Director of Public Prosecutions (Cth) v M & G Vizzarri Pty Ltd
[2022] VCC 894
•10 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00349
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| M & G VIZZARRI PTY LTD |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2022 | |
DATE OF SENTENCE: | 10 June 2022 | |
CASE MAY BE CITED AS: | DPP (Cth) v M & G Vizzarri Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 894 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Allowing unlawful non-citizen to work (rolled up charge) – Allowing lawful citizen to work in breach of a work-related condition – Recklessness – Large company – COVID-19 pandemic – Limited weight given to extra curial punishment – Delay – Aggregate penalty imposed.
Legislation Cited: Migration Act 1958 (Cth) ss 245AB(1), 245AC(1), 493; Crimes Act 1914 (Cth) s 16BA; Sentencing Act 1991 s 6AAA.
Cases Cited:DPP v Kit [2021] VCC 421; The Queen v Simonetta [2017] VCC 2015; DPP v Weybury [2018] VSCA 120; Worboyes v The Queen [2021] VSCA 169; DPP v Pell [2019] VCC 260.
Sentence: Convicted and fined $60,000.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Robinson QC with Mr P Botros | The Commonwealth Director of Public Prosecutions |
| For the Accused | Mr D Gurvich QC with Ms S Joosten | Duffy & Simon |
HIS HONOUR:
Introduction
1M & G Vizzarri Pty Ltd (‘M & G Vizzarri’) has pleaded guilty to:
(a) one charge of allowing an unlawful non-citizen to work, contrary to subsection 245AB(1) of the Migration Act 1958 (Cth) (‘Migration Act’), which, for a body corporate, carries a maximum penalty of $108,000 (Charge 1); and
(b) one charge of allowing a lawful non-citizen to work in breach of a work-related condition, contrary to subsection 245AC(1) of the Migration Act, which, for a body corporate, also carries a maximum penalty of $108,000 (Charge 2).
2M & G Vizzarri has no prior Criminal Record.
Circumstances of the offending
3An Amended Summary of Prosecution Opening for Plea was tendered and may be summarised as follows:
Background
4M & G Vizzarri is a company that was registered on 18 March 1993. Its current directors, Giuseppe Vizzarri (‘Mr Vizzarri’), Anne Marie Vizzarri, Gina Vizzarri and Mario Vizzarri, were each appointed on 19 March 1993. Mr Vizzarri was the managing director and had primary control of M & G Vizzarri.
5M & G Vizzarri operates a large farm which grows produce, including asparagus and broccolini. The farm is located at 460 Koo Wee Rup Rd, in Koo Wee Rup, Victoria.
6On the farm there are several packing sheds which are used to prepare the produce for sale. The farm is not an open to the public point of sale.
7In 2016, M & G Vizzarri employed approximately 100 people in various positions at the farm, including administrative staff, engineers, and cooks. These people were engaged as employees. They were paid a salary and the company withheld PAYG tax from their pay.
8Each season, M & G Vizzarri needed additional farm workers to pick and process their asparagus and broccolini. The number of workers needed varied from season to season, and from day to day within a season.
Visa requirements for working in Australia
9A non-citizen who does not hold a current visa is called an ‘unlawful non-citizen’. Unlawful non-citizens are not entitled to work in Australia. A non-citizen who does hold a current visa is called a ‘lawful non-citizen’. Lawful non-citizens may be entitled to work in Australia depending on the details of their visa. There may be limitations on the amount of work that a lawful non-citizen can undertake. Unlawful non-citizens, and lawful non-citizens who are not entitled to work, are herein referred to as illegal workers.
10The Australian Border Force (‘ABF’) administers the Visa Entitlement Verification Online (‘VEVO’) system. This system contains information about visa holders and the details of their entitlement to work. An employer can register an account with VEVO which allows them to check the visa status and work entitlements of an employee, or prospective employee.
11On 21 September 2015, ABF officers attended M & G Vizzarri’s farm and met with Mr Vizzarri and the general manager, Mr Sybrand Visagie. During the meeting ABF officers informed the two men of the VEVO system and their obligation to check the work entitlements of all employees. The men were also informed that if they used any labour suppliers, they would need to have agreements with them that these checks would be undertaken. Mr Vizzarri and Mr Visagie agreed to look into the VEVO website.
12However, M & G Vizzarri did not engage with the VEVO system until over one year later. On 12 December 2016, the company registered four accounts to conduct VEVO checks.
System of work for engaging illegal workers
13A series of arrangements existed for the performance of work by illegal workers at the farm. The Accused intentionally participated in these arrangements by:
(a) entering into agreements which purported to be for the supply of labour;
(b) paying for the work performed by illegal workers; and
(c) through its employee, Mr Sarith Kit (who was acting within the scope of his actual and apparent authority):
(i)recruiting and co-ordinating illegal workers; and
(ii)directing and supervising illegal workers while they performed work at M & G Vizzarri’s farm.
14M & G Vizzarri entered into agreements with two companies which purported to be for the supply of farm workers to M & G Vizzarri. M & G Vizzarri entered into such contracts with:
(a) V&T Golden Pty Ltd (‘V&T’) on 26 August 2015; and
(b) STN Seven Pty Ltd (‘STN’) on 27 April 2016.
15The contracts provided that:
The Contractor shall supply … sufficient workers on a day to day basis to fulfil [M & G Vizzarri’s] requirements. The number of people provided will reflect the weather conditions daily … The contractor must ensure that all employees or sub-contractors provided to [M & G Vizzarri] is allowed to work in Australia. It is prohibited under the Migration Act 1958 to allow or refer an illegal worker to work.
16However, neither STN nor V&T ever sourced workers for M & G Vizzarri. Rather, additional farm workers were sourced and organised by Mr Kit.
Recruitment of illegal workers
17Mr Kit, who is also known as ‘Lee’, was an employee of M & G Vizzarri and was given the following responsibilities by and reported directly to, the managing director, Mr. Vizzarri. Mr Kit was responsible for:
(a) managing the packing sheds generally;
(b) organising rosters for all workers in the packing sheds;
(c) assigning roles to the workers in the packing sheds;
(d) supervising the quality of work in the packing sheds; and
(e) introducing M & G Vizzarri to companies like STN and V&T.
18Mr Kit had been employed by M & G Vizzarri for over 20 years and was highly regarded as the manager of the packing sheds by Mr Vizzarri. Mr Kit ultimately managed the illegal workers at the farm.
19Illegal workers learnt that there was work available at M & G Vizzarri’s farm through word of mouth in their local community. If they were interested in working, illegal workers would be connected to a ‘driver’ who would pick them up and transport them to the farm. Drivers were responsible for recording each illegal worker’s hours.
20The drivers included Tito Hardian Sukamto, and Agus Yusta Pradnyana. Mr Sukamto and Mr Pradnyana were both hired as drivers by Heru Novandra, on behalf of Mr Kit. Drivers were given a vehicle by Mr Kit or Mr Novandra.
21In addition to ferrying workers to and from the farm, Mr Kit would ask drivers to source more workers from their community as needed. The number of workers needed each day would be determined by Mr Vizzarri (or another employee of M & G Vizzarri), who would communicate the company’s needs to Mr Kit.
22The illegal workers considered Mr Kit to be the boss and Mr Vizzarri to be Mr Kit’s boss. The workers never dealt with anyone else in a management position, other than Mr Kit.
23While he was managing the illegal workers in the packing sheds, Mr Kit was acting within the actual and apparent scope of his employment with M & G Vizzarri.
Payment to the workers
24Mr Kit provided drivers with timesheets and made them responsible for keeping track of the attendance of each of the workers they had driven. Drivers did this by assigning a number to each of the workers in their vehicle and recording their attendance on the timesheet provided.
25Each week on Wednesday, drivers would provide the timesheets to Mr Kit, or another person who assisted him, such as Mr Novandra. Mr Kit would use these documents to calculate how much each worker was owed. He maintained a spreadsheet of these calculations.
26The illegal workers were paid less than the award rate applicable at the time. The pay rate for illegal workers was $14 per hour for females, $15 per hour for males and $18-$20 per hour for drivers. Some drivers received a loading of around $10 per day for each worker they brought. Workers were charged $10 per day for transport to the farm.
27Once Mr Kit calculated the total wages for the illegal workers that week, an invoice was created for payment by M & G Vizzarri to either STN or V&T. The invoices did not identify the illegal workers. Rather they stated only the total hours worked that week and the hourly rate. For instance, ‘Asparagus shed hours 4772.25 @ $21.00’. The hourly rate paid by M & G Vizzarri was higher than the hourly rate paid to the illegal workers. The difference was retained by Mr Kit and other people who facilitated the payment through STN and V&T.
28The director of STN is Theany Taing. The director of V&T Golden is Tek Vannath. Neither STN nor V&T had any involvement with sourcing illegal workers for M & G Vizzarri. Neither company:
(a) recruited or supplied workers for M & G Vizzarri;
(b) was involved in the transport of workers to M & G Vizzarri;
(c) recorded working hours or calculated wages owed for the work performed for M & G Vizzarri; or
(d) held any records relating to any of the illegal workers.
29On Wednesdays Mr Kit would calculate the wages, and the invoice to M & G Vizzarri would be created. On Thursdays, M & G Vizzarri would transfer by Electronic Fund Transfer to the bank account which had been opened by STN or V&T, a sum in the amount as invoiced. Cash would then be withdrawn against the sum credited by M & G Vizzarri’s transfer to the bank and provided to Mr Kit. Mr Kit would use the timesheets to calculate the wages due to the individual shed workers for time worked and then make up the cash pay envelopes using the cash delivered to him. The pay envelopes were addressed as per the numbers on the time sheets provided by the drivers. On Friday, Mr Kit would give the envelopes to the drivers who would distribute them to workers.
Recklessness as to visa status
30As to the fault element of knowingly or recklessly engaging in the prohibited conduct, the case is put on the basis of recklessness.
31At all relevant times, Mr Vizzarri was aware that:
(a) there were significant problems with use of subcontract labour working in the sheds;
(b) after entry of an agreement with a labour hire firm, Mr Vizzarri didn’t see them again and that historically many such firms were no longer extant. Accordingly, he knew the risk the labour hire firm would not honour any obligation to provide lawful workers;
(c) there was a requirement that non-citizens needed visa entitlement to work;
(d) M & G Vizzarri could conduct checks as to the legitimacy of shed workers through the VEVO system; and
(e) no such system was put in place as part of the work system.
32The visa status and work entitlement of illegal workers were not checked by Mr Kit, Mr Vizzarri, STN, V&T nor by any other staff member or contractor employed or engaged by M & G Vizzarri.
33Mr Kit was reckless as to whether the workers were illegal workers because:
(a) he was aware of the circumstances through which illegal workers came to work at the packing sheds;
(b) he was aware that the illegal workers were not genuinely employed by STN, V&T or any other contractor;
(c) he was aware that the illegal workers were paid cash in the circumstances outline above and that no proper or adequate records of such were kept; and
(d) he was aware that neither he nor anyone else checked the visa status of the illegal workers.
34Mr Kit was, by the managing director Mr Vizzarri, placed in charge of running the packing shed and was permitted by Mr Vizzarri and continued to be permitted to conduct his duties as described above.
35On 2 December 2016, ABF officers and the Australian Federal Police attended the Accused’s farm to execute search warrants. The following unlawful non-citizens were working at the farm that day:
(a) Tito Hardian Sukamto;
(b) Agus Yusta Pradnyana;
(c) Francesca Juis;
(d) Djoko Adi Koeswanto;
(e) Dwi Erma Yanti;
(f) Ika Budi Lestari;
(g) Rahmat Bin Rashid; and
(h) Yoke Lam Wong.
36It is these eight workers that are the subject of Charge 1 on the indictment, allowing an unlawful non-citizen to work.
37A lawful non-citizen, Fitri, was also located working at the farm. She was on a bridging visa with conditions that she did not work, and she was in breach of that condition solely because of the work performed at M & G Vizzarri’s farm. It is this worker that is the subject of Charge 2 on the indictment, allowing a lawful non-citizen to work in breach of a work related condition.
38Invoices addressed to M & G Vizzarri from STN and V&T were located at Mr Kit’s home. This included an invoice from STN for $244,962.58 for the week ending 30 November 2016. M & G Vizzarri paid that invoice in full on 1 December 2016.
39During the search warrant on 2 December 2016, ABF seized envelopes containing cash from a vehicle at the farm. Amounts and worker numbers were written on the front of each envelope. Completed timesheets were also located in a vehicle.
Work in previous seasons
40The illegal workers at M & G Vizzarri’s farm were allocated the following worker numbers:
#
Worker
Worker number
1
Tito Hardian Sukamto
601
2
Agus Yusta Pradnyana
602
3
Francesca Juis
656
41Timesheets in the same format as those given to drivers were located at:
(a) the office at M & G Vizzarri’s farm;
(b) three vehicles parked at the farm;
(c) Mr Kit’s home; and
(d) Mr Vizzarri’s home.
42The timesheets show that each of the workers listed in the table above had performed work for M & G Vizzarri on earlier occasions. Namely:
(a) Tito Hardian Sukamto had previously worked for M & G Vizzarri between:
(i)17 August 2015 and 2 December 2015 (s 16BA schedule);
(ii)3 March 2016 and 20 April 2016 (Charge 1); and
(iii)3 November 2016 and 1 December 2016 (Charge 1).
(b) Agus Yusta Pradnyana had previously worked for M & G Vizzarri between:
(i)3 September 2015 and 2 December 2015 (s 16BA schedule);
(ii)10 March 2016 and 20 April 2016 (Charge 1); and
(iii)3 November 2016 and 1 December 2016 (Charge 1).
(c) Francesca Juis had previously worked for M & G Vizzarri between 14 November 2016 and 1 December 2016 (Charge 1).
43Each of the workers listed above was an unlawful non-citizen during the specified periods.
Interviews
44Mr Vizzarri and Mrs Anne Vizzarri were interviewed and made admissions. Both are members of the board of directors of M & G Vizzarri, and the admissions made by each were on behalf of the company.
45Among other things, Mr Vizzarri made the following admissions on behalf of M & G Vizzarri:
(a) Mr Kit had ‘been involved with [them] for about 15 to 18 years’. He ran and supervised the pack house. Mr Vizzarri stated:
(i)‘Well, Sarith is sort of my contact with the well, it's probably no longer Cambodian anymore. There seems to be many other different – different nationalities around at this stage…Well, his role as a supervisor is checking grades, putting people in place, communicating with people because we find that, you know, even if they do speak English, they won’t’; and
(ii)‘He’s my communicator and he’s also involved in – because he’s of the area he’s from etcetera, where there’s a large community of, say, contractors or labour there, he’s my connection to the contractors.’
(b) Mr Kit introduced the contractors. They would come in for a job interview and say how many people they could supply. The office checked the company registration, WorkCover policy etc. Mr Vizzarri stated : ‘…they sign, we shake hands and… we don’t see those people again.’
(c) Mr Kit arranged the rosters for workers. Each day, orders were received and if extra people were needed, Mr Vizzarri (or another employee) told Mr Kit.
(d) At the start of every season, M & G Vizzarri offered to put workers on the books. Mr Vizzarri stated: ‘Unfortunately, the uptake is not high – so they prefer to work for the contractor system’.
(e) When asked how the labour was sourced, Mr Vizzarri stated:
(i)‘…I’m very aware there’s a huge issue Australia-wide round this sort of thing. I started working on it in 2009/10. I’ve made – well, we now bring in about, you know, 190, 200 people to… through a, shall I say, more – well, we’ll say… there’s a – I’ve got, I’ve got to be very careful of what I’m saying… Because my knowledge is one thing.… I’m the biggest probably advocate in Australia of getting the system out in the open so it can be discussed and dealt with… ‘There’s thousands and thousands and thousands of these – whatever you want to call them. I’m not going to use the word. You know, I have a business to run. I have debts. I’ve put a lot more effort in to making the system as clean as possible’; and
(ii)‘We tried to issue contracts that, you know, re visas, re all that sort of thing. We do just about everything we feel we can do to get through a day.’
(f) M & G Vizzarri pays wages for workers by bank deposit after receiving an invoice. M & G Vizzarri pays ‘whatever invoice is presented’.
(g) Workers did not talk directly to Mr Vizzarri, who stated: ‘…whenever they see anybody in a tie, they talk to no one.’
(h) The timesheets provided to M & G Vizzarri by Mr Kit were used to check the correct number of workers. Mr Vizzarri stated:
(i)‘Like I said, the people have got to be counted. We need numbers of people…. And we pay to the appropriate people. We like to see… if we think we’ve got, say, 100 people a day in here… we’ll have a count around every now and again, just in case that they are the right amount… Timesheets. Look, they’re not timesheets. They’re numbers of people… it’s just to get a rough – because we can’t identify a lot of people’; and
(ii)‘We do a head count. That’s about as good as it gets.’
46Among other things, Mrs Anne-Marie Vizzarri made the following admissions on behalf of M & G Vizzarri:
(a) she did not know a lot about M & G Vizzarri’s business;
(b) she thought the illegal workers were ‘above board’;
(c) M & G Vizzarri is a big business and it’s too hard for Mr Vizzarri to tell her every detail. She did not work there, she kept out of it and ran the house;
(d) she was a director, and stated: ‘I’m more like the silent partner. I just sign forms when I get told to sign forms and whatever’. She tried not to read documents and trusted Mr Vizzarri;
(e) Mr Vizzarri ‘runs the show’;
(f) there were a lot of employees, over 100 full time, including about 10 office employees. Carla Vizzarri was one of the office workers;
(g) she had never heard of Mr Kit;
(h) workers reported to various ‘team leaders’ responsible for different areas. Mrs Vizzarri stated:
(i)‘So that's what - like, because I think there's still a lot of Cambodians or Asians in the shed working. So because they don't understand any English really whatsoever, they report to this team leader out there and he more or less runs everything’; and
(ii)‘You know, like, my husband will have nothing to do with the workers in that part of the shed. Like, practically zilch, you know?’
(i) When asked who hired the employees, Ms Vizzarri stated:
(i)‘Well, I- not only my husband. Half of the other workers sometimes say, ‘Oh, well, I've just bought a new bloke on, like, out at the farm.’ You go, ‘Yeah. All right. Try them. See how you go’’; and
(ii)‘We’re fair. We give anybody a go… If you can do it, you can do it. If you can’t you can’t’.
(j) She did not know anything about the visa status of employees at M & G Vizzarri, but she knew some had to get visas;
(k) She did not know when M & G Vizzarri started checking the visa status of employees she stated: ‘I hear my husband say that they've got to get their visas, and we help them, and that's it’;
(l) Regarding the organisation, rostering and payment of some workers, Mrs Vizzarri stated:
(i)‘See, they're people that live in Springvale, and they're not like - - - They're just people that- I don't know- I suppose they're citizens. All I know is those people are people that live down in Springvale and Clayton way, and they come up here to work. They're not coming - they're - they're living here now, those other people’;
(ii)‘Oh, little - little buses. You know, little Kombi - little - they have a person that goes around and picks them up, I think, and brings them all to work’;
(iii)..... what it is it's one bloke that charges, I think, all these - all the employees that come. He charges them, I think, so much a ride each day… And they all come in it. But that's nothing to do with us, as far as I know… It's that team leader- there will be a team leader … and he owns, I think, the - the buses, or a couple of different people own them. One - they own one or two each and then they say, ‘Oh, we want’ – we will know, like, the people down there, and they say, ‘We need an extra five people today.’ They bring them all up’;
(iv)‘But he - Joe lets him, sort of - the team leader do that as his own thing, type of… And as far as I know, they- because I - I'm going back 20 years ago, a guy that worked with us for a long time, he used - he was a driver and he worked in the shed as well, and he used to just charge them $5 each way and bring them, and that just - and then, yeah, and when we needed extra, we would always go to him because he was the one that could speak English…’; and
(v)In relation to organising the buses, Ms Vizzarri stated ‘Organising the buses - like, no, the buses, now, would be for all the ones in the shed, and I could not tell you. Because they're Asian. Half of them don't speak English.’
Nature and gravity of the offending
47Mr Gurvich QC who appeared with Ms Joosten on behalf of M & G Vizzarri, submitted that the circumstances of the offending falls towards the lower end of seriousness, as it did not involve dishonesty or intent. As the fault element in this instance is recklessness, Mr Gurvich further contends that the recklessness ought be considered to be low as the number of illegal workers was minimal given the size of the company and its large workforce.
48Mr Robinson QC who appeared with Mr Botros on behalf of the Commonwealth Director of Public Prosecutions, submitted that the criminality is not at the lower end but rather falls within the middle range. To that end, it was submitted that the offending is not less culpable than that of the individual who was sentenced in relation to this matter on 12 April 2021, Sarith Kit.[1] Mr Kit ran the packing sheds of the company and participated in an arrangement for the performance of work by a substantial number of workers, reckless to their entitlement to work. On the Migration Act offences, Mr Kit was convicted and fined $40,000.
[1] DPP v Kit [2021] VCC 421.
49In support of that submission the prosecution referred the court to s 493 of the Migration Act which states inter alia:
(1) Where, in proceedings for an offence against this Act or the regulations or for a civil penalty order, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a)the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b)that the director, employee or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority shall be taken, for the purposes of a prosecution for an offence against this Act or the regulations or of proceedings for a civil penalty order, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
50It is not disputed that s 493 of the Migration Act is relevant and applicable in this case and therefore the conduct of Mr Kit is, by virtue of that section, the conduct of the company. That said, the charges against the company are limited to nine workers together with two further workers, (taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth) (‘Crimes Act’)), whereas the Migration Act charges that Mr Kit pleaded guilty to related to 89 illegal workers.
51The Court was also referred to the decision of The Queen v Simonetta,[2] a decision of this Court relating to ss 245AC and 245AB breaches. In that decision the defendant, an individual, was sentence on 12 charges to an aggregate fine of $100,000. Mr Gurvich highlighted that the defendant in that case engaged in substantial dishonesty in an attempt to conceal the identities of the illegal workers making the comparison with the accused company in this instance, where there is no allegation of direct dishonesty of the company.
[2] [2017] VCC 2015.
52The accused company is a large company and was, at the time of the warrant, employing some 600 workers including employees and seasonal workers. The company is clearly very experienced in employing a diverse number of employees and had built infrastructure to accommodate the seasonal workers. It was also well aware of systems that could have been utilised to ensure that the seasonal workers were legally able to work in Australia. Thus while there is no evidence of deliberate avoidance of its responsibilities under the Migration Act, in in my view, in all the circumstances the company ought to have known the status of the workers and should have taken steps to ensure that they were complying with the Act. Indeed since the warrant was issued the company was able to easily implement further changes and checks to ensure that all workers are lawful and meeting the requirements of their visas.
53In the circumstances while terms such as ‘midrange’ or ‘lower end of seriousness’ may be problematic when assessing where offending sits within a range[3], in my view the gravity of the offending sits below the midlevel but not at the lower end of seriousness.
[3] DPP v Weybury [2018] VSCA 120, [54].
Sentencing considerations
54As the charges to which M & G Vizzarri has pleaded guilty are Commonwealth charges, I am required to sentence in accordance with Part 1B of the Crimes Act, taking into account those matters listed in s 16A(2) that are relevant and known to the Court.
55I first take into account the company’s plea of guilty. While the plea cannot be considered to be an early plea, it nonetheless still has significant utilitarian value. The trial in this matter was set to run for more than four weeks involving a number of witnesses including utilising overseas video links. As such the plea has saved considerable time and expense and demonstrates a willingness on behalf of the company to facilitate the course of justice.
56Further, as the plea was entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system, it carries additional weight which must be reflected in a further amelioration in sentence.[4]
[4]Worboyes v The Queen [2021] VSCA 169 at [39].
57Turning to the circumstances of the offending company.
58M & G Vizzarri is the largest producer of asparagus and broccolini in Australia employing up to 200 domestic and international employees annually, in addition to approximately 160 contract workers at various times. The company generates associated employment from local regional business including local contractors, manufacturing industries and retail businesses. Through the Seasonal Workers Program (‘SWP’) the company employees workers from the Pacific Islands and Timor Leste. The program is designed to provide employment opportunities in Australia for workers from developing regions.
59It was submitted on behalf of the company that as a result of the warrant executed in December 2016, in June 2017 the company was excluded from the SWP while the matter was investigated. As a result of the company being charged and the delayed criminal process, the company has suffered significant financial loss as they could not rely on the program to source workers. Thus it was submitted that the company had suffered extra curial punishment.
60The concept of extra curial punishment was addressed by Chief Judge Kidd in DPP v Pell,[5] where His Honour noted that while the manner and extent to which extra curial punishment should be taken into account is not settled, it is a matter that is able to be considered in mitigation in certain circumstances. Here, as noted above, the company was fully aware of its obligations and was reckless in relation to caring out checks that would have avoided the risk of employing illegal workers. As such while I accept the long delay in the criminal process has put the status of SWP program on hold, adding to the financial burdens suffered by the company as a result of its conduct, in my view only limited weigh can be given to extra curial punishment in the circumstances.
[5] [2019] VCC 260 at [140]–[148].
61As to delay more specifically, I accept that the delay in this instance is relevant. The warrant was executed in December 2016 and charges were not laid until November 2018. There was then significant delay before the matter came to trial, much of which was due to the pandemic. The delay, while regrettable, is able to be taken into account in the sense that the company has not reoffended in the intervening period and has implemented systems that will ensure that all workers are legal. For similar reasons it was submitted that the company’s prospects of rehabilitation are very good given the company’s long history and its appropriate response after the offending was detected. I accept that submission.
62General deterrence is undoubtedly the paramount sentencing consideration. A message must be conveyed that employers remain vigilant when seeking to employ non-citizens in industries such as the company’s where the risk is high. As to specific deterrence, given the otherwise exemplary character of the company and its response since the offending, in my view specific deterrence should only be given minimal weight.
63While there are two charges on the indictment, the second charge is limited to one worker on one day who was a lawful non-citizen but subject to a non-working condition and in that sense, in isolation it may be considered to be a low level example of that particular charge. Nonetheless, although each charge carries its own maximum penalty, it was not in dispute that an aggregate penalty incorporating both charges would be an appropriate way to dispose of the matter.
64Finally, pursuant to s 16BA of the Crimes Act, I take into account the two occasions where two non-lawful workers were employed in 2015 as outlined above.
Sentence
65Would the representative of M & G Vizzarri please stand.
66On Charge 1, allowing an unlawful non-citizen to work, and Charge 2 allowing a lawful non-citizen to work in breach of a work related condition, M & G Vizzarri is convicted and fined $60,000.
67Pursuant to s 6AAA of the Sentencing Act 1991, if not for the plea of guilty, I would have convicted and fined M & G Vizzarri $100,000.
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