Corrado v Gebhardt [1999] VSC 35

5. I briefly describe the background to the County Court hearing which has led to the present application pursuant to Order 56. The respondent (Diamondquest) was a textile company carrying on a business of dyeing and processing textiles and in aid of that process had installed in its factory at Tottenham a brushing machine made in Taiwan. The machine was designed to brush textiles fed into it through revolving rollers which spin at high speed. The machine was unguarded and in December 1995 while attempting to adjust fabric being fed into the machine an employee had his right hand and arm caught by the rollers and drawn into the machine whereby he suffered injury. The injury, whilst by no means trivial, was not in any way catastrophic, the worker being treated at hospital for severe muscle laceration of his arm which required a skin graft. He also had some limitation for a couple of months or so but then returned to work. One charge under the Occupational Health & Safety Act 1985 arising out of this incident was laid against the company which pleaded guilty to that charge. Section 47(2) of the Act provides for a maximum penalty of $40,000. The Magistrates' Court at Williamstown convicted the appellant, and imposed a fine of $20,000 and prosecution costs in the sum of $1500.

8. There were other matters that were not in dispute before the magistrate on this plea. On the day of the incident a private consultant on health and safety was engaged by management to carry out a hazard identification. Recommendations for the placing of guards on a number of machines were made, the company promptly complying with those recommendations. It appeared from material put before the magistrate that the general manager of the company, a Vietnamese gentleman Mr. Duc Vinh Lac had no knowledge of the Act's provisions (the relevant regulations came into operation on 1st July 1995) at the time of the accident. Mr. Lac had filed an affidavit to the effect that the company did everything within its power to avoid any employee receiving injury in the workplace and did not believe it could have prevented the incident. From the fact that the relevant machine was unguarded, and there were other machines unguarded, it might be said that it was open to the magistrate to conclude that the company had failed to meet its obligations as an employer to protect its employees from the risk of injury and that it had exposed them to an unsafe working environment. This affidavit was also part of the material before Judge Gebhardt and the deponent was not cross-examined.

11. The company Diamondquest appealed against the sentence imposed to the County Court of Victoria pursuant to s.83 of the Magistrates' Court Act. Section 85 of the Magistrates' Court Act 1989 is as follows:

An appeal under section 83 or 84 must be conducted as a re-hearing and the appellant is not bound by the plea entered in the Magistrates' Court."

(1) On the hearing of an appeal under section 83 or 84, the County Court -

(a) must set aside the order of the Magistrates' Court; and

(b) may make any order which the County Court thinks just and which the Magistrates' Court made or could have made; .."

For convenience, I refer also to some aspect of appeals from the County Court. It was accepted by both plaintiff and second-defendant in this proceeding that it was not possible for the plaintiff informant Corrado to appeal to the Court of Appeal against the sentence imposed by the County Court. Section 91 of the Magistrates' Court provides for a right of appeal to the Court of Appeal if the County Court has substituted a penalty of imprisonment for a lesser penalty imposed by the Magistrates' Court, subject to the leave of the Court of Appeal.

22. The second defendant's notice of appeal was dated 26th August 1997 and it was heard on 11th November 1997. The only ground of appeal was that the punishment was excessive. On the appeal, the appellant was represented by Mr. Halse of counsel (who had appeared in the Magistrates' Court and appeared for the second defendant in the proceeding before me) and the respondent, the informant Corrado in the Magistrates' Court was represented by Mr. Maidment of counsel who had not appeared to prosecute in the court below. Mr. K. Armstrong of counsel appeared for the plaintiff in the proceeding before me. Because the appeal was a re-hearing the prosecution commenced. The plea was still a plea of guilty. Counsel for the plaintiff, Mr. Maidment, submitted to the Court a document entitled "Outline of Case for Respondent" which is Exhibit MKC3 to the affidavit of the plaintiff's solicitor M.K. Costello of 24th December 1997. That outline set out all of the relevant facts which were essentially non-contentious save with respect to some aspects of the general approach of the company and its officers to the obligations under the Occupation Health & Safety Act and the Regulations. The written submission also addressed the applicable law referring to decisions of the County Court and a decision of Harper, J. of this Court in Holmes v. R.E. Spence & Co_._ (1992) 5 V.I.R. 119 at 123, it being put on behalf of the prosecution that the appellant had failed to meet its obligations as a employer requiring use by its employees of the constantly running dangerous piece of machinery, setting out a number of particulars in support of that proposition. I refer to two sentences in the written submissions which are of importance:

"The fine imposed by the learned magistrate was exactly half the maximum. The offence, it is submitted, should be regarded in all the circumstances as within the middle to upper range of seriousness."

"In summary, it is respectfully submitted the sentence selected by the learned magistrate was appropriate and no less than is required to give effect to the objects of the Act. In particular it is submitted the ignorance of the appellant, as displayed by the evidence of this case, indicates a need for the Court to maintain ... the tariff of sentences for offences under the Act."

This was clearly a submission that there should be no alteration in the sentence imposed. Bearing in mind that the proceeding was against a corporation, apart from any particular undertaking or conditions that might be attached to any sentence fashioned by the County Court, the basic sentences could only be either (a) conviction and no fine; (b) conviction and fine; (c) no conviction and no fine. It would appear to me that counsel for the prosecution must have been fully aware when putting his oral submissions in support of the written submissions to the County Court judge that that was the range of basic options open to a County Court judge. There might, of course, be special conditions imposed. It would appear that that knowledge, and submissions with respect to it, are denoted by the reference to the fact that the sentence selected was appropriate and no less than that was required to give effect to the objects of the Act. This was a clear submission that the Court should record a conviction and should not impose any less fine than was selected by the magistrate.

28. According to Mr. Costello's affidavit, Mr. Maidment also referred to the affidavit sworn by Mr. Lac on 30th July 1996, a summary of outcomes of recent prosecutions under the Occupational Health and Safety Act between 1st January 1997 and some summaries of recent prosecutions under the same Act between 1st January 1995 and 31st March 1997. These summaries were exhibits to Mr. Costello's affidavit. I shall hereinafter refer to them as the "case summaries". Mr. Costello's affidavit also exhibited a document headed "Instructor's Notes" which he claimed gave an abbreviated but fair account of the appeal. It was, however, based upon some unproduced notes and apparently settled with the assistance of his recollections and with the aid of Mr. Maidment. Those notes indicate that shortly after the documents has been handed to the judge, i.e. after counsel had handed up his written submissions, the case summaries and the affidavit, the judge inquired of Mr. Halse as to whether the appellant corporation knew that he, the judge, was "at large" on the penalty, and was told "Yes." In the course of Mr. Maidment's submissions, the judge said "This is not the most serious case. I am not given to overturning sentences. We are dealing with a company not of this culture which has wanted to do something within this culture. It had spent money buying sophisticated machinery."

31. The judge referred to the protective nature of the Act. At one point his Honour enquired as to what the prosecution said about the factory as a whole to which Mr. Maidment replied: "Nothing, but several machines were unguarded. This machine cost $250,000." Mr. Maidment also stated general deterrence is the prime sentencing factor. The judge then stated: "What if the company goes out of business? I fully support the principles of the Act but a large fine could put them out of business." Mr. Maidment said, "So be it." The judge referred to one of the cases where someone had died and the penalty was less than the magistrate had imposed in this case. When asked about remorse, Mr. Maidment said it had no relevance within the corporate context but he had referred to the affidavit of Mr. Lac because it was used to indicate remorse in the Magistrates' Court. He contended to the County Court judge that it did not show remorse "I am getting in first". Mr. Maidment submitted photographs of the machine and concluded his case and submissions.

34. Mr. Halse for the appellant then commenced his submission, contending that the penalty was too high for the type of behaviour. He accepted much of what Mr. Maidment said but claimed there was prompt attention by the company to the requirements of its obligations under the Act and that it took health and safety seriously. After questioning, the judge was told by Mr. Halse that the appellant could have the consultant Killeen "tomorrow". The proceeding was adjourned until the following day to enable the appellant to call some evidence on penalty.

37. Mr. Killeen was called and cross-examined with Mr. Maidment taking him through what the regulations provided by way of obligations (although there were no charges under the regulations). Evidence was given by Killeen that the company had been very co-operative. There was also called on the second day a WorkCover Risk Manager who stated that there was a Health and Safety Committee in the factory and the company was very concerned with health and safety. Mr. Halse embarked upon giving some facts concerning the Lac family and told the judge that the injured worker was back at work with the company. At that point it appears that the judge intervened and announced "I will allow the appeal and set aside the order of the Magistrates' Court". This appears to be equivalent of what is not uncommon in the old reports of the arguments of counsel "He was stopped."

40. The learned County Court judge, through his tipstaff, had a hand-held tape-recorder record his sentencing remarks. Ultimately, they are as follows:

"I will allow the appeal and set aside the order of the Magistrates' Court. This matter is adjourned without conviction for 24 months. The conditions of that adjournment will include the following; the company is to come back to this Court after 12 months and that is Monday the 9th November 1998 to provide evidence to this Court of its continuing progress with respect to the objects and purpose in the regulations of the Occupational Health & Safety Act."

"I treat the objects and purposes of the Act with seriousness and understand fully the strict liability imposed upon employers with respect to safety of employees. But in this instances I am satisfied that the company has not been wilful. It has been neglectful but it has not been wilful in its neglect."

His Honour expressed satisfaction that the company had taken serious steps to meet its obligations. He made a reference to one of the decisions in the summary of cases, Tower Crane to which I will later refer. The form of order made on the appeal was that the case be adjourned without conviction for 24 months on the conditions that the company (1) come to Court on 9th November 1998 and provide evidence of continuing progress with respect to the objectives, purposes and regulations of the Occupational Health & Safety Act 1995, and (2) pay by 18th December 1997 the sum of $5,000 to the Salvation Army. An undertaking was entered into by the company through Mr. Lac which included undertakings to be of good behaviour during the period of the undertaking and appear in court when required and on 9th November 1998.

49. The transcript of the sentencing remarks and those that immediately followed it (Exhibit 8 to Mr. Costello's affidavit) indicate that at no time from the termination by the County Court judge of Mr. Halse's address did Mr. Maidment for the respondent on the appeal ever ask for a further right to address. On the contrary a number of statements were made by him related to the provision of the appropriate forms, costs, Appeals Cost Fund, orders and other routine dealing with exhibits and the affidavits.

52. An affidavit on behalf of the second defendant by one Peter Davidson, his solicitor, has supplemented the material concerning what occurred before his Honour Judge Gebhardt. According to that affidavit, (1) neither counsel said or otherwise indicated to the Court that the appeal was being conducted on the basis that the only issue was the appropriate of the fine. I take it this is put forward on the basis that it was never suggested by the appellant that it was acquiescing in the recording of the conviction. (2) His Honour cautioned Mr. Halse that he was at large with respect to the penalty. (3) No specific submission was made by Mr. Maidment that a conviction had to be recorded. (4) The judge said that while he was not giving to overturning fines, the penalty imposed in the Magistrates' Court appeared to be extremely substantial to which Mr. Maidment submitted that while it appeared to be on the high side it was in the range of average penalties and in any event each case had to be treated on its own merits.

55. According to Mr. Davidson's affidavit the judge said the penalty imposed appeared to be extraordinarily punitive and the company had not fallen into the trap of exploiting its workers. This affidavit also developed to some extent the oral submissions of Mr. Maidment concerning the protective nature of the legislation, that liability was absolute, that the objective was to promote deterrence and designed to achieve a level of penalty appropriate for that purpose. The affidavit specifically details the calling on the second day of the health and safety consultant Killeen and Espridis, the WorkCover Risk Manager.

58. Mr. Halse in his submissions to the Court gave a history of the second defendant's company and the family that owned it. He made submissions concerning mitigating factors, including the rehabilitation and return to work of the injured employee, the immediate guarding of the machine in question, co-operation with the WorkCover Authority, the arrangement for safety audits to be conducted and the engagement of safety consultants on an ongoing basis and the fact that the company had no prior convictions under the legislation. According to this affidavit it was at this point that the learned judge stopped counsel for the appellant and indicated that he would allow the appeal and set aside the order of the Magistrates' Court. He then went on to make the orders to which I have referred.

61. The originating motion of 24th December in this proceeding identified a number of grounds upon which the relief in the nature of certiorari sought was based. Only two of them are necessary to be addressed by me as Mr. Armstrong abandoned the ground that relied upon jurisdictional error. It is therefore unnecessary for me to refer to that again.

64. The two grounds argued before me were (1) that the first defendant failed to observe and apply the requirements of procedural fairness. This appeared to have two aspects, first, that the judge failed to draw to the notice of counsel for the plaintiff (the respondent on the appeal) that he was considering making an order under s.75 of the Sentencing Act which did not involve the recording of a conviction or the imposition of a fine, so as to provide a fair opportunity for contrary argument to be presented, thereby failing to afford the plaintiff an opportunity of responding to submissions on behalf of the second defendant before allowing the appeal. I should say that it does not appear that counsel for the second defendant, the appellant before the judge, had specifically put a submission that there should be no conviction and no fine although he had commenced to develop submissions in relation to matters in mitigation. The second aspect of the procedural fairness complaint is that the learned judge failed to draw to the notice of counsel for the plaintiff views held and expressed by the judge in his reasons for sentence "represented in the decision in Tower Crane". I propose to deal with the second of these matters immediately as in my view it is wholly without merit and was not much developed by counsel for the plaintiff before me. Tower Crane was one of the cases in the case summaries which is a very substantial exhibit containing a mass of cases most of which were utterly irrelevant to the matters before this judge and which were not specifically addressed by counsel for the prosecution when making submissions on the appeal. Tower Crane Specialists Pty. Ltd. was a case in which a employee of that company had sustained injury when he fell from scaffolding when it was being disassembled; the defendant was convicted and fined $26,000 on a charge under a different section of the Act. On appeal to the Melbourne County Court the judge affirmed the penalty, conviction and fine. The only aspect of the report of that case which could have any relevance to Judge Gebhardt in respect of this matter was the third paragraph in the four-paragraph summary of it to this effect:

"The Judge noted that the Act envisaged a high standard of employers and that the Act was specifically designed to protect workers and members of the public. His Honour further noted that section 22 dealt with members of the public being exposed to risk."

Nothing in the facts of Tower Crane or the decision would have been of significance or assistance to his Honour, it being just one of the myriad of cases reproduced in the brochure of cases, save for that one aspect. Clearly the reference by Judge Gebhardt to Tower Crane was a reference to the statement by the County Court judge in that case that the Act envisaged a high standard of employers and that the Act was specifically designed to protect workers and members of the public. I have no doubt that it was this aspect of Tower Crane that his Honour had in mind when he referred to it. It was the only relevant aspect. It verges on the impertinent for the plaintiff in this proceeding, having on the earlier appeal been the party that referred a whole mass of cases without specifically identifying any one case to complain that it was not afforded procedural fairness in respect of the court's reference to that case. Indeed the only relevant reference to it made by Judge Gebhardt was in fact in support of the submission put by Mr. Maidment that the Act was to protect workers and that the obligations imposed upon the employer were serious and non-delegable. The submission that this amounts to any procedural unfairness is absurd. I will return to the main ground shortly.

69. The second main basis upon which the originating motion is fashioned was that the first defendant made errors of law on the face of the record in that (1) the sentence imposed pursuant to s.75 of the Sentencing Act in the exercise of the powers conferred under s.86(1)(b) of the Magistrates' Court Act was one which no reasonable judge acting judicially could have made in the circumstances, in that he failed to give effect to the need for general deterrence; that he gave too much weight to the absence of wilful negligence and too much weight to the absence of prior convictions and that the sentencing order was over-lenient in comparison with comparable sentences passed in similar cases. I will also refer t this aspect later.

72. Before proceeding to a consideration of the grounds, I will briefly deal with non-contentious legal aspects. First, whilst I propose to say something later in these reasons concerning the use of Order 56 proceedings in cases of this kind, there can be no dispute that relief in the nature of certiorari under Order 56 is available to correct errors of the County Court made in the exercise of its appellate jurisdiction pursuant to s.83 of the Magistrates' Court Act. See: Hansford v. Judge Neesham (1994) 7 V.A.R. 172 at 178 (J.D. Phillips, J.); Brand v. Parson [1994] VicRp 17; [1994] 1 V.R. 252, Fagioli v. Ure (1996) 84 A.Crim.R. 504; and Flynn & Ors v. DPP & Anor [1998] 1 V.R. 322. It has been recognized that relief in the nature of certiorari as envisaged within Order 56 reaches to grounds which will include (1) a lack of procedural fairness or breach of natural justice; (2) jurisdictional errors; (3) errors on the face of the record. No argument was advanced before me that the remedy sought was not arguably available on this proceeding. Thus I need not consider for the purpose of this case the issue of whether relief in the nature of certiorari may go to correct an error of law or failure to provide procedural fairness when the County Court is exercising jurisdiction pursuant to s.83 of the Magistrates' Court Act in appeals against sentence for offences contrary to the Occupational Health & Safety Act 1985. Second, there is no issue argued before me concerning what is the record for the purposes of the error in the face of the record or to enable the perception of any procedural unfairness or breach of natural justice. I have had occasion in other decisions to consider the effect of the decision of the High Court of Australia in Craig v. South Australia [1995] HCA 58; (1995) 184 C.L.R. 163 at 175-176. There is no dispute about what is the record in this case. Section 10 of the Administrative Law Act 1978 provides that in a case of an inferior court (such as the County Court) the "record" includes any reason given for the decision whether in writing or orally. See also Hansen (supra) and Flynn (supra) and my own observations in Frugtniet v. Victoria Legal Aid, unreported, 11th March 1997. In that case I expressed the view that in many cases the Court may need to refer to some background material to make the record which has to be examined accessible and meaningful. In this case it is not necessary to examine this aspect further as both plaintiff and second defendant in their affidavits and exhibits filed in this proceeding freely referred to what transpired in the course of the hearing and the relied on the exhibits tendered. These included, as I have indicated, the outline of the case for the respondent prepared and addressed by Mr. Maidment for the respondent, the affidavit of Mr. Lac (Exhibit MCK4), the summary of recent prosecution documents, the instructor's re-constructed notes of the proceedings and the summary of cases.

75. I turn to the procedural fairness aspect. The substance of the complaint is that the judge proceeded to uphold the appeal, set aside the magistrate's decision and to sentence the appellant without recording a conviction or imposing a fine (other than the requirement to pay $5,000 to the Salvation Army) without drawing to the notice of the plaintiff his intention to do so so as to give the plaintiff an opportunity to argue to the contrary. The submission was frankly put that the plaintiff was entitled to notice, that is, counsel had a right to be told that the judge was considering the imposition of the no-conviction and no-fine sentence on the second defendant. It was also put that the plaintiff prosecutor was entitled as a matter of procedural fairness to respond to the submissions on behalf of the second defendant by further submissions as to the appropriate sentence, before the court passed sentence. It was specifically put as a submission that that was a right, a corollary, it was said, to the prosecution's obligation to assist the court to avoid appeal over an error in sentencing, reliance being placed upon R. v. Tait & Bartley (1979) 24 A.L.R. 473, the claim being made that the duty extended to correcting any errors of fact or law in submissions made by defence counsel. This appears to have little to do with this case as defence counsel had not reached a point of putting any specific submission about what the appropriate sentence was.

78. It is not apparent to me that there was any error of fact or law in the County Court judge, on the whole of the facts before him, in exercising his discretion so as not to record a conviction or impose a fine. Subject to the provisions of the Sentencing Act, the sentencing process is substantially discretionary.

81. Ample reference was made in submissions to the decision of the N.S.W. Court of Appeal in Parker v. Director of Public Prosecutions and Anor (1992) 28 N.S.W.L.R. 282. As appears from the reasons for judgment of Kirby, P. (with whom the other members of the court agreed) this was a case in which the District Court judge failed to disclose the view that he held as to the binding effect of two decisions of the Court of Criminal Appeal on him. Kirby, P. cited from the decision of the High Court in Pantorno v. The Queen [1989] HCA 18; (1989) 166 C.L.R. 466 (Mason, C.J. and Brennan, J.) to the effect that if there are particular reasons for a judge contemplating a custodial sentence, especially on an appeal from a non-custodial sentence, the judge should indicate that to the accused's representative. The reason is that "both by statute and by common law a custodial sentence is conserved to cases where the relevant alternatives have been exhausted. Such a sentence is apt, it is often said, where no other course is appropriate with the most serious penalty now known to the law, loss of liberty, is required by the application of applicable sentencing principles." (Kirby, P. at 296.)

84. It may be, as Kirby, P. states, fair procedure requires, at least in important decisions and in respect of matters critical to the determination of the case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented to advance contrary argument to persuade the judicial decision-maker to a different view. All of these statements have been made in the context of increasing a sentence from non-custodial to custodial and, in Parker's Case, having regard to the convention prevailing in the N.S.W. District Court.

87. This re-draws attention to the context of this case. Without intending to depreciate the seriousness of the breach of the kind here admitted, it is impossible to ignore the fact that this was a case of a corporation pleading guilty to a workplace statutory offence, where the circumstances of the offence were by no means highly reprehensible and in respect of which subsequent efforts to improve safety of standards had been made. I note that in this case, as the learned judge doubtless noted, that the relevant machine was purchased from overseas without a guard but was equipped with a button pressing system designed to enable the operator to substantially reduce the risk of injury from the rollers. None of this made the machine compliant with Victorian law but it is not a case in which the guard was deliberately removed or raised.

90. One might be forgiven in this case for suspecting that the prosecuting authority became annoyed that the judge, who delivered what might be regarded as a sentence at the lenient end of the scale, acted contrary to what the prosecutor thought was the necessary standard sentence, based upon the history of the same prosecuting authority's persuasion of former magistrates not to exercise leniency.

93. Moreover, the plaintiff's submissions to me proceeded upon the basis that the prosecutor-respondent in the County Court had a right of reply. By that I mean, an ineluctable ineradicable right to reply to submissions made subsequent to the prosecution submission, in order to rebut them. This misconceives the nature and procedure of an appeal to the County Court from a magistrate. It is a rehearing. It is not an appeal strictly so called to an appellate court in which the conventional practice is that the prosecutor might briefly open the facts and law to the appeal court, have the appellant present its argument on the appeal, with the prosecution replying. This was not such an appeal. It was a hearing de novo, in the words of the Act, a rehearing. The obligation lay upon the prosecution as it normally does, to put the whole of the case on fact and law to the judge in opening and in the calling of evidence. The appellant, really the defendant for the purposes of the rehearing, makes its defence response on the law or with evidence. It may be that in some cases the tribunal might invite the prosecuting respondent, in respect of matters about which doubt is held or legal argument might thought to be helpful, to make further submissions. In my judgment, there is no right in County Court appeals for the opening respondent to reply. Even if I am wrong in my judgment of that procedural propriety, this was not a case in which it could be said that having regard to the way in which Mr Maidment presented the case that he had such a right. It was an appeal on the matter of sentence only. The number of options was limited, and not difficult to perceive. It is absolutely clear from the reading of the submissions made and prepared by counsel for the prosecution that he was putting the case that there should be no reduction in the sentence. He did address the Court (although it must be said that he appears to have been so confident about his position that he did not develop the argument) by insisting upon the maintenance of the sentence imposed by the magistrate. Thus he was conscious of and anticipated the chance of the risk that a more lenient sentence might be imposed. That is a matter which he should have specifically raised with the County Court judge when he addressed the County Court judge. If that is incorrect, although it may have involved some interruption to the learned County Court judge, he should have raised the issue of his right to further address, or his desire to do so, as soon as he became aware of what the judge was doing. Not only did he not do that, he confined his observations to matters involving the acceptance of what had been said. See also Autodesk Inc v. Dyason (No. 2) [1993] HCA 6; (1992-3) 176 C.L.R. 300.

96. This is not to say that I necessarily hold the view that it was prudent of the learned County Court judge not to have raised for possible response the sentence which he had in mind. Nevertheless, there can be no rigidities defining the way in which judges should approach the sentencing process which is by and large meant to be an exercise of discretion, with due regard to necessary statutory directions and inhibitions. There were opportunities for the prosecution in this case, even after counsel had completed his address, to have raised the issue. The judge initially warned the appellant (but the point was just as applicable to the respondent) that he was at large on the issue of sentence. As the passages attributed to the judge, reproduced by me, indicate, he was clearly thinking along the lines of a more lenient sentence because of the view he had formed and articulated about the appellant's co-operative conduct. In an even more powerful indication, the learned judge adjourned the proceeding to the next day to enable evidence in mitigation to be called. It was self-evident, one might say, that from the judge's statements on the previous day about the penalty being substantial and his expressions of at least a provisionally favourable perspective about the performance of the company, that he was looking along the lines of a sentence which might well fall into the category of no conviction - no fine. Notwithstanding that, when the matter was called on the next day, nothing was said by the prosecuting counsel, that is, counsel for the respondent in the appeal, to raise his concerns about the possible disposition of the matter in that way.

99. In R. v. Mantini [1998] 3 V.R. 340, the Court of Appeal had to consider an appeal against sentence which primarily drew in questions of whether the cumulation and totality process on sentencing adopted by the County Court judge led to any procedural unfairness. It is not necessary to examine the irrelevant detail of that aspect, but at the hearing of the appeal the appellant had sought leave to add an additional ground that the sentencing judge denied the offender natural justice by failing to indicate that he intended to depart from the prima facie provisions of s.16(1) of the Sentencing Act 1991 in directing cumulation. Essentially, in that case, the argument was that the County Court judge should have indicated that he intended to depart from what counsel argued was a presumption in favour of concurrency arising in s.16(1) of the Sentencing Act (see Pantorno (supra)). Nothing had been said about cumulation by the judge. The case came before the Court of Appeal on this aspect and upon an application for leave to amend the grounds of appeal (which is not granted as of right, although it was not opposed by the Crown), Callaway, J.A. stated, with respect to the failure of the judge to raise the issue of cumulation rather with counsel:

"Nothing was said to lull counsel into a state of false confidence. He must have been aware that cumulation was a possibility in respect of which the plea was his opportunity to make submissions if he thought that that was expedient."

I respectfully adopt and apply the reasoning inherent in his Honour's statement, unarguably applicable to the conduct of the appeal before Judge Gebhardt.

104. I decline to elaborate this aspect further. This was a case in which the possibility of a more benign sentence was on the cards. The County Court judge was entitled to take into account the statements in the affidavit of Mr. Lac, not cross-examined on in the appeal, in diminution of the sentence. He was entitled to take into account the evidence called and presented on the adjourned date. Ample opportunity was there for counsel for the respondent on that appeal to rise to request the opportunity of putting arguments against the imposition of a more lenient than that which the magistrate imposed.

107. In my view, having regard to the evidence which he had heard, the trial judge was entitled to stop counsel for the appellant if he was then persuaded by the material put before him that the sentence which he did impose was justified. He did not have to hear counsel for the appellant further if, based on the submissions he had heard, and the application of his own intelligence and experience, that a conviction was not the proper sentence in the circumstances nor the imposition of the fine. It is irrelevant, so far as I am concerned, whether or not I would have shared that view or not shared that view. This is a point of whether or not injustice occurred and any procedural unfairness was visited upon the respondent. I have no doubt that none of that occurred and I reject the submissions made to the contrary.

110. I return to the argument, not easy to understand, that there was an error of law on the face of the record. I do not refer again to the hopeless argument founded upon his Honour's fleeting reference to the Tower Crane Case. The argument here advanced is that the learned judge failed to have regard to and comply with the provisions of s.8(1) of the Sentencing Act 1991. I note that the prosecutor (here relying upon the obligation of the prosecutor to assist the judge in support of the failed earlier argument) did not refer the judge to s.8(1) of the Sentencing Act 1991 or make any submission about it. I do not criticize the prosecutor in that respect as both he and the judge, and for that matter counsel for the defence, would have been fully aware of the provisions of the section. It amounts to a palpable absurdity to think that an experienced Crown prosecutor and County Court judge were unaware of the provisions of s.8(1) which provides that:

"In exercising its discretion whether or not to record a conviction a court must have regard to all the circumstances of the case including

(b) the character and past history of the defendant;

(c) the impact of the recording of the conviction on the offender's economic and social well-being or his or her employment prospects."

117. The argument advanced by the plaintiff with respect to this was that the judge failed to have regard to and comply with the provisions of s.8(1). There is nothing to indicate that he did fail to have regard to it. I am prepared to assume that prior to proceeding to the sentence which he did impose that his Honour, sitting regularly as he does in the criminal jurisdiction of the County Court, was well familiar with the provisions of s.8(1). Taking into account the matters stated by his Honour whilst submissions were being made, and his sentencing remarks, it is clear that he did regard an offence under s.8(1) of the Act as being a serious offence and that it was social legislation designed to protect workers and other members of the public.

120. Moreover, the calling of evidence as to character and past history of the offender were matters that the court thought it appropriate for it to consider and hear evidence about. It was aware that the corporation had no prior convictions, and aware of when it was incorporated. It heard significant evidence about that aspect. It does not appear to me there was any evidence of the impact of the recording of the conviction on the corporation's economic well-being but there is no reason to conclude that a court regarded that as being anything but a peripheral aspect in the whole of the circumstances. Nor do I accept, to the extent that the issue is part of the alleged error in the face of the record, that his Honour failed to give regard to the need for general deterrence. A submission about that had been strongly put both orally and in writing by the respondent to the appeal on the hearing of the appeal. The observations of the judge as to the absence of wilful neglect, the reference to the absence of prior convictions and the "good record" and "contribution to the community" of the second defendant indicate that matters appropriately to be taken into account in the exercise of the discretion were taken into account.

123. In Independent Cargo and Wool Services Pty. Ltd. v. Mangar (unreported (1992)) N.S.W. Industrial Court, CT 1041, the Full Court of that Court stated:

"The true measure of a penalty lies in the nature and quality of the offence not merely the result of the offence. If in any given case the failure involved was a serious and obvious one, with a clear potential of creating danger to persons employed in industry, even though no one was killed or injured, the case because of its nature and quality may well require the imposition of a major penalty. It follows of course that the converse of the above proposition must also be true. (My emphasis.)

127. It is ironic to note that this was one of the authorities referred by the prosecution to the trial judge. The "converse" of the proposition appears to have been abandoned in the arguments advanced to me. Accordingly I am of the view that none of the grounds in support of the originating motion have been made out. Even if I were of the view that they had been established, I would not have been of the view that this was an appropriate case to exercise the discretion to grant relief in the form of certiorari. One accepts that there is no genuine alternative remedy or procedure for relief available to the plaintiff other than resort to Order 56, in a case of this kind. I would not myself take the view that it was a case appropriate for resort to s.446(1) of the Crimes Act 1958 as to the resolution of a question of law for the Court of Appeal.

130. The reason why I state that I would, even if the ground had been made out, have been unlikely to grant the discretionary remedy of relief in the nature of certiorari, is that it is not an appropriate case for it. The legislature, save for the exceptions to which I have referred, has drawn a line about appeals from Magistrates' Courts. Fundamentally, there is one appeal by way of re-hearing to the County Court and one on a question of law to the Supreme Court. Appeals beyond that to the Court of Appeal are founded on very narrow basis, not here applicable. I accept that in the event of the appropriate matters being established, the jurisdictional fact to attract an O.56 application may exist. Nevertheless, the authorities show (and it was clearly so stated by McDonald, J., applying well-established authorities, in Flynn v. D.P.P.) that:

"Not every error demonstrated to exist in an order of the County Court exercising its jurisdiction under s.83 of the Magistrates' Court Act or demonstrated to exist in the reasons for the decision of a judge of that court in such proceedings entitles the person affected by the order to have the order quashed in proceedings before the Supreme Court seeking relief in the nature certiorari. What must be demonstrated was that the error was so fundamental to the decision of the court as to strike at the very root of its order and to invalidate it. Other errors of law on the face of the record of an inferior court, including the reason for decision, would not entitle this Court in the exercise of its supervisory jurisdiction to grant leave in the nature of certiorari to quash an order of that court." (see pp.340-341)

134. None of this cuts across the proposition that certiorari may be used in appropriate cases to correct error where there is no right of appeal, even when in the circumstances where the right of appeal has been inferentially circumscribed by statute.

137. But this was a case of a simple penalty on a plea of gulty about which there might be legitimate differences of opinion having regard to the circumstances of the breach, the circumstances of the offender and all of the other circumstances relevant and appropriate to be considered by the sentencing court. I return again to other statements by Callaway, J.A. in Mantini, his Honour saying:

"There is almost always a range of sentencing dispositions and an appellate court does not interfere, in the absence of specific error, unless the disposition chosen by the judge is clearly inappropriate or the sentence is manifestly excessive."

141. One accepts there may be cases in which a judge ought to tell the prosecuting authority what sentence he proposes to impose before he imposes it. This would not be commonplace. As a general proposition, that course will not much assist in the sentencing process. The only "surprise" element involved in this case was that the prosecution (which did not pretend to be objective about the matter) was surprised to learn that there was another view that might be held that in this particular case a lesser and lenient sentence was warranted. The presentation of a series of previous sentencing dispositions which it led to enable it to be inferred that an average fine of $15,000 was the common denominator would, unless challenged from time to time or disagreed with on appropriate occasions, become the sentencing norm. This heresy should be nipped in the bud. The judge was at liberty, as long as he had regard to the appropriate sentencing principles and the relevant sections of the Sentencing Act, to take the view that he did. The only matter raised that has any substance at all is that he should have told the respondent prosecutor specifically that he was proposing to give a lighter sentence. This was said to constitute procedural unfairness and an error of law. To uphold this submission in these circumstances would be not only offensive to common sense but would encourage a back-door system of appeals on convictions as well as sentence through Order 56 of this Court, to the contrary of the statutory regime. In my opinion this is a deplorable application and I have some degree of satisfaction in rejecting it.