Butterworth v O'Connor [2015] QDC 37

DISTRICT COURT OF QUEENSLAND CITATION: Butterworth v O’Connor [2015] QDC 37 PARTIES: SIMON BUTTERWORTH (BRISBANE CITY COUNCIL) (appellant) v ELIZABETH O’CONNOR (respondent) FILE NO/S: 3366/14 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Brisbane DELIVERED ON: 23 February 2015 DELIVERED AT: Brisbane HEARING DATE: 20 February 2015 JUDGE: Smith DCJA ORDER: 1. The appeal is allowed 2. The sentence imposed below is varied to the extent that the fine is set aside and in lieu thereof the respondent is fined the sum of $12,000.00. 3. No conviction is recorded. 4. The fine is to be paid within 60 days, and if not paid within that time I direct the Registrar to refer the non- payment to the State Penalties and Enforcement Registry. 5. No order as to costs. CATCHWORDS: CRIMINAL LAW – APPEAL – whether errors below – whether penalty manifestly inadequate Food Act 2006 (Q) s 39 Food Standards Code 3.2.2 Justices Act 1886 (Q) ss 222, 223, 225 Penalties and Sentences Act 1992 (Q) s 48 AB v The Queen (1999) 198 CLR 111 -- 1 of 11 -- 2 House v The King (1936) 55 CLR 499 Lanham v Brake (1983) 34 SASR 578 Sgroi v R (1989) 40 A Crim R 197 Teelow v Commissioner of Police [2009] 2 Qd R 489 COUNSEL: Mr K. Cartledge solicitor for the Appellant No appearance for the Respondent SOLICITORS: Brisbane City Legal Practice for the Appellant No appearance for the Respondent Introduction [1] This is an appeal by the appellant pursuant to s222 of the Justices Act 1886 (Q) (“the JA”). Section 222(2)(c) of the JA provides that where a defendant pleads guilty, appeals will be allowed on the sole ground that the fine, penalty, forfeiture, or punishment imposed by the originating court was excessive or inadequate. [2] Section 225(1) of the JA provides that: “On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.” [3] In Teelow v Commissioner of Police [2009] 2 Qd R 489 Muir JA held at [4]: “It is a normal attribute of an appeal by way of rehearing that ‘the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error ...’” [4] Section 223(1) of the JA provides that the appeal is to be by way of rehearing on the evidence given in the proceeding before the justices. [5] Finally in terms of legal principle, in House v The King (1936) 55 CLR 499 it was held at 504: “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure -- 2 of 11 -- 3 properly to exercise the discretion which the law reposes in the court of first instance.” Background [6] The appellant was charged with the following four charges: “CHARGE 1 On 22 April 2013, ELIZABETH O’CONNOR, being the holder of a Food Business Licence … for a food business trading as O’CONNOR’S TRADITIONAL FISH & CHIPS at premises situated at Shop 3B, 229 Lutwyche Road, Windsor … being within the Magistrates Court District constituted by the Central Division of the Brisbane District appointed under and for the purpose of the Justices Act 1886 as amended … failed to comply with a requirement imposed by a provision of the Food Standards Code in relation to the conduct of the food business on the premises or to food intended for sale or food for sale, namely, Standard 3.2.2 clause 19(1) of the Food Standards Code by failing to, maintain premises to a standard of cleanliness where there was no accumulation of garbage, except in garbage containers, recycled matter, except in containers, food waste, dirt, grease or other visible matter, contrary to section 39(1) of the Food Act 2006. … CHARGE 2 On 22 April 2013, ELIZABETH O’CONNOR, being the holder of a Food Business Licence … for a food business trading as O’CONNOR’S TRADITIONAL FISH & CHIPS at premises situated at Shop 3B, 229 Lutwyche Road, Windsor … being within the Magistrates Court District constituted by the Central Division of the Brisbane District appointed under and for the purpose of the Justices Act 1886 as amended … failed to comply with a requirement imposed by a provision of the Food Standards Code in relation to the conduct of the food business on the premises or to food intended for sale or food for sale, namely, Standard 3.2.2 clause 19(2) of the Food Standards Code by failing to, maintain 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 food waste, dirt, grease or other visible matter, contrary to section 39(1) of the Food Act 2006. … CHARGE 3 On 22 April 2013, ELIZABETH O’CONNOR, being the holder of a Food Business Licence … for a food business trading as O’CONNOR’S TRADITIONAL FISH & CHIPS at premises -- 3 of 11 -- 4 situated at Shop 3B, 229 Lutwyche Road, Windsor … being within the Magistrates Court District constituted by the Central Division of the Brisbane District appointed under and for the purpose of the Justices Act 1886 as amended … failed to comply with a requirement imposed by a provision of the Food Standards Code in relation to the conduct of the food business on the premises or to food intended for sale or food for sale, namely, Standard 3.2.2 clause 24(1)(b) of the Food Standards Code by failing to, take all practicable measures to prevent pests entering the food premises, contrary to section 39(1) of the Food Act 2006. … CHARGE 4 On 22 April 2013, ELIZABETH O’CONNOR, being the holder of a Food Business Licence … for a food business trading as O’CONNOR’S TRADITIONAL FISH & CHIPS at premises situated at Shop 3B, 229 Lutwyche Road, Windsor … being within the Magistrates Court District constituted by the Central Division of the Brisbane District appointed under and for the purpose of the Justices Act 1886 as amended … failed to comply with a requirement imposed by a provision of the Food Standards Code in relation to the conduct of the food business on the premises or to food intended for sale or food for sale, namely, Standard 3.2.2 clause 24(1)(c) of the Food Standards Code by failing to, take all practicable measures to eradicate and prevent the harbourage of pests on the food premises and those parts of vehicles that are used to transport food, contrary to section 39(1) of the Food Act 2006.” [7] The matter was first mentioned on 19 March 2014. There was no appearance by the respondent. The magistrate on that occasion convicted and fined her $5,000 and ordered this to be paid within 60 days. [8] The matter was reopened on 7 July 2014 and listed for hearing on 6 August 2014. [9] The prosecutor tendered to the magistrate on that occasion a statement of facts. The facts noted that the charges arose from investigations into alleged breaches of the Food Act 2006 (Q) on 22 April 2013 during an inspection of the premises. The charges related to breaches of two clauses in Standard 3.2.2 of the Food Standards Code, namely, clause 19 “Cleanliness” and clause 24 “Animals and pests”. [10] It was noted that on 12 August 2011, a Council environmental health officer conducted an audit and saw that there was non-compliance. On 14 November 2011 a further audit was conducted, and there was further non-compliance. On 13 December 2011 there was a further inspection and all of the requirements from the previous inspection had been complied with, but a food safety supervisor had not been nominated. [11] On 5 June 2012 a further audit occurred and there was minor non-compliance, and major non-compliance in relation to cleanliness. On 5 September 2012 a further audit occurred; it was compliant. On 19 November 2012 a further audit occurred; -- 4 of 11 -- 5 there was minor non-compliance with some issues, and major non-compliance with others. As a result, an improvement notice and a penalty infringement notice in the amount of $550 was issued. [12] On 13 December 2012 a further inspection occurred and all non-compliance had been rectified. [13] On 22 April 2013 a further inspection was conducted by the Council environmental health officers. A number of photographs were taken during this inspection and the following breaches of the Code were noted: “Charge 1 particulars  There was an accumulation of food waste on the floor behind the deep fryer within the kitchen;  There was an accumulation of grease on the section of the wall surface located on the right hand side of the cooking equipment located adjacent to the deep fryer within the kitchen;  There was an accumulation of grease on the section of the wall surface located to the right hand side of the exhaust system on the right hand side of the kitchen;  There was an accumulation of grease on the section of the wall surface located to the right hand side of the exhaust system on the right hand side of the kitchen. Charge 2 particulars  There was an accumulation of other visible matter, namely mould on the ceiling surface of the cold room located on the left hand side of the entry opening into the kitchen;  There was an accumulation of food waste on the external surfaces of the deep fryer located under the exhaust system located on the right hand side wall of the kitchen;  There was an accumulation of grease on the external surfaces of the deep fryer located under the exhaust system located on the right hand side wall of the kitchen;  There was an accumulation of grease on the splashback located behind the deep fryer located under the exhaust system located on the right hand side wall of the kitchen;  There was an accumulation of grease on the food storage container located on the right hand side of the deep fryer within the kitchen;  There was accumulation of other visible material on the disused oven located on the right hand side wall towards the rear wall within the kitchen. -- 5 of 11 -- 6 Charge 3 particulars  It failed to seal the gaps and crevices between the ceiling panels and between the wall and ceiling junctions located in the right hand side corner ceiling/wall junction within the kitchen, thereby providing a potential entry point for pests into the premises;  It failed to seal the gap between the wall and ceiling junctions and between the ceiling panels located on the right hand side of the dishwasher (junction of rear and left hand side wall) within the kitchen, thereby providing a potential entry point for pests into the premises;  It failed to seal the gap around the orange conduit leading into the wall above the electrical switchboard located on the left hand side of the entry opening into the kitchen, thereby providing a potential entry point for pests into the premises. Charge 4 particulars  It failed to seal the gap between the wall and ceiling junction located on the right hand side of the exhaust system located on the right hand side of the kitchen, thereby providing a potential entry point for pests into the premises;  It failed to seal the hole in the section of the wall located on the right hand side wall of the kitchen area, thereby providing a potential entry point for pests into the premises;  It failed to seal the gap on the underside of the preparation sink bench located on the rear wall of the kitchen, thereby providing a potential harbourage point for pests on the premises;  It failed to discard the disused oven located on the right hand side wall, towards the rear wall of the kitchen, thereby providing a potential harbourage point for pests on the premises;  It failed to seal the gap in the steel panelling around the cold room located on the left hand side of the entry opening into the kitchen, thereby providing harbourage point for pests on the premises;  It failed to discard the disused cold display cabinet located in the front servery area, thereby providing a potential harbourage point for pests on the premises;  It failed to discard the disused under-bench refrigeration unit located in the middle section of the premises, thereby providing a potential harbourage point for pests on the premises;  There was a live cockroach on top of the oven hot plate located on the right hand side wall of the kitchen; -- 6 of 11 -- 7  There were live fruit/drain flies on a food product container stored inside the broken refrigerated display cabinet located on the left hand side of the front servery area;  There were live cockroaches on the pipe-work located above and behind the dishwasher located on the left hand side wall within the kitchen;  There was a live cockroach on the clean plates intended for use located on the shelving located on the rear wall of the kitchen;  There was a live cockroach on the inside of the door of the disused under-bench refrigeration unit located in the middle of the kitchen;  There was a live cockroach on the wall surface behind the plates stored on the shelving located on the rear wall of the kitchen;  There were live cockroaches on the shelving near the plates and the sandwich toaster located on the rear wall of the kitchen;  There were cockroach markings on the underside of the preparation sink bench located on the rear wall of the kitchen;  There were live cockroaches in the door seal of the disused under-bench refrigeration unit located in the middle section of the kitchen;  There were live cockroaches inside the fire blanket located on the rear wall of the kitchen between the hand wash basin and the adjacent sink;  There were live cockroaches on the wall under the preparation bench;  There were live cockroaches on the floor of the food premises; and  There was a live cockroach on top of the oil recycling machine located near the wash-up sink at the rear wall of the kitchen.” [14] A show cause notice was issued as a result. On 24 April 2013 there was a further inspection, and a suspension notice was stopped as the officer formed the opinion that the immediate risk to health had been addressed. Representations were received from the respondent that demonstrated she wished to comply with the Food Act. The respondent was interviewed on 10 October 2013, she made admissions and cooperated with the Council officers. [15] The Council sought a penalty of a monetary fine, did not seek that a conviction be recorded, and sought an order for costs. In addition to the schedule of facts, a schedule of photographs was tendered. A number of comparable decisions were also relied upon. [16] Ultimately the magistrate on 6 August 2014 imposed a fine of $6,500 on all four offences with no conviction recorded. -- 7 of 11 -- 8 Grounds of appeal [17] The appellant appeals on the following grounds: (a) The magistrate erred by failing to sentence the respondent on the facts and offences detailed in the complaint. (b) The magistrate erred by having undue regard to the penalty that was previously imposed for these offences prior to the reopening application. (c) The magistrate erred by having undue regard for the respondent’s circumstances, and insufficient regard for the need for general specific deterrence. (d) The sentence imposed is manifestly inadequate in all of the circumstances. Appeal ground 1 – the magistrate erred by failing to sentence the respondent on the facts and offences detailed in the complaint [18] The appellant submits that the learned magistrate unduly relied on photographs tendered, rather than on the particulars of the offences and in the statement of fact; secondly, the learned magistrate “improperly focused” on the fact that there was offences under two clauses of the Food Standards Code rather than four distinct offences. [19] With respect to the first proposition, the prosecutor tendered the statement of facts (see T1-8.40 together with the photos). The prosecutor specifically noted that the learned magistrate had read through the facts (T1-9.15). The learned magistrate in her sentencing remarks was told of all of the photographs (reasons p 2). In the circumstances, I do not consider the appellant has made out any ground concerning insufficient regard to the schedule of facts. [20] On the other hand, the learned magistrate noted the appellant was charged under two provisions of the Code (reasons p 2.5). The learned magistrate at reasons p 4.30 stated: “Accordingly, taking into account the two Code matters that she’s charged under as opposed to four …” In my respectful opinion, this is an error. The reality is there were four charges in this case with numerous particulars, and in the circumstances the learned magistrate erred in this regard. As a consequence, I propose to resentence the respondent.1 Appeal ground 2 – the magistrate erred by having undue regard to the penalty that was previously imposed for these offences prior to the reopening application [21] It is submitted by the appellant that the learned magistrate was required to hear the matter de novo. Having regard to the exchanges relied upon and the sentencing remarks, I do not consider there was undue regard placed by the magistrate on the previous penalty and dismiss this ground of appeal. 1 AB v The Queen (1999) 198 CLR 111 at [130] per Hayne J. -- 8 of 11 -- 9 Appeal ground 3 – the magistrate erred by having undue regard for the respondent’s circumstances and insufficient regard for the need for general specific deterrence [22] The appellant submits that the magistrate wrongly relied on the contention that the respondent said she would go bankrupt and that the “ordeal destroyed her”. I have read through the transcript, the material and the submissions. I consider the magistrate was entitled to take into account the financial circumstances and effect on the respondent (see s 48 of the Penalties and Sentences Act 1992 (Q)). I do not find there is any error in this regard. [23] Further, the appellant submits the learned magistrate failed to place sufficient weight on deterrence. I disagree with this. Indeed, the learned magistrate referred to general deterrence in the reasons (reasons p 4.15). Appeal ground 4 - the sentence imposed is manifestly inadequate in all of the circumstances [24] The court was concerned with four breaches of the Code. The maximum penalty for each of the four offences against s 39(1) of the Food Act 2006 (Q) was $55,000. The effect of this was that fines up to a total amount of $220,000 could have been imposed. [25] The purposes of the Food Act are set out in ss 8 and 9. [26] Section 8 provides “8 Main purposes The main purposes of this Act are as follows— (a) to ensure food for sale is safe and suitable for human consumption; (b) to prevent misleading conduct relating to the sale of food; (c) to apply the food standards code.” [27] Section 9 provides “9 How main purposes are primarily achieved The main purposes are to be achieved primarily by— (a) providing for the licensing of particular food businesses; and (b) requiring particular licensees to have an accredited food safety program; and (c) providing for the accreditation and auditing of food safety programs; and (d) providing for the monitoring and enforcement of compliance with this Act and the food standards code.” [28] The appellant has relied on a number of comparable decisions. [29] In Higgin v Nadipalli Pty Ltd t/as Michel’s Patisserie (Magistrates Court, 12 April 2013), a fine of $22,000 with no conviction recorded was imposed. In that case the respondent had been charged with 11 offences against s 39(1) of the Food Act. There was also one offence against s 87(1) of failing to ensure a food safety supervisor for the food business was reasonably available. The charges related to -- 9 of 11 -- 10 breaches of clauses 19, 21 and 24 of Standard 3.2.2. There was no previous infringement notice in Nadipalli, but on the other hand, the offences occurred over two separate days and there were 11 of them. [30] In Tasker v Cheng (Magistrates Court, 8 February 2013), a $22,000 fine with no conviction recorded was imposed. In that case there were 13 different offences against s 39(1). There were numerous breaches of Standard 3.2.2. In that particular case the defendant owed $20,000 to the landlord for lease of the food premises and spent substantial funds to improve the premises. There was a significant financial impact upon him, and he actually closed the premises. [31] In McCahon v Macland Enterprises Pty Ltd t/as Monte Carlo Cafe (Magistrates Court, 7 June 2013), a $20,000 fine with no conviction recorded was imposed on the individual. In that case the defendant had been charged with eight offences against s 39(1) of the Food Act. There were breaches of clauses 6, 19, 21 and 24 of Standard 3.2.2. There were similar allegations involved in that case. There was cooperation and participation in a formal record of interview. [32] In McCahon v Dao (Magistrates Court, 16 November 2011) the defendant pleaded guilty to 11 charges against s39(1). There were far more particulars alleged. No conviction was recorded, and the defendant was fined $28,000. [33] In McCahon v A and C Business Pty Ltd (Magistrates Court, 17 September 2010) the defendant was charged with 29 breaches against s39(1). No conviction was recorded and the defendant was fined $29,000. [34] In Brough v David Peters Albert Street Pty Ltd (Magistrates Court, 4 May 2011) there were 13 charges against s39(1). The fine on the company was $25,000 with no conviction recorded. [35] In McCahon v Grand Luxor Pty Ltd and Ho (Magistrates Court, 12 August 2011) there were 33 charges against the company against s39(1), and two charges against the natural defendant. The company was fined $25,000, and the individual $10,000 with no conviction recorded. [36] In Brough v Higgins and Air (Magistrates Court, 14 March 2011) each of the defendants faced 29 charges against s39(1). Each was fined $12,500 with no convictions recorded. [37] In McCahon v Kim t/as Li Ming Korean Restaurant (Magistrates Court, 28 February 2011) the defendant faced 32 charges against s39(1). He was fined $25,000 with no conviction recorded. [38] Finally in McCahon v The Fox Hotel Pty Ltd (Magistrates Court, 7 July 2010) the defendant faced 3 charges against s39(1) and one charge against s49. The fine was $22,000 with no conviction recorded. [39] I note that in at least two of the cases there was no appearance by the defendant. [40] Having regard to these comparable decisions, the maximum penalties which could have been imposed, the respondent’s financial position, her co-operation, and the previous infringement notice, in my respectful opinion the penalty imposed on the respondent was manifestly inadequate. General deterrence is relevant in a case such as this. The Food Act makes it clear that the purpose of the law is to ensure that the -- 10 of 11 -- 11 suppliers of food do not put health of members of the public at risk. There is good reason for the Act and the code. [41] By analogy general deterrence is a very important sentencing consideration for Quarantine Act offences where people bring prohibited foods into the country, which pose a risk to Australian food and a risk to health (see e.g. Lanham v Brake (1983) 34 SASR 578 per Cox J at p584). [42] Particularly relevant matters to any sentence under this Act would be the number of charges; the particulars of the breach; the actual or potential risk to health; previous convictions or notices; co-operation; financial circumstances (including whether the defendant is a significant trading corporation or an individual); the principle of totality2 and whether there is a plea of guilty. [43] It seems to me, bearing in mind the four charges against her, the particulars of the breaches, and her co-operation, a fine in the range of $10,000 to $16,000 was appropriate. [44] Bearing in mind the principles of sentencing contained in the Penalties and Sentences Act 1992 (Q), principles of deterrence, and the respondent’s financial circumstances in my respectful opinion, a fine of $12,000 with no conviction should be imposed. [45] In the circumstances, my orders are as follows: 1. Appeal allowed. 2. The sentence below is varied to the extent that the fine imposed is set aside and in lieu thereof the respondent is fined $12,000.00. 3. No conviction is recorded. 4. The fine is to be paid within 60 days, and if not paid within that time I direct the Registrar to refer the non-payment to the State Penalties and Enforcement Registry. 5. No order as to costs. 2 This principle applies to fines see Sgroi v R (1989) 40 A Crim R 197 -- 11 of 11 --