Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha [2017] FCA 876

Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha [2017] FCA 876

Given the extreme seriousness, duration, and scope of the cartel offence committed by NYK, its deliberate and covert nature, senior management involvement, and effect on the Australian market, but also weighing significant mitigating factors—including contrition, early plea of guilty, extensive cooperation, lack of prior offending, and penalties incurred overseas—a fine of $25 million is appropriate, reflecting a global discount of 50% for plea and cooperation, with the penalty that would have otherwise been imposed being $50 million.

Jurisdiction
Australia
Judgment Date
03 August 2017
Procedural Posture
Criminal / Sentencing After Plea of Guilty
Outcome
Nippon Yusen Kabushiki Kaisha convicted of intentionally giving effect to cartel provisions and fined $25,000,000.
Legal Topics
['cartel Conduct' 'sentencing' 'anticompetitive Behaviour' 'corporate Crime']
['criminal Law' 'competition Law'] ['cartel Conduct' 'sentencing' 'anticompetitive Behaviour' 'corporate Crime']

Case Brief

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Procedural Posture

Criminal / Sentencing After Plea of Guilty

Legal Issues

  1. 1 ["What is the appropriate penalty for the accused's admitted cartel conduct under s 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth)?" 'What are the aggravating and mitigating factors relevant to sentencing a corporation convicted of cartel conduct?']

Ratio Decidendi

Given the extreme seriousness, duration, and scope of the cartel offence committed by NYK, its deliberate and covert nature, senior management involvement, and effect on the Australian market, but also weighing significant mitigating factors—including contrition, early plea of guilty, extensive cooperation, lack of prior offending, and penalties incurred overseas—a fine of $25 million is appropriate, reflecting a global discount of 50% for plea and cooperation, with the penalty that would have otherwise been imposed being $50 million.

Court Disposition

Nippon Yusen Kabushiki Kaisha convicted of intentionally giving effect to cartel provisions and fined $25,000,000.

Orders

  • ['Nippon Yusen Kabushiki Kaisha is convicted of intentionally giving effect to cartel provisions between about 24 July 2009 and about 6 September 2012 in connection with the transport of vehicles to Australia in contravention of s 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth).' 'Nippon Yusen Kabushiki...