Radianct Holdings (Australia) Pty Ltd v City of Gosnells
[2022] WASC 217
•29 JUNE 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: RADIANCT HOLDINGS (AUSTRALIA) PTY LTD -v- CITY OF GOSNELLS [2022] WASC 217
CORAM: TOTTLE J
HEARD: 23 JUNE 2022
DELIVERED : 23 JUNE 2022
PUBLISHED : 29 JUNE 2022
FILE NO/S: SJA 1028 of 2022
BETWEEN: RADIANCT HOLDINGS (AUSTRALIA) PTY LTD
Appellant
AND
CITY OF GOSNELLS
Respondent
ON APPEAL FROM:
For File No: SJA 1028 of 2022
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE HOLGATE
File Number : PE 47175 - PE 47176 OF 2021 & PE 47179 - PE 47181 OF 2021
Catchwords:
Criminal law - Appeal - Sentencing - Offences under the Food Act 2008 (WA) - Whether fine of $100,000 manifestly excessive - Turns own facts
Legislation:
Food Act 2008 (WA)
Result:
Leave to appeal granted
Appeal allowed
Fine of $100,000 set aside and fine of $20,000 substituted
Category: B
Representation:
Counsel:
| Appellant | : | G Yin |
| Respondent | : | TL Beckett |
Solicitors:
| Appellant | : | DG Price & Co |
| Respondent | : | McLeods |
Cases referred to in decision:
Dragon Pacific Group Pty Ltd v City of Cockburn [2019] WASC 449
Krencej v The State of Western Australia [2019] WASCA 82
Pannacchione v City of Rockingham [2014] WASC 221
TOTTLE J:
Introduction
On 18 February 2022 the appellant pleaded guilty to five charges of failing to comply with a requirement of the Food Standards Code (the Code) while conducting a food business under s 22(1) of the Food Act 2008 (WA) (Food Act). The appellant was fined $100,000 and was ordered to pay costs of $1,790.30.
The appellant applied for leave to appeal against the sentence imposed. On 23 June 2022 I heard the application. I granted leave to appeal on the ground that the fine imposed by the magistrate was manifestly excessive and allowed the appeal. I resentenced the appellant and imposed a fine of $20,000. I gave brief oral reasons for my decision and said that the oral reasons would be incorporated in fuller reasons to be published. These are those reasons.
Background
The appellant operated a fish and chip shop in Beckenham. The premises from which the business was conducted was first registered for use as a food business in February 2013. Between February 2013 and August 2021 the food business had three owners. The appellant purchased the food business on 25 March 2021.[1]
[1] Affidavit of Kim Siong Ong sworn on 22 June 2022 [3].
Between February 2013 and March 2021 the food business was served with multiple improvement and infringement notices issued under the Code. Prior to the respondent's inspection of the premises on 16 August 2021, being the inspection that gave rise to the charges, the appellant had received one infringement notice under the Code.
On 16 August 2021 the respondent carried out an inspection of the premises. The inspection gave rise to the following charges:
(1)Failing to store food in a way so as to protect it from contamination: storing unlabelled food and milk past its used by date in the fridge used in connection with food preparation.[2]
(2)Processing food in a manner so that it is not protected from potential contamination: storing partially cooked food, uncovered on a shelf below the microwave.[3]
(3)Failing to maintain the food premises in a proper state of cleanliness: allowing an accumulation of grease, dirt, food waste and rubbish to build up on the floors, walls and ceilings of the premises and placing cardboard on the floor of the food preparation area.[4]
(4)Failing to maintain equipment within the premises in a proper state of cleanliness: allowing an accumulation of food waste, grease and dirt to build up on fixtures and fittings within the premises.[5]
(5)Failing to maintain fixtures and fittings within the premises in a good state of repair: overlooking damaged surfaces on the fridge and shelves which were unable to be effectively cleaned and sanitised.[6]
[2] Food Standards Code Standard 3.2.2, cl 6(1)(a).
[3] Food Standards Code Standard 3.2.2, cl 7(1)(b).
[4] Food Standards Code Standard 3.2.2, cl 19(1).
[5] Food Standards Code Standard 3.2.2, cl 19(2).
[6] Food Standards Code Standard 3.2.2, cl 21(1).
Legislative scheme
The appellant was charged with failing to comply with a requirement of the Code while conducting a food business pursuant to s 22(1) of the Food Act.
Section 22(1) 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.
The Code is defined in s 8 of the Food Act as follows:
Food Standards Code means the Australia New Zealand Food Standards Code as defined in the Commonwealth Food Standards Australia New Zealand Act 1991 and as adopted or incorporated by the regulations.
The relevant clauses of the Code are found under Standard 3.2.2:
6Food storage
(1) A food business must, when storing food, store the food in such a way that -
(a)it is protected from the likelihood of contamination; and
(b) the environmental conditions under which it is stored will not adversely affect the safety and suitability of the food.
…
7Food processing
(1)A food business must -
(a)take all practicable measures to process only safe and suitable food; and
(b)when processing food -
(i)take all necessary steps to prevent the likelihood of food being contaminated; and
(ii)where a process step is needed to reduce to safe levels any pathogens that may be present in the food – use a process step that is reasonably known to achieve the microbiological safety of the food.
…
19Cleanliness
(1)A food business must maintain food premises to a standard of cleanliness where there is no accumulation of -
(a)garbage, except in garbage containers;
(b)recycled matter, except in containers;
(c)food waste;
(d)dirt;
(e)grease; or
(f)other visible matter.
(2)A food business must maintain all fixtures, fittings and equipment, having regard to its use, and those parts of vehicles that are used to transport food, and other items provided by the business to purchasers to transport food, to a standard of cleanliness where there is no accumulation of -
(a)food waste;
(b)dirt;
(c)grease; or
(d)other visible matter.
…
21Maintenance
(1)A food business must maintain food premises and all fixtures, fittings and equipment, having regard to their use, and those parts of vehicles that are used to transport food, and other items provided by the business to purchasers to transport food, in a good state of repair and working order having regard to their use.
The sentencing hearing and the magistrate's sentencing remarks
The appellant entered its pleas of guilty at the third appearance after four of the original nine charges were withdrawn.
The guilty pleas were entered by the appellant's sole director Mr Kim Siong Ong. At the hearing Mr Ong was assisted by a Mandarin interpreter but the appellant did not have the benefit of legal representation. At no point did the magistrate ask if the appellant wished to obtain legal advice.
The material facts were read by counsel for the respondent, who also made some submissions in relation to sentencing and costs.
Following completion of the respondent's submissions, the following exchange took place between the magistrate and Mr Ong:[7]
HIS HONOUR: Okay. Mr Ong, did you want to say anything about the matter? Did you want to say anything further about the matter or the penalty that should be imposed or how it has come to be - you know, this prosecution has come to be over - well (indistinct) this inspection on the 16th, but the improvement notices and action that has gone before.
INTERPRETER: Your Honour, can I please give my own explanation so that I'm applying for the lenient penalty. My company was registered since 2021. Actually, that was 16 March 2021 the business was registered, and prior to that there was three different business owner - two, sorry. Two. So, like, what the Mr Prosecutor said, the date was since the 2013 until now was unfair to me. So that was under first paragraph of the state of the material facts. So it says the February 2013. That's not fair to me.
HIS HONOUR: All right. Do you want to say anything further? Anything else that you wanted to say that I need to consider?
INTERPRETER: And also at this stage it's very difficult for me to hire any staff due to the shorter restriction and including myself and age, so that's the reason I'm applying for the lenient penalty.
HIS HONOUR: Okay.
INTERPRETER: And also, if possible, I would like to apply for the instalment, if possible.
HIS HONOUR: Okay, yes. Yes (indistinct) that. You can arrange that outside of court. I just impose a penalty, and then (indistinct) arrangements made elsewhere, downstairs with the registry.
[7] Transcript of primary court dated 18 February 2022, 8 - 9.
The magistrate confirmed with the respondent's counsel that there was a period in which the appellant was not responsible for the food business, and that there had only been one inspection in the period the appellant had operated the business. The magistrate's sentencing remarks were as follows:[8]
[T]here's five charges here that relate to an inspection of these premises on 16 August 2021. I've read what the breaches are, and they relate to the conduct of a food business and complying with the standards, and the breaches relate to the improper storage of food, the improper preparation of food and inadequate cleanliness. I've been - a number of photographs have been tendered which show unfolded cardboard boxes being used, effectively, as floor mats.
It can be seen that they're in quite a very unclean and unhygienic status. There are a number of tea towels and other items that are left hanging alongside benches. There is, you know, what appears to me to be chicken meat and perhaps fish meat that's stored in such a manner that it's not possible to see what the - or how long that has been left out. There are visible accumulation of grease and dirt and items strewn across working benches, and underneath working benches there's accumulation of dirt and fat and other waste.
(indistinct) a further aspect of (indistinct) is that it has meant that it's not possible to tell whether food has expired or not. It's not properly labelled. The purpose, obviously, of these regulations is to maintain public health and to prevent illness arising from unhygienic food preparation and storage. The serious of these matters is reflected in the fact that the maximum penalty for each of these offences is $25,000.
…
Okay. So it's [250,000] for each of these five offences, so that gives you an idea of the seriousness with which the Parliament has decided that these matters should be taken. Of course, the maximum penalty is reserved for the worst of cases. By way of passing, I note that in these there's no visible sign of, you know, rats, insects or other - anything of that nature. There's no allegation that the food itself was spoiled or anything of that nature.
The inspection relates to the one day, but I'm told that there had been previous regulatory action taken in relation to the business, I'm told, and I accept that there have been some changes in the management of the business and who's involved in the management of the business, but, at least, Mr Ong has had some previous knowledge of concerns raised by the town. Given, then, that the maximum penalty for all of these would be five times 250,000, which is $1.25 million, if my mathematics hasn't deserted me, I'm of the opinion that a fine - and I will get my (indistinct) that in this case a fine of $100,000 would be appropriate. There will be - you can make - arrangements can be made for time to pay in relation to that. That fine represents less than one quarter of the maximum penalty.
[8] Transcript of primary court dated 18 February 2022, 9 - 10.
At the conclusion of the magistrate's sentencing remarks, Mr Ong requested clarification of what had been ordered:[9]
INTERPRETER: Sorry, your Honour. Can I please confirm the number is 100,000.
HIS HONOUR: 100,000 plus costs of $1790.30.
INTERPRETER: Can I please apply for the - for a lenient monetary punishment.
HIS HONOUR: All you can apply for now is - you can take some legal advice, if you like, about the outcome. In relation to payment of the fine, you can speak to the registry downstairs and make arrangements for time to pay.
[9] Transcript of primary court dated 18 February 2022, 11.
Grounds of appeal
At the hearing before me on 23 June 2022 the respondent conceded that the penalty of $100,000 imposed by the magistrate was manifestly excessive.
On this basis it was unnecessary for the parties to make submissions in respect of the three further grounds set out in the appellant's notice of appeal.
The application for leave to appeal proceeded on the basis of ground 4:
The Magistrate erred by imposing an aggregate sentence [that] did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to the circumstances of the offending, the appellant's financial position and the plea of guilty.
Ground 4
The principles that apply on appeal to an allegation that the individual sentence is manifestly excessive were summarised by the Court of Appeal in Krencej v The State of Western Australia[10] as follows:
(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
Maximum penalty and customary standards of sentencing
[10] Krencej v The State of Western Australia [2019] WASCA 82 [55] (Mazza, Mitchell & Beech JJA).
The maximum penalty for each of the charges was a fine of $250,000. The total maximum penalty for all five charges, therefore, was $1,250,000.
As Jenkins J identified in Pannacchione v City of Rockingham,[11] there is no tariff for a single offence of the type the appellant has been charged with under the Food Act. Comparisons are difficult because offences of this nature can be committed under a limitless variety of factual circumstances. Her Honour observed:[12]
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.
[11] Pannacchione v City of Rockingham [2014] WASC 221.
[12] Pannacchione v City of Rockingham [36].
The magistrate was provided with a schedule titled 'Food Act Offenders'. This schedule was prepared by counsel for the respondent and listed the fines received by offenders under the Food Act from 2017 until 2022.
At the hearing of the appeal counsel for the respondent referred to the schedule to identify the fines imposed on companies, in circumstances where the company had been convicted of between three to eight offences under the Food Act, were $16,000 - $45,000. Excluding 'outliers' the fine for each charge was between $3,500 - $7,500.
A comparison with the fines imposed on appeal in Dragon Pacific Group Pty Ltd v City of Cockburn,[13] (six charges and a global penalty of $24,000), and Pannacchione v City of Rockingham (ten charges relating to standards of cleanliness and food handling and a penalty of $40,000), suggests the penalties in the schedule prepared by the respondent is a reasonable guide to the sentences imposed for breaches of the Code.
Seriousness of the offending
[13] Dragon Pacific Group Pty Ltd v City of Cockburn [2019] WASC 449.
In Pannacchione v City of Rockingham, Jenkins J identified the four factors that must be considered when determining the seriousness of an offence of this nature. They were:[14]
(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.
[14] Pannacchione v City of Rockingham [44].
In the context of assessing the seriousness of the appellant's offending, the charges relating to the preparation and handling of food are of particular concern. There is an obvious public health risk associated with the improper handling and storage of food.
While there was an historical systemic failure to adhere to the Code between February 2013 and March 2021, it would be unfair to conclude that the appellant's offending was a continuation of that earlier systemic failure. The appellant had only operated the business for five months, and had received only one infringement notice, prior to the inspection on 16 August 2021.
At the hearing before the magistrate, counsel for the respondent made the following submission:[15]
[W]e accept that there's a period in which he wasn't the primary responsible proprietor, to whatever extent that exists. He was involved, I think, earlier in a different capacity, but, in any case, we're focusing on this one inspection where he was the primary responsible person.
[15] Transcript of primary court dated 18 February 2022, 9.
While the offending by the appellant cannot be categorised as systemic, the appellant was on notice as to the failures by the business to comply with the Code, and failed to take any action to rectify this after taking control of the business in March 2021.
The offences were easily preventable.
Finally, with offences of this nature, involving a risk to public health, general deterrence is a very significant sentencing consideration.
The offending in this case can be categorised as serious, given the high risk posed to public health and the blatant disregard for the standards required under the Code.
The appellant's circumstances
The appellant's business may be accurately described as a small business. In an affidavit sworn by Mr Ong on 22 June 2022 and admitted into evidence with leave, Mr Ong deposed the appellant made a profit of around $12,000 between 25 March 2021 and 3 March 2022. Mr Ong attached bank statements to his affidavit which went some way to confirming that the turnover of the appellant's business was modest. Mr Ong explained that his wife had worked in the business with him. Counsel for the respondent accepted that the appellant's business was smaller than the business in which the offending in Dragon Pacific Group Pty Ltd v City of Cockburn had taken place, which in turn was a smaller business than the business in Pannacchione v City of Rockingham.
It may be inferred that the appellant's capacity to pay a fine was very limited.
Conclusion
With respect to the learned magistrate, and while mindful of the principles of appellate restraint in sentencing appeals, I have concluded that the global fine of $100,000 was unreasonable and manifestly excessive. While the offending was serious and carried with it a risk to the health of members of the public, the fine was significantly more substantial than was required for the purposes of general deterrence. It may be accepted that in the context of public health offences the personal circumstances of the offender are less relevant than in other cases (a small business can damage a consumer's health as readily as a larger one), yet a fine of $100,000 imposed on a company running a small food business might be expected to result in insolvency and the winding up of the company. It is plain the appellant was unable to meet the fine and continue to trade.
I will grant leave to appeal in respect of ground 4 and allow the appeal in respect of that ground. As stated earlier it is unnecessary to consider the other grounds and the appeal in respect of those grounds will be dismissed. I will set aside the fine of $100,000 and proceed to resentence the appellant.
Resentencing
The appellant is no longer involved in the food business. Mr Ong and his wife are on the verge of retirement. Personal deterrence is thus of limited relevance to the sentence to be imposed.
General deterrence is the most important sentencing consideration. The appellant's offending was serious and posed a risk to public health. A global fine of $20,000 is sufficiently substantial not to be dismissed by operators of food businesses as merely 'a cost of doing business' and to have a real deterrent effect. Thus, in lieu of the fine imposed by the magistrate, I impose a global fine of $20,000. In imposing this fine, I take account of the appellant's pleas of guilty and the small scale of its business activities.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Tottle
29 JUNE 2022
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