Environment Protection Authority v Australian Aged Dental Care Pty Ltd

[2018] NSWLC 15

Local Court

New South Wales

Medium Neutral Citation:

Environment Protection Authority v Australian Aged Dental Care Pty Ltd [2018] NSWLC 15

Hearing dates:

16 -18, & 26 July 2018

Date of orders:

13 August 2018

Decision date:

13 August 2018

Jurisdiction:

Criminal

Before:

Magistrate Donnelly

Decision:

Defendant is convicted and fined $198,000, ordered to pay $125,000 professional costs and ordered to cause a notice to be published in the terms set out at [43] of this judgment.

Catchwords:

CRIME- Sentencing – Radiation Control Act 1990 (NSW) - section 6(6) – nine offences of corporation failing to ensure regulated material is used by licenced person – regulated material used on children – objectives of Radiation Control Act 1990 (NSW) – proportionality – assessing objective seriousness of each crime against the maximum penalty – role of jurisdictional maximum of Local Court in sentencing exercise – totality –offences committed for financial gain – purposes of sentencing – requirement of sentence to reflect general and specific deterrence and denunciation

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(3)
Criminal Procedure Act s 213
Radiation Control Act 1990 (NSW) ss 3, 6(6), 23B(1)(a), 25(3),
Radiation Control Regulation 2013

Cases Cited:

Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 304 ALR 186
Bichar v Regina [2006] NSWCCA 1
Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734
Cameron v The Queen (2002) 209 CLR 339
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Co Pty Limited v Maritime Services Board of New South Wales (1995) 36 NSWLR 552
Elias v The Queen (2013) 248 CLR 483
Filippou v The Queen (2015) 256 CLR 47
GAS v The Queen (2004) 217 CLR 198
Markarian v The Queen (2005) 228 CLR 357
Maxwell v The Queen (1996) 184 CLR 501
Mill v The Queen (1988) 166 CLR 59
Nicholas v The Queen (1998) 193 CLR 173
R v Pogson (2012) 82 NSWLR 60
Rodway v The Queen (1990) 169 CLR 515
Siganto v The Queen (1998) 194 CLR 656
The Queen v Kilic (2016) 259 CLR 256

Category:

Sentence

Parties:

Environment Protection Authority (prosecution)
Australian Aged Dental Care Pty Ltd (defendant)

Representation:

Counsel:

 

Mr S Goodman SC for the defendant

  Mr I McLachlan with Mr D Beaufils for the prosecution

File Number(s):

2016/00280276

Publication restriction:

Yes. See paragraph [8].

Judgment

1. On 16 July 2018 Australian Aged Dental Care Pty Ltd (the defendant) was charged and stood trial for nine offences under s 6(6) of the Radiation Control Act1990 (NSW). Michelle Oliver, a Director of the corporation, was charged and stood trial for seven offences under section 6(6). On the third day of the trial the defendant pleaded guilty to all nine offences. The charges against Michelle Oliver were withdrawn by the prosecutor.

2. Section 6(6) of the Radiation Control Act1990 provides, amongst other things:

Each person responsible for regulated material must ensure that the regulated material is not used by any other person unless that other person is the holder of an appropriate licence under this Part in respect of the regulated material.

3. The allegation against the defendant is that on nine occasions (sequences 1-9) the defendant failed to ensure that “regulated material” was not used by a person without an appropriate licence. Regulated material under the Act includes an ionising radiation apparatus such as an orthopantographic X- ray unit - a type of dental x-ray machine. By its pleas of guilty the defendant necessarily admits to each element of the offence. The parties informed the court that there have not been any prosecutions under the Radiation Control Act1990. The task of the court is to sentence the defendant by applying well established principles. Sentencing involves the exercise of discretion by the court. The court is required to take into account all relevant considerations in forming the conclusion reached. There is no single correct sentence: Markarian v The Queen (2005) 228 CLR 357 at [27].

4. I have determined for the reasons set out below that the defendant should be convicted of all nine offences and the maximum fine available to this court of $22,000 should be imposed for each offence. When the objective seriousness of each offence and the circumstances of the defendant are taken into account in what the High Court described in R v Kilic (2016) 259 CLR 256 at [19] as “…the "spectrum" that extends from the least serious instances of the offence to the worst category” – I have concluded that the offences in sequence 6 fall just below the middle of the spectrum. The remainder of the offences either fall near, at, or above the middle of the spectrum. The maximum penalty for the offence when it is dealt with in the Land and Environment Court is 1500 penalty units or $165,000. As explained below the “middle” of the spectrum for this offence (applying R v Kilic) is half the maximum penalty which is 750 penalty units or $82,500. However the jurisdictional maximum – that is the maximum the Local Court can impose for each offence under s 25(3) – is 200 penalty units or $22,000 or 7 ½ times less than the maximum penalty. The further application of the principle of totality cannot, and does not, lower the individual sentences below the court’s jurisdictional limit of $22,000 for each offence. The High Court has made clear at least since the decision of Maxwell v R (1996) 184 CLR 501 at 514 and more recently in Elias v R (2013) 248 CLR 483 at [34], that it is not the function of a court to canvass or to pass comment on the exercise of the prosecutor's discretion. This extends to the prosecutor’s decision to select a charge, plea agreements and the selection by the prosecutor of the court or forum to prosecute a charge. The task of the court is to sentence on the basis of the charges and the evidence before it and to deal with the defendant according to law.

5. I have also determined that an additional order should be made under s 23B(1)(a) of the Act whereby the defendant must take specified action to publicise the offences.

6. Before setting out the facts it is important to understand the factual basis upon which the prosecution has accepted the defendant’s nine pleas of guilty. Sometimes this is referred to in the cases as the factual basis of the plea, or the terms of the plea which disclose the circumstances and degree of culpability of an offender. In this case, as is common, agreed facts were tendered by the parties. The High Court explained in GAS v R (2004) 217 CLR 198 that where agreed facts are tendered a court’s scope to find additional facts is limited. The High Court said at [30]:

There may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge’s capacity to find facts will be affected by the evidence and the admissions. In deciding the sentence, the judge must apply to the facts as found, the relevant law and sentencing principles.

7. The court is bound to sentence the defendant on the basis of the statement of agreed facts that have been tendered by the prosecutor. The court must completely disregard any media reports in determining the appropriate sentences.

8. In the interests of fairness and transparency I reproduce the agreed facts and the details of the nine offences as Annexure A in the judgment. As such it is incorporated in this judgment. The document was tendered in the sentencing hearing. For completeness I note that there are references in the agreed facts to Annexure 1 and 2 (see paragraphs 9 and 26 respectively) but these documents were not tendered by the prosecutor. I note that on 1 September 2017 this court made an order under s 7 of the Court Suppression and Non-publication Orders Act 2010 that the disclosure of any information that reveals the identity of any persons that were under the age of 18, or enrolled at a primary or secondary school in NSW that is referred to in these proceedings, is prohibited in the Commonwealth of Australia for a period of 2 years on the grounds that protection of the identity of the aforementioned persons is in the public interest.

9. What follows is an abridged version of the agreed facts. The defendant is an Australian company. It is a mobile dental service provider which operates at schools and aged care facilities. It has been providing mobile dental services in NSW since 2011. The defendant operated four large trucks known as Mobile Dental Units (MDUs) which travelled to different schools in NSW offering dental services to school children. The MDUs were fitted out with dental equipment. The dental equipment in the MDU was operated and possessed by the defendant. The dental equipment in each MDU included an orthopantographic X-ray unit (OPG), a type of X ray machine.

10. The defendant followed the same clinical consultation and assessment process for each child: children entered the MDU via the lift located at the back of the MDU; the child’s photograph was taken by the Clinic Manager; an OPG of the child was taken by the Clinic Manager; and then the child received treatment by a dental clinician.

11. Clinic Managers were responsible for the day to day running of the MDU with duties including liaising with schools and taking OPGs. The Clinic Managers would take OPG images of around 40-60 students per day. The defendant would then claim a Medicare rebate after an OPG was taken if the OPG was sent to a qualified radiologist.

12. When the human body is exposed to ionising radiation via an OPG, there is a very small increased cancer risk of between 2-9 cases per 100,000 boys and between 3-13 cases per 100,000 girls. The Radiation Control Act1990 requires that anyone who uses OPGs to be licenced. OPGs are regulated material for the purposes of s 6(6) of the Act. Applicants for radiation user licences must demonstrate to the Environment Protection Authority (EPA) that they have appropriate knowledge of the principles and practices of radiation safety and protection, and experience applicable to the activities proposed to be carried out under the radiation user licence. Best practice radiography (including taking OPGs) should follow a clinical examination of the patient, when it can be determined exactly what radiographs need to be taken. That determination should be made by a dentist or a person who has relevant qualifications and training to take OPGs.

13. The defendant’s Policy and Procedure Manual stated that “only a licenced individual must take OPGs”. However on the dates and places specified in the agreed facts the defendant employed Charissa Frazer, Manty Robinson, Madison Jackson and Eta Peleketi as Clinic Managers. None of those people held a radiation user licence or had any formal training in how to take OPGs. Ms. Michelle Olivier also did not hold a radiation user licence under the Act. The Clinic Managers referred to above were directed to take OPGs by Michelle Olivier, and did variously take OPGs whilst they were not holders of radiation user licences. The defendant breached s 6(6) of the Act on each occasion by failing to ensure that the OPGs were not used by persons who did not hold a licence.

14. Turning now to the sentencing issues in the case. The Radiation Control Act1990 – the Act which created the offence – must be the starting point in determining the objective seriousness of the crime. The purposes and objectives of the Act inform the court’s sentencing discretion. The long title of the Radiation Control Act1990 is as follows:

An Act to make provision for the regulation and control of the sale, use, keeping and disposal of radioactive substances and radiation apparatus; to repeal the Radioactive Substances Act 1957; and for other purposes.

15. Ever since the now repealed Radioactive Substances Act1957 (NSW) Parliament has sought to control, regulate, prevent or minimise the dangers arising from radiation. In 1957 s 15 of the Radioactive Substances Act1957 prescribed a maximum penalty similar to the one before the court of £200, or in the case of a continuing offence, £10 per day. This maximum penalty is to be contrasted with the current maximum penalty of $165,000 for an offence under s 6(6). The maximum penalty increases to $1,100,000 where the prosecutor proves beyond reasonable doubt that the offender knew that the commission of the offence was likely to cause serious harm by exposure to radiation: see s 24. The increase in the pecuniary penalty and the addition of a maximum penalty of two years imprisonment in the case of individuals is an indication from the Parliament that the courts must treat the offences under s 6(6) very seriously.

16. The objectives of the Act are set out in s 3 which provides:

The objects of this Act are as follows:

1. to secure the protection of persons and the environment from exposure to ionising and harmful non-ionising radiation to the maximum extent that is reasonably practicable, taking into account social and economic factors and recognising the need for the use of radiation for beneficial purposes,

2. to protect security enhanced sources from misuse that may result in harm to people or the environment,

3. to promote the radiation protection principles.

17. Section 3(2) sets out the “radiation protection principles”. These are:

1. “justification of a practice” by assessing that the benefits of the practice involving exposure to ionising radiation outweigh any detriment,

2. “optimisation of protection” by ensuring that each of the following is kept as low as reasonably achievable taking into account economic and social factors:

1. the magnitude of individual doses of ionising radiation,

2. the number of people exposed to ionising radiation,

3. the likelihood of exposure to ionising radiation,

3. “dose and risk limitation” by setting dose limits or imposing other measures so that the health risks to any person exposed to ionising radiation is kept below levels that are generally considered to be unacceptable.

18. Section 3(3) provides:

A person is to take the radiation protection principles into consideration when exercising functions under this Act or under a licence.

19. Part 2 of the Radiation Control Regulation2013 (NSW) is headed “Licensing and Accreditation”. Clause 11 is headed “Exemptions from radiation user licensing requirements for dental profession in relation to use of certain radiation apparatus.” It provides:

A person is exempt from the requirement to hold a radiation user licence in relation to the use, for dental diagnostic purposes, of extra-oral x-ray apparatus used with intra-oral image receptors if the person:

(a) is a dentist, a dental therapist, a dental hygienist or an oral health therapist, and

(b) meets all applicable requirements of the Code of Practice and Safety Guide for Radiation Protection in Dentistry in relation to the use of the apparatus.

20. The “Code of Practice and Safety Guide for Radiation Protection in Dentistry” is defined in clause 11(3) to mean the Code published by the Chief Executive Officer of the Australian Radiation Protection and Nuclear Safety Agency, as in force from time to time.

21. The object of the Act is to secure the protection of persons and the environment from exposure to ionising radiation to the maximum extent that is reasonably practicable. The principle of “optimisation of protection” in s 3 is designed to ensure that the number of people exposed to ionising radiation is kept as low as reasonably achievable. It is clear from these radiation protection principles that the Act envisages that preliminary steps such as taking a relevant history of a patient and/or conducting a clinical assessment to determine whether there is a need for a dental x-ray are required. It is self-evident that the “justification of a practice” principle in s 3 can only be properly applied by taking preliminary steps to assess whether the benefits of being exposed to radiation outweigh any detriment. The Code of Practice referred to in clause 11 is designed to implement the objectives of the Act.

22. Failing to ensure that a person using regulated material has a licence compromises the objectives of the Act. In order to obtain a licence a person must show knowledge of the principles and practices of radiation safety and protection. As is stated in the agreed facts best practice radiography should follow a clinical examination of the patient since this is when it can be determined that a radiograph needs to be taken. That determination should be made by a dentist or a person who has relevant qualifications and training to take OPGs. For all the offences before the court the defendant had in place an arrangement using Clinic Managers who were not licenced. The arrangement had little regard to best practice. It bears repeating the clinical consultation and assessment process: children entered the MDU via the lift located at the back of the MDU; the child’s photograph was taken by the Clinic Manager; an OPG of the child was taken by the Clinic Manager; and then the child received treatment by a dental clinician. The Clinic Managers who were not licenced followed the directions of Ms Oliver. A licenced person is best placed to implement s 3(3) - to “take the radiation protection principles into consideration”. The licencing system exists for the purpose of avoiding unnecessary exposure to radiation. OPGs should not be used as a substitute for clinical assessments. By employing Clinic Managers who were not licenced the defendant simply failed to take the precautions explicit in the objectives of the Act.

23. It is convenient to deal at this point with a factual dispute in the sentencing hearing. The prosecutor submitted that the conduct of the defendant resulted in harm. Counsel for the defendant disputed that proposition on the basis that no opinion evidence was adduced about the issue and there was no other evidence of harm identified. Counsel for the defendant’s submission that no specific harm was identified must be accepted. However, he further submitted that there was no harm and only a potential risk of harm. The OPGs might have been taken by a licenced person in any event.

24. The submission of Counsel for the defendant company that there was no harm and only a potential for harm must be rejected. This is because it is a submission from the Bar table and as such it is not evidence. The submission is similar to the one made in Bichar v Regina [2006] NSWCCA 1. In that case the judge applied s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and concluded the harm caused by the robbery was not lasting. Howie J said with support of Basten JA and Hall J at [35]:

There was simply no evidence on the subject and the Judge could not assume that there was no lasting impact upon the victim.

25. The same approach must be taken in this case given the way the issue of harm was presented to the court. This is a case where it is not possible for the court to ascertain everything that is relevant and it must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard: Filippou v R (2015) 256 CLR 47 at [70]. In the result it was not established beyond reasonable doubt that actual harm occurred. It was also not established to the requisite standard that no harm occurred. It was accepted that the conduct of the defendant caused a potential of harm to occur. A risk of harm is nevertheless a very serious matter.

26. During the course of the proceedings an issue arose concerning the maximum sentence the court could impose for the offence. This is to be distinguished from the maximum penalty for the offence explained below. Counsel for the defendant argued that the maximum sentence the court could impose for the offence was the jurisdictional maximum of the court at the time of the commission of the offences in 2014 and 2015. The maximum pecuniary penalty that could be imposed at that time was 100 penalty units or $11,000 (see previous version of s 25(3) of the Act). He submitted that the later increase to the jurisdictional maximum of the Local Court in 2017 did not apply. This was a reference to the amendment of the Act by the Protection of the Environment Legislation Miscellaneous AmendmentsAct 2017. Schedule 4[3] of that Act amended s 25(3) and increased the maximum pecuniary penalty that could be imposed by the Local Court from 100 penalty units to 200 penalty units or $22,000. Schedule 4 commenced on 8 June 2017.

25. In order to resolve this issue the High Court decisions of Rodway v R (1990) 169 CLR 515 and Nicholas v R (1998) 193 CLR 173 require the court to characterise s 25(3) as either a provision governing practice and procedure or one which confers a substantive right of the kind referred to in Rodway v R at 521. Generally laws that govern practice and procedure do not fall within the presumption against the retrospective operation of a statute: Nicholas v R (1998) 193 CLR 173. Given that s 25(3) concerns the jurisdiction of the court it is clearly a procedural provision. In Rodway v R (1990) 169 CLR 515 it was accepted that no one has a vested right in any form of procedure. Therefore a court which sentences an offender for an offence under s 6(6) of the Act after 8 June 2017 must do so with reference to the higher jurisdictional maximum of 200 penalty units or $22,000 notwithstanding the offence or offences were committed prior to the increase in the jurisdictional maximum.

26. There are several key sentencing principles that must be applied. As explained earlier the court must have regard to the maximum penalty for the offence of 1500 penalty units or $165,000. It is the public expression by Parliament of the seriousness of the offence and it informs the objective seriousness of the offence: Elias v R (2013) 248 CLR 483 at [27]. The court is to sentence by reference to the maximum penalty, that is, it must assess each offence against the maximum penalty and not by reference to the court’s jurisdictional maximum. The decision of R v Doan (2000) 50 NSWLR 115 made clear that a jurisdictional maximum is not a maximum penalty for any offence. Grove J said at [35]:

…where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit.

29. The position was put succinctly by Beech-Jones J in Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [83]:

...the Local Court was required to, and did, have regard to the maximum penalty. Further, it was required not to treat the jurisdictional limit as some form of modified or notional maximum. The jurisdictional limit is only engaged if the outcome of the sentencing process is such that the sentencing court considers that a sentence above the jurisdictional limit should be imposed.

30. In assessing the objective seriousness of each offence the court must also have regard to several matters of aggravation. These aggravating factors referred to below increase the seriousness of the offence. They applied to each of the nine offences. It was not disputed that the offences were committed for financial gain. Committing a crime for profit is a significant aggravating feature. The High Court has stressed the importance of deterrence where offences are committed for profit. French CJ, Crennan, Bell and Keane JJ said in Australian Competition and Consumer Commission (ACCC) v TPG Internet Pty Ltd (2013) 304 ALR 186 at [66]:

General and specific deterrence must play a primary role in assessing the appropriate penalty in cases of calculated contravention of legislation where commercial profit is the driver of the contravening conduct.

31. Although that case concerned the imposition of civil penalties it cannot be doubted that the principle also applies to pecuniary penalties imposed on corporations for criminal offences (see also Chief Justice Gleeson writing extra-judicially in AM Gleeson, ‘Civil or Criminal: What is the Difference?’ (2006) 8(1) TJR). Section 3A(b) of the Crimes (Sentencing Procedure) Act applies in this case – the court must impose sentences for the purpose of deterring the offender and other persons from committing similar offences.

32. In R v Pogson (2012) 82 NSWLR 60 the Court of Criminal Appeal emphasised that general deterrence has an important role to play in what may be described broadly as white collar crimes. McClellan CJ at CL and Johnson J said at [143]:

Sentencing courts have a responsibility to ensure that the sentence imposed punishes the offender, denounces their criminal conduct and provides sufficient disincentive to others who may be tempted to offend, to ensure that they refrain from criminal activities. Although some statements have been made suggesting that in relation to some offences general deterrence may be controversial, this is not the case with respect to crimes involving the market or other forms of business dealings.

33. Another aggravating feature is that each offence involved a breach of trust. The defendant’s officers attended schools and dealt with children whose parents had signed a consent form to have their children treated for dental conditions. The schools, the parents and the children placed their trust in the defendant. The schools, the parents and the children were all entitled to expect the defendant to conduct its affairs in compliance with the law as it regulates the use of radiation and in particular to abide by the licensing system under the Act.

34. The offences were also aggravated by the fact that children were subject to the defendant’s non-compliance with the Act. It is accepted as a sentencing principle that children are a vulnerable class of persons. It goes without saying that licencing system under the Act is directed to minimising exposure of radiation to vulnerable groups such as children.

35. The offences were aggravated by the fact that defendant’s breach of the Act was systemic and widespread. Systemic in the sense that it was the manner the defendant conducted its business for the days the subject of the charges - it had a system in place whereby an OPG was taken by a person who did not have a licence and before a clinical assessment. Widespread because of the scale of its offending. Paragraph 4 of the agreed facts estimate that Clinic Managers would take OPG images of around 40-60 students per day. Each offence has a date range. Some of the date ranges for the 9 offences cut across or include week-ends. A conservative estimate calculated by excluding week-ends reveals that sequence 1 involved between 320-480 children, sequence 2 between 400-600 children, sequence 3 320-480 children, sequence 4 520-780 children, sequence 5 160-240 children, sequence 6 80-120 children, sequence 7 200-300 children, sequence 8 160-240 children and sequence 9 200-300 children. On any view these figures reveal a substantial breach of the licencing system under the Act. It requires the court under s 3A(e) and s 3A(f) of the Crimes (Sentencing Procedure) Act to make the defendant accountable for its actions and to denounce the conduct.

36. Counsel for the defendant relied upon several matters in mitigation. Counsel for the defendant relied upon the utilitarian value of the plea of guilty. The defendant pleaded guilty on the third day of a 10 day trial. This is a relevant fact to take into account in mitigation. Counsel also relied upon the decision of Cameron v R (2002) 209 CLR 339 for the proposition that the defendant has shown remorse by its plea of guilty. In that case the High Court quoted Siganto v R (1998) 194 CLR 656 at [22] that a plea of guilty “is usually evidence of some remorse on the part of the offender”. The sentencing principle of remorse and contrition is applied to a corporation notwithstanding First Baron Edward Thurlow’s remark in 1671 that a company “has no soul to be damned and no body to be kicked.” The prosecutor submitted that it has been accepted by the Court of Criminal Appeal at least since Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 that remorse exhibited by relevant officers of a corporation can be taken into account at sentence. I accept that submission. But it must be said that apart from the plea of guilty there was no evidence of remorse before the court. Consequently only limited weight can be attributed to that sentencing consideration. Counsel for the defendant also relied on the fact that the defendant did not have any prior record.

37. Having identified the aggravating factors the task of the court is to assess the objective seriousness of each offence against the maximum penalty. During the sentencing hearing both parties provided global assessments of objective seriousness. It must be said that this was not a helpful approach given that the court must first set individual sentences and then consider the principle of totality. The prosecutor assessed the offending globally as falling between the 50% and 75% percentile of the offence. The defendant submitted that as no harm had been established the offending fell between the low to mid-range. At that point in proceedings I alerted the parties to the case of Bimson, Roads & Maritime Services v DamorangePty Ltd [2014] NSWSC 734 quoted above – and the need for the court to assess each offence by reference to the maximum penalty and not the jurisdictional maximum of the court. The prosecutor then submitted that individual fines set at the jurisdictional limit were appropriate. Counsel for the defendant did not make any further submission on the matter.

38. Comparatively sequence 6 is the least serious offence of the 9 because it involved the least amount of days and somewhere between 80-120 children. Applying the principles of general and specific deterrence, accountability, denunciation, the fact the offence compromised the objectives of the Act of minimal exposure to radiation, involved the dental treatment of children - a vulnerable class of persons, was committed for financial gain, involved a breach of trust of the schools and the parents who signed consent forms who were entitled to expect that the defendant follow and comply with the law, I find the offence falls just below the middle of the range. Taking into account all the subjective and objective considerations sequence 6 alone warrants a penalty of at least $50,000. This is well above the jurisdictional limit of the court. Therefore in accordance with authority referred to above a fine at the jurisdictional limit of the court of $22,000 is appropriate.

39. The remaining 8 offences were more serious because they involved more children and longer date ranges: sequence 1 between 320-480 children, sequence 2 between 400-600 children, sequence 3 320-480 children, sequence 4 520-780 children, sequence 5 160-240 children, sequence 7 200-300 children, sequence 8 160-240 children and sequence 9 200-300 children. Again taking into account the principles listed above, I find sequences 1-3, 5, 7-9 all fall at the middle range of the spectrum. Sequence 4 because it involved somewhere between 520-780 children fell above the middle range. Each offence warrants a penalty at or above half the maximum penalty which is $82,000. Again this is well above the jurisdictional limit of the court of $22,000 per offence. Therefore in accordance with authority cited above a fine for sequences 1-5, 7-9 at the jurisdictional limit of the court of $22,000 is appropriate for each offence.

40. Having set the individual sentences the court must now apply the totality principle particularly the High Court decision of Mill v R (1988) 166 CLR 59 at 63. This involves the court reviewing the aggregate sentence and considering whether the aggregate is ‘just and appropriate’: Mill v The Queen at 63. The aggregate fine amount is $198,000. Given the findings concerning the objective seriousness of each offence and the consequential large gap between each of the appropriate sentences and the jurisdictional maximum I find that there is no basis for the court to make a downward adjustment to the individual sentences. It would result in unduly lenient sentences at the individual level. An adjustment would effectively give the jurisdictional maximum a level of significance in the sentencing exercise that the law does not allow. It would result in an overall sentence that does not reflect the totality of the criminality.

41. In addition to fines under the Act the court can also give consideration to additional orders. Unlike the Land and Environment Court this Court does not have power under s 23A of the Act to order the defendant to pay, as part of the penalty for committing the offence, an additional penalty which represents the amount of any monetary benefits acquired by the defendant: see exclusion of Local Court in definition of “court” in s 23A. However the court does have power to make an additional order under s 24B(1)(a) of the Act whereby the defendant must take specified action to publicise the offences. An order of that kind should be made on the basis it will improve the deterrent effect of the sentences.

42. The prosecutor applied for an order for professional costs under s 213 of the Criminal Procedure Act. The application for costs was not opposed by the defendant. The prosecutor submitted that the parties have agreed that $125,000 is a just and reasonable amount. Given the course of proceedings I determine that it is a just and reasonable amount.

43. In light of the reasons above the court orders as follows:

(1) The defendant, Australian Aged Dental Care Pty Ltd, is convicted of the offences referred to in sequences 1-9 of the Amended Court Attendance Notice and fined the sum of $22,000 for each of the 9 offences.

(2) The defendant Australian Aged Dental Care Pty Ltd is to pay the prosecutors costs of $125,000 pursuant to s 213 of the Criminal Procedure Act.

(3) Pursuant to s 23B(1)(a) of the Radiation Control Act 1990, the Directors of Australian Aged Dental Care Pty Ltd:

1. At the company’s expense, within 28 days of the date of this order, must cause a notice, in the form of Annexure B to these orders, to be placed within the first 5 pages of the following publications at a minimum size of 10 cm x 18 cm:

1. The Daily Telegraph;

2. Sydney Morning Herald.

2. Within 60 days of the date of this order, the Directors of Australian Aged Dental Care Pty Ltd must provide to the prosecutor a complete copy of the pages of the publications in which the notice appears.

Magistrate Donnelly

Downing Centre Local Court

13 August 2019

Annexure A

44. Australian Aged Dental Care Pty Ltd is an Australian incorporated company (A.C.N. 147 176 583) (AADC). AADC is a mobile dental service provider which operates at schools and aged care facilities. It has been providing mobile dental services in NSW since 2011.

45. Between 13 August 2013 and 20 March 2015:

1. a.AADC was owned by the Olivier family in that 100 shares were held jointly between Jeremias Olivier, Jessica Olivier, Johanna Olivier, Michelle Olivier, and Venessa Olivier;

2. b.   Jeremias Olivier, Jessica Olivier, Venessa Olivier and Michelle Olivier (from 9 January 2014) were directors of AADC;

3. c.   AADC traded under the name “Australian Mobile Dental Care” (AMDC);

4. d.   AADC operated 4 large trucks known as Mobile Dental Units (MDUs) which travelled to different schools in NSW offering dental services to school children.

The MDUs

AADC polices and procedures for the operation of MDUs

46. The MDUs were fitted out with dental equipment. The dental equipment in the MDU was operated and possessed by AADC. The dental equipment in each MDU included an orthopantographic X-ray unit (OPG), a type of X ray machine.

47. Each MDU had a similar layout: three rooms for clinical assessment, an area for taking OPG images and an administration area. Children entered through a lift located at the back of the truck. AADC followed the same clinical consultation and assessment process for each child:

1. Children enter the MDU via the lift located at the back of the MDU.

2. The child’s photograph is taken by the Clinic Manager.

3. An OPG of the child is taken by the Clinic Manager.

4. The child receives treatment by a dental clinician.

48. Each MDU was staffed by around five employees of AADC, typically a clinic manager, a dental assistant and two or three dental clinicians (dentists, dental hygienists, or dental therapists).

49. Clinic Managers were responsible for the day to day running of the MDU, with duties including driving the MDUs, liaising with schools, and taking OPGs. In terms of instructions and orders in relation to taking OPG images, it was company policy that this came from Ms Michelle Olivier. Ms Michelle Olivier instructed the Clinic Managers to take OPG images for every child that had consent.

50. The Clinic Managers would take OPG images of around 40-60 students per day.

51. AADC would then claim a Medicare rebate after an OPG was taken if the OPG was sent to a qualified radiologist.

52. Photographs of an MDU and OPG are annexed to this statement marked Annexure 1.

OPGs

53. OPGs are used to acquire a panoramic image of the teeth, lower jaw, maxillary sinus, or temporomandibular joint (TMJ). The TMJ is the connecting joint between the lower and upper sections of the jaw.

54. The panoramic image can include the teeth and their location in the mouth for both those showing and yet to erupt, the bones of the upper and lower jaw and the connecting joint, and the bones of the maxillary sinus.

55. OPG exposure technique differs from other dental X-rays as both the receptor (film or digital detector) and the x-ray tube are external to the patient. During an exposure both the x-ray tube and the receptor rotate around the patient’s head in a predetermined manner such that only those parts of the skull that are in the focal plane of the rotating system are imaged sharply.

56. An OPG has an exposure time that can last up to 18 seconds depending on the model used and the image being acquired.

57. When operating an OPG, the operator can select between a child and adult program. Depending on whether the OPG is set for an adult or child, both the exposure time and tube voltage.

58. When taking OPGs, the correct program and settings must be used in order to ensure that an acceptable image is created for the appropriate radiation dose. The radiation doses to patients exposed to OPG will depend on a number of factors, including but not limited to the size of the patient, the exposure factors used for the examination, the program used for the examination, how the patient was positioned for the examination and whether more than one OPG was required to be taken.

59. If the OPG is taken with the adult settings, then the doses and consequent risk factors will be higher than if taken at the relevant settings for a child. Furthermore, younger persons are at a higher risk for an exposure to ionising radiation, being an OPG, than an older person.

Radiation Exposure from OPGs

60. When human tissue is exposed to ionising radiation, different types of radiation have different biological effects. As such, a specific unit of dosage designated as the microSievert (uSv) is used to measure this.

61. The effective dose as a result of an OPG examination for a 10 year old boy is estimated to be between 2.3uSv and 9.1uSv depending on the setting used. The effective dose as a result of an OPG examination for a 10 year old girl is estimated to be between 2.0uSv and 8.7uSv. This represents that there is an increased cancer risk of between 2-9 cases per 100,000 boys exposed to these doses of radiation, and between 3-13 cases per 100,000 girls exposed.

62. Whilst not zero, the risk factors are very small.

63. Radiation exposure from an OPG is not limited to the patient. Operators of OPGs, who would be a minimum of 2 metres from the centre of the OPG, can also be exposed to stray radiation.

Radiation User Licences

64. A radiation user licence is required under the RCA for anyone who uses regulated material (in this case, OPGs): s 7 of the Radiation Control Act 1990 (NSW) (RCA)

65. OPGs are regulated material for the purposes of s 6(6) of the RCA.

66. AADC is a ‘person responsible’ for regulated material under s 6(6) of the RCA.

67. Applicants for radiation user licences under the RCA to use regulated material must demonstrate to the EPA that they have appropriate knowledge of the principles and practices of radiation safety and protection, and experience applicable to the activities proposed to be carried out under the radiation user licence. The applicant may be required to provide evidence of successful completion of appropriate courses.

64. Panoramic radiography (including the taking of OPGs) is taught as part of University degrees in radiation science, radiography, dentistry, dental therapy and dental hygiene. Undertaking training in panoramic radiography (including the taking of OPGs) would show that panoramic radiography is very position-sensitive and incorrect positioning can significantly alter the image which can produce misdiagnosis or an OPG of no diagnostic value.

65. An extract from the EPA’s internet site as at 2018 concerning the criteria for radiation user licences is attached (Annexure 2)

66. Best practice radiography (including taking OPGs) should follow clinical examination of the patient, when it can be determined exactly what radiographs needs to be taken. That determination should be made by a dentist or a person who has relevant qualifications and training to take OPGs.

AADC policies and procedures for the operation of MDUs

71. AADC prepared and distributed to employees, a Policy and Procedure Manual (Procedure Manual) and a Clinical Management Manual.

72. Both the Procedure Manual (section 6.20) and the Clinical Management Manual (p 5.8) ‘Taking OPG and Radiographs’ stated that “Dental X-ray equipment must only be operated by individuals who have been trained in the safe use of the equipment and the procedures being performed and must also be licensed’.

73. Both the Procedure Manual (section 6.20) and the Clinical Management Manual (p 5.8) stated, inter alia, that it is the responsibility of the dentist to determine the clinical need for the OPG examination and that the dentist remained ultimately responsible for overall patient care.

74. The Procedure Manual (section 6.21) stated that “diagnostic imaging procedures are only undertaken where there is an identified clinical need.”

75. The Procedure Manual (section 6.22) stated that “the company [AADC] will ensure that all dental practitioners, employees and contractors have relevant and current State or Territory registration and/or licensing as required by law”.

76. The Procedure Manual (section 6.22) stated that “the company [AADC] will conduct an annual review of all dental practitioners, employees, and contractor’s registration and/or licensing.”

77. The Procedure Manual (section 6.23) stated that “only a licenced individual must take OPGs”.

78. The Procedure Manual (section 7.20) titled “Clinical Procedures for Clinicians” stated, as a “mandatory procedure for each clinician” , that “OPG’s must be taken by a EPA licenced individual”.

79. AADC employed various persons as Clinic Managers including:

i.   Charissa Frazer;

ii.   Manty Robinson;

iii.   Madison Jackson;

iv.   Eta Peleketi.

80. Ms Frazer, Ms Robinson, Ms Jackson and Ms Peleketi did not hold radiation user licences under the RCA, which were required to lawfully take an OPG: s7, RCA.

81. The Clinic Managers in paragraph 36 did not have any formal training in how to take OPGs.

82. Ms Michelle Olivier also did not hold a radiation user licence under the RCA.

83. Between 13 August 2013 and 20 March 2015, the Clinic Managers identified in paragraph 36 were directed to take OPGs by Michelle Olivier, and did variously take OPGs whilst they were not respectively holders of radiation user licences. AADC breached s 6(6) of the RCA on each occasion by failing to ensure that the OPGs were not used by persons who did not hold a licence.

Directed Interviews

84. Ms Michelle Olivier was directed to attend, and did attend, an interview with EPA officers on 20 July 2016. During that interview Ms Michelle Olivier stated the following:

1. She did not take any OPGs of school children; and

2. AADC did not direct clinic managers to take OPGs of every school child.

3. On one occasion, she attended a MDU at Dubbo and saw Ms Frazer take an OPG. After warning Ms Frazer that she was not to take OPGs Ms Olivier returned several days later and again observed Ms Frazer take an OPG. Ms Frazer was dismissed later that week for reasons including her taking of OPGs.

85. Ms Venessa Olivier was directed to attend, and did attend, an interview with EPA officers on 21 July 2016 as the corporate representative for AADC. During that interview Ms Venessa Olivier stated the following:

1. She was not aware of persons taking OPGs that were not the holder of a licence, save for Ms Frazer.

86. Mr Jeremias Olivier was directed to attend and did attend an interview with EPA officers on 15 August 2016. During that interview Mr Jeremias Olivier stated the following:

1. a. AADC did not at any time become aware of any persons, other than a licenced person, taking an OPG, save for Ms Frazer.

Sequence 1: Australian International Academy

87. Between 13 August 2013 – 22 August 2013 a MDU operated by AADC attended Australian International Academy.

88. Amongst other staff, an Oral Health Therapist, ________ provided dental treatment between 13 August 2013 – 22 August 2013.

89. The Clinic Manager of the MDU at Australian International Academy between 13 August 2013 – 22 August 2013 was Ms Frazer.

90. Between 13 August 2013 – 22 August 2013 Ms Frazer took OPGs of children who attended the MDU in accordance with the directions given to her by Michelle Olivier.

Sequence 2: Dubbo College Senior Campus

91. Between 2 September 2013 – 13 September 2013 a MDU operated by AADC attended Dubbo College Senior Campus.

92. Amongst other staff, an Oral Health Therapist ______________ provided dental treatment between 2 September 2013 – 13 September 2013 at Dubbo College Senior Campus.

93. The Clinic Manager of the MDU at Dubbo College Senior Campus between 2 September 2013 – 13 September 2013 was Ms Charissa Frazer.

94. Between 2 September 2013 – 13 September 2013 Ms Frazer took OPGs of children who attended the MDU in accordance with the directions given to her by Michelle Olivier.

Sequence 3: Orange Public School

95. Between 1 April 2014 - 10 April 2014 a MDU operated by AADC attended Orange Public School.

96. Amongst other staff, an Oral Health Therapist _________ provided dental treatment at Orange Public School between 1 April 2014 - 10 April 2014.

97. The Clinic Manager of the MDU at Orange Public School between 1 April 2014 - 10 April 2014 was Ms Eta Peleketi.

98. Between 1 April 2014 - 10 April 2014 Ms Peleketi took OPGs of children who attended the MDU in accordance with the directions given to her by Michelle Olivier.

Sequence 4: Kelso High School

99. Between 29 April 2014 - 15 May 2014 a MDU operated by AADC attended Kelso High School.

100. Amongst other staff, a Dentist _________ provided dental treatment at Kelso High School. _________ was assisted by a __________.

101. The Clinic Manager of the MDU at Kelso High School between 29 April 2014 - 15 May 2014 was Ms Peleketi.

102. Between 29 April 2014 - 15 May 2014 Ms Peleketi took OPGs of children who attended the MDU in accordance with the directions given to her by Michelle Olivier.

Sequence 5: Dubbo College South Campus

103. Between 16 May 2014 – 21 May 2014 a MDU operated by AADC attended Dubbo College South Campus.

104. Amongst other staff, a Dentist _________ provided dental treatment at Dubbo College South Campus between 16 May 2014 – 21 May 2014. ___________ was assisted by a Dental Assistant, ___________.

105. The Clinic Manager of the MDU at Dubbo College South Campus between 16 May 2014 – 21 May 2014 was Ms Peleketi.

106. Between 16 May 2014 – 21 May 2014 Ms Peleketi took OPGs of children who attended the MDU in accordance with the directions given to her by Michelle Olivier.

Sequence 6: Peak Hill Central School

107. Between 5 June 2014 – 6 June 2014 a MDU operated by AADC attended Peak Hill Central School.

108. Amongst other staff, a Dentist, __________ provided dental treatment at Peak Hill Central School between 5 June 2014 – 6 June 2014. Dr Shah was assisted by a Dental Assistant, _____________.

109. The Clinic Manager of the MDU at Peak Hill Central between 5 June 2014 – 6 June 2014 was Ms Peleketi.

110. Between 5 June 2014 – 6 June 2014 Ms Peleketi took OPGs of children who attended the MDU in accordance with the directions given to her by Michelle Olivier.

Sequence 7: Harrington Street Public School

111. Between 7 October 2014 – 20 October 2014 a MDU operated by AADC attended Harrington Street Public School.

112. Amongst other staff, a Dental Assistant _____________ provided dental treatment at Harrington Street Public School between 7 October 2014 – 20 October 2014. _____________ was assisted by a Dental Assistant, __________________.

113. The Clinic Managers of the MDU at Harrington Street Public School between 7 October 2014 – 20 October 2014 were Ms Madison Jackson from 7-10 October 2014 and 20 October 2014 and Ms Eta Peleketi from 13 October 2014 - 17 October 2014.

114. Between 7 October 2014 – 10 October 2014 and 20 October 2014 Ms Jackson took OPGs of children who attended the MDU in accordance with the directions given to her by Michelle Olivier.

115. Between 13 October 2014 – 17 October 2014 Ms Peleketi took OPGs of children who attended the MDU in accordance with the directions given to her by Michelle Olivier.

Sequence 8: Wiley Park Girls School

116. Between 1 December 2014 – 4 December 2014 a MDU operated by AADC attended Wiley Park Girls School.

117. Amongst other staff, a Dentist __________ provided dental treatment at Wiley Park Girls School. Dr Gad was assisted by a Dental Assistant, ___________.

118. The Clinic Manager of the MDU at Wiley Park Girls School between 1 December 2014 – 4 December 2014 was Ms Manty Robinson.

119. Between 1 December 2014 – 4 December 2014 Ms Robinson took OPGs of children who attended the MDU in accordance with the directions given to her by Michelle Olivier.

Sequence 9: Canterbury Boys High School

120. Between 16 March 2015 - 20 March 2015 a MDU operated by AADC attended Canterbury Boys High School.

121. Amongst other staff, an Oral Health Therapist _____________ provided dental treatment at Canterbury Boys High School between 16 March 2015 - 20 March 2015. __________ was assisted by a Dental Assistant ____________.

122. The Clinic Manager of the MDU at Canterbury Boys High School between 16 March 2015 - 20 March 2015 was Ms Eta Peleketi.

123. Between 16 March 2015 - 20 March 2015 Ms Peleketi took OPGs of children who attended the MDU in accordance with the directions given to her by Michelle Olivier.

124. AADC breached s 6(6) of the RCA on each of the 9 occasions specified in the Amended Court Attendance Notice by failing to ensure that the OPGs were not used by persons who did not hold a licence.

Denial of knowledge by AADC management

125. AADC and AADC management – Bok Olivier, Michelle Olivier and Venessa Olivier - have at all times denied knowledge of the use of OPGs by unlicensed persons, save for the instance involving Charissa Frazer stated above, and deny providing any instructions to AADC staff, who were relevantly unlicensed, to take OPGs.

annexure b

Decision last updated: 20 March 2019