New South Wales District Court CITATION: MURRAY v R; AMMCEM PTY LTD v R [2009] NSWDC 437 HEARING DATE(S): 9 June 2009 EX TEMPORE JUDGMENT DATE : 9 June 2009 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: The appeals are dismissed and the orders of the magistrate are confirmed. Because there are two appeals being heard together, that order will be that Ms Murray pay the sum of $750 and Ammcen Pty Ltd also pay the sum of $750, being the prosecutor's costs of today's appeal CATCHWORDS: CRIMINAL LAW - Judgment - Conviction appeal - Child care centre safety - Breach of Children's Services Regulations LEGISLATION CITED: Children and Young Persons (Care & Protection) Act 1998 PARTIES: Andrea Murray v R Ammcem Pty Ltd v r FILE NUMBER(S): 2009/12/0514; 2009/12/0516 SOLICITORS: Director of Public Prosecutions - Respondent In Person - The Appellant JUDGMENT 1 HIS HONOUR: I have before me two appeals relating to the conduct of two child care centres. The reason there are two appeals is that the prosecutor brought proceedings against Andrea Murray and Ammcen Pty Limited in relation to the two child care centres. Ms Murray was the sole director of Ammcem and so to that extent there is some duplication of the matters before me. The appeals have been heard together. 2 Both Ms Murray and the company faced prosecution under the Children and Young Persons (Care and Protection) Act and the Children's Services Regulations. They arose out of breaches of the Act and Regulations at two child care centres conducted by the two appellants. One of the child care centres was at St Ives and the other at Turramurra. The charges arise out of inspections carried out by staff in February 2008 where a number of breaches of the relevant regulations were discovered. They related generally to the safety of the children attending the day care centres. Threats to the children's safety arose from such things as there being an insufficient area for a safe fall zone. And also less clearly related to the safety, was the failure to have qualified staff on premises when there were children under the age of two present at the centre. The other threats to the safety to the children related to the cleanliness of the premises, and the plumbing at the premises. It is not necessary for me to go through each of the offences, beyond saying that the regulations were clearly designed to promote the welfare of the children attending the centre and breaches of the regulations were serious. At one stage the Magistrate expressed the preliminary view that some of the offences were of a technical nature, but after receiving submissions on the matter he withdrew from that point of view. I have to agree that none of the offences here could probably be described as technical. Each appellant was fined and costs were ordered. 3 There is a significant need to deter others who may be tempted to operate child care facilities in the way that these two premises were operated. Parents place a great deal of trust in people such as Ms Murray and her company. They expect that licensed premises such as those operated by the appellant comply with the various regulations. Parents are entitled to expect, for example, that if their child fell from some play equipment they would not fall onto a brick path. Parents are entitled to expect that dead flies and other insects are not present in the premises, and that appropriately qualified staff are present as well. It should not be for the parents to have to interrogate each staff member as to his or her qualifications. And so where child care centres are not operated in accordance with the Regulations there has in effect been a breach of the trust that the parents are entitled to place in the operators. 4 It is not also a matter that involves one or two breaches of the Regulations. Many offences were committed. Of course the appellant, Ms Murray, has excuses as to why it was, for example that the gate wasn't fixed, or the premises were not clean, or the staff were not qualified. But frankly if child care centres cannot be operated in accordance with the Regulations, then it would be better that they did not operate at all. Ms Murray says that she was simply trying to provide a service and provide employment. I suspect that Ms Murray's main motivation of course was profit. She was running a business. And part of the costs of running that business involved complying with the Legislation and Regulations. 5 There are many child care centres throughout New South Wales and DOCS has precious few resources. Not only do parents place their trust in the child care centres, but also the community in general places their trust in the operators of child care centres. Policing individual child care centres is an expensive and time consuming task, taking resources away from other areas where DOCS operate. This is yet another reason why where breaches are detected significant punishment should follow. I take into account that the appellant has pleaded guilty. However as was pointed out, this was on the very day the matters were listed for hearing. I have also taken into account that the appellant has no prior criminal record. However, this would be almost inevitable for a prosecution of this nature given the need for the person running the centre to be licensed. 6 Ms Murray relies on the circumstance that she has lost her house, and is now on the dole. The Magistrate took her financial hardship into account. It is to be noted that the maximum penalty, for each offence, is a fine of $22,000. The Magistrate's decision to impose significantly smaller fines demonstrates the level to which he took into account Ms Murray's particular circumstances. 7 For those reasons the appeals are dismissed, and the orders of the Magistrate are confirmed. 8 HIS HONOUR: Because there are two appeals being heard together, that order will be that Ms Murray pay the sum of $750 and Ammcen Pty Limited also pay the sum of $750, being the prosecutor's costs of today's appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.