Stirfry Pty Ltd v Lorkin
[2014] ACTSC 213
•29 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Stirfry Pty Ltd v Lorkin |
Citation: | [2014] ACTSC 213 |
Hearing Date: | 6 August 2014 |
DecisionDate: | 29 August 2014 |
Before: | Penfold J |
Decision: | 1.The conviction appeal is dismissed. 2. The sentence appeal is dismissed. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Judge’s Findings of Fact – appellant company prosecuted for food hygiene offences – offences committed in restaurant – certificate of registration of food business operated in restaurant listed director of appellant company and part of appellant company’s name – whether appellant company was proper defendant – obligations imposed on “proprietor” of food business – “proprietor” defined by reference to activities in relation to food business – certificate of registration required to show name of proprietor of food business – whether name on certificate of registration determined identify of proprietor – whether reports of restaurant inspections naming other family members as proprietor raised a reasonable doubt about identify of proprietor – Magistrate’s finding that appellant was proprietor was correct – conviction appeal dismissed. APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – sentence appeal against refusal to make non- conviction order – Magistrate found offences proved and adjourned for sentence hearing – at sentence hearing counsel asked Magistrate to record convictions and adjourn – conviction sought so that appeal could be instituted against finding of guilt – Magistrate recorded convictions and sentence hearing proceeded – counsel sought non-conviction orders – Magistrate declined to “undo” convictions – appeal alleged breach of procedural fairness by Magistrate – Magistrate entitled to assume that request for convictions to be recorded meant that non-conviction orders would not be sought on sentencing – no breach of procedural fairness – sentence appeal dismissed. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 17 Food Act 2001 (ACT), ss 27, 27(1), 96, Dictionary Australia New Zealand Food Standards Code, Standards 3.1.1, 3.2.2. |
Cases Cited: | Bloxham v Wyte [2013] ACTSC 151 Hossen vHughes [2014] ACTSC 101 |
Parties: | Stirfry Pty Ltd (Appellant) Patrick Lorkin (Respondent) |
Representation: | Counsel Ms J Vogel (Appellant) Ms S Gul (Respondent) |
| Solicitors Ben Aulich & Associates (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 113 of 2013 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 26 November 2013 Case Title: Lorkin v Stirfry Pty Ltd Court File Number: Folder 162025 (CC13/40632) |
Introduction
Stirfry Pty Ltd was prosecuted for three offences against s 27(1) of the Food Act 2001 (ACT) constituted by breaches of the Australia New Zealand Food Standards Code (the Code). It was found guilty in the Magistrates Court and find $1,500 for each offence. The company has appealed the convictions and the sentences.
Relevant legislation
Section 27(1) of the Food Act as in force at the relevant date (2 August 2011) was as follows:
27Compliance with food standards code
(1)A person must comply with any requirement imposed on the person by the food standards code in relation to—
(a)the conduct of a food business; or
(b)food intended for sale; or
(c)food for sale.
Maximum penalty: 500 penalty units.
Requirements for the purposes of s 27(1) of the Food Act are set out in Standard 3.2.2 of the Code, and are imposed by Clause 4(1) of Standard 3.1.1 on proprietors of food businesses and on food handlers. The relevant provisions of the Code are as follows:
4 Compliance
(1)The proprietor of a food business must ensure the food business complies with all the requirements of the Food Safety Standards except those in Subdivision 1 of Division 4 of Standard 3.2.2 – Food Safety Practices and General Requirements.
(2)Food handlers must comply with all the requirements set out in Subdivision 1 of Division 4 of Standard 3.2.2.
The requirements to which this prosecution related were imposed on proprietors. The definition of “proprietor” from the Code is repeated in the Dictionary to the Food Act, as follows:
proprietor, of a food business, means—
(a)the person conducting the food business; or
(b)if that person cannot be identified—the person in charge of the food business.
Section 96 of the Food Act provides for the issue of a certificate of registration of a food business, as follows:
96Certificate of registration
(1)If the chief health officer registers, or renews the registration, of a food business, the chief health officer must give the proprietor of the food business a certificate of registration for the food business.
(2)The certificate of registration must show—
(a)the name of the proprietor of the food business; and
(b)the trading name of the food business; and
(c)the type of the food business (as decided by the chief health officer) to which the registration relates; and
(d)the address of the premises at or from which the food business is mainly conducted; and
(e)the registration number allocated to the business; and
(f)the conditions (if any) to which the registration is subject; and
(g)when the registration expires; and
(h)any other information that the chief health officer considers appropriate.
It was accepted before me that registration as evidenced by a Certificate of Registration lasted for 12 months.
Significantly for this appeal, requirements for the purposes of s 27 of the Food Act are imposed by the Code on “proprietors”, who are identified by the nature of their involvement with the food business and not by reference to their mention in a certificate of registration. The obligation imposed by s 96 on the chief health officer when issuing a certificate is to include the name of the proprietor of the food business – whether or how far this is complied with is not determinative of who is in fact the proprietor for the purposes of the Food Act.
Appeal grounds
The grounds of appeal were as follows:
(i)With respect to the finding of guilt and convictions:
(a)His Honour erred as a matter of law in failing to properly consider the provisions of section 96 of the Food Act 2001 (ACT) in finding the Certificate of Registration for a Food Business met the legislative requirements of the Food Act 2001 (ACT);
(b)His Honour found against the evidence and the weight of the evidence that the Appellant was the proprietor of the food business known as the Civic Asian Noodle House on 2 August 2011;
(c)His Honour erred as a matter of law in construing the definition of “proprietor” in the Food Act 2001 (ACT);
(d)His Honour erred as a matter of law in considering the charges before him as charges against the Appellant and those who are responsible within that corporate entity;
(e)His Honour erred as a matter of law in failing to draw any or any proper distinction between a corporate entity and a natural person;
(f)His Honour failed to give any or any appropriate weight to exhibits 8 - 12 in any combination or individually in coming to his finding about the proprietor of the Civic Asian Noodle House; and
(g)His Honour failed to give any or any appropriate weight to the evidence suggesting that Mr Abe Oudomvilay and Mrs Somphamith Oudomvilay were jointly or individually the proprietors of the Civic Asian Noodle House
(ii)With respect to the sentence:
(a)His Honour fell into error in convicting the Appellant in relation to all charges without first hearing submissions and considering whether to exercise his discretion pursuant to section 17 of the Crimes (Sentencing) Act 2005 (ACT);
(b)His Honour did not properly exercise his discretion pursuant to section 17 of the Crimes (Sentencing) Act 2005 (ACT); and
(c)His Honour failed to consider at all or give any or any appropriate weight to the matters he was obliged to consider within sections 33 and 34 of the Crimes (Sentencing) Act 2005 (ACT).
The conviction appeal
On the conviction appeal, and despite the numerous appeal grounds specified, the fundamental question argued was whether the Magistrate was correct in finding that the appellant was the proprietor of the food business in which the breaches had been committed.
The decision in the Magistrates Court
10. In evidence before his Honour were:
(a)a Certificate of Registration for Food Business (the Certificate) for the Civic Asian Noodle House; and
(b)the application form that had resulted in the issue of that certificate (the Application Form); and
(c)a document provided by the Australian Securities & Investments Commission (ASIC), described as a “Current & Historical Company Extract”].
11. The Certificate itself named the restaurant, and set out immediately underneath that name an Australian Business Number (ABN). It authorised the carrying on of food business at the named restaurant until 6 July 2012. The entity authorised was identified as “Somphamith Oudomvilay - Stirfry”. The name was punctuated as shown (that is, with the second and third names separated by a spaced hyphen).
12. The Application Form was headed “Food Business Registration Renewal Form”, and under the heading “Registered Person/Company”, showed “Stirfry” and the same ABN as shown on the Certificate. Section 2 of the form, which required “Licensees’ Contact Details” and contained the subheading “Contact Details for the Registered Person/Company (for administrative purposes)”, named “Mr & Mrs Oudomvilay”, gave a phone number, and set out the street address of the restaurant.
13. The ASIC Extract showed that Stirfry Pty Ltd was registered in December 2005, at which point Mrs Oudomvilay was both the Director and the Secretary and also a shareholder. Other shares were held by another proprietary company and by a Samly Oudomvilay. The ABN for Stirfry Pty Ltd was the same as the ABNs shown in the Certificate and the Application Form.
14. The prosecutor relied on the Certificate, the Application Form and the ASIC Extract as establishing the appellant, Stirfry Pty Ltd, as the person conducting the food business and therefore as the proprietor for the purposes of the prosecution under s 27 of the Food Act.
15. His Honour’s approach to the determination of this question was somewhat unorthodox. He said:
Now, the defence says, you haven’t named the proprietor, which you must show, of the food business. Now, in my view and on the material provided to me, they do so. The proprietor, for the purposes of the definition referred to in the Food Act, as a person - because that’s going to the definition of proprietor as mentioned in the definitions section at the back of the Food Act - identifies the proprietor of a food business to mean a person conducting a food business and if that person cannot be identified, the person in charge of the food business, and for both purposes of that definition, the person identified in conducting the food business is Som Permith Udom Villay.
And even if I was wrong in that and it was strictly be regarded as Stirfry, which I say Stirfry is sufficiently identified even in that naming, as to fall within the definition of “person” as well, even if I’m wrong in that, then subparagraph (b) would operate if the person cannot be identified, that is, the corporate entity, then the person in charge of the food business, which is named, which is Som Permith Udom Villay. And it is the on the basis of the naming of those two entities is sufficient, in my view, for what the notice is required to do, and that goes back to the decision to which I referred to, which has been provided to me by the defendant, and that was the decision of his Honour, Chernov J that I have referred, because when you look at what that notice does, it - as is set out in section 98A:
A person commits an offence if the person conducts a food business that is registered under this part and the person fails to display a current certificate of registration for food businesses on the business premises.
It then says it is a strict liability offence and subsection (3) says:
In this section, display of a certificate on a business premises means shown in a way that is clearly visible to a member of the public who enters the premises in the ordinary course of business.
So, the reason why the certificate of registration for the food business is there is not so much to show that the certificate is in fact - that the organisation is a registered entity, that is taken once payment and lodgement of the renewal is sent in and no other condition is applied. And I take it that the certificate of course is also evidence of that. I’m not saying that is no [sic] the case, it clearly is. But what is the prime purpose of the notice, so if anyone comes into that business, an inspector, or a person who has eaten or purchased food at such a business placed in the ACT, they are able to see in large text, underneath the certificate of registration for a food business, the name of that entity with its ABN. And quite clearly, in large text, it is the Civic Asian Noodle House with Stirfry as ABN.
For want then of any attempt by the person to perhaps gain greater knowledge about who they might make a complaint to or a comment about food or whatever it might be, they are then given further information in that. The certificate of registration authorises the following people to or the following to carry on the food business. It identifies a person, in this case Som Permith Udom Villay, and it identifies in part a business entity, albeit it not complete, but it allows any person, either an inspector of a public health officer, I should say, or a person who has an issue with the standard or product being produced at a Civic food business, as to who they might further refer, reference or identify.
And that is really its sole object, it is for information only, for the purposes of allowing people to deal with and understand that the following entity or people have responsibilities as to ownership, so that a complaint can be made or referred.
And it is on that basis that clearly, in relation to then what happens in relation to the business when it breached on 2 August 2011, was that the public health officer was able to properly ascertain by looking at the certificate (a) what the trading name was, (b) who was the proprietor, that is, the company operating as Stirfry Pty Limited with its ABN attached, and also who was a relevant person for the purposes of the information, and that was Som Permith Udom Villay. And that is the purpose why such notices are displayed in public places pursuant to section 90A, is so that people are able to take action if they are not satisfied with the standard or produce being delivered to them.
16. It is hard to see how the apparent finding that Mrs Oudomvilay was conducting the business justified the conclusion that Stirfry Pty Ltd was the appropriate defendant in the prosecution. If his Honour was applying principles relating to agency in relation to incorporated bodies, he did not identify this. As well, for reasons indicated at [7] above, I do not accept that the certificate of registration is determinative of who is the proprietor.
17. However, I am satisfied that his Honour, in finding that Stirfry Pty Ltd was the appropriate defendant, did in fact reach the correct conclusion.
Identifying the proprietor
18. The statutory regime out of which this matter arises creates an offence that is committed by the “proprietor” of a food business. The identification of a natural person or other entity as the “proprietor” of a food business depends on the content of the definition of “proprietor”, and on the determination of the question of who is actually “conducting” or “in charge of” the food business. It does not depend on references to a person as the “proprietor”, even by the regulatory authorities, irrespective of whether that reference has any basis in the relationship between the definition and the facts. While the identification of a “proprietor” in a registration certificate for the business may be helpful in identifying the proprietor in many cases, an imprecise reference to a person involved with the running of the food business, or even to a person who does not exist, in such a document does not change the question to be considered in a prosecution under s 27.
19. The question is not: is the defendant identified as the proprietor on a registration certificate which is required to include the proprietor’s name? The proper question is: does the defendant satisfy the definition of “proprietor” in relation to the food business in question?
20. Having said that, if it is accepted, as it appears to be, that a food business can be conducted by an entity other than a natural person, then it will often be necessary to look not at who is actually doing the work required to conduct the food business (generally, acquiring, storing, preparing and serving the food) but at the corporate structure by which the business is carried on.
The person conducting the food business?
21. In this case, the evidence was that the appellant Stirfry Pty Ltd was the entity that conducted a food business at the Civic Asian Noodle House, while the day to day operation of that business was undertaken on its behalf by the Oudomvilay family or one or more of its members. That evidence was found in the three documents already mentioned, being the Certificate, the Application Form that resulted in the registration recorded in the Certificate, and the ASIC Extract.
22. The appellant argued, however, that the Certificate and the Application Form gave rise to such confusion over its own role and the role of Mrs Oudomvilay in the 2011 registration of the food business that the person “conducting” the food business could not be identified with sufficient certainty to justify the prosecution.
23. The appellant’s argument was put in oral submissions as follows:
(a)Because the Certificate is required to show the proprietor’s name (s 96 of the Food Act), the name shown in the Certificate must be the name of the proprietor.
(b)The name shown for the proprietor is a hyphenated name which does not describe any identifiable legal person, natural or otherwise, and certainly does not identify the appellant.
(c)If the name is not hyphenated but consists of two names separated by a dash, then the Certificate establishes that the persons described by those names are jointly the proprietors.
(d)If the proprietor consists of two people acting jointly, then a prosecution can only be brought against both of them jointly. Therefore, the prosecution of the appellant alone was invalid or ineffective.
(e)Alternatively, if it is possible to prosecute one of two joint proprietors, then the prosecution of the appellant (Stirfry Pty Ltd) was ineffective because neither of the two names shown on the certificate identifies Stirfry Pty Ltd as one of the proprietors; the reference to “Stirfry” suggests the existence of a separate legal person whose name does not include the words “Pty Ltd”. The fact that the certificate shows the ABN associated with “Stirfry Pty Ltd” does not enable “Stirfry” to be identified as “Stirfry Pty Ltd”; rather, it simply compounds the confusion about which entity is “conducting” the food business concerned.
24. There are a number of weaknesses in the appellant’s argument.
25. First, as already mentioned, the test for identifying the proprietor does not refer to any specification in the registration certificate but to the functions being performed in relation to the business.
26. Secondly, as a matter of logic, the requirement to show the proprietor’s name in the registration certificate does not prove that any name shown in this Certificate is that of the proprietor. For a start, the Certificate does not only show a name in connection with the carrying on of the business concerned, but also, for instance, shows the name (and signature) of the Director, Health Protection Service. As well, the s 96 requirement to show the name of “the proprietor” does not seem to take account of the possibility that the “proprietor” (that is, the entity who is conducting the business or, failing that, who is in charge of the business) may change throughout the currency of the registration. This does not mean that a registration certificate that is compliant when issued becomes non-compliant if the proprietor changes, but it is another reason why the contents of the certificate cannot be relied on in identifying the proprietor for the purposes of s 27.
27. Thirdly, to the extent that the appellant’s argument is based on the niceties of punctuation, it is incorrect, in that a spaced hyphen is not the way in which a hyphen is used to combine two names into a “hyphenated name”.
28. Fourthly, for the same reasons of logic as mentioned at [26] above, the inclusion of two names in the Certificate does not mean that both of them are necessarily “conducting” or “in charge of” the business so as to render them the proprietors (this is especially relevant because, if one of the entities named was conducting the business and the other was in charge of it, only the “conducting” entity would be the proprietor as defined).
29. Finally, even if the two entities mentioned in the certificate as authorised to carry on food business at the relevant address could both be found to be the proprietors for the purposes of s 27, this does not necessarily establish that only a joint prosecution of the two entities could be effective. Counsel was invited to provide authority for this proposition but did not do so. There is to my knowledge no general principle that joint offenders may only be prosecuted if both or all of them are prosecuted. Nor did counsel point to any specific provision to such an effect in the food standards legislation.
30. The real question in this case is not whether the Certificate adequately identified the appellant as the proprietor of the business, but whether the evidence before his Honour was sufficient for a finding beyond reasonable doubt that the appellant “Stirfry Pty Ltd” was the proprietor, or at least as a proprietor, of the business.
31. In considering that question, it seems to me that the appropriate starting point is not the Certificate as granted but the Application Form as lodged. It is in the Application Form that the entity seeking authority to carry on a food business in the specified restaurant is identified. The information that was ultimately recorded on the Certificate, after that authority was granted, could not change the organisational structure identified in the application form, and nor, in my view, could it identify a different or non-existent entity as the proprietor if the definition of “proprietor” in the legislation remains satisfied by the entity mentioned in the application form. The fact that a registration certificate might not strictly comply with the requirement of s 96 because it refers to someone who is not under the legislation the “proprietor” means only that the certificate might be non-compliant – it does not mean that the entity named in the certificate becomes the proprietor whether or not it satisfies the definition of “proprietor”.
32. The Certificate issued to “Stirfry” and also naming Mrs Oudomvilay was issued in response to the lodging of the Application Form. The Application Form identified the applicant as “Stirfry”. The Application Form and the Certificate each showed an ABN for “Stirfry”, and the ABNs were the same. The ASIC Extract showed that the entity entitled to use that ABN was the current appellant, Stirfry Pty Ltd.
33. The failure by Mr and Mrs Oudomvilay to include the “Pty Ltd” in the Application Form, and the (unsurprising) failure of the regulator to include the “Pty Ltd” in the Certificate thereafter issued, do not mean that it was not open to his Honour to be satisfied beyond reasonable doubt that the entity that applied to register the food business to be conducted at the Civic Asian Noodle House, and the entity (or at least one of them) to whom the Certificate was issued:
(a)was the entity registered with ASIC whose ABN had been relied on in the Application Form and specified on the Certificate; and
(b)was the entity that intended to conduct, and was conducting, the food business at the specified restaurant; and
(c)was therefore the proprietor of the food business for the purposes of s 27 of the Food Act.
34. Nor is there any substance to the argument that the inclusion of the names of Mr and Mrs Oudomvilay in the Application Form raises questions about who or what was sought to be registered. The names were clearly included as “contact” information for “administrative purposes”. There is nothing sinister about such information being either sought or provided, given that food business regulators would be substantially hindered in their task of protecting public health through monitoring food hygiene and related matters in restaurants if they were unable to deal directly, and quickly, with the individuals operating a food business on behalf of a corporate entity.
35. Counsel for the appellant, in an effort to persuade me that the “Stirfry” named on the Certificate could not be identified with the appellant Stirfry Pty Ltd, placed some weight on the existence of a registration certificate (the 2006 Certificate) for the Civic Asian Noodle House which authorised “Mr & Mrs Oudomvilay” to carry on the food business at that restaurant until 6 July 2006 (which certificate, having regard to [6] above, might have taken effect as early as 6 July 2005). This was said to raise some doubt about whether the appellant company could be identified as the proprietor of the business in 2011, either generally or having regard to the possibility that there was another entity called simply “Stirfry” (as distinct from Stirfry Pty Ltd).
36. I cannot see how the 2006 Certificate raises any doubt at all about who or what was conducting the Civic Asian Noodle House food business in 2011.
37. The 2006 Certificate appears to have been issued in response to a form entitled “Notification of Change to Food Business Registration Details” which was signed by the outgoing owner of the business and by Mrs Oudomvilay in November 2005. As noted, the ASIC Extract showed that Stirfry Pty Ltd had been incorporated in December 2005. Because the 2006 Certificate did not expire until July 2006, the respondent noted that there might have been no occasion to identify any transfer of the business from the members of the Oudomvilay family to the newly incorporated company after the issue of the 2006 Certificate but before the application for the 2006‑07 registration certificate.
38. The fact that a registration certificate naming Mr & Mrs Oudomvilay as authorised to carry on the business remained current for some months after Stirfry Pty Ltd was incorporated does not raise any doubts in my mind at all about the name or nature of the entity that was registered as conducting the food business in 2011.
39. Before the Magistrate, counsel for the appellant had drawn attention to a number of authorities about the importance of strict compliance with particular kinds of statutory regimes such as that regulating bankruptcy, presumably as part of the argument that the appellant could not be the “proprietor” because it was not identified accurately and exactly in the Certificate. For the reasons set out above in relation to how a proprietor is to be identified, and in particular to the effect that a proprietor is not identified by reference to a description in a registration certificate but by reference to whether it meets the legislative definition, I do not regard these authorities as useful here.
40. As already mentioned, his Honour’s reasoning towards the identification the proprietor of the food business conducted at the Civic Asian Noodle House was somewhat obscure. However, on the basis of the evidence before him, his Honour was entitled to be satisfied beyond reasonable doubt that the appellant was the proprietor of the food business concerned for the purposes of prosecutions under s 27. None of the somewhat desperate arguments raised before his Honour and again before me should have given rise to any doubt about who was the appropriate defendant to the prosecution. For this reason, his Honour’s findings of guilt should be confirmed, albeit for the reasons I have expressed rather than for the reasons his Honour gave.
The person in charge of the food business?
41. In case the argument that the Magistrate could not have identified the person “conducting” the food business was successful, the appellant briefly argued that it was also impossible for the Magistrate to have identified who was “in charge of the business”, for the purposes of the second limb of the definition of proprietor. The argument was that, having regard to several further “official” documents in evidence relating to the food safety inspections of the restaurant, there was also confusion about who was “in charge of” the business. That confusion was said to have arisen because the various documents purported to identify one or more members of the Oudomvilay family (not always the same ones) as the “proprietor” of the business. These documents are described below:
(a)A “Food Premises Inspection Report” dated 2 August 2011 and completed by the respondent, Public Health Officer Patrick Lorkin. The report records an inspection of the restaurant. Part of the form was as follows:
Inspection conducted with ............................
(Circle: Proprietor/Manager/Person in charge and write Name above)
Mr Lorkin had filled in the blank with “Samly” and a phone number, and had circled “Proprietor”. Samly may be the person named in the ASIC Extract.
(b)A “Food Act 2001 ~ Prohibition Order” dated 3 August 2011 and containing the following paragraph:
2.Proprietor upon whom the Order is served
This Prohibition Order is served upon Mrs Somphamith Oudomvilay and Mr Abe Oudomvilay of Stirfry Pty Ltd (ABN. XXXXX XXX152) as the persons in charge of Civic Asian Noodle House, 34 Northbourne Avenue, Canberra City 2601. Food Business Registration No. 0355/55.
(c)A “Food Premises Inspection Report” dated 10 August 2011 completed by a person whose surname appears to be Kaye. The report records an inspection of the restaurant with “Abe”, and again “Proprietor” was circled. Abe may be Abe Oudomvilay.
(d)A “Food Act 2001 ~ Clearance Certificate” dated 11 August 2011 and containing the following paragraph:
Order / Notice for which Clearance Certificate is issued
This Clearance Certificate is for the revocation of the Prohibition Order dated 2 June 2011 served upon Mrs Somphamith Oudomvilay and Mr Abe Oudomvilay of Stirfry Pty Lty [sic] as the persons in charge of Civic Asian Noodle House, 34 Northbourne Avenue, Canberra City ACT 2601.
(e)A letter dated 15 September 2011 from the Health Protection Service of ACT Government Health, addressed to “Mr & Mrs Oudomvilay” at Civic Asia [sic] Noodle House and inviting them, “as the proprietors of the Civic Asia Noodle House”, to attend an interview with the Health Protection Service before a decision is made whether to commence legal action arising out of the inspection of the premises that resulted in the temporary closure of the restaurant under the Prohibition Order.
(f)A letter dated 4 October 2011 from the Health Protection Service to a firm of solicitors who were apparently representing Mr and Mrs Oudomvilay in the matter, agreeing with some of the solicitor’s requests but noting that “in relation to day to day operational matters, ... officers will contact the registered proprietors, Mr and Mrs Oudomvilay”.
Consideration
42. I note first that the question of who is “in charge of” the food business only arises if the person “conducting” the food business cannot be identified (at [4] above). Since I have concluded that Stirfry Pty Ltd was “conducting” the business and was therefore the proprietor for the purposes of the prosecution, I do not need to pursue the question of who might have been “in charge of” the business.
43. I note, however, that for the same reasons as I have already set out in relation to the determination of who was “conducting” a food business, the question of who was “in charge of” the business is also a question to be determined by reference to the relevant facts and circumstances rather than to the terminology used by regulators in their dealings with participants in the food industry. So, for instance, the fact that a public health officer marks a form so as to describe an individual in whose presence he or she has inspected a restaurant as the “proprietor” of the business does not establish either:
(a)that the individual was “conducting” that food business; or
(b)that the person who was conducting the business could not be identified and that the individual who seemed on the relevant day to be “in charge of” the business had therefore become the “proprietor” of the business under the Food Act.
44. If it had been necessary to determine who was “in charge” of the business, evidence as available from the inspection reports about who was present in the restaurant and dealt with the inspectors at various times might well be relevant, but evidence of those inspectors circling the word “proprietor” on the form would be of little or no value.
Conclusions – conviction appeal
45. I am satisfied that his Honour’s determination that the appellant was the appropriate defendant to the charges under the Food Act was not only open to him but was also the correct determination (if not for the same reasons as expressed by his Honour). Accordingly, the conviction appeal is dismissed.
The sentence appeal
46. Counsel for the appellant pressed only sentence appeal ground (a) at the hearing. Sentence appeal grounds (b) and (c) (at [8] above) were abandoned, subject to the request that if the sentence appeal were upheld and the appellants were to be re-sentenced, written submissions on those other appeal grounds should be taken into account.
The proceedings in the Magistrates Court
47. After his Honour had recorded his findings of guilt on 22 October 2013, the matter came before him again for sentence on 26 November 2013. At that point, counsel for the appellant made the following submission:
Your Honour, with respect, I’d like to start to be upfront with your Honour and advise that I’m instructed to lodge an appeal with your Honour’s briefing in relation to the conviction. The appeal has not yet been lodged because the company hasn’t been formally convicted.
Whilst I’m ready to proceed to sentence today I would invite your Honour to formally convict the company and adjourn the matter for sentence at a later date. I acknowledge your Honour’s got a busy list today and if the defendant is right in the appeal the sentence won’t need to be dealt with.
48. The significance of the request for his Honour to record the relevant convictions seems to have been the possibility that under the appeal provisions of the Magistrates Court Act 1930 (ACT), an appeal does not lie to the Supreme Court from a finding of guilt as such (see Bloxham v Wyte [2013] ACTSC 151 at [9] to [52]).
49. It seemed to be suggested before me that counsel had intended to offer his Honour a “package deal” (consisting of the recording of the conviction and the adjournment of the sentencing hearing) to allow the conviction appeal to go ahead quickly, but that there had been no intention to have convictions recorded if the sentencing hearing was to proceed that day. This might indeed have been the intention of the appellant’s lawyers, but if so it does not seem to have been effectively communicated to the Magistrate. Instead his Honour, having heard from the prosecutor that the sentence hearing should go ahead, and from the appellant’s counsel that the sentence hearing could go ahead, proceeded immediately to record convictions on the three charges before inviting the appellant’s counsel to make submissions on sentence.
50. Counsel then made submissions, including submissions in favour of the making of non-conviction orders under section 17 of the Crimes (Sentencing) Act 2005 (ACT). His Honour did not stop the making of those submissions, but having heard them, said:
Each of the offences of course, the three charges, are serious in their own right and having regard to the fact there is no previous history I have formed the view that the matters were proved and as I have previously indicated that the defendants were convicted of the offence. Of course having determined that they were convicted as requested by the defence I cannot now undo that conviction in the order of section 17. Normally I would have waited for a section 17 application to be after submissions on sentencing had been given to me by both the defence and the prosecution. However in this case, being mindful of what I had been given by way of written submission in relation to this matter being largely dealt with on the paper on its first occasion, and then having heard subsequently, I don’t alter those findings.
Failure to give procedural fairness?
51. The appellant says that the sentences were infected by error in that his Honour had failed to give procedural fairness by recording convictions without giving the appellant an opportunity to submit in favour of non-conviction orders.
52. In other situations, the action of recording a conviction before hearing sentencing submissions (at least in cases where a non-conviction order was not a completely unrealistic possibility) might well be a breach of procedural fairness (see Hossen v Hughes [2014] ACTSC 101 at [42]).
53. However in this case the appellant’s counsel had explicitly asked the Magistrate to record a conviction, for the appellant’s own purposes (so that an early appeal could be brought).
54. If the case had involved an unrepresented defendant, it would probably have been appropriate for his Honour to mention to the defendant the implications of recording convictions before sentencing submissions were made, but I cannot see that his Honour owed an obligation of that kind to the appellant, who was represented by an experienced local law firm specialising in criminal defence work.
55. Furthermore, in seeking the early recording of the convictions, counsel was taking a gamble on the conviction appeal being successful; if the appeal had been unsuccessful and his Honour’s orders confirmed, the appellant would, as far as I can see, have been stuck with the convictions at the start of the resumed sentencing process.
56. Having regard to the experience of the appellant’s lawyers and to the fact that their strategy carried a real risk that there would be no later opportunity to argue for non-conviction orders, his Honour was perfectly entitled, in my view, to assume:
(a)that the defence team knew what it was doing; and
(b)that the request for his Honour to record convictions meant that there was no intention to submit in favour of non-conviction orders at any subsequent sentencing hearing.
57. There was no breach of procedural fairness in his Honour recording convictions as requested by the appellant’s counsel and then proceeding immediately to hear sentencing submissions.
Significance of “conviction”
58. It is true that the recording of a conviction has an ambiguous character under ACT legislation; “conviction” is used in the Magistrates Court Act to identify the formal determination of guilt from which an appeal may be brought, but under the Crimes (Sentencing) Act the recording of a conviction is not a pre-condition to sentencing but a sentencing option. However, this complication for appellants would be readily addressed by consolidating any challenges to the first instance determination of a prosecution in a single appeal framed as an appeal against conviction and sentence, whether or not the only challenge to the conviction relates to the recording of the conviction as part of the sentence. Such an approach would be generally more efficient for the courts and often, one might think, cheaper for appellants.
Conclusions – sentence appeal
59. The sentence appeal ground has not been made out, and the sentence appeal is dismissed.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: |
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