Woolworths Limited v Spletter - Food Act prosecution appeal

On 1 December 2017, the advocacy chambers within Crown Law successfully defended an appeal to the District Court, under section 222 of the Justices Act 1886, on behalf of Queensland Health, relating to a penalty imposed on Woolworths Limited (“the company”).

The company pleaded guilty to 16 offences against section 39(4) of the Food Act 2006 (“the Act”). The charges related to the displaying for sale of 27 food items that were between one and 45 days past their use-by date. On 14 June 2017, Magistrate Hasted accepted the submissions made on behalf of Queensland Health in relation to penalty and fined the company $40,000, convictions were recorded and an order made that costs be awarded. Defence for Woolworths submitted that a fine in the order of $7,500 was appropriate.

On appeal, it was argued that the Magistrate erred in imposing the sentence sought by the prosecution as the level of culpability had been incorrectly categorised and it was submitted that no consideration had been given to the plea of guilty in the imposition of the penalty.

The appellant argued that their culpability was largely a function of human error on the part of the delicatessen manager. Application was made on appeal to adduce further evidence in relation to the medical condition of the manager.

On 20 February 2018, Rosengren DCJ delivered her judgment, refusing the application to adduce further evidence on the basis submitted by the respondent. Her Honour agreed with the finding of the Magistrate that responsibility for the breaches did not solely rest with the delicatessen manager, and noted to suggest otherwise would be overly simplistic.

In relation to the appellant’s contentions that it was difficult to discern what, if any, real benefit was given to it for its plea of guilty, Rosengren DCJ accepted the respondent’s submissions that how the plea is taken into account does not need to be subject of express mathematical explanation, and the fact that the fine imposed was that which was suggested by Queensland Health does not lend support that the discount was illusory.

The appeal was also brought on the basis that the fine imposed was excessive and disproportionate to penalties previously imposed on the company and other competitors as $25,000 was the highest penalty previously imposed which was submitted by the appellant to have been an ‘aberrant instance’ and should not be relied on for comparability. The company itself had been convicted on three previous occasions for substantially similar offences. Her Honour confirmed that there was legitimate reason to impose a penalty of such a nature to deter the company, and other corporate offenders, from committing further like offences.

The appeal was dismissed and the company was ordered to pay costs of the appeal fixed at $1,800. A copy of the decision can be found on the Supreme Court Library Queensland website.