Vinh v Christensen
[2017] ACTSC 389
•19 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Vinh v Christensen |
Citation: | [2017] ACTSC 389 |
Hearing Date: | 24 October 2017 |
DecisionDate: | 19 December 2017 |
Before: | Mossop J |
Decision: | 1. The appeal is dismissed. 2. The sentences are confirmed. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – prosecution for food hygiene offences – breaches of the Food Standards Code – whether magistrate erred by failing to consider current sentencing practices – whether magistrate departed from the standard level of fines for matters of a similar nature manifested error – whether magistrate failed to properly apply the principles of totality – whether sentences imposed were manifestly excessive – general deterrence – specific deterrence – appeal dismissed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 14, 33(1)(n), 33(1)(za), 35, 35(1)(b), 35A, 36, 37 Crimes (Sentence Administration) Act 2005 (ACT), ch 6A Magistrates Court Act 1930 (ACT), ss 207(1)(a), 208(1)(e)(ii), 218 Australia New Zealand Food Standards Code |
Cases Cited: | Acuthan v Coates (1986) 6 NSWLR 472 Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Sladic v Proud [2013] ACTSC 232; 237 A Crim R 1 |
Parties: | Vinh Quoc Vinh (Appellant) Tory Christensen (Respondent) |
Representation: | Counsel G Mansfield (Appellant) K McCann (Respondent) |
| Solicitors O’Connor Harris & Co (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 64 of 2017 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Cush Date of Decision: 27 July 2017 Case Title: Christensen v Vinh Court File Numbers: CC2017/40750 CC2017/40752 CC2017/40753 CC2017/40754 CC2017/40755 |
MOSSOP J:
Introduction
This is an appeal from sentences imposed by the ACT Magistrates Court in relation to offences against the Food Act 2001 (ACT). The sentences were imposed on 25 July 2017.
The Court has jurisdiction to hear the appeal pursuant to ss 207(1)(a) and 208(1)(e)(ii) of the Magistrates Court Act 1930 (ACT). It is an appeal by way of rehearing.
Section 27(1) of the Food Act provides:
A person commits an offence if the person contravenes a requirement of 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.
As at the date of the offence, a penalty unit was, in relation to an individual, $150, and in relation to a corporation, $750: see Legislation Act 2001 (ACT), s 133(2).
The appellant was initially charged with seven offences. He pleaded guilty to five of those offences and two of the offences were “withdrawn and dismissed”.
The charges on which the appellant was convicted and sentenced are summarised in the following table.
Charge Number
Provision of Food Standards Code
Subject Matter
Penalty Imposed
CC2017/40750
Clause 3.2.2 Number 6
Food storage
Fine of $3000,
3 months to payCC2017/40752
Clause 3.2.2 Number 17(1)
Hygiene of food handlers
Fine of $3000,
3 months to payCC2017/40753
Clause 3.2.2 Number 19(1)
Cleanliness
Fine of $5000,
6 months to payCC2017/40754
Clause 3.2.2 Number 21(1)
Maintenance
Fine of $3000,
9 months to payCC2017/40755
Clause 3.2.2 Number 24(1)
Presence of cockroaches
Fine of $5000,
9 months to pay
The total of the fines was $19,000.
Various amounts for costs and statutory levies were imposed adding $850 to the total.
Each of the charges had been particularised by reference to the relevant provision of the Australia New Zealand Food Standards Code (‘Food Standards Code’). The Statement of Facts in relation to each of the charges articulated the contravention of the relevant standard by reference to particular numbered photographs.
The decision below
The reasons of the Court were given immediately following the conclusion of submissions. They extend over four and half pages of transcript.
His Honour identified the offences and the maximum penalty. He then recited, in some detail, the facts derived from the Statement of Facts which had been tendered.
At the conclusion of the recital of the Statement of Facts, his Honour said:
The rules set forth in the Food Standards Code make it clear what is required to ensure the safety and the health of the community to control the obvious risk [associated] with the preparation and sale of food.
The consequences of not meeting the required standards can be catastrophic for the consumers. What is required in the Food Standards Code is reasonable and manageable. If food vendors cannot meet the standards then they’re in the wrong industry. The photographs which have been tendered as exhibit B show that the premises were in an appalling state on 17 May 2016 with poor food management practices.
His Honour then referred to the personal circumstances of the appellant, the fact that he operated as a sole trader and the fact that he came to Australia as a refugee. He referred to the modest income generated by the business of $151,000 per year giving rise to a taxable income of approximately $43,500.
He referred to the early guilty plea and its utility. He accepted that the offender showed contrition and remorse. His Honour referred to the record of interview in which the appellant admitted that he had neglected the cleanliness of the premises, describing the admissions made in relation to the difficulties arising from a mental health issue with his daughter which had affected him and his wife, and his admission that while he regularly cleaned the premises, he had not done so in certain areas for at least a month. He referred to the cockroach problem being an ongoing issue for three years and being a problem in all the shops adjacent to his.
His Honour referred to the efforts to control cockroaches subsequently.
He referred to his good character and his work ethic as well as his completion of a food safety course subsequent to the offending conduct. His Honour referred to the need for specific and general deterrence “to make sure that he and others engaged in the food industry don’t engage in such conduct which would put the consumer at risk”.
He made specific reference to the need “to take into account his personal financial circumstances in applying a fine which could be quite heavy, particularly as there’s a maximum of $75,000 [which] could be provided”. He said “The totality is an important aspect in that regard.”
His Honour also referred to the prospect of adverse publicity. He then imposed the penalties. He concluded “In all there are fines of $19,000 in respect of these matters and the maximum period I have allowed is nine months unless there is further submissions by [counsel for the appellant] in respect of that.” Counsel for the appellant indicated that there were no further submissions as to the time allowed for payment.
Grounds of Appeal
The grounds of appeal are:
i.The Magistrate erred by failing to consider current sentencing practices;
ii.The degree of departure from the standard level of fines for matters of a similar nature was so great that it manifested error;
iii.The magistrate failed to properly apply the principles of totality; and
iv.The sentences imposed are unreasonable or plainly unjust in the circumstances.
The submissions of the appellant and respondent were detailed and thorough. They addressed each of the grounds of appeal separately.
The Magistrate erred by failing to consider current sentencing practices
Appellant’s submissions
Notwithstanding the generality of this ground of appeal, the appellant’s argument related to the manner in which the plea of guilty was taken into account. The appellant recognised that the obligation to state the undiscounted penalty that the sentencer would have imposed did not apply unless there was a real likelihood that the Court would sentence the offender to imprisonment: Crimes (Sentencing) Act 2005 (ACT) (CS Act), s 35(1)(b). As a consequence, the appellant accepted that the obligation did not apply to fine only offences. Nevertheless, the appellant argued that the consideration of a plea of guilty and, where a discount is allowed, the statement of the amount of that discount is a current sentencing practice in this jurisdiction. The failure to express the consequences of the plea of guilty for the quantum of the penalty imposed was therefore said to be a failure to comply with s 33(1)(za) of the CS Act.
Respondent’s submissions
The respondent submitted that the requirement in s 33(1)(j) of the CS Act to have regard to an offender’s plea of guilty is distinct from the obligations in ss 35 and 37 which do not have any application to offences which carry a fine only maximum penalty: see Sladic v Proud [2013] ACTSC 232; 237 A Crim R 1 at [53]. The respondent distinguished the position in the ACT from that in New South Wales (NSW) where there is a statutory obligation to state that the plea of guilty has been taken into account and the circumstances of the plea: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22. The respondent referred to Cajina v Narsey [2016] ACTSC 10 at [21], where the Chief Justice identified that there was no requirement for a sentencing judicial officer to spell out the amount of discount, if any, that has been allowed under s 35 although it was preferable to do so because consistent imposition of a certain discount would create an incentive for other offenders to enter a plea of guilty, knowing the level of discount that is likely to be applied. The respondent also referred to the decision of Refshauge J in Sladic v Proud in which his Honour (at [56]-[62]) rejected the submission that, in relation to a fine only offence, it was necessary to specify or quantify the discount given for a plea of guilty.
The respondent therefore submitted that there is no principle of common law or statute which would require the sentencing court to specify the quantity of a discount allowed for a plea of guilty in relation to a fine only offence. The respondent also submitted that statements in decisions of this Court as to the desirability of quantifying the discount for a plea of guilty does not transform that practice into a sentencing principle to be applied and to do so would be inconsistent with the legislative scheme provided by ss 33 and 35 of the CS Act.
Decision
I do not accept the appellant’s submissions insofar as they seek to use the obligation under s 33(1)(za) to incorporate an obligation to articulate the level of discount given for a plea of guilty notwithstanding that the specific statutory provisions impose no such obligation in relation to fine only offences. The legislative scheme draws a clear distinction between situations where there is a “real likelihood that [the Court] will sentence the offender to imprisonment” and situations where that is not the case, most obviously, fine only offences. Section 37 does not apply generally. It is confined to the circumstances which it identifies (ss 35, 35A and 36). Having regard to the legislature’s clear delineation of the circumstances in which the obligation to state the extent of the reduction imposed, it would be inconsistent to then interpret s 33(1)(za) as picking up obligations not only as to the quantum of penalties imposed, but also practices as to the formulation of reasons.
Both parties made reference to the decision in Cajina. I observe that the passage quoted by the parties at [21] of the decision fails to make any reference to the operation of s 37 of the CS Act. Cajina was a case in which custodial sentences were in fact imposed and hence one in which the obligation in s 37 was engaged. Therefore the statement in the first sentence of para [21] of the decision does not appear to be correct. However, having regard to the manner in which the authority was used and my conclusion expressed above, it is not necessary to do more than note this aspect of the decision in Cajina.
The degree of departure from the standard level of fines for matters of a similar nature was so great that it manifested error
Appellant’s submissions
The second ground of appeal was based upon other sentences imposed by courts in the ACT for contraventions of s 27(1) of the Food Act. The appellant’s submissions referred to the decision in R v Pham [2015] HCA 39; 256 CLR 550 at [29] and the use that may be put to other cases as illustrating but not defining the possible range of sentences available. He also referred to the decision of the Chief Justice in Hostile Takeovers Pty Ltd v Hudson [2016] ACTSC 185 at [48] where her Honour expressed the conclusion that the penalties imposed for the offences in that case were manifestly excessive and that if she failed to set aside those penalties, the appellant would be left with a strong and justifiable sense of grievance because the penalties differed vastly from penalties imposed in the ACT and elsewhere for matters of a similar nature where similar maximum penalties applied.
The appellant pointed to the statistics available on the ACT Sentencing Database which revealed the following matters:
(a)there have been 36 cases of a contravention of s 27(1) of the Food Act dealt with in the Magistrates Court between July 2012 and April 2017;
(b)17 per cent of offences resulted in fines of $1000 or less;
(c)58 per cent of the offences received fines of $1001 to $2000;
(d)19 per cent received fines of $2001 to $3000; and
(e)six per cent received a fine $3000 or more.
The appellant submitted that the fines were in the top 19 per cent for three of the five offences and the top six per cent for the other two offences. In fact, the figures should be the top 25 per cent and six per cent respectively. The appellant drew attention to the fact that these figures covered penalties imposed upon both individuals and corporations, and that the figures had to be understood in the light of the fact that the penalties for individuals were only one-fifth of those available in relation to corporations.
The appellant identified that there have been only four cases of contraventions of s 19 of the Food Act, which is a more serious offence carrying a maximum penalty of 750 units. It is an offence which involves an element of negligence. The statistics in relation to that offence indicate that three of those convictions resulted in fines of between $1001 and $2000.
He also referred to sentencing statistics obtained from the NSW Sentencing Database.
As a result of these statistics, the appellant submitted that the fines imposed in the current case unjustifiably placed the appellant at the top of the range of penalties imposed in the ACT and NSW for matters of a similar nature where similar maximum penalties apply.
He submitted that contrary to the circumstances that existed in DPP (Vic) v Dalgleish [2017] HCA 41; 91 ALJR 1063, there was no suggestion that the range established by previous sentences is the result of a perpetuation of an error in principle that requires a remedy by a superior court.
Respondent’s submissions
The respondent also pointed to the decision of the High Court in DPP (Vic) v Dalgleish in which the plurality emphasised that matters relevant to sentencing must be balanced and weighed as part of a process of instinctive synthesis. The respondent also pointed to the judgment of Gageler and Gordon JJ in which their Honours (at [84]) rejected the proposition that current sentencing practices fixed quantitative boundaries within which future sentences were required to be passed. Consistently with this approach, the respondent referred to the decision of the Court of Appeal in Singh v The Queen [2015] ACTCA 65 at [59]-[60].
In relation to specific sentencing statistics including the ACT and NSW Sentencing Databases, and of the Register of Food Offences, the respondent submitted that the statistical data did not provide any details of the cases, and, as a consequence, were unhelpful in making any determination as to whether those previous sentences were comparable to the present matter. The respondent noted that the decisions of this Court in Hudson v Wong [2010] ACTSC 108 and Kaye v Siddiq [2013] ACTSC 62 were decisions to which the magistrate was referred and did provide some indication of sentencing practice.
The respondent pointed to a portion of the transcript in which his Honour recognised that these decisions were of some assistance in determining what tariff has been imposed in other cases, but recognised that each case had its own particular features which counsel for the appellant wished to point out to him.
The respondent therefore submitted that, having regard to the objective gravity of the offending, the maximum penalty for the offence and relevant principles of sentencing, it could not be said that the sentences in this case were outside the range so as to permit an inference of error in relation to the sentencing process.
Decision
It is not possible to say that the sentencing statistics indicate that the sentences imposed in this case were outside the range of possible sentences reasonably available. While the sentences imposed were at the upper end of the range disclosed by the sentencing statistics, that alone does not demonstrate an error. The submission is essentially one of manifest excess. That issue is dealt with below.
The magistrate failed to properly apply the principles of totality
Appellant’s submissions
The third ground of appeal related to questions of totality based upon the proposition identified in Mill v The Queen (1988) 166 CLR 59 at 62-3 and Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 621-2, 623.
The appellant pointed to the fact that the principle of totality is applicable where the penalties are imposed by way of a fine: EPA v Barnes [2006] NSWCCA 246 at [46], but that because fines cannot be made concurrent, it may be appropriate to lower each individual sentence so as to achieve an outcome which reflects the totality of the criminal behaviour.
The appellant’s submissions accepted that the magistrate did refer to the issue of totality. However he submitted that it is not enough for a sentencer to simply state that the principle of totality “is an important aspect” as the magistrate did. Instead the appellant submitted that the principle must actually be applied correctly or the sentencer will fall into error.
The appellant submitted that in this case the magistrate did not have regard to the commonality of elements of the offences as required by Pearce, nor lowered the individual sentences below what would otherwise be appropriate as referred to in Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [26]. The appellant submitted that the magistrate erred in the application of the principle of totality and that the total of the individual sentences was too great overall such that it was not a just and appropriate measure of the total criminality involved.
Respondent’s submissions
The respondent identified that the magistrate made express reference to the principle of totality. It submitted that in assessing whether there had been a failure to give effect to the principle of totality, regard needed to be had to the reality of the giving of ex tempore reasons in a busy Magistrates Court as described by Kirby P in Acuthan v Coates (1986) 6 NSWLR 472 at 479. In relation to the substantive question of the totality of the sentence the respondent relied upon its submissions in relation to the final ground of appeal.
Decision
Having regard to the reference by the magistrate to the question of totality, this ground of appeal depends upon the appellant establishing that, notwithstanding that the principle of totality was referred to, it was not in fact given effect in the substantive decision. This may be derived from two matters: first, the failure by the magistrate to make express reference to the manner in which the sentences had been adjusted to take into account the issue of totality and second, by reference to the aggregate sentence actually imposed. In the absence of there being a manifestly excessive aggregate sentence, I do not accept that the failure by the magistrate to indicate the manner in relation to which the fines had been adjusted to take into account questions of totality amounts to an error. Therefore this ground of appeal also depends upon the question of whether the individual or aggregate sentences were manifestly excessive, which I deal with below.
The sentences imposed are unreasonable or plainly unjust in the circumstances
Appellant’s submissions
The fourth ground of appeal was that of manifest excess. The appellant referred to the statements in Cheung v The Queen [2001] HCA 67; 209 CLR 1 at [14], [99], [165] emphasising that because findings of fact made against an offender must be made beyond a reasonable doubt, a judge will, in practical terms, often sentence the offender upon a view of the facts which is most favourable to the offender.
The offender pointed to the evidence that was available that could provide a basis for sentencing, namely: the Statement of Facts which was tendered and became Exhibit A; certain photographs of the premises which were tendered and became Exhibit B; admissions made by the appellant through an interpreter during an interview with the informant and another public health officer which became Exhibit 1.
The submissions of the appellant followed a series of steps:
(a)The photos represented a snapshot of the state of affairs at one particular point in time. Referring to the objects of the Food Act, the appellant submitted that the photographs did not provide a basis other than by reliance upon common knowledge as to what extent the “food for sale was both safe and suitable for human consumption”.
(b)If judicial notice was to be relied upon in relation to the risk to health, then procedural fairness required that matter to be raised with the defendant: Howard v Aikman [2015] ACTCA 64 at [76].
(c)What aspect of the photos were relied upon and to what extent the magistrate relied upon common knowledge to elevate the seriousness of the offences was not made known to the parties.
(d)The evidence available from the interview with the appellant indicated that he had neglected his usual cleaning practices as a result of his daughter’s sudden and significant decline in mental health. As a consequence, the evidence was that the state of affairs captured on that day was only a temporary disruption to the normal practices.
(e)The magistrate in this case failed to determine where in the spectrum of objective seriousness the offences fell and arrived at a sentence that was disproportionate to the weight of admissible evidence as to objective seriousness.
In relation to charge CC2017/40755 (the charge relating to cockroaches), the appellant accepted that the circumstances were somewhat different because they related to a longer period of time and the charge was aimed at a mixture of omissions and conduct. In relation to that charge, there was evidence that the appellant had been having an ongoing cockroach problem for three years, that he had engaged a pest control company two years ago but was not satisfied with their performance, and that he had been conducting his own measures of placing traps and spraying every three days since then. There was reference to the impact of cockroaches in neighbouring premises. There was also evidence that there was moderate cockroach activity on 6 July 2016 and no activity from 31 August 2016 through to April 2017.
The appellant analysed the evidence as to cockroach activity identifying that the photographs appeared to show a total of four individual cockroaches and that the location of those cockroaches was not on or near food preparation surfaces or areas. There was no evidence of the extent to which the fact for suitability of food was at risk.
The appellant pointed to s 14 of the CS Act which, in relation to fines, provides (at
sub-s (3)) that the court is “not required to inquire into the offender’s financial circumstances…” but “must consider any facts established by the offender about the offender’s financial circumstances”. Section 33(1)(n) requires the court to take into account, in deciding how to sentence an offender, the offender’s financial circumstances if relevant and known to the Court.
The magistrate did expressly recognise and take into account the personal financial circumstances of the appellant, particularly where the maximum penalty was $75,000.
The appellant pointed to the evidence before the Court that his taxable income for 2016 was $43,432. As a consequence, the total effect of the fines, costs and levies of $19,850 was 46 per cent of his gross annual income and 61 per cent of his gross income over the nine months which he had available to pay the fines.
The appellant submitted that on any objective measure that the level of fines put him at risk of insolvency or under a hardship disproportionate to the offending conduct.
Finally the appellant submitted that the following characteristics indicated that the sentences imposed were manifestly excessive:
(a)the absence of any apparent reduction for the pleas of guilty;
(b)the individual sentences that are at the high or highest range of sentences when regard is had to comparable cases;
(c)there was no proper account of the fact that the appellant was a sole trader and not a corporation;
(d)there was no application of the principles of totality;
(e)the sentence was disproportionate to the weight of admissible evidence as to objective seriousness; and
(f)the financial effect of the total sentence upon the appellant was disproportionate to the offending conduct particularly after taking into account the appellant’s subjective circumstances pre and post the date of the offences.
The appellant submitted that these matters taken together indicated that the sentence was clearly unjust and manifestly excessive such that it may be inferred that the sentencing discretion has miscarried.
Respondent’s submissions
The submissions of the respondent emphasised the heavy burden imposed upon a party seeking to establish that a sentence was manifestly excessive: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [59]-[61]; Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [43]. The respondent made submissions directed to each of the following matters which he submitted were relevant to assessing whether the sentence was manifestly excessive:
(a)the maximum penalty for the offence;
(b)the objective seriousness of the offences;
(c)relevant sentencing principles; and
(d)the appellant’s subjective circumstances.
Maximum penalty: The respondent identified the maximum penalty for the offence as being $75,000 for an individual and $375,000 for a corporation and that the offences apply to businesses varying greatly in size and sophistication. The respondent submitted that the maximum penalties represent the legislature’s assessment of the seriousness of the offence which therefore “provides a sentencing yardstick”: Elias v The Queen [2013] HCA 31; 248 CLR 483 at [27].
Objective seriousness: Insofar as the appellant claims that the magistrate erred in failing to specify where on the spectrum of objective seriousness the offences were placed, the respondent pointed to those authorities which recognise that while it may be preferable for a sentencing judge to make a specific assessment of the objective seriousness of the offending, there will be no error if, having regard to the matters referred to, the Court reaches the conclusion that the objective criminality of the offences was taken into account: Miles v The Queen [2016] ACTCA 54 at [80]-[81]; Delaney v The Queen [2013] NSWCCA 150 at [56]. The respondent pointed to statements in his Honour’s reasons that:
(a)the consequences of not meeting the standards can be catastrophic for consumers;
(b)the photographs that were tendered showed the business premises were in an appalling state with poor food practices;
(c)the maximum penalty for the offence; and
(d)a detailed summary of the facts for each offence.
The respondent accepted that his Honour did not overtly place each offence on a scale or spectrum of objective seriousness. However the respondent submitted that his Honour’s discussion of the offences moved beyond a bare recitation of the facts so as to satisfy the requirements for sentencing. The respondent recognises that it may have been more desirable for his Honour to articulate specifically where the offences fell on the scale of objective seriousness but the fact that he did not did not result in any error in the sentencing process.
The respondent submitted that the contraventions were serious breaches of the Food Standards Code and that they must have been some time in the making for the business to be in the state in which it was found. By the appellant’s own admission standards of cleanliness had been affected due to his personal issues and that there had been a cockroach problem for some years. The respondent therefore characterised the offences as “objectively serious, involving significant, and at times, prolonged, failings on behalf of the appellant in relation to reasonable and manageable requirements imposed on him as a food proprietor”.
Relevant sentencing principles: The respondent pointed out that the Food Act is part of a legislative scheme to enforce the requirements of a national uniform food code. The purpose is to protect public health by ensuring that food businesses are cleaned, thereby minimising the risk of patrons contracting illness from eating contaminated food. Therefore the protection of the public is the primary purpose to be addressed by any penalty: Hostile Takeovers at [6]. The maximum penalties indicate the seriousness with which the legislature treats contraventions of the Food Standards Code.
The respondent submitted that general deterrence had to be a significant factor in any penalty: Hudson v Wong at [27]. In the light of the objective gravity of the offences and the maximum penalty, and the need for general deterrence, the respondent submitted that it could not be said that the total sentence was so disproportionate to the criminality as to warrant appellate intervention.
Appellant’s subjective circumstances: The respondent referred to the specific reference made by his Honour to the personal circumstances of the appellant. Those personal circumstances were only one of the factors that the magistrate was required to take into account in reaching his ultimate conclusion.
Decision
The principles applicable to an appeal on the ground that a sentence is manifestly excessive are well established and include the following.
Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge. The relevant test is whether the sentence is unreasonable or plainly unjust. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason and justice. In approaching the question of whether a sentence is unreasonable or plainly unjust, the court does so within the context that there is no one single correct sentence, but rather the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principle. It is not enough that the appeal court would have imposed a different sentence.
Whether a sentence is manifestly excessive must be considered in the context of the legislated maximum penalty, the objective seriousness of the offence, the subjective circumstances of the offender, any relevant statutory provisions and the purposes of sentencing. Regard must be had to sentences imposed in comparable cases in order to determine the usual sentencing pattern but without setting any fixed boundaries or allowing sentencing practice to become a controlling factor.
In the present case the offences were in the low to mid-range of objective seriousness although any assessment of objective seriousness is made more difficult by the broad range of circumstances to which the Food Standards Code may apply.
They were not at the low end of objective seriousness because there were multiple factual matters which gave rise to each charge:
(a)The food storage charge (CC2017/40750) involved food stored in bowls on the floor uncovered, food stored uncovered on the floor in the freezer room, bags of flour stored directly on the floor and sugar being stored with a plastic bag over the top rather than a lid.
(b)The hygiene of food handlers charge (CC2017/40752) involved the basin being completely obstructed by empty boxes and containers, the failure to provide hand washing soap, the failure to ensure that the basin in the toilets used by food handlers was supplied with warm running water as the hot water tap was in fact missing and unable to provide hot water.
(c)The cleanliness charge (CC2017/40753) was particularised by reference to numerous photos of the accumulation of food waste on the floor, on shelves and equipment, on a radio, on a hot water heater and pipes, on the floor of the cool room, on a sink in the steam proving room, on a wok burner and on equipment used to transport cooked pie meat, on power cables and on cardboard on shelves.
(d)The maintenance charge (CC2017/40754) arose because the floor within the food preparation area was not in a good state of repair, unsealed timber and deteriorated particleboard was being used within the food preparation area, the silicon seal between the wash up basin on the wall had deteriorated, the floor and the floor drainage grate in the proving room were damaged with the proprietor using tape for repair, the drains within the premises had missing capping, the freezer room floor was covered with plastic film which was damaged and prevented the floor from being easily and effectively cleaned, cardboard was being used for various purposes including covering flour in the dough rolling machine and lining equipment in the coolroom, the coolroom condenser unit was dripping wastewater into a metal tray located on the top of a shelf, a piece of equipment made from a cardboard box and milk crate and a piece of particle board with wheels was being used to transport and store the pot that was used to cook the pie meat and was unable to be effectively cleaned.
(e)The animals and pests charge (CC2017/40755) concerned the cockroaches that were present at the time of inspection and the appellant admitted to the respondent that the last professional pest control treatment was two years previously.
The magistrate’s reasons are consistent with him having dealt with the offences on the basis that they were in the low to mid-range of objective seriousness. The greater penalties of $5000 were imposed in relation to the cleanliness charge and the animals and pests charge. There was a rational basis for the differentiation between these charges and the rest, the circumstances of both charges representing a more widespread or long term departure from the required standards.
There was no denial of procedural fairness arising from making findings as to the extent of risk. In a general sense, the relationship between a lack of hygiene, cleanliness, maintenance and pest control are matters which are notorious and hence matters of which judicial notice may be taken. However because of the specificity of the standards, no specific findings as to the level of risk were necessary. Rather, it was open for his Honour to proceed, as he did, by reference to the extent of the departure from the standards described in the Statement of Facts and which the appellant admitted.
The subjective circumstances of the appellant and his early guilty plea warranted a degree of leniency. However, in assessing a claim that the penalty is manifestly excessive, it is very important to have regard to the maximum penalty that is available for the offending conduct. Recognising that the obligations in the Food Standards Code as it applies to a natural person covers a wide range of circumstances, it must be recognised that the individual penalties in the present case were only a very small fraction of the maximum penalty and reflect a penalty at the low end of the available range. When each of the fines is considered individually, I do not consider that any one of them is manifestly excessive. The fact that they are in the top 25 per cent of the range of financial penalties does not indicate that they are excessive.
Nor is the totality of the fines imposed excessive when considered in aggregate. So far as the totality of the penalties is concerned, the modest financial circumstances of the appellant was only one consideration in the range of sentencing considerations. It must be recognised that the offence provisions enforcing compliance with the Food Standards Code are matters which require weight to be given to questions of general deterrence. If sufficient weight is not given to general deterrence and fines are not set at a level which imposes an economic deterrent in the real world, the important social goal of ensuring food safety would be undermined. Notwithstanding the burden imposed by the penalties in this case, and the personal circumstances of the appellant, it cannot be said that they were so out of step with the objective seriousness of the offending conduct that they were manifestly excessive.
Insofar as the appellant placed significance on the difference in maximum penalties applicable to offences by natural persons and corporations, it is important to note that the corporate penalties recognise that large and complex corporations may need very significant economic disincentives to change their behaviour or deter unlawful conduct. The difference in the maximum penalties is of less significance where the penalties are at the lower end of the range and where there is little practical difference arising from the corporate form of the offender. The offender in this case may easily have been a single director, single shareholder company controlled by the appellant. In those circumstances the different maximum penalty available in relation to corporations would not necessarily have warranted a significantly different penalty. It is certainly not the case, as some of the submissions to the magistrate suggested, that because a penalty unit for a natural person is one-fifth of that for a corporation that the end result of the sentencing exercise should be a penalty of one-fifth of that which would have been applied if the corporate form of the entity conducting the business was different but the circumstances otherwise the same.
Finally I observe that some of the appellant’s submissions were based upon the percentage of the appellant’s income that would be absorbed if the fines were to be paid for that income in the time permitted by the orders of the Court. I accept that the payment of the fines within the permitted time will be a very significant burden upon the appellant (assuming that he does not avail himself of the various mechanisms of payment or discharge of fines under ch 6A of the Crimes (Sentence Administration) Act 2005 (ACT)). Insofar as the burden upon the appellant was increased by the shortness of the period permitted for payment, that was a matter upon which the magistrate invited submissions but on which counsel for the appellant chose not to make any (see [18] above).
Conclusion
Each of the appellant’s grounds of appeal have been rejected. Therefore the appeal must be dismissed. Having regard to the terms of s 218 of the Magistrates Court Act, the appropriate orders are that the appeal be dismissed and the sentences confirmed.
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. The sentences are confirmed.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 19 December 2017 |
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