NSW Food Authority v Inside Out Nutritious Goods Pty Ltd

Catchwords: CRIME — Sentence — where guilty plea made at first available opportunity — where offences inadvertent but gave rise to serious risk to human health — objective seriousness of offending below mid-range for all but one offence — objective seriousness mid-range for one offence — application of totality principle — corrective advertising ordered

Legislation Cited: Australian New Zealand Food Standards Code, Standard 1.2.6(2)(b) and 3.2.2(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(g)
Fines Act 1996 (NSW), s 4
Food Act 2001 (ACT), s 5, s 27
Food Act 2003 (NSW), ss 4, 15, 21, 118, 132, Part 9
Food Standards Code
Protection of the Environmental Operations Act 1997 (NSW)
Water Management Act 2000 (NSW)

Cases Cited: Downey v Acting District Court Judge Boulton (No. 5) [2010] NSWCA 240 at
Duffy v R [2009] NSWCCA 304
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178
FL v R [2020] NSWCCA 114
GAS v The Queen (2004) 217 CLR 198
Georges River Council v RNA Building Solutions Pty Ltd; Georges River Council v El Saadi [2024] NSWLEC 139
Harris v Harrison [2014] NSWCCA 84; (2014) 201 LGERA 277
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hostile Takeovers Pty Ltd v Hudson [2016] ACTSC 185
Khoury v R [2011] NSWCCA 118
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59
Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
New South Wales Food Authority (Authorised Officer Christine Tumney) v Stephen Casimatis [2005] NSWCIMC 169
NSW Food Authority v Samaras Food Pty Ltd [2021] NSWSC 237
R v Dodd (1991) 57 A Crim R 349
R v Todd [1982] 2 NSWLR 517
R v O’Neill [1979] 2 NSWLR 582
Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
Strback v The Queen [2020] HCA 10
Zreika v R [2012] NSWCCA 44

Texts Cited: Thomas, Principles of Sentencing, 2nd ed. (1979), pp 56-57

Category: Principal judgment

Parties: NSW Food Authority (Prosecutors)
Inside Out Nutritious Goods Pty Ltd (Defendants)

Representation: Counsel:
P English (Prosecutors)
N Furlan (Defendants)
Solicitors:
Nathan Sloan, Lindsay Taylor Lawyers (Prosecutors)
Dean Pinto, Wooton Kearney (Defendants)

File Number(s): 2024/393309; 2024/00396564; 2024/00398868; 2024/00398918; 2024/00398957; 2024/00398966; 2024/00398982; 2024/00399114; 2024/00399123; 2024/00399317

Publication restriction: None

JUDGMENT

1. PAYNE JA: Inside Out Nutritious Goods Pty Ltd (‘Inside Out’) pleaded guilty at the first available opportunity to 10 offences contrary to s 21(3) of the Food Act 2003 (NSW) (the ‘Food Act’) brought by the regulator, the NSW Food Authority. On 30 September 2025, I heard submissions on sentence.

2. The offending conduct occurred between 24 October 2022 and 12 January 2023. Incorrect storage instructions were printed on labels of almond milk and oat milk products sold by Inside Out to Woolworths Ltd for retail sale. The products the subject of the offences were required to have the following storage instructions on their label: “The products must be kept refrigerated at all times (below 5 degrees Celsius)”. Instead, the products were incorrectly labelled with the following: “Once opened, keep refrigerated and consume within 5 days”.

Facts

3. In what follows I have drawn on a Statement of Agreed Facts filed on 11 August 2025 and have set out the most pertinent of those facts. I have separately made my own findings about those relatively few primary facts which are disputed.

Agreed facts

4. The offences related to the sale of several new milk alternative product offerings released on 24 October 2022:

5. JS x Inside Out Unsweetened Almond Milk Collagen + Calcium + Prebiotics;

6. JS Health x Inside Out Unsweetened Oat Milk Collagen + Calcium + Prebiotics; and

7. JS Health x Inside Out Barista Oat Milk Collagen + Calcium + Prebiotics.

8. Between 24 October 2022 and 12 January 2023, Inside Out sold the following ten batches of these products to Woolworths stores in New South Wales, with the sale of each batch comprising an offence:

1. On 24 October 2022, the Defendant sold 4,800 1-litre bottles of the Unsweetened Almond Milk, 4,800 1-litre bottles of the Unsweetened Oat Milk and 4,800 1-litre bottles of the Barista [Oat] Milk to Woolworths – Arndell Park (NSW) (Sequence 1)

2. On 4 November 2022, the Defendant sold 1,920 bottles of the Unsweetened Almond Milk to Woolworths Wyong (NSW) (Sequence 2).

3. On 7 November 2022, the Defendant sold 960 1-ltire bottles of the Unsweetened Almond Milk, 960 1-litre bottles of the Unsweetened Oat Milk and 960 1-litre bottles of the Barista [Oat] Milk to Woolworths – Arndell Park (NSW) (Sequence 3).

4. On 21 November 2022, the Defendant sold 6,720 1-litre bottles of the Unsweetened Almond Milk and 3,774 1-litre bottles of the Barista Oat Milk to Woolworths – Arndell Park (NSW) (Sequence 4).

5. On 22 November 2022, the Defendant sold 960 1-ltire bottles of the Unsweetened Almond Milk, 960 1-litre bottles of the Unsweetened Oat Milk and 960 1-litre bottles of the Barista [Oat] Milk to Woolworths – Wyong (NSW) (Sequence 5).

6. On 23 November 2022, the Defendant sold 4,320 1-litre bottles of the Unsweetened Almond Milk and 960 1-litre bottles of the Barista Oat Milk to Woolworths – Arndell Park (NSW) (Sequence 6).

7. On 24 November 2022, the Defendant sold 960 1-ltire bottles of the Unsweetened Almond Milk, 960 1-litre bottles of the Unsweetened Oat Milk and 960 1-litre bottles of the Barista [Oat] Milk to Woolworths – Wyong (NSW) (Sequence 7).

8. On 6 December 2022, the Defendant sold 960 1-litre bottles of the Unsweetened Oat Milk and 960 1-litre bottles of the Barista [Oat] Milk to Woolworths – Arndell Park (NSW) (Sequence 8).

9. On 11 January 2023, the Defendant sold 1,920 1-litre bottles of the Unsweetened Almond Milk to Woolworths – Wyong (NSW) (Sequence 9).

10. On 12 January 2023, the Defendant sold 1,920 1-litre bottles of the Barista Oat Milk to Woolworths – Arndell Park (NSW) (Sequence 10).

6. I find that the heat pasteurisation process that these products underwent was insufficient to inactivate the bacteria that can cause botulism. Accordingly, the conditions in accordance with which the products should have been stored were:

The Products must be kept refrigerated at all times (below 5 degrees Celsius)

7. Inside Out recognised that cold storage was critical for the safe storage of these products as recorded in a document entitled “CCPI Refrigerated Storage”.

8. The storage requirements were necessary because each of the milk alternative product offerings were potentially hazardous foods which required temperature control for food safety. Standard 3.2.2(1) of the Australian New Zealand Food Standards Code defines a “potentially hazardous food” as ‘food that has to be kept at certain temperatures to minimise the growth of any pathogenic microorganisms that may be present or to prevent the formation of toxins in the food”.

9. Contrary to the storage requirements, the products had been labelled with the following instructions:

Once opened, keep refrigerated and consume within 5 days

10. The existing certification and documentation that Inside Out had prepared with respect to the offending products, having been certified compliant with the relevant food production safety standards, identified that, other than for a maximum period of two hours, the products must be stored at a temperature below 5 degrees Celsius.

11. The error in the label which was actually used was a result of human error. The incorrect content of the label was originally prepared for use on another, shelf-stable Ultra High Temperature (UHT) product offering, and was then inadvertently copied across to the new product packaging. The error was not detected at the proof-reading stage by any officer of Inside Out. The packaging was put into production, the products were manufactured, and sent to the various Woolworths supermarkets for sale in the shipments set out at [5].

12. On 18 January 2023, internal emails between Inside Out’s Head of Sales and other staff indicated the mislabelling had been discovered. Later that day, the company Quality Assurance Coordinator conducted a risk assessment of the identified products and concluded the instructions as misprinted “poses (sic) a temperature abuse”.

13. On 15 February 2023, Inside Out prepared a Food Recall Information Sheet which described the reason for recall as, “biotoxin (histamine, marine toxins, aflatoxic) contamination Potential botulism contamination”. Later that day the information sheet was amended and was thus distributed with the reasons for recall identified as “non-compliant labelling – Missing storage instructions. Product is not labelled with directions to “keep refrigerated” Incorrect storage and handling instructions on packaging. Failure to keep product refrigerated may lead to microbial growth and biotoxin contamination.”

14. On 16 February 2023, Inside Out recalled all its Unsweetened Almond Milk product in NSW with the incorrect storage information labelled with a use-by date of 1 March 2023.

15. On 17 February 2023, Inside Out recalled the rest of the products with incorrect storage labelling; the Unsweetened Oat Milk, Barista Oat Milk, and the remaining Unsweetened Almond Milk.

16. Of the 198,550 incorrectly labelled bottles sold, a total of 177,881 could not be accounted for. The charges before the Court relate to 46,494 incorrectly labelled bottles.

17. Subsequent to the discovery of the labelling error, Inside Out engaged in reorganisation and staffing changes, as well as process changes to attempt to ensure that an error of the kind that led to the commission of the present offences could not occur again. The corrective actions taken by Inside Out included modifying its Quality Manual and its Hazard Analysis Critical Control Points production flow diagram. These were adjudged adequate by the Food Authority. I find that Inside Out’s actions demonstrate a commitment by the company that an error of this kind never be committed again.

Findings on disputed factual issues

18. The principal area of factual dispute was in relation to the causative link between the offending and a serious injury to a Mr Mace. The test for causation in the criminal law is a common sense one, designed for the purpose of attributing legal responsibility: Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27. Where the fact is adverse to the interests of the accused, that fact should be proved to the criminal standard, ‘beyond reasonable doubt’. This principle was more recently reaffirmed in Strback v The Queen [2020] HCA 10 at [32]. Whether the mislabelling was the cause of Mr Mace’s botulism poisoning could only be construed as adverse to Inside Out, being a risk crystallised and actual serious harm, an aggravating factor per s 21A(2)(g) of the Crimes (Sentencing Procedure*)* Act 1999 (NSW) (the Sentencing Procedure Act).

19. The facts I find are these. On 26 November 2022, Ms Karyn McGrigor purchased 10x 1 litre bottles of the Unsweetened Almond Milk from the Woolworths online store. Once the bottles arrived on 27 November 2022, Ms McGrigor stored the bottles in the cupboard in the kitchen. Ms McGrigor’s partner, Mr Mace, later consumed some of the almond milk and became seriously ill.

20. On 25 January 2023, Ms McGrigor gave two bottles (bottles one and two) of the Unsweetened Almond Milk to an infectious disease physician and clinical microbiologist at NSW Health. One bottle tested positive for Clostridium botulinum (commonly known as botulism).

21. Mr Mace was hospitalised for 188 days from 8 January 2023 to 14 July 2023. Mr Mace spent 147 days in the Intensive Care Ward. He received a formal diagnosis of botulism on 14 February 2023.

22. I am satisfied beyond reasonable doubt that Mr Mace became ill from drinking Unsweetened Almond Milk supplied by Inside Out. I reject Inside Out’s submission that the evidence does not establish beyond reasonable doubt that Mr Mace drank for the bottle of Unsweetened Almond Milk that was proven to be contaminated by the botulism toxin.

23. To establish causation, in the application of the common sense test, designed for the purpose of attributing legal responsibility, however, some link needs be shown between the contravention (here affixing the incorrect label), and the harm suffered.

24. I am not satisfied beyond reasonable doubt that the prosecution has established that Ms McGregor or Mr Mace read or acted upon the label affixed by Inside Out before storing the Unsweetened Almond Milk in a cupboard rather than the refrigerator before consuming the product. That is, I am not satisfied that the relevant breach by Inside Out, being the inclusion of incorrect storage instructions on printed labels, played any part in causing the injury and illness to Mr Mace.

25. Ms McGrigor’s evidence that she saw the label, read it, and acted upon it before storing the Unsweetened Almond Milk in a cupboard is unconvincing and does not sustain the necessary finding that she did so beyond reasonable doubt. Ms McGrigor did not mention reading or acting upon the information contained on the label in her first statement, taken on 23 April 2023, a few months after the relevant consumption, despite having a number of opportunities to review that statement. Most significantly, even in a later statement prepared on 20 July 2025 where Ms Ms McGrigor references the instructions, she says about reading or acting upon the information contained on the label “I can’t say definitively, and I may be wrong”. Whilst Ms McGrigor’s candour is to be applauded, her evidence as a whole leaves me with a doubt about whether she has any recollection at all of reading or acting upon the instructions on the Woolworths website or on the label of one of the bottles when she unpacked her order. There is no evidence that Mr Mace ever saw the instructions on the label, although he candidly admits that he thought that all almond milk should be stored in a cupboard.

26. The next area of factual dispute is an alleged admission made by a director of Inside Out. A plea of guilty admits those matters which are the essence of the charge: Strbak v The Queen (2020) 267 CLR 494 at [32]. It does not admit the non-essential ingredients an offence: R v O’Neill [1979] 2 NSWLR 582 at 588; Duffy v R [2009] NSWCCA 304 at [21]. In GAS v The Queen (2004) 217 CLR 198 at [30], five members of the High Court said of fact finding following a plea of guilty:

In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge’s capacity to find potentially relevant facts in a given case.

27. Whilst I accept the evidence of Mr Tuong, the Chief Executive Officer of Inside Out, and regard the apology offered by Inside Out as sincere, I do not regard the alleged admission made on behalf of the company as overcoming this deficiency in the prosecution’s evidence. Shortly put, Mr Tuong’s evidence is capable of demonstrating an admission that ingestion of Inside Out’s product caused the injury and illness to Mr Mace. I have made that finding independently of the admission that Inside Out’s product was the cause of Mr Mace’s serious illness. I am not satisfied, however, that Mr Tuong’s evidence establishes causation in the sense of proving that there was demonstrated to be any link between the offending conduct and the injury or illness suffered by Mr Mace.

28. The other area of factual dispute related to the knowledge of the prosecutor prior to the offences. On 20 October 2022, prior to the launch of the incorrectly labelled products, an officer of the Department of Primary Industries, Ms Wong, carried out an unannounced inspection of Inside Out's manufacturing plant.

29. I accept the Food Authority’s submission that there is no evidence that Ms Wong reviewed the offending labels prior to them being affixed. The likelihood, based on Mr Tuong’s evidence and the written report prepared by Ms Wong, is that she had left Inside Out’s premises on the morning of the inspection prior to the labels being loaded in the labelling machine.

The statutory regime

30. Section 21(3) of the Food Act provides an offence of strict liability:

21 Compliance with Food Standards Code

[…]

(3) A person must not sell or advertise for sale any food that is packaged or labelled in a manner that contravenes a provision of the Food Standards Code.

31. The offences were contrary to s 21(3) of the Food Act because Inside Out sold ‘food’ that was labelled in a matter that contravened a provision of the Food Standards Code.

32. The Australian New Zealand Food Standards Code governs food safety in Australia. The specific provision of the Food Standards Code that was contravened was Standard 1.2.6(2)(b):

For the labelling provisions, storage conditions and directions for use of a food are:

(a) …

(b) if the food must be used or stored in accordance with certain directions for health or safety reasons – those directions.

33. ‘Food’ is defined in the Food Act s 5(1)(a) as*:*

(1) In this Act, food includes—

(a) any substance or thing of a kind used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared),

34. The NSW Food Authority is constituted under Part 9 of the Food Act as a statutory body representing the Crown and is a defined as an ‘enforcement agency’ by s 4 of the Food Act. Proceedings for an offence under the Food Act or associated regulations can be dealt with before the Local Court or before the Supreme Court: s 118 of the Food Act.

35. The maximum penalty for each contravention of s 21(3) when prosecuted in the Supreme Court is (in the case of a corporation) 2,500 penalty units. The maximum penalty for each offence is thus $275,000: s 17 of the Sentencing Procedure Act*.*

Consideration

36. Section 3A of the Sentencing Procedure Act sets out the purposes for which a court may impose a sentence on an offender:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and to the community.

37. Section 21A of the Sentencing Procedure Act requires that the following matters be taken into account in imposing sentence:

21A Aggravating, mitigating and other factors in sentencing

(1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters—

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c) any other objective or subjective factor that affects the relative seriousness of the offence.

38. The matters referred to in the subsections are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. It was common ground that the sentencing principes of totality and parity, as explained by the High Court, should also be applied.

39. With the exception of the serious harm allegedly caused to Mr Mace (which allegation I have rejected), the Food Authority did not submit that any aggravating factors referred to in s 21A(2) were to be taken into account in determining the appropriate sentence. I address below each of the mitigating factors referred to in s 21A(3) that are relevant and known to the Court.

Objective seriousness

40. Assessing the objective seriousness of an offence, requires the principle of proportionality to be observed, ensuring the offender is “adequately punished” in accordance with s 3A Sentencing Procedure Act: FL v R [2020] NSWCCA 114 at [58]. The imposition of a proportionate sentence is a purpose of the process of instinctive synthesis: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]; Zreika v R [2012] NSWCCA 44 at [46].

41. As regards objective seriousness, at least to a limited extent, I have derived assistance from a consideration of the factors addressed in other regulatory offences, such as environmental offences: see, for example Georges River Council v RNA Building Solutions Pty Ltd; Georges River Council v El Saadi [2024] NSWLEC 139 at [35], which addressed each of the following factors:

(a) The nature of the offending

(b) The maximum penalty for the offence;

(c) The state of mind of the offender in committing the offence;

(d) Any harm caused or likely to be caused by the commission of the offence;

(e) The foreseeability of harm;

(f) The practical measures available to prevent or control that harm;

(g) The control over the causes of the offence;

(h) Whether the offence was committed for financial gain

Nature of offending

42. The offending conduct involved the incorrect labelling of 10 batches of almond and oat milk products comprising 46,494 bottles. The heat pasteurisation process that these products underwent was insufficient to inactivate the bacteria that can cause botulism. Accordingly, the conditions in accordance with which the products should have been stored were:

The Products must be kept refrigerated at all times (below 5 degrees Celsius)

43. As stated at [7], Inside Out recognised that cold storage was critical for the safe storage of these products.

44. I have earlier rejected the submission of the prosecutor, however, that the relevant breach by Inside Out, being the inclusion of incorrect storage instructions on printed labels, caused the injury and illness to Mr Mace.

Maximum penalty

45. As I have said the maximum penalty for each offence is $275,000.

State of mind of the offender

46. I accept the joint submission that the offending was inadvertent and attributable to an honest oversight.

Any harm caused or likely to be caused by the commission of the offence

47. The potential harm caused by the incorrect labelling instructions was significant. Whilst the evidence about the very low incidence of botulism poisoning indicates that the risk of that harm coming to pass may have been relatively low, the consequences to human health if those risks eventuated could be catastrophic. I find, however, that no actual harm was proven to be caused by any of the 10 offences. I have, however, taken the heightened risk of harm into account in relation to sequence 2, for reasons I will explain. In circumstances where I have concluded that ingestion of Inside Out’s products caused serious illness to Mr Mace, and despite my finding that the injury was not caused by the offending conduct, the injury suffered highlights the serious health consequences possible by reason of the offending conduct.

The foreseeability of harm

48. Inside Out was aware that the temperature control was necessary for the storage of each of these products.

49. I find, on the basis of the evidence from a Clinical Microbiologist and Infectious Disease Physician, that non-infant (food) botulism is a rare diagnosis in Australia and internationally, and that there had only been three reported cases in Australia between 1992 and 2019, none of which involved milk products.

50. This evidence about the very low incidence of botulism poisoning persuades me that the risk of that harm coming to pass was very low. I find, however the consequences to human health if those risks eventuated could be catastrophic.

51. I find that it was foreseeable that if a consumer stored the products in accordance with the incorrect label and subsequently consumed a non- refrigerated almond or oat milk product there could be a significant risk to human health.

Practical measures available to prevent or control harm

52. It is one sense correct that the offending could have been prevented had the error been detected in the process of signing off proofs of the labels. In circumstances where it was common ground that the offending was inadvertent and attributable to an honest oversight, however, I do not find that submission to be very persuasive.

53. I accept the Food Authority’s submission that the objective seriousness of the offending is affected, at least to a limited degree, by the delay in effecting the product recall when the labelling error was detected.

Control over the causes of the offence

54. Inside Out had control over the causes of the offence. The error made in drafting and approving the incorrect label was internal to Inside Out.

Whether the offence was committed for financial gain

55. It was agreed that the offence was not committed for financial gain.

Conclusion about objective seriousness

56. I accept the joint submission of the parties that the objective seriousness for 9 of the 10 offences lay slightly below the mid-range.

57. As to the remaining offence that encompassed the sale of the product to Ms McGrigor and Mr Mace, the Food Authority submitted that the incorrect labelling exposed the public to an objectively serious potential health risk and, with respect to the batch from which Ms McGrigor purchased, that risk materialised in the serious illness of Mr Mace. It was submitted by the Food Authority that the objective gravity of sequence 2 lies above the mid-range. I do not agree. As I have said, I do not accept that causation was established for the offence involving the product which caused Mr Mace’s botulism poisoning.

58. I do not agree, however, that the offence involving Mr Mace is thus of the same objective seriousness as the remaining offences. The objective seriousness for sequence 2 (the offence involving Mr Mace and Ms McGrigor) is at or about the mid-range of objective seriousness. The risk to human health was highlighted by the adverse health effects suffered by Mr Mace. I accept the Food Authority’s submission that it was reasonably foreseeable that harm could occur as a result of mislabelling these products. Sequence 2 is a manifestation of that risk, despite the fact that, in the result, I am not satisfied that causation was proven. Sequence 2 provides a cogent demonstration of the fact that cold storage was critical for the safety of these products, as identified by the company’s own cold storage directions regarding these products. The fact that botulism was demonstrated to have emerged in this batch of products makes sequence 2 more objectively serious than the other offences.

59. In fixing the objective seriousness of all offences, I also take into account the delay in effecting the recall of the products between discovery of the labelling error on 18 January 2023, and the staged recall in mid-February 2023.

General and specific deterrence

60. I accept the submission of the Food Authority that the sentence in this case should facilitate the purpose of s 3A(b) of the Sentencing Procedure Act in that it should properly serve as a general deterrent to other companies with similar obligations.

61. Given the early pleas of guilty and the significant steps towards rehabilitation and prevention taken by Inside Out I do not think that specific deterrence has a significant role to play in this case. I do not understand the Food Authority to submit to the contrary.

Utilitarian value of plea

62. I accept the joint submission that Inside Out entered a plea at the first available opportunity and is entitled to a discount on sentence of 25%.

Prior convictions

63. The defendant has no prior convictions.

Prospects of rehabilitation

64. I find that the defendant has good prospects of rehabilitation and is unlikely to re-offend.

Remorse and contrition

65. I find that the defendant, through its director Mr Tuong, has demonstrated that it is contrite and remorseful for the offending.

Prior good character

66. I find that the defendant is of prior good character. I reject the submission that there was any failure to provide sufficient supporting documentation to prove prior good character.

Totality/proportionality

67. The principle of totality requires a sentencing court, when imposing a sentence for more than one offence, to review the aggregate sentence to determine whether it is just and appropriate: “It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”: Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70, quoting Thomas, Principles of Sentencing, 2nd ed. (1979), pp 56-57. It is uncontroversial to observe that where an offender has already served a sentence for offences that are closely related in time and character to the offences before the court, regard must be had to the principle of totality: Mill, citing R v Todd [1982] 2 NSWLR 517 at 519 with approval.

68. This is a case where the principle of totality looms large. I find that all of the offences emanated from what was a closely connected series of inadvertent errors of process and as such, the criminal conduct was very much overlapping in nature. It was essentially happenstance that there were 10 separate deliveries to Woolworths that contained the offending products. Whilst I do not accept that Inside Out’s conduct may be characterised as a “single act of criminality”, a very high degree of concurrency is appropriate in fixing an overall penalty.

Comparable cases/parity

69. The parties were in agreement that there are few reported decisions related to the sentencing of a defendant for an offence against s 21(3) of the Food Act. No case was submitted to be comparable.

70. In Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ explained in the context of federal sentencing that, at [48]-[49]:

Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.

The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Pt IB of the Crimes Act. When it is said that the search is for "reasonable consistency", what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form. That is why this Court held in Wong that guidelines that the New South Wales Court of Criminal Appeal had determined should be used in sentencing those knowingly concerned in the importation of narcotics were inconsistent with s 16A of the Crimes Act. Those guidelines had made the weight of the narcotic the chief factor determining the sentence to be imposed, thus distracting attention from the several considerations set out in the non-exhaustive list of matters prescribed by s 16A(2) as matters "the court must take into account" in fixing a sentence, if those matters are relevant and known to the Court.

71. Although addressed to the subject matter of federal sentencing, these general principles regarding consistency in sentencing apply to the present case. Having regard to those important caveats, I will address the relevant cases cited by the parties as potentially comparable or at least capable of providing some assistance.

72. In New South Wales Food Authority (Authorised Officer Christine Tumney) v Stephen Casimatis [2005] NSWCIMC 169 the prosecution relied on five contraventions of ss 21(2) and 21(3) of the Food Act*.* The facts were that whiskey and vodka products offered for retail sale contained “abnormal substances”. It was not contended that the products gave rise to risks to public health. A fine of $1,500 was indicated in each case (being a total fine of $5,625.00 after application of 25% discount). In sentencing, however, the Chief Industrial Magistrate’s Court applied an additional 40% discount in recognition of the “considerable overlap” between the five matters before the Court. This was an application of the principle of totality, which as I have described above, must aim to ensure that the total fine imposed is not excessive. In that case it was $3,375.00, apportioned as a fine of $675 for each offence. Although this case contains some useful statements of principle, I do not regard it of any real assistance in fixing an appropriate penalty here.

73. In NSW Food Authority v Fernbrew Pty Ltd t/a D’Aquino Bond Wholesalers [2007] NSWSC 531 The offender was fined $15,000 (maximum penalty 2,500 penalty units) for one breach of s 21(2) of the Food Act involving three bottles (although 294 bottles were seized) The offence involved selling bottles of alcohol which were mislabelled about alcohol content. I do not regard this case as providing any real assistance in fixing an appropriate total penalty here.

74. In NSW Food Authority v Samaras Food Pty Ltd [2021] NSWSC 237, a consumer died after consuming sesame seeds in a dish even when they had made it clear to the seller they were allergic to sesame seeds. In that case the Court imposed a fine of $105,000 for the offence where there was a maximum penalty of $412,500. Section 15(4) of the Food Act makes it an offence to falsely describe food, specifically:

[…]

(4) A person must not sell food that the person ought reasonably to know is falsely described and is likely to cause physical harm to a consumer of the food who relies on the description.

75. This case is obviously far more serious than the present, given the much higher maximum penalty and the clear causative link between the offending and the death of a consumer.

76. A case that assumed some prominence in submissions was Hostile Takeovers Pty Ltd v Hudson [2016] ACTSC 185. In that case Murrell CJ in the ACT Supreme Court dealt with an appeal from a Magistrates Court decision in relation to five separate offences under s 27(1) of the Food Act 2001 (ACT). At the time the maximum penalty for a corporation was $275,000. Broadly speaking, the offences were to do with the cleanliness of the premises. As her Honour explained, at least one purpose of the ACT Food Act in enforcing the national Uniform Food Code was to ensure cleanliness and minimise the risk to patrons of contracting illness from eating contaminated food. The facts were that the condition of the cooking and preparation areas of the relevant premises were, as described, “woeful” and the state of the premises were found to be “truly awful”. Murrell CJ dismissed the appeal in relation to sequence 2, where a fine of $20,000 was imposed, “because the offence captures the most serious aspects of the offenders conduct and where that conduct demonstrated a breach of the Food Code that was systemic and posed a serious risk to human health”. The remaining penalties were set aside as manifestly excessive and a total fine of $36,000 was imposed. I regard the overall criminality in the present case as much more serious than that the subject of Hostile Takeovers*.*

77. As noted at the outset, no case cited is truly comparable and the guidance which can be gleaned from those referred to was limited.

Corrective advertising

78. Section 132(b) of the Food Act gives the Court power to make orders that require the offender, at their own expense, to publish advertisements in terms that are specified in such orders at a time and in a place also specified.

79. In Harris v Harrison [2014] NSWCCA 84; (2014) 201 LGERA 277, at [100] and [118], Simpson J addressed the power to order corrective publications pursuant to the Water Management Act 2000 (NSW):

… in considering the appropriate penalty, it was legitimate to take into account the associated costs order and publication order. Although she had no way of knowing at what amount the costs would be assessed, Pepper J recognised that it would be substantial. This court was told by senior counsel for the respondent that the costs it would seek to recover were $75,000. Whether such an amount would be ordered after assessment is not known, but there was never any doubt that they would be substantial.

[…]

The third flaw in the argument is that a publication order, while not a penalty, is intended to be remedial and even educative, rather than punitive, and to have a deterrent effect. It is also undoubtedly an order made by a court … on convicting a person of an offence. While a publication order is not (or may not be) a penalty, in that respect it is not to be distinguished from other of the orders mentioned in the catalogue of orders that follow the opening words of the definition.

80. In Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 at [84], Duggan J in a case involving s 250(1)(a) of the Protection of the Environmental Operations Act 1997 (NSW), listed some general factors to be considered in determining whether a publication order should be made which I have found useful.

81. The proposed form of notice sought here was annexed to the Prosecutor’s written submissions:

Inside Out Nutritious Goods Pty Ltd convicted and fined by the NSW Supreme Court for selling food that was labelled in a manner that contravened a provision of the Food Standards Code.

Between 24 October 2022 and 12 January 2023, Inside Out Nutritious Goods Pty Ltd sold 46,494 incorrectly labelled 1 litre bottles of its Products (JS x Inside Out Unsweetened Almond Milk Collagen + Calcium + Prebiotics; JS Health x Inside Out Unsweetened Oat Milk Collagen + Calcium + Prebiotics; and JS Health x Inside Out Barista Oat Milk Collagen + Calcium + Prebiotics) to Woolworths Limited.

The Products were labelled in a manner that contravened a provision of the Food Standards Code. The conditions in accordance with which the Products had to be stored were as follows:

The Products must be kept refrigerated at all times (below 5 degrees Celsius).

Contrary to this requirement, the Products had been labelled as follows:

Once opened, keep refrigerated and consume within 5 days.

In February 2023, Inside Out Nutritious Goods Pty Ltd carried out a national recall of the Products.

On xx, the NSW Supreme Court sentenced Inside Out Nutritious Goods Pty Ltd for 10 offences against s 21(3) of the Food Act 2003 for selling food that was labelled in a manner that contravened a provision of the Food Standards Code, and ordered it to:

1. Pay fines totalling $xx;

2. Pay the prosecutor’s legal costs;

3. Place a notice in various State and industry publications advising of the commission of the offences and pay for the placement of those notices.

82. I am satisfied that publication of a notice similar to this in the relevant specialist journal sought by the Food Authority, the Australian Institute of Food Science and Technology’s Food Australia Journal, is appropriate. By this I mean that an advertisement in a specialty journal would be corrective or protective rather than punitive.

83. By reason of the time taken to bring this case to Court and the comparatively complex scientific explanation for the refrigeration requirement here, I am not satisfied that ordering an advertisement in the Daily Telegraph, as submitted by the Food Authority, is either necessary or desirable. I am not satisfied that an order requiring advertising in the Daily Telegraph could properly be understood as corrective or protective rather than punitive. For that reason, I decline to make that part of the order sought.

84. I have decided that this case is one which attracts the operation of discretionary power to order corrective advertising under s 132 of the Food Act. The cost of the advertising should be borne by the defendant per s 132(b) and the cost of such advertising will not reduce the overall sentence I will impose.

Costs

85. The prosecutor initially sought an order for costs as agreed under s 257B or as assessed under s 257G of the Criminal Procedure Act 1986 (NSW). Following the hearing, with leave of the Court, the following was proposed on 14 October 2025 with the agreement of Inside Out:

The parties confirm that the parties have conferred and reached an agreed position in respect of costs. This email is sent on behalf of both parties as a joint submission in respect of costs.

The parties jointly seek that the Court make an order that the Defendant pays the Prosecutor’s costs in the fixed amount of $75,000.00 pursuant to ss 257B and 257G(a) of the Criminal Procedure Act 1986.

The Prosecutor separately seeks an order pursuant to s 122(2) of the Fines Act 1996 (Fines Act) for a moiety of the fine (in the order of 50%) to be paid to the Prosector. The Defendant does not take a position in respect of the moiety.

86. I accept the prosecutor’s submission in relation the moiety of the fine, which may be summarised as follows. Section 4(1)(f) of the Fines Act 1996 (NSW) provides that, for the purposes of the Act, a fine includes “any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer”.

87. In Downey v Acting District Court Judge Boulton (No. 5) [2010] NSWCA 240 at [69], Basten JA (with whom Allsop P and Macfarlan JA agreed) stated that “if a defendant can properly be ordered to pay the costs of the prosecution, in addition to any penalty imposed, it would be surprising if some different perception as to the administration of justice should arise from the fact that a payment was made to the prosecutor out of the penalty otherwise imposed”.

88. In Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [74], Basten JA (with whom Hoeben CJ at CL and Walton J agreed) held that “There is no statutory requirement that the payment of the moiety be applied to the costs of the proceedings brought, as opposed to the costs of running the regulatory agency responsible for bringing the proceedings. Further, it would be anomalous if the prosecutor were to be paid his or her costs in circumstances where no moiety was payable, but not in circumstances where one was. Indeed, the very idea of a moiety payable to a public officer is something of an anomaly in circumstances where the fine will be paid to the same body politic as that responsible for maintaining the law enforcement agency in question, namely, in this case, the State of New South Wales. How the moneys are accounted for within the government should be of no concern to the offender or the court”. The Court of Criminal Appeal in that case, in re-sentencing, ordered that a moiety should be payable to the prosecutor.

89. I am satisfied that I have power to make an order for payment of a moiety of the fine and that it is appropriate to do so here.

Conclusion and orders

90. Sentencing involves an instinctive synthesis: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [30]-[31]. As is often the case, many of the critical factors in the present case are pulling in different directions. I have paid close regard to the maximum penalty and the degree to which the offender's conduct offends against the legislative object it has breached. I bear in mind, of course, that giving careful attention to the maximum penalty, however, does not mean that it "will necessarily play a decisive role in the final determination" per: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27].

91. General deterrence has an important part to play in this sentencing exercise. The penalty imposed must be of a sufficient size to deter other food manufacturing and distribution companies from similar offending. Protection of the public demands no less.

92. I have taken all of the findings made in relation to the Sentencing Procedure Act into account. Without seeking to repeat all of my findings here, the most important findings are that this offending was essentially a closely connected series of inadvertent errors, leading to the offending conduct which had a low risk of harm but potentially catastrophic consequences if that harm came to pass.

93. Totality looms large in the present exercise. Because the cause of the ten separate offences is traceable to one series of mistakes, being the error at the stage of preparing the labels for printing and the related failure at the proofreading stage to pick up that error, the sentence I will impose will be subject to a very high degree of concurrency.

94. I take into account that the company pleaded guilty to the offences at the first available opportunity and is entitled to a discount of 25% of the sentence otherwise to be imposed. I also take into account that upon discovery of the error, the company engaged in reorganisation and staffing changes, as well as process changes to seek to prevent anything like this from happening again.

95. Although I am not satisfied that the most serious offence (sequence 2) caused the injury to Mr Mace, by reason of the evidence of botulism in some of the bottles sold as part of this sequence, I am satisfied that the offence gave rise to a serious and unacceptable risk to human health. In isolation and before discounts I would have imposed a fine of $60,000 in relation to sequence 2. Before discounts and the application of the principle of totality I would have imposed a fine of $15,000 for each of the remaining offences, being a total fine of $195,000 (9 x $15,000 + $60,000). Without adopting a spurious mathematical precision, applying the 25% discount for the early plea reduces this amount to a total of a little over $146,000.

96. Having regard to the principles of totality, however, I have determined that a total fine of over $146,000 would be excessive for the total criminality encompassed by the offending demonstrated here and a total fine of $120,000 should be imposed. I will allocate that fine between the offences as follows:

97. Sequence 1- $10,000

98. Sequence 2 - $30,000

99. Sequence 3 - $10,000

100. Sequence 4 - $10,000

101. Sequence 5 - $10,000

102. Sequence 6 - $10,000

103. Sequence 7- $10,000

104. Sequence 8 - $10,000

105. Sequence 9 - $10,000

106. Sequence 10 - $10,000

107. I make the following orders:

108. The defendant is convicted of each offence (sequence 1-10);

109. The defendant is to pay fines totalling $120,000 comprising:

(a) Sequence 1- $10,000 (b) Sequence 2 - $30,000 (c) Sequence 3 - $10,000 (d) Sequence 4 - $10,000 (e) Sequence 5 - $10,000 (f) Sequence 6 - $10,000 (g) Sequence 7- $10,000 (h) Sequence 8 - $10,000 (i) Sequence 9 - $10,000 (j) Sequence 10 - $10,000

3. An order pursuant to s 122(2) of the Fines Act 1996 (NSW) for a moiety of the fine (of 50% of the fine being $60,000) to be paid to the Prosecutor.
4. Within 28 days of the date of these orders the Defendant pay the Prosecutor’s costs in the fixed amount of $75,000.00 pursuant to ss 257B and 257G(a) of the Criminal Procedure Act 1986 (NSW).

(5) Order pursuant to Section 132(b) of the Food Act 2003 (NSW) that the offender, at its own expense, publish an advertisement of at least ¼ of a page and placed within the first 12 pages of the journal in the next available edition of the quarterly journal ‘Australian Institute of Food Science and Technology’s Food Australia Journal’ in the form of Annexure A to these reasons.

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Annexure A