Lyndell Hudson v Kim Wah Wong
[2010] ACTSC 108
LYNDELL HUDSON v KIM WAH WONG [2010] ACTSC 108 (8 September 2010)
RESERVED JUDGMENT
CRIMINAL LAW – breaches of the Food Act 2001 (ACT) – conviction recorded for each offence – fines imposed
APPEAL – appeal from the ACT Magistrates Court – fines imposed by the sentencing Magistrates were manifestly inadequate
Food Act 2001 (ACT), ss 22, 23, 27
Re Josip Sladic (1995) 86 ACrimR 175
Tait and Bartley (1979) 24 ALR 473
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 43 of 2010
Judge: Nield A/J
Supreme Court of the ACT
Date: 8 September 2010
IN THE SUPREME COURT OF THE )
) No. SCA 43 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:LYNDELL HUDSON
Appellant
AND: KIM WONG WAH
Respondent
ORDER
Judge: Nield A/J
Date: 8 September 2010
Place: Canberra
THE COURT ORDERS THAT:
The appeals be allowed.
The orders made by the sentencing Magistrates be quashed.
The offender is resentenced and fined $2,300 for each offence.
The appellant is the ACT Director of Public Prosecutions. The Director has appealed from fines imposed upon the respondent for three offences committed by him in breach of the provisions of the ACT Food Act upon the grounds that the fines are manifestly inadequate.
The respondent is Mr Kim Wah Wong. He is a restauranteur who, as at 26 February 2009, operated a restaurant known as Tak Kee Roast Inn at 10 Woolley Street, Dickson, in the Australian Capital Territory. He was born on 28 June 1952. He was aged 56 years eight months when he committed the offences and he is aged 58 years two months now.
The respondent migrated from Hong Kong to Australia many years ago. He obtained employment as a kitchen hand in a restaurant and, over the years, progressed to operating his own restaurant.
Twenty-six years ago, in 1984, the respondent took over the operation of the Tak Kee Roast Inn. He was assisted by his wife and, from 2008, by his son in the operation of the restaurant. Also, he employed staff such as cooks, kitchen hands and waiters in the operation of the restaurant.
In about September 2008 the respondent was diagnosed as suffering from diabetes. As he could not attend the restaurant every day, it was then that his son, then in Year 11 at school, commenced to assist him in the management of the restaurant.
The respondent is a man of good character. I disregard the fact that he has been dealt with for a number of driving offences. He is entitled to have his good character taken into account in his favour in the determination of appropriate penalties for the subject offences.
During the afternoon of 26 February 2009 the complainant, Ms Lyndell Hudson, a public health officer of the Health Protection Service, observed meat defrosting and food being prepared in the uncovered car parking area behind the Tak Kee Roast Inn. The meat was exposed to the weather and was attracting birds. Food was being chopped on a dirty chopping block with a rusty cleaver. Attached to the outside rear wall of the restaurant was a rack on which cooking bowls, pots and pans were stacked. All of this can be seen in the various photographs of the car parking area behind the restaurant. What Ms Hudson had seen prompted an inspection of the restaurant by her and Mr David Kershaw, another public health officer.
Inspection of the kitchen of the restaurant revealed that the walls, floor and ceiling of the kitchen and the food preparation areas in the kitchen were unclean, with accumulated grease on the walls, floor, ceiling, benches and cooking equipment and accumulated grease, decaying food and general rubbish on the floor, under the benches and behind the refrigerator. All this can be seen in the various photographs of the kitchen.
Furthermore, food such as pork, ducks and vegetables were stacked in the open and salts and sauces were stored in dirty open containers.
At about 3.30 pm on 27 February 2009 a prohibition order was served on the respondent. The order required the respondent to cease operating the restaurant as a business until revocation of the order. I understand that, after the restaurant was cleaned to meet the required standards of cleanliness, suitability and safety, the order was revoked.
On a day before 26 February 2010, the date does not appear in the appeal papers, the complainant issued three summonses out of the ACT Magistrates Court directed to the respondent and requiring him to appear before the Magistrates Court on 26 February 2010 to answer the charges.
The first summons, charge case 40073 of 2010, alleged that on or about 26 February 2009 the respondent failed to comply with a requirement of the Food Standards Code in relation to food intended for sale in that he permitted the food premises to be in an unclean condition with accumulations of food waste, dirt, grease and other visible matter, contrary to section 27 subsection (1) of the ACT Food Act, for which the prescribed penalty is a fine of a maximum of 500 penalty units, that is, $50,000.
The second summons, charge case 40097 of 2010, alleged that on 26 February 2009 the respondent handled food intended for sale in a way that will render, or is likely to render, the food unsuitable in that he permitted meat to be defrosted and other foods to be prepared in the car park behind the restaurant without adequate protection from contamination, contrary to section 23 subsection (1) of the ACT Food Act, for which the prescribed penalty is a fine of a maximum of 400 penalty units, that is, $40,000.
The third summons, charge case 40098 of 2010, alleged that on 26 February 2009 the respondent handled food intended for sale in a way that will render, or is likely to render, the food unsafe in that he permitted food to be handled in an unclean premises and in the car park behind the premises with a rusty, unclean knife on an unclean chopping block, contrary to section 22 subsection (1) of the ACT Food Act, for which the prescribed penalty is a fine of a maximum of 500 penalty units, that is, $50,000.
Accordingly, on 26 February 2010 the respondent, by his legal representative, appeared before the Registrar of the ACT Magistrates Court in answer to the summons. The proceedings were stood over to 19 March 2010.
Then, on 19 March 2010 the respondent appeared again before the Registrar to answer the charges and he pleaded not guilty to each of the charges and the proceedings were stood over to a later date for hearing before a magistrate.
However, on 16 June 2010, when he appeared before a magistrate for the hearing of the charges, the respondent pleaded guilty to each of the charges, and, after receiving documentary material from the Crown prosecutor and hearing submissions as to sentence from the Crown prosecutor and the respondent’s legal representative, the magistrate convicted the respondent of each of the offences and fined him $500 in respect of charge case 40073 of 2010, $500 in respect of charge case 40097 of 2010 and $500 in respect of charge case 40098 of 2010, making a total of $1,500.
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 damming 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.
On 18 June 2010 the Director of Public Prosecutions, in the name of the complainant, filed a Notice of Appeal in this court. As I have said already, the Director has appealed from the fines imposed upon the respondent on the grounds that the fines are manifestly inadequate.
On 26 August 2010 the Director’s appeal came for hearing before me. I heard submissions from the Director and the respondent’s legal representative, after which I stood over the proceedings to today.
The Director submitted that the fines imposed by the magistrate were manifestly inadequate because the magistrate failed to have regard to the maximum penalties available for the offences, or he failed to appreciate the objective seriousness of the offences, or he failed to give adequate weight to the need for deterrence, or he gave weight to an irrelevant mitigating factor, or he gave too much weight to the respondent’s subjective factors.
The respondent’s legal representative submitted that:
“The appellant has not established that the sentencing magistrate made an error of principle such as would enliven the grounds for a Crown appeal on sentence.”
In relation to a Crown appeal alleging manifest inadequacy of a sentence, the principle is a well known one. A statement of the principle is this:
An appellate court does not interfere with the sentence imposed merely because it is of the view that 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.
See Tait and Bartley (1979) 24 ALR 473 at 476.
And of course:
The appellate court, ever watchful for unfairness to an accused or convicted person, will be more cautious in exercising the discretion to interfere with the penalty or sentence imposed in order to increase it than it would be where the appeal was against the severity of the penalty or sentence. In Tait and Bartley this latter principle was considered to derive from what was referred to as the double jeopardy involved in an appeal against the leniency of the sentence.
See Re Josip Sladic (1995) 86 ACrimR 175 at 178.
Also, it is an established practice that, if an appellate court allows a Crown appeal against sentence, the substituted sentence will be less than the court would have imposed had the court been the sentencing court at first instance.
From my reading of his reasons for sentence the magistrate referred to:
(1) the maximum penalties prescribed for the offences, albeit that he believed, wrongly, that a penalty unit was $110, not $100;
(2) the seriousness of the offences;
(3) the possibility of the public suffering illness or injury as a result of the offences;
(4) the need for personal and general deterrence;
(5) the respondent’s age;
(6) the respondent’s operation of the restaurant for 26 years;
(7) the respondent’s illness;
(8) the respondent’s good character, and
(9) the respondent’s guilty pleas, albeit not entered at the earliest appropriate opportunity;
in his determination of an appropriate fine for each offence.
Unfortunately, in my view the magistrate erred because:
(1) although he referred to the seriousness of the offences, he failed to determine where in the spectrum of seriousness, from low to high, the particular offences fell; this particular determination is necessary in order to fix an appropriate fine for each offence;
(2) although he realised the need for personal and general deterrence, he undervalued both personal and general deterrence. The generally unclean, and therefore unsafe, state of the kitchen, benches, equipment and utensils did not happen overnight or on the day on which the complainant and Mr Kershaw inspected the premises, rather, that state was the result of failure over a long time to clean away grease, decaying food, dirt and rubbish from the kitchen, benches, equipment and utensils; in my view, the respondent specifically, and all other restauranteurs generally, must be told of the need to act in accordance with and in compliance with the regulatory requirements which apply to places where food is prepared for sale and offered for sale and which are intended and designed to protect the public who eat in or buy food from such places for consumption;
(3) he took into account as a mitigating factor the fact that the offences “occurred out of [Mr Wong’s] control in some way”; the respondent, as the person in control of the restaurant, 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 as to cleanliness of the premises and safety and suitability of food preparation.
Also, in my view, the fines imposed by the magistrate, which were 1% of the prescribed maximum fine in relation to charge cases 40073 of 2010 and 40098 of 2010, and 1.25% of the prescribed maximum fine in relation to charge case 40097 of 2010, are so inadequate as to manifest error on the part of the magistrate.
In the result, I am satisfied that the Director has made good the Crown’s appeals against the fines imposed upon the respondent for the subject offences. Accordingly, I allow the appeals, I set aside the fines and I proceed to the resentencing of the respondent for the offences.
In determining an appropriate fine to impose upon the respondent for each offence, I must recognise the purposes of sentencing outlined in section 7 of the ACT Crimes (Sentencing) Act and I must have regard to such of the matters detailed in section 33 subsection (1) of that Act as are relevant and known by me.
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. The various photographs produced by the prosecution show clearly the blatant and long standing failure of the respondent to meet his responsibility. I see the offences committed by the respondent to be well above the bottom of the range of objective seriousness for offences of their kind, albeit below the middle of that range.
The Director drew my attention to five cases in which a restaurant in New South Wales was dealt with for breaches of the New South Wales Food Act and one case in the Australian Capital Territory in which a company which operated a restaurant was dealt with for a breach of the Australian Capital Territory Food Act. I regret to say that those cases do not assist me in the fixing of appropriate fines to impose upon the respondent for the subject offences because I do not have enough details of the offences or the offender.
I take into account the several matters referred to by the magistrate (see paragraph 26 above), but subject to my comments (see paragraphs 27 and 31 above), and to the principles related to a Crown appeal (see paragraphs 24 and 25 above) in determining the appropriate fine for each offence to be $3,500.
I consider that, notwithstanding the strength of the Crown’s cases and that the guilty pleas were not entered at the earliest appropriate opportunity, the respondent is entitled to a discount in sentence of 20% on account of his guilty pleas. Accordingly I reduce each fine by $700 to $2,800.
However, I must have regard for the principle of totality, and, doing so, I further reduce each fine to $2,300.
In the result, I convict the respondent of each offence. I fine him $2,300 for each offence, making a total of $6,900 for the three offences. I note that he has paid $1,500, thus the amount outstanding is $5,400. I order that this amount be paid into court. I allow 3 months from today for payment of this amount.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.
Associate:
Date: 1 October 2010
Counsel for the appellant: Mr J White
Solicitor for the appellant: ACT Director of Public Prosecutions
Counsel for the respondent: Mr K Saeedi
Solicitor for the respondent: Kamy Saeedi Lawyers
Date of hearing: 26 August 2010
Date of judgment: 8 September 2010