Dragon Pacific Group Pty Ltd v City of Cockburn
[2019] WASC 449
•6 DECEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DRAGON PACIFIC GROUP PTY LTD -v- CITY OF COCKBURN [2019] WASC 449
CORAM: CURTHOYS J
HEARD: 1 AUGUST 2019
DELIVERED : 6 DECEMBER 2019
FILE NO/S: SJA 1033 of 2019
BETWEEN: DRAGON PACIFIC GROUP PTY LTD
Appellant
AND
CITY OF COCKBURN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE P MALONE
File Number : FR 7119 of 2018, FR 7120 of 2018, FR 7127-30 of 2018
Catchwords:
Fine - Food Standards Code - Manifestly excessive
Legislation:
Food Act 2008 (WA), s 22(1)
Result:
Leave to appeal granted
Appeal allowed
Representation:
Counsel:
| Appellant | : | Mr A O Karstaedt |
| Respondent | : | Mr D P Gillett |
Solicitors:
| Appellant | : | James Chong Lawyers |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Chong v City of Mandurah [2013] WASC 470
Golden Eggs Pty Ltd v City of Port Adelaide Enfield [2005] SASC 279
Hudson v Kim Wong Wah [2010] ACTSC 62
Hungry Jacks Pty Ltd v The City of Bayswater [2014] WASC 199
Kaye v Siddiq [2013] ACTSC 62
Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243
Pannacchione v City of Rockingham [2014] WASC 221
Samuels v The State of Western Australia (2005) 30 WAR 473
CURTHOYS J:
Introduction
This is an application for leave to appeal from the decision of a magistrate sitting in the Magistrates Court at Fremantle on 7 February 2019.
The appeal relates to a total fine of $60,000 which the magistrate imposed for six offences against the Food Act 2008 (WA) (the Act), s 22(1). The appellant pleaded guilty.
The offences
The offences were:
Charge No. 1 of 13
That Dragon Pacific Group Pty Ltd (ACN 151 557 836)
On 20 March 2018
At Cockburn Gateway Shopping Centre, 816 Beeliar Drive, Success
Within the district of the City of Cockburn, in relation to the conduct of a food business failed to comply with a requirement of Standard 3.2.2 Clause 6(1)(a) of the Food Standards Code in that when storing food the food business failed to store the food in such a way that it was protected from the likelihood of contamination, contrary to Section 22(1) of the Food Act 2008.
Charge No. 2 of 13
That Dragon Pacific Group Pty Ltd (ACN 151 557 836)
On 20 March 2018
At Cockburn Gateway Shopping Centre, 816 Beeliar Drive, Success
Within the district of the City of Cockburn, in relation to the conduct of a food business failed to comply with a requirement of Standard 3.2.2 Clause 6(2)(a) of the Food Standards Code in that the food business when storing potentially hazardous food failed to store it under temperate control, contrary to Section 22(1) of the Food Act 2008.
Charge No. 10 of 13
That Dragon Pacific Group Pty Ltd (ACN 151 557 836)
Between 20 March 2018 and 7 May 2018, both dates inclusive
At Cockburn Gateway Shopping Centre, 816 Beeliar Drive, Success
Within the district of the City of Cockburn in relation to the conduct of a food business failed to comply with a requirement of Standard 3.2.2 Clause 3(1) of the Food Standards Code in that the food business failed to ensure persons undertaking and supervising food handling operations had skills in food safety and food hygiene matters and knowledge of food safety and food hygiene matters commensurate with their work activities contrary to Section 22(1) of the Food Act 2008.
Charge No. 11 of 13
That Dragon Pacific Group Pty Ltd (ACN 151 557 836)
Between 20 March 2018 and 7 May 2018, both dates inclusive
At Cockburn Gateway Shopping Centre, 816 Beeliar Drive, Success
Within the district of the City of Cockburn in relation to the conduct of a food business failed to comply with a requirement of Standard 3.2.2 Clause 19(1) of the Food Standards Code in that the food premises were not maintained to a standard of cleanliness where there was no accumulation of food waste, dirt and grease, contrary to Section 22(1) of the Food Act 2008.
Charge No. 12 of 13
That Dragon Pacific Group Pty Ltd (ACN 151 557 836)
Between 20 March 2018 and 7 May 2018, both dates inclusive
At Cockburn Gateway Shopping Centre, 816 Beeliar Drive, Success
Within the district of the City of Cockburn in relation to the conduct of a food business failed to comply with a requirement of Standard 3.2.2 Clause 21(1) of the Food Standards Code in that the food business failed to maintain food premises in a good state of repair, contrary to Section 22(1) of the Food Act 2008.
Charge No. 13 of 13
That Dragon Pacific Group Pty Ltd (ACN 151 557 836)
Between 20 March 2018 and 7 May 2018, both dates inclusive
At Cockburn Gateway Shopping Centre, 816 Beeliar Drive, Success
Within the district of the City of Cockburn in relation to the conduct of a food business failed to comply with a requirement of Standard 3.2.2 Clause 24(1)(c) of the Food Standards Code in that the food business failed to take all practicable measures to eradicate and prevent the harbourage of pests on the food premises, contrary to Section 22(1) of the Food Act 2008.
Although there were originally 13 charges only six were proceeded with at the hearing.
Grounds of appeal
The grounds of appeal were:
1.The learned Magistrate imposed a sentence that was manifestly excessive in light of:
(a)the standard of sentences customarily imposed for these types of offences; and
(b)the seriousness of the circumstances of the offending; and
(c)the circumstances of the appellant.
2.The learned Magistrate made an error of law, or of both law and fact, as to the effect of the prescribed maximum penalty and by attaching undue significance to and placing undue emphasis on the maximum penalty, and thereby fettered and failed to property exercise his discretion.
In Hungry Jacks Pty Ltd v The City of Bayswater [2014] WASC 199 Hall J said:
A ground of appeal that alleges that a sentence is manifestly excessive asserts the existence of an implicit error: See Royer v State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319, and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ and Hayne J). A claim of manifest excess depends upon establishing implied error in the type or length of sentence imposed. The implied error that must be established is that a sentence of the nature or length imposed could not have been reached in the proper exercise of sentencing discretion.
In order to determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentences customarily imposed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender: See Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ) [13] ‑ [14].
In considering the above factors, the appellate court should not substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised its discretion in a different manner. It must be established that a sentence of the nature imposed could not have been reached by the sentencing court in the exercise of proper sentencing discretion.[1]
[1] Chong v City of Mandurah [2013] WASC 470.
Totality
Where there are multiple offences regard must also be had to totality principles. As Jenkins J stated in Pannacchione v City of Rockingham [2014] WASC 221:
30.The [totality] principle was described by McLure J, as she then was, with Steytler P and Miller J agreeing, in Roffey v the State of Western Australia [2007] WASCA 246 in the following terms:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201 at 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260) [24] ‑ [26].
31.The reference to the 'crushing' effect of a total sentence is not relevant to a fine, although with a total fine it is necessary to consider the offender's ability to pay the whole of the fine.
Leave to appeal
Section 9 of the Criminal Appeals Act 2004 (WA) provides that leave of the Supreme Court is required for each ground of appeal and that leave to appeal must not be given unless the court is satisfied that the ground has a reasonable prospect of succeeding.
In Samuels v The State of Western Australia (2005) 30 WAR 473, the Supreme Court said that the ground of appeal must have a real prospect of success, bearing in mind that the purpose of s 9 is to weed out unmeritorious appeals.[2]
[2] Samuels [55] - [61].
Relevant legislative provisions
The Act s 22 relevantly states:
(1)A person must comply with any requirement imposed on the person by a provision of the Food Standards Code in relation to the conduct of a food business or to food intended for sale or food for sale.
Penalty:
(a)for an individual - a fine of $50 000;
(b)for a body corporate - a fine of $250 000.
The Food Standards Code means the Australia New Zealand Food Standards Code (the Code) as defined in the Food Standards Australia New Zealand Act 1991 (Cth) and as adopted or incorporated by the regulations (s 8).
Statement of facts
The statement of facts was:
The accused is the proprietor of a food premises known as Dragon Palace located the Cockburn Gateway Shopping Centre.
There are six charges before the court relating to four inspections of the food premises between 20 March 2018 and 7 May 2018.
Charge 1 relates to the failure to store food in a way that it was protected from contamination at the time of the inspection on 20 March 2018. In that regard, cooked ducks and other cooked meat products were being hung above trays in the kitchen where other cooked meat products were being cut up with the result that juices from hanging meat products was dripping onto the trays and meat below.
In addition, partially cooked meat products were being stored uncovered in crates in the cooking area and food preparation areas and uncovered raw ducks were hanging above uncovered crates, bowls and buckets of red meat in the cool room. There were also uncovered bowls of cut up vegetables on the floor beneath the shelving in the cool room and an uncovered tub of tripe was being stored beneath a sink in the kitchen area.
By being uncovered, the food products in the food preparation area and cool room were potentially subject to cross‑contamination as well as contamination from dirt and waste falling from shelves above and from airborne particulates such as dust and from people sneezing and coughing.
Charge 2 relates·to the failure to store potentially hazardous food under temperature control at the time of the inspections on 20 March 2018, 27 April and 7 May. In that regard, at the time of the inspection on 20 March, the cooked and partially cooked meat products which were exposed to contamination in the food preparation area were being stored at room temperature. A bowl of cooked rice was being stored in the kitchen area at 22.4°C and a crate of partially cooked battered meat product was being stored in the kitchen area at a temperature of 17.4°C.
Potentially hazardous foods, such as rice and meat, particularly poultry, should be stored below 5°c or above 60°c to prevent growth of bacteria such as E.coli and Salmonella.
The City wrote to the company following the inspection on 20 March 2018 and gave the company an improvement notice requiring the above issues and cleaning and maintenance issues at the premises to be addressed by 10 April 2018.
In relation to cleanliness and maintenance, the inspecting officer noted there was a build of up food waste and dirt under and around cooking equipment and fridges in the kitchen area.
In relation to maintenance, the officer noted a broken wall tile which required replacement. Where a wall tile is broken or cracked, food waste and dirt can accumulate in the gaps in the tile.
A further inspection was carried out on 10 April 2018.
Once again, the premises were not being maintained to a standard of cleanliness where there was no accumulation of food waste, dirt or grease. In that regard, the dry store area of the premises was particularly unclean with a build‑up of dirt and food waste on shelving which showed there was no regular cleaning regime in place. In addition, chopping boards in the premises were ingrained with mould and dirt.
In relation to the maintenance of the premises, the broken tile observed during the inspection on 20 March had been replaced but the officer noted other maintenance issues such as metal flashing coming away from the wall and gaps in the coving between the floor and walls in the kitchen area. Those maintenance issues resulted in there being gaps and spaces where food waste and dirt could accumulate and pests could enter or hide.
The officer also observed live cockroaches in the dry store area during the inspection on 10 April.
A further letter and improvement notice was sent to the company following the inspection on 10 April requiring improvement by 27 April.
Inspection of the premises by officers of the City on 27 April 2018 revealed continued non‑compliance despite the two previous improvement notices.
Once again, crates of partially cooked meat products were being stored at room temperature under benches in the kitchen area and the premises were not being maintained to the requisite standard of cleanliness and repair. There remained a build‑up of food waste and dirt on shelving in the dry store area and gaps remained in the coving between the floor and walls in the kitchen area.
A final inspection was carried out on 7 May 2018.
On this occasion, boxes of frozen meat products were simply being left in the storage area to thaw with no record as to how long they had been there and without monitoring the temperature of the meat products. Furthermore, there was a crate of meat being stored at 14.6°C in the kitchen area. There was no record as to how long the crate of meat product had been stored out of temperature control.
Charge 10 relates to the failure to ensure persons supervising food handling operations had the necessary skills and knowledge to do so. In that regard, the Manager, Raymond Sun, was not familiar with the requirements of the Food Standards Code. When asked questions about temperature control for food and food preparation procedures, Mr Sun was unable to answer those questions. When asked what was used to take the temperature of food and whether there was a thermometer on site, Mr Sun said he did not know. When asked whether he had any training in running a kitchen or preparing food in Australia, Mr Sun said he had not.
Charge 11 relates to the failure to maintain the premises to a standard of cleanliness during the period of the four inspections. While there was some improvement in the cleanliness of the dry store area at the time of the inspection on 7 May, there was still a lack of cleaning between shelves in that area.
Charge 12 relates to the failure to maintain the food premises in a good state of repair during the period of the four inspections. In that regard, there were broken and chipped tiles, metal flashing coming away from the walls and unsealed gaps between the coving between the floor and walls. Those issues had been highlighted to the company by the date of the second improvement notice given on 13 April 2018.
Charge 13 relates to the failure to take all practicable measures to eradicate pests and prevent the harbourage of pests. In that regard, cockroaches were sighted during the inspection on 10 April 2018. When asked to provide copies of pest treatments during the inspection on 27 April, the Manager could only provide invoices for treatments on 1 February, 1 March and 1 April. All of those invoices contained a recommendation to clean the under floor areas in the kitchen.
Practicable measures which could have been taken by the company during the charge period to eradicate and prevent the harbourage of cockroaches include having further pest treatments after the inspection on 1 April and undertaking the thorough cleaning and maintenance of the premises during the prosecution period.
The maximum penalty prescribed by law for the offence
The appellant submitted:
10.The significance of the maximum prescribed penalty may vary depending on the particular offence provision.
11.In the present matter it is submitted that the learned magistrate placed undue emphasis on, and attached undue significance to the statutory maximum penalty, namely $250,000 per offence.
12.It is suggested that the position in this matter is analogous, for example, to the offence created by s 304(2) of the Criminal Code (WA), 'act or omission causing bodily harm or danger'. The maximum statutory penalty for that offence is imprisonment for 20 years.
13.In relation to s 304(2), in The State of Western Australia v Wallam [2008] WASCA 117, McLure JA (Miller JA and Murray AJA concurring) held:
As s 304(2) covers a wide variety of conduct, the seriousness of which may vary greatly, little can be drawn from the fact that the maximum penalty is 20 years' imprisonment [42].
14.The same can be said of s 22(1) of the Food Act. That section relates, and the stated maximum penalty applies, to numerous requirements imposed by different provisions of the Food Standards Code. There appear to be in excess of 50 such requirements covering a very wide variety of conduct, as well as numerous sub‑requirements. Each of these many requirements in turn can apply to a myriad of different facts and circumstances. Clearly, therefore, little can be drawn from the amount of the statutory maximum penalty.
15.The most that can be said, as stated, with respect correctly, by Hall J in Hungry Jacks Pty Ltd at [15], is that the maximum penalties contained in the Food Act 'indicate the potential seriousness of offences of this type' (emphasis added).
16.It is also noted in this regard that in Hostile Takeovers Pty Ltd v Hudson [2016] ACTSC 185, which involved breaches of s 27(1) of the Food Act 2001 (ACT), Murrell CJ said in relation to the maximum penalty prescribed for breaches of s 27(1) of the Food Act 2001 (ACT):
I note that these fines apply to all breaches of the Food Code, covering a vast range of types of offending, all levels of seriousness in relation to particular offending conduct, and that the corporate fines extend to corporations of all sizes [4].
17.It is therefore submitted that the maximum penalty in s 22(1) provides little guide as to what the appropriate penalty is in a particular case.
18.The learned magistrate made several references to the statutory maximum penalty of $250,000 for each offence, and as being $1.5 million for the six offences. In doing so, it is submitted that his Honour erred in giving undue emphasis and attaching undue significance to the maximum penalty and erroneously fettered his discretion.
19.At T 12 his Honour referred to the fact that the maximum penalty was $250,000, and then said at [7], 'And so with the six charges it's 1.5 million'.
20.At T 13[4] his Honour said, among other things:
[I]f you impose a penalty that doesn't pay any credence, if you like, to the sort of maximums that apply, it's effectively a failure to exercise jurisdiction. So to state the blindly obvious, if I was to impose a fine of $1,000 in the face of a maximum of $250,000, it would basically be a failure to exercise jurisdiction. It would be so ridiculous as to, you know, be a failure. That's as how I would see it.
His Honour said in effect therefore that the sentence imposed had to be proportionate to the maximum penalty, and otherwise would constitute a failure to exercise jurisdiction.
It is submitted that his Honour erred in this regard. A fine of $1,000, or even less, might well be appropriate in a given case involving a contravention of s 22(1). See for example the matter involving Joe Muggs Café, which appears on the Department of Health 'Publication of Names of Offenders List' (see attached), the convicted corporation being Mahaveer Balaji Pty Ltd, where for contraventions under cl 6(2)(a), 22(a) and 14(1)(a) of the Food Standards Code, a global fine of $900 was imposed on 30 November 2018.
21.At T 13[5] the prosecution submitted that, 'Parliament has made it clear that Parliament considers these offences to be very serious in nature, hence the maximum penalty'.
His Honour agreed with this at T 13[6] in saying: 'Yes. Yes'.
It is submitted that it is incorrect to conclude from the statutory maximum penalty that the legislature regards the specific offences in any particular case to be 'very serious in nature'. The true position is that Parliament has considered that some offences under s 22(1) may be very serious in nature; not that offences under s 22(1) are per se very serious.
His Honour also emphasised the maximum penalties at T 17[1] and 17[3]. At T 17(1) his Honour referred to an amount of $18,000 expended by the appellant and said that this was 'nothing' 'where you're facing on six charges 1.5 million'.
It is submitted that at T 17[3] his Honour was also mistaken in devaluing the significance of the amounts expended by the company in rectifying matters, by contrasting these amounts with the 'really serious penalties' the appellant was facing.
23.At T 24[7], immediately before his Honour said that he was foreshadowing a global fine of $60,000, his Honour said, ' … as I indicated at the outset, there's obviously potentially $1.5 million that applies'.
24.Then again at T 24[7], after his Honour's reference to a fine of $60,000, he said, 'I appreciate that's a lot of money … but when one looks at, you know, $1.5 million, 60,000 - even in terms of if you divide it up between each charge it's $10,000 for each charge where $250,000 is the maximum, so it's right down the bottom end anyway'. Again, it is submitted his Honour erred in having undue regard to the maximum statutory penalty in determining the fine to impose, resulting in an excessive sentence.
25.Again, at T 26[2] his Honour referred to the potential maximum fine of $250,000 per charge and a total of $1.5 million.
Then at T 26[3] his Honour further adverted to the statutory maximum penalty in setting the fine at $60,000.
26.It is submitted that his Honour's undue emphasis on the maximum statutory penalty explains at least in part why his Honour imposed a sentence that was excessive.
The respondent submitted:
10.The maximum penalty for each offence was a fine of $250,000. As a result, the total maximum penalty for the 6 offences was $1.5 million.
11.The respondent submits that the Magistrate correctly identified and took into account the maximum penalty for each of the offences. At par 11 of the Appellant's Outline of Submissions (Appellant's Submissions), the appellant submits 'the learned Magistrate placed undue emphasis on and attached undue significance to the statutory maximum penalty'.
11.However, the appellant has not alleged as a ground of appeal that the learned magistrate erred by placing too much weight on a relevant consideration.
12.Furthermore, and in any event, any failure to give too little or much weight to a relevant consideration does not give rise to an appealable error unless the failure results in a failure to exercise the court's discretion.[3]
[3] Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243 [44].
The learned magistrate did place emphasis on the maximum penalty. However, the magistrate's comments need to be seen in context. At page 24 of the transcript his Honour said, 'there's obviously potentially $1.5 million that applies'. His Honour was well aware that $1.5 million was the potential maximum. A magistrate is not required to refer to the 'potential' maximum every time he refers to the maximum. His Honour correctly stated the maximum. He was not required to do any more.
The learned magistrate was well aware that the potential penalty covered a wide range of circumstances. At page 13 he stated, 'the breaches come in all shapes and sizes'.
The maximum penalty is one of the factors that are required to be taken into account in fixing a penalty. The appellant's statement that the maximum penalty in s 22(1) 'provides little guide as to what the appropriate penalty is in a particular case' is apt to mislead. The maximum penalty is a matter that a judicial officer must take into account. It is but one of a number of factors required to be taken into account in fixing a penalty.
The learned magistrate did not err as alleged in ground 2.
The learned magistrate did not attach undue significance to nor place undue emphasis on the maximum penalty. His discretion did not miscarry on this ground.
Sentences customarily imposed for that type of offence
Appeals against sentence for breaches of the Food Act by reason of a failure to comply with the Food Standards Code seldom come before this Court. This makes the learned magistrate's job more difficult in the absence of any guidance as to the sentences customarily imposed for the type of offence.
In Hungry Jacks Pty Ltd v The City of Bayswater [2014] WASC 199 the appellant corporation sold onion rings containing a piece of steel thread which the consumer almost swallowed. The appellant pleaded not guilty and was convicted of one offence after a two‑day trial. The magistrate imposed a fine of $75,000. On appeal the fine was reduced to $40,000 for one offence.
In Pannacchione v City of Rockingham, fines totalling $48,000 were imposed by Jenkins J when resentencing an individual, as opposed to a corporate, offender. In doing so, her Honour considered a total fine of $40,000 was appropriate for 10 offences occurring on one day, five of which were identical.[4] The $40,000 penalty constituted 8% of the maximum available penalty for an individual.
[4] Pannacchione [63].
The appellant also relied on decisions from the Australian Capital Territory and South Australia: Kaye v Siddiq [2013] ACTSC 62; Hudson v Kim Wong Wah [2010] ACTSC 62; and Golden Eggs Pty Ltd v City of Port Adelaide Enfield [2005] SASC 279.
However, as Hall J stated in Hungry Jacks at [19]
However, those cases involved a range of offences and factual circumstances. Some involved prosecution appeals. They are not necessarily representative of the range of sentences imposed for offences of this type. Ultimately they afford little assistance in determining whether the fine here was manifestly excessive.
The Department of Health's 'Publication of Names of Offenders' does not provide factual details of the offences, nor whether the offender pleaded the offender pleaded guilty or not guilty. As Jenkins J noted in Pannacchione, at [39] the lack of details provide limited assistance in determining whether the fine was manifestly excessive. I have not dealt with the appellant's extensive oral submissions on this topic because the publication is of negligible value.
The position I find myself in is very similar to that Jenkins J identified in Pannacchione:
... I refer to the standard of sentences customarily imposed for offences of this type. The parties agree that there is no tariff for a single offence of this type and comparisons between individual offences is not easy because of the wide variation in factual circumstances relating to each offence and the offender. Further, because of the number of offences and the appeal being against the total fine imposed, it is impossible to identify a sufficient number of similar cases which reveal the standard of sentences customarily imposed for a group of offences of this type. There is a further difficulty, in that the vast majority of cases that there have been involving similar breaches of the Act have not been reviewed on appeal. [36]
The level of seriousness of the circumstances of the offending
The appellant submitted:
27.The prosecution identified as an aggravating factor that the offending occurred over a period of time when there were four inspections and despite two improvement notices having been given. The prosecution submitted that the reason the matters were the subject of charges was that 'there wasn't the requisite level of attention directed to these issues when they were brought to the attention of the company'.
34.A further matter in mitigation, as the prosecution noted at T 16[4], was that the premises were now, at the time of the hearing, operating in accordance with the requisite standards under the Food Standards Code.
35.In this regard, the appellant explained that all the matters the subject of complaint and the charges had been rectified and that the company had taken all the appropriate steps and had incurred significant costs.
36.It was explained that the company had engaged a food and health safety consultant to provide advice and to assist with implementing changes in the food safety practices of the business. The expert consultant's fees and legal fees had had been just over $20,000.
37.With respect to charge 3, concerning the manager, Mr Sun, not having the required skills and knowledge, it was noted that Mr Sun, who had experience as a waiter and bar tender, had only been promoted to the position in March 2018, so at the time of the inspections he was newly promoted.
It was further explained that the manager had now worked very closely with the expert that was engaged by the company and had undergone training, and that the manager now had the requisite skills and that there was compliance with the required standard.
38.It was submitted by way of explanation that the manager's first language was not English, and there was some misunderstanding as to what he was required to do under the improvement notices. For example, with regard to pest control, he did not understand that a pest treatment was required after the second inspection in April and believed that what was required was that he show the inspector that there was a monthly pest control treatment, which is what he did, and that scheduled monthly pest treatments continue. The scheduled monthly treatment occurred after the inspection on 1 May and had been occurring every month. It is noted that on the advice of the expert consultant that had been engaged by the appellant, the company changed its pest control company to Allpest WA.
39.It was explained on behalf of the appellant in relation to count 3 that the kitchen staff had a lot of training in the Food Standards and that the company had really tried to ensure that they had the requisite training. It was, however, acknowledged by the appellant, and it is, of course, accepted that it was not satisfactory for the manager or supervisor not to have the requisite skills and knowledge.
40.By way of submission it was explained that the company had spent some $18,000, prior to the period to which the charges relate, in providing training for the staff, in relation to food safety legislation and food hygiene requirements.
41.It was also explained that the main issue raised by the health inspectors was in relation to the dry store rather than the food preparation areas, and that in respect of this there were steps taken after each inspection to rectify the dry store to comply with the standards, and that each time there had been some improvement, but not enough improvement to the standard required by the health officers. It was also pointed out that one of the items the subject of complaint, a board, was not used to prepare food, but was used to prop up other cleaning boards and to provide a barrier but had in any event now been disposed of.
42.It was further explained that the business now required its staff to complete cleaning records; that with regard to the maintenance issue, that all repairs had been attended to and that photographs of the repairs had been provided to the court.
43.It was pointed out that this was the first time the company or any of its related restaurants had been the subject of prosecution, and that a determined effort had been made to rectify matters and to ensure that this did not occur again. The inspectors were satisfied with the changes that had been implemented, and the prosecution confirmed that the restaurant was now complaint.
The respondent submitted:
25.In relation to the fact that the appellant had subsequently complied with the Act, the respondent submits that subsequent compliance is of little mitigatory value as it did not occur until after the prosecution proceedings had been commenced.
26.Furthermore, the respondent submits the fact that the appellant had subsequently taken steps to comply with the Act, while a relevant consideration, does not negate the need for a significant penalty to be imposed where the efficacy of the legislation depends not only upon formal enforcement but also upon a pervasive culture of general observance and respect for the underlying communal purpose such as, in this instance, public health.
29.The respondent accepts the appellant took steps to comply with the Act after the prosecution proceedings were commenced. However, for the reasons set out above, the respondent submits that subsequent and belated compliance with the Act does not negate the need for a significant penalty to be imposed.
The quid pro quo of being able to carry on a business involving the health and safety of consumers is that the business comply with the law. It can hardly be said to be a factor in mitigation that a party takes steps to comply with their lawful obligations. A failure to do so would result in further prosecution. The fact that the restaurant is now compliant simply means that the restaurant has now met its legal obligations.
The respondent's submissions on seriousness
The respondent submitted:
23.The respondent submits the offending in this instance was serious for the following reasons -
(a)The offending continued over the course of four inspections on four separate days over a seven‑week period;
(b)The appellant continued to contravene the Act despite being given a written warning and improvement notice after the inspection on 20 March 2018 and a further written warning and improvement notice after the inspection on 10 April 2018;
(c)The appellant continued to store potential hazardous food outside of temperature control at the time of the inspection on 7 May 2018 despite the obvious risk to public health and despite being given written warnings and improvement notices;
(d)The appellant failed to take all practicable measures to eradicate and prevent the harbourage of pests despite the obvious risk to public health and being given written warnings and improvement notices;
(e)The appellant failed to properly clean and maintain the premises despite being given written warnings and improvement notices;
(f)The appellant had previously been given improvement notices in 2015 and 2016 in relation to similar issues; and
(g)The appellant had been given infringement notices in October 2016 for offences under the Act.
24.The respondent submits there is a need for significant penalties where an offender continues to offend despite having been put on notice of the offence, particularly where the offence relates to a commercial activity.
In relation to the seriousness of the offences, the appellant drew the court's attention to some steps taken by the appellant to comply with the legislation. Almost all of the remedial steps were taken after the prosecution had commenced.
In Pannacchione at [44] Jenkins J identified the following factors as relevant in determining the seriousness of offences of this nature:
(1)the impact or potential impact of each offence upon the health of customers;
(2)whether the offence is an isolated one or part of a systemic failure on behalf of the offender;
(3)the immediate causes of the offence and the extent to which there has been a failure to adopt appropriate standards and processes for food handling; and
(4)the importance of imposing a penalty that will act as a meaningful deterrent and an encouragement to maintain appropriate standards.
The impact or potential impact of each offence upon the health of customers.
In relation to charge 1 the food products in the food preparation area and cool room were potentially subject to cross‑contamination as well as contamination from dirt and waste falling from shelves above and from airborne particulates such as dust and from people sneezing and coughing. This had the potential to directly impact on the health of customers.
In relation to charge 2 the failure to store food under temperature control exposed that food to the risk of the growth of bacteria such as e.coli and salmonella. This had the potential to directly impact seriously on the health of customers.
In relation to charge 10 Mr Sun's inability to answer questions and food temperature control and food preparation procedures meant that there was no effective regime to ensure that the legislation was complied with. This indirectly exposed customers to a health risk if the employees who did not have training did not perform their duties properly.
In relation to charge 11 the failure to maintain the cleanliness of the premises had the potential to impact on the health of customers.
In relation to charge 12 the failure to maintain the premises in a good state of repair had the potential to impact on the health of customers. The repair of one broken tile during the course of four inspections hardly represents any real attempt to remedy the problems.
In relation to charge 13 the failure to take all practicable measures to eradicate pests and prevent the harbourage of pests this had the potential to impact the health of customers, in particular through the spread of disease and infection through the premises.
Whether the offence is an isolated one or part of a systemic failure on behalf of the offender.
The respondent carried out four inspections between 20 March 2018 and 7 May 2018 before instituting proceedings. It cannot be said that the offences were isolated. It also needs to be borne in mind that the appellant had received notices in 2015 and 2016.
The offences in Pannacchione occurred over a shorter period of time, 1 May to 8 May, and did not reveal a systematic failure in the same way as the appellant's conduct.
The failure to of the appellant to comply in any substantial manner with the respondent's notices before proceedings were commenced reflect a need for personal deterrence even though the issues have now been remedied. It should not have required the commencement of a prosecution to cause the appellant to remedy its breaches of the Food Standards Code.
The immediate causes of the offence and the extent to which there has been a failure to adopt appropriate standards and processes for food handling
All of the offences were easily preventable. All of the offences arose from a failure to adopt appropriate standards and processes for food handling. Proper cleanliness, repair and pest control are matters that cry out for attention even without legislation. Practicable measures could have been taken by the appellant in response to the infringement notices.
The importance of imposing a penalty that will act as a meaningful deterrent and an encouragement to maintain appropriate standards.
A failure to comply with appropriate food standards has the potential to severely impact on the health of customers. It is essential that the penalty is sufficient to ensure that the appropriate standards are complied with.
As Jenkins J stated in Pannacchione:
[32]As to the object of general deterrence, which is relevant to sentencing in cases of this type, in Hungry Jacks, Hall J said:
The objects of the Act include ensuring that food for sale is both safe and suitable for human consumption: See s 3. This was expanded upon in the explanatory memorandum to the Food Bill 2005 that became the Act. The explanatory memorandum states:
'The purpose of the Bill is to improve the existing food regulatory system by providing for a risk based approach to the management of the handling and sale of food for human consumption, together with robust enforcement tools to protect Western Australia's food chain.'
There then follows a paragraph which contains the particular purposes of the Bill, one of which is to provide for more significant penalties reflecting the seriousness of a failure to provide safe food. Given those stated intentions, cases under earlier provisions that attracted lower maximum penalties are of little assistance [16] ‑ [17].
[33]There is no doubt that a fine imposed for a single offence or multiple offences relating to food handling must send a message to operators of food businesses that significant penalties will be imposed if they fail to comply with the Code and the Act. Members of the Western Australian community place considerable trust in the operators of food businesses to handle and store food in a safe manner so that the health of the community is protected from food borne disease. Individuals can only protect themselves to a limited extent from contaminated food which is offered for sale to them. They cannot access the behind the counter food storage and handling areas to see for themselves whether they meet the required safety standards. So the community relies not only on the operators to comply with the Standard and the Act, but also on the regulatory system to deter and prevent breaches of the Standard and the Act.
A fine of $60,000 was not necessary to ensure that the appropriate standards are complied with.
In Hungry Jacks Pty Ltd at [28] Hall J stated that convictions of offences of this type impact upon corporate reputation, particularly for a food retailer, and this in itself has deterrent impact. As Hall J further stated this does not reduce the seriousness of the offence.
The learned magistrate did not expressly recognise this factor in his reasons.
The impact on reputation is a factor to be taken into account but the fine must nevertheless reflect the seriousness of the conduct. I accept that the publication of the offences and adverse publicity has the potential to impact on the reputation of the appellant.
General deterrence is an important factor in assessing a penalty under the Food Act.
The level of seriousness is akin to the offences in Pannacchione rather than the offence in Hungry Jacks. The offences are somewhat less serious that in Pannacchione, in that Pannacchione involved seafood rather than poultry.
Overlap in the facts relating to different charges
The appellant submitted that there was a significant degree of overlap in the facts in relation to the charges in respect pest control (charge 6), and maintenance and cleanliness (charge 4). It is also noted that there was some overlap in the facts relating to charges 1 and 2.
I do not accept that there was overlap in the charges. Preventing contamination is distinct from temperature control. Pest control, maintenance and cleanliness are distinct aspects of the overall obligation to keep the premises in a state to prevent the spread of disease.
The appellant's personal circumstances
I note that the appellant has spent approximately $18,000 on remedial procedures to comply with the Food Act. I also note that it was stated in the course of the plea in mitigation that the businesses. Income over the last 12 months was approximately $30,000.
The appellant's business is a much smaller operation than in Pannacchione. I also note that it was not part of a national franchise such as Hungry Jack's.
I accept that the appellant's capacity to pay is limited,
The plea of guilty
The appellant submitted:
30.First, there were pleas of guilty, which his Honour stated were timely pleas but not at the earliest opportunity.[5]
31With regard to the pleas of guilty, it was explained on behalf of the appellant that there had been some substantial changes to the facts put forward by the prosecution, and also that the number of charges had been reduced from thirteen to six. It was explained that if the amended facts had been those initially alleged, and the charges had been six originally, pleas of guilty may have been entered much earlier.[6] His Honour said that the company was entitled to a significant reduction in the penalty to be imposed.[7]
32.It is noted that s 9AA(5) of the Sentencing Act 1995 (WA) provides:
If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
33.His Honour did not, as required by s 9AA(5), state what the extent of the reduction in sentence was by reason of the pleas of guilty. It is noted that s 9AA does not limit the amount of the discount for sentences other than imprisonment. Assuming a discount in the region of 20% in this matter, that would mean that the fine of $60,000 was the equivalent of a fine of $75,000 if the matter had gone to trial. A 15% discount would translate to a fine of approximately $70,500. It is submitted that this reinforces the view that the fine imposed was excessive.
[5] ts 26[2].
[6] See ts 18[8] ‑ [10].
[7] ts 18[11].
The respondent submitted:
28.In relation to the plea of guilty, the appellant submits the learned magistrate failed to state the extent of the reduction in sentence at par 33. However, the appellant has not alleged as a ground of appeal that the learned magistrate erred by failing to state the extent of the reduction in sentence. In any event, it is clear the learned magistrate correctly took into account the appellant's pleas of guilty.
As the respondent submitted the failure to state the reduction was not a ground of appeal. It is apparent that the learned magistrate did allow a discount for the early plea.
I would allow a discount of 20% for the early plea.
Training
The appellant has spent money on training the staff. This is a preventative measure and credit should be given to the appellant in assessing the penalty.
The appropriate fine
The appellant submitted that, as in Pannacchione, having regard to the differences between the various charges, as well as their similarities, and having regard to the principle of totality, as well as the necessity to ensure that there was not double or more punishment for offences which involved common factual features, the learned magistrate erred and that the sentence imposed was excessive.
The respondent submitted that the penalty of $60,000, or 4% of the maximum available penalty, was not manifestly excessive for the following reasons:
(a)The penalty was within the range of sentences customarily imposed for these types of offences;
(b)The offending continued over the course of four inspections on four separate days over a seven week period;
(c)The offending continued despite the appellant being given written warnings and improvement notices;
(d)The appellant had previously been made aware of the requirements of the Act having been given improvement notices in 2015 and 2015 and been given infringement notices in 2016;
(e)The appellant did not comply with the Act until after the prosecution proceedings were commenced; and
(f)There is a need for significant penalties to be imposed where the efficacy of the legislation, in this case food safety legislation, depends not only upon formal enforcement but also upon a pervasive culture of general observance and respect for the underlying communal purpose, in this case public health.
As Jenkins J stated in Pannacchione:
First, the maximum penalty for each offence was, and is, $50,000 for an individual and $250,000 for a body corporate. The respondent is an individual. The parties agree each individual fine of $4,000, and the total fine of $72,000, was 8% of the maximum fine which could have been imposed. This does not, of itself, disclose error, however, the amount of the fine must be considered not only in light of the maximum penalty which could have been imposed but also in light of the seriousness of the offences viewed individually and together.[35]
The appellant submitted that once the discount for a plea of guilty as taken into account the fine was in the region of $72,000. However, in Panniaccone the fine was also imposed after pleas of guilty.
Was there implied error?
There were six offences. Having regard to the factors stated above a total fine of $60,000 does reveal implied error.
Accordingly leave to appeal should be granted, the appeal allowed, and the fines set aside.
Resentencing
Although charges 2 and 13 were more serious I agree with the learned magistrate that a global penalty was appropriate. I resentence the appellant to a global fine of $24,000 taking into account totality principles and the pleas of guilty.
Orders
I make the following orders:
1.Leave to appeal granted;
2.Appeal allowed;
3.Fine of $60,000 set aside;
4.Fine of $24,000 imposed.
I will hear from the parties as to the costs of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MDM
Associate to the Honourable Justice Curthoys
5 DECEMBER 2019
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