WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2014 WAIRC 00175

DELIVERED :           Thursday, 20 February 2014

FILE NO. :           CP 1 OF 2013

COMPLAINANT

AND

  McDonalds Australia Limited ACN 43 008 596 928

ACCUSED

Legislation : Children and Community Services Act 2004

  Sentencing Act 1995

Result : Conviction entered, penalty imposed

Prosecution   : Mr J. Lee (of Counsel)

Accused : Ms L. Nickels (of Counsel)

Sentencing Remarks

(These sentencing remarks were delivered extemporaneously on 20 February 2014 and have been edited from the transcript)

1         The Accused is charged with having contravened section 190(1) of the Children and Community Services Act 2004 (the Act).  In part the Act’s objective is to provide laws for the promotion of the wellbeing of children. That is found in section 6(a) of that Act.  The Act is also aimed at protecting children from exploitation in employment.  That objective is found in section 6(e) of the Act.

2         In determining matters of this type the Court must bear in mind that the primary requirement of the Act is foster the best interests of children. A child or children are to be protected from harm.

3         The nature of the charge before me suggests that the Accused has exploited a child in employment.  That is the gist of the allegation. 

4         Sections 190 and 191 of the Act prohibit a child working beyond 10:00pm.  In this matter, the child concerned finished work in one instance at 11:02pm, in another instance at 10:22pm, in the third instance at 12:10am on a school day that followed and in the final instance finished work at 10:23pm.

5         It is also accepted by the Accused, that the same child commenced work at about 3:30pm on Saturday, 4 August 2012, and finished work at 6:03am the following morning. That comprises about a 14½ hour shift.

6         It is accepted that the last of the matters is a most serious event.  The circumstance where the child worked until 12.10am on a school day is also seriously significant.  The other breaches, although significant, are clearly of lesser seriousness than those two particular instances.

7         The Accused says that notwithstanding its best efforts, the offence occurred. It is conceded that the Accused was the subject of prosecutions and convictions for similar offences in 2007.  That was soon after the promulgation of the Act.

8         The Accused has submitted that it has instigated significant measures in order to avoid breaches of the law in this regard.  Indeed store managers and their supervisors are alerted to risk of potential breaches.  The Accused says that notwithstanding its best endeavours to prevent breaches of the law, that a rogue manager in this instance has disregarded the systems in operation and has enabled this to occur.

9         The Accused says it is entirely speculative as to why it occurred.  I accept that it may be speculative. However the fact that it did occur against a background of warnings given to managers indicates a major breakdown in the system.

10      The reality is that although the Accused is remorseful about its conduct and accepts responsibility, it cannot divorce itself from the acts of its manager which gave rise to the offending behaviour.  Clearly the acts of the manager, despite whether the acts were deliberate, reckless or otherwise, constitutes a serious departure from what is expected from a prudent employer employing children.

11      In the end result the child was required or permitted to work outside normal hours and as I have indicated was in one instance was required to work a 14½ hour shift.  In my view, permitting or requiring a child to work a 14½ hour shift amounts to exploitation.

12      The Sentencing Act 1995 requires me to impose a penalty which is commensurate with the seriousness of the offence.  Subsection 6(2) provides that:

“The seriousness of the offence must be determined by taking into account –

(a)    the statutory penalty of the offence; and

(b)    the circumstances of the commission of the offence including the vulnerability of any victim of the offence; and

(c)    any aggravating factors; and

(d)    any mitigating factors.”

13      The starting point in determining the appropriate penalty is a consideration of the penalty available to the Court.  In this instance by virtue of application of section 40(5) of the Sentencing Act 1995 the maximum fine available is $120,000.00.  That penalty reflects the Parliament’s concern with this type of offending behaviour.

14      The Court must also have regard to the particular circumstances of the commission of the offence.  This offence is constituted by various events.  Three of the events are clearly less serious. The event of the child working beyond midnight is serious.  The event of the child has working a 14½ hour shift ending at 6:03am is the most serious incident.

15      A child working in those circumstances is vulnerable.  Working to the extent that the child’s schooling may be impacted, as occurred when the subject child worked beyond midnight, is of real concern and of significance to the child.  Furthermore the fact that the child worked very long hours in one shift is also real significance to the child and will have impacted the child’s welfare and health.

16      Children often feel that they need to work long hours for various reasons. It could be to accumulate money for themselves or there may be because of pressures put upon them by members of their family.  Alternatively they may believe that they need to work in order to keep their job. Given their lack of experience and maturity they will be placed in a vulnerable situation when confronted with a request or requirement that they work hours longer than permitted.  There is a real issue in this case relating to the vulnerability of the victim. The vulnerability of the victim is of relevance relating to the circumstances of the commission of the offence.

17      In determining the appropriate penalty I must have regard to aggravating factors.  I accept the submissions made by counsel for the Accused that the Accused’s knowledge of the law is of itself not an aggravating factor.  I also accept the other submissions that she made in relation to the lack of policies concerning the picking up of children finishing late. I accept that that is not an aggravating factor with respect to this offending.

18      What is aggravating however is the fact that the child in question was permitted to work or required to work for such lengthy periods beyond the normal time a child is permitted to work.  It would have been obvious, or should have been obvious, to the manager at the time, given the manager’s knowledge of the law and the manager’s knowledge of the child’s age that there was a serious breach of the law occurring by the very fact that the child continued to work after 10:00pm in each instance.

19      The Court must also take into account mitigating factors. I take into account that the Accused has not committed this type of offence for a significant period.  There has been a significant break in the offending.  I accept that since this offending last occurred there have been some significant changes in the Accused’s systems and that it takes its responsibilities seriously.  It has addressed the requirements of the legislation.

20      I accept that the Accused has, by its plea of guilty at an early opportunity, indicated its remorse in relation to the matter.  I accept that the Accused has cooperated with the prosecuting authority.  It has facilitated all the investigations that have been conducted in relation to this matter.   That is a matter of significance.  I accept also that the Accused has been and continues to be a good corporate citizen.  I accept that to some degree it engages in philanthropy which assists the community. 

21      In the end however, there needs to be a penalty imposed which reflects the seriousness of the offence.  The penalty must be commensurate with the seriousness of the offence. There is a need for a general and specific deterrent penalty to be imposed.  There needs to be a general deterrent penalty imposed to ensure that not only the Accused, but others who act in this way, know that there are serious consequences for such offending. 

22      In this case it is important that the Accused be given a specific deterrent penalty. It is not the first time that the Accused has come before this Court in relation to a matter of this type.  Having said that I recognise that the Accused cannot be penalised for its prior convictions. The penalty to be imposed cannot be based on prior convictions or alternatively by reason that the previously penalties imposed have not had the desired effect.

23      Despite that there is nevertheless the need to ensure by a specific deterrent penalty so that the Accused ensures that systems are in place so this type of offending behaviour will not be repeated. 

24      In the end having weighed the submissions of the Prosecution and the Accused I conclude that the offending, although serious, is one classed as being moderate in the range of offending. I further acknowledge that there has been a break in offending. In this instance the penalty should be of significance without being crushing.

25      I recognise that in this instance there was one child involved and that the offence occurred over a short period of time. In that regard a systemic failure is not demonstrated.  I accept that, although serious it is a one‑off situation.  Although a significant penalty needs to be imposed the penalty must be tempered by those particular factors.

26      I note also that unlike some of the previous matters that have come before me which involve multiple breaches and children this involves fewer breaches in offending.

27      Having made those observations, I am of the view that the starting point for the imposition of a penalty is that of $20,000.00.  However, I take into account the fact that the Accused has pleaded guilty at an early opportunity.  In submissions made to me by the counsel for the Accused, it was submitted that the Court should discount the appropriate penalty by 25% by virtue of the provisions of section 9AA of the Sentencing Act 1995.  It is true that section 9AA of the Sentencing Act 1995 requires this Court to take into account the benefit to the community, to witnesses and to all concerned of an early plea of guilty.  However the 25% rule only refers to sentences of imprisonment as provided for in section 9AA(4).  There is no specific percentage that this Court must take into account or should take into account in respect of the deduction made with respect to fine imposed after an early plea of guilty.

28      Notwithstanding that, I would have thought that a 25% discount is nevertheless an appropriate discount in this instance.  The fact that the Accused has pleaded guilty to the charge has clearly benefited the State, the victim and witnesses in this matter and as a consequence of that there should be an appropriate credit given to the Accused.

29      The end result is that the Accused is fined of $15,000.00 taking into account the 25% discount to which I have referred. The Accused is also required to pay the Court costs in this matter. The amount of costs sought is not contentious.  Costs are ordered in the sum of $304.70.

G. CICCHINI

INDUSTRIAL MAGISTRATE