Kids Kinder Childcare Pty Limited v The Department of Education

[2024] NSWDC 345

District Court

New South Wales

Medium Neutral Citation:

Kids Kinder Childcare Pty Limited v The Department of Education [2024] NSWDC 345

Hearing dates:

23 July 2024

Date of orders:

23 July 2024

Decision date:

23 July 2024

Jurisdiction:

Criminal

Before:

ANDERSON SC DCJ

Decision:

(1) I uphold the appeal.

(2) I confirm each of the convictions in the Local Court.

(3) I quash the orders of the magistrate and in lieu thereof vary the orders with respect to fines in some, but not all, of the sequences.

(4) The fines I will impose are as follows:

(a) Sequence 1, $2,200.

(b) Sequence 2, $25,600.

(c) Sequence 3, $1,840.

(d) Sequence 5, $32,000.

(e) Sequence 8, $29,000.

(f) Sequence 10, $5,000

(g) Sequence 11, $25,600

(h) Sequence 12, $8,280.

(i) Sequence 14, $1,380.

(j) Sequence 16, $25,600.

(k) Sequence 18, $920.

(l) Sequence 19, $29,200.

(5) The total is $186,620.

Catchwords:

Appeal – crime – childcare centres – abuse of position of trust – fines – lack of remorse and evidence rehabilitation – children as victims

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Children (Education and Care Services) National Law 2010 (NSW)

Education and Care Services National Regulations 2011

Cases Cited:

Engelbrecht v Director of Public Prosecutions of New South Wales [2016] NSWCA 290

Category:

Principal judgment

Parties:

Kids Kinder Childcare Pty Limited (Appellant)
The Department of Education (Respondent)

Representation:

Counsel:
Mr A Williams (Appellant)
Ms C Brain (Respondent)

Solicitors:
Meridian Lawyers (Appellant)
Crown Solicitors Office (Respondent)

File Number(s):

2023/80285

Publication restriction:

Pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the names of the victim, or any features which might tend to identify them, are suppressed.

 Decision under appeal 

Court or tribunal:

Sutherland Local Court

Jurisdiction:

Crime

Date of Decision:

3 May 2024

Before:

Magistrate H Donnelly

File Number(s):

2023/80285

JUDGMENT

1. This is my judgment in relation to the appeal from Kids’ Kinder Childcare Proprietary Limited and the Department of Education.

2. The appellant appeals against the severity of sentence imposed upon it on 3 May 2024 at the Local Court in Sutherland by Magistrate Donnelly. The offences occurred over a nine-month period starting March 2021 and ending in December 2021. The proceedings were commenced by three separate court attendance notices dated 10 March 2023, 30 March 2023 and 28 April 2023.

Plea of guilty

3. On 3 August 2023 the appellant pleaded guilty to 12 charges. In my view the passage of time between the commencement of the proceedings and when that guilty plea was entered of being just over three months was reasonable. I accept the submission of the appellant that the utilitarian value having this matter dealt with by way of sentence rather than a protracted hearing is significant. On that basis, the appellant will receive a 20% reduction on the penalty which otherwise would have been imposed upon it.

Facts

4. The appellant in this matter is regulated by the Children (Education and Care Services) National Law 2010 (NSW), which I will refer to if needed as the National Law, and also by the Education and Care Services National Regulations 2011.

5. The appellant was an approved provider of childcare services operating from a centre in Menai known as Jumpstart Childcare. The sole director of the appellant was Mr Thomas Fanous. The centre employed a number of staff members, most prominently so far as this matter goes, a person by the name of Amara Jaroudi. I will mention Ms Jaroudi again throughout these remarks.

6. The facts offence provisions and their maximum penalties are as follows:

7. Sequence 1 was an offence under s 174(2)(B)(ii) of the National Law. This involved a failure to notify the regulator of complaints relevant to the service. The maximum penalty for that offence was $20,000 and the offence occurred over the period 12 to 13 March 2021.

8. This sequence involved a victim by the name of WM. On 12 March 2021 at approximately 4.51pm WM’s mother picked him up from the service and upon arriving home noticed large, red marks on his back that looked like fingers had pinched him and two adult-sized fingernail marks on the underside of his arm with his skin slightly broken but not bleeding.

9. At about 5.17pm that day WM’s mother called the centre and spoke to Ms Jaroudi, advising her of the injuries and asking her if anything untoward had happened. Ms Jaroudi denied any knowledge of any event that could have led to the injuries. WM’s mother made a formal complaint to the appellant but this complaint was never forwarded to the regulatory authority and this is the offence.   

10. Sequence 8 involves the same child, WM. This was an offence under s 166(1)(B) of the National Law. This was an offence where the child was subject to unreasonable discipline by an approved provider. The maximum fine that can be imposed for such an offence is $50,000. This offence occurred during the period 1 June to 28 October 2021. This offence, again involved WM.

11. On most of the days WM attended the appellant’s business, Ms Jaroudi placed him in a highchair where he would remain three to six hours per day. Ms Jaroudi told other educators that she had been directed to place him in the highchair to avoid him having accidents and hurting himself. Ms Jaroudi gave WM toys to play with while in the highchair but then proceeded to leave him alone. He was only taken out of the highchair for nappy changes, for photographs to be taken, for rest time, or when his parents arrived to pick him up and take him home. On some occasions he would kick and scream while in the highchair.

12. According to the agreed facts, on one occasion Ms Jaroudi “yanked him” out of a cot by his arm so that he was hanging freely by that arm. She then roughly placed him down onto the ground and yanked him in such a way so as to prompt him to walk with her, but it seems he was non-compliant with that request and was instead dragged across the room. This would occur in both indoor and outdoor areas of the service. Again, this conduct occurred in breach of the services’ Relationship with Children policy, which stipulated that children are only to be in highchairs for meal times.

13. Sequences 2 and 10 involved a victim by the name of MG. The sequence 2 is an offence under s 166(1)(B) of the National Law. This also involved the offence of subjecting a child to unreasonable discipline, again, the fine was a maximum of $50,000. MG had been diagnosed with autism. His mother identified this to the appellant at the time of his enrolment. His mother also involved the appellant that he was a child who was picky with his food.

14. Between approximately 1 April 2021 and 28 October 2021 on a number of occasions Ms Jaroudi force-fed MG food, holding his chin and forcing his mouth open, putting a spoon into his mouth to force down the food in and then closing his mouth. She would continue to do this until his mouth was full. If he did not swallow the food, she would squirt water into his mouth. On occasion this would cause MG to gag and on one occasion it caused him to vomit up the food. On one occasion when this was happening and MG was vomiting and a childcare worker put his head in a garbage bin.

15. Sequence 10 also involved MG. It was another offence under s 166(1)(B), being the offence of subjecting a child to unreasonable discipline. This occurred between 17 August 2021 and 28 October 2021. What occurred on close to a daily basis was that MG, while at the service, would have his arm “yanked” by Ms Jaroudi in order to pull him along or to make him sit down as and when required.

16. Sequence 5 involved the third victim, WH. WH was developmentally delayed, non-verbal and exhibited behaviour consistent with suffering from autism, something which had been known to the appellant at the time the child was enrolled. This sequence was another under s 166(1)(B) of the National Law, again subjecting a child to unreasonable discipline. Again, the fine was $50,000 as a maximum. About two weeks after WH commenced at the centre, his mother told Ms Jaroudi not to put him in a highchair because he was big enough not to need one. Ms Jaroudi assured her that WH would not be put in a highchair while at the appellant’s premises. Notwithstanding that assurance, during the period of 1 July 2021 to 5 October 2021, on most days, he was in fact placed in a highchair for approximately five to six hours per day, including while he was sleeping.

17. Ms Jaroudi and another person working at the childcare centre would put him in the highchair because – this was their justification - he was hurting other children. Mr Fanous directed that that Ms Jaroudi placed WH in the highchair because of his behaviour and aggressive nature. The child did not like being placed there and he would become distressed and would hit and punch himself. He learnt to rock and to move the highchair. To stop this from occurring, Ms Jaroudi, on multiple occasions, tied a rope or a string around the back of the highchair to the back fence to stop the chair from rocking. On some occasions she would also splash WH with water from her bottle whilst he was confined.

18. WH was only taken out of the highchair when a supervisor was at the service or when photographs were taken, when his nappy was changed or when he was becoming too aggressive or when his parents were coming to pick him up. Ms Jaroudi would often tell another educator to take him out of the highchair before his parents arrived in the afternoon. Other than that, Ms Jaroudi would yell at staff if they tried to take him out of the highchair.

19. This conduct was also in breach of the services’ Relationship with Children policy which, as I have already noted, stipulated that children are only to be in highchairs for mealtimes. During this period of 1 July 2021 to 5 October 2021, Ms Jaroudi regularly yanked WH by the arm, lifted him off the ground and placed him roughly on the ground. During the same period, she was also recorded as grabbing his hands and placing them behind his back, grabbing him and pinching him and throwing him on the ground.

20. Sequence 11 was also an offence under s 166(1)(B) of the National Law, subjecting a child to unreasonable discipline. Sequence 11 involved a victim by the name of CM. During the period 16 July 2021 and 28 October 2021 on at least two occasions Ms Jaroudi force-fed CM while he was sitting in a highchair by holding his chin, forcing his mouth open, putting a spoon in his mouth to force food down and then closing his mouth. If he did not swallow the food Ms Jaroudi squirted water into his mouth. On two occasions this prompted CM to cry and vomit up the food.

21. Sequence 12 was another offence under s 166(1)(B). This involved a victim by the name of AM. This offence occurred during the period of 28 April 2021 to 31 August 2021. Ms Jaroudi force-fed AM on several occasions by holding her chin and forcing a spoon down her mouth. Again, the maximum penalty for that offence is $50,000.

22. Sequence 14 was another offence under s 166(1)(B) of the National Law. The child involved in this matter was EK. This offence occurred during the period 28 April 2021 to 28 October 2021. On one occasion EK was sitting in a highchair on a balcony outside the rooms used to care for some of the children aged between zero to two years of age. EK took hold of a phone Ms Jaroudi owned and was using it would seem at the time and she dropped it. In response to this, Ms Jaroudi took hold of EK’s arm and aggressively yanked it while she was sitting in the highchair. EK started to cry and Ms Jaroudi walked away.

23. Sequence 16 involved a victim known as LB. During the period of 12 July 2021 to 28 October 2021, on one occasion at about 4pm LB was crying. Ms Jaroudi grabbed hold of her by her arm and leg, carried her outside to the area outside the cot room and slammed her onto a bench.

24. When LB continued to scream even more loudly than she was crying before Ms Jaroudi picked her up again, carried her into the cot room. She then held her hand over his mouth for approximately five seconds to try and prevent LB from crying. She then placed LB in one of the cots in the cot room, shutting the door behind her. LB remained unattended in the cot room with the door shut until approximately 5pm, that is a period of about one hour. LB cried for approximately half an hour before falling asleep in the cot. This was another offence under s 166(1)(B) of the National Law.

25. Sequences 3, 18 and 19 are slightly different to those I have already dealt with. Sequence 3 involved a child by the name of AG being placed in a highchair for the purpose of doing some painting. She was given a brush and paints and a paper to paint on while she was in the highchair, however, she was not strapped in and while the carer who was looking after her at the time, had her back turned, AG fell out of the chair and onto the floor. The chair also fell and a plate was broken. There was a loud thud and AG was found on the floor, crying. The highchair table had also broken off and was lying next to her on the floor. The carer consoled AG until she calmed down. A lump developed on the left-side of AG’s forehead and an icepack was applied.

26. This was an offence under s 167(1) of the National Law, being the offence of failing to protect a child from a hazard. The maximum penalty for that offence is $50,000.

27. Sequence 18 was an offence under cl 120 of the National Regulations being the offence of having an educator under the age of 18 years of age not supervised as required. In this instance the employee was 16 years of age. She would work at the service on a regular basis and she was regularly left alone with children either in a room or changing nappies without supervision from other educators above the age of 18. This offence occurred during the period 1 May 2021 to 28 October 2021.

28. Sequence 19 was a charge under s 51(1) and (8) of the National Law. This was the offence which attaches to an approved provider, such as the appellant, who had failed to comply with the conditions of their service approval. This offence occurred between the period of 1 May 2021 and 28 October 2021. The charge involved the appellant failing to ensure that the safety, health and wellbeing of the children at its service were properly cared for. I will deal with that in a little bit more detail when I deal with the objective seriousness of the case.

29. That is a very brief overview of the facts and each of the charges before the Court by way of appeal. It is necessary to say something about appeals brought from the Local Court to this Court.

Severity appeal

30. This appeal is brought pursuant to s 17 of the Crimes (Appeal and Review) Act 2001. That section provides that an appeal against sentence is to be conducted as a rehearing on the basis of the evidence heard in the original jurisdiction although fresh evidence may be given.

31. An appeal against severity of sentence requires the Judge of this Court to engage in a fresh exercise of sentencing discretion upon the evidence admitted on the hearing in the Local Court. In practice it is a De Novo appeal.

32. The nature of the function to be exercised by the District Court in such an appeal was considered by her Honour McColl J in Engelbrecht v Director of Public Prosecutions of New South Wales [2016] NSWCA 290 at [91] to [92] where her Honour said:

“The text of ss 17, 18 and 26 of the Appeal and Review Act all use the expressions “appeal” and provide in substantially the same terms for the appeal being by way of a rehearing of the evidence given in the original Local Court proceedings. However, the fact that leave is not required to adduce fresh evidence in s 17 is significant...Conversely, the omission of a leave requirement for the admission of fresh evidence indicates, in my view, that s 17 is a hearing de novo, requiring the sentence proceedings consequent upon the conviction to be heard afresh. As I have said, on such an appeal, the Court exercises original jurisdiction and the sentence is that of the District Court judge and must represent his or her view of the matter, not whether the magistrate’s view was appropriate”.

33. I note the citations in that paragraph have been omitted.

34. Accordingly, I am required to consider the matters afresh. I am limited to the jurisdiction of the Local Court. I must decide the matter independently and the result of the ultimate sentence to be imposed is my view of the matter, having little or no regard to the magistrate’s reasons. The maximum penalty is reserved for a case in the worst category. Section 20(2) of the Crimes (Appeal and Review) Act empowers the Court to set aside or vary the sentence or to dismiss the appeal.

Objective seriousness

35. A critical consideration for the Court is the objective seriousness of each of the offences. It is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending itself. I am not required to place these matters on an imaginary scale of least serious to most serious. I will, however, set out the matters of key importance when I have considered these matters, bearing in mind that all of the facts that I have before me have been taken into account.

36. I note that the offences involved eight different victims with two children appearing in two charges, specifically WM and MG.

37. Sequence 1 involved a child who at the time of the offence occurring was one year and five months of age. This was a one-off matter in terms of the violence being experienced by that child in the manner described with the pinching and marks on the skin, but the offence relates not to any injury but rather the failure to report this matter to the regulator.

38. This is a serious matter because one of the expectations of parents who send children to childcare centres such as the appellant is that the services are properly regulated. A failure to report an incident such as this to the Regulator means that that Regulator does not know what is occurring at the centres under its control. It is a serious matter.

39. With respect to sequence 2, MG was four years and seven months. This offence took place over a seven-month period. It was a rolled‑up charged. The offence involved force-feeding MG, a child with a cognitive impairment. He was fed until he vomited and had water squirted at him from time-to-time. This bizarre and somewhat sadistic behaviour is similar to two of the other charges before the Court and it is amongst the worst that are before me. The behaviour of the carer is inexplicable and unjustifiable and warrants a severe of penalty.

40. Sequence 10 also involved MG. This charge involved violence in terms of yanking the child to create compliance. In the Court’s view it is grossly unreasonable conduct in the circumstances and again warrants a severe penalty. This was a rolled-up charge and represented a number of different incidents of the same nature.

41. With respect to sequence 5, the victim was WH, an indigenous child who was developmentally delayed and possibly autistic. He was about three years of age. The offending involving him in sequence 5 took place over a three month period. Again, it was a rolled-up charge.

42. The offence involved placing the child in a highchair all day, essentially to suit the convenience and easy management of the staff, particularly Ms Jaroudi. In the Court’s view this conduct was clearly unreasonable. Making it worse was that the centre management appears to have not only known about the conduct but did not stop it. Aggravating the seriousness of this offence is the fact that the parents did not know this was occurring and seemed to in fact have been lied to about its occurrence.

43. Sequence 8 also involved the use of a highchair for extended periods of time. This, as I mentioned earlier, is the same victim who was also the subject to sequence 1. WM was placed in a highchair between three and six hours. This occurred commencing when he was one year and nine months old and ending when he was about two years old, so for a period of about three months. Again, the offence involved placing him in the highchair at the convenience of Ms Jaroudi.

35. Not only did it occur, but the parent of WM was lied to about it. This offence also involved him being yanked from time-to-time, violence which is unacceptable, particularly in the context of a childcare centre such as the appellant. Again, this ranks as one of the most serious charges before the Court.

36. Sequence 11 was another count of force-feeding. In this instance the victim CM suffered at the hands of the appellant between the dates of 16 July 2021 and 28 October 2021. It was a rolled-up charge and it again involved Ms Jaroudi squirting water into the mouth of child during the time that she was attempting to feed him. This conduct made the child cry and ultimately vomit on at least one occasion.

37. As with sequence 2, conduct of this nature is frankly unbelievable in a caring environment such as the one the appellant was supposed to be operating. The fact that this occurred on multiple occasions demonstrates to the Court that Ms Jaroudi and those who supervised her appear to have had a complete disregard for the safety of the child.

38. Just as an aside, I note that the learned Magistrate imposed a fine of $2,760 for that offence. I will be increasing the fine that I impose for that offence, as I indicated to the appellant during submissions, my view was the existing penalty was too low. Despite that warning, the appellant chose not to withdraw the appeal for that discrete offence.

39. Sequence 12 also involved force-feeding a child on multiple occasions. This child was two years old. There is no evidence as to how the child reacted on each of those occasions. The child was initially two years and four months of age and then two years and eight months of age at the time the offending stopped.

40. Sequence 14 involved the victim, EK, who was aged between eight months and one year and two months at the time the offending stopped. Again, the offence involved unjustified violence with the child having his arm yanked, this time while sitting in a highchair.

41. Sequence 16 involved a victim who was one year and 11 months old at the commencement of the charge period and two years and three months of age at the end of the charge period. The violence inflicted upon the child involved on one occasion slamming her onto a bench and covering her mouth with Ms Jaroudi’s her hand in an attempt to stop her crying. Conduct of this nature is a gross departure from the conduct expected not just at an organisation that is meant to care for children, such as the victim in this matter, but to children generally. Again, I indicated during the sentence hearing, the fine that I will be imposing on this matter would be significantly higher than that imposed by the magistrate at first instance, but the appellant chose not to withdraw the appeal for this charge. Conduct of this nature cannot be condoned and must be punished.

42. Sequence 3 involved AG. It is in a different category to the other sequences I have described because in my view it was negligent rather than deliberate. The victim was 14 months old. She had been playing happily when the injury occurred, painting and it would seem properly cared for her by her carer at that time. I accept that in this case it was negligence and not deliberate harm and that significantly reduces the objective seriousness of the conduct by the appellant.

43. Sequence 18 is an important matter in that the appellant failed to ensure a staff member who was monitoring children was properly supervised. The staff member was 16 years of age and for a staff member of that age to be working with children she was required to be supervised by an adult. This did not occur. It did involve a course of conduct and it was not a one-off.

44. Sequence 19 was a rolled-up charge. This charge relates to the ongoing and inadequate training of staff and what is described as a culture of fear and intimidation which in the Court’s view contributed to the offences. Services such as the appellant cannot operate unlicenced.

45. Parents rely on the services to be properly managed, staffed and controlled. It is a significant breach of trust not to do so. If staff had been properly trained and managed the harm suffered by the children that I have referred to in this matter may well have been avoided. It is clearly critical that there are standards in place. Standards should not only be set, but adhered to. The appellant failed in this regard.

Aggravating features

55. I am required to take into account s 21A(2) of the Crimes (Sentencing Procedure) Act and there are a number of sections therein which could be relevant to offences of this nature. Submissions were made with respect to the statutory scheme, particularly s 21A(2)(ea) that is, the offences were committed in the presence of a child. Submissions were also made with respect to s 21A(2)(k), that the offender abused a position of trust.

56. With respect to both of those matters, while they are important considerations, in my view they are matters which are already picked up in the nature of the offences themselves. I have already assessed them when it comes to considering the objective seriousness of the offences and I will not use them as further aggravating features.

57. However, s 21K(2)(l) which deals with the vulnerability of victims, which is an additional factor I have taken into account in assessing objective seriousness. I accept the departments submission that vulnerability in the regulatory scheme can vary depending on the age of the child and whether they have any particular cognitive or developmental impairments. This was certainly the case for example in relation to sequences 2 and 5 and I have taken that aggravating feature into account.

58. I also accept the submission that with respect to sequence 5 there was gratuitous cruelty. This is a consideration the Court can take into account with respect to s 21A(2)(f).

Subjective factors

59. With respect to subjective factors, there was no material tendered before the Court with respect to any mitigating factors on behalf of the appellant. I do note that the appellant has no prior convictions, however there is no information before the Court which would demonstrate anything remotely connected with remorse, nor anything that would give the Court confidence that there was no risk of reoffending or that there had been rehabilitation.

60. For instance, there was no evidence that set out what steps the appellant would take to ensure that the offences that had been the subject of these charges would not be repeated. There is no evidence as to what steps have or would be taken to ensure that employees employed by the centre would adhere to the centre’s rules and be properly trained. None of those matters which could otherwise be in mitigation have applied in this case for reasons best known to the appellant.

Totality

61. Submissions were made about totality, which is a relevant consideration given the number of offences and it is an important consideration. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence as well as, of course, questions of totality.

62. The totality principle applies whether the Court is imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act or imposes separate sentences for each offence. I will be imposing separate sentences for each offence so that the appellant and the department can see the Court’s assessment as to the appropriate fine. Nonetheless, I have taken the totality principle into account to ensure that the overall sentence imposed is appropriate in the circumstances.

Delay

63. Submissions were made with respect to delay. It was submitted that the delay in prosecution is a small mitigating consideration in this matter. I have already set out the dates in which proceedings were commenced. Prior to that occurring, it would have been necessary to investigate the appellant by investigators.

64. In my view, this would have involved examining the appellant’s records, interviewing staff, interviewing the victim’s family and considering the facts as to be determined through the investigation and examination of the application or the relevant laws that apply. Investigations and legal considerations such as that do not occur overnight. I note that the final charge date was 21 December 2021 and the proceedings commenced in March 2023.

65. Delay between the commission of the offence and the passing of a sentence for the offence is a relevant matter and, in some cases, where delay is substantial and not the fault of an offender there may be a degree of leniency required, however, delay itself does not justify leniency, especially where the delay is not unreasonable.

66. Consideration must be given to the length of the delay and its cause. Delay that is not the fault of the offender but is due to the unexplained delay by the prosecutor will be a matter of mitigation in circumstances where the offender has been left in a state of uncertainty and because of any rehabilitation that has occurred during the delay. I do not accept that there has been a delay which would warrant a mitigation in the sentence. The time taken to investigate and commence proceedings in my view is reasonable, taking into account the nature of the charges and the complexity of the investigation. There is no evidence of rehabilitation which occurred during the period between the offending ceasing and the proceedings being commenced and ultimately resolved.

Purposes of sentencing

67. I have given consideration to s 3A of the Crimes (Sentencing Procedure) Act. This involves considerations of the victim involved in these matters. I note that there have been victim impact statements produced in essence by way of affidavits produced by two parents and I have taken that into account as required by the Act.

68. I have also taken into account a number of the other considerations set out in s 3A, noting the importance of general deterrence. In my view, general deterrence is a critical consideration for offences of this type. Parents not only expect, but are entitled to believe that their children, when left at a childcare centre, usually at great expense, are safe, properly cared for and respected. That did not occur on this occasion. General deterrence is a paramount consideration for the Court in this matter.

69. The appellant in this case is, I must say, something of a mystery to the Court. No evidence has been tendered which goes to its size, the number of staff it employed at the relevant time, the number of centres it ran at the time or now runs. There has been no attempt to inform the Court as to how these offences occurred and, as I say, nor has the Court been given any evidence that steps have been taken to ensure that this will not occur again.

70. There has been no reassurance given to the Court that the offences are now in the past and that future employees will be properly trained and supervised. All of those matters are of great concern, and it means that considerations which are set out at s 3A, such as specific deterrence, the protection of the community, the rehabilitation of the appellant, its accountability, its denunciation and the recognition of harm all play significant roles in this sentence which I am shortly going to impose.

Orders

71. I make the following orders:

1. I uphold the appeal.

2. I confirm each of the convictions in the Local Court.

3. I quash the orders of the magistrate and in lieu thereof vary the orders with respect to fines in some, but not all, of the sequences.

4. The fines I will impose are as follows:

1. Sequence 1,    $2,200.

2. Sequence 2,    $25,600.

3. Sequence 3,    $1,840.

4. Sequence 5,    $32,000.

5. Sequence 8,    $29,000.

6. Sequence 10, $5,000

7. Sequence 11, $25,600

8. Sequence 12, $8,280.

9. Sequence 14, $1,380.

10. Sequence 16, $25,600.

11. Sequence 18, $920.

12. Sequence 19, $29,200.

5. The total is $186,620.

72. They are my Orders and my reasons. ^[1]

**********

1. Note that pursuant to s 43 of the Criminal Procedure Act and with the agreement of the parties, the Order was amended on 30 July 2024 to confirm the Local Court’s Order with respect to a moiety, dividing the payment of the penalty between the Department of Education and the Court 50/50, remained.

Endnote

Decision last updated: 13 August 2024