Pannacchione v City of Rockingham
[2014] WASC 221
•23 JUNE 2014
PANNACCHIONE -v- CITY OF ROCKINGHAM [2014] WASC 221
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 221 | |
| 23/06/2014 | |||
| Case No: | SJA:1005/2014 | 10 JUNE 2014 | |
| Coram: | JENKINS J | 10/06/14 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed in part Fines for offences committed on 1 May 2013 set aside and a single fine of $8,000 substituted Total fine $48,000 | ||
| B | |||
| PDF Version |
| Parties: | ANTONIO VINCENZO PANNACCHIONE CITY OF ROCKINGHAM |
Catchwords: | Criminal law Appeal Sentencing Offences under the Food Act 2008 (WA) Breaches on two dates Failure to take into facts common to more than one offence Totality |
Legislation: | Criminal Appeals Act 2004 (WA), s 14 Food Act 2008 (WA), s 2, s 3 Food Standards Australia New Zealand Act 1991 (Cth) Health Act 1911 (WA) Sentencing Act 1995 (WA), s 9AA, s 54 |
Case References: | Chan (1989) 38 A Crim R 337 Forkin v The State of Western Australia [2013] WASCA 51 Hungry Jacks Pty Ltd v City of Bayswater [2013] WASC 199 Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396 Roffey v the State of Western Australia [2007] WASCA 246 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CITY OF ROCKINGHAM
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE D R V TEMBY
File No : RO 6485 of 2013, RO 6486 of 2013, RO 6487 of 2013, RO 6488 of 2013, RO 6489 of 2013, RO 6490 of 2013, RO 6491 of 2013, RO 6492 of 2013, RO 6493 of 2013, RO 6494 of 2013, RO 6495 of 2013, RO 6496 of 2013, RO 6497 of 2013, RO 6498 of 2013, RO 6499 of 2013, RO 6500 of 2013, RO 6501 of 2013, RO 6502 of 2013
Catchwords:
Criminal law - Appeal - Sentencing - Offences under the Food Act 2008 (WA) - Breaches on two dates - Failure to take into facts common to more than one offence - Totality
Legislation:
Criminal Appeals Act 2004 (WA), s 14
Food Act 2008 (WA), s 2, s 3
Food Standards Australia New Zealand Act 1991 (Cth)
Health Act 1911 (WA)
Sentencing Act 1995 (WA), s 9AA, s 54
Result:
Leave to appeal granted
Appeal allowed in part
Fines for offences committed on 1 May 2013 set aside and a single fine of $8,000 substituted
Total fine $48,000
Category: B
Representation:
Counsel:
Appellant : Mr A D Wilson
Respondent : Mr P C Doherty
Solicitors:
Appellant : Frichot & Frichot
Respondent : City of Rockingham
Chan (1989) 38 A Crim R 337
Forkin v The State of Western Australia [2013] WASCA 51
Hungry Jacks Pty Ltd v City of Bayswater [2013] WASC 199
Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396
Roffey v the State of Western Australia [2007] WASCA 246
- JENKINS J: (These reasons were delivered orally and have been corrected and edited from transcript.)
1 This is an application for leave to appeal from the decision of a magistrate sitting in the Magistrates Court at Rockingham on 21 January 2014.
2 The appeal relates to the total fine of $72,000 which the magistrate imposed for 18 offences against the Food Act2008 (WA) (the Act), s 2(1) and (3). The appellant pleaded guilty in writing 'with explanation' to the charges. The explanation which he relied on was contained in a letter to the magistrate dated 14 December 2013. He did not appear before the magistrate either in person or by counsel.
Ground of appeal
3 There is a single proposed ground of appeal, namely, that the total fine was manifestly excessive, given:
(1) the place which the criminal conduct occupies in the scale of seriousness of offences of the same type;
(2) the appellant was a first offender and pleaded guilty at the first opportunity;
(3) that the offences occurred on two days, which were seven days apart, the proper exercise of the sentencing discretion required a reduction in the overall penalty resulting from the aggregation of individual penalties by the application of the one transaction rule or, alternatively, the totality principle; and
(4) the total effective sentence did not bear a proper relationship to the overall criminality involved in the offences viewed in their entirety and having regard to all the circumstances of the case, including those referable to the appellant personally.
4 On 15 April 2014, Corboy J ordered that the application for leave to appeal was to be heard at the same time as the appeal.
Relevant legislative provisions
5 The Act s 22 relevantly states:
(1) A person must comply with any requirement imposed on the person by a provision of the Food Standards Code in relation to the conduct of a food business or to food intended for sale or food for sale.
Penalty:
(a) for an individual - a fine of $50 000;
(b) for a body corporate - a fine of $250 000.
…
(3) A person must not sell or advertise for sale any food that is packaged or labelled in a manner that contravenes a provision of the Food Standards Code.
Penalty:
(a) for an individual - a fine of $50 000;
(b) for a body corporate - a fine of $250 000.
7 The relevant provisions in the Food Standards Code are as follows:
Standard 3.2.2 - Food Safety Practices and General Requirements
6 Food storage
…
(2) A food business must, when storing potentially hazardous food -
(a) store it under temperature control; and
…
…
19 Cleanliness
(1) A food business must maintain food premises to a standard of cleanliness where there is no accumulation of -
…
(c) food waste;
(d) dirt;
(e) grease; or
…
(2) A food business must maintain all fixtures, fittings and equipment, having regard to its use … to a standard of cleanliness where there is no accumulation of -
(a) food waste;
(b) dirt;
(c) grease; or
…
…
24 Animals and pests
(1) A food business must -
…
(b) take all practicable measures to prevent pests entering the food premises; and
(c) take all practicable measures to eradicate and prevent the harbourage of pests on the food premises ...
9 Standard 1.2.4, cl 2, provides that the label on a package of food must include a statement of ingredients unless the food is labelled with the name of the food which would otherwise be those ingredients listed in the ingredients list. For example, the rissoles and samosas, the subject of two of these relevant charges, should have been labelled with their ingredients.
10 Standard 1.2.5, cl 2(1) provides that the label on a package of food must include its use by date where food should be consumed before a certain date or, where this does not apply, its best before date.
11 Standard 1.2.6, cl 1, provides that the label on a package of food must include directions for the use or the storage of the food, or both, if the food is of such a nature as to require the directions for health and safety reasons.
12 Standard 1.2.11, cl 2(2), provides that the label on a package of food must include a statement that identifies the country where the food was made, produced or grown or that identifies the country where the food was manufactured or packaged.
The charges
13 Charge 1 alleged that on 8 May 2013, within the district of the City of Rockingham, the appellant had failed to comply with Standard 3.2.2, cl 19(1), in that the food premises were not maintained to a standard of cleanliness where there was no accumulation of food waste, dirt and grease, contrary to the Act s 22(1).
14 Charge 2 alleged that on the same date the appellant had failed to comply with Standard 3.2.2, cl 19(2), in that the food business failed to maintain all equipment to a standard of cleanliness where there was no accumulation of food waste, dirt and grease, contrary to the Act s 22(1).
15 Charge 3 alleged that on the same date the appellant had failed to comply with Standard 3.2.2, cl 6(2)(a), in that the food business, when storing potentially hazardous food, failed to store it under temperature control contrary to the Act s 22(1).
16 Charge 4 alleged that on the same date the appellant had failed to comply with Standard 3.2.2, cl 24(1)(b), in that the business failed to take all practicable measures to prevent pests entering the food premises contrary to the Act s 22(1).
17 Charge 5 alleged that on the same date the appellant had failed to comply with Standard 3.2.2, cl 24(1)(c), in that the food business failed to take all practicable measures to eradicate and prevent the harbourage of pests on the food premises contrary to the Act s 22(1).
18 Charge 6 alleged that on the same date the appellant sold food, namely packaged tuna, that was labelled in a manner that contravened a provision of the Food Standards Code contrary to the Act s 22(3).
19 Charges 7 to 10 were identical to charge 6, except that they each related to a different type of food. Charge 7 related to snapper; charge 8 to mussels; charge 9 to Atlantic cod; and charge 10 to crayfish.
20 Charges 11 to 18 were identical to charge 6, except that each of those offences was committed on 1 May 2013 and each related to a different food. Charge 11 related to crabs; charge 12 to crayfish; charge 13 to marinated prawns; charge 14 to lamb rissoles; charge 15 to whole cooked prawns; charge 16 to oysters; charge 17 to hamburger rissoles; and charge 18 to samosas.
21 Thus, there were eight offences which were committed on 1 May 2013 relating to food labelling. There were 10 offences committed on 8 May 2013, five of which related to food labelling and five of which were other types of breaches of the Act.
22 On 21 January 2014, the prosecutor read the relevant facts to the magistrate. It was alleged that:
[T]he prosecutions relate to the property at 335 Mundijong Road in Baldivis, which is known as Golden Ponds. The property is a 37 hectare development, with a number of buildings on the development site. There's an approved reception centre that holds functions on the property. There's also a number of short-stay accommodation units throughout the site that are licensed under the city's lodging house local rules. And also on the site there's a number of agricultural sheds, there's various ornamental lakes, and there's farm animals kept on the site.
There has in the past been an aquaculture operation on the site. Generally the property is operated on the basis of a function centre, with short-stay accommodation, and also premises that members of the public can attend and purchase various products over and above those persons attending functions or staying at the short-stay accommodation. Food products sell from the site, which is mainly seafood items, advertised by signage along Mundijong Road to attract passing motorists' attention.
Prosecutions relate to the operation of the food premises on the site at Golden Ponds. The food premises have operated on the site for some years. They are operated by the accused, who, with his wife, either as individuals or via a number of the accused's companies involved with developing the site, operate the entirety of the development on the site. There has been a number of issues with operation of the premises, dealt with by the city over a period of some years, with the Golden Ponds food premises being the subject of quite a number of those issues.
The food sales building itself is a premise selling various types of packaged, some fresh food, to not only occupants at the short-stay and persons attending functions but the public generally. The building has a retail shopfront where goods are displayed for sale, and it backs on to what is a storage, shed-type building, so accordingly it's not totally purpose-built as a food sales outlet, in that it's not as well sealed as such a outlet would probably be. Certainly the more modern ones.
The 18 charges before the court relate to breaches of the Food Standards Code apparent to environmental health officers during inspections of the premises on 8 May, and prior to that on 1 May. The majority of the charges relate to breaches of the Code - Code's labelling requirements in relation to food for sale, however charge numbers 1 to 5 relate to cleanliness and food handling requirements under the Food Standards Code.
If we try and deal with the charges in date order, charges 11 to 18 before the court relate to breaches of the Food Standards Code provisions controlling labelling of packaged food for sale from the food premises. Those charges arise from an inspection of the premises carried out on 1 May 2013 … [T]hat inspection arose from a complaint to the City by a customer of the premises who had purchased frozen crabs from Golden Ponds with no date marking the package on when the crabs had been cooked. They tasted off, with the result they couldn't be consumed.
[The] customer complained there was a lot of produce for sale at the premises that didn't have use-by dates on, or any labelling at all in some cases. This labelling issue had been an issue for the City in relation to these premises for some time, and it led to an inspection by an environmental health officer on 1 May. On that day the inspection revealed numerous items for sale in the premises had either inadequate food labelling or no labelling whatsoever on the food packaging. The officers, when they first attended the premises, raised the labelling issues with the accused's manager at the premises.
The manager advised that a lot of the products for sale in the premises were repackaged from larger bulk boxes of the various food products. The manager advised that although the larger boxes in which they arrived on the premises generally had a best-before date printed on the external cartons to the bulk package, the premises themselves, when they repacked, only had packaging and weighing equipment which could print the day of packaging. So that date labels which had appeared, or may have appeared, on the bulk cartons were enabled to be translated onto the packages of food when the bulk cartons were broken down for individual smaller sale of food products to the public, which meant that their equipment, as it stood according to the manager, was unable to print date labelling on the packaging.
… [T]here were numerous types of food products which didn't have the labelling requirements required by the Code. Running quickly through the charges individually, charge 11 relates to packaged crabs. The packages of raw frozen crabs on display for sale, they were deficient in not only any use-by date, or a best-before date, labelling, there was no country-of-origin labelling, there was no lot of identification or batch-number labelling, no directions for use and storage information on the packages. All of those things are requirements of the Food Standards Code relating to packages of food of that nature.
Charge 12 relates to packaged crayfish for sale on the premises. There were packages of frozen cooked crayfish for sale, but they had no labelling whatsoever on the individual packages. Charge 13 relates to the product-packaged marinated prawns. These were in tubs. There were tubs of chilled, marinated prawns for sale at the premises with the packaging containing no use-by or best-before date labelling, no country-of-origin labelling, no lot identification batch number labelling, no nutritional information panel and no ingredients list. And all of those are matters for that type of food product required under the Food Standards Code to be affixed to labels.
Charge 14 relates to packaged lamb rissoles. There were frozen packages of lamb rissoles for sale at the premises. They had no use-by date or best-before date labelling, no country-of-origin labelling, no lot ID or batch number labelling, and no directions for use and storage labelling. Charge 15 relates to the product, Whole Cooked Prawns. In relation to that product, there were packages on sale which contained no use-by date, no best-before date, no country-of-origin labelling, no lot ID or batch number labelling and no directions for use and storage labelling.
Charge 16 relates to the product, Packaged Oysters. Those packages of oysters were frozen trays of oysters in a shell and contained no labelling whatsoever. Charge 17 relates to packaged hamburger rissoles. Those packages for sale had a blank label with a handwritten price of $5 on the label, and none of the other requirements of the Code were on the label. Charge 18 relates to the food product, Packaged Samosas. They were frozen packages of samosas for sale at the premises. They had no labelling whatsoever on the packages.
[F]ollowing that inspection on 1 May, or the conclusion of it, the manager of the premises was advised that the packaging of the majority of food items on display for sale didn't comply with the requirements of the Code, and that the premises had been warned on a number of occasions over a period of years to ensure packaging complied with Code requirements. The manager was advised that a follow-up inspection of the premises would be carried out in seven days time, to ensure packaging was compliant.
The manager was also advised of other problems concerning general cleanliness, or lack of cleanliness of the premises, and told that at the reinspection it would be expected of the premises that they would have been brought into compliance with the cleanliness requirements of the Code, which again have been the subject of warnings previously. Following that initial inspection, correspondence was forwarded to the accused, both in relation to the complaint about the raw crabs purchased by the customer as also to the packaging breaches apparent at the premises during the 1 May inspection.
Following the 1 May inspection, there was a follow-up inspection of the premises carried out by officers on 8 May, and charges 1 to 10 before the court relate to that inspection. Of those charges, charges 6 to 10 relate to the continued failure to label food product for sale at the premises in accordance with the Code. The food products in question for those charges were packaged tuna, which was the subject matter of charge 6. Packaged snapper, the subject matter of charge 7. Packaged [mussels], which were the subject matter of charge 8. Packaged Atlantic cod, the subject matter of charge 9. And packaged crayfish, which were the subject of charge 10.
Again, those items either have no labelling whatsoever or insufficient labelling by reason of a lack of, in all cases, a use-by or best-before date, a country-of-origin labelling, lot ID or batch numbers, directions for use and storage, nutritional info panels or ingredient lists. In other words, basically the packaging at the premises hadn't changed from the previous inspection, and I make the point that, in relation to labelling charges, charges brought by the City are not exhaustive. They attempt to constitute a cross-section of the type of food available at the premises which had labelling issues.
The inspection of 8 May was deliberately a more in-depth inspection of the premises than the one which previously had been carried out, which was in relation specifically to labelling of product. And charges 1 to 5 before the court relate to other aspects of the premises operations. Charge 1 and 2 relate to the failure to keep the premises themselves, and equipment in use at the premises, in a clean condition. In relation to those two charges, throughout the premises many areas were covered in dust, dirt, food waste. It was apparent both on floors and fixtures and fittings in the premises, and on various types of equipment in use at the premises.
There were also mouse faeces observed in cupboards in the premises. Flies were (indistinct) around the premises and on shelving and food containers within the premises. There were dead cockroaches seen on the floor, and in some of the cupboards there were dead and decomposing mouse bodies. Sinks in the premises were unclean. There was no soap or handtowels at the hand-wash basin.
Charge 3 before the court relates to failure to store potentially hazardous food under temperature control. [Pursuant] to the Food Standards Code, potentially hazardous food needs to be stored either at a temperature above 60 degrees C or below 5 degrees C. During the inspection on this day, officers noticed a styrofoam tub full of mussels packed in plastic bags, located on the servery bench. There was water at the bottom of the tub, which at one stage appeared to have been ice. Mussels constitute potentially hazardous food under the codes, as indeed does much of the food available at the premises, being largely seafood items. The temperature of the mussels was measured at 14 degrees C. Accordingly, the storage temperature didn't comply with the code provisions.
Of further concern to officers was that the packets of mussels were dated as being packed on 4 May 2013. It therefore appeared that the mussels might have been sitting in the tub of defrosted ice for a number of days. Staff members, when questioned in that regard, advised that the mussels were displayed in the tub in the counter from first thing in the morning until close of business and then were put into the cool room. They were then brought back into the shop and displayed again until sold. Officers were of the view, in view of that advice, that the mussels were unfit for human consumption, due to the temperature of the product and the mode of handling it, with a result that on the spot the mussels were seized and subsequently destroyed.
Charges 4 and 5 before the court relate to a failure to take all practicable measures to prevent pests entering the premises and the failure to take practicable measures to eradicate and prevent the harbourage of pests on the premises. During the course of the inspection it was evident there was a substantial rodent infestation of the premises as well as cockroaches within the premises. In relation to rodents, there was - apart from the bodies of dead rodents in some of the cupboards, there was also rodent faeces in various areas of the premises, both on the floor and on equipment within the premises. At the time of the inspection there were numerous flies in the premises, both flying around in the air and also around and on packages of food and equipment in use in the premises.
As I have mentioned previously, the premises are not totally purpose built food premises and the fact that areas at the rear of the premises is (indistinct) what is a shed-like storage area, the premises aren't sealed so that entry to pests is easier than otherwise would be the case. Further inspection indicated there was no ongoing effective pest eradication processes (indistinct) at the premises.
On 8 May, as the officers were writing out a formal list of requirements to leave with the staff at the premises, the accused entered the premises, asked what the officers were doing there. He was advised they were doing an inspection of the premises. One of the officers discussed all the issues apparent within the premises with the accused while the other officer continued to write out the formal list of requirements of the city in relation to the premises. The accused discussed the matters for a short time, then he became aggressive and when asked why all matters from - there was a letter in August 2012 covering much the same areas as the problems that were apparent on this day. So he was asked why all the matters from the August 2012 correspondence hadn't been done, he made excuses for various items and in the end blamed the two female staff members who were present in the premises at the time.
When questioned about the numerous examples of incorrect labelling in the freezer cabinets and why nothing had been done about labelling, especially following all labelling information being forwarded to him with that correspondence of 17 August 2012, he said, 'Nobody else does proper labelling and that's why we don't do proper labelling' (ts 4 - 9).
23 The respondent also provided approximately 44 photographs to the court. Two of the photographs were aerial photographs of the premises. The remaining photographs were taken on 1 and 8 May 2013 at the premises and showed the condition of the premises or the food the subject of the charges.
24 The appellant's letter of explanation stated:
The Home store is located on 100 acres of property which services a Caravan Park and Accommodation Units. Consequently there are some field mice on the property, which we regularly bait for, hence the reason for a small dead mouse being found in a cupboard, which was used as a stand and not as a storage unit. The sink cupboard was usually used for hand cleaning detergents and not for anything else.
Mr Pond and Mr Shimmen of the City of Rockingham Health Department kept referring to the area behind the serving counter as a 'Kitchen' which it is not! However we have a fully commercial kitchen at the Function Centre which has been operating for the past 13 ½ years without any problems what so ever.
(3) There was an esky with 5 packets of 1kg Mussels which had been covered with ice however this had melted but the water was still icy cold.
(4) The pests that Mr Pond was referring to may have been the odd bush fly, which are around most farming areas.
(5) Pest Control Management is a regular routine within the premises therefore we are not harbouring any pests at any time.
(6) Packaged Tuna had use by date and a packed by date.
(7) Imported Snapper also had packed by and use by date, but perhaps not the country of origin.
(8) Packaged New Zealand Mussels in ½ shells also had a packed by date that we print as we pack.
(9) Atlantic Cod was packaged and labelled with use by date and packed by date, but not the Country of origin.
(10) Packaged cooked and raw crayfish sold individually for $20 each had no label because they weren't sold by weight but there was a sign next to them.
(11) Local Carnarvon Crabs packaged in a sealed bag with packed by date and use by date. At times the labels do fall off in the freezer with people handling them.
(12) Same as charge (10).
(13) Marinated Prawns from local supplier in bulk, then repacked. The Country of origin not stipulated.
(14) The rissoles had a packed by date and use by date.
(15) Local Carnarvon Prawns packaged from 10kg to 12kg carton to 1kg bags, use by date and packed by date.
(16) Packaged Oysters come in 1 dozen lots pre-frozen and supplied by Lana Oysters. Packed by and use by date only.
(17) The packaged hamburger rissoles packed from 10kg carton into smaller quantities. Use by date and packed by date only.
(18) Packaged Samosas repacked from a large carton into smaller lots. Use by date and packed by date.
All products in question in the charges, most of them are purchased in bulk cartons and repacked in small quantities by our staff for the customers. Also we sell live fish, crayfish, marron and yabbies. All of these species don't require labelling while they are alive.
We feel that in the majority of these charges, there has been an exaggeration of the severity of the situation.
25 Dealing with the points raised in that letter, points 3 - 5 were not correct. A photograph showed a thermometer which read 14.2 degrees as it was sitting in the tub of mussels. The photographs also showed animal droppings, a decomposed rodent and multiple dead flies and cockroaches in the premises. Points 6, 7, 9, 11, 14, 15 and 16 in the letter were not correct. The tuna, snapper, Atlantic cod, local blue manna crabs, rissoles and prawns, as shown in the photographs, had neither a packed date or a use by date on their labels. None had a country of origin on its label, although I note that the crabs were described as local. The oysters shown in the photographs did not have any label on them. Only the mussels had a packed date on the package.
26 Points 10 and 12 were only partially true. A photograph of crayfish showed that each cray was unlabelled but there was a sign on the freezer which stated 'raw crays $19.99 each'. Point 13 was incorrect, the tubs of marinated prawns shown in the photograph did not have a package date, use by date or country of origin on their labels. Point 18 was incorrect. The bag of samosas shown in the photographs was not labelled in any way.
27 In sentencing, the magistrate referred to the explanation given by the respondent and noted that in some respects it did not accord with the facts the magistrate heard. He also noted that it did not accord with the photographs which had been tendered. As I have already noted, the magistrate was correct in this regard. His Honour said that he would sentence the respondent on the basis of the facts as presented by the respondent. He was entitled to do this. His Honour then said:
[I]t's clear that on what I've heard, this enterprise has been put on notice in the past about issues that are concerning to the city but have not taken any significant steps to address those concerns. This matter comes to light as a result of a member of the public launching a complaint about matters that concerned that particular customer - consumer in regard to what appeared to be food that was off that was acquired at that particular establishment.
As I say, this is not a roadside shed or small operation. This is a significant enterprise which attracts a number of customers and, as has been pointed out, also provides a facility for short stay accommodation within the confines of the operation, which therefore again exposes the public in large numbers to the operation that is conducted and operating as Golden Pond.
The point that has been made by the prosecutor today is that the efforts that are being made to comply fall a long way short of what is expected and what the Food Act and its regulations require, and the only inference that I can draw from that is that they cut corners in order to make themselves profitable, perhaps more profitable than otherwise would be the case with an end result that the public at large are exposed to hazardous products, both because of the lack of proper attention to those products, the issue associated with vermin and pests, the issue associated with a non-attention to correct temperature requirements of the food products. The risk is considerable and has, as has been pointed out, largely seafood products, which tend to be very hazardous when it comes to the incorrect management of those products.
There ought to be both a general and a specific deterrent penalty given in regard to these matters and it is more concerning when there does seem to be a position adopted where it is really about not spending the required moneys in order to get it right, which is based on a commercial consideration rather than a compliant consideration.
In regard to the first of these charges, which on the court list is charge 6485 of 13, there is a fine of $4000. On that particular matter I include the costs, which amount to $1587.70. In respect of each of the remaining 17 charges, the fine is $4000. It does occur to me that the potential for harm here to the public and to the health of any consuming public through the acquisition of product from these premises was - had a very high - potentially very high level and perhaps more by good fortune than by good management, the situation hasn't been more problematic. But that does seem to me to be no credit to the defendant but more a case of good luck.
I do take into account that we have an endorsed plea of guilty and that was entered at an early stage. Although, I must say, the assessment by me of the remorse that has been demonstrated, given the shifting of some responsibility and clearly the deviation by the defendant in regard to the accuracy of the material facts, does call into question, in my view, the genuineness of the remorse that would otherwise be attributed to someone who pleads guilty at an early stage (ts 11 - 12).
Merits of the appeal
28 The appellant contends that error in the total sentence imposed can be inferred from the fact that the sentence is manifestly excessive. As Hall J said in Hungry Jacks Pty Ltd v City of Bayswater [2013] WASC 199, which is one of the few appellate cases in this jurisdiction concerning sentencing under the Act, a claim of manifest excess depends upon establishing implied or inferred error in the type or length of sentence imposed. The error that must be established is that a sentence of the nature or length imposed could not have been reached in the proper exercise of sentencing discretion. It is trite to say that it is not enough that the appellate court might have exercised the sentencing discretion differently. In considering a contention that the total sentence is manifestly excessive, it is necessary to view the sentence imposed in the context of the maximum sentence prescribed by law.
29 The standards of sentencing customarily observed are with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstance of the offender: Chan (1989) 38 A Crim R 337, 342. It is also necessary where sentences are imposed for a number of offences to have regard to the totality principle.
30 The principle was described by McLure J, as she then was, with Steytler P and Miller J agreeing, in Roffey v the State of Western Australia [2007] WASCA 246 in the following terms:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201 at 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260) [24] - [26].
31 The reference to the 'crushing' effect of a total sentence is not relevant to a fine, although with a total fine it is necessary to consider the offender's ability to pay the whole of the fine.
32 As to the object of general deterrence, which is relevant to sentencing in cases of this type, in Hungry Jacks, Hall J said:
The objects of the Act include ensuring that food for sale is both safe and suitable for human consumption: See s 3. This was expanded upon in the explanatory memorandum to the Food Bill 2005 that became the Act. The explanatory memorandum states:
'The purpose of the Bill is to improve the existing food regulatory system by providing for a risk based approach to the management of the handling and sale of food for human consumption, together with robust enforcement tools to protect Western Australia's food chain.'
There then follows a paragraph which contains the particular purposes of the Bill, one of which is to provide for more significant penalties reflecting the seriousness of a failure to provide safe food. Given those stated intentions, cases under earlier provisions that attracted lower maximum penalties are of little assistance [16] - [17].
33 There is no doubt that a fine imposed for a single offence or multiple offences relating to food handling must send a message to operators of food businesses that significant penalties will be imposed if they fail to comply with the Code and the Act. Members of the Western Australian community place considerable trust in the operators of food businesses to handle and store food in a safe manner so that the health of the community is protected from food borne disease. Individuals can only protect themselves to a limited extent from contaminated food which is offered for sale to them. They cannot access the behind the counter food storage and handling areas to see for themselves whether they meet the required safety standards. So the community relies not only on the operators to comply with the Standard and the Act, but also on the regulatory system to deter and prevent breaches of the Standard and the Act.
34 The proper labelling of food partially helps to ensure that consumers have sufficient information to protect their own health - for example, from illness caused by consuming food which is too old for human consumption, illness caused by mishandling food and by ensuring that the food does not contain allergens to which they are sensitive. Proper labelling of food has another aspect, which is providing consumers with information about the identity, age and origin of the food which they consume.
35 I now turn to consider the factors referred to in the case of Chan. First, the maximum penalty for each offence was, and is, $50,000 for an individual and $250,000 for a body corporate. The respondent is an individual. The parties agree each individual fine of $4,000, and the total fine of $72,000, was 8% of the maximum fine which could have been imposed. This does not, of itself, disclose error, however, the amount of the fine must be considered not only in light of the maximum penalty which could have been imposed but also in light of the seriousness of the offences viewed individually and together.
36 Next, I refer to the standard of sentences customarily imposed for offences of this type. The parties agree that there is no tariff for a single offence of this type and comparisons between individual offences is not easy because of the wide variation in factual circumstances relating to each offence and the offender. Further, because of the number of offences and the appeal being against the total fine imposed, it is impossible to identify a sufficient number of similar cases which reveal the standard of sentences customarily imposed for a group of offences of this type. There is a further difficulty, in that the vast majority of cases that there have been involving similar breaches of the Act have not been reviewed on appeal.
37 The appellant included in his written submissions a reference to a publication on the Department of Health, Public Health website entitled 'Publication of Names of Offenders List', which lists the food businesses and individuals that have been convicted of an offence under the Act and its predecessor provisions in the Health Act1911 (WA).
38 The appellant's legal advisers extracted from that list reference to other convictions under s 22 of the Act and prepared a table, which is attached to these reasons.
39 At best, the information shows that a fine of $4,000 for a single offence would be within the range of sentences imposed for offences against s 22 of the Act. Apart from the $78,000 fine imposed on the operator of the Upper Crust Bakery for 13 offences committed on three dates over a six month period, the fine imposed on the appellant is the highest fine imposed on an individual included in the table. The fine is substantially higher than most of those fines recorded, although that has to be considered in light of the large number of offences committed by the appellant. The only information about the offences committed by the Upper Crust Bakery is that they were offences against cl 6(1)(a) and cl 19(1) and (2). It does not appear that those sentences were reviewed on appeal. Because of the limited information about the cases in the table, they provide limited assistance in determining whether the fine here was manifestly excessive.
40 I now turn to consider the place the criminal conduct occupies on the scale of seriousness of crimes of this type. The offences were significant breaches of the Act. I agree in this respect with the matters mentioned by the magistrate and the respondent, both at the proceedings at first instance and in this court. In this respect the respondent's written submissions refer to the fact that seafood is a potentially hazardous food, in that it 'has to be kept at certain temperatures to minimise the growth of any pathogenic micro-organisms that may be present in the food or to prevent the formation of toxins in the food': see Standard 3.2.2, div 1.
41 Further, extensive labelling is required by the Act and the Standard, and a failure to comply with those requirements exposes a consumer to a number of serious risks, including, in relation to a use by or best before date, that a consumer cannot assess whether a product is safe to eat when purchased or to assess the shelf life of the product based on either the quality attributes of the product or health and safety considerations. In relation to the listing of ingredients, a consumer cannot assess what the product is, the quality of the product or whether it contains substances to which the consumer may be allergic. In relation to directions for use and storage, a consumer may not appreciate that the product must be kept refrigerated or cooked thoroughly. In relation to nutritional information, a consumer will be unable to assess the quality of the product in terms of matters including energy, protein, total fat, saturated fat, carbohydrate, total sugars and sodium content. In relation to the country of origin, a consumer will be unable to determine from where a product originated and thereby make an assessment as to its quality and safety. The absence of lot identification or batch numbers renders it impossible to recall a batch of product should it be proved to be defective in any manner.
42 The respondent has also pointed out that the respondent had, during August 2012, given the appellant a letter explaining labelling requirements. Further, the inspection of 1 May 2013 followed a complaint from a customer who purchased frozen crabs from the appellant with no date marking and which 'tasted off'. On 8 May 2013, when asked why he had not labelled his products in the required manner, the appellant made excuses for various items and, in the end, blamed the two female staff members who were present in the premises at the time. And also said: 'Nobody else does proper labelling, and that's why we don't do proper labelling'. When asked the same question, the appellant's managers advised that a lot of the products for sale in the premises were repackaged from larger bulk boxes of the various food products and although the larger boxes in which they arrived on the premises generally had a best before date printed on the external cartons of the bulk package, the premises themselves, when they were repacked, only had packaging and weighing equipment which could print the day of packaging. The respondent also notes that in the appellant's letter of explanation he maintained that '[a]ll products in question in the charges, most of them are purchased in bulk cartons and repacked in smaller quantities by our staff for the customers'.
43 The magistrate was also correct to point out that the appellant's business was a significant enterprise which attracted a large number of customers to it (ts 11). There was a very high potential for harm to the health of anyone consuming seafood products purchased from the business, especially since seafood had the potential to become hazardous when incorrectly managed, that the appellant had demonstrated a questionable level of remorse and that he had previously been given a number of warnings by the respondent. Additionally, there had been little improvement in business practices in the period between 1 May 2013 and 8 May 2013.
44 In my view, the relevant factors for determining the seriousness of an offence of this nature include:
(1) the impact or potential impact of each offence upon the health of customers;
(2) whether the offence is an isolated one or part of a systemic failure on behalf of the offender;
(3) the immediate causes of the offence and the extent to which there has been a failure to adopt appropriate standards and processes for food handling; and
(4) the importance of imposing a penalty that will act as a meaningful deterrent and an encouragement to maintain appropriate standards.
45 The appellant submits that by imposing the same sentence for each offence, regardless of the relevant seriousness of each particular offence or the factual overlap in some of the sentences, and then by accumulating each sentence, the magistrate imposed a total fine which was too high and which breached the one transaction and/or totality principle. In addition to the principles of totality to which I have already referred, the appellant relies on what Steytler P said in Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396:
The issue of sentencing for common elements of multiple offences was explored in Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259. I remain of the opinion, there expressed, that there are two applicable principles in a case such as the present. The first is that there is no requirement that wholly concurrent terms be imposed for multiple offences constituting one transaction or a continuing episode: R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [28] and the cases there referred to. The second is the more pertinent (for present purposes) principle identified in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40] that, to the extent to which an offender stands convicted of offences containing common elements, it would be wrong to punish that offender twice for the commission of elements that are common. That principle has since been affirmed in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [27], [34] and [38]. This second principle seems to me to have the inevitable consequence that it is unsound in principle to impose a sentence that fully addresses each element of the offence on each count and then wholly aggregate the sentences so imposed [5].
46 Steytler P went on to express his view as to the best way in which a court could ensure that the total sentence for a number of related offences did not infringe the totality principle or that the offender was not sentenced twice for facts which were common to two or more offences. However, there is no one way in which a sentencing magistrate must sentence an offender in order to ensure that the relevant principles are complied with. For example, the Sentencing Act 1995 (WA) provides that a magistrate may impose a single fine for a number of similar offences or a magistrate may reduce what would otherwise be an appropriate sentence for an individual offence in order to take into account totality and/or common facts.
47 The respondent submits that by imposing the same fine for each offence, regardless of its seriousness or allowing for facts common to other offences, the magistrate decided to impose a total fine which reflected the overall seriousness and criminality of the offences viewed as a whole. The respondent says that if the magistrate had imposed individual sentences, he would have imposed greater fines for some of the more serious offences, such as counts 3 and 4, and lesser fines for some others. This, the respondent submits, would have resulted in the same total fine.
48 I can only assume that the magistrate did consider what the total fine should be and then evenly distributed it across the 18 offences. In some cases this would not reveal an error, but I am satisfied that, given the size of the total fine, the individual fines, the large number of offences, their differences, as well as their similarities, and the fact that they were committed over two separate days, error is revealed by the magistrate's approach.
49 In my view, this error resulted in the magistrate failing to adequately apply the principles of totality. It also resulted in the magistrate failing to ensure that there was not double or more punishment imposed for offences which involved common factual features. In this regard the labelling offences, although they related to different foodstuffs, involved common features, such as the labelling procedure and method.
50 I now turn to consider the personal circumstances of the offender, including his ability to pay the fine.
51 The appellant is an individual who runs a complex of a considerable size. The magistrate's findings about the size of his operation were open to him. The appellant does not assert the total fine is beyond his ability to pay. He does contend that it was not open to the magistrate to:
(1) decline to discount his sentence because of lack of remorse, given that he pleaded guilty to the offences at an early point in time; and
(2) to find that the offences occurred because he cut corners to make a greater profit.
52 I turn first to consider the argument about the discount for his plea of guilty. The Sentencing Act, s 9AA(2) and (3), relevantly provides:
(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
53 In Forkin v The State of Western Australia [2013] WASCA 51 [21], the Court of Appeal said that s 9AA(2), exhaustively states the matters which can be taken into account in determining whether a discount is to be given for a plea of guilty and, if so, the extent of the discount. Remorse and other subjective considerations which informed the weight to be given to a plea of guilty under the former sentencing regime are no longer relevant considerations in determining what discount, if any, is to be given to a plea of guilty.
54 However, remorse may be taken into account under s 9AA(6), which provides that s 9AA does not prevent the court from reducing the head sentence for an offence because of any mitigating factors other than a plea of guilty. The magistrate referred to the appellant's endorsed plea of guilty entered at an early stage. There is nothing in the sentencing remarks to indicate that the magistrate failed to reduce the penalty he imposed as a consequence of the pleas of guilty and the matters referred to in s 9AA(2). Neither does the amount of the fine lead me to infer that he failed to do so.
55 The magistrate found, in effect, that the appellant had shown little remorse for his offending. Thus, I infer that the magistrate gave the appellant little, if any, discount for remorse independent of the pleas of guilty. It was open to the magistrate to find that the appellant had shown little remorse. Indeed, despite the early pleas of guilty, given the other matters identified by the magistrate, I fail to see that another finding was open on the material before the court.
56 The appellant says that the deviations from the facts presented to the court in his letter were explainable, not by a lack of remorse, but as a result of him not having the prosecution's statement of material facts before he wrote his letter to the court or, indeed, at any time before sentencing. I do not accept that this situation throws into doubt the findings of the magistrate in regards to remorse.
57 In his letter the appellant puts forward assertions about circumstances which were shown not to be true by the objective evidence of the photographs. The appellant concedes that, after the inspection of 8 May 2013, he was aware of the condition of his premises because he organised the breaches to be rectified. Thus, his incorrect assertions in his letter must have been an attempt by him to incorrectly minimise the breaches. This shows a lack of true remorse for his offending. After such a finding was made by the magistrate, the appellant could not be given a discount in his sentence for remorse. It would have been an error for the magistrate to give him such a discount.
58 As to the second matter raised by the appellant, that is in respect to the magistrate's finding that he (the appellant) was motivated to cut corners in order to make his business more profitable, I asked the appellant's counsel what other reasonable inference was open on the evidence. Counsel suggested that it was possible that staff had failed to comply with their duties. I do not accept that this was an explanation open or that, if it was, it justified or in any way mitigated the offending.
59 Even if I accept that there was another explanation open on the facts, such as a lack of proper supervision of staff or that the appellant was not prepared to comply with standards he believed other food businesses did not comply with, or that there was insufficient evidence to enable the magistrate to make a finding about motive, it would not, in my view, mitigate or make the offences less serious. Thus, I am not prepared to find that the finding of a profit motive indicates appellable error.
Conclusion
60 For the reasons I have given, I conclude that the total fine of $72,000 was manifestly excessive. Accordingly, I will grant leave to appeal and allow the appeal. I will set aside the fine of $72,000 and proceed to resentence.
61 Having considered all of the relevant circumstances, I consider that an individual fine of $4,000 for each of the labelling offences or, in other words, a total fine of $32,000 for the labelling offences committed on 1 May 2013 was too high, taking into account the seriousness of the offences, their common features and totality. I consider that a total fine of $8,000 for the offences on that date was appropriate, taking into account all matters, including the seriousness of the offences, their common features and totality.
62 There are a number of ways in which I could structure the sentence to take all of those matters into account. I have decided that the appropriate way to do that is pursuant to the Sentencing Act s 54(1). I will impose a single fine of $8,000 for all of the offences committed on 1 May 2013, which offences form a series of offences of a similar kind.
63 Turning then to the offences committed on 8 May 2013, I consider that, although I would structure the sentence differently to reflect the seriousness of each offence, I am of the opinion that a total fine of $40,000 for the 10 offences committed on that date was appropriate and remains appropriate. These were serious offences. Circumstances which made them serious included that some were similar offences to those committed on 1 May 2013, but it is clear that steps had not been taken to ensure that the offending was not repeated. They indicated, at least at that time, a systemic failure to adopt appropriate standards of cleanliness and food handling. Count 3, being the storage of mussels at a temperature of 4 degrees, and count 4, being rodent and insect infestation, were particularly serious offences which individually would warrant significantly greater fines than $4,000 each. Counts 1 and 2, relating to the general cleanliness of the premises, were also serious offences, although I note there was some overlap between the facts of those offences both with each other and with the facts of count 4, which would have been allowed for by reducing the fines for those offences. Also, some of the labelling offences would warrant lower penalties than $4,000, although they certainly warranted higher fines than for the same offences committed on 1 May 2013 to take into account the fact that it could not be said that they were isolated incidents. I also take into account the high risk to health of consumers which was disclosed, in particular, by counts 1 to 4. The labelling offences exposed consumers to a health risk.
64 I also note that, in respect of both personal and general deterrence, it is very relevant to ensure that the penalties imposed for the offences on 8 May 2013 reflect those principles. In respect to personal deterrence, there was not only the material before the magistrate that the appellant had been warned on prior occasions about the standards at the premises; there had been an inspection a mere seven days earlier, on 1 May 2013, and it does not appear that significant steps had been taken by the appellant to ensure that similar offences were not committed on 8 May 2013. The penalties imposed for the offences on 8 May 2013 must reflect the need, in those circumstances, for specific deterrence.
65 In respect to general deterrence, I have already referred to the principles relevant there and, again, the sentences imposed for the offences on 8 May 2013 must reflect general deterrence.
66 For these reasons, although, as I have said, I would structure the sentences differently, I am not of the view that the total fine of $40,000 for the 10 offences committed on 8 May 2013 was inappropriate. Rather, I consider that total figure to be an appropriate sentence. In respect of charges 1 - 10, I will not set aside the sentences on each of those counts as no miscarriage of justice will occur if they are allowed to stand. I apply the Criminal Appeals Act 2004 (WA) s 14(2), which allows an appeal court not to allow an appeal in respect of a sentence if no miscarriage of justice would occur if it was allowed to stand.
67 The total effect of the resentence is to reduce the total fine to one of $48,000.
Annexure
Key Legal Topics
Areas of Law
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Criminal Law
Legal Concepts
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Appeal
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Sentencing
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