In Kids Kinder Childcare Pty Limited v The Department of Education, the District Court reduced the fines imposed on the approved provider for breaches of the National Law. In the case before the District Court, the appellant (approved provider) appealed against the severity of sentence imposed upon it on 3 May 2024 at the Local Court in Sutherland by Magistrate Donnelly. The offences occurred over a nine month period starting March 2021 and ending in December 2021. According to a report in The Daily Mail newspaper, the magistrate convicted the approved provider and imposed a combined $213,020, with legal costs of $10,000 to the Department of Education. This was after the approved provider pleaded guilty to eight counts of failing to prevent unreasonable discipline, failing to notify the regulator of a complaint, failing to ensure adequate protection for children, not ensuring an educator was supervised, and failing to operate a service that ensured the safety, health and wellbeing of children. These breaches, amongst others, related to force feeding children until they vomited, having their mouths covered to prevent screaming, being restrained in high chairs for hours on end, yanking children by the arm, and a child falling from a high chair causing injury.
The appellant was an approved provider of childcare services operating from a centre in Menai known as Jumpstart Childcare. The sole director of the appellant was Mr Thomas Fanous and centre manager Amara Jaroudi. According to the original newspaper report, Jaroudi was also convicted of offences but it is not known whether that sentence is also under appeal.
The judge in considering the appeal stated that "I am required to consider the matters afresh. I am limited to the jurisdiction of the Local Court. I must decide the matter independently and the result of the ultimate sentence to be imposed is my view of the matter, having little or no regard to the magistrate’s reasons." (para.34). The District Court upheld the approved provider's appeal giving a 20% reduction on the penalty because of the plea of guilty. The Court confirmed each of the convictions in the Local Court and reduced the fines to $186,620. In concluding its judgment, the District Court judge stated (paras.67-70):
I have given consideration to s 3A of the Crimes (Sentencing Procedure) Act. This involves considerations of the victim involved in these matters. I note that there have been victim impact statements produced in essence by way of affidavits produced by two parents and I have taken that into account as required by the Act.
I have also taken into account a number of the other considerations set out in s 3A, noting the importance of general deterrence. In my view, general deterrence is a critical consideration for offences of this type. Parents not only expect, but are entitled to believe that their children, when left at a childcare centre, usually at great expense, are safe, properly cared for and respected. That did not occur on this occasion. General deterrence is a paramount consideration for the Court in this matter.
The appellant in this case is, I must say, something of a mystery to the Court. No evidence has been tendered which goes to its size, the number of staff it employed at the relevant time, the number of centres it ran at the time or now runs. There has been no attempt to inform the Court as to how these offences occurred and, as I say, nor has the Court been given any evidence that steps have been taken to ensure that this will not occur again.
There has been no reassurance given to the Court that the offences are now in the past and that future employees will be properly trained and supervised. All of those matters are of great concern, and it means that considerations which are set out at s 3A, such as specific deterrence, the protection of the community, the rehabilitation of the appellant, its accountability, its denunciation and the recognition of harm all play significant roles in this sentence.....
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