A high level of profit is likely to indicate:
- high culpability in terms of planning and
- a high level of harm in terms of loss caused to victims or the undermining of legitimate businesses
In most situations a high level of gain will be a factor taken in to account at step one – care should be taken to avoid double counting.
Where possible if a financial penalty is imposed it should remove any economic benefit the offender has derived through the commission of the offence including:
- avoided costs;
- operating savings;
- any gain made as a direct result of the offence.
Where the offender is fined, the amount of economic benefit derived from the offence should normally be added to the fine. The fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence; it should not be cheaper to offend than to comply with the law.
Where it is not possible to calculate or estimate the economic benefit, the court may wish to draw on information from the enforcing authorities about the general costs of operating within the law.
When sentencing organisations the fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with the law.