Golden Eggs Pty Ltd v City of Port Adelaide - [2005] SASC 279

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GOLDEN EGGS PTY LTD v CITY OF PORT ADELAIDE ENFIELD
Judgment of The Honourable Justice Vanstone
26 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appeal against penalty imposed for offences against the Food Act 2001 - one penalty imposed for four offences - relevance of totality principle to such a penalty - whether Magistrate's discretion constrained by submissions of prosecutor as to penalty sought - appeal dismissed.
Food Act 2001 s 17, s 21, s 29; Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Bennett [2005] SASC 55, discussed.
Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; R v Malvaso & Ors (1989) 50 SASR 593; R v A [2003] SASC 121; R v Nowak (2000) 76 SASR 551, considered.

GOLDEN EGGS PTY LTD v CITY OF PORT ADELAIDE ENFIELD
[2005] SASC 279
Magistrates Appeal

VANSTONE J: This is an appeal against a penalty imposed in the Magistrates Court for offences against the Food Act 2001 (“the Act”). The offences were committed by the defendant company on three different occasions.
On 25 March 2004 the defendant committed an offence of selling food in a manner that contravenes a provision of the Food Standards Code, contrary to s 21(4) of the Act. The food in question was eggs which were cracked. On the same day the defendant committed an offence against s 17(2) of the Act, being selling food that is unsuitable. The food sold was eggs, to the outside of which was affixed “surface dirt and faecal material which tested positive to the presence of Salmonella Singapore”. Then on 29 March 2004 the defendant committed a further offence against s 21(4) of the Act, again selling cracked eggs. Finally on 15 April 2004 another offence against s 21(4) was committed, again consisting of selling cracked eggs. The learned magistrate imposed one penalty in relation to all four offences, being a fine of $25,000.
It was proved before the magistrate that the defendant company operated a retail outlet at Klemzig where eggs were displayed and sold to the public. That was a minor part of the defendant’s business which was principally wholesaling of eggs. It appears that the Klemzig shop front was in the nature of a “seconds outlet”.
There was expert evidence before the magistrate outlining the risk of infection from Salmonella associated with the consumption of cracked eggs. The second count to which the defendant pleaded guilty tended to underline that risk. A concerning feature of this course of offending was the fact that the offending continued in the face of council officers attending at the premises, detecting the offences and speaking to the defendant’s staff about them. Further, all the offending occurred against the background of a letter written by an officer of the Department of Health Services to a representative of the defendant company on 8 July 2003 warning of the risks associated with selling cracked eggs and noting the company’s confirmation that it would no longer sell cracked or dirty eggs. The writer foreshadowed further surveillance to ensure compliance and possible legal action in the instance of further breaches.
Section 21(4) of the Act prescribes a maximum penalty of $250,000 where the offender is a body corporate. Section 17(2) prescribes a maximum penalty of $200,000 for a body corporate. Those maxima apply where the offences are dealt with as minor indictable offences. However under s 29(2) of the Act the prosecuting authority may elect to charge such offences as summary offences, in which case the maximum penalty for each is reduced to $10,000. Section 29 also provides that such offences can be dealt with as expiable offences and in that event the expiation fee for a body corporate is $2,500. In this case the prosecuting authority noted its election to charge the defendant with summary offences on the complaint and summons.
The sole ground of appeal complains that the penalty is manifestly excessive “based on [the] totality principle”. Mr E Jolly, who appeared for the appellant, argued that in framing the penalty the magistrate should first have determined what were the penalties appropriate for the individual offences, that he should have then aggregated those penalties and proceeded to make deductions from the total by giving credit for the pleas of guilty and by application of the totality principle. He argued that particularly having regard to the fact that the defendant had already suffered via the adverse publicity associated with these offences, the total fine was manifestly excessive. Counsel also adverted to what he submitted was an unusual feature of the penalty. In submissions on behalf of the prosecution it was put that an appropriate penalty would be of the order of twice the expiation fee which would otherwise have been applicable for each offence, giving a total of $20,000. Mr Jolly put that it was unusual that the penalty imposed should exceed that suggested by the prosecution.
It is not immediately apparent to me that the totality principle, as such, has any relevance to the imposition of one or more fines. The principle seems to have had its genesis and to have developed in the context of sentences of imprisonment: Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; Johnson v The Queen (2004) 78 ALJR 616. The principle requires a sentencing court when adding up specific punishments for a number of offences to take a “last look” at the total to see if the aggregate is just and appropriate: Thomas, Principles of Sentencing, 2^nd ed, 1979 pp 56-57. Having said that, I can see that the rationale underlining the principle could have relevance, at least to a degree, to penalties comprised of fines or other orders. I think that is consistent with the approach taken by The Chief Justice (with whom Debelle and Bleby JJ agreed) in Police v Nowak (2000) 76 SASR 551, 555 in respect of periods of licence disqualification. Nevertheless, it seems to me that regulatory offences such as these, raise different consideration from those which apply to imposition of long terms of imprisonment upon criminal offenders.
However, there is another difficulty in the way of Mr Jolly’s argument. The Court of Criminal Appeal has held that the totality principle has a limited role where one penalty for a number of offences is fixed pursuant to s 18A Criminal Law (Sentencing) Act 1988. In R v Bennett [2005] SASC 55 the Chief Justice (with whom White J and I agreed) made these observations at [15] and [16].
… The concept of totality has little or no part to play when a sentence is imposed, exercising the powers conferred by s 18A and the judge considers it appropriate to determine that sentence without attributing a notional sentence to each offence and considering whether such sentences should be cumulative or concurrent: cf R v Major (1998) 20 SASR 488; R v Place [2002] SASC 1001; (2002) 81 SASR 395 at [114].
In arriving at a sentence without determining the sentence that each offence will attract separately, the judge will necessarily have regard to the total period of imprisonment that is appropriate. No further reduction under the totality principles should usually be called for.
In this case the magistrate did not appear to fix a provisional penalty in relation to each offence. Nor in my view was he obliged to, having regard to the course of repeated offending and the approach he took. It is true that the magistrate did not specify what allowance he made for the pleas of guilty. The desirability of doing so has been alluded to in a number of cases before the Full Court. In this case factors relevant to the credit to be given for the pleas would have included that there was, on the face of it, no defence to these offences and that they were accompanied by an element of defiance, which would tend to undermine any professed contrition for the offences. However, the preparedness to enter the pleas to facilitate the course of justice was worthy of some credit.
In the end the question is whether, having regard to all the circumstances of the matter, including the submissions made on behalf of the defendant, the penalty was outside the range available to the magistrate. If the matter were approached mathematically and it were assumed that the magistrate had in mind the same penalty on each offence, then it would appear that in each case more than half the maximum fine was levied. That would tend to make the penalties appear to be moderately severe. However it would have been open to the magistrate to take the view that the offences on the second and third occasions were more serious than those on the first occasion, by reference to the determination of the defendant to continue to sell cracked eggs when the dangers posed to the health of purchasers had been repeatedly brought home to it.
I conclude that the magistrate was entitled to take a serious view of this course of offending and that the total fine imposed was within the range of his discretion. His discretion was not, and could not be, limited by the prosecutor’s position. See R v Malvaso & Ors (1989) 50 SASR 503; R v A [2003] SASC 121.
I would dismiss the appeal.