprisonment …”. In determining what recognizance release order should be made, the Court is required to take into account all of the relevant circumstances, including the matters in s 16A(2) of the Crimes Act, as well as the requirement in s 16A(1) that the sentence imposed must be of a severity appropriate in all the circumstances of the offence: see Hili v The Queen at [40]. In determining what period of imprisonment should be served, the sentencing court must have regard to the objective gravity of the offending and general deterrence: Director of Public Prosecutions (Cth) v Page [2006] VSCA 224 at [53]-[54]; CDPP v Vina Money Transfer at [198]; CDPP v Joyce at [187].

289    I do not consider that it would be appropriate to make an order under s 20(1)(b) of the Crimes Act directing that Mr Roussakis be released immediately. That would not be a sentence of a severity appropriate in all of the circumstances of the offence. Indeed, it would be far too lenient in all the circumstances. In arriving at that conclusion, I have had regard to all of the facts, matters, and circumstances, including those that relate to the objective seriousness of the offence and those that relate to Mr Roussakis’s subjective circumstances. In my view, the objective seriousness of the offence and the importance of general deterrence when sentencing for cartel offences makes immediate release under s 20(1)(b) of the Crimes Act inappropriate.

290    I also do not consider that it is appropriate to make a recognizance order under s 20(1)(b) of the Crimes Act directing that Mr Roussakis be released after serving a specified term of imprisonment. That is essentially because I have determined that it would be more appropriate to order that Mr Roussakis serve his sentence of imprisonment by way of an intensive correction order.

Is it appropriate for imprisonment to be served by way of an intensive correction order?

291    I am satisfied that it would be appropriate to make an intensive correction order directing that Mr Roussakis’s sentence of imprisonment be served by way of intensive correction in the community pursuant to s 7 of the Sentencing Procedure Act and s 20AB of the Crimes Act. Section 20AB(1AA)(a)(ix) specifically identifies an order that is known as an “intensive correction order” as being an additional sentencing alternative which is available under s 20AB.

292    A court cannot make, or consider making, an intensive correction order unless and until it has determined that no sentence other than imprisonment is appropriate and has determined the appropriate term of the sentence without regard to the manner in which the sentence will or should be served: Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3 at [62]; Wany v Director of Public Prosecutions (NSW) (2020) 103 NSWLR 620; [2020] NSWCA 318 at [18]; R v Zamagias [2002] NSWCCA 17 at [26]. I have, for the reasons already given, determined that no sentence other than imprisonment is appropriate in Mr Roussakis’s case and have determined the appropriate length or terms of that imprisonment. I have made those determinations without regard to the potential availability of an intensive correction order.

293    The sentencing procedure for intensive correction orders is set out in Pt 5 of the Sentencing Procedure Act. Those procedures are also relevantly picked up by s 20AB of the Crimes Act: Mourtada v The Queen [2021] NSWCCA 211 at [20]; CDPP v Joyce at [168].

294    Section 66(1) of the Sentencing Procedure Act provides that “community safety” is the paramount consideration when determining whether to make an intensive correction order and s 66(2) provides that when considering community safety, the court “is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the risk of reoffending”. That requirement “recognises that: community safety is not achieved by simply incarcerating an offender, but that incarceration may have the opposite effect; and the concept of community safety is linked with considerations of rehabilitation, which is more likely to occur with supervision and access to programs in the community”: CDPP v Joyce at [168] citing R v Pullen (2018) 87 MVR 47; [2018] NSWCCA 264 at [84]; see also Stanley at [83]-[88].

295    Section 67 of the Sentencing Procedure Act contains a list of offences and types of offences in respect of which an intensive correction order is not available as a sentencing option. The offence committed by Mr Roussakis does not fall within that list. Section 68 provides that intensive correction orders are not available where the term of imprisonment exceeds certain specified durations. Those durations relevantly include, where two or more offences are committed, the duration of the term of imprisonment imposed for all the offences exceeds three years. The sentence of imprisonment that I have determined to be appropriate in Mr Roussakis’s case obviously does not exceed three years.

296    In considering whether it is appropriate to make an intensive correction order I have considered the contents of an assessment report in respect of Mr Roussakis prepared by a community corrections officer of Corrective Services NSW: see s 17C and s 69 of the Sentencing Procedure Act. That report, among other things, assessed that there was a low risk of Mr Roussakis reoffending and that Mr Roussakis was suitable to undertake community service work. While the report does not specifically refer to the availability or suitability of an intensive correction order, it may nevertheless be inferred that it is a “relevant assessment report” for the purposes of s 17D(1) of the Sentencing Procedure Act. Even if that was not the case, I am nevertheless satisfied that there is sufficient information before the Court to justify the making of an intensive correction order without obtaining a relevant assessment report: see s 17D(1A) of the Sentencing Procedure Act.

297    My reasons for considering that it is appropriate to make an intensive correction order in Mr Roussakis’s case may be briefly stated. In my view, community safety would be better served by Mr Roussakis serving his sentences in the community subject to supervision and conditions. I am also of the view that an intensive correction order is more likely to address any risk of Mr Roussakis reoffending rather than full-time detention. I consider that both the community and Mr Roussakis would be better served by Mr Roussakis serving his imprisonment by way of intensive correction in the community as opposed to full-time detention.

298    As discussed in detail earlier in these reasons, I am satisfied that there is a low risk of Mr Roussakis reoffending and that Mr Roussakis’s prospects of rehabilitation are good. Mr Roussakis’s prospects of rehabilitation are in my view likely to be enhanced by the standard conditions of an intensive correction order, which are that the offender must not commit any offence and must submit to supervision by a community corrections officer.

299    I also consider that it is appropriate to impose an additional condition that Mr Roussakis perform 300 hours of community service: see s 73A(2)(d) of the Sentencing Procedure Act. I note in that regard, that the assessment report indicates that Community Corrections can provide up to 21 hours of community service work per month. As noted earlier, the assessment report states that Mr Roussakis has been assessed as suitable to undertake community service work: see s 73A(3) of the Sentencing Procedure Act. In my view, the requirement to perform community service work is likely to further enhance Mr Roussakis’s prospects of rehabilitation. The requirement to submit to supervision and engage in community work is likely to cause Mr Roussakis to pause and reflect on his wrongdoing in a way which is positive and likely to deter any future reoffending. I doubt that the same could be said if Mr Roussakis is subject to full-time detention. I doubt that full-time custody would be more likely to positively address any risk that Mr Roussakis might reoffend, particularly given the nature of Mr Roussakis’s offending and his subjective circumstances.

300    I should reiterate that, while Mr Roussakis submitted that the Court could not, or would not, be satisfied that no sentence other than imprisonment would be appropriate in all the circumstances of the case, he did not submit that, if the Court was so satisfied and imposed a term of imprisonment, it would not be open to the Court or appropriate to make an intensive corrections order. The Prosecutor also did not submit that the Court could not, or should not, make an intensive correction order and effectively conceded that the Court would not err if it made such an order.

301    I should also note in that context that, while issues and qualifications have been raised about the availability of intensive correction orders in the exercise of federal jurisdiction (see in particular Mourtada at [15]-[17]), neither party raised any such issues or qualifications. That may well have been because an intensive correction order was made by Abraham J in CDPP v Joyce. In any event, I have proceeded on the basis that there was no issue as to the availability of an intensive correction order in the circumstances of this case.

302    I do not consider that any other special conditions should be imposed under s 73A(2) of the Sentencing Procedure Act.

Imposition of a fine

303    As has already been noted, the maximum penalty for the offence committed by Mr Roussakis is a term of imprisonment not exceeding 10 years, or a fine not exceeding $420,000, or both. In my view, Mr Roussakis should be required to pay a fine in addition to the term of imprisonment to be served by way of intensive corrections order. That is appropriate and necessary to ensure that the overall sentence which is imposed is of a severity appropriate in all the circumstances.

304    Cartel offences are essentially economic crimes. Many economic crimes are motivated by greed, self-interest, and financial gain. While there is no direct evidence that Mr Tartak was motivated by his own financial gain, it may readily be inferred that he was motivated by the Aussie Companies’ economic interests and the indirect benefits he might thereby derive as the Aussie Companies’ chief executive officer. A fine is also often an effective way of deterring economic crimes because it strikes at the heart of the motivation for the offending.

305    There was no evidence concerning Mr Roussakis’s financial circumstances. As discussed earlier, while s 16C(1) of the Crimes Act requires the Court to take into account the financial circumstances of an offender before imposing a fine for a federal offence, s 16C(2) provides that the inability to determine an offender’s financial circumstances does not prevent the Court from imposing a fine. Moreover, Mr Roussakis did not submit that he did not have the financial capacity to pay a fine.

306    I have determined, in all the circumstances, that it is appropriate to fine Mr Roussakis $75,000 in addition to the sentences of imprisonment to be served by way of intensive correction orders. In determining the appropriate amount of the fine, I have taken into account and applied an appropriate discount to reflect Mr Roussakis’s early plea of guilty.

307    I should finally note that I acknowledge that the sentence that I will impose on Mr Roussakis is not quite as severe as the sentence I have decided to impose on Mr Tartak. As discussed earlier in the context of the discussion concerning parity, the difference may be explained on the basis that: Mr Roussakis was charged with only one offence, unlike Mr Tartak who pleaded guilty to two offences; Mr Roussakis asked the Court to take into account only one additional offence pursuant to s 16BA of the Crimes Act; the objective seriousness of the offending conduct in the two cases was different; and the offenders’ subjective circumstances were slightly different.

DISQUALIFICATION

308    The Prosecutor applied for an order pursuant to s 86E of the Competition and Consumer Act disqualifying Mr Roussakis from managing a corporation for a period that the Court considers appropriate. Section 86E provides that the Court can make such an order if satisfied that the person against whom the order is sought has been involved in a contravention of Pt IV of the Act. Part IV of the Act includes the cartel offence provisions. I am in those circumstances satisfied that the Court can make a disqualification order against Mr Roussakis. The only issue is whether the Court should exercise its discretion to make such an order.

309    That issue can be dealt with shortly, particularly because Mr Roussakis did not oppose the making of a disqualification order. The primary purpose of a disqualification order is to protect the public, though it has also been said that disqualification orders can be imposed by way of deterrence and punishment: Australian Competition and Consumer Commission v Renegade Gas Pty Ltd (trading as Supagas NSW) [2014] FCA 1135 at [90]-[94]. The facts or circumstances that may be relevant to whether a disqualification order should be made include: the nature of the contraventions in question; the risks to the public if, in light of the contraventions, the defendant is permitted to manage a corporation; the interests of shareholders, creditors, and employees of any corporation managed by the defendant; the character of the defendant and his or her honesty and competence; and, any hardship to the defendant and their business interests that would follow from a disqualification order: see Renegade Gas at [95]-[96] citing Commissioner for Corporate Affairs (WA) v Ekamper (1987) 12 ACLR 519 at 525.

310    The facts and circumstances of this matter are such that it is appropriate for the Court to exercise its discretion in favour of making a disqualification order against Mr Roussakis for a period of five years. There are sound reasons to conclude that a disqualification order is appropriate in order to protect the public from any risk that Mr Roussakis may be involved in future contraventions if permitted to continue to manage corporations.

311    The offence committed by Mr Roussakis was undoubtedly serious and involved a serious departure from the appropriate duties and standards that should be observed by senior managers of corporations. Mr Roussakis unilaterally committed the Aussie Companies to unlawful anticompetitive arrangements in circumstances where, it may be inferred, he was aware of the unlawful nature of the arrangements. While I accept that Mr Roussakis is contrite, the risks of him reoffending are relatively low, and his prospects of rehabilitation are good, the nature of his offence is such that there is nevertheless a strong need to protect the public by ensuring that he is unable to occupy any management position for a period of time. That is a powerful consideration which weighs in favour of making a disqualification order.

312    Mr Roussakis did not point to any consideration which weighed against the making of a disqualification order. He is apparently no longer the chief executive officer of the Aussie Companies and there is no reason to believe that the shareholders (ultimately his parents), creditors, and employees of Ausie and related companies would be worse off if a disqualification order was made against Mr Roussakis. While I accept that a disqualification order may cause Mr Roussakis some hardship in the future as it may make it more difficult for him to secure employment, the fact that he has been convicted of a cartel offence would in any event most likely make any prospective employer wary of placing Mr Roussakis in a position of responsibility without supervision. I doubt that a disqualification order will add considerably to Mr Roussakis’s difficulties in that regard. I also accept that the difficulties that Mr Roussakis may encounter in securing employment in the future, including by reason of a disqualification order, may result in some hardship to his family. In my view, however, any hardship that may be suffered by Mr Roussakis and his family as a result of a disqualification order is significantly outweighed by the need to protect the public.

313    While previous authorities have noted that a disqualification order may be imposed by way of deterrence and punishment, I doubt that it would be appropriate to make a disqualification order for either of those purposes, particularly if there is no need to protect the public. Punishment and deterrence are objectives or considerations that are highly relevant when determining the appropriate sentences to be imposed on an offender. In my view, however, the predominant, if not only, purpose of a disqualification order is the protection of the public. I do not propose to make the disqualification order for the purpose of punishing or deterring Mr Roussakis. I do not consider that the disqualification order is part of the sentence imposed on him in respect of his offences. As previously indicated, however, in determining the appropriate sentences, I have taken into account that I would be making a disqualification order on the basis that it can be seen as a form of extra-curial punishment.

314    It should also perhaps be noted in this context that the Prosecutor submitted that Mr Roussakis would, in any event, be automatically disqualified from managing a corporation for five years pursuant to s 206B(1)(b) of the Corporations Act 2001 (Cth). The correctness of that submission would depend on whether the offence committed by Mr Roussakis could accurately be categorised as either an offence concerning “the making, or participation in making, of decisions that affect the whole or a substantial part of the business of the corporation”, or an offence concerning “an act that has the capacity to affect significantly the corporation’s financial standing” or as an offence involving dishonesty: see s 206B(1)(a)(i) and (ii) and (b)(ii) of the Corporations Act. The offence committed by Mr Roussakis, at first blush at least, would appear to fall into one or more of those categories. The Prosecutor nevertheless sought a disqualification order under s 86E of the Competition and Consumer Act to ensure that the ACCC was given notice of any application that Mr Roussakis might make for leave to manage a corporation pursuant to s 206G of the Corporations Act.

315    I am satisfied that the disqualification of Mr Roussakis from managing corporations is justified and that the appropriate period of disqualification is five years. I accordingly propose to make a disqualification order to that effect pursuant to s 86E of the Competition and Consumer Act.

CONCLUSION AND DISPOSITION

316    Convictions will be entered against Aussie Skips, Aussie Recycling and Mr Roussakis in accordance with their pleas of guilty to the counts in the indictment presented against them.

317    The appropriate sentence to impose on Aussie Skips in respect of the offences it committed is a fine of $1,750,000.

318    The appropriate sentence to impose on Aussie Recycling in respect of the offences it committed is a fine of $1,750,000. The total or aggregate fine against the Aussie Companies is accordingly $3,500,000.

319    The appropriate sentence to impose on Mr Roussakis in respect of the offence he committed is a sentence of imprisonment for 18 months. That sentence is to be served by way of intensive correction in the community, the conditions of which include that he perform 300 hours of community service. Mr Roussakis will also be fined $75,000. Orders will be made to that effect.

320    Finally, it is appropriate to make an order under s 86E of the Competition and Consumer Act disqualifying Mr Roussakis from managing corporations for a period of five years.

Associate:

Dated:    23 February 2024