Kaye v Siddiq
[2013] ACTSC 62
•26 March 2013
Andrew Kaye v Khawar Siddiq
[2013] ACTSC 62 (26 March 2013)
CRIMINAL LAW – review appeal from the Magistrates Court to the Supreme Court – jurisdiction – breach of the Food Code – objective seriousness of offence - penalty
Food Act 2001 (ACT)
Food Standards Code (ACT)
Court Procedures Rules 2006 (ACT)
Court Procedures Act 2004 (ACT)
Magistrates Court Act 1930 (ACT)
Crimes (Sentencing) Act 2005 (ACT)
Hudson v Wong (2010) ACT SC 108
Griffiths v the Queen (1976-1977) 137 CLR 293
R v Tate and Bartley (1979) 24 ALR 473
Cranssen v the King (1936) 55 CLR 509
Everett v the Queen (1974) 181 CLR 295
EX TEMPORE JUDGMENT
No. SCA 90 of 2012
Judge: Nield AJ
Supreme Court of the ACT
Date: 26 March 2013
IN THE SUPREME COURT OF THE )
) No. SCA 90 of 2012
AUSTRALIAN CAPITAL TERRITORY )
Andrew Kaye
Appellant
v
Khawar Sidiq
Respondent
ORDER
Judge: Nield AJ
Date: 26 March 2013
Place: Canberra
THE COURT ORDERS THAT:
The Crown’s appeal against sentence is allowed.
The fine of $1,800.00 imposed upon the respondent by Magistrate Dingwall on 17 October 2012 is set aside.
The respondent is fined $10,625.00.
The respondent is to pay Magistrates Court costs of $67.00.
The respondent is allowed three months for the payment of the fine and costs.
Pursuant to s. 219F(8) of the Magistrate’s Court Act, the appellant is to pay the Respondent’s costs of and incidental to the appeal, such costs to be agreed or, if not agreed, taxed on a party/party basis.
The appellant is the Crown, represented by the ACT Director of Public Prosecutions. The Crown has appealed from a fine of $1,800.00 imposed upon the respondent on 17 October 2012 by Magistrate Dingwall in the ACT Magistrates Court for an offence committed by him on 15 February 2011 in breach of the provisions of the ACT Food Act upon the ground that the fine is manifestly inadequate.
The respondent is Mr Khawar Siddiq. He is a restaurateur who, as at 15 February 2011, operated a restaurant known as Taj Agra Indian Restaurant at 35 Woolley Street, Dickson. As his date of birth does not appear on any of the papers provided to me, I do not know his age, then or now, but I understand that he was aged about 50 years when he appeared before Magistrate Dingwall.
At 5.55 pm on 15 February 2011 public health officer Mr Paul Reynolds attended at Taj Agra Indian Restaurant to conduct a food safety inspection. His inspection revealed several failures to comply with the requirements of the Food Standards Code under the Food Act. He photographed the various failures.
On 16 February 2011 Mr Brian Jones, environmental health operations manager, issued, after consultation with Mr Reynolds, a prohibition order requiring the respondent to cease operations at Taj Agra Indian Restaurant and to undertake such repairs and/or renovations to the restaurant to make it meet the standards of cleanliness required of a restaurant. The prohibition order was served upon the respondent at about 11 am on 16 February 2011. The prohibition order would remain in force until revoked.
On 21 February 2011 public health officers Mr Andrew Kaye and Mr Lyndell Hudson attended at Taj Agra Indian Restaurant for a follow-up inspection. They found that the restaurant had been repaired and/or renovated to meet the standards of cleanliness for a restaurant, and they so informed Mr Jones.
Accordingly, either on 21 or 22 February 2011, Mr Jones revoked the prohibition order, allowing the respondent to reopen Taj Agra Indian Restaurant to the public for business.
On 13 February 2012 Mr Kaye filed ten informations in the ACT Magistrates Court against the respondent alleging breaches of the Food Act and requiring the respondent to appear before the Magistrates Court on 27 March 2012 to answer the charges.
In due course, on 10 August 2012 the respondent appeared, either by himself or with his legal representative, before a magistrate in the Magistrates Court, and he pleaded guilty to some or all of the ten charges, and the proceedings were stood over to 31 August 2012 for a sentencing hearing. The court’s file does not allow me to say to what charges the respondent entered guilty pleas.
On 31 August 2012 the respondent appeared with his legal representative before Magistrate Dingwall in the Magistrates Court on the sentencing hearing. On this occasion Magistrate Dingwall raised for consideration his suggestion that there should be only one charge, that charge alleging all of the separate breaches of the Food Standards Code, rather than ten charges, each charge alleging a separate breach of the Code. Magistrate Dingwall stood over the sentencing hearing to 17 October 2012.
On 17 October 2012 the respondent, with his legal representative, appeared again before Magistrate Dingwall in the Magistrates Court for the sentencing hearing. On this occasion Magistrate Dingwall returned to his suggestion made on 31 August 2012. The Crown prosecutor told Magistrate Dingwall that the view of the Director of Public Prosecution was that each failure to comply with the Food Standards Code grounded a separate charge, and that the ten proceedings were both appropriate and in order. However, and without seeking the assistance of the respondent’s counsel, Magistrate Dingwall backed the Crown prosecutor into the position where he accepted an amendment to charge case 2012/40158 to include references to the failures to comply with the various clauses of the Food Standards Code referred to in charge cases 2012/40159, 40160, 40162 and 40165, with charge cases 2012/40156, 40157, 40161, 40163 and 40164 being dismissed without any evidence being offered, and charge cases 2012/40159, 40160, 40162 and 40165 being permanently stayed.
The particulars of the five breaches of the Food Act are these:
(1) The failure to comply with Food Standards Code clause 3.2.2(19) in relation to cleanliness, in that the premises were generally unclean with food waste and dirt on the floor in some areas, baked on oil and food matter on some equipment, food matter hanging from metal shelving in the cool room, food waste and dirt on the lids of some food storage containers, and the tiles behind the sink were broken and dirty (charge case 2012/40158).
(2) The failure to comply with Food Standards Code clause 3.2.2(6) in relation to food storage, in that some food stuffs were stored in uncovered containers in the cool room and on the bench next to the stove top (formerly charge case 2012/40159).
(3) The failure to comply with the Food Standards Code 3.2.2(20) in relation to cleaning and sanitising specific equipment, in that the bench next to the stove top was in such a deteriorated state that it could not be cleaned to a standard that would prevent contamination of any food placed on it (formerly charge case 2012/40160).
(4) The failure to comply with Food Standards Code clause 3.2.2(24) in relation to pests, in that live and dead cockroaches were found in some areas of the premises, holes in the fly screen door allowed pests to enter into the premises, and damage to some tiles on the walls provided places for pests to hide (formerly charge case 2012/40162).
(5) The failure to comply with Food Standards Code clause 3.2.3(14) in relation to hand washing facilities, in that soap and towels were not provided in the kitchen for workers handling food (formerly charge case 2012/40165).
These breaches were detailed in the statement of facts provided to Magistrate Dingwall.
In addition to the statement of facts, Magistrate Dingwall was provided with:
By the Crown prosecutor:
(1) A collection of 50 photographs taken by Mr Reynolds on 15 February 2011, which showed clearly and graphically the unclean and unsatisfactory state of the kitchen, store room and cool room, and the food stored in those areas of the restaurant.
By the respondent’s counsel:
(2) A collection of 10 photographs apparently taken on 30 August 2012 which showed the state of the kitchen, store room and cool room after the respondent had taken steps to make those areas comply with the requirements of the Food Standards Code.
(3) A bundle of 27 invoices rendered by Pete’s Pest Management for general pest control services, of which 23 related to the period before 15 February 2011 and four related to the period after 15 February 2011.
(4) A bundle of documents containing:
i. nine testimonials;
ii. six certificates of appreciation, three dated before 15 February 2011 and three dated after 15 February 2011;
iii. a statement of attainment issued 19 January 2012 to Amir Siddiq for successfully completing workplace hygiene procedures;
iv. a statement of attainment issued 27 January 2012 to Mr Krishan Lal for successfully completing workplace hygiene procedures;
v. three pages of a contract of employment dated 12 December 2010 between the respondent and Mrs Siddiq and Mr Mohammad Alam.
After reading the various documents and viewing the various photographs, Magistrate Dingwall invited submissions from the respondent’s counsel and the Crown prosecutor.
During submissions, the respondent’s counsel, without calling any further evidence from witnesses, submitted to Magistrate Dingwall that he should take into account in the determination of an appropriate penalty that:
(1) the respondent had not been dealt with for any previous offence and was therefore a man of unblemished character;
(2) the respondent was well-liked and well-respected by those who knew him well, as revealed by the testimonials;
(3) the respondent had spent an amount between $20,000.00 and $25,000.00 in effecting repairs and renovations to the kitchen, store room and cool room of the restaurant to bring those areas up to the Food Standards Code;
(4) the respondent had lost about $15,000.00 income in the period between 15 February 2011 and 21 February 2011, during which the restaurant was closed for repairs and renovations;
(5) the respondent faced only one charge, with that charge falling at the bottom of the range of objective seriousness for offences of its kind, particularly as the prosecution had not suggested that the respondent had handled food in an unsafe way or sold contaminated food to the public;
(6) the respondent had entered a guilty plea to the charge at the earliest appropriate opportunity, thereby entitling him to a significant discount in penalty.
After the respondent’s counsel had completed his submissions, the Crown prosecutor submitted to Magistrate Dingwall that he should take into account that:
(1) although the respondent faced only one charge, it was a charge under section 27(1) of the Food Act, for which the prescribed penalty was a fine of a maximum of 5,000 penalty units, equal to $55,000.00, and the particulars of the charge related to five separate breaches of the Food Standards Code;
(2) although the photographs taken on 15 February 2011 showed the dirty and unclean state of the kitchen, store room and cool room on that date, that state had not occurred overnight but had developed over a period of time, with the potential for food kept in the store room or cool room or prepared in the kitchen to be contaminated;
(3) although the respondent may have learned a lesson, deterrence, particularly general deterrence, was important.
In giving his reasons for sentence, Magistrate Dingwall referred to and took into account the following factors, albeit not in the following order or in the following words:
(1) that the respondent was to be dealt with for one offence, with that offence covering five breaches of the Food Standards Code, with the penalty being a fine of a maximum of $55,000.00;
(2) the circumstances surrounding the five breaches of the Food Standards Code, as detailed in the statement of facts;
(3) the fact that the offence was objectively serious;
(4) that the respondent had pleaded guilty to the offence, albeit that the guilty plea was entered “relatively late”, thereby showing his “insight into his offending behaviour” and his remorse;
(5) that the respondent was a man of “very good character” who, in addition, “has made significant contributions in a charitable way, in a voluntary way, to organisations in the community”;
(6) that the respondent had conducted restaurant businesses in Canberra for 14 years without failing a previous or subsequent food safety inspection;
(7) that the respondent had spent between $20,000.00 and $25,000.00 in rectifying the kitchen and other areas of the restaurant to meet the required standards of the Food Standards Code.
(8) that the respondent “lost approximately $15,000.00 in net proceeds” during the six days period that the restaurant was closed;
(9) the need for deterrence, both specific - that is, personal - and general, although “there is very little need for further specific deterrence, given the defendant’s character and his attitude to the offence”.
After referring to the various factors that he said he took into account, Magistrate Dingwall convicted the respondent of the offence, fined him $1,800.00, ordered that he pay court costs of $67.00, making a total of $1,867.00, and allowed him 28 days within which to pay the fine and costs.
On 13 November 2012 the Director of Public Prosecutions filed the Crown’s notice of appeal. The grounds relied upon are that:
(1) the fine was manifestly inadequate;
(2) Magistrate Dingwall erred in the assessment of the objective seriousness of the offence;
(3) Magistrate Dingwall erred in the lack of weight placed on the principle of general deterrence;
(4) Magistrate Dingwall erred in placing too much weight on the subjective circumstances of the respondent;
(5) Magistrate Dingwall erred in taking into account irrelevant considerations.
The notice of appeal carried the endorsement that a directions hearing to settle the appeal papers would be held at 2.30 pm on 13 December 2012.
On 3 December 2012 the Director of Public Prosecutions sent a sealed copy of the notice of appeal, under cover of a letter of that date, to the solicitors who had acted for the respondent on the proceedings in the Magistrates Court. The letter and copy notice of appeal were received by the solicitors on 5 December 2012.
On 15 March 2013 the Crown’s appeal came on for hearing before me. The Director of Public Prosecutions represented the Crown, and Mr Hassall, of counsel, who had appeared for the respondent before Magistrate Dingwall, represented the respondent. I heard submissions from counsel, after which I stood over my judgment to a date to be fixed.
There are two things that I want to say about what happened before Magistrate Dingwall before I consider the issues raised in the appeal.
The first thing is this. Magistrate Dingwall ought not to have suggested that there should be only one charge, it alleging all of the separate breaches of the Food Standards Code, rather than ten charges, each alleging a separate breach of the Code. It was not for him, as the judicial officer who was to hear the charges brought by the Director of Public Prosecutions against the respondent, to decide what charges should be brought against the respondent and how those charges should be framed. It was for the Director of Public Prosecutions to decide what charges should be brought against the respondent and how those charges should be framed, this being the function of the Director of Public Prosecutions. Of course, if a party charged with having allegedly committed a criminal offence considers that the charge is bad for duplicity, that party may raise the issue with the judicial officer who is to hear the charge and ask for an appropriate ruling. Indeed, it might be thought that the “rolled up” charge to which the respondent pleaded guilty is bad for duplicity. I wonder, I ask rhetorically, how an accused person may plead to such a rolled up charge? Could he or she plead guilty to some of the particulars of the charge and not guilty to some other particulars of the charge? I ask also, again rhetorically, how a judicial officer could deal with such a charge if the accused person pleaded guilty to some of the particulars of the charge and not guilty so some other particulars of the charge? However, in this case neither the Director of Public Prosecutions nor the respondent can complain about what happened because, in the end, both consented to Magistrate Dingwall doing what he did.
The second thing is this. Magistrate Dingwall did not have evidence that:
(1) the respondent had conducted restaurant businesses in Canberra for 14 years without failing a previous food safety inspection.
(2) the respondent had spent an amount between $20,000.00 and $25,000.00 in effecting repairs and renovations to the kitchen, store room and cool room of the restaurant; or
(3) that the respondent had lost about $15,000.00 income during the period that his restaurant was closed for repairs and renovations.
I appreciate that the respondent’s counsel told Magistrate Dingwall those things but, to repeat what I said in Hudson v Wong (2010) ACT SC 108 at paragraph 18:
I note that the sentencing proceedings before the magistrate were more informal than formal in that, although the Crown’s case was proved by the statement of facts, a series of damning photographs, and the respondent’s criminal record, the respondent did not give evidence or call evidence, but relied upon his legal representative telling the magistrate his instructions about him, his family, his employment history, his character, the circumstance in which the offences were committed, and his attitude to the offences. I realise that this approach to sentencing proceedings is often usual in a busy Magistrates Court, but I comment that the informality of a Magistrates Court does not relieve an offender or his or her legal representative from adducing appropriate evidence thought to be relevant to mitigate an offence or offences.
And in this regard, I note that section 115(1) of the Magistrates Court Act provides that the defendant, or a lawyer representing the defendant, may address the court after all the evidence for the informant and the evidence, if any, for the defendant - I repeat, and the evidence, if any, for the defendant - and for the informant in reply has been given.
Is the appeal competent?
The respondent’s counsel submitted that the Crown’s appeal is incompetent because a sealed copy of the notice of appeal was not served upon the respondent not later than seven days after the notice was filed as required by Rule 5107 of the Court Procedures Rules 2006 made under the Court Procedures Act 2004.
Division 3.10.3, “Review appeals in criminal cases”, of the Magistrates Court Act provides for an appeal by the Crown against certain sentences or penalties imposed by a magistrate.
Sections 219B, C, D and F are relevant. These sections provide that:
219B Decisions subject to review appeal
(1) Each of the following is a decision of the Magistrates Court from which an appeal by way of review (a review appeal) may be made in accordance with this division:
(a) an order of the Magistrates Court dismissing an information dealt with by that court under this Act, part 3.6 (Proceedings for offences punishable summarily) or part 3.7 (Service and pleading by post for certain offences) or under the Crimes Act, section 374 or section 375;
(b) a conviction by the Magistrates Court for an offence dealt with by that court under this Act, part 3.6 or part 3.7 or under the Crimes Act, section 374 or section 375;
(c) an order made under this Act, section 113 or section 114 in a proceeding dealt with by the Magistrates Court under this Act, part 3.6 or under the Crimes Act, section 374 or section 375;
(d) a decision of the Magistrates Court not to commit a person to the Supreme Court for sentence under section 92A;
(e) a decision of the Magistrates Court to dispose of a case summarily under the Crimes Act, section 374 or section 375 (7) or (8);
(f) a sentence or penalty imposed by the Magistrates Court for an offence dealt with by that court under this Act, section 90A, part 3.6 or part 3.7 or under the Crimes Act, section 374 or section 375.
(2) In subsection (1) (f):
sentence or penalty includes a sentence or penalty imposed by an order of the Magistrates Court under—
(a) any of the following provisions of the Crimes (Sentencing) Act 2005:
(i) part 3.2 (Sentences of imprisonment);
(ii) part 3.3 (Non-custodial sentences);
(iii) part 3.4 (Non-association and place restriction orders);
(iv) part 3.5 (Deferred sentence orders);
(v) part 3.6 (Combination sentences); or
Note Orders under the Crimes Act 1900, pt 18 (Conditional release of offenders) are taken to be orders under the Crimes (Sentencing) Act 2005 (see Crimes (Sentence Administration) Act 2005, ch 16).
(b) the Crimes (Sentence Administration) Act 2005, part 6.6 (Good behaviour orders—amendment and discharge).
219C How review appeal is instituted
(1) A review appeal must be instituted by the appellant filing a notice of appeal in the Supreme Court within 28 days after the day the conviction was entered, the order or decision was made or the sentence or penalty imposed, or within any further time the Supreme Court allows.
(2) As soon as practicable after instituting the appeal, the appellant must—
(a) file a copy of the notice of appeal in the Magistrates Court; and
(b) serve a copy of the notice of appeal on—
(i) for an appeal mentioned in section 219B (1) (b) or (c)—the director of public prosecutions; and
(ii) for any other appeal—the person who was the defendant in the proceeding in the Magistrates Court.
219D Grounds for review
The Supreme Court may review a decision of the Magistrates Court under this division on any 1 or more of the following grounds:
(a) that there was a prima facie case of error or mistake on the part of the Magistrates Court;
(b) that the Magistrates Court did not have jurisdiction or authority to make the decision;
(c) that the decision of the Magistrates Court should not in law have been made;
(d) for a decision mentioned in section 219B (1) (d) or (e)—that, in the circumstances of the case, the decision should not have been made;
(e) for a decision mentioned in section 219B (1) (f)—that the sentence or penalty was manifestly inadequate or otherwise in error.
219F Powers of Supreme Court
(1) On a review appeal, the Supreme Court may, after considering the evidence before the Magistrates Court and any further evidence called by leave of the Supreme Court—
(a) dismiss the appeal if satisfied that the decision of the Magistrates Court should be confirmed; or
(b) set aside or quash, in whole or part, or otherwise vary or amend, the decision of the Magistrates Court.
(2) If, under subsection (1) (b), the Supreme Court sets aside, quashes or otherwise varies or amends a decision of the Magistrates Court, the Supreme Court may—
(a) for a decision mentioned in section 219B (1) (d)—order that the Magistrates Court commit the person to whom the decision relates to the Supreme Court for sentence under section 92A; or
(b) for a decision mentioned in section 219B (1) (e)—order that the Magistrates Court continue the committal hearing of the person to whom the decision relates in accordance with part 3.5; or
(c) for a decision mentioned in section 219B (1) (f)—
(i) impose the sentence or penalty the Supreme Court considers appropriate; or
(ii) by order, exercise any power that the Magistrates Court might have exercised; or
(d) in any other case—
(i) remit the matter to the Magistrates Court for rehearing or for further hearing with or without directions of law; or
(ii) make any other order the Supreme Court considers necessary to decide the matter finally, including a prohibition order or habeas corpus order.
(3) For the purpose of—
(a) correcting any defect or error in the proceeding before the Magistrates Court; or
(b) enabling the matter to be decided on the merits;
the Supreme Court may make the amendments of the proceeding in the Magistrates Court it considers appropriate.
(4) For subsections (1) (b) and (2) (c), the Supreme Court must not—
(a) vary a sentence or penalty such that the sentence or penalty as varied could not have been imposed by the Magistrates Court; or
(b) impose a sentence or penalty that could not have been imposed by the Magistrates Court.
(5) The Supreme Court may, despite the ground or any of the grounds for review mentioned in section 219D being established, dismiss the appeal if the court considers that no substantial miscarriage of justice has happened.
(6) On the dismissal of an appeal, the decision of the Magistrates Court appealed from may be enforced, executed or given effect to as if the appeal had not been instituted.
(7) If, in relation to a sentence or penalty mentioned in section 219B (1) (f), the Supreme Court—
(a) varies a sentence or penalty under subsection (1) (b); or
(b) imposes a sentence or penalty or makes an order under subsection (2) (b);
the sentence or penalty as varied or imposed or the order made has effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly.
(8) On an appeal under this division from an order, decision, sentence or penalty mentioned in section 219B (1) (a), (d), (e) or (f), the Supreme Court must order that the costs of and incidental to the appeal are payable by the appellant.
(9) Subsection (8) applies whether the Supreme Court dismisses the appeal or exercises any of the other powers given to it by this section.
The subject offence was dealt with by Magistrate Dingwall under Part 3.6, “Proceeding for offences punishable summarily”, of the Magistrates Court Act. The penalty imposed by Magistrate Dingwall was a fine order pursuant to section 14(2) of the Crimes (Sentencing) Act, which is a non-custodial sentence under Part 3.3 of the Crimes (Sentencing) Act (see sections 213B(1)(f) and (2)(a)(ii) of the Magistrates Court Act) and is a decision of the Magistrates Court from which an appeal by way of review, called a review appeal, may be made.
Section 219C of the Magistrates Court Act requires that “as soon as practicable after instituting the appeal” the appellant must file a copy of the notice of appeal in the Magistrates Court and serve a copy of the notice of appeal upon, inter alia, the person who was the defendant in the proceedings in the Magistrates Court. It is to be noted that the time period within which the appellant must serve a copy of the notice of appeal upon the respondent to the appeal is “as soon as practicable”.
However, as the respondent’s counsel has pointed out, Rule 5107 of the Court Procedures Rules requires that an appellant who files a notice of appeal in the Supreme Court must serve a sealed copy of the notice of appeal on each respondent “not later than seven days after the notice is filed, but no later than five days before the day for settling the appeal papers, unless the Supreme Court otherwise orders” (see sub-rule 5 of Rule 5107).
As I have said already, the notice of appeal was filed on 13 November 2012. The notice carried the endorsement that the appeal papers would be settled on 13 December 2012. A copy of the notice of appeal was sent to the respondent, care of the solicitors who had acted for him on the proceedings in the Magistrates Court, on 3 December 2012, and the copy notice of appeal was received by the solicitors on 5 December 2012. Then on 13 December 2012 the respondent’s counsel appeared before the Deputy Registrar for the settling of the appeal papers, and on 14 December 2012 the respondent’s solicitor filed the respondent’s notice of intention to respond. These several facts raise a number of questions, the first of which is this.
Is the service of a copy of the notice of appeal governed by the Magistrates Court Act or by the Court Procedures Rules? In my view the answer is that the Rules do not override or limit the Act.
The next question is this: was a copy of the notice of appeal served upon the respondent? In my view the answer is that a copy of the notice of appeal was not served upon the respondent, albeit that it was sent to the solicitors who had acted for him on the proceedings in the Magistrates Court, unless the solicitors had been authorised by the respondent to accept service of the copy of the notice of appeal on his behalf.
The third question is this: what effect did the appearance of the respondent’s counsel before the Deputy Registrar on 13 December 2012 for the settling of the appeal papers have upon the appellant’s failure to serve a copy of the notice of appeal on the respondent? In my view the answer is that the appearance of the respondent’s counsel before the Deputy Registrar cured any defect in the service of a copy of the notice of appeal on the respondent as the respondent had taken an unconditional step in the appeal proceedings.
The last question is this: what is the effect of the respondent’s solicitor filing a notice of intention to respond? The answer, as Rule 5109(2) of the Rules provides, is “the respondent is taken to have been served with a notice of appeal on the day the respondent files the notice of intention to respond”, which, like the respondent’s counsel’s appearance before the Deputy Registrar on 13 December 2012, cured any defect in the service of the copy of the notice of appeal upon the respondent.
I conclude, therefore, that the Crown’s appeal is competent.
The principles relating to a Crown appeal from a decision of the Magistrates Court to the Supreme Court based upon the ground of inadequacy of sentence
In Griffiths v the Queen (1976-1977) 137 CLR 293, Barwick CJ said at page 310 concerning an appeal by the Crown against a sentence imposed by a sentencing judge based upon the ground of inadequacy of sentence that:
Inadequacy of sentence, an expression not found in the Criminal Appeal Act 1912 (NSW) but which is the form in which the ground of the Attorney-General’s appeal is expressed, is not satisfied by a mere disagreement by the Court of Appeal with the sentence actually imposed. It means, in my opinion, such an inadequacy in the sentence that it is indicative of error or departure from principle.
In R v Tate and Bartley (1979) 24 ALR 473, the Court (Brennan, Deane and Gallop JJ), when referring to the general principles to be applied by a court of appeal on a Crown appeal against sentence, cited Cranssen v the King (1936) 55 CLR 509 at 519 that:
...the appeal is from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognised principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought to have been - which ought not to have affected the discretion or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restraint the intervention of this court to cases where the sentence appears unreasonable or has not been fixed in a due and proper exercise of the court’s discretion.
And the court said, at page 476, that:
An appellant court does not interfere with the sentence imposed merely because it is of the view that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error.
In Everett v the Queen (1974) 181 CLR 295, McHugh J said at page 306 that:
The jurisdiction to hear a Crown appeal against sentence is conferred on a court of criminal appeal so that that court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them, but inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question, but also in the general public. Inadequate sentences are also likely to undermine general to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice. If a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence the case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals.
From these cases, the following principle emerges: an appellant court does not interfere with a sentencing judge’s sentence unless:
(1) the sentencing judge (a) took into account an irrelevant factor, (b) failed to take into account a relevant factor, or (c) gave too much weight or too little weight to a relevant factor; or
(2) the sentence itself is so unreasonable, either so excessive or so inadequate, so as to show some error in principle.
Submissions
In the present case the Director of Public Prosecutions submitted that Magistrate Dingwall should not have taken into account that:
(1) the respondent had spent an amount between $20,000.00 and $25,000.00 in effecting repairs and renovations to the restaurant; and
(2) he had lost about $15,000.00 income in the period during which the restaurant was closed for repairs and renovations.
Furthermore, the Director of Public Prosecutions submitted that Magistrate Dingwall had given inadequate weight to:
(1) the objective circumstances of the offence; and
(2) the need for general deterrence;
and excessive weight to the subjective circumstances of the respondent.
The respondent’s counsel submitted that Magistrate Dingwall was correct in taking into account the respondent’s expenses and losses as showing the respondent’s acceptance of his responsibilities and his willingness to comply with the requirements of the Food Standards Code.
Furthermore, the respondent’s counsel submitted that Magistrate Dingwall was correct in his assessment of the objective seriousness of the offence and of general deterrence.
Decision
I am not prepared to say that the fact that Magistrate Dingwall took into account the respondent’s expenses in effecting repairs and renovations to his restaurant or his losses during the time when the restaurant was closed for repairs and renovations was incorrect. I think that these facts tend to confirm the genuineness of the respondent’s guilty plea, and to show his genuine remorse.
Furthermore, I am not prepared to say that Magistrate Dingwall undervalued the need for general deterrence. He referred to the number of restaurants in the Australian Capital Territory, the lack of resources of the appropriate department and the difficulty in policing compliance with the Food Standards Code, and he concluded, correctly in my view that,
“the most effective way of ensuring that people comply with the relevant standards to protect the public is to impose a sentence that has that element of general deterrence”.
However, as to his comment that
“general deterrence, of course, does not just flow from the fact that a penalty of any sort is imposed. It flows from the fact that a person is charged, the matter is heard in a public forum, and the offence is exposed to the public view. In many ways that, one might think, is a far greater deterrence than simply imposing a fine. People, I would imagine, value their reputations far more than they do the money they may have ultimately to pay by way of a fine”,
if he meant that publicity about someone being charged, tried, convicted and penalised is part of general deterrence then he was correct, but the fact of being, charged, tried, convicted and penalised is part of personal deterrence, not general deterrence.
However, I regret to say that Magistrate Dingwall gave inadequate weight to the objective seriousness of the offence.
Firstly, Magistrate Dingwall noted the fact that:
The premises were generally unclean. Both food and waste and dirt on the floor in some areas.
(And I comment that this fact was well-confirmed by the photographs taken by Mr Reynolds on 15 February 2011)
but then Magistrate Dingwall said:
I interpose here. That area appears to be in an area behind a fridge about the width of one tile, and, as I said, a fairly hidden-away area, and certainly not in an area in which food was generally being prepared.
This qualification of “the premises were generally unclean with food and waste and dirt on the floor in some areas” was incorrect.
Furthermore, Magistrate Dingwall noted the fact that:
Both live and dead cockroaches were found in various parts of the premises.
but then he said:
I interpose here that they were found on areas of the floor, somewhat secluded areas, but certainly not on or in any food or on any food preparation area or in respect of any pots, pans or anything of that nature.
This qualification of “cockroaches both live and dead were found in various parts of the premises” is incorrect. Moreover, ants as well as cockroaches were found on the premises. The danger caused by cockroaches and ants is that they hide by day and come out at night, and they travel wherever they wish over benches, sinks, food preparation areas, food preparation utensils, cooking utensils, and open containers of foodstuffs in the kitchen and cool room after the restaurant has been closed for the night.
As I have said, Magistrate Dingwall gave inadequate weight to the objective seriousness of the offence. He failed to appreciate the extent of the respondent’s failures and the potential consequences of those failures. I repeat what I said in Hudson v Wong that, at paragraph 31:
There cannot be any argument that the offences committed by the respondent are not serious offences. The public who eat in restaurants and who buy food from takeaway food shops have the right to expect and are entitled to expect that food intended to be sold and offered for sale will be prepared and cooked in a clean and healthy environment by people who adopt and maintain a high standard of personal cleanliness and hygiene using clean and safe equipment and utensils which are free of any contamination. As I have said already, the respondent had the responsibility to devise, implement and maintain a system to ensure that the restaurant was operated in accordance with and in compliance with the regulatory requirements, a responsibility that had to be taken seriously by the respondent, but a responsibility that he failed dismally to meet.
I am not prepared to say that Magistrate Dingwall gave excessive weight to the subjective circumstances of the respondent. He referred to the facts that the respondent was then aged 50 years, that he was of good character, that he was well-liked and well-respected, that he is a self-made man, and that he had a strong work ethic, all of which, accepting what the respondent’s counsel told Magistrate Dingwall, were correct. Magistrate Dingwall was correct in taking these factors into account in favour of the respondent, having regard to the way that the proceedings were conducted.
Furthermore, I regret to say that the fine determined by Magistrate Dingwall is so inadequate as to suggest some error in principle.
Magistrate Dingwall determined, balancing the various factors to which he referred, and “giving significant allowance for the plea of guilty and the cooperation with the authorities”, that the appropriate penalty was a fine of $1,800.00. He did not state a starting point for the determination of the fine. He did not state what discount he had given to the respondent for his guilty plea (see by analogy section 37 of the Crimes (Sentencing) Act). He did not state what was the cooperation that the respondent had given to the authorities, but which I suspect must have been that the respondent answered the questions put to him during an interview by Mr Kaye and Mr Jones on 15 April 2011, something which showed his realisation of his responsibilities and the breaches of his responsibilities, but did not amount to cooperation with the department, and he did not state what discount he had given to the respondent for this cooperation with the department (see again by analogy section 37 of the Crimes (Sentencing) Act).
If Magistrate Dingwall, after balancing the various objective and subjective factors other than the respondent’s guilty plea and cooperation with the department, then allowed the respondent a discount of 25 per cent, the maximum discount, for his guilty plea, and another 10 per cent for his cooperation with the department, then the starting point before the discount for those factors was about $2,700.00. This amount is obviously inadequate when it is understood that the fine is for a single offence which covers five separate serious breaches of the Food Standards Code, as referred to in paragraph 11 above, and which carries a penalty of a fine of a maximum of $55,000.00.
I am satisfied that the Crown has made good its appeal against the fine imposed by Magistrate Dingwall. I intend therefore to allow the Crown appeal and to re-sentence the respondent for the offence.
In determining an appropriate fine, I must recognise the purposes of sentencing outlined in section 7 of the Crimes (Sentencing) Act and I must have regard to the factors referred to in section 33(1) of the Act as are relevant and known by me.
I take into account the following factors, without repeating what I have said already about them:
(1) the objective seriousness of the offence;
(2) the respondent’s guilty plea, for which I allow a discount of 15 per cent;
(3) the respondent’s age;
(4) the respondent’s unblemished character;
(5) the respondent’s standing in the community;
(6) the respondent’s genuine remorse;
(7) the likelihood that the respondent will not reoffend;
(8) the real need for general deterrence; and
(9) the reduced need for personal deterrence.
Balancing these factors, other than the discount for the guilty plea, I determine that a fine of $12,500.00, which I reduce by 15 per cent, which is $1,875.00, to $10,625.00, is appropriate.
Result
I make the following orders:
(1) I allow the Crown’s appeal against sentence.
(2) I set aside the fine of $1,800.00 imposed upon the respondent by Magistrate Dingwall on 17 October 2012.
(3) I fine the respondent $10,625.00.
(4) I order that the respondent pay Magistrates Court costs of $67.00.
(5) I allow three months for the payment of the fine and costs.
(6) I order, pursuant to s. 219F(8) of the Magistrate’s Court Act, that the appellant pay the Respondent’s costs of and incidental to the appeal, such costs to be agreed or, if not agreed, taxed on a party/party basis.
I certify that the preceding fifty six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.
Associate:
Date: 2 April 2013
Counsel for the appellant: Mr J. White
Solicitor for the appellant: ACT Director of Public Prosecutions
Counsel for the respondent: Mr M. Hassel
Solicitor for the respondent: Tetlow Tigwell Watch Lawyers
Date of hearing: 15 March 2013
Date of judgment: 26 March 2013
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