Attorney General for the State of New South Wales v DSF Constructions Pty Ltd

Court of Criminal Appeal (NSW)|2018-04-11|Before: Beazley P, Fullerton J, McCallum J

Sentencing judge's reasons

The sentencing judge, having earlier set out the material that was before him, reviewed the facts in some detail at [8]-[37]. Those facts are sufficiently set out in the statement of agreed facts. However, there are certain aspects of his Honour's findings to which reference needs to be made.
His Honour found, at [26], on the basis of Mr Agusi's oral evidence, that Mr Agusi knew that the steelwork structure had to be stable and that the skylight had to be bolted in place, although he later resiled from that position and stated that the skylights were not required to be bolted. His Honour referred, at [27], to Mr Agusi's reliance on the engineer's advice that it was in order to place the skylights in position without bolting. His Honour then recorded the following cross-examination: "Q. Why did you install the skylight knowing, as you say, that you didn't have sufficient information to be able to properly secure the beams? Why did you do that? A. Install the skylight. If I knew there was a risk, I would not install it. I would [sic] jeopardise my life and to workers around."
His Honour observed, at [28], that this answer did not "sit well" with Mr Agusi's earlier evidence that he knew that there was a crane operating and that it could bump into the skylight structure. Nor did the answer "sit well" with the following evidence: "Q. And you knew that if that happened, there was a risk that the structure that was resting on the wooden beam would fall? A. That's - that's the part of the design."
His Honour found, at [29], that he was satisfied that Mr Agusi had relied on the engineer in setting the skylights into position. Nonetheless, he was satisfied beyond reasonable doubt that Mr Agusi knew there was a risk that if the crane bumped the structure, the skylight could be dislodged and fall.
His Honour referred, at [30]-[31], to DSF Constructions' SWMS, which identified "Unstable structure" in relation to "structure steel works" as a hazard. His Honour noted that the SWMS provided for an exclusion zone, but that it "was not a control specified in relation to the risk of 'Unstable structure' ". His Honour found, at [32], that DSF Constructions monitored the exclusion zone that was in place during the steel work erection operations up to the time that the skylights were lifted into position at roof level.
After the steel work erection operations had ceased for the day and DSF Constructions had left the area, Coopers Cranes undertook some other lifting operations. Coopers Cranes' SWMS identified the risk of the crane or its load coming into contact with the steel structure due to the tight area in which the items were to be lifted. The SWMS also provided that Coopers Cranes would be responsible for implementing an exclusion zone in and around lifting operations.
On the day of the incident, Ceerose had directed its workers to work in other parts of the building and not in the vicinity of the cranes while the lifting of the skylights was being undertaken. However, as his Honour found, at [32], at the time of the incident, the exclusion zone was not in place: there was no barrier, signage, or other measure to prevent workers, including Mr Linares-Lopes, from being in the area where and when the skylight frame fell. Nor were there directions, procedures or prohibitions to prevent workers on the site from working in the fall zone of the skylight frame.
Although DSF Constructions was not responsible for the supervision of the employees, who were contracted to Ceerose by 1 Stop Workforce, his Honour found, at [34], that DSF Constructions' processes in erecting the steel structures directly influenced the activities of those workers.
His Honour made a number of observations, at [37], in relation to the conduct of 1 Stop. In particular, his Honour noted that 1 Stop had not required Ceerose to implement and enforce an exclusion zone, nor had it prohibited its workers from working under or about frame work. His Honour found that "1 Stop did not provide training or instruction to its workers on the dangers of working under roofing structures that were not fully installed or safely affixed". It had only provided its workers with induction documents which included general information about safety and did not ensure that Ceerose provided proper supervision of the workers.
His Honour was cognisant of the Crimes (Sentencing Procedure) Act 1999 (NSW) and referred in a summary way to the objects of sentencing, stating, at [38], that he was required to have regard to any aggravating and mitigating factors, including those specified in the Crimes (Sentencing Procedure) Act, s 21A, to the extent those factors were relevant. His Honour also observed that he was to have regard to the purposes of the Work Health and Safety Act.
His Honour, at [39], commenced his consideration of the sentence to be imposed with the "gravity of the offence", which he considered could be determined, in part, "by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home and the measures available to avoid the risk". His Honour then dealt separately with each of these aspects.
His Honour held that the risk was foreseeable having regard to the following factors. First, his Honour found, at [40], that although Mr Agusi "relied on the engineer", he was aware of the risk of the skylight frames falling should they be struck by a crane, as well as "the presence of a working crane in a tight area". Secondly, his Honour observed that DSF Constructions' SWMS identified "Unstable structure" as a hazard and commented, at [41], that it "would remain a hazard without the remedial measures suggested being undertaken". Thirdly, his Honour considered that it was apparent from the Australian Standard AS3828-98 "Guidelines for the erection of building steelwork", especially cls 2.1, 2.6 and 3.2.2, that the risk of injury was foreseeable.
His Honour, at [44], dealt with the measures available to eliminate or minimise the risk of injury, as particularised in the Attorney General's amended summons dated 4 April 2016, as follows: "a. Having in place and following, during the erection stage and until that stage was completed, an adequate safe work method statement which in accordance with Australian Standard AS 3828-1998 Guidelines for the erection of building steelwork specifically provided for: 1. The requirement of temporary bracing of the structural steelwork; 2. The stability requirements for all components of the structure; 3. The stability of partially erected structures when left unattended; 4. Verification of the effectiveness of temporary guys, bracing and support at the end of the workday or during temporary cessations of work; b. Ensuring the preventing or minimising of the potential for excessive movement, sway and/or collapse of all parts of the structural steelwork as well as the structure as a whole at the site by: 1. The use of temporary guys or bracing; and/or 2. Tying the structure in at roof level by temporary means; and/or 3. Making the permanent connections between the structure at the timber beam level and the existing building; c. Taking steps, or checking that steps were taken, to ensure the footings supporting the four vertical columns of the steelwork structure were adequately secured by bolting the column base plate onto the column footing to prevent or minimise excessive movement or sway of the structural steelwork on which the skylight frames were placed."
His Honour found, at [45], that these measures were readily available to DSF Constructions. The only qualification to this finding was that his Honour found that the evidence did not disclose what causative effect, if any, the "inadequate bolting" referred to in item (c) above had in respect of the presence of the risk or its consequences.
DSF Constructions had argued that its culpability should be limited by reference to the higher culpability of others. His Honour adopted his reasons in SafeWork NSW v Ceerose, in which he found that as between DSF and Ceerose, the higher culpability lay with Ceerose.
As his Honour observed in SafeWork NSW v Ceerose, at [37]-[38], both submissions could not be correct and whatever the culpability of others, it could not operate to diminish Ceerose's obligations with which it was bound to comply. Having regard to the cross-referencing of his remarks, his Honour is to be taken to have made the same finding in respect of DSF Constructions. Notwithstanding this, and notwithstanding his Honour's comment in SafeWork NSW v Ceerose, at [40], that there were "multiple causes involving multiple persons that contributed to this incident", his Honour concluded that the "higher culpability" lay with Ceerose. This was because, although, as his Honour stated at in SafeWork NSW v Ceerose, at [39], DSF Constructions' contractual obligations included "[ensuring] the integrity of the structure so that no damage was done to the building or harm to persons", this heightened Ceerose's obligation to: "[Maintain] and [enforce] an exclusion zone or no go area such that it continued to be in place following the installation of the skylight frames and until verification that the skylight frames were secured ..." (see at [25])
It should be noted that that finding is the subject of the appeal in Ceerose.
In relation to the objective seriousness of DSF Constructions' offending, his Honour, at [48], considered that the offence fell in the "mid-range of objective seriousness". In reaching this conclusion, his Honour had regard, at [47], to the fact that the offence occurred in a "high risk industry", which called for "careful vigilance to ensure safety obligations are complied with".
His Honour dealt with general deterrence, at [49], by adopting what he had said in SafeWork NSW v Ceerose, in which his Honour, in determining that general deterrence was to be taken into account, observed, at [43], that the court was frequently seeing "cases involving people or objects falling from height at construction sites". His Honour also observed that many of these cases involved fatalities. His Honour stated that given that the construction industry was a "high risk industry": "Special vigilance to ensure compliance with statutory obligations is called for. Those operating in the industry must understand that this is so and must also understand that failure to comply will have consequences. General deterrence is to be taken into account."
His Honour, at [50] of Safework NSW v DSF Constructions, took into account specific deterrence, but considered that it was only necessary to do so to a minor extent, having regard to the remedial safety measures DSF Constructions had implemented following the incident and the unlikelihood of it re-offending. Those remedial safety measures included the creation of an individual and specific SWMS for each job which pays "specific attention to individual categories of hazards for each job and methods to reduce those hazards".
His Honour, at [51]ff, next had regard to matters of mitigation. DSF Constructions had pleaded guilty at the first available opportunity and had expressed remorse and contrition. His Honour noted that the effect of the incident on Mr Agusi had been "profound" and that he was satisfied that Mr Agusi's expression of contrition was genuine. In addition, DSF Constructions had co-operated with SafeWork in the investigation and prosecution of the incident. His Honour also considered, at [55], that it was of significance that DSF Constructions had no prior convictions, given that it operated in a "high risk industry". It was also relevant that Mr Agusi had not "been involved in any industrial accident or seen any worker receive any serious injury on a work site" prior to the incident.
His Honour observed, at [58], that DSF Constructions was a small family company, its shareholders being Mr Agusi and his wife. Mr Agusi was the only employee, such that the earnings of the company were dependent upon his earnings. His Honour observed that "even a small fine" would have "significant ramifications" for DSF Constructions.
His Honour also had regard to the victim impact statements. In that regard, he adopted what he had said in SafeWork NSW v Ceerose, that the death of Mr Linares-Lopez was a tragic loss to his family.
His Honour referred, at [61], to the "principal matter that [had] troubled" him in relation to DSF Constructions' culpability, namely, its reliance on the engineer who had given the go-ahead to put the skylight frames in place. Nonetheless, his Honour noted that DSF Constructions was aware that the frames had not been secured, that a crane was operating "near them in a tight situation" and that should the frames be knocked by the crane, they were liable to fall.
His Honour allowed a discount of 25 per cent for the early plea and imposed a fine in the sum of $225,000. DSF Constructions was ordered to pay the prosecutor's costs as agreed or assessed.

Issues on the appeal

The Attorney General submitted that the sentencing judge erred in three respects: 1. the penalty imposed was manifestly inadequate; 2. the sentencing judge failed to have regard to the maximum penalty of $1,500,000 and the change effected to the penalties by the enactment of the Work Health and Safety Act; 3. the sentencing judge erred in his assessment of the objective seriousness of the offence.
The Attorney General also submitted that there were strong grounds for the Court not to exercise its residual discretion not to intervene.

Principles applicable to a Crown appeal against sentence

This is a Crown appeal against sentence pursuant to the Criminal Appeal Act, s 5D(1). The primary purpose of a Crown appeal is to lay down principles for the governance and guidance of courts having the duty of sentencing: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49. However, that principle is to be understood, as White JA observed in R v Darwich [2018] NSWCCA 46 at [10]: "… in the sense that the discretion to re-sentence if error of principle is shown, or the residual discretion not to re-sentence notwithstanding that error in principle is shown, is to be exercised having regard to the Court of Criminal Appeal's function of interfering with sentences only where a sentence is manifestly inadequate, or error of principle is shown, or there is a gross departure from a sentencing norm. Section 5D(1) provides that the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the court may seem proper. The subsection does not say that the Court of Criminal Appeal can only re-sentence if the imposition of a varied sentence is essential in order to provide guidance or governance to sentencing courts. If that were the only relevant question, there would never be an occasion to increase a sentence on a Crown appeal because it could always be said that it would be sufficient for the Court of Criminal Appeal to give guidance and governance by saying what sentence should have been imposed, without actually imposing an increased sentence. That would be inconsistent with the terms of s 5D(1)."
N Adams J observed in the same case, at [123], that: "Although the primary purpose of Crown appeals is to guide sentencing courts, it is to be accepted that the sentence in fact imposed in a given case remains important …" See also R v O'Connor (2014) 239 A Crim R 487; [2014] NSWCCA 53 at [88].
The court may only interfere where error has been established: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [61]-[63]. Even if error is established, the court, on an appeal under s 5D(1), may, in the exercise of its residual discretion, decline to interfere. It is for the Crown to persuade the court why the sentence should be varied: CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [6] and [56]-[66].
The Attorney General submitted that this appeal was an appropriate vehicle for the Court to lay down principles for the governance and guidance of the District Court in sentencing persons for offences under the Work Health and Safety Act, particularly in relation to the maximum statutory penalty, the fact that the penalty was increased in 2011 with the introduction of the Work Health and Safety Act and the objective seriousness of an offence.
The Attorney General also submitted that the Court should exercise its power to interfere if satisfied that the sentence imposed was below the range of sentences that could justly have been imposed for the offence, consistent with sentencing standards. In other words, it was submitted that the Court could interfere if the sentencing discretion had miscarried: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]; House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505.
I do not accept the Attorney General's submission that this is an area of sentencing where guidance is required as to the relevant sentencing principles. It is a well settled principle of law that regard is to be had to an increase in penalties. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 89, the High Court stated, at [31], that "[a]n increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased".
Further, this Court, in Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96, has stated the principles governing the assessment of objective seriousness, deterrence and the application of the residual discretion in respect of convictions under the Work Health and Safety Act. Indeed, it is apparent from the evidence to which I refer below that the decision to bring this appeal was made following this Court's decision in Nash v Silver City Drilling (NSW).
Therefore, there remains only the question whether the penalty imposed on DSF Constructions was manifestly inadequate. As the Attorney General relied in part on the errors alleged in grounds 2 and 3 of the appeal in support of ground 1 of the appeal, it is convenient to consider those grounds first before considering whether the sentence imposed was manifestly inadequate, as raised in ground 1 of the appeal. The consideration of that question commences with a consideration of the principles that govern sentencing.

Sentencing principles

The proper approach to sentencing, as stated by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], and which was endorsed by the High Court in Muldrock requires that: "… the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence." (emphasis added)
The objects of sentencing, now statutorily embodied in the Crimes (Sentencing Procedure) Act, s 3A, are relevant. Those objects are: (a) the imposition of adequate punishment for the offence; (b) general and specific deterrence; (c) the protection of the community from the offender; (d) the rehabilitation of the offender; (e) making the offender accountable for his or her actions; (f) the denunciation of the conduct of the offender; and (g) recognising the harm done to the victim and the community.
The other statutory factors that are presently relevant are provided for in the Crimes (Sentencing Procedure) Act, Pt 3. Section 21A provides for aggravating, mitigating and other factors that are to be taken into account in sentencing. Many of the aggravating factors address crimes committed by individuals.
So far as is relevant to this matter, s 21A(2)(g) provides as an aggravating factor that "the injury ... caused by the offence was substantial". Section 21A(2)(ib) provides that it is an aggravating factor if "the offence involved a grave risk of death to another person or persons". However, as the risk of death to a person is an element of the offence in this case, it cannot be taken into account additionally as an aggravating factor: see s 21A(2); R v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
In my view, s 21A(2)(l), that "the victim was vulnerable", also applied. The examples given in that section are that the victim was very young, very old or had a disability, was geographically isolated, or was vulnerable because of the victim's occupation, such as a person working at a hospital other than a health worker, a public transport driver, a bank teller, or a service station attendant. A person who is entirely or substantially reliant upon others for ensuring their health and safety is vulnerable to any non-compliance with any safety precautions and obligations prescribed by statute. However, in the absence of any argument on this point, I do not consider that it is appropriate to include that factor as a matter of aggravation.
Finally, it is also necessary to take into account on sentence the provisions of the Fines Act 1996 (NSW), s 6, which requires the court, when imposing a fine, to have regard to the means of the offender.

Failure to have regard to the maximum penalty

The maximum penalty for the offence committed by DSF Constructions under the Work Health and Safety Act is $1,500,000. This penalty was a significant increase in the penalties under the Occupational Health and Safety Act 2000 (NSW), which was replaced in 2011 by the Work Health and Safety Act. The maximum penalties under the Occupational Health and Safety Act were $550,000 for a first offender and $825,000 for a previous offender.
In the Second Reading Speech to the Work Health and Safety Bill 2011 and the Occupational Health and Safety Amendment Bill 2011, it was said: "The bill also introduces new and innovative approaches to enforcement and tougher penalties to allow Government to enforce compliance and punish those who threaten the health and safety of others at work. … The bill imposes strong penalties for a breach or contravention of the work health and safety law. Three categories of penalty are introduced based on the degree of culpability, risk and harm."
The requirement to have regard to the maximum penalty specified by the legislature is clear. In Markarian, the plurality observed, at [30], that: "Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin [Stockdale and Devlin, Sentencing, (1987), paras 1.16-1.18] observe that: 'A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ... A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].' "
In Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31, the High Court stated, at [27], that the maximum penalty marks out "the legislature's assessment of the seriousness of the offence and for this reason provides a sentencing yardstick" (footnote omitted). As the Court observed, the maximum penalty "is one of many factors that bear on the ultimate discretionary determination of the sentence for the offence". However, after noting that the factors relevant to the sentencing discretion can pull in different directions, the Court observed: "It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted."
Likewise, as I have already stated, the court is required to have regard to the fact that when the legislature increases the penalties for a particular offence, that is to be taken as an expression of a legislative intention that the penalties imposed are to be increased: see Muldrock as discussed above.
Substantial increases in the penalties were enacted in 2011 with the introduction of the Work Health and Safety Act. The increased penalties reflected the three categories of offences that were also introduced at the same time. Those categories, and the relevant penalty for an offence committed by a corporation, are: Category 1, reckless conduct which exposes an individual to a risk of death or serious injury or illness - maximum penalty, $3,000,000: s 31; Category 2, conduct which exposes an individual to a risk of death or serious injury or illness - maximum penalty, $1,500,000: s 32; and Category 3, conduct involving a failure to comply with a health and safety duty - maximum penalty, $500,000: s 33.
The sentencing judge neither referred to the maximum penalty for the offence in this case, nor to the fact that the penalties had been substantially increased upon the introduction of the Work Health and Safety Act in 2011. However, the Attorney General accepted that the sentencing judge must have known the maximum available penalty, given his sentencing experience both under the previous and current legislation. Indeed, his Honour referred to the maximum penalty in Nash v Macmahon Mining Services Pty Ltd [2016] NSWDC 171 at [52], which his Honour delivered less than a week earlier. It followed that his Honour must also have known that the maximum penalty had increased.
However, the Attorney General complained that it was apparent from the penalty imposed that his Honour failed to have regard to the sentencing principle stated by Basten JA in Nash v Silver City Drilling, at [54], that: "… it is important to emphasise that the proportionality of the sentence should depend upon an assessment of the particular offence in the context of the penalties imposed by the Act."
I do not take Basten JA's statement to mean that the penalty imposed must bear a proportional relativity to the degree of objective seriousness that has been determined, or to put it another way, that a finding of mid-range objective seriousness required a fine mid-way between zero and the maximum penalty to have been imposed. If the statement meant that, I consider that it would not conform with what the High Court said in Elias. In any event, it is apparent from the sentence Basten JA imposed in Nash v Silver City Drilling that that was not his Honour's reasoning process.
The legislature, by enacting the Work Health and Safety Act, introduced a new and significantly different legislative regime to workplace safety. As discussed above, three categories of offences, each of differing seriousness, were introduced and the penalties were significantly increased. In this case, the sentencing judge imposed a penalty that was substantially below a mid-range of penalties for the offence charged. However, that does not, of itself, indicate error in the evaluative sentencing task. The maximum penalty may aptly be described as one which the legislature "has more recently … set at a high catch-all level", to quote from Stockdale and Devlin as cited in the passage from Markarian referred to above.
The Attorney General's complaint was that the sentencing judge failed "to have regard to" the maximum penalty and the increase in penalties introduced by the Work Health and Safety Act. That submission was based essentially upon the fact that the penalty was, after the discount for the guilty plea, 15 per cent of the maximum penalty. Whilst, on its face, that may not appear to bear a necessary relativity to the maximum penalty, this question cannot be looked at in such bare terms. It is necessary to have regard to all the relevant sentencing factors, including the objective seriousness of the offence, the fact that this was a first offence, the fact that specific deterrence is not a significant matter and the general range of sentences for this offence. , the means of the offender
I am also of the opinion that it could not be said that his Honour failed to have regard to the maximum penalty when the Attorney General acknowledged that his Honour would have known of the maximum penalty and, implicitly, of the increase in penalty introduced in 2011.

The objective seriousness of the offence

It is well established that the assessment of the objective seriousness of an offence is "quintessentially" a matter for the trial judge: Mulato v R [2006] NSWCCA 282 per Simpson J (as her Honour then was) at [46]. In the same case, Spigelman CJ, after observing that this Court should be slow to interfere with the assessment of a sentencing judge as to the objective seriousness of an offence stated, at [37]: "The question must be whether or not the particular characterisation which [the sentencing judge] gave to the circumstances of the offence was open to [the sentencing judge]." See also R v KB [2011] NSWCCA 190 at [51]-[53]; Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [158]. In order to interfere with the assessment, error in the House v The King sense must be established: Mulato per Simpson J at [46].
In Muldrock, the High Court stated, at [27], that: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
In Nash v Silver City Drilling, this Court dealt with the assessment of the objective seriousness of an offence under the Work Health and Safety Act. Basten JA observed, at [41]: "Broadly speaking, the degree of culpability of [the accused] may properly be assessed by reference to the risk against which steps falling within the definition of what is 'reasonably practicable' are to be taken [see the Work Health and Safety Act, s 18]."
His Honour added, at [42]: "The culpability of [the accused] is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, cost. That assessment will involve both objective considerations and a consideration of what [the accused's] responsible officers knew or ought to have known."
Basten JA also considered, at [45], that in respect of offences under the Work Health and Safety Act, the question of objective seriousness fell to be considered within the statutory context of there being a gradation of offences, namely, the three categories of offences.
His Honour observed, at [53]: "The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
However, it is relevant to observe that his Honour found the offending conduct to be in the mid-range of objective seriousness. See also Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266.
During the sentence hearing in this matter, the Attorney General argued that DSF Constructions' culpability "was of a very, very high order". The Attorney General submitted that the sentencing judge's finding of mid-range objective seriousness was not open to his Honour, having regard to the foreseeability of the risk, the ease with which the risk could have been averted and the grave nature and consequences of the risk.
I have set out above his Honour's approach to the assessment of the objective seriousness of the offence. His Honour had regard to the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home and the measures available to avoid the risk. In my opinion, those were the factors to which regard was to be had in assessing the objective seriousness of the offence. His Honour did not, for example, make the error that had been made by the sentencing judge in Nash v Silver City Drilling referred to at [53] in that decision, namely, assessing the objective seriousness of the offence, having regard to the unlikelihood of the injury resulting from the risk.
Thus, if there be error, it would need to be found on the basis of what is usually described as the last category of House v The King error, namely: "… if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
In the present case, there were a number of features of the offence that were of particular relevance in the assessment of its objective seriousness. First, to leave a heavy structure of approximately one tonne in weight unsecured at a height without any bracing or other means of securing it was an extremely serious omission, the seriousness of which cannot be ameliorated by reliance upon a third party to provide or to ensure compliance with an exclusion zone.
Secondly, notwithstanding the fact that the engineer failed to include any design or requirement for bracing, it is self-evident that an unsecured one tonne structure elevated at a height posed a severe risk should any incident occur to destabilise it. In any event, DSF Constructions' contractual obligation, as found by the sentencing judge, was "to ensure the integrity of the structure so that no damage was done to the building or harm to persons".
Thirdly, DSF Constructions knew the skylight frames had not been fixed. However, this knowledge has to be considered in light of the fact that Mr Agusi had been informed by Coopers Cranes that crane work had finished for the day and that DSF Constructions had left the area before the incident happened.
The question, therefore, is whether, having regard to the principle that the assessment of the objective seriousness of an offence is "quintessentially" a matter for the trial judge, his Honour's assessment that the offending conduct was in the mid-range disclosed an appealable error.
To merely say that an offence is of low, mid-range or high objective seriousness can obscure that those assessments are multi-layered, multi-factorial and nuanced. There is no bright line between them. It is also relevant, as Basten JA stated in Nash v Silver City Drilling, that the offence charged was a Category 2 offence, and not the most serious Category 1 offence.
The objective seriousness of the offence must be assessed having regard to all of the facts. In that regard, it is significant that on the morning of the incident, DSF Constructions had discussed with both Ceerose and Coopers Cranes the necessary exclusion zones required during the lifting operations of the skylights. Further, when Coopers Cranes commenced their other lifting operations after having finished the lifting operations relating to the steel work erection, and despite Coopers Cranes having told Mr Agusi that crane work had finished for the day, workers were allowed into the exclusion zone. DSF Constructions had no control over those workers and was not in a position to observe their activities. Nor, on the facts, did it know that the instruction given to the workers that morning, not to work in the vicinity of the cranes while lifting operations were in progress, had been countermanded or was not being observed.
In my opinion, in circumstances where there was no reason for DSF Constructions to have known that workers were likely to be in the vicinity, I would not assess the objective seriousness of the offence to the extent submitted by the Attorney General. Given that an assessment of mid-range seriousness itself involves a range of seriousness, I do not consider that it can be said that the assessment of the sentencing judge was wrong so as to warrant appellate interference.

Penalty imposed was manifestly inadequate

The Attorney General submitted that the penalty imposed was "unreasonable or plainly unjust" such that there was a failure to properly exercise the sentencing discretion. Put another way, it was contended that the sentence imposed fell outside the range of sentences that could have been imposed if proper sentencing principles had been applied: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [26]-[28]. The Attorney General also relied upon the alleged errors in grounds 2 and 3 of the appeal, which I have already addressed.
In Barbaro, the High Court examined the appellate task where it is alleged that a sentence is manifestly excessive or inadequate. I have found it helpful to set out the Court's reasoning in full, as it encompasses what is at the heart of the issue on appeal in this case. "[24] To expose the error in principle, it is necessary to begin by examining what is meant by an 'available range' of sentences for an offender. [25] Except where a mandatory sentence is prescribed, a judge fixing the sentence to be imposed on an offender exercises a discretionary judgment. The exercise of discretion is subject to applicable statutory provisions and judge-made law. In particular, when sentencing offenders for offences against the laws of the Commonwealth, a sentencing judge is bound to apply those provisions of Pt IB of the Crimes Act 1914 which govern the sentencing of federal offenders. That Part provides the fundamental starting point for the sentencing of offenders for federal offences. [26] Reference to an 'available range' of sentences derives from the well-known principles in House v The King. The residuary category of error in discretionary judgment identified in House is where the result embodied in the court's order 'is unreasonable or plainly unjust' and the appellate court infers 'that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance'. In the field of sentencing appeals, this kind of error is usually referred to as 'manifest excess' or 'manifest inadequacy'. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences. [27] The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some 'substantial wrong has in fact occurred' in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed. [28] Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an 'available range' of sentences, stating the bounds of an 'available range' of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the re-sentencing court to determine the bounds of the range within which the sentence should fall." (footnotes omitted) (emphases in original)
The sentencing judge, as the Attorney General acknowledged, had regard to: the foreseeability of the risk: at [29], [40]-[42], and [61]; the foreseeability of the consequences should the risk materialise: at [43]; and the ready availability of measures to eliminate the risk: at [44]-[45]. His Honour also had regard to general and specific deterrence: at [47], [49]-[50]. The sentencing judge also had regard to matters in mitigation: at [52]-[56]. I have discussed all of these matters above.
In determining whether the penalty imposed was manifestly inadequate, it is necessary to return to the relevant sentencing considerations. I have concluded that his Honour did not err in finding that the objective seriousness of the offence was mid-range. Notwithstanding that leaving the skylight structure unsecured was an objectively serious omission, the mitigating circumstances were also significant. Relevantly for the purposes of determining the appropriate penalty, DSF Constructions had shown genuine remorse, had assisted the authorities in the investigation and had immediately implemented appropriate work safety procedures. However, his Honour recognised, at [60], that the circumstances of the case required the imposition of a substantial fine. As his Honour said: "… not to impose one would not give due weight to the objective seriousness of the offence constituted by the foreseeable risk, the foreseeability of the consequences in the event of the risk materialising, the readily available measures to eliminate the risk and deterrence."
As I have already indicated, the fine imposed was only 15 per cent of the maximum penalty for the offence. However, the principle of consistency in sentencing is as relevant in prosecutions under the Work Health and Safety Act as it is in any sphere of sentencing. In Nash v Silver City Drilling, which also involved a conviction for a Category 2 offence, the Court, on appeal, found that the sentencing judge had erred in assessing the degree of objective seriousness as "minor". The Court reassessed the objective seriousness as falling in the middle of the range for a Category 2 offence. The Court increased the fine of $112,000 imposed by the sentencing judge to $212,500 after applying a discount of 15 per cent for a late guilty plea. The sentence imposed in this case is in the same order.
In Unity v SafeWork NSW, the Attorney General identified 38 comparable cases under s 32 from the District Court, most of which involved pleas of guilty. As recorded by Basten JA, at [77], the range of penalties were: cases in the low range of objective seriousness - $42,400 to $90,000; cases in the mid-range - $75,000 to $500,000; and three cases involving work on construction sites assessed as being in the high range - $412,500 to $1,000,000. The Attorney General did not demonstrate by way of comparison with other cases under s 32 that the penalty imposed on DSF Constructions fell outside the range of penalties that could have been imposed. As is apparent from the Court's reference to 38 comparable cases under s 32 in Unity v SafeWork NSW, the penalty imposed on DSF Constructions of $225,000 fell within the range of penalties that have been imposed in cases of mid-range objective seriousness.
The size and scope of DSF Constructions' operation are of particular relevance to the fine that ought to have been imposed. In Unity v SafeWork NSW, Basten JA observed, at [79], "a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation". Mr Agusi is the sole employee in what is a family company and DSF Constructions' earnings are solely dependent on him. In my opinion, as the sentencing judge found, the fine imposed would have a significant impact on the company.
His Honour also took into account general deterrence, appreciating its particular significance in this case, as is apparent from his remarks referred to above at [*32].
It must be emphasised that general deterrence is of particular importance in the construction industry. The need for consistent and continuous coordination between different trades involved in joint construction projects, as was required in this case, cannot be underestimated. In Bulga Underground Operations v Nash, Bathurst CJ adopted what was said in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71 at [73]-[80]. In Capral Aluminium v WorkCover Authority of New South Wales the Commission emphasised, at [75], that "[t]he need for general deterrence in relation to serious offences under the Act is undeniable". Of particular relevance is the Commission's reference, at [73], to the observations of Hungerford J In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384, at 388, that: "… the fundamental duty of the Court in this important area of public concern … [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace."
In my opinion, having regard to all the factors to which I have referred, I am not persuaded that the Attorney General has established that the fine imposed was manifestly inadequate. For that reason, the appeal should be dismissed. However, should I be wrong in that conclusion, I will nonetheless consider whether, if there was error in the sentencing process, this Court should, in the exercise of its residual discretion, not resentence DSF Constructions.

The residual discretion

If the correct conclusion in this matter is that the sentencing judge erred in the penalty imposed for any of the reasons argued by the Attorney General, it would fall upon this Court to resentence DSF Constructions, unless it is satisfied that in the exercise of the residual discretion, it should not do so. In this case, the matter most relevant to that question is the delay in the bringing of the appeal.
In R v Pham (1991) 55 A Crim R 128, Gleeson CJ, having agreed with the reasons of Lee CJ at CL, added, at 138: "Where there has been any delay on the part of the Crown in instituting an appeal in a matter of this kind the question of delay is a relevant and sometimes a decisive discretionary consideration. However, its weight and significance will ordinarily depend upon all the circumstances of the case. One of those circumstances may be the view which the Court takes on the matter of the extent of the inadequacy of the sentence under appeal."
Lee CJ at CL repeated, at 136, what he had said in R v Eldaghl (unreported, Court of Criminal Appeal, 11 April 1991): "… the question of delay in Crown appeals is not a matter to be viewed merely from the point of delay. It has to be viewed from the point of prejudice that may be occasioned to the respondent and whether the prosecuting authority is at fault in not having filed the notice of appeal earlier."
In R v Hallocoglu (1990) 29 NSWLR 67, Hunt CJ at CL stated, at 79-80: "This Court has often exercised its discretion not to interfere with a manifestly inadequate sentence by reason of such delay: see, eg, R v McDonald … Director of Public Prosecutions of New South Wales v Garnum … R v Astill … In the first of those cases, it was said (at 3) that, whatever the administrative problems causing the delay, it is necessary for the Crown to eliminate them - a warning which was repeated in R v Myers … The delay in the present case was obviously enough caused by the delay in obtaining the transcript of the judge's remarks on sentence. The sentence was imposed immediately before Christmas, and the notice of appeal was signed within two weeks of the beginning of term when the judge would have approved of the transcript before its release. This Court has more recently said that the decision as to whether a Crown appeal should be taken should usually be capable of being made upon the basis of the notes taken by the Crown's representative present at the time when the sentence is imposed; to wait until the transcript becomes available - even when a letter has been sent warning the respondent that consideration is being given to an appeal - is not justifiable except in the unusual case: R v Bardo … A Crown appeal will not be dismissed simply because of delay. It will only be dismissed if that delay has caused prejudice to the respondent: R v Cuc Thanh Pham … Because the Crown had not had the benefit of this Court's decision in R v Bardo at the relevant time, and because no real prejudice has been demonstrated, I would not be prepared to dismiss the Crown appeal in this case by reason of the delay which occurred waiting for a transcript of the judge's remarks on sentence. The Crown should nevertheless pay heed to that decision in relation to all future Crown appeals."
The offence in this case was committed on 13 April 2013. The prosecution was not commenced until 20 March 2015, when a summons was filed in the District Court. An amended summons was filed on 4 April 2016 at a directions hearing before Curtis DCJ. DSF Constructions pleaded guilty to the offence on that date, which was accepted by his Honour to be a plea at the earliest relevant opportunity. The sentence hearing proceeded before Kearns DCJ on 15 July 2016. His Honour delivered judgment on 24 August 2016.
On 21 September 2016, SafeWork NSW wrote to DSF Constructions' solicitors, advising them that it was considering whether to appeal from the penalty imposed by the sentencing judge. The letter concluded "[w]e will notify you at the earliest opportunity once a decision is made". On 19 December 2016, SafeWork NSW wrote again to DSF Constructions' solicitors, advising them that a potential appeal was still under consideration. The letter concluded that SafeWork NSW would write again once a decision was made. Letters in the same terms were forwarded to Ceerose's solicitors.
On 19 December 2016, Ceerose's solicitors wrote to SafeWork NSW pointing out that the time limit for an appeal had "long since elapsed" and that any application for an extension would be opposed. SafeWork NSW responded by pointing out that this was a Crown appeal and that the time limit specified in the Criminal Appeal Rules (NSW), s 3B did not apply: see R v Matthews (2004) 145 A Crim R 445; [2004] NSWCCA 112.
On the affidavit evidence of Nichola Constant, Director of Employment Law and Industrial Relations at the Crown Solicitor's Office, the next relevant communication appears to have occurred on 27 June 2017, when the Secretary of the New South Wales Department of Finance, Services and Innovation wrote to the Attorney General, seeking approval to commence appeal proceedings in relation to the penalty imposed upon DSF Constructions and upon Ceerose, on the basis that the penalties were manifestly inadequate and plainly unjust. The letter stated, relevantly: "Only the Attorney-General or the Director of Public Prosecutions ('DPP') may lodge an appeal under section 5D of the Criminal Appeal Act 1912. The DPP has previously declined requests to appeal in work health and safety ('WHS') matters because section 9 of the Director of Public Prosecutions Act 1986 would require the DPP to take over the matter on appeal. In December 2016, the DPP declined to take the currently proposed appeals on the basis that his office did not have the resources or expertise to conduct them. Legal services within DFSI would be best placed to provide advice and representation on this appeal due to its experience and expertise in WHS matters and its involvement in the matters at first instance. … A decision by the Court of Criminal Appeal ('CCA') is expected to provide guidance as to the appropriate factors to be taken into account on sentence, how those factors should be weighed on assessed, and what the appropriate penalty range is for offences of this kind in the high risk construction industry having regard to the maximum penalty, and the particular facts and circumstances involved. Recent proceedings which would support an appeal A recent CCA decision … supports the institution of the recommended appeal proceedings in this case. On 16 May 2017 the CCA handed down judgment in Nash v Silver City Drilling … setting aside a decision of the District Court in a WHS matter involving a mining worker and effectively doubling the fine imposed. The Court's reasons provide clear guidance in relation to penalty, and assistance in relation to considerations concerning costs." (emphasis added)
Nash v Silver City Drilling had been heard in the District Court and judgment had been delivered on 12 August 2016. It is apparent from the file number that the appeal was filed in 2016. The appeal was heard on 24 March 2017 and judgment was delivered on 16 May 2017.
The notice of appeal in this matter was filed on 5 September 2017. The evidence does not indicate when the Attorney General consented to the appeal, nor what steps were taken between the letter of 27 June 2017 and 5 September 2017.
The only other relevant activity occurred on 16 October 2017, when the Crown Solicitor's Office made an enquiry of the Registry of the District Court as to whether DSF Constructions had made payment of the fine. It was advised that the fine had not been paid and had been sent for enforcement to the State Debt Recovery Office. A subsequent enquiry revealed that the fine had not been paid as DSF Constructions' solicitors had been notified of a potential appeal.
In determining whether to allow an appeal and resentence an offender, or whether to dismiss an appeal in the exercise of the court's residual discretion, the question of delay has to be considered in the context of both any prejudice to the defendant and the reasons for the delay on the part of the prosecuting authority. The delay of over 12 months in bringing the appeal in the present matter was highly unsatisfactory. Although there are no statutory time limits for the bringing of a Crown appeal: see Matthews, it is recognised that this is not a licence for procrastination on the part of the prosecutor.
Prejudice to the defendant due to delay is also a relevant consideration in determining whether or not to resentence. Such prejudice includes where an entity has arranged its affairs on the basis that there would be no appeal given the lapse of time.
It also needs to be recognised that the importance of the efficient administration of justice is not confined to the persons affected by the process in a particular case. The requirement that prosecuting authorities act with due diligence is important for the proper administration of justice generally, not the least so as to maintain the respect of the community in the efficient, timely and fair operation of the legal process. Delay is inimical to that respect.
In the present case, DSF Constructions was advised at an early point that an appeal was under consideration. It also appears from the evidence to which I have referred that a decision had been made to appeal, but that the DPP had refused on the basis of a lack of resources. So far as the evidence goes, it appears that nothing was then done until the judgment in Nash v Silver City Drilling was delivered.
There was no indication in the two letters to DSF Constructions' lawyers from SafeWork NSW that the decision whether to appeal depended on the outcome of that case, if that was the rationale in not pursuing the appeal at that time. If it was, DSF Constructions might have been so notified. Further, if that was the reason, consideration could have been given to filing an appeal immediately and seeking to have the appeal heard in conjunction with the appeal in Nash v Silver City Drilling, both as a matter of timeliness and efficiency.
However, in the absence of any evidence as what happened between 21 September 2016 and 27 June 2017, when the Attorney General's consent to the appeal was sought, the only inference that can be drawn is that the matter lay dormant within the prosecutor's office. It is then not known what prompted the matter to be reconsidered, other than perhaps the judgment in Nash v Silver City Drilling, as was referred to in the letter to the Attorney General.
In my opinion, although there was no evidence that DSF Constructions had re-arranged its affairs on the assumption that there would be no appeal, indeed, the contrary appears to be the case, I am of the opinion that in this case the delay was unwarranted and essentially unexplained, and that there was sufficient prejudice to Mr Agusi personally that this Court ought not to intervene and re-sentence.
I confirm, therefore, that I am of the opinion that the appeal should be dismissed.
FULLERTON J: I have read the draft judgment of Beazley P and her Honour's reasons for concluding that the Attorney General's appeal against the inadequacy of the penalty imposed on the respondent following its plea of guilty to a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW) ("the WHS Act") should be dismissed.
I gratefully adopt her Honour's recitation of the facts contextual to the respondent's offending which, as her Honour noted, were drawn largely from the agreed statement of facts tendered in the sentencing proceedings. I also adopt her Honour's summary of the findings of the sentencing judge underpinning his assessment of the respondent's culpability for the Category 2 offence to which it pleaded guilty, as I do her Honour's summary of the additional findings made by the sentencing judge which addressed the extent of the respondent's appreciation of the foreseeable risk of one or more of the three skylights falling from their untethered perch on the roof beams, causing death or serious injury to people within the fall zone beneath.
I have also considered her Honour's reasons for concluding that even were there error in the sentencing judge's approach to the sentencing exercise (Grounds 2 and 3) or that his discretion miscarried by the imposition of a manifestly inadequate penalty (Ground 1), in the exercise of the Court's residual discretion under s 5D(1) of the Criminal Appeal Act 1912 (NSW) the Court should not move to re-sentence the respondent. Finally, I note McCallum J's agreement with her Honour's conclusions and the orders her Honour proposed.
For the reasons which follow, I have concluded that the sentencing discretion did miscarry. I have reached that conclusion in large part because of what I consider to be error in the sentencing judge's assessment of the respondent's culpability as within the mid-range of objective seriousness (Ground 2); an error which contributed to the imposition of a penalty which failed to meet the requirements of the sentencing principles provided for in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
It was agreed for sentencing purposes that Mr Agusi, the sole director of the respondent company, was onsite on Friday 13 April 2013 when the skylights were lifted by crane onto supporting beams within the steel structure, and that he was aware, at the end of the lifting process, that neither of the skylights was braced or tethered to the supporting beams or the steel structure. After taking into account Mr Agusi's evidence in the proceedings, the sentencing judge was further satisfied that Mr Agusi was aware that each of the three skylights were not only left unsecured and unbraced, but left in that condition in a confined space on the construction site where another working crane was operating such that were that crane to come into contact with the skylights, it would be liable to dislodge one or more of them causing them to fall unimpeded from a height of 11 metres.
In my view, it is those additional findings of fact which highlight Mr Agusi's state of knowledge or awareness of the foreseeability of the risk of serious injury or death to workers on site (a significant factor in the assessment of objective seriousness) which, when synthesised with the agreed facts and coupled with the sentencing judge's finding that the objective seriousness of the respondent's offending conduct also fell to be assessed by the offence having been committed in a "high risk industry", necessarily elevated the respondent's offending from the notional position in the mid-range of offending for breach of a Category 2 under s 32 of the WHS Act, as determined by the sentencing judge, to a finding of culpability significantly above that notional position.
In coming to that view I was mindful of the collected jurisprudence (reviewed by Beazley P at [67]) governing the limited circumstances in which the assessment of objective seriousness by a sentencing judge might be disturbed on appellate review. I would emphasise, however, that while an appellate court should be slow to interfere with a sentencing judge's assessment of the objective seriousness of the offending the subject of the sentencing exercise (whether or not it is described referable to a point on a spectrum of offending), where a particular finding of objective seriousness (however described) was not open to the sentencing judge, it is open to the Court to conclude that error has been made out in the House v The King (1936) 55 CLR 499; [1936] HCA 40 sense.
Were I wrong in finding error on that basis, I am of the opinion that in the totality of all the circumstances relevant to determining an appropriate and proportionate penalty, a penalty of $225,000 which had been discounted by 25 per cent for the respondent's early guilty plea, was both "unreasonable and plainly unjust", in the sense that it was outside an available penalty range for what I am satisfied was a Category 2 offence of considerable gravity.
Having regard to the range of matters informing the respondent's culpability that I have already referred to, and the foreseeability of the risk of death or serious injury by the respondent's offending conduct in leaving the skylights unsecured; the foreseeability of that risk materialising given the proximity of a working crane and the available and reasonableness of measures to avoid that risk (all findings of fact made by the sentencing judge), coupled with the need for the monetary penalty to accommodate the requirements of general deterrence and the requirements of specific deterrence (albeit to a relatively minor extent given what his Honour accepted was the respondent's remedial safety measures following the incident and the unlikelihood of its reoffending), a discounted penalty of $225,000 imposed against a maximum of $1,500,000 was, in my view, manifestly inadequate. I am of that view notwithstanding the matters that the sentencing judge was satisfied operated in mitigation of sentence. I would uphold the first ground of appeal.
I have also concluded, although not without hesitation, that despite the Attorney General's largely unexplained delay in prosecuting the appeal, and despite the delay in this Court's determination of the appeal, the significance of the error in the sentencing judge's assessment of the objective seriousness of the respondent's offending conduct, compounded by the magnitude of the inadequacy of the penalty where the statutory maximum of $1,500,000 is an available yardstick against which to assess an appropriate penalty, provide a sufficient basis to refuse to exercise the residual discretion in the respondent's favour. Although I acknowledge that that the principle purpose in the determination of Crown appeals is generally to afford guidance to sentencing courts, and that at the time of the determination of this appeal the Court had published 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 [52]-[57], a decision that was, in part at least, directed to achieving that objective, the sentence actually imposed by the sentencing judge on this respondent is also of importance.
I also note that as at the date of the hearing of the appeal the penalty imposed by the sentencing judge remained unpaid. Since the respondent company elected not to appear on the appeal, and where there is no information otherwise available to the Court that might inform its current financial status other than the material before the sentencing judge, there is a dearth of evidence upon which to make any informed judgment as to the current impact on the respondent of the effects of re-sentence, including any prejudice that might be occasioned by an increase in penalty.
I have concluded that in those circumstances the Attorney General has discharged the burden of satisfying me that the appeal should be allowed and that the respondent should be resentenced.
The orders I propose are as follows: 1. The appeal be allowed. 2. The monetary penalty imposed in the District Court is quashed. 3. In substitution for the monetary penalty imposed in the District Court, the respondent is ordered to pay a penalty of $450,000. 4. The remaining orders of the District Court are confirmed.
McCALLUM J: I agree with Beazley P, for the reasons her Honour has stated. As Fullerton J has reached a different conclusion, it is appropriate to give some short further explanation of my conclusion concerning the ground asserting error in the characterisation of the objective seriousness of the offence. In reaching the conclusion that the judge's characterisation of objective seriousness was open in the circumstances, I apprehend I have proceeded on a different understanding of the facts from that of Fullerton J.
The cranes owned by Coopers were unable to lift the skylights. For that task, Coopers engaged a larger crane from PC Cranes. At the time of the incident, the crane operator of the large PC crane had packed up and left the site. It was then agreed that the next stage of works (the level 2 works) would be commenced the following Monday, whereupon Mr Cooper (of Cooper's Cranes) told Mr Agusi he would pack up his cranes and leave for the day. The agreed statement of facts states that Mr Agusi then decided to go to level 2 to check measurements for Monday "and thus left the area". At some stage after that, Coopers Cranes began some lifting works in that area in which DSF was not involved.
Justice Fullerton has understood the sentencing judge to have made a finding that aggravates the seriousness of the offence, in effect attributing Mr Agusi with relevant awareness of the fact that the further lifting works were being undertaken in the area where the skylights had been left unsecured. That is not my reading of the judgment. I accept that, with respect, the sentencing judge's judgment is confusing in one respect. At the conclusion of the judgment, his Honour said at [61]: "The principal matter that has troubled me considerably is the reliance that the defendant had on the engineer with the go-ahead to put the skylight frames in place. However, to a large extent, that reliance dwindles by reason of the fact that the defendant was aware that the skylight frames had not been secured. It was aware of the presence of a crane operating near them in a tight situation and was aware that should they be knocked they were liable to fall."
While the wording could be clearer, I do not understand the sentencing judge there to be referring to the Cooper's crane that started lifting works after Mr Agusi had left the area to go to check measurements on level 2. A finding to that effect would, on my reading of the material, have been inconsistent with the agreed facts on the strength of which DSF stood to be sentenced (the agreed facts in Ceerose were different, as explained in my separate judgment in that case). On my reading of the judgment in DSF, the crane referred to at [61] is the large PC Crane. Although that was not the crane that in fact hit the skylight, Mr Agusi's awareness of its operation in proximity to the unsecured skylights was relevant to the conclusion being explained by the judge in that section of the judgment (set out above).
Indeed, that was the focus of the prosecutor's cross-examination and his closing submissions at the proceedings on sentence. There was no suggestion that DSF bore any responsibility for the acts of others after Mr Agusi left the area of the lifting works undertaken by the large PC crane. Its responsibility stemmed from the risk created by the unsecured state in which the skylights were left. During closing submissions, it was clarified (in response to questions from the sentencing judge) that the crane that hit the skylight had commenced operation after Mr Agusi left the area and that it was a completely different crane from the one used during the erection of the skylights.
DSF placed emphasis on that aspect of the circumstances of the case (together with the strong subjective case) in submitting that the penalty imposed should be at the low end of the range. In those submissions, counsel for DSF summarised the effect of Mr Agusi's evidence as being "that there wasn't an expectation that another crane would be starting up." That submission was not contradicted by Mr Agius SC, who appeared both at the proceedings on sentence and in the present appeal.
For those additional reasons, I remain of the view that the sentencing judge's conclusion that the offence fell in the mid-range of seriousness was open on the material before his Honour. Accordingly, I am not persuaded that this Court has authority to disturb that finding. On that premise and in light of the strong subjective case presented at the proceedings on sentence, I remain of the view that the sentence has not been shown to be outside the permissible range.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2019

Occupational Health and Safety Act 2000(NSW)

Solicitors: Crown Solicitor's Office (Appellant) File Number(s): 2017/270425 Decision under appeal Court or tribunal: District Court Citation: SafeWork NSW v DSF Constructions Pty Ltd [2016] NSWDC 183 Date of Decision: 24 August 2016 Before: Kearns DCJ File Number(s): 2015/84860

[This headnote is not to be read as part of the judgment] DSF Constructions Pty Ltd (DSF Constructions) was engaged by Ceerose Pty Ltd (Ceerose), the principal contractor of a building refurbishment project, to manufacture and install steel works, including a steel skylight structure. On 13 April 2013, a worker contracted to Ceerose by a labour hire company was fatally injured when the skylight structure fell on him. Before work had commenced that day, DSF Constructions had discussed the necessary exclusion zones required during the lifting operations of the skylight with Ceerose and Coopers Cranes, which had been engaged by Ceerose to undertake all lifting operations. Ceerose directed the workers not to work in the vicinity of the cranes while the lifting operations were in progress. Later that day, following the installation of the skylight structure and after DSF Constructions had been advised that Coopers Cranes were finished for the day, Coopers Cranes recommenced lifting operations. Workers were allowed to return and work in the exclusion zone under the lifting operations. The skylight structure, which had not been secured, fell when it was struck by a crane. DSF Constructions was charged with and pleaded guilty to an offence under the Work Health and Safety Act 2011 (NSW) for failing to comply with its health and safety duty, thereby exposing workers to a risk of death or serious injury. The primary judge imposed a fine of $225,000, after allowing a discount of 25 per cent for DSF Constructions' early guilty plea. His Honour found that the offence fell in the mid-range of objective seriousness. The issues on appeal were:

Whether the primary judge failed to have regard to the maximum penalty of $1,500,000 and to the fact that this was a significant increase from the maximum penalty prescribed under the previous legislative scheme (Ground 1);
Whether the primary judge erred in his assessment of the objective seriousness of the offence (Ground 2);
Whether the penalty imposed was manifestly inadequate (Ground 3); and
Whether, in any event, the Court should exercise its residual discretion not to intervene (Ground 4). The Court held, dismissing the appeal: In relation to Ground 1 Per Beazley P (Fullerton and McCallum JJ agreeing) (i) Although the primary judge did not refer to the maximum penalty or to the fact that the penalty had been substantially increased, it could not be said that his Honour failed to have regard to these considerations: [61]-[66]. In relation to Ground 2 Per Beazley P and McCallum J (ii) The primary judge's finding that the offending conduct was in the mid-range of objective seriousness did not disclose an appealable error: [75]-[83]; [127]-[132]. Mulato v R [2006] NSWCCA 282; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 89; Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 considered. R v KB [2011] NSWCCA 190; Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37; Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 referred to. Per Fullerton J (dissenting) (iii) The objective seriousness of the offending conduct was significantly greater than that found by the primary judge, having regard to the state of knowledge of DSF Constructions' director of the further lifting operations: [116]-[119]. In relation to Ground 3 Per Beazley P (McCallum J agreeing) (iv) The penalty imposed was not manifestly inadequate, having regard to, inter alia, the size and scope of DSF Constructions' operation and the fact that DSF Constructions showed genuine remorse, assisted the authorities in the investigation and immediately implemented appropriate work safety procedures: [87]-[93]. Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2; Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96; Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 considered. Per Fullerton J (dissenting) (v) Having regard to the totality of the circumstances, the fine imposed on DSF Constructions was unreasonable and plainly unjust: [120]-[121]. In relation to Ground 4 Per Beazley P (McCallum J agreeing) (vi) If contrary to the opinion of the majority the sentencing judge erred, the Court would have exercised its residual discretion not to intervene, having regard to the Attorney General's unwarranted and largely unexplained delay in prosecuting the appeal: [94]-[111]. R v Hallocoglu (1990) 29 NSWLR 67; R v Pham (1991) 55 A Crim R 128 considered. Per Fullerton J (dissenting) (vii) The Court should refuse to exercise its residual discretion, having regard to the significance of the error in the primary judge's assessment of objective seriousness and the magnitude of the inadequacy of the penalty: [122]-[123].

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Source

Catchwords

Judgment (10 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (37)

Cited By (12)