Ministry of Primary Industries v Krishna [2020] NZDC 12469 (30 June 2020)

Last Updated: 15 February 2022

IN THE DISTRICT COURT AT CHRISTCHURCH I TE KŌTI-Ā-ROHE KI ŌTAUTAHI

CRI-2020-009-000060 CRI-2020-009-000175

[2020] NZDC 12469

MINISTRY OF PRIMARY INDUSTRIES

Prosecutor v

ANANDA KRISHNA SHOP ND SAVE LIMITED Defendants

Hearing:	30 June 2020
Appearances:	G Fletcher for the Prosecutor A Riches for the Defendants
Judgment:	30 June 2020

NOTES OF JUDGE B P CALLAGHAN ON SENTENCING

[1] The defendants are Mr Ananda Krishna and his company which he is a sole director of, Shop ND Save Limited, which is a retail outlet in Aldwins Road in Christchurch selling a level of food products including meat products. The prosecution relates to the storage of and preparation of the meat products and in particular his processing of goat meat, storing that and selling that without a proper registered risk management programme and included in that proper hygiene controls.

[2] The charges to which he and the company have pleaded guilty to are in order of seriousness:

MINISTRY OF PRIMARY INDUSTRIES v ANANDA KRISHNA [2020] NZDC 12469 [30 June 2020]

(a) Having in their possession for sale animal product namely goat meat which to his knowledge had not been processed in accordance with the Act namely the requirement to have a registered risk management programme or food control plan.

(b) Being required to operate under a risk management programme contravened or failed to comply with the provisions of the Act knowing that the contravention or failure may create directly or indirectly a risk to human or animal health.

(c) Failing to provide a reasonable excuse as to why animal product namely goat meat was traded without a risk management programme or food control plan.

[3] In respect of the first offence, the maximum penalties for the defendant personally are a term of imprisonment not exceeding two years, the fine not exceeding

$100,000, and in the case of the company a fine not exceeding $500,000. In respect of the second offence, a fine not exceeding $70,000 and/or a two year imprisonment penalty, for the company the same offence is a fine not exceeding $300,000. In respect of the third offence, personally a fine not exceeding $20,000 and for the company a fine not exceeding $100,000.

[4] It is common ground in this case that the defendant’s means are extremely limited and both Mr Fletcher for the prosecutor and Mr Riches for the defendant submit in lieu of the fine a term of community work would be appropriate to hold the defendant accountable for the offending. The company has limited means as well. This company’s business, which was suspended during the COVID-19 lockdown, is operating again for the sole purposes of it being sold, and in the wings, there is a proposal that it may be sold but it has not been as yet and when sold it will be probably via vendor finance.

[5] I understand the defendant took over the business from a daughter who was operating it. She went back overseas, and he has continued to operate it and he acknowledges now that he did not take any steps under the Animal Products Act 1999

to obtain and manage a risk management programme or food control plan. He was visited by health inspectors from the local authority at one point, I think in March, or before then, but he was endeavouring to obtain the appropriate registration but had not paid his fee and on a re-visit a fairly alarming state of affairs was noted.

[6] If I can just return to the company, I have had a plethora of material filed in an affidavit from the defendant as to financial circumstances of he, the company and also compliance measures. The Ashburton business he had has now been sold. The latest accounts for the company that operates the business subject to the offending shows only a surplus of revenue for the 2017-18 year of $659, the previous year being a deficit of $1. The assets and liabilities seem to cancel one another out, so it is not in a hearty state.

[7] So the offending, to summarise, is that between April 2018 and June 2018 the defendants prepared goat meat without a risk management programme in place, the goat meat was then managed in a way that was contrary to three food safety practices, the meat was improperly stored, the equipment was not properly cleaned or maintained, and time temperature control measures were absent. The defendants have acknowledged the meat was prepared and stored in this way and it was on-sold to members of the public and to restaurants posing a risk to human health. In the summary of facts, which was accepted, a food scientist summarised the issues of concern in these are itemised in paragraph 14 of the summary of facts.

[8] The Act sets out obligations on all primary processors of animal material and products which includes the requirement of a risk management plan. That must identify and then address any hazards and risk factors that are associated with the product and processing of animal material and products. That is to ensure the end product is fit for purpose and does not place humans, or indeed animals, at risk.

[9] The equipment used to process the goat meat was lamentably unclean and there were maggots shown in the equipment when the authorities looked at the site. Goat meat had been improperly stored with other foods in the freezer and it looked like that some of the frozen goat meat had been allowed to defrost totally or partially and refreeze again. The summary of facts itemises the offending.

[10] The defendant has acknowledged, to his credit, the shortcomings which one would have to say are worrying and substantial. He is otherwise of good character. In respect of the goat meat that was sold, there have been no reported cases of members of the public suffering from ill-health, that is acknowledged, and so the fact that there has not been any ongoing effect such as ill-health in the form of the various diseases or conditions such as food poisoning is really an absence of an aggravating factor. The defendant has taken steps to comply since the investigation. He has been compliant with the authorities since this came to light. He is in the process, as I mentioned, of selling his business. He is a first offender, clearly.

[11] To a large extent, the starting point for fines is academic because it is acknowledged the defendant really does not have the means to meet financial penalty, but I would have thought the starting point for the defendant may have been in the region of $20,000, not $5000 as the defence suggested, and indeed the company somewhere between $30,000 maybe to $50,000, and not $10,000 as the defence suggests.

[12] If I, for example, take the starting point for the defendant at $20,000 personally, that is Mr Krishna, the mitigating factors raised by counsel in submissions and I have covered some of them would allow for a reduction of, say, $2000 to $18,000. But the defendant’s means would mean that a substantial discount would be available somewhere in the region of $10,000 which would be, in effect, a fine of $7500 which is acknowledged he cannot meet, so I propose to on all charges to sentence the defendant personally to a sentence of 200 hours’ community work.

[13] If I were to adopt the same approach in respect of the company, making deductions for mitigating features of $3000 from a starting point of $30,000, and another allowance of probably in the region of $16,000 for lack of means, it would still leave a fine in the vicinity of $11,000. It is acknowledged by the prosecutor that the Court should avoid double penalties because the defendant and the company are effectively one and the same and I note Mr Riches’ point in his submissions that one has to look at the totality overall of the sentencing. I think the record for the company should be marked with moderate financial penalty just to show that the company has not got away scot-free, but I emphasise it is because of the need to avoid duplicit

penalisation and also taking into account that the defendant will effectively have to meet the financial penalty because of the company’s poor financial position, the modest financial penalty of $2250 made up of $1000 on the more serious charge ending 0012, $750 on the charge ending 0011, and $500 on the charge ending 0021.

[14] So, Mr Krishna is convicted, sentenced to 200 hours’ community work.

[15] The company is convicted and sentenced to fines as I have mentioned, together with Court costs.

ADDENDUM

[16] Mr Fletcher has mentioned what he set out in his submissions regarding an order for costs of $500. I think in the circumstances, given the impecunious nature, really, of both defendants, and given the penalties I have imposed, I will not make any order for costs.

B P Callaghan District Court Judge