Hungry Jacks Pty Ltd v City of Bayswater
[2013] WASC 199
•29 APRIL 2013
HUNGRY JACKS PTY LTD -v- CITY OF BAYSWATER [2013] WASC 199
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 199 | |
| Case No: | SJA:1004/2013 | 29 APRIL 2013 | |
| Coram: | HALL J | 29/04/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Fine of $75,000 set aside and fine of $40,000 substituted | ||
| B | |||
| PDF Version |
| Parties: | HUNGRY JACKS PTY LTD CITY OF BAYSWATER |
Catchwords: | Criminal law Appeal against sentence Sale of unsuitable food Offence under the Food Act 2008 (WA) Whether fine of $75,000 manifestly excessive in the particular circumstances |
Legislation: | Food Act 2008 (WA), s 18(2) |
Case References: | Brittain v Mansour [2013] VSC 50 Chan (1989) 38 A Crim R 337 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Golden Eggs Pty Ltd v City of Port Adelaide Enfield [2005] SASC 279 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hudson v Kim Wong Wah [2010] ACTSC 62 Kaye v Siddiq [2013] ACTSC 62 Lowndes v The Queen (1999) 195 CLR 665 Royer v State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CITY OF BAYSWATER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE E D CAMPIONE
File No : PE 19167 of 2012
Catchwords:
Criminal law - Appeal against sentence - Sale of unsuitable food - Offence under the Food Act 2008 (WA) - Whether fine of $75,000 manifestly excessive in the particular circumstances
(Page 2)
Legislation:
Food Act 2008 (WA), s 18(2)
Result:
Leave to appeal granted
Appeal allowed
Fine of $75,000 set aside and fine of $40,000 substituted
Category: B
Representation:
Counsel:
Appellant : Mr P D Yovich
Respondent : Mr D P Gillett
Solicitors:
Appellant : SRB Legal
Respondent : McLeods
Case(s) referred to in judgment(s):
Brittain v Mansour [2013] VSC 50
Chan (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Golden Eggs Pty Ltd v City of Port Adelaide Enfield [2005] SASC 279
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hudson v Kim Wong Wah [2010] ACTSC 62
Kaye v Siddiq [2013] ACTSC 62
Lowndes v The Queen (1999) 195 CLR 665
Royer v State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
(Page 3)
- HALL J:
(These reasons were delivered orally and have been edited from the transcript)
Introduction
1 On 21 December last year the appellant was convicted of selling unsuitable food contrary to s 18(2) of the Food Act 2008 (WA). That conviction followed a two day trial on 29 and 30 November 2012. The magistrate imposed a fine of $75,000 and ordered the appellant to pay costs. The appellant now seeks leave to appeal against the sentence.
2 There is a single ground of appeal, namely, that the sentence was manifestly excessive; that is to say, no express error is asserted, rather it is submitted that the fine is too high having regard to the particular circumstances of the offence. It is submitted that the size of the fine in itself indicates an error in the exercise of sentencing discretion.
Factual background
3 The relevant facts are as follows. The appellant operates the Hungry Jack's chain of hamburger stores. One of those stores is in Morley. On 2 February 2012 a customer, Ms Melissa Bayle, attended that store and purchased some food at the drive-through section. The food included some onion rings.
4 Ms Bayle took the food home and ate it there. In eating the onion rings, she noticed something hard, which caused her to choke. She coughed up the item, which she described as a piece of steel thread. She took a photograph of the item, which was just under one and a half centimetres long. The item was referred to as a 'drill swarf' during the trial.
5 Ms Bayle contacted the restaurant from which she had bought the food. She received an apology and an offer of replacement food, which she declined. She also subsequently received a refund of the cost of the food.
6 Ms Bayle felt some soreness in her throat. She attended a doctor later that day. She was told that while her throat was "a bit red", it would be fine. There was no suggestion of any serious or long term ill effects.
7 Ms Bayle reported the matter to the relevant local authority, the City of Bayswater. An investigator conducted an inspection of the restaurant
(Page 4)
- the next day, 3 February 2012. There was some maintenance work occurring in the kitchen area and the manager confirmed that the work had commenced the previous day. That work included drilling holes in metal surfaces. This was the likely source of the metal drill swarf.
8 The appellant did not accept that the metal item was a product of the maintenance work. It submitted that a contamination from that source was inconsistent with its cleaning regime, about which there was extensive and detailed evidence. It suggested that the item may have come in a bag of uncooked onion rings from the supplier and was not noticed when the bag was emptied into a cooker. The appellant relied upon the defence that it took all reasonable precautions and exercised all due diligence to prevent the commission of the offence: See s 27 of the Food Act.
9 The magistrate did not accept that the defence was made out. She concluded that the metal item came from the store or was brought into the store by the tradesman who undertook the maintenance work. She was not satisfied that all due diligence had been exercised at the store to prevent this incident. In particular, she found that there were no spot checks to ensure that staff were complying with food safety standards. Whilst there was evidence of training, there was also evidence that compliance with the food safety regime was not always complied with.
10 The magistrate concluded that the area around the relevant food preparation area had not been properly cleaned and inspected following the drilling work. She found that the appellant's employees had not been trained in appropriate supervision of tradesmen who came into the store to do work.
Sentence
11 In sentencing, the magistrate acknowledged that the appellant had no prior record. She said she regarded this offence as an aberration. She then said:
It is important to state that whilst this could have caused serious injury, the evidence from Ms Bale was that it was lodged in her throat. She choked up the foreign object. She did attend a GP, but in my view it was for an abundance of caution more than anything else. In her evidence her only complaint of injury was a sore throat.
It's also important to distinguish this from other category of unsuitable food complaints that come before the court. In this instance the complaint did not relate to vermin, spoilt food, or anything deliberate, negligent or
(Page 5)
- reckless. In this case it falls within a different category and it is, in my view, an unfortunate instance of where there was preventable options available to Hungry Jacks if its systems and procedures had not been let down in the way I have described in these reasons.
I don't regard this as falling into a serious category. Taking into account the matters that I have referred to in these reasons I don't regard this as requiring a penalty that is at the upper end of the scale. In my view it doesn't fall at the lower end of the scale either, and it's in the lower to moderate category of this type of offence in all the circumstances.
Having regard to those matters and the fact that it is a first conviction, on a plea of not guilty, for this entity, I have decided to impose a fine of $75,000 (ts 5).
Merits of the appeal
12 Turning to the merits of the appeal, sentencing is a discretionary exercise. It is not enough that an appellate court might have exercised a discretion differently or that other dispositions might have been open. In order to succeed the appellant must show that there has been an error in exercising discretion such as acting on a wrong principle, mistaking the facts or taking into account irrelevant considerations: See Lowndes v The Queen (1999) 195 CLR 665 and House v The King (1936) 55 CLR 499; [1936] HCA 40.
13 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.
14 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).
15 The maximum penalty for the offence of selling unsuitable food contrary to s 18(2) of the Food Act is $40,000 for an individual and $200,000 for a body corporate. I note that 'unsuitable' is defined in s 13
(Page 6)
- and includes food that contains some matter or substance that is foreign to the nature of the food. The maximum penalties indicate the potential seriousness of offences of this type.
16 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.
17 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.
18 As to the standards of sentencing, there are no reported cases under the Food Act (WA). However, the appellant has referred me to cases in other jurisdictions under similar legislation. Those cases are Kaye v Siddiq [2013] ACTSC 62; Brittain v Mansour [2013] VSC 50; Hudson v Kim Wong Wah [2010] ACTSC 62 and Golden Eggs Pty Ltd v City of Port Adelaide Enfield [2005] SASC 279.
19 I have considered those cases and accept that the fine imposed here was much higher than any imposed in those cases. 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.
20 The appellant has also referred to penalties for offences published on the Health Department web site. Four of those relate to the sale of unsuitable food, but the information is scant. It is not clear whether the offenders were corporations or individuals or whether the convictions occurred after trial or a plea of guilty. The information that has been extracted from the website is reproduced in the following table:
(page 7)
| Defendant | Date of Offence | Date of Sentence | Penalty | Details |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$30,000 fine, $3,416.40 costs |
Breach of section 20(1), 2 offences of raw chicken patties in burgers sold. |
21 Accepting the limitations of this information, it is evident that the fine here was very significantly higher than any in those cases. The number of cases is not, however, sufficient to discern a range of fines customarily imposed for this offence.
22 As to the circumstances of this offence, it could not be described as trivial. The item in question was not merely offensive or unpleasant; it was potentially dangerous. It was fortunate that Ms Bayle was not more seriously harmed. It was, however, a single item that could only ever have impacted on one customer. There was nothing to suggest that any similar items had found their way into food sold by the appellant.
23 The causes of the offence were a relevant consideration. The magistrate's findings that there had been failings in the implementation of food handling systems, the supervision of tradesmen and cleaning procedures were relevant. This was, in light of those findings, a preventable offence.
(Page 8)
24 The statement that the offence was an aberration might be thought to be at odds with the factual findings. However, the magistrate clearly intended that her sentencing remarks would be read with her written reasons for decision. In my view, the reference to this being an aberration was a recognition that the appellant otherwise had an unblemished record and that whilst there had been systems failures, they had led to no other similar incidents.
25 In my view, the relevant factors for sentencing for an offence of this nature are as follows:
(1) the nature of the contamination or foreign object, its size and type;
(2) the impact or potential impact of the unsuitable food upon the health or wellbeing of customers;
(3) whether the incident is an isolated one or part of some systemic failure;
(4) the immediate causes of the incident and the extent to which there has been any failure to adopt appropriate standards and processes for food handling; and
(5) the importance of imposing a penalty that will act as a meaningful deterrent and an encouragement to maintain appropriate standards.
26 Taking those factors into account here, the item in question was small but potentially dangerous. There was nothing to suggest that other similar items had found their way into food and any potential harm was limited to one customer. That is not to detract from the seriousness, but it is possible to envisage circumstances where large numbers of potential customers may be at risk.
27 The appellant had made some efforts to put in place appropriate systems and training. The magistrate found that they were inadequate to deal with the particular circumstances of maintenance work in the kitchen area, but there was nothing to suggest that this was a frequently occurring event or represented a significant risk to consumers.
28 It was important that any penalty incorporated an element of deterrence. There may be a danger that small fines will not achieve that purpose if the cost of compliance is greater than the fine. However, there is nothing to suggest that a lower fine would not have achieved a deterrent impact here. It is also important to recognise that a conviction for an
(Page 9)
offence of this nature impacts upon corporate reputation, particularly for a food retailer, and in itself has deterrent impact.
29 It is accepted that the appellant is a large scale food industry operator. That places its previous unblemished record into context. Of course, it does not reduce the seriousness of this offence. No operator, however large it be or good its prior record, is entitled to be judged other than by the uniform standards imposed by the law. Equally, however, a large company should not be punished more harshly than the circumstances of the offence justify merely because its means are greater.
The penalty imposed must be one that is commensurate with the seriousness of the offence: s 6 Sentencing Act.
Conclusion
30 In my view, the magistrate was correct to characterise this offence as one falling into the lower or moderate category for this type of offence. The fact that the appellant was a first offender and had clearly made efforts to avoid contamination of food was also relevant. Whilst there was no plea of guilty, the issues in the trial were confined to the question of reasonable diligence and factual issues were not in contest. In those circumstances, a fine of $75,000 was, in my view, manifestly excessive. Accordingly, I will grant leave to appeal and allow the appeal, set aside the fine of $75,000 and resentence the appellant.
31 Having considered all of the relevant circumstances I consider that an appropriate fine is $40,000. That fine reflects the nature of this particular offence whilst recognising the appellant's prior good record. It is also a fine which adequately incorporates both general and specific deterrence.
2
9
1