Citation: NSW Health v MJ Market Pty Limited; NSW Health v Suad Jodeh [2025] NSWLC 4
Court: NSW Local Court
Date: 15 April 2025
Judge: P Stewart LCM
Background
The defendants are a small grocery company operating a supermarket in Kogarah and the company's sole director. In October 2023, an environmental health officer inspected the shop and found e-cigarettes containing nicotine and illicit tobacco. The Health Department sent a formal warning letter, in bold print, advising that a further inspection would follow and that prosecution was possible if unlawful products were found again.
Despite that warning, a second inspection in April 2024 uncovered a concealed hidden room behind a shelving unit in the storeroom. The room had no visible door handles and was secured by remotely operated electronic locks. Inside were 1,272 e-cigarette vape devices containing nicotine and large quantities of tobacco products, including chop-chop loose leaf tobacco and hundreds of packets and cartons of cigarettes, all packaged without the prescribed health warnings.
The company was charged with two counts of supplying a schedule 4 substance (nicotine) without authority under the Poisons and Therapeutic Goods Act 1966. The director was charged with four counts of selling tobacco products in packages not marked with health warnings under the Public Health (Tobacco) Act 2008. Both defendants initially pleaded not guilty before entering guilty pleas in March 2025.
Legal Issues
- What discount, if any, applied for the delayed guilty pleas?
- How should the court assess objective seriousness, including whether post-offence legislative increases in maximum penalties are relevant?
- Whether the offending constituted planned or organised criminal activity so as to aggravate the sentence.
- How the principle of totality applied where multiple counts arose from a single occasion of possession.
- What weight to give to prior good character, prospects of rehabilitation, and the director's minimisation of the offending.
- Whether professional costs, moiety orders (orders directing a portion of fines to the Health Secretary), and forfeiture orders were appropriate.
Decision
The court applied a 15% utilitarian discount for the guilty pleas, consistent with the principles in R v Borkowski, reflecting the pleas were entered late, after an initial not-guilty plea and well into the proceedings. The court assessed objective seriousness by reference to the maximum penalties at the time of offending, while also noting that the substantial increase in maximum penalties since the offences were committed informed the court's understanding of contemporary legislative and community attitudes toward this type of conduct.
The court found the offending was aggravated by the prior warning letter, which the director had received as sole director, and which was disregarded. The construction of a concealed room with electronic locking indicated deliberate and organised concealment. The court accepted that the multiple charges arose from a single occasion of possession, and applied the totality principle to ensure the aggregate of fines was proportionate rather than oppressive.
The court reduced the weight given to prior good character because the director's awareness of the illegality, established through the earlier warning, diminished that mitigating factor. The court also noted some minimisation of the offending in the director's submissions but remained cautiously optimistic about rehabilitation prospects. Because the director makes all decisions for the company, the rehabilitation finding extended to the company as well.
Each count attracted a fine of $1,650, representing the maximum penalty under the applicable provisions at the time of the offences. The court applied the totality principle in arriving at figures it considered just in all the circumstances.
Orders Made
MJ Market Pty Limited (Sequences 1 and 2, supplying schedule 4 substance without authority):
- Convicted on both counts and fined $1,650 on each count
- Professional costs ordered in the sum of $5,500 (inclusive of GST) under s 215 of the Criminal Procedure Act 1986
- Moiety order: 50% of the fine to be paid to the Secretary of Health under s 122 of the Fines Act 1996
- Forfeiture of seized tobacco ordered under s 41 of the Public Health (Tobacco) Act 2008
Suad Jodeh (Sequences 3, 4, 5 and 6, selling tobacco not marked with health warnings):
- Convicted on all four counts and fined $1,650 on each count
- Professional costs ordered in the sum of $5,500 (inclusive of GST) under s 215 of the Criminal Procedure Act 1986
- Moiety order: 50% of the fine to be paid to the Secretary of Health under s 122 of the Fines Act 1996
- Forfeiture of seized tobacco ordered under s 41 of the Public Health (Tobacco) Act 2008
Key Takeaways
- A delayed guilty plea, entered after an initial not-guilty plea and shortly before a hearing date, attracted only a 15% utilitarian discount rather than the larger discounts available for early pleas.
- Significant post-offence increases in maximum penalties, while not directly applicable to sentencing for earlier conduct, can inform a sentencing court's assessment of objective seriousness by reflecting updated community and legislative standards, following the reasoning in EPA v Cadia Holdings.
- Where multiple charges arise from a single occasion of possession, the principle of totality requires the court to consider whether the aggregate penalty is proportionate, and the court noted the structure of multiple counts in this matter was somewhat artificial given the single occasion of offending.
- Prior good character carries diminished mitigating weight where, as here, the defendant had received an explicit written warning about the illegality of the very conduct subsequently engaged in.
- A director's knowledge of, and responsibility for, company conduct is treated as knowledge of the company itself for sentencing purposes, and rehabilitation findings made in respect of a sole director will flow through to the company.
Legislation and Cases Referenced
Legislation:
- Poisons and Therapeutic Goods Act 1966 s 10(3)
- Public Health (Tobacco) Act 2008 ss 7(2), 41
- Public Health (Tobacco) Amendment Bill (No 2) 2024
- Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 22
- Criminal Procedure Act 1986 s 215
- Fines Act 1996 s 122
Cases:
- Cahyadi v R [2007] NSWCCA 1
- Elias v The Queen (2013) 248 CLR 483
- Environment Protection Authority v Cadia Holdings Pty Ltd [2025] NSWLEC 27
- Muldrock v The Queen (2011) 244 CLR 120
- Park v The Queen [2021] HCA 37
- R v Borkowski [2009] NSWCCA 102
- R v Merrin [2007] NSWCCA 255