Macleod v L & A Bakery Pty Ltd & Ors
[2022] VMC 37
•15 December 2022
| IN THE MAGISTRATES’ COURT OF VICTORIA |
AT DANDENONG
CRIMINAL DIVISION
| Sandra Macleod (City of Greater Dandenong) | Informant |
| v | |
| L & A Bakery Pty Ltd (ACN 616 204 187) | First Defendant Case No. N10970350 |
| Thi Tran | Second Defendant Case No. N10964846 |
| Phillip Tran | Third Defendant |
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MAGISTRATE: | CONNELLAN |
WHERE HELD: | DANDENONG |
DATE OF HEARING: | 6 October 2022 and 30 November 2022 |
DATE OF DECISION: | 15 December 2022 |
CASE MAY BE CITED AS: | Macleod v L & A Bakery Pty Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2022] VMC 37 |
Reasons for Decision
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CRIMINAL LAW – Food Act 1984 – ss 4, 4F, 11, 16(1), 19(7), 19CB(6), 19F, 53A – Meaning of proprietor or person concerned in management of food business – Costs – Crimes Act 1958 – ss 464(1) and 464C – Meaning of justify the arrest – Administration of right to contact a lawyer and provision of an interpreter – Admissibility of field interview – Criminal Procedure Act 2009 – ss 83 and 87 – Admissible evidence where full brief served – Limitations on sentencing in absence of accused.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Informant | Mr Keating | Macpherson Kelley Pty Ltd |
| For the Defendants | No appearance | None |
Table of contents
Service and non-appearance of accused
Overview of charges
Prosecution evidence – full brief served
Analysis of evidence and issues arising
Identification of defendants
Proprietor or person concerned in management of food business
Charges 1 to 10
Charges 11 to 20
Charges 21 to 30
Charges 31 and 32
Charges 33 to 37
Charges 38 to 42
Charge 43
Charges 44 to 46
Charges 47 to 49
Charges 50 to 54
Charges 55 to 59
Charges 60 to 64
Charges 65 to 69
Charges 70 and 71
Charges 72 and 73
Charges 74 to 78
Charges 79 to 82
Charges 83 to 86
Charges 87 to 91
Charges 92 to 96
Charges 97 to 101
Charges 102 and 103
Charges 104 to 108
Charges 109 to 113
Charges 114 to 118
Charges 119 to 123
Charges 124 to 131
Charges 132 to 137
Charges 138 to 145
Charges 146 to 152
Summary of findings
Sentencing considerations – accused not present
HIS HONOUR:
Service and non-appearance of accused
The hearing of these matters commenced on 6 October 2022. The three accused did not appear in answer to their summons on 2 June 2022 or on subsequent mentions on 4 August and 6 October 2022. Orders for substituted service were made by Magistrate O’Callaghan on 7 June 2022.
The informant, Sandra Macleod, relies on the three Affidavits of Service of Vanessa Lee Cassar, sworn on 16 June 2022, as evidence of service on the three accused. Ms Cassar deposes as to service and attaches letters dated 9 June 2022 sent by express post from Macpherson Kelley Pty Ltd (lawyers for the City of Greater Dandenong) to L & A Bakery Pty Ltd (L & A Bakery), and to Ms Thi Tran (Ms Tran) and Phillip Tran (Mr Tran) (collectively the accused) as the proprietors of L & A Bakery, as evidence of service in accordance with the order for substituted service. Those three letters are essentially identical save for variations related to the different identity and status of the three defendants. Each letter refers to the orders for substituted service made by Magistrate O’Callaghan, attaches a copy of the orders for substituted service and a copy of the full brief of evidence, including the charge sheets and summons for each defendant. A copy of the Express Post envelope with its tracking number addressed to each accused is also attached. Ms Cassar also deposes that she emailed each of the defendants those same letters and documents and she attached the ‘Large File Send’ email conformation sheet for each email. The letters dated 9 June 2022 also record that the same documents were sent to each of the three defendants by email to the email address of the sole director of L & A Bakery, Mr Tran. Based on the affidavits of service, I was satisfied service had been affected and the matters could proceed in the absence of the three accused in accordance with ss 80 and 83 of the Criminal Procedure Act 2009.
The matter proceeded in the absence of the accused pursuant to ss 80(1)(c) and 83(1) of the Criminal Procedure Act 2009. Accordingly, statements served with the full brief, and exhibits and documents attached to the statements, are admissible as if their content were a record of evidence given orally.
Overview of charges
The 152 charges pursuant to the Food Act 1984 alleged against all three defendants are identical. L & A Bakery is charged on the basis it was the proprietor of the food business trading as L & A Bakery Pty Ltd. Ms Tran is charged with the offences on the basis of her role as proprietor of the food business trading as L & A Bakery Pty Ltd. Ms Tran was a person conducting the business operations of the company at the time of inspections by authorised officers of the City of Greater Dandenong. Mr Tran is charged with the offences on the basis of his role as a person concerned in the management of L & A Bakery, that was the proprietor of the food business trading as L & A Bakery Pty Ltd. The charges all allege offences at 43 Douglas Street, Noble Park (the food premises).
Prosecution evidence – full brief served
Sandra Macleod gave evidence at the ex parte hearing on 6 October 2022. A number of documents were tendered as part of her evidence:
a.a short 3-page summary of facts with selected dated photos attached;
b.a longer 23-page summary of facts;
c.photos taken on various dates:
i.56 photos dated 16 June 2021;
ii.12 photos dated 16 June 2021;
iii.6 photos dated 18 June 2021;
iv.3 photos dated 22 June 2021;
v.16 photos dated 19 July 2021;
vi.25 photos dated 20 July 2021;
vii.24 pages of undated photos (two images per page) and two photos of documents headed ‘000 Pest Control’ with reference to ‘Douglas Hot Bread’ and ‘43 Douglas St, Noble Park’ dated 22 July 2021;
viii.5 photos dated 27 July 2021;
ix.45 photos dated 2 August 2021;
x.31 photos dated 9 August 2021;
xi.26 photos dated 3 September 2021;
xii.11 photos dated 21 September 2021;
xiii.7 photos dated 22 October 2021;
xiv.11 photos dated 9 December 2021;
xv.67 photos some dated 3 March 2022 and balance undated; and
xvi.35 photos dated 4 March 2022.
d.Food Act 1984 ‘Notice of Seizure and Detention of an Article’ issued by the City of Greater Dandenong at 4:20pm, signed by Sandra Macleod, dated 16 June 2021;
e.Environmental Health Officer ‘Premises Inspection Report’ issued by the City of Greater Dandenong at 4:20pm to L & A Bakery (also referred to as the Bakery) for premises at 43 Douglas Street, Noble Park, signed by Sandra Macleod, dated 16 June 2021;
f.Food Safety Order issued pursuant to ss 19(1) and 19(2) of the Food Safety Act 1984 issued to L & A Bakery for the premises at 43 Douglas Street Noble Park, dated 18 June 2021 (the first order);
g.Food Safety Order issued pursuant to ss 19(1) and 19(2) of the Food Safety Act 1984 issued to L & A Bakery for the premises at 43 Douglas Street Noble Park, dated 20 July 2021 (the second order);
h.field record of interview – L & A Bakery, 6 pages, conducted between Sandra Macleod and Thi Tran at 4:09pm on 10 August 2021;
i.email from Sandra Macleod to Phillip Tran dated 3 September 2021 attaching letter from the City of Greater Dandenong to L & A Bakery for premises at 43 Douglas Street, Noble Park, signed by Sandra Macleod, dated 3 September 2021 headed ‘Inspection of Premises under the Food Act 1984’ with a 3 page report of inspection conducted on 3 September 2021;
j.print out of text message screen shots, 3 pages, between Sandra Macleod with Phillip Tran on Friday 18 June at 10:09am, Monday 28 June at 12:52 pm and Tuesday 29 June at 1:25pm;
k.Food Act 1984 ‘Notice of Seizure and Detention of an Article’ issued by the City of Greater Dandenong at 2:58pm, signed by Sandra Macleod, dated 3 March 2022;
l.Food Act 1984 ‘Notice of Seizure and Detention of an Article’ issued by the City of Greater Dandenong at 3:23pm, signed by Sandra Macleod, dated 3 March 2022;
m.letter, four pages, from Leanne Johnson, Coordinator Public Health, City of Greater Dandenong to L & A Bakery for premises at 43 Douglas Street, Noble Park, headed Order – Food Safety, dated 4 March 2022;
n.‘Order – Closure (s 19(3) of the Food Act 1984)’, premises L & A Bakery situated at 43 Douglas Street, Noble Park, signed by John Bennie, Chief Executive Officer, Greater Dandenong City Council, dated 4 March 2022;
o.witness Statements:
i.Sandra Macleod, Authorised Officer of the City of Greater Dandenong, covering 16 June 2021 to 8 September 2021, and dated 17 January 2022 (21 pages);
ii.Susan Cockbill, Environmental Health Officer, City of Greater Dandenong, covering 22 June 2021 to 8 September 2021, and dated 17 December 2021;
iii.Sanka Mendis, Environmental Health Officer, City of Greater Dandenong, covering 19 July 2021 to 9 August 2021, and dated 9 February 2022;
iv.Amy Holt, Senior Environmental Health Officer, City of Greater Dandenong, covering 10 August 2021 to 21 September 2021, and dated 11 February 2022;
v.Sandra Macleod, Authorised Officer of the City of Greater Dandenong, covering 21 September 2021 to 7 March 2022, and dated 11 March 2022 (17 pages);
vi.Nicole Jupp-Torner, Environmental Health Officer, City of Greater Dandenong, covering 22 November 2021 and 11 January 2022, and dated 11 March 2022;
vii.Susan Cockbill, Environmental Health Officer, City of Greater Dandenong, covering 3 March 2022, and dated 9 March 2022; and
viii.Amy Holt, Senior Environmental Health Officer, City of Greater Dandenong, covering 4 March 2022 to 7 March 2022, and dated 9 March 2022.
Analysis of evidence and issues arising
The evidence against all three defendants is essentially identical, putting aside the question of identification, the slightly different basis on which it is alleged they engaged in the food business trading as L & A Bakery and the individual engagement with the authorised officers at the time of inspections. The charges arise out of an investigation conducted by informant Sandra Macleod commencing with the annual inspection of the food premises on 16 June 2021.
At the completion of Ms Macleod’s evidence, the matter was adjourned so I could consider the extensive documentary evidence she relied upon and determine whether the prosecution could establish the charges beyond reasonable doubt.
I had intended to complete my considerations and deliver my reasons by 30 November 2022. Unfortunately, the pressure of work did not allow me to complete my considerations by that date. I took the opportunity to raise with Mr Keating for the City of Greater Dandenong my concerns regarding the admissibility of the field interview conducted on 10 August 2021 and whether the evidence established that Ms Tran was a proprietor of the food business as alleged.
Identification of defendants
The identity of the three defendants is established beyond reasonable doubt on the evidence in a number of ways.
L & A Bakery is registered with the City of Greater Dandenong as the owner and operator of the food business operating at 43 Douglas Street, Noble Park and trading under the name L & A Bakery. Attachment SM4 to Ms Macleod’s statement dated 17 January 2022 is an ASIC Search in relation to L & A Bakery Pty Ltd extracted on 25 January 2022. The ASIC extract identifies the registered office and principal place of business of L & A Bakery Pty Ltd as the address provided by Ms Tran in the interview conducted with her on 10 August 2021. The extract identified Mr Tran, of the same address, as the Director and Secretary of the company. It identifies Ms Tran as owner of 50 of the 100 shares issued by the company.
Ms Tran identified herself to Sandra Macleod at the initial annual inspection on 16 June 2021 and signed the Notice of Seizure issued by Ms Macleod that day. Ms Tran later engaged in a formal interview with Ms Macleod and Amy Holt on 10 August 2021. On 16 June 2021, Ms Tran advised Ms Macleod that the Food Safety Program, food safety program records and the thermometer were not on the food premises. She advised Ms Macleod that her son Mr Tran was the person responsible for those items and that he attended to those matters in the afternoon.
Mr Tran exchanged text messages with Ms Macleod on 18 June 2021, 28 June 2021, 29 June 2021 and 8 August 2021. He acknowledged his involvement in L & A Bakery and the food business conducted at 43 Douglas Street, Noble Park in those text messages.
Proprietor or person concerned in management of food business
Each of the 152 charges alleges the corporate defendant is liable ‘being the proprietor of the food business trading as L & A Bakery located at 43 Douglas Street, Noble Park’. The Food Act 1984 at s 4 defines a ‘proprietor of a food business’ as the person carrying on the food business or, if that person cannot be identified, the person in charge of the food business. The meaning of ‘person’ is defined in s 4 to include ‘a body or association (corporate or unincorporate) and a partnership’. The relevant meaning of ‘food business’, contained in s 4B, is a business enterprise or activity that involves handling food intended for sale or the sale of food regardless of whether the nature of the activity is commercial, charitable or community and whether it involves handling or sale of food on only one occasion. Under the Food Act 1984, a reference to the ‘proprietor of a food premises’ is defined in s 4F to be a reference to the proprietor of the food business that operates at, on, or from the food premises.
The evidence establishes beyond reasonable doubt the company L & A Bakery Pty Ltd was the proprietor and operator of the food business trading as L & A Bakery and is responsible for the conduct of the business, including the food premises, and for ensuring it conducted its business in accordance with the Food Act 1984 and the Code. The evidence from the ASIC extract and its registration with the City of Greater Dandenong referred to earlier establish this was the case.
All of the charges against Mr Tran allege he is liable as ‘a person concerned in the management of L & A Bakery Pty Ltd that as the proprietor of a food business trading as L & A Bakery...’. Mr Tran was never present at 43 Douglas Street, Noble Park when Ms Macleod and other authorised officers attended the food premises. Mr Tran did not participate in a formal interview. In the emails he exchanged with Ms Macleod, Mr Tran implicitly acknowledges he is engaged in the management of L & A Bakery. As the sole Director of the Bakery, he is concerned in the management of L & A Bakery and responsible for the conduct of the business, including the food premises, and for ensuring it conducted its business in accordance with Food Act 1984 and the Code.
The responsibility of Mr Tran for the conduct and maintenance of the food business and premises is established beyond reasonable doubt on the evidence.
Each of the 152 charges allege Ms Tran is liable ‘being a proprietor of the food business trading as L & A Bakery located at 43 Douglas Street, Noble Park’. The evidence establishes Ms Tran was involved as a food handler on each of the occasions Ms Macleod and one of her fellow authorised officers attended the Bakery at 43 Douglas Street, Noble Park. Her contact with the inspectors is consistent with the role of an employed member of staff as well as being consistent with a person who might also be in control of the business.
The informant relies on the field interview conducted with Ms Tran on 10 August 2021 at the food premises. The interview was conducted without an interpreter, and from the content of the interview, I have concerns about how much she understood of some parts of the conversation. I also note Ms Tran recorded matters she was told by the inspectors in Vietnamese (see photo two of 7 March 2022) and on various field visits, and based on Ms Macleod’s statement, seemed to have difficulty understanding what she was being told. Although Ms Tran was given a caution at the outset of the field interview, she was not contemporaneously advised she had a right to get advice from a lawyer and, if she wanted to get such advice, the interview would be halted to allow her to do so. I accept Ms Tran was told in an earlier letter, 2 August 2021, she was entitled to get legal advice in relation to the proposed interview. In my view, the right to communicate with a lawyer created by s 464C(1) of the Crimes Act 1958 is a right that must be administered contemporaneously with the commencement of the interview.
Following the administration of her caution and rights, Ms Tran said her role at the Bakery was ‘I control a little bit …. I do something here. I serve customer’. She said she had worked at the Bakery for nearly two years.
The admissibility of the field interview is an issue here. It is relied upon by the informant in part to establish Ms Tran acknowledged she was the person in charge of the food business. In my view, Ms Tran was in the company of an investigating official, Ms Macleod, was about to be questioned and was being investigated to determine her involvement in Food Act 1984 offences. In my view, Ms Macleod already possessed sufficient information from earlier inspections to justify the arrest of Ms Tran.
It is submitted on behalf of Ms Macleod that there is no power of arrest available to her under the Food Act 1984 and so this provision of the Crimes Act 1958, s 464(1), does not apply. Nevertheless, Ms Macleod administered the caution required by the Crimes Act 1958, ss 464A(2) and 464A(3). The right to communicate with a lawyer provided by s 464C(1) commences by referring to any questioning or investigation under s 464(2). There is no exception created in s 464C in relation to the Food Act 1984 as is the case with the Road Safety Act 1986 by s 464C(4). In my view, the rights created by s 464C apply to Ms Tran’s situation at the field interview. The words ‘justify the arrest’ in s 464(1)(c) relates to the sufficiency of the information in the possession of the investigating official, not to the power to arrest. This approach is, in my view, confirmed by the powers of arrest created by s 458 of the Crimes Act 1958. A police officer who finds a person committing an offence will have sufficient information to justify arresting the person, but the officer has no power to arrest the person unless one of the reasons set out in s 458(1)(a) are satisfied. The officer is still required to administer the caution under s 464A(3) and the rights under s 464C unless s 464C(4) applies to those rights.
Whilst the field interview with Ms Tran is an important aspect of the prosecution evidence, I am satisfied it is likely to be misleading and confusing, given Ms Tran was not assisted by an interpreter, and unfairly prejudicial to her. I am satisfied its probative value is outweighed by the danger of unfair prejudice to Ms Tran. In all the circumstances, I am not satisfied the field interview with Ms Tran should be admitted into evidence and so I have no regard to it.
The ASIC extract establishes Ms Tran owned 50% of the shares in L & A Bakery Pty Ltd but she was not an office holder of the company. The Food Act 1984 at s 4F makes clear a reference to the proprietor of a food premises is a reference to the proprietor of the food business that operates at, on or from the premises. As previously noted for the purposes of the Food Act 1984, a corporation is a person and the proprietor of a food business is the person carrying on the food business, or if that person cannot be identified, the person in charge of the food business. Here the person, L & A Bakery, carrying on the food business is identified and is before the Court facing charges as a result of it being the proprietor of the Bakery. In my view, paragraph (b) of the definition of ‘proprietor’ cannot apply to Ms Tran as it is only called into operation if the proprietor, or proprietors, of the business as defined in paragraph (a) cannot be identified.
I am not satisfied Ms Tran is identified as a proprietor of the food business as an owner of shares in a proprietary limited company. The proprietor of the food business is the company, not Ms Tran, a shareholder in the company. Whilst Ms Tran was present at the food premises on every occasion Ms Macleod attended, she is charged on the basis she was a proprietor of a food business. I am not satisfied beyond reasonable doubt the informant has established Ms Tran is a proprietor of the food business trading as L & A Bakery located at 43 Douglas Street, Noble Park. I find Ms Tran not guilty of all charges.
In considering each allegation, in addition to issues of identity and responsibility, I have considered all of the witness statements relied on by the informant and each of the attachments to her statement.
Consideration of the charges
Charges 1 to 10
Charges 1 to 10 inclusive require the prosecution to establish beyond reasonable doubt that each of the three accused handled food intended for human consumption in a manner that would render, or was likely to render, the food unsafe. The meaning of unsafe food is set out in s 4D of the Food Act1984. Relevantly, it means food that, at the particular time in question, would be likely to cause physical harm to a person who might later consume it. Food is not unsafe merely because its inherent properties might cause an adverse reaction in a person with allergies or sensitivities not common to the majority of people.
The evidence establishes the business conducted at the food premises on each of the dates alleged in charges 1 to 10 involved the preparation and handling of food intended for human consumption. It was a retail food shop, registered with the City of Greater Dandenong under the Food Act 1984, which prepared food on site from raw materials to baked or assembled product. On some occasions customers were at the shop when Ms Macleod attended the food premises.
The evidence food was handled in a manner that would render, or was likely to render, it unsafe is comprehensive. The observations of Ms Macleod and other authorised officers who accompanied her on inspections from 22 June 2021 until 7 March 2022 consistently record extremely dirty and poorly maintained utensils, baking and storage equipment, walls, floors, shelves, cool room, freezer and fridges. Food is consistently recorded as having internal temperatures above the specified temperatures required. Decomposing food is observed stored on shelves and fridges in close proximity to other food. Food is stored in containers that do not meet the standards required to store food so it is safe from contamination. Insects, food beetles and rodent faecal matter was observed on numerous occasions. Dead mice were observed in the rear storage area on 20 July 2021. Photographs taken by Ms Macleod confirm the observations made by herself and the other officers on each of the dates to which charges 1 to 10 apply.
Each of charges 1 to 10 are identical, except for the date of the alleged offence. There are three identically worded offences for 16 June 2021, one for 18 June 2021, two for 20 July 2021, one for 3 September 2021 and three for 3 March 2022. There are no particulars in the charges to enable the Court, or for that matter the accused, to distinguish which matters are relied upon in charges where there are multiple charges related to a single date, namely 16 June 2021, 20 July 2021 and 3 March 2021. Whilst I am satisfied beyond reasonable doubt that each accused handled food in a manner that would render, or was likely to render, the food unsafe. I cannot be satisfied they are guilty of multiple offences on the one day against s 11(1) of the Food Act 1984. The informant has provided a summary of facts to assist the Court consider the matters at this ex parte hearing. Whilst the summary of facts provides particulars of the alleged failures of the three accused for each of charges under s 11(1), it does not enable the Court to distil the particulars so as to distinguish between multiple charges arising on the one date. Even if it did facilitate such a distinction, I am not satisfied I could rely upon the summary in this regard as it is not clear it has been served on the defendants.
I am satisfied beyond reasonable doubt, given the overwhelming evidence to support the allegations food was handled by L & A Bakery and Mr Tran in a manner that rendered, or was likely to render, the food unsafe in relation to charges 1, 4, 5, 7 and 8. I cannot be satisfied the defendants are guilty of charges 2, 3, 6, 9 and 10 as there is no basis on which I can distinguish those charges from the first charge alleging that offence on the same date.
Charges 11 to 20
Charges 11 to 20 inclusive allege the defendants committed offences against s 16(1) of the Food Act 1984. The offence created by s 16(1) is to fail to comply with a requirement imposed by the Code in relation to the conduct of a food business, food intended for sale or food for sale. Charges 11 to 15 allege failure to comply with obligations imposed by Standard 3.2.2, 3(1)(a) which requires a food business to ensure that persons undertaking or supervising food handling operations have skills in food safety and food hygiene matters. Charges 16 to 20 allege failure to comply with obligations imposed by Standard 3.2.2, 3(1)(b) which requires a food business to ensure that persons undertaking or supervising food handling operations have knowledge of food safety and food hygiene matters.
Each of the charges are between dates charges, except charge 15 and charge 20 which allege offences on 3 March 2022. The evidence of Ms Macleod and other officers who attended the Bakery show Ms Tran was present at the food premises on each occasion they visited. Ms Tran was asked how she cleaned the utensils, equipment and the premises. She was also asked questions regarding the storage and temperature checks of food. On 3 March 2022, after having the process for cleaning equipment explained to her by Officer Cockbill, Ms Tran wrote the process for cleaning equipment on the buckets she used for that purpose. Ms Tran was unable to produce the Food Safety Program, food safety program records and thermometer. When records of cold storage unit temperatures and cooking temperatures were provided on 3 March 2022, they were incomplete and not up to date. Taking the totality of the evidence into account, including the detailed corrective actions required by the Food Safety Order dated 18 June 2021 and the subsequent inability to undertake the corrective actions required, the evidence establishes beyond reasonable doubt L & A Bakery and Mr Tran failed to ensure persons undertaking or supervising food handling operations had skills and knowledge in food safety and food hygiene commensurate with their work activities. I find L & A Bakery and Mr Tran guilty of charges 11 to 20 inclusive.
Charges 21 to 30
Charges 21 to 30 inclusive allege the defendants committed offences against s 16(1) of the Food Act 1984. The offence created by s 16(1) is to fail to comply with a requirement imposed by the Code in relation to the conduct of a food business, food intended for sale or food for sale.
Charges 21 to 25 allege failure to comply with obligations imposed by Standard 3.2.2, 6(1)(a) which requires a food business to store food in a way that it is protected from the likelihood of contamination.
On each date it is alleged Standard 3.2.2, 6(1)(a) was not complied with, Ms Macleod attended the food premises and observed food stored in single re-use food packaging, plastic shopping bags, cardboard boxes and stored on the floor. On many of those occasions, flour was stored in open bags and not in food grade containers. Food containers had a build-up of food, grease, grime and other physical matter. Internal surfaces of freezers had a build-up of food, grime, ice, hair and other physical matter. Whilst there were some steps taken to improve the situation in some aspects of food storage, observations of the same conditions were made on the inspection of 3 March 2022, the day before the closure notice was served on L & A Bakery at the food premises. The photographs tendered in relation to each, including the between dates charges, confirm the observations of Ms Macleod and her fellow authorised officers. I am satisfied charges 21 to 25 inclusive are established beyond reasonable doubt in relation to both L & A Bakery and Mr Tran.
Charges 26 to 30 allege failure to comply with obligations imposed by Standard 3.2.2, 6(1)(b) which requires a food business to store food in a way so that the environmental conditions under which it is stored will not adversely affect the safety and suitability of the food.
On each date it is alleged Standard 3.2.2, 6(1)(b) was not complied with, Ms Macleod must prove beyond reasonable doubt that the food business failed to store food in a way so that the environmental conditions under which it is stored will not adversely affect the safety and suitability of the food. As noted in relation to charges 21 to 25, when Ms Macleod and other officers attended the food premises, they made the observations described above. In addition to those matters, on various attendances Ms Macleod found food items were stored outside of temperature control, conducted temperature checks on those food items and found the items recorded internal temperatures exceeding the guideline temperatures by significant margins. On occasions, food in advanced state of deterioration, decomposition and with mould growing on it was found stored near other food and in a refrigerator. Ms Macleod also observed the general state of the premises to be dirty and unsanitary. Photographs tendered in relation to each, including the between dates charges, confirm the observations of Ms Macleod and her fellow authorised officers. I am satisfied charges 26 to 30 inclusive are established beyond reasonable doubt in relation to both L & A Bakery and Mr Tran.
Charges 31 and 32
Charges 31 and 32 allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with the obligations imposed by Standard 3.2.2, 6(2)(a) which requires a food business to store potentially hazardous food under temperature control. Standard 3.2.2, 1 defines ‘potentially hazardous food’ to mean ‘food that has to be kept at certain temperatures to minimise the growth of any pathogenic microorganisms that may be present in the food or to prevent the formation of toxins in the food’. Standard 3.2.2, 1 defines ‘temperature control’ to mean storing food at a temperature of 5 degree Celsius ‘or below if this is necessary to minimise the growth of infectious or toxigenic microorganisms in the food so that the microbiological safety of the food will not be adversely affected for the time the food is at that temperature’.
On 16 June 2021, Ms Macleod conducted internal temperature checks on raw egg butter, pate and sliced deli meats stored in the cold sandwich filling display and on sliced deli meats and sliced cheese stored in a domestic refrigerator. On 18 June 2021, Ms Macleod conducted internal temperature checks on raw egg butter, pate, sliced deli meats and milk stored in the cold sandwich filling display. On 3 March 2022, Ms Macleod conducted internal temperature checks on pies in a cardboard box, an open packet of grated tasty cheese, a sealed packet of grated tasty cheese, a container of grated carrot and an open packet of sliced ham stored in the cool room. I am satisfied beyond reasonable doubt that each of these food items is a potentially hazardous food. Each temperature check recorded internal temperatures significantly above 5 degrees Celsius, with some checks recording internal temperatures above 10 degrees Celsius. I am satisfied charges 31 and 32 are established beyond reasonable doubt in relation to both L & A Bakery and Mr Tran.
Charges 33 to 37
Charges 33 to 37 inclusive allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.2, 7(1)(a) which requires a food business to take all practical measures to process only safe and suitable food.
On each date it is alleged Standard 3.2.2, 7(1)(a) was not complied with, Ms Macleod attended the food premises and made observations, as already discussed in relation to charges 11 to 32 above. Additional observations were made of shelving, baking equipment, food preparation benches and storage drawers with a build-up of grease, grime and other physical matter. A coffee machine was repeatedly observed to be in an unclean and unsanitary condition with the machine and the surrounding surfaces having a build-up of coffee grinds, food, dried liquid stains and other physical matter. There was no double bowl sink or dishwasher and the equipment sink was one large sink with no other means of conducting sanitising processes. No cleaners sink was available either inside or outside in the rear yard. There was no soap or other means for food handlers to wash their hands at the toilet hand-wash basin and no paper towel or other means to dry their hands after washing.
All of these matters point to obvious practical measures that could be taken to ensure the Bakery processed only safe and suitable food. I am satisfied charges 33 to 37 inclusive are established beyond reasonable doubt in relation to both L & A Bakery and Mr Tran.
Charges 38 to 42
Charges 38 to 42 inclusive allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.2, 7(1)(b)(i) which requires a food business, when processing food, to take all necessary steps to prevent the likelihood of food being contaminated.
On each between date charge it is alleged Standard 3.2.2, 7(1)(b)(i) was not complied with, Ms Macleod attended the food premises on the beginning and end dates of the between dates and made observations as already discussed in relation to charges 11 to 37 above. In addition to those matters, Ms Macleod enquired about the presence of a food thermometer at the premises. A food thermometer could not be produced until 9 August 2021. On 11 January 2022, Ms Tran showed the temperature records to Ms Macleod when she attended the Bakery at 2:15pm. Ms Macleod observed no hot and cold storage temperatures had been recorded for the day, cooking temperature checks and thermometer calibration records had not been completed. Ms Macleod was told by Ms Tran on 16 June 2021 the Food Safety Program and records were not at the food premises. Ms Macleod advised Ms Tran the Food Safety Program and records must be at the food premises at all times. Although Ms Macleod repeatedly asked for the Bakery Food Safety Program and records to be produced, at no time between 16 June 2021 and 3 March 2022 inclusive were they produced when Ms Macleod asked for them.
All of these matters point to necessary steps to prevent the likelihood of food being contaminated that were not taken. I am satisfied charges 38 to 42 inclusive are established beyond reasonable doubt in relation to both L & A Bakery and Mr Tran.
Charge 43
Charge 43 is a stand-alone charge alleging between 16 June 2021 and 18 June 2021 the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.2, 8(5)(a) which requires a food business, when displaying potentially hazardous food, to display it under temperature control. The meaning of ‘potentially hazardous food’ and ‘temperature control’ are set out in relation to charges 31 and 32 above.
Charge 31 covers the same between date period as charge 43. The evidence set out in relation to charge 31 above is the same evidence relied upon for charge 43. Charge 31 is a failure to store potentially hazardous food under temperature control whilst charge 43 is a failure to display potentially hazardous food under temperature control. The evidence related to the temperature of food in the cold sandwich filling display on 16 June 2021 and 18 June 2021 is relevant to both charge 31 and 43 as food in the cold sandwich filling display is also food being stored in the cold sandwich filling display. The evidence related to the temperature of food stored in a domestic refrigerator on 16 June 2021 is relevant to charge 31 but not to charge 43 as it is not food that is being displayed.
Based on the evidence relevant to charge 43, I am satisfied charge 43 is established beyond reasonable doubt in relation to both L & A Bakery and Mr Tran.
Charges 44 to 46
Charges 44 to 46 allege offences against s 16(1) of the Food Act 1984 by failure to comply with obligations imposed by Standard 3.2.2, 17(1)(b)(ii) which requires a food business, for each food premises, maintain at or near each hand washing facility a supply of soap. The charges allege offences on 16 June 2021, 3 September 2021 and 3 March 2022. On each of those dates. Ms Macleod observed there was no soap or other means provided at the toilet hand-wash basin for food handlers to wash their hands. Photographs taken on each date confirms Ms Macleod’s observations
Based on the evidence relevant to charges 44 to 46 I am satisfied the charges are established beyond reasonable doubt in relation to both L & A Bakery and Mr Tran.
Charges 47 to 49
Charges 47 to 49 allege offences against s 16(1) of the Food Act 1984 by failure to comply with obligations imposed by Standard 3.2.2, 17(1)(d)(i) which requires a food business, for each food premises, maintain at or near each hand washing facility single use towels or other means of effectively drying hands that are not likely to transfer pathogenic microorganisms to the hands. The charges allege offences on 16 June 2021, 3 September 2021 and 3 March 2022. On each of those dates Ms Macleod observed there was no single use towels, or other means of effectively drying hands, that are not likely to transfer pathogenic microorganisms to the hands, provided at the toilet hand-wash basin for food handlers to dry their hands. Photographs taken on each date confirms Ms Macleod’s observations
Based on the evidence relevant to charges 47 to 49 I am satisfied the charges are established beyond reasonable doubt in relation to both L & A Bakery and Mr Tran.
Charges 50 to 54
Charges 50 to 54 allege offences against s 16(1) of the Food Act 1984 by failure to comply with obligations imposed by Standard 3.2.2, 19(1) which requires a food business to maintain food premises to a standard of cleanliness where, relevantly, there is no accumulation of garbage, food waste, dirt, grease or other visible matter.
On each date it is alleged Standard 3.2.2, 19(1) was not complied with, Ms Macleod attended the food premises and made observations of food containers that had a build-up of food, grease, grime and other physical matter. Internal surfaces of freezers had a build-up of food, grime, ice, hair and other physical matter. Additionally, observations were made of shelving, baking equipment, food preparation benches and storage drawers with a build-up of grease, grime and other physical matter. A coffee machine was repeatedly observed to be in an unclean and unsanitary condition with the machine and the surrounding surfaces having a build-up of coffee grinds, food, dried liquid stains and other physical matter. The rear stairs and floor coverings had build-up of food, grease, dirt and other physical matter. The rear yard of the food premises had an accumulation of recyclable and hard waste, unused equipment and other physical matter. Photos taken on 7 March 2022, four days after the last date for a charge, show a significant improvement in the state of the rear yard but there is still an accumulation of garbage. Ms Macleod also observed the general state of the premises to be dirty and unsanitary. Photographs tendered in relation to each charge, including the between dates charges, confirm the observations of Ms Macleod and her fellow authorised officers.
Based on the evidence relevant to charges 50 to 54 I am satisfied the charges are established beyond reasonable doubt in relation to both L & A Bakery and Mr Tran.
Charges 55 to 59
Charges 55 to 59 inclusive allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.2, 19(2) which requires a food business to maintain, relevantly, all fixtures, fittings and equipment, having regard to their use, to a standard of cleanliness where there is no accumulation of food waste, dirt, grease or other visible matter.
On each date it is alleged Standard 3.2.2, 19(2) was not complied with, Ms Macleod attended the food premises and made observations of a build-up of food waste, dirt, grease, and other physical matter on equipment used for baking and food preparation. Internal surfaces of freezers had a build-up of food and other visible matter. Shelving had a build-up of grease, dirt and other physical matter. The coffee machine was repeatedly observed to be unclean and unsanitary, with the machine and the surrounding surfaces having a build-up of coffee grinds and other food waste, dried liquid stains and other visible matter. Light switches were observed with a build-up of dirt and other visible matter. On occasions, decomposing food, deteriorated vegetables stored in a domestic refrigerator, fruit with greenish and white mould, cabbage and beans with mould growing in it in the cool room and deteriorated melons on the bottom shelf of a food preparation bench. Photographs tendered in relation to each charge, including the between dates charges, confirm the observations of Ms Macleod and her fellow authorised officers.
Having regard to the use of these items of fixtures, fittings and equipment and the standard of cleanliness required – no accumulation of food waste, dirt, grease or other visible matter – the standard has not been met. Based on the evidence relevant to charges 55 to 59 I am satisfied the charges are established beyond reasonable doubt in relation to both L & A Bakery and Mr Tran.
Charges 60 to 64
Charges 60 to 64 inclusive allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.2, 20(1)(a) which requires a food business to ensure eating and drinking utensils are in a clean and sanitary condition immediately before each use.
The term ‘eating and drinking utensils’ is not defined in Code 3.2.2 so must be taken to have its ordinary meaning. The Cambridge Dictionary defines ‘utensil’ as ‘a tool with a particular use, especially in a kitchen or house’.[1] The Cambridge Dictionary defines ‘eat’ as ‘to put or take food into the mouth, chew it (crush it with the teeth), and swallow it’.[2] The Cambridge Dictionary defines ‘drink’ as ‘(an amount of) liquid that is taken into the body through the mouth.[3] The words ‘eating and drinking utensils’ exclude utensils used for food storage, preparation and presentation. Combined with the words ‘immediately before each use’ in Standard 3.2.2, 20(1)(a) the phrase must be taken to refer to utensils used to take food and liquid into the mouth.
[1]Cambridge Dictionary (online between 1 to 9 December 2022) ‘utensil’ (def 1).
[2]Cambridge Dictionary (online between 1 to 9 December 2022) ‘eat’ (def 1).
[3]Cambridge Dictionary (online between 1 to 9 December 2022) ‘drink’ (def 1).
On each date it is alleged Standard 3.2.2, 20(1)(a) was not complied with, Ms Macleod attended the food premises and made detailed observations already referred to in these reasons and as set out in statements of the authorised officers attending and photographs Ms Macleod relies upon. The only evidence before the Court to suggest food sold by the food business was intended to be consumed on the premises is contained in the photographs SM2 attached to Ms Macleod’s statement made on 17 January 2022. Those photos are taken after 4:00pm on 16 June 2021 when Ms Macleod returned to the food premises after conducting her annual inspection commencing at 9:40am earlier that day. She returned to review the cold storage at the food premises. The 12 photos she took include photos in the cold display unit in the front servery area. In photos one and three, a drinks fridge, two tables and three chairs can be seen against the wall in the customer side of the front food display unit. On the evidence, the inference available is that the business operated as a ‘take-away’ food business with limited seats provided for seating for waiting customers and for food to be consumed on the food premises.
The evidence of eating and drinking utensils at any stage, much less immediately before use, is scant if not non-existent. On 9 December 2021, Ms Macleod observed two cups, two teaspoons and a domestic size butter plate on the kitchen sink stored next to some grated carrot in tubs in the sink. Photos one and two taken on 9 December 2021 confirm Ms Macleod’s observations. These items appear to have been used for the consumption of food and drink. This is consistent with the items being placed at the sink after use, hence they are not stored there ‘immediately before each use’. The evidence as to the state of utensils at the food premises is substantial and indicates those utensils were often not in a clean and sanitary condition. Those utensils are not utensils for eating and drinking, they are utensils used for food storage, preparation and presentation.
Based on the evidence relevant to charges 60 to 64 I am not satisfied the charges are established beyond reasonable doubt in relation to both L & A Bakery and Mr Tran and I find them not guilty of those charges.
Charges 65 to 69
Charges 65 to 69 inclusive allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.2, 20(1)(b) which requires a food business to ensure food contact surfaces of equipment are in a clean and sanitary condition whenever food that will come into contact with the surface is likely to be contaminated.
The word ‘equipment’ is defined in s 4 of the Food Act 1984. The definition is broad and is divided into equipment designed or intended for use in connection with handling of food and equipment designed or intended for use in cleaning any equipment used for handling food. The phrase ‘clean and sanitary condition’ in relation to a surface is defined in Standard 3.2.2, 20(2). It requires the surface be clean and have had applied to it heat or chemicals, or heat and chemicals, or other processes so the number of microorganisms on the surface has been reduced to a safe level. It defines what I have referred to as a ‘safe level’ as a level of microorganisms that does not compromise the safety of food it may came into contact with and does not permit the transmission of infectious disease.
On each date it is alleged Standard 3.2.2 20(1)(b) was not complied with, Ms Macleod attended the food premises and made observations of food containers, shelving, preparation benches, large baking equipment, food trolleys, food moulds, an oven, cool room, fridges, utensils and utensil storage containers that had a build-up of food, grease, grime, dirt and other physical matter. Additionally, there was no dishwashing machine, no double bowl sink and no cleaners sink to assist the effective application of heat and/or chemicals to assist maintain food contact surfaces in a clean and sanitary condition as defined. On 3 March 2022, Ms Tran was asked to produce the sanitiser she used to clean larger equipment. She retrieved an unlabelled spray bottle from under the cash register but was not able to produce the larger bottle from which the sanitiser had been poured to fill the unlabelled spray bottle.
More than 300 photographs were tendered into evidence as part of the brief of evidence. They cover 13 inspections and the attendance on 4 March 2022 when the closure notice was served on the Bakery. Across all those photos, which include items stored on shelves, a sink for cleaning in the kitchen and items stored in the rear yard, I was not able to discern a container that was clearly identifiable as containing a sanitising agent. There were some spray bottles in some of the photos but they were not labelled in a manner that allowed the contents to be identified.
Having regard to the evidence relevant to charges 65 to 69 I am satisfied the charges are established beyond reasonable doubt in relation to both L & A Bakery and Mr Tran.
Charges 70 and 71
Charges 70 and 71 allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.2, 21(1) which requires a food business to maintain food premises and all fixtures, fittings and equipment, having regard to their use, in a good state of repair and working order.
The phrase ‘state of repair’ is not defined in either the Food Act 1984 or the Code at 3.2.2. Its meaning in general use can vary but essentially it refers to the physical state of the object in question. It might be covered by the phrases ‘in working order’ or ‘in a condition suitable to be used for its purpose’. Its meaning has to be determined in the context in which it is used in Standard 3.2.2. Critically, its meaning is to be determined by having regard to the use of the object, the fact its use is in relation to the transportation, storage, preparation, presentation and sale of food to members of the public and it is part of a code of food standards to protect the public from the dangers of contaminated food. In this context it does not refer to something being broken – it refers to something being in working order in the sense of in a condition suitable to be used for its purpose.
Charge 70 relate to the period between 16 June 2021 and 18 June 2021. Charge 71 relates to 3 March 2022. The evidence set out in relation 16 June 2021, 18 June 2021 and 3 March 2021 as set out in regard to charges 50 to 54, 55 to 59 and 65 to 69 above establishes the food premises and fittings and equipment, having regard to their use, were not in a good state of repair as alleged in charges 70 and 71. The photos taken on 16 June 2021, 18 June 2021 and 3 March 2022 confirm the observations of Ms Macleod in relation to the food premises and fixtures, fittings and equipment not being in a good state of repair and working order as alleged.
Having regard to the evidence relevant to charges 70 and 71 I am satisfied the charges are established beyond reasonable doubt in relation to both L & A Bakery and Mr Tran.
Charges 72 and 73
Charges 72 and 73 allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.2, 22(a) which requires a food business to have a temperature measuring device that is readily accessible at a food premises where potentially hazardous food is handled.
The definition of ‘potentially hazardous food’ is set out in consideration of charges 31 and 32 above, as are some of the foods being handled at the food premises that come within the definition. Ms Macleod asked Ms Tran to produce the thermometer on 16 June 2021, 22 June 2021, 19 July 2021, 20 July 2021 and 27 July 2021. Ms Tran was not able to produce a thermometer, and told Ms Macleod on 16 June 2021 it was not there and her son had the records. The thermometer was not produced until the inspection on 9 August 2021.
Having regard to the relevant evidence I am satisfied beyond reasonable doubt charges 72 and 73 are established in relation to both L & A Bakery and Mr Tran.
Charges 74 to 78
Charges 74 to 78 inclusive allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.2, 23(b)(ii) which requires a food business in relation to single use items, intended to come into contact with food or the mouth of a person, to not reuse such items.
The term ‘single use’ is not defined in either the Food Act 1984 or Standard 3.2.2. Its meaning has to be determined in the context in which it is used in Standard 3.2.2 and otherwise applying its ordinary meaning. Apart from its use in Standard 3.2.2, 23, where it applies to items coming into contact with food or a person’s mouth, it is used in Standard 3.2.2, 15 and 17 in relation to towels used to dry food handler’s hands after washing. It is clearly intended to refer to items intended by design to be disposed of after use. Plastic shopping bags, paper bags, plastic food packaging particularly soft plastic packaging, recyclable cardboard, moisture absorbent food pads, paper towelling, plastic drinking covers for takeaway coffee cups, food tins and hard plastic food tubs used for the delivery of wholesale food product are all items that come within the meaning of single use items for the purposes of Standard 3.2.2.
At inspections conducted on 16 June 2021, 18 June 2021, 22 June 2021, 19 July 2021, 20 July 2021, 22 July 2021, 2 August 2021, 9 August 2021, 3 September 2021, 21 September 2021, 22 October 2021, 22 November 2021, 9 December 2021, 11 January 2022 and 3 March 2022 Ms Macleod observed food stored in single use packaging. The most common form of single use packing used for food storage was probably plastic shopping bags. The reuse of soft plastic food packaging and hard plastic food tubs, covers of take away coffee cups and recyclable cardboard were also recorded. Ms Macleod’s observations are confirmed in numerous photos.
Based on the relevant evidence I am satisfied beyond reasonable doubt charges 74 and 78 are established in relation to both L & A Bakery and Mr Tran.
Charges 79 to 82
Charges 79 to 82 allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.2, 24(1)(b) which requires a food business to take all practicable measures to prevent pests entering the food premises.
The term ‘pests’ is not defined in either the Food Act 1984 or Standard 3.2.2. The term pest is defined in the Cambridge Dictionary as ‘an insect or small animal that is harmful or damages crops: common pests such as rats, mice, or cockroaches’.[4]
[4]Cambridge Dictionary (online between 1 to 9 December 2022) ‘pest’ (def 1).
At inspections Ms Macleod observed:
a.brown flour beetles on a food preparation bench (19 July 2021), in food containers (20 July 2021) and inside breadcrumbs stored in a non-food safe plastic bag (3 March 2022);
b.rodent faecal matter on benches, floors and equipment (27 July 2021), on surfaces near the toilet (2 August 2021), around equipment and fixtures near the toilet (9 August 2021), on top of the layer oven, the floor under unused food trolleys and on floors and benches (3 September 2021), above the oven (8 September 2021), on top of the layer oven, the floor under unused food trolleys and equipment, on unused baking trolleys, on baking paper, on the floor under shelving (21 September 2021), on top of the layer oven and around equipment and fixtures near the toilet (22 October 2022), on top of the layer oven (22 November 2021), on the floor behind large food mixers and inside the bowl of the large food mixing machine (3 March 2022);
c.dead flies on the floor behind large food mixers (22 November 2021) and both live and dead throughout the kitchen and on shelves containing food (3 March 2022);
d.two dead mice stuck to a plate behind bags of flour and near bread rolls on the floor (20 July 2021); and
e.live and dead spiders, cobwebs and other insects on the outside of flour and large dry ingredient packaging under a food preparation bench (20 July 2021).
All of these insects and rodents come within the meaning of ‘pests’. Although a licensed pest controller was contracted by the Bakery after Ms Macleod’s direction given on 20 July 2021, the poor management of the food premises made the task of preventing pests entering the food premises almost impossible. A thorough cleanout and cleaning of the premises, the use of commercial food-safe storage containers, was required as a practicable measure. On the evidence this was not done.
Based on this evidence I am satisfied beyond reasonable doubt charges 79 to 82 are established in relation to both L & A Bakery and Mr Tran.
Charges 83 to 86
Charges 83 to 86 allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.2, 24(1) which requires a food business to take all practicable measures to eradicate pests and prevent the harbourage of pests on the food premises.
Whilst contracting a licensed pest controller is a practical measure in a program to eradicate and prevent harbourage, in the circumstances of the Bakery, it was simply one step of the many obvious practical measures that were required to achieve that end. Based on the evidence and reasons given in relation to charges 79 to 82 above I am satisfied beyond reasonable doubt charges 83 to 86 are established in relation to both L & A Bakery and Mr Tran.
Charges 87 to 91
Charges 87 to 91 allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.3, 5(a) which requires a food premises to have a sewage and waste water disposal system that will effectively dispose of all sewage and waste water.
On each date it is alleged Standard 3.2.3, 5(a) was not complied with, Ms Macleod attended the food premises and observed there was no cleaners sink inside or outside the premises to enable the effective disposal of wastewater generated from the process of cleaning the food premises. Whilst there was a toilet, a hand wash basin and a large single bowl equipment sink, which must have been connected to the local sewage and wastewater system, these facilities are not effective means of dealing with waste water generated from cleaning a food premises in the circumstances of the Bakery. The absence of a dishwashing machine and a double sink certainly meant the reliance on a single large equipment sink was problematic but I do not consider the absence of those two items rendered the single sink an ineffective means of disposing of the waste water generated by that sink. Rather, the absence of a dishwasher and a double sink rendered the means of cleaning utensils and equipment ineffective.
Based on the evidence I am satisfied in the circumstances of this case the absence of a dedicated cleaners sink meant the sewage and wastewater systems at the Bakery were not effective to dispose of all sewage and waste water generated at the food premises. In these circumstances I am satisfied beyond reasonable doubt charges 87 and 91 are established in relation to both L & A Bakery and Mr Tran.
Charges 92 to 96
Charges 92 to 96 allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.3, 5(b) which requires a food premises to have a sewage and waste water disposal system that is constructed and located so that there is no likelihood of the sewage and waste water polluting the water supply or contaminating food.
Whilst the absence of a double sink and dishwashing machine were not relevant to the offences alleging failure to effectively dispose of wastewater they are relevant to these offences alleging a failure to have a system constructed so there is no likelihood of waste water contaminating food. Combined with the absence of a dedicated cleaners sink, the absence of a double sink and a dishwashing machine must increase the likelihood of wastewater contaminating food as the means of disposing of the waste water generated by cleaning a food premises such as the Bakery. In the circumstances at the Bakery, as revealed by the evidence over a period of almost eight months, the volume of wastewater generated from cleaning the premises, including floors, walls, large equipment, public service area, stairs, toilet, would be considerable. Disposing of this wastewater via the single bowl sink would inevitably create an increased risk of food contamination. The alternative was to dispose it through the toilet. This however would not be practical, nor likely to be maintained, given quantity of wastewater involved and that the toilet was located on the upper level, not the main food production, preparation and sales area on the ground floor.
Based on the evidence, I am satisfied in the circumstances of this case the absence of a double sink and dishwashing machine combined with the absence of a dedicated cleaners sink meant the sewage and wastewater systems at the Bakery were not constructed and located so there was no likelihood of the waste water contaminating food. In these circumstances I am satisfied beyond reasonable doubt charges 92 to 96 are established in relation to both L & A Bakery and Mr Tran.
Charges 97 to 101
Charges 97 to 101 allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.3, 6(a) which requires that a food premises must have facilities for the storage of garbage and recyclable matter that is adequate to contain the volume and type of garbage and recyclable matter on the food premises.
Throughout the more than 300 photographs relied upon by Ms Macleod it is difficult to discern any facilities and system for the storage of garbage and recyclable matter. A domestic, approximately 20 litre, black plastic garbage bin is seen inside the food premises in photos 35, 36, 51 taken on 16 June 2021. Close examination of these three photos reveal it to be the same black plastic bin. Photo 46 shows what appears to be a similar black plastic bin, partially on its side and on top of other objects in the rear yard. Photo 48 shows what may be part of a larger commercial style green plastic rubbish bin on the right-hand side of the photo. On the left-hand side of the same photo is a large tub, perhaps about 100 litres or more, sitting on disused red shelving and beside an upright disused green and black commercial drink fridge. This tub appears to have a large object in it which is covered by a plastic sheet. If the rubbish bins and this larger tub were all used to contain garbage and recyclable matter they are dwarfed by the accumulated garbage and recyclable matter shown in the 56 photos taken by Ms Macleod on her annual inspection on 16 June 2021.
In photo 12 taken on 19 July 2021, the black rubbish bin shown in photo 46 from 16 June 2021 can be seen in the same position from a different angle still sitting partially on its side. From the two photos it appears as though it has not been moved during the month from 16 June 2021 to 19 July 2021. It appears to be sitting in what might be an outside shelf of some description. Later photos taken on 7 March 2022, photos 43 and 44, suggest the object it was sitting on may have been a shallow outside sink but those photos suggest the sink is not connected to any waste water drainage system.
Photo five taken on 27 July 2021 shows a part of the rear yard. The yard appears reasonably orderly with unused equipment, some covered in plastic sheeting, empty cardboard boxes, empty plastic milk crates, a 20 kilogram gas bottle and hard plastic tubs. These items are placed along a grey brick wall. Although stored in a reasonably orderly fashion, they suggest a lack of facilities for the storage of garbage and recyclable material unless accumulating them in the rear yard is considered an appropriate facility.
Photographs 23, 24, 25, 26 and 27 taken on 2 August 2021 show various perspectives of the rear yard. Photo 23 shows the black bin from photo 46 on 16 June 2021 still in the same position apparently unmoved since 16 June 2021. Photo 23 also shows an open cardboard box partially filled with formed scrunchy plastic food containers and an empty Coca-Cola box. Empty hard plastic milk crates and food crates are also seen stacked in a loose manner. Photo 26 shows a large industrial green plastic waste bin, probably the same bin partially disclosed in photo 48 taken on 16 June 2021.
Photos 41 to 48 taken on 7 March 2022, four days after the last charge date, still show some accumulation of garbage and recyclable material but it is a vastly improved situation compared with earlier photos and observations reported by Ms Macleod. The accumulation over the period from 16 June 2021 to 3 March 2022 appears to reflect the absence of a Food Safety Program at the food premises, but that is not the issue for these charges. The charges here require the informant to establish beyond reasonable doubt the defendants failed to have facilities adequate to contain the volume and type of garbage and recyclable matter on the food premises.
Based on the totality of the relevant evidence I am satisfied in the circumstances of this case the accumulation of garbage and other recyclable material establishes beyond reasonable doubt the facilities provided were inadequate to deal with the volume and type of generated. I am satisfied beyond reasonable doubt that charges 97 to 101 are established in relation to both L & A Bakery and Mr Tran.
Charges 102 and 103
Charges 102 and 103 allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.3, 6(b) which requires a food premises must have facilities for the storage of garbage and recyclable matter that enclosed garbage and recyclable matter where necessary to keep pests and animals away from it.
The offences are alleged to have taken place on 16 June 2021 and 19 July 2021. The first direct evidence of pests or animals at the food premises is on 19 July 2021 when Ms Macleod observed three little brown insects in a corner of a drawer of a food preparation bench. These are subsequently identified by her to be identical to flour beetles. It is not until the next day, 20 July 2021, that Ms Macleod makes her first observation of both live and dead spiders and also two dead mice on a plate on the floor. The prosecution has not particularised how it is put the failure to enclose garbage or recyclable matter on 16 June 2021 and on 19 July 2021 relates to the presence of pests and animals in the garbage or recyclable matter or, more broadly, the food premises itself. There is no evidence of pests or animals being present on 16 June 2021, although they may have been present on the food premises at that time. On 19 July 2021 there are flour beetles. It may be presumed an extensive infestation of flour beetles in flour in the flour storage area observed on 20 July 2021 was present on 19 July 2021, the previous day. The same presumption is valid in relation to the dead and live spiders and the two dead mice.
There is no evidence that allows me to conclude beyond reasonable doubt the flour beetles, spider and dead mice occurred because a failure to have facilities for storage that enclosed waste and recyclable matter. Flour beetles in particular might be brought onto the food premises in new product that was infested before delivery. Whilst that is not likely in regard to spiders and mice, there is simply no evidence that establishes the infestations were caused by a failure to enclose waste and recyclable matter. The poor state of the food premises was a serious failure to meet required standards. The absence on site of the Food Safety Program was also a serious failure. These matters may easily explain the presence of the pests and animals as the failure to have facilities to enclose the waste and recyclable matter.
I am not satisfied in the circumstances of this case the relevant evidence establishes beyond reasonable doubt charges 102 and 103 are established in relation to both L & A Bakery and Mr Tran.
Charges 104 to 108
Charges 104 to 108 allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.3, 12(1)(a) which requires a food premises must have fixtures, fittings and equipment adequate for the production of safe and suitable food.
The term ‘equipment’ is defined in s 4 of the Food Act 1984. In addition to any utensil, machinery, instrument, device, apparatus or appliance used, designed or intended for use in connection with handling food, it includes any substance, utensil etc used or intended for use in cleaning that equipment. The terms ‘fixtures’ and ‘fittings’ are not defined in the Food Act 1984 or Standard 3.2.3, and must be taken to have their ordinary meanings.
The meaning of the phrase ‘adequate for the production of safe and suitable food’ in Standard 3.2.3. 12(1)(a) must be determined from the context within which it is used in the Code and within Standard 3.2.3, 12. The defendants are charged with a number of offences related to fixtures, fittings and equipment. Notably:
a.charges 55 to 59 allege they failed to maintain all fixtures, fittings and equipment to a requisite standard of cleanliness;
b.charges 65 to 69 allege they failed to ensure the food contact surfaces of equipment kept to a requisite clean and sanitary standard; and
c.charges 70 and 71 allege they failed to maintain fixtures, fittings and equipment in a good state of repair and working order.
Taking this context into account, the phrase ‘adequate for the production of safe and suitable food’ used in 12(1)(a) must be intended to deal with a failing not covered by standard 3.2.2 and the earlier charges. The usual meaning of ‘adequate’ is ‘enough or satisfactory for a particular purpose’.[5] Looking at Standard 3.2.3, Division 4, which contains 12(1)(a), it is directed to issues of design, installation and construction of fixtures, fittings and equipment, not its maintenance.
[5]Cambridge Dictionary (online between 1 to 9 December 2022) ‘adequate’ (def 1).
The prosecution has not particularised in the charges how it is said the fixtures, fittings and equipment were deficient in relation to their design, installation and construction at the food premises. In the absence of particularisation of these charges, I am unable to be satisfied they are not based on the same circumstances relied on for charges 114 to 118. I am not satisfied, in the circumstances of this case, the relevant evidence establishes beyond reasonable doubt charges 104 to 108 are established in relation to both L & A Bakery and Mr Tran.
Charges 109 to 113
Charges 109 to 113 allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.3, 12(1)(b) which requires a food premises must have fixtures, fittings and equipment fit for their intended use.
As noted above Standard 3.2.3, Division 4, including 12(1)(b), is directed to issues of design, installation and construction of fixtures, fittings and equipment, not its maintenance.
The prosecution has not particularised how it is said the fixtures, fittings and equipment were not fit for their intended use in relation to their design, installation and construction at the food premises. I am not satisfied in the circumstances of this case the relevant evidence establishes beyond reasonable doubt charges 109 to 113 are established in relation to both L & A Bakery and Mr Tran.
Charges 114 to 118
Charges 114 to 118 allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.3, 12(2)(a) which requires a food premises must have fixtures, fittings and equipment designed, constructed, located and installed so there was no likelihood they will cause food contamination.
As noted previously, Standard 3.2.3, Division 4 is directed to issues of design, installation and construction of fixtures, fittings and equipment, not its maintenance and 12(2)(a) states this expressly.
The prosecution has not particularised how is said the fixtures, fittings and equipment were likely to cause food contamination in relation to their design, installation, location and construction at the food premises. The Food Safety Order made 18 June 2021 (Item 20), the Premises Inspection Report dated 3 September 2021 (Item 16) and the Food Safety Order made 4 March 2022 (Item 14) all require L & A Bakery to install a double bowl sink or alternatively a single bowl sink of sufficient size combined with a suitably sized dishwasher. Those same three documents (at Items 21, 17 and 15 respectively) also require it to install a single bowl cleaners sink to be properly fitted in accordance with the specifications set out therein. The evidence establishes neither requirement was ever addressed. I am satisfied in the circumstances of this case the relevant evidence establishes beyond reasonable doubt charges 114 to 118 are established in relation to both L & A Bakery and Mr Tran.
Charges 119 to 123
Charges 119 to 123 allege the defendants committed offences against s 16(1) of the Food Act 1984 by failing to comply with obligations imposed by Standard 3.2.3, 15(1) which requires a food premises must have adequate storage facilities for the storage of items likely to be the source of food contamination, including chemicals, clothing and personal belongings.
On each inspection between 16 June 2021 and 3 March 2022, Ms Macleod observed a hammock or other bedding used by Mr Thanh Du Tran, Ms Tran’s husband and the father of Mr Tran, to sleep in the food premises. This bedding was generally on shelving used to store food and food packaging, paperwork associated with the business, and personal items including clothing. On 16 June 2021, the wood framed hammock was set up in front of the baking oven. Except for the hammock in front of the oven, these observations were generally supported by photos. The risk of food contamination given the chaotic way in which these items were stored with or near food and food packaging is obvious from the photos.
I am satisfied in the circumstances of this case the relevant evidence establishes beyond reasonable doubt charges 119 to 123 are established in relation to both L & A Bakery and Mr Tran.
Charges 124 to 131
Charges 124 to 131 allege the defendants contravened the order made by the City of Greater Dandenong on 18 June 2021 (the first order) in relation to the food premises, and thus were in breach of s 19(7) of the Food Act 1984. The first order required the Bakery to put the food premises into a clean and sanitary condition, in a good state of repair etc, and take the steps specified to the satisfaction of an authorised officer within specified time periods. Pages 2-4 of the first order set out 21 specified steps of corrective action to be completed. All specified steps, except step 15, set dates by which the step must be completed. Item 15 has no completion date specified in the order. The last date for completion of a specified step is 15 July 2021.
Charges 124 to 131 allege the first order was contravened on eight specific dates between 19 July 2021 and 3 March 2022. Although most of the specific steps were to be completed by 23 June 2021, the informant has not alleged an offence until the first inspection on 19 July 2021, conducted after the last date the first order required a specified step to be completed. In my view, that is an appropriate approach for the informant to take.
The informant has not particularised the specific actions required by the first order she alleges were not complied with. The allegation can be established if only one step was not completed within the specified time. From the evidence, it is clear that the majority of specified steps contained in the first order were not complied with by the inspection conducted on 19 July 2021. I am satisfied beyond reasonable doubt charge 124 is established in relation to both L & A Bakery and Mr Tran.
On 20 July 2021 Ms Macleod attended the food premises to advise Ms Tran and her husband Thanh Du Tran that she was satisfied the beetles observed in the flour drawer the previous day were flour beetles. She conducts an inspection and later, on 20 July 2021 she returns to serve a second order (the second order). The second order advises specified items of the first order, namely items 2, 3, 7, 9, 10, 12 to 18 inclusive, 20 and 21, have not been adequately addressed and remain outstanding. The second order sets out three specific steps of additional corrective action required to be completed by 22 July 2021.
The inference of the second order is that steps 1, 4, 5, 6, 8, 11 and 19 of the first order have been complied with. As with the first order, the second order advises the ‘requirements are to be satisfactorily completed within the timeframe as detailed above’. And ‘Further inspections will be conducted to ensure that you have taken adequate actions to comply with all of the requirements’.
On 3 September 2021, following an inspection of the food premises conducted that day, the informant emailed a letter to L & A Bakery on City of Greater Dandenong letterhead and headed ‘Premises Inspection Report Food Act1984’. The report ‘details the non-compliance requiring corrective action’. It goes on to advise ‘A further inspection may be conducted after each expired timeframe to ensure that the identified issues have been resolved’. It then sets out 17 items, the corresponding corrective actions required and date by which those corrective actions must be completed. The most common date for completion is 8 September 2021 and all other completion dates are before 3 September 2021. In two instances, items 16 and 17, the required completion dates are dates in June 2020 – more than 12 months before the first inspection on 16 June 2021. These are presumably typographical errors. The Premises Inspection Report references the Food Act 1984 and the Code but it does not reference the first or second order expressly.
Whilst I accept the first order has ongoing effect, it is troubling the alleged failures are not particularised. Some aspects of the second order might suggest to the defendants the first order is superseded by the second order. Likewise, the Premises Inspection Report dated 3 September 2021 might suggest to the defendants it superseded both the first and second orders. Even if failure to comply with the orders are not absolute liability offences but are strict liability offences, an honest and reasonable but mistaken belief the first order was not continuing after 19 July 2021 would not be a defence as that would be a belief about a matter of law not fact. Further, there is no evidence before the Court to raise the issue of an honest and reasonable but mistaken belief.
Despite my concerns about the lack of particularisation of the ongoing alleged contravention of the first order, the level of contravention of the specific requirements of the first order, particularly items 3, 9, 13, 14, 15, 16, 17, 20 and 21, recorded on each inspection by Ms Macleod and her fellow authorised officers, and confirmed by the photographs, between 19 July 2021 and 3 March 2022 are so significant and extensive I am satisfied beyond reasonable doubt each of charges 125 to 131 inclusive are proven. I find both L & A Bakery and Mr Tran guilty of charges 125 to 131 inclusive.
Charges 132 to 137
Charges 132 to 137 allege the defendants contravened the second order in relation to the food premises and thus were in breach of s 19(7) of the Food Act 1984. The second order required the Bakery to put the food premises into a clean and sanitary condition, in a good state of repair etc, and take the steps specified to the satisfaction of an authorised officer within specified time periods. Page 2 of the second order sets out three specified steps of corrective action to be completed. All specified steps had to be completed within two days, by 22 July 2022. The steps required:
a.all food contaminated by pests to be disposed of;
b.a licensed pest controller to be engaged to start eradicating rodents, spiders and flour beetles; and
c.the food premises had to ensure all waste bins were emptied, not filled past the top and the lids able to be closed at all times.
Given the nature of the corrective action required, the two days allowed for the actions to be completed was not unreasonable. On 3 March 2022, during her inspection, Ms Macleod observed and photographed live and dead flies on shelving for food containers, carboard boxes, throughout the kitchen and upper levels, vinegar flies in the vicinity of deteriorated apple and melons, and rodent faeces on the floor behind a larger food mixer and inside the food bowl of that large food mixer. On each of the five dates it is alleged the defendants contravened the second order, observations of pest contamination were recorded.
Despite the lack of particularisation of charges 132 to 137, the evidence recorded on each inspection by Ms Macleod and her fellow authorised officers, and confirmed by the photographs between 27 July 2021 and 3 March 2022 of the presence of rodent faeces, flour beetles, spiders and flies are extensive and, at times, egregious. The extent of the evidence is discussed in relation to charges 79 to 82 above. There is evidence a pest controller was engaged at times, but the ongoing evidence clearly establishes the level at which the pest controller was engaged was not sufficient in the circumstances of the Bakery to start eradicating the named pests. Pest contaminated food, breadcrumbs, were found in the food premises on 3 March 2022. I am satisfied beyond reasonable doubt each of charges 132 to 137 inclusive are proven. I find both L & A Bakery and Mr Tran guilty of charges 132 to 137 inclusive.
Charges 138 to 145
Charges 138 to 145 allege the defendants committed offences against s 19CB(6) of the Food Act 1984 by failing ensure the minimum records required are kept at the food premises to which they relate. Sections 19C and 19B of the Food Act 1984 sets out that the proprietor of a food premises declared to be a class of food premises required to keep the minimum records required must maintain the records and keep them at the premise to which it relates. The classes of food premises are set out in the Government Gazette. Based on the Gazette, the Bakery is a Class 2 food premises.[6] The minimum records required to be kept include temperature checks of potentially hazardous food in cold storage and heated prior to sale, and records related the suppliers of such foods and the food they supplied. Subsection 19CB(4) of the Food Act 1984 requires the proprietor to provide a copy of the records to the authority within the time specified in the request. The eight specific date charges allege the defendants failed to keep the minimum records required to be kept at the food premises.
[6]Victorian Government Gazette, S 232, Schedule 2, 22 June 2010.
At each inspection corresponding to the dates for charges 138 to 145, except for the inspection on 18 June 2021, Ms Macleod specifically asked for the minimum required records to be produced. The records were never produced, albeit some temperature check records were produced on 9 August 2021 and 11 January 2022. On 9 August 2021, Ms Macleod records Ms Tran produce ‘the thermometer and recording the temperature of cold storage unit. No other records were completed’. Given there is no evidence of a request for the Food Safety Program and Food Safety Records to be produced on 18 June 2021, I am not satisfied charge 139 is established and I find both L & A Bakery and Mr Tran not guilty of charge 139. Whilst some records were produced on 9 August 2021, they do not satisfy the minimum records required to be kept on the food premises and charge 144 is proven. There is no charge under s 19CB(6) for 11 January 2022.
I am satisfied beyond reasonable doubt on the evidence that charges 138 and 140 to 145 are made out and I find both L & A Bakery and Mr Tran guilty of charges those charges.
Charges 146 to 152
Charges 146 to 152 allege the defendants committed offences against s 19F of the Food Act 1984 by failing ensure the food safety program was kept at the food premises to which it relates. Sections 19C and 19F of the Food Act 1984 sets out that the proprietor of a food premises declared to be a class of food premises required to have a food safety program must keep the program at the premises to which it relates. Subsection 19E(1) of the Food Act 1984 requires the proprietor to provide a copy of the program to the authority within the time specified in the request.
The seven specific date charges allege the defendants failed to ensure a food safety program was kept at the food premises.
At each inspection corresponding to the dates for charges 138 to 145, except for the inspection on 3 September 2021, Ms Macleod specifically asked for the Food Safety Program to be produced. No time was specified for the program to be produced by Ms Macleod, rather she sought the documents to be produced to her as part of the inspection. She was told the program was not at the food premises on 16 June 2021, and on every subsequent request, the program could not be produced, albeit some temperature check records were produced on 9 August 2021 and 11 January 2022. Given there is no evidence of a request for the Food Safety Program to be produced on 3 September 2021, I am not satisfied charge 151 is established and I find both L & A Bakery and Mr Tran not guilty of charge 151.
I am satisfied beyond reasonable doubt on the evidence that charges 146 to 150 and charge 152 are made out and I find both L & A Bakery and Mr Tran guilty of charges those charges.
Summary of findings
In relation to Ms Tran, for the reasons set out above, I am not satisfied the informant has established she is a proprietor of the food business as defined by the Food Act 1984 and I find her not guilty of all charges.
In relation to both L & A Bakery and Mr Tran for the reasons set out above I find them not guilty of charges 2-3, 6, 9-10, 60-64, 102-103, 104-108, 109-113, 124, 139, 151.
In relation to both L & A Bakery and Mr Tran for the reasons set out above I find them guilty of charges 1, 4-5, 7-8, 11-20, 21-25, 26-30, 31-32, 33-37, 38-42, 43, 44-46, 47-49, 50-54, 55-59, 65-69, 70-71, 72-73, 74-78, 79-82, 83-86, 87-91, 92-96, 97-101, 114-118, 119-123, 125-131, 132-137, 138, 140-145, 146-150, 152.
Sentencing considerations – accused not present
Section 87 of the Criminal Procedure Act 2009 imposes limitation on the sentences the Magistrates’ Court can impose in the absence of the accused. Section 87(2) limits the sentencing power of the Court specifically in relation to a finding based on a preliminary brief, not a full brief. I am of the view there is good reason to consider the limits imposed by s 87(2) in a finding based on a preliminary brief. It provides a sensible guideline in the circumstances before me having regard to issues of procedural fairness and natural justice.
The limits imposed by s 87(2) are a maximum of 20 penalty units for any single offence and the total sum of orders must not exceed 50 penalty units. A penalty unit is currently $184.92 applicable from 1 July 2022. From 1 July 2021 to 30 June 2022 it was $181.74. From 1 July 2020 to 30 June 2021 it was $165.22. Given the offences relate to 16 June 2021 to 3 March 2022, the applicable penalty unit value, depending on the date of the offence is either $181.74 or $165.22, being the sentence applicable at the time of the offence. Based on these figures, the maximum of 20 penalty units for a single offence is $3,304.40 or $3,634.80. The maximum total sum of 50 penalty units, based on $181.74 is $9,087.00.
The Sentencing Act 1991 sets no limit on the maximum fine applicable to a person for a summary offence and so the maximum fine to be imposed on a person is determined by the maximum penalty applicable to each summary offence. Given s 87(2) of the Criminal Procedure Act 2009 only applies to a finding of guilt in the absence of the accused based on a preliminary brief, there appears to be no limitation imposed in relation to a finding of guilt in the absence of an accused based on a full brief. In those circumstances the maximum penalty applicable to the absent person is determined by the maximum penalty applicable to each summary offence.
The Sentencing Act 1991 sets no limitation on the maximum fine applicable to a body corporate and so the maximum fine to be imposed on a body corporate is determined by the maximum penalty applicable to each summary offence. The increased fines for a body corporate provided by s 113D(1) of the Sentencing Act 1991 only apply to offences against the Crimes Act 1958.
Section 53A of the Food Act 1984 gives the Court power to award costs and expenses without affecting ‘any other power of a court to award costs’. Subsection 87(2)(b) of the Criminal Procedure Act 2009 sets a limit of $2,000 in relation to orders for the payment of costs for a finding of guilt based on a preliminary brief. Given the matter was determined based on a full brief, pursuant to s 83 of the Criminal Procedure Act 2009 this limitation does not apply. The costs sought by the City of Greater Dandenong are in excess of $35,000.
In all the circumstances, the imposition of a penalty in the absence of the person found guilty is a matter to be considered carefully. A court cannot readily assess issues of fairness and natural justice when the person to be sentenced has not engaged in the court process. The greater the seriousness of the situation the greater the need for circumspection. I consider the situation of Mr Tran in particular raises serious issues on the question of sentence.
I will hear submissions from the City of Greater Dandenong on how they wish to proceed in all the circumstances of this matter.
G Connellan
Magistrate
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