WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2015 WAIRC 00023

DELIVERED : THURSDAY, 22 JANUARY 2015

FILE NO. : CP 1 OF 2014

COMPLAINANT

AND

MMG (WA) Pty Ltd trading as Jurien IGA ACN 115 257 139

ACCUSED

Legislation : Children and Community Services Act 2004

  Sentencing Act 1995

Result : Conviction entered, penalty imposed

Representation 

Prosecution : Mr J Lee (Counsel)

Accused : Mr G Paull (Counsel)

Sentencing Remarks

(These sentencing remarks were delivered extemporaneously on 14 January 2015 and have been edited from the transcript)

1         The Accused, MMG (WA) Pty Ltd trading as Jurien IGA is charged under section 190(1) of the Children and Community Services Act 2004, on the basis that between 14 August 2014 and 24 August 2014 at Jurien Bay, it employed a child under 15 years of age in a business, trade or occupation. 

2         The Accused has pleaded guilty to that offence at the earliest opportunity. 

3         The Accused concedes that at the material time the child in question was 11 years of age. It also admitted that the child worked the  following shifts:

• Thursday, 14 August 2014 between 4.00pm and 6.15pm;
• Saturday, 16 August 2014 between 9:00am and 3.30pm;
• Sunday, 17 August 2014 between 10:00am and 3.10pm;
• Saturday, 23 August 2014 between 10:00am and 6.30pm; and
• Sunday, 24 August 2014 between 10:00am and 6.30pm.

4         The child was remunerated in an appropriate way. There is no issue in respect of the remuneration of the child.  The child worked as a retail assistant at the store where her mother was and I presume, continues to be, the Assistant Manager.  At all times whilst the child worked within the store her movements were supervised by her mother.  Although it is clearly the case that there was not a family business situation occurring, the fact that the child was under the supervision of her mother is significant. 

5         The Complainant says that the gravamen of the offending behaviour lies in the fact that the child was very young and that it should have been apparent to the employer that the employment of such a young child was not appropriate. The employer should have informed itself of the fact that there were laws prohibiting the employment of such young children. 

6         The law exists to promote the welfare of children. Parliament has promoted an object of the legislation to be that children do not work in certain circumstances thereby enabling them to achieve an appropriate balance in their lives.  There is no need for me to repeat what I have said in previous cases concerning the objects of the Act.  I acknowledge that those matters to which the Prosecutor has referred concerning the objects of the legislation, as I have discussed in earlier cases, apply equally to this case.

7         In this matter I accept that the employment of the child occurred in circumstances where there was not a wilful defiance of the law.  I accept that the event occurred by way of the Accused’s ignorance of the law.  When the Accused became aware of the difficulties, it immediately ceased employing the child and cooperated fully with the investigating authority.  It clearly rectified the position immediately. 

8         Although I accept that there was some potential risk of harm to the child, as there always is in a workplace, the actual risk in this particular case was minimal.  Clearly, as things transpired, there was no actual exposure of the child to any particular difficulty. 

9         The child’s employment was of short duration.  That is a matter of significance.  It follows that there are substantial mitigating factors to be considered. The substantial mitigating factors loom large in this matter.  The Complainant itself accepts that the offending is at the lower end of the scale and I accept that that is an accurate reflection of what has occurred.   

10      The only aggravating factor in this case is that of the very young age of the child.  I have stated earlier that the child was very young.  Clearly, the employment of a very young child offends the objects of the Act which seek to create an environment in which children are not working at a very young age.

11      The Accused has submitted, in written submissions and again today, that the Court might consider dealing with the matter without the imposition of a penalty.  I accept that there is provision within the Sentencing Act 1995 for that to occur in appropriate cases. Section 46 of the Sentencing Act 1995 enables this Court not to impose a sentence if it considers the circumstances of the offence are trivial or technical. If that threshold consideration is met and having regard to other factors, the imposition of a sentence may not eventuate. The threshold issue to be determined in this instance is whether the offence can be characterised as trivial or technical.

12      The offence is not trivial given the young age of the child.  Nor is it technical.  The prerequisites that would enable me to release the Accused without sentence simply do not exist. 

13      It is important that in imposing a penalty, the Court not only have regard to the specific deterrent effect on the penalty. I accept that there is little to be gained by specific deterrence in this case. The Court must also have regard to the general deterrent aspect of sentencing.  In these sorts of cases it is important to send a message not only to the Accused but others within the industry.  The importance of the general deterrent aspect of the penalty should not be overlooked.

14      It is important that the Accused and others realise that laws prohibiting the employment of children are there for a reason and are to be strictly adhered to.

15      The very fact that the maximum penalty for a corporation is set at a $120,000.00 is reflective of the seriousness of the offence.  Section 6 of the Sentencing Act 1995 requires the Court to have regard to the seriousness of the offence. The seriousness of the offence is required to be measured against the maximum penalty provided in the legislation.  The higher the penalty, the more serious the offence.

16      Every case will turn on its own facts. Every circumstance will be different. The Court must always impose a penalty which is commensurate with the offending behaviour. 

17      Generally speaking, for a first offender, without substantial mitigating factors the starting point for a penalty would be in the region of 10% of the maximum.  However, in this particular instance, in my view, there are some very substantial mitigating factors to which I have already referred. Those factors significantly reduce the culpability of the Accused and reduce the penalty which would otherwise have been appropriate. 

18      Taking into account the very substantial mitigating factors, including the short duration of offending and the fact that the child was not exposed to harm, and that the child’s mother supervised her, I would have thought that the appropriate penalty in respect of this offence is that of $3,000.00.  In applying that penalty I recognise that the child worked for a period without a recreational break.

19      I am required by section 9AA of the Sentencing Act 1995 to discount the penalty for an early plea of guilty.  The Accused has entered a plea of guilty at the earliest possible opportunity and in that regard should be given the maximum discount that is provided, being 25%.  In light of that reduction made pursuant to section 9AA of the Sentencing Act 1995, the ultimate fine will be that of $2,250.00. 

20      In my view, that penalty is commensurate with the offending behaviour and is sufficient to send to the Accused and others the message that these offences, even committed in circumstances of inadvertence and without wilful defiance of the law, will nevertheless result in the imposition of a penalty. 

G. CICCHINI

INDUSTRIAL MAGISTRATE