NSW Food Authority v Samaras Food Pty Ltd

[2021] NSWSC 237

Supreme Court

New South Wales

Medium Neutral Citation:

NSW Food Authority v Samaras Food Pty Ltd [2021] NSWSC 237

Hearing dates:

1 March 2021; 8 March 2021

Decision date:

17 March 2021

Jurisdiction:

Common Law

Before:

Hoeben CJ at CL

Decision:

(1)   The summonses in case numbers 2019/283682, 2019/283689 and 2019/283654 are dismissed.

(2)   An order that the sum of $5,368 be paid by the defendant in accordance with s 131 of the Act in relation to the costs incurred for the analysis of food samples seized from the defendant as part of the subject investigation.

(3)   The defendant pay the prosecutor’s costs of these proceedings as agreed or assessed.

(4) For the offence contrary to s 15(4) of the Food Act 2003 (NSW) being proceedings 2019/283678 in accordance with s 131 of the Act the defendant is fined $105,000.

Catchwords:

CRIMINAL LAW – prosecution under s 15(4) of the Food Act 2003 (NSW) – notification to restaurant of allergy to sesame seed – customer provided with food containing sesame seed – allergic reaction – death of customer – plea of guilty – sentence hearing – assessment of objective seriousness of offending – aggravating and mitigating features – strong subjective case – fine imposed – defendant to pay costs of prosecutor as agreed or assessed.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Food Act 2003 (NSW)

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

Butler v Fife Coal Co Ltd [1912] AC 149

Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102

R v Irvine; DPP v Dynamic Industries Pty Ltd; DPP v Cini (2009) 25 VR 1; [2009] VSCA 239

R v Thomson; R v Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104; [2000] NSWCCA 309

Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213

Category:

Principal judgment

Parties:

Ian Andrew Beer (in his capacity as Authorised Officer of the Food Authority of NSW) – Prosecutor
Samaras Food Pty Ltd t/as Samaras Lebanese and Mediterranean Restaurant – Defendant

Representation:

Counsel:
M Cahill/D Bhutani – Prosecutor
J Glissan QC/WJ Wilcher – Defendant

Solicitors:
Sparke Helmore Lawyers – Prosecutor
Heard McEwan Legal – Defendant

File Number(s):

2019/283678

JUDGMENT

1. HIS HONOUR:

Nature of proceedings

On 11 September 2019, the subject prosecution was commenced by way of the filing of:

• a summons alleging a contravention on 27 October 2017 of section 15 (4) of the Food Act 2003 (NSW) (the Act) [Case Number 2019/283678]; together with

•   three further summonses, in case numbers 2019/283682, 2019/283689 and 2019/283654 respectively; and

•   the affidavit sworn 14 October 2019 of Ian Andrew Beer.

2. On 29 May 2020, the Registrar listed all four charges for hearing for eight days commencing 1 March 2021.

3. On 1 March 2021, the defendant entered a plea of guilty to the summons alleging the contravention of s 15(4) of the Act.

4. The plea of guilty to the subject charge has been accepted in full satisfaction of all four charges before the Court. Accordingly, the Summonses in case numbers 2019/ 283682, 2019/283689 and 2019/283654 are to be dismissed.

Plea of Guilty

5. The defendant by its plea is taken to have admitted all of the elements of the offence and each of the particulars as pleaded in the summons.

6. Further, by its plea of guilty the defendant is taken to have admitted that it cannot establish the statutory “due diligence” defence for which provision is made in s 121(2) of the Act.

The nature of the Offence

7. The defendant has entered a plea of guilty to a charge that on 27 October 2017 at Wollongong in the State of New South Wales it contravened s 15(4) the Act.

8. The offence is regulatory in nature; and, by inference, an offence of strict liability.

9. In this context, the prosecutor notes that the objects as set out in s 3 of the Act are as follows:

“3.   The objects of this Act include the following:

(a)    to ensure food for sale is both safe and suitable for human consumption,

(b)    to prevent misleading conduct in connection with the sale of food,

(c)    to provide for the application in this State of the Food Standards Code.”

10. The Act is essentially protective in nature which was observed in Butler v Fife Coal Co Ltd [1912] AC 149 at 178-9:

“The commanding principle in the construction of a statute passed to remedy the evils and protect against the dangers which confront or threaten persons or classes of His Majesty’s subjects is that consistent with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable.”

11. The purpose of creating a strict liability offence of this kind is the promotion of the objects of the Act by compelling the duty holder to: vigilance; and the adoption of a proactive approach to the identification, and the taking of, preventative measures, including the provision of supervision, inspection and monitoring; and the exertion of influence over those whom the duty holder may be expected to exercise influence and/or control; so as to promote observance of the relevant legislative provision. (Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213 per Spigelman CJ at [172]-[174]).

12. Section 15(4) of the Act provides that:

“(4)     A person must not sell food that the person ought reasonably to know is falsely described and is likely to cause physical harm to a consumer of the food who relies on the description.

Maximum penalty: 750 penalty units in the case of an individual and 3,750 penalty units in the case of a corporation.”

Relevantly, “sell” includes “offer to sell”.

13. A note to s 15(4) of the Act provides that “[e]xamples of food that is falsely described are contained in section 22 [of the Act]”.

14. The relevant example of food that is falsely described for the purpose of s 15(4) is set out in s 22(1) of the Act as follows:

“For the purposes of this Part, food that is falsely described includes food to which any one or more of the following paragraphs applies:

...

(f)   the food is not of the nature or substance represented by the manner in which it is packaged, labelled or offered for sale.” [Emphasis added.]

15. Accordingly, the relevant elements of the offence for sentence are:

• ought reasonably to know;

• falsely describe; and

• likely to cause physical harm.

That the physical harm resulted in death was acknowledged by the defendant to be an aggravating factor to be taken into account.

Factual background

16. The NSW Food Authority is constituted under Pt 9 of the Act. The proceedings are brought by Mr Ian Beer in his capacity as an Authorised Officer duly appointed pursuant to s 114 of the Act.

17. Samaras Food Pty Ltd (the defendant) is and at all relevant times was duly incorporated and liable to prosecution in and by its corporate name and style. The defendant was registered on 12 September 2008.

18. At all relevant times, Mr Mohomad Nemer was:

1. the sole director of the defendant;

2. the company secretary of the defendant; and

3. the sole shareholder of the defendant.

19. At all relevant times, the defendant operated a food business or undertaking, namely a restaurant, trading as “Samaras Lebanese and Mediterranean Restaurant” (the restaurant) located in Corrimal Street, Wollongong in the State of New South Wales. The defendant commenced operating the restaurant in or about 2008.

20. At all material times, the defendant employed Alyca Nemer (Ms Nemer). She is the daughter of Mohomad Nemer.

21. On the evening of 27 October 2017, Mr Nathan Anderson (the deceased) attended the restaurant with a number of friends.

22. The deceased and his friends had been participating in a golf day. Before attending the restaurant, one of them called not long before their arrival asking whether there was a table available. Although it was a busy Friday night, Ms Nemer re-arranged the bookings so that they had the last available table.

23. At that time, Ms Nemer was one of two persons in the defendant’s organisation who was qualified as a Food Safety Supervisor and who was responsible for managing food safety in the operation of the restaurant. She had been so qualified on 14 July 2017 after having successfully completed the necessary units of competency at Illawarra ITECH Ltd.

24. As of 27 October 2017, Ms Nemer’s work duties at the restaurant included managing the “front of house”, taking food orders, delivering food orders and bar duties.

25. At all relevant times, the defendant had in place an informal undocumented procedure in relation to the management of risks associated with the presence of allergens in foods prepared for the consumption of its customers as part of the restaurant’s business.

26. At all relevant times, as part of the defendant’s informal undocumented food allergen management procedure, the defendant maintained a handwritten “basic allergen” sheet and management staff, including Alyca Nemer, were expected “to check this sheet before sending orders” to the kitchen. Importantly, in the setting up of its informal, undocumented, food allergen management procedure, the defendant was being proactive and not reactive.

27. In July 2017, the training provided by the defendant for its staff in relation to the management of the risks associated with the presence of food allergens in food prepared and/or served by the restaurant included the training provided to Alyca Nemer. This consisted solely of informal, undocumented, verbal instructions regarding the use of the defendant’s “basic allergen” sheet and the checking of food orders for the presence of food allergens by “management staff” prior to the service of food orders. After her completion of the ITECH Ltd courses in the same month Ms Nemer’s knowledge of these issues significantly increased.

28. The group, including the deceased, were greeted and seated by Ms Nemer when they arrived on the evening of 27 October 2017.

29. While being seated, the deceased’s friends made light of his food allergies. When this occurred, Ms Nemer inquired as to whether the deceased suffered from food allergies. The deceased advised that he was allergic, inter alia, to peanuts, shellfish, eggs and sesame seeds.

30. Upon being told by the deceased about his food allergies, Ms Nemer told the deceased that the defendant could provide him with a meal free of the food allergens he had identified, including but not limited to, sesame seeds. Ms Nemer told the deceased that she would serve him separate plates of food and that he would not be able to eat from the plates of food provided for the consumption of the other members of his group. This was a well recognised procedure to protect persons subject to food allergies, from cross-contamination by coming into contact with such food being consumed by other patrons in the restaurant.

31. Ms Nemer took it upon herself to formulate the contents of an entrée plate made up to accommodate the deceased’s allergies. There was no discussion with the kitchen staff. A photograph taken by one of the guests showed that sesame seeds had been excluded from the food served to the deceased but that he was served with hommus by Ms Nemer.

32. When delivering the food orders from the deceased’s group to the defendant’s kitchen, including the deceased’s order for food free of the food allergens identified by him (including sesame seeds), Ms Nemer did not inform any other staff members of the deceased’s food allergies.

33. In relation to the deceased’s food order, Ms Nemer requested that kitchen staff prepare:

• a separate plate consisting of hommus, eggplant, capsicum and pickles; and

• two salads for the deceased modified by Ms Nemer to exclude the food allergens identified by him, including but not limited to, sesame seeds.

34. Subsequently, Ms Nemer delivered to the deceased a separate plate of food prepared in the restaurant’s kitchen consisting of hommus, eggplant, capsicum and pickles. The defendant’s food which contained hommus was presented to the deceased as food for his consumption which was free of the food allergens he had identified to Ms Nemer, including sesame seeds.

35. The hommus served by Ms Nemer to the deceased included tahini, a paste made from sesame seeds.

36. The photograph which was taken of the food served to the deceased confirmed that he was served with hommus by Ms Nemer. It is apparent from the statements by Ms Nemer that she had inadvertently served hommus to the deceased because she was focused on providing a plate of food to him which did not contain actual sesame seeds. However, she had forgotten that a component of hommus was a sesame paste known as tahini .

37. In her statements Ms Nemer said that she did not consider the presence of a derivative of sesame seeds in the hommus served to the deceased. Her two statements make it clear, and I accept, that her failure was in relation to not recalling the nature of what food items constituted hommus. While she had carefully excluded sesame seeds from the food, including avoiding cross-contamination, she had forgotten the presence of sesame seeds as a component of tahini which was a primary component of hommus. Neither the tahini nor the hommus was made in-house by the restaurant.

38. By way of explanation for what happened, rather than by way of excuse, the defendant adduced evidence that on the night of 27 October 2017 Ms Nemer was pregnant, had been unwell in the days leading up to the incident and that the restaurant was extremely busy that night. The defendant submitted that this in part explained and contextualised how Ms Nemer came to make the tragic mistake which she did.

39. The prosecutor submitted that despite Ms Nemer’s explanation for what had occurred, her evidence clearly established that she was well aware of the deceased’s food allergies and that in accordance with s 22(1)(f) of the Act, the food provided to the deceased, and in particular the hommus, was falsely described and was not free of his stated allergens.

40. Upon taking one or two bites of the bread dipped in the hommus from the plate served to him by Ms Nemer, the deceased made complaint about discomfort, stood up from the table and left the restaurant. He was followed by his cousin, Ben. The deceased and Ben walked briskly down Corrimal Street towards the accommodation in which the deceased was staying. About 150 metres from the restaurant, Ben noticed that the deceased’s condition had deteriorated in that he was struggling to breathe and appeared to be panicking.

41. Ben assisted the deceased to sit on a set of stairs and to remove his jumper. The deceased then collapsed onto the footpath.

42. At about 8.30pm, a call was placed to triple-0. It was reported to NSW Ambulance that a person was suffering an allergic reaction and was having difficulty speaking. At about 8.44pm, an ambulance arrived. When it arrived, the deceased was observed to be lying on the footpath. The ambulance officers were able to ascertain that the deceased wanted to go “home” to use his epi-pen medication and that he had collapsed while attempting to do so.

43. Shortly after their arrival, the attending ambulance officers commenced the Cardiac Arrest Protocol. The deceased continued to be treated by the ambulance officers until his arrival at approximately 9.13pm at Wollongong Hospital. At that time, hospital staff observed that the deceased was in cardiac arrest. Medical opinion was that the deceased had suffered anaphylaxis resulting in cardiac arrest. Despite treatment, the deceased died on 30 October 2017.

44. As a result of testing, it was established that the deceased had developed anaphylaxis as a result of the consumption of sesame paste in the hommus.

45. In written submissions, the defendant submitted that the deceased had made some significant errors in responding to his allergic reaction. These included the following:

• restaurant staff were not advised immediately of the allergic reaction and were denied the opportunity of assisting with transport to the hospital;

• no-one in the deceased’s party summoned an ambulance to the restaurant despite at least one of them having a working mobile telephone with him at the table;

• despite the deceased’s propensity to experience allergic reactions to food, he did not have any form of antihistamine medication or his epi-pen with him at the restaurant;

• the deceased did not remain sedentary and wait for ambulance assistance but acted inconsistently with medical advice by leaving the restaurant at a brisk pace to return to his accommodation for his medication; and

• the fact that those actions were outside the control of restaurant staff and in particular Ms Nemer and aggravated the risks of serious consequences following the anaphylactic reaction to the consumption of the sesame paste. The defendant submitted that as a result, joint responsibility reposed in both the restaurant and the deceased for his death.

46. On that issue, the defendant relied upon the observation of Associate Professor Reeve, who reported as follows:

“It is unfortunate that the severity and intensity of [the deceased’s] anaphylactic reaction made his likelihood of successful recovery from the anaphylaxis low and this ultimately proved to be the case despite all appropriate treatment manoeuvres being administered in a timely fashion. Sadly [the deceased] own actions (standing up, walking fast in an attempt to secure an epi-pen that he didn’t carry), aggravated the reactions’ severity.”

47. In a later report, Professor Reeve said:

“This [anaphylaxis] occurred in the context of a background of other allergies including egg, shellfish and peanut allergy for which an epi-pen had been provided but was sadly not available at the time of the reaction, a critical feature that may in retrospect have meant the difference between life and death.”

48. It is difficult to understand why evidence of these matters was adduced. Such evidence does not exculpate the defendant or excuse its failure to have in place an effective system of ensuring that patrons of the restaurant did not consume food to which they were allergic. Put bluntly, these facts, which at most highlight an unfortunate sequence of events so far as the deceased was concerned, do not impact directly upon any of the matters to be taken into account when sentencing for food offences of this kind. Accordingly, other than noting the principle that the defendant must take the victim as it found him, I have disregarded these matters as circumstances which mitigate the defendant’s liability.

49. Following the incident at the restaurant on 27 October 2017, the defendant at the direction of officers of the Food Authority introduced changes to its allergen management procedure including:

• the development and promulgation of a written procedure entitled “Samaras Allergy Procedure”;

• the development and promulgation of an itemised list of food products for the use of the staff and customers in relation to the ordering of food by customers who disclosed a food allergy or intolerance;

• there would be training in relation to the revised allergy/allergen procedures for all the defendant’s restaurant staff, including kitchen staff;

• there was a need by the defendant’s staff to complete the National Allergy Strategy – All About Allergens online training for food service; and

• the completion by Ms Nemer of a course in relation to first aid in cases of anaphylaxis.

50. The prosecutor submitted that as a result of the uncontested facts set out above, the relevant elements of the offence had been made out, i.e. Ms Nemer had accepted that she ought reasonably to have known about the danger associated with the presence of sesame paste in the hommus and because of that inadvertence, she had falsely described the food. Given the nature of the deceased’s allergy, there was no issue that the consumption by him of sesame paste was likely to cause physical harm. Quite apart from the admission of liability already referred to, the evidence overwhelmingly established a breach of the section.

50. It was against that background that the prosecutor made the following submission:

“Further s 15(4) of the Act is concerned with the likelihood of physical harm, as opposed to the actual occurrence of harm. The offence created is risk based...

It follows ... that the actual occurrence of physical harm is not an element of the subject offence; and that the offence was complete once the plate of food containing the hummus was served to [the deceased].

Nonetheless, whilst the offence was complete once the food containing the sesame was delivered to [the deceased] - falsely represented by the manner in which [the deceased’s] order was taken and the food was served - the fact that [the deceased] ate a portion of hummus and, as a consequence, suffered an anaphylactic reaction resulting in cardiac arrest and brain death provides evidence of the extent of the physical harm which may flow from a breach of the provision. In this case, the injury suffered by [the deceased] was catastrophic. The likelihood of physical harm is an element of the offence; the actual occurrence of physical harm was not. It follows ... that the nature and extent of the physical harm actually sustained can be taken into account as an aggravating feature. ...” (Prosecutor’s written submissions [42]-[44])

That analysis was not challenged by the defendant.

Sentencing principles

52. The prosecutor submitted that the following matters needed to be taken into account when considering the sentence to be imposed on the defendant:

1. the maximum sentence fixed by the legislature, which in this case was a penalty of $412,500;

2. the objects of the legislation should be reflected in the sentence;

3. the primary factor to be considered is the objective seriousness of the offence. (In the context of regulatory prosecutions such as this, it is necessary to assess the objective seriousness of the offending by reference to where the conduct of the defendant falls in the broad range of conduct covered the offence);

4. the court is required to take into account any other objective and subjective factors relevant to sentence;

5. after taking into account the subjective features of the defendant and all the other matters relevant to sentence the sentence imposed should reflect the objective seriousness of the offence;

6. matters relevant to the objective seriousness of the offence include:

the likelihood of physical harm;

the gravity of the physical harm flowing from a breach; and

the availability and feasibility of measures to eliminate or control the risk.

53. By way of illustration of what matters can and should be taken into account, the prosecutor relied upon the observations by Basten JA (with whom Hoeben CJ at CL and Walton J agreed) in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 where his Honour said:

“53   The legitimate purposes of intervention in the present case are twofold. The first purpose is to identify the proper approach to considering the objective seriousness of offences under the Work Safety Act. It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

Factors relevant to the objective seriousness of the offence

54. The prosecutor submitted that the risk of physical harm associated with food allergens was both obvious and well known in the industry. In particular, the training materials provided as part of the Food Safety Supervisors’ Course completed by Ms Nemer in July 2017 included food safety information relating to food allergens, including sesame; management of food allergens in the context of the operation of a food business such as a restaurant; and the likelihood of physical harm associated with food allergens, including the risk of an anaphylactic reaction and the risk of death consequent upon such a reaction.

55. The prosecutor submitted that the need for the defendant as proprietor of a restaurant to put in place systems and procedures in relation to the management of food allergen safety, together with instruction and training in those systems and procedures was obvious.

56. The prosecutor submitted that in addition to addressing issues regarding the preparation and cooking of food, the defendant’s systems and procedures should have addressed the taking of orders from customers with food allergies; the communication of such orders to the kitchen staff and the service of food prepared in response to such orders.

57. The prosecutor submitted that by reference to the matters referred to at [49] hereof prior to and at the time of the subject incident, the defendant did not have in place detailed formal documented procedures in relation to the management of food allergens, including:

• the taking of food orders;

• the subsequent presentation of such orders to the kitchen;

• the preparation of meals for customers with reported food allergies; and

• the service of food by wait-staff to customers with reported food allergies.

58. The prosecutor submitted that in the absence of proper systems, procedures, training and supervision relating to the taking of orders from customers with reported allergies, the delivery of those orders to the kitchen and the service of food to persons with reported allergies, wait staff such as Ms Nemer were left in effect to their own devices when dealing with allergen and food safety management.

59. In support of that submission, the prosecutor relied upon the evidence in Ms Nemer’s supplementary statement and its comparison with the written procedures developed post-accident as set out in [49] hereof. The prosecutor submitted that a proper system would have taken into account not only foods prepared in-house but also the ingredients/components and constituents of foods that were pre-prepared and served as part of foods plated in the restaurant.

60. The prosecutor relied upon the procedures set out post-incident in the defendant’s written directive as follows:

“Take customer requests about allergies seriously, everyone – from the manager through to the food preparation and food service staff – need to be aware of the risks food allergies pose and the need to be clear on how to identify and manage them. This list is an itemised list of the products available at Samaras and is the only menu that anyone with an allergy can order from.” (CB at [27]).

61. The prosecutor submitted that in the absence of proper systems, the absence of food safety incidents involving allergens during the first seven/eight years of the restaurant’s operation was a matter of good luck rather than a consequence of good management and/or good planning.

62. The prosecutor submitted that before, and as at the date of the incident, there were available to the defendant simple well-known steps which the defendant could have taken with respect to the development of relevant allergen management systems, procedures, information and training. There was nothing in the procedure which could not have been put in place before the incident. On this issue, the prosecutor noted the following changes implemented by the defendant after the incident; which included development and implementation of a documented “Samaras Allergy Procedure” with the following content;

• the Samaras Allergy Procedure is a formal, documented “step by step” procedure for the management of food safety in relation to allergens developed and implemented by the defendant after the incident. Notably, the procedure provides for the recording, in writing, of the customer's reported food allergens on the food order and the associated preparation of an “allergy plate”; supervision of the preparation of the “allergy plate” by the head chef; supervision of the “plating up” of the allergy plate by the head chef; and a process for a “double checking” of the preparation of the allergy plate by the staff member who took the order and the head chef prior to the allergy plate being permitted to be served.

63. The prosecutor submitted that there was nothing in the post-incident development and implementation of a documented “itemised list of food products” identifying food allergy management procedures; food allergens; and a guide to the presence of food allergens in food served as part of the restaurant business, that could not have been ascertained and implemented by the defendant before the incident. The prosecutor noted that the itemised food list prepared after the incident recorded that “hommus” served in the restaurant contained “sesame seeds” (tahini).

64. The prosecutor submitted that there had been nothing to prevent Mr Mohomad Nemer, Ms Nemer and other staff employed in the restaurant receiving additional external training in relation to food allergens and their safe handling in the context of managing both food preparation and the service of food to customers with reported food allergies.

65. The prosecutor submitted that because there were already simple, straightforward, well-known and inexpensive measures available to the defendant to address food and allergen management issues in the restaurant business arising from the taking of orders from customers with allergies, the communication of those orders to the kitchen and the subsequent service of that food to customers, the failure on the part of the defendant to take such appropriate steps represented a significant departure by it from the standard of care required of the proprietor of a restaurant.

66. The prosecutor did acknowledge that the steps, set out at [62]-[63] were taken after the incident by the defendant to address the deficiencies in the defendant’s existing system. The prosecutor accepted that such steps were taken as soon as notified to them by the Food Authority officers.

67. In making that concession, the prosecutor submitted that it should be remembered that the legislation is not directed to ex post facto measures, but requires positive preventative steps being taken to protect persons who had acknowledged the presence of food allergies.

68. The prosecutor invited the Court to take into account the following matters of aggravation pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). The prosecutor relied upon:

• “s 21A(g) in that the injury, emotional harm, loss or damage caused by the offence was substantial”; and

• s 21A(2)(ib) in that the offence involved a grave risk of death or injury to another person.

Consideration

69. The deficiencies in the defendant’s system to ensure the safe consumption of food by persons with food allergies should not obscure the fact that the defendant did have in place such a system.

70. The system involved training to select members of staff (by implication managerial staff) such as was received by Ms Nemer in July 2017. Another part of the system was the maintenance by the defendant of a handwritten “basic allergen” sheet which management staff were expected to check before sending orders to the kitchen. The Food Authority officers, when making inquiries, confirmed that on an “informal basis” the defendant’s “basic allergen” sheet was used by management staff to check food orders for the presence of food allergens before the service of food orders.

71. The sequence of events as they affected the deceased provides further information concerning the defendant’s pre-incident system. When Ms Nemer became aware of the banter passing between the deceased and his friends concerning his food allergies, she immediately inquired as to what they were. On being so advised, Ms Nemer appears to have taken personal charge of the food prepared for him.

72. That intervention involved taking personal charge of what foods were prepared for him to ensure that there were no allergens in it. Ms Nemer was also careful to ensure that cross-contamination did not occur between the food to be provided to the deceased and that which was provided for his friends.

73. An immediate concern which comes to mind in such a system was the significant role to be played by managerial staff without the assistance of others in the business. Any mistake by managerial staff, as occurred on this occasion, could have potentially very serious adverse health results such as occurred here.

74. Another matter which is relevant to the effectiveness of the informal system in place to prevent the ingestion of allergens by patrons of the restaurant, is that during a period of seven/eight years that the restaurant was operating before this incident, no similar incident had occurred. The prosecutor dismissed that consideration by submitting that the defendant was simply lucky.

75. Such a response is somewhat unfair to the efforts of the defendant in taking steps to protect its patrons from allergens during what can only be acknowledged as a significant period of time. When one has regard to the food being served by the restaurant, which is set out in its post-incident list of allergens, it can be seen that many of the dishes contain those allergens. Inferentially, therefore, despite the weaknesses in the defendant’s system of dealing with allergens, it appears to have been reasonably effective until this incident.

76. In relation to remedial steps to provide a safe system, it has been conceded by the prosecutor that these steps were taken as soon as directed by officers of the Food Authority and have been in place during the three years following the incident.

77. The last matter to be taken into account in relation to the objective seriousness of the offending is the issue of moral culpability. In retrospect, and for the reasons set out by the prosecutor, the pre-incident system of preventing patrons from coming in contact with foods to which they were allergic was deficient in a number of respects. This is particularly so when one has regard to the possible consequences of patrons consuming food to which they were allergic. Nevertheless, some credit needs to be given to the defendant for its proactive efforts to protect its patrons. Such efforts are relevant to the moral culpability of the defendant.

78. When all those matters are taken into account and regard is had to the deficiencies in the pre-incident system, I have assessed the objective seriousness of the offending by the defendant at midrange.

Payment of fine

79. In the course of oral submissions, the defendant submitted that it may have some difficulty paying a substantial fine. In support of that proposition, the defendant referred to its taxation returns for the years ending 2018, 2019 and 2020. In 2018, the defendant had achieved a net profit of $20,000; in 2019, the net profit was $120,000 and in 2020, it was $204,000.

Consideration

80. I do not accept that the defendant is in financial difficulty and would have a problem in paying an appropriate fine. In addition to the net earnings referred to by the defendant, there was evidence in those tax years of substantial amounts paid by way of wages for each year and most particularly, there were substantial cash amounts in the defendant’s bank account, together with non-current assets such as outstanding loans owed to the defendant for amounts in excess of $500,000.

General deterrence and specific deterrence

81. The prosecutor submitted that both general and specific deterrence were relevant to the defendant’s conduct. In support of that proposition, the prosecutor relied upon statements of principle, which were predominantly drawn from authorities dealing with work, health and safety in an employment context:

• workplace safety requires employers to take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence therefore remains a significant factor when safety obligations are breached (R v Irvine; DPP v Dynamic Industries Pty Ltd; DPP v Irvine (2009) 25 VR 1; [2009] VSCA 239 at [52]);

• “… in matters of this general nature general deterrence (and specific deterrence for that matter) will be significant considerations for a court in all but the most exceptional cases (Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at 202);

• the steps taken by the defendant after the event should not be assessed as significantly mitigating its culpability;

• there needs be a component of general deterrence reflected in the penalty to be imposed by the Court in the present case; and

• there needs be a component in relation to specific deterrence also - although the need for specific deterrence may be diminished if, the Court is satisfied that there is a reduced risk of the defendant re-offending in a similar manner or at all.

82. The prosecutor submitted that in relation to the need for specific deterrence, the defendant has continued to conduct its restaurant business.

83. The prosecutor submitted that having regard to the obvious nature of the subject breach and the failure of the defendant to undertake the simple and straight forward steps to deal with food safety issues, this is a matter which calls for both an element of general deterrence and also an element of specific deterrence in the determination of the penalty to be imposed despite the defendant’s otherwise clean record.

Consideration

84. I do not agree with the prosecutor’s submission that specific deterrence has a role to play in this matter. The uncontested evidence is that following the incident, the defendant implemented the recommendations as to safe food handling with particular emphasis on those foods which give rise to allergies. The defendant has continued to conduct its business and implement those recommendations over the last three years. There is no suggestion of any change to that situation. During that three years there has been no recurrence of any adverse reaction by patrons of the restaurant as a result of being exposed to food allergies/allergens.

85. It follows that I am satisfied that there will be no repetition on the defendant’s part, of the conduct which led to this prosecution.

86. I do accept that there is some room for the application of general deterrence, although even that consideration needs to be substantially discounted having regard to the good conduct of the defendant during the three years which have elapsed since the incident.

Mitigating factors

Plea of guilty

87. The defendant pleaded guilty. The prosecutor accepted that in such circumstances the defendant is entitled to a discount on penalty that reflects the utilitarian value of that plea. The prosecutor submitted, however, that the primary consideration in determining where in the range a particular case should fall is the timing of the plea so that the earlier the plea, the greater the discount (R v Thomson; R v Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104; [2000] NSWCCA 309; R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32].

88. The prosecutor submitted that when determining what, if any, discounts should be allowed in this case, the Court should have regard to the large number of occasions on which the matter has been listed for directions (i.e. nine occasions). The Court was invited to take into account that the plea of guilty was notified in the week leading up to the commencement of a defended hearing.

89. The prosecutor submitted that in those circumstances, the value of the plea of guilty was less, even though there had been a plea bargain.

Consideration

90. Within weeks of the incident occurring, the defendant through its director, Mohomad Nemer, made full and complete admissions as to its liability. The admissions were so extensive that although the matter had been fixed for hearing for eight days, the length of the hearing would have been substantially reduced. Given the extent of the admissions, it is not clear why a plea of guilty was not entered earlier than occurred.

90. In any event, as the prosecutor has accepted, the defendant is entitled to a discount in respect of the fine to be awarded against it depending very much upon the date when the plea of guilty was entered.

91. As the prosecutor has pointed out, the plea of guilty on this occasion was entered on the first day fixed for the hearing. The complicating factor is that given the extent of the admissions made in late 2017, the evidence led at trial would have been substantially shorter than the eight days allocated to it.

92. Accordingly, taking into account the extent of the admissions made at an early point in time and the savings in time that they would have produced, taken with the actual plea of guilty entered on 1 March 2021, which effectively reduced the hearing to an argument on sentence, I allow a discount to the defendant for its early plea of guilty of twelve and a half per cent.

Not a planned or recognised criminal activity (s 21A(3)(b) Sentencing Act)

94. The prosecutor acknowledged that the subject contravention was not part of a planned or organised criminal activity.

95. Given that the subject offence is an offence of strict liability, the intention of which is the promotion of the purposes of the Act by compelling a duty holder to vigilance, a proactive approach to food safety and the taking of preventative measures, the prosecutor submitted that planning and organisation were of lesser significance in determining the seriousness of the breach than in the sentencing of others in relation to offences involving mens rea.

Consideration

96. Even allowing for the qualified concession made by the prosecutor, the defendant is still entitled to have the fact that the offending was not a planned or recognised criminal activity, taken into account in its favour by way of mitigation.

No record of previous convictions and prior good character (s 21A(3)(e) and (f) of the Sentencing Act)

97. The prosecutor acknowledged that the defendant had not previously been convicted of an offence and was otherwise of a good industrial character. The prosecutor acknowledged that the defendant was entitled to the benefit of the leniency extended by the court to first offenders.

Prospects of rehabilitation and reoffending (s 21A(3)(g) and (h) of the Sentencing Act)

98. The prosecutor acknowledged that the defendant had taken a number of positive steps to guard against the risk of reoffending. For the reasons already set out, I am firmly of the view that as a result of the substantial changes implemented by the defendant, there is no chance of it reoffending again.

Remorse and contrition (s 21A(3)(i) of the Sentencing Act)

99. The prosecutor noted that this section of the Sentencing Act provides that remorse can be taken into account as a mitigating factor only if:

1. the offender has provided evidence that he or she has accepted responsibility for his or her actions; and

2. the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

100. The prosecutor acknowledged that there was evidence on the record of a conversation, dated 15 November 2017, which if accepted by the Court, was capable of satisfying the requirement of the section.

Consideration

101. As indicated above, the early admission of liability and factual concessions by the defendant are most persuasive in relation to the genuineness of the defendant’s statements of remorse and acceptance of responsibility.

102. Even though Ms Nemer is not an officer of the defendant, her apology is a moving one and leads to conclusion that the defendant’s expressions of remorse and acceptance of responsibility are genuine. Ms Nemer said on 5 December 2017:

“I don’t know if this is needed here, but I would just like to say that I will never be apologetic enough for the stupid mistake I made that night. I honestly cross-checked every single thing to ensure his allergens were clear but did not think of the sesame oil in the hommus, I was mainly focused on the sesame seeds. Finding out about the passing of Mr Anderson would have to have been one of the worst and definitely the hardest moments of my life. I did everything in my power to accommodate him as I have for all of my previous customers since we opened but unfortunately I made a mistake that I will never forget and will be positively sure not to make again.”

Co-operation with the authorities in the investigation of the subject offences (s 21A(3)(m) of the Sentencing Act)

103. The prosecutor acknowledged that the defendant had co-operated in the investigation by SafeWork in its investigation of the incident and the prosecutor conceded that the defendant is entitled to the benefit of that co-operation in mitigation of the penalty to be imposed.

Costs

104. In the course of the proceedings before me, the defendant agreed to pay the prosecutor’s costs of the proceedings, as agreed or as assessed. There was also an agreement that the defendant would pay to the prosecutor an amount of $5,368 in accordance with s 131 of the Act in relation to costs incurred for the analysis of food samples seized from the defendant as part of the investigation. It is noted that the costs calculated by the prosecutor are $193,011.42. There is no agreement on the part of the defendant to pay that precise amount.

Conclusion

105. Taking into account all of the above matters, including the defendant’s very strong subjective case, for the reasons I have set out, I make the following orders:

1. The summonses in case numbers 2019/283682, 2019/283689 and 2019/283654 are dismissed.

2. An order that the sum of $5,368 be paid by the defendant in accordance with s 131 of the Act in relation to the costs incurred for the analysis of food samples seized from the defendant as part of the subject investigation.

3. The defendant pay the prosecutor’s costs of these proceedings as agreed or assessed.

4. For the offence contrary to s 15(4) of the Food Act 2003 (NSW) being proceedings 2019/283678 in accordance with s 131 of the Act the defendant is fined $105,000.

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I certify that this and the 26 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Hoeben, Chief Judge at Common Law.

Morna Lynch

Associate

Date: 17 March 2021

Decision last updated: 17 March 2021