NSW Food Authority v Samaras Food Pty Ltd [2021] NSWSC 237

Supreme Court New South Wales

Medium Neutral Citation: NSW Food Authority v Samaras Food Pty Ltd [2021] NSWSC 237 Hearing dates: 1 March 2021; 8 March 2021 Decision date: 17 March 2021 Jurisdiction: Common Law Before: Hoeben CJ at CL Decision: (1) The summonses in case numbers 2019/283682, 2019/283689 and 2019/283654 are dismissed. (2) An order that the sum of $5,368 be paid by the defendant in accordance with s 131 of the Act in relation to the costs incurred for the analysis of food samples seized from the defendant as part of the subject investigation. (3) The defendant pay the prosecutor's costs of these proceedings as agreed or assessed. (4) For the offence contrary to s 15(4) of the Food Act 2003 (NSW) being proceedings 2019/283678 in accordance with s 131 of the Act the defendant is fined $105,000. Catchwords: CRIMINAL LAW – prosecution under s 15(4) of the Food Act 2003 (NSW) – notification to restaurant of allergy to sesame seed – customer provided with food containing sesame seed – allergic reaction – death of customer – plea of guilty – sentence hearing – assessment of objective seriousness of offending – aggravating and mitigating features – strong subjective case – fine imposed – defendant to pay costs of prosecutor as agreed or assessed. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Food Act 2003 (NSW) Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Butler v Fife Coal Co Ltd [1912] AC 149 Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Irvine; DPP v Dynamic Industries Pty Ltd; DPP v Cini (2009) 25 VR 1; [2009] VSCA 239 R v Thomson; R v Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104; [2000] NSWCCA 309 Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213 Category: Principal judgment Parties: Ian Andrew Beer (in his capacity as Authorised Officer of the Food Authority of NSW) – Prosecutor Samaras Food Pty Ltd t/as Samaras Lebanese and Mediterranean Restaurant – Defendant Representation: Counsel: M Cahill/D Bhutani – Prosecutor J Glissan QC/WJ Wilcher – Defendant