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CDPP v M & G Vizzarri Pty Ltd [2022] VCC 894

The offender was sentenced following pleas of guilty to 1 count of allowing an unlawful non-citizen to work contrary to s 245AB(1) of the Migration Act 1958 (Cth) and 1 count of allowing a lawful non-citizen to work in breach of a work-related condition contrary to s 245AC(1) of the Migration Act 1958 (Cth).

Nature and Circumstances: Offender is a large company and was, at the time of the warrant, employing some 600 workers including employees and seasonable workers. The company is clearly very experienced in employing a diverse number of employees and had built infrastructure to accommodate the seasonable workers. It was also well aware of systems that could have been utilised to ensure the seasonable workers were legally able to work in Australia. While there is no evidence of deliberate avoidance of its responsibilities under the Migration Act, in the circumstances offender ought to have known the status of the workers and taken steps to ensure compliance with the Act. Offending sits below the mid-level but not at the lower end of seriousness.

Delay: While the long delay in the criminal process has put the status of the Seasonable Workers Program program on hold, adding to the financial burdens suffered by the offender as a result of its conduct, only limited weight can be given to extra-curial punishment suffered in the circumstances. The delay, while regrettable, is able to be taken into account in the sense that the company has not reoffended in the intervening period and implemented systems that will ensure that all workers are legal.

General deterrence: General deterrence is undoubtedly the paramount sentencing consideration. A message must be conveyed that employers remain vigilant when seeking to employ non-citizens in industries such as the company’s (agriculture) where the risk is high.

Offender fined $60,000. But for the plea of guilty, offender would have been fined $100,000.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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