Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan - [2001] NSWIRComm 106 - NSWIRComm 1996 case summary — Zoe

NSWNSWIRComm

Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan

[2001] NSWIRComm 106

Industrial Relations Commission (NSW)|1996-05-15|Before: Wright J, Walton J, Hungerford J, Kavanagh J, Mr P, Schmidt J

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1996-05-15

Before

Wright J, Walton J, Hungerford J, Kavanagh J, Mr P

Source

Original judgment source is linked above.

Judgment (83 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan [2001] NSWIRComm 106 APPELLANT: The Crown in Right of the State of New South Wales (Dept of Education and Training) PARTIES : RESPONDENT: Inspector William Kevin Keenan FILE NUMBER: IRC 7002 of 1999 CORAM: Wright J President; Walton J Vice-President; Hungerford J CATCHWORDS : Appeal - Occupational health and safety - Appeal principles - Multiple offences - Approach to sentencing for multiple offences required by Pearce v The Queen - Totality principle - Plea of guilty - Penalty imposed held to be excessive - Appeal upheld - Substituted penalties imposed for each offence. Criminal Appeal Act 1912 s 5AA LEGISLATION CITED : Factories Shops and Industries Act 1962 s 27 Industrial Relations Act 1996 s 196 Occupational Health and Safety Act 1983 s 15 s 16 s 51A Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, (2000) 99 IR 29 Close (1993) 65 A Crim R 55 Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16 Corbett v. Borg (unreported, Hungerford J, CT95/1281 and CT95/1282, 15 May 1996) Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Giam (No 2) (1999) 109 A Crim R 348 Gordon (1994) 71 A Crim R 459 Mill v The Queen (1988) 166 CLR 59 Moore v E W Cox Pty Ltd (1990) 37 IR 147 Pearce v The Queen (1998) 194 CLR 610 R v Hayes (1984) 11 A Crim R 187 R v Kalache [2000] NSWCCA 2 R v Thomson, R v Houlton (2000) 49 NSWLR 383 CASES CITED : R v Wheeler [2000] NSWCCA 34 State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 Warman International Limited v. WorkCover Authority of New South Wales (1998) 80 IR 326 WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd t/a Boral Asphalt (No 2) (2000) 101 IR 458 WorkCover Authority of NSW v Commonwealth Steel Co Ltd (1999) 90 IR 297 WorkCover Authority of NSW v Company B Ltd [2000] NSWIRComm 119 WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited (1999) 98 IR 362 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383 WorkCover Authority of NSW (Insp Donnelly) v Riverina Wool Combing Pty Ltd [2000] NSWIRComm 29 WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales [2000] NSWIRComm 179 WorkCover Authority of New South Wales v State Rail Authority (unreported, Kavanagh J, IRC 97/7032-7036, 13 October 1999) WorkCover Authority of NSW v Waugh (1995) 59 IR 89 WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284 HEARING DATES: 07/25/2000 DATE OF JUDGMENT: 05/25/2001

[8]

1 This is an appeal by the Crown in right of the State of New South Wales (Department of Education and Training) against the severity of the penalty imposed on it by Schmidt J in a judgment delivered on 6 December 1999. The appellant pleaded guilty to one charge under s 15(1) of the Occupational Health and Safety Act 1983 and to one charge under s 16(1), arising out of an incident at Ballina High School on 13 February 1996. Her Honour concluded that the appropriate penalty for each offence was $180,000 and, after applying the principle of totality, imposed a total penalty of $300,000. The sole ground of the appeal is that the penalty imposed was manifestly excessive. 2 The appellant is responsible for the operation and management of public schools in New South Wales, including the Ballina High School. Mr Cyril Jones was undertaking a Job Train Landscape Course at the Ballina Campus of the Technical and Further Education Commission (TAFE). As part of this course, Mr Jones was sent to the Ballina High School for one week of work experience, performing outdoor maintenance tasks under the supervision of the school's general assistant, Mr Cecil David Piggott. Mr Jones' attendance at the school was arranged by one of his teachers at TAFE and the principal of the school. 3 On 13 February 1996 Mr Jones was operating a tractor with a slasher attachment in order to mow a playing field at the school. While performing this task, Mr Jones lost control of the tractor. Mr Piggott attempted to climb onto the machine while it was in motion to assist Mr Jones to bring it to a halt. In the process, Mr Piggot lost his balance and fell. The wheel of the tractor ran over his chest and the slasher attachment made contact with his foot and ankle. Mr Piggott suffered a fractured rib, soft tissue injuries to his chest, crushed vertebrae and severe lacerations to his left foot. 4 Section 15(1) of the Occupational Health and Safety Act requires that every employer "shall ensure the health, safety and welfare at work of all the employer's employees". The summons and particulars of the charge against the appellant under s 15(1) were: Matter No IRC 598 of 1998 On the 13 February 1996 at Ballina High School, Burnet Street, Ballina, New South Wales the defendant, being an employer DID FAIL to ensure the health safety and welfare at work of all its employees and in particular Cecil David Piggott, contrary to Section 15(1) of the Occupational Health and Safety Act, 1983, in such case made and provided.

[60]

The judgment at first instance 8 Schmidt J considered that, as a result of the appellant's prior convictions, s 51A had the effect of increasing the maximum penalty available by $250,000, resulting in a maximum penalty for each offence of $750,000. Her Honour doubted that s 51A allowed for the exercise of a discretion not to impose the additional penalty, but held that, if it did, it would not be appropriate to exercise such a discretion in the appellant's favour. 9 Her Honour noted that the appellant had no established policies relating to work experience students and that the arrangements put in place on this occasion were "seriously deficient". Her Honour emphasised that the obligations imposed by the statute required a pro-active approach to safety and that employees needed to be protected from their own actions whether they were foolish, negligent or even heroic: see WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. The appellant paid little attention to the training or experience of the student before he was given the opportunity to drive the tractor. 10 In considering the nature and quality of the offences, her Honour took into account the fact that the injuries suffered by the employee, Mr Piggott, were serious. Her Honour held that: Here the nature and quality of the offences to which there has been a plea were serious ones, as the defendant accepted in its submissions. The resulting risks to safety were both obvious and foreseeable and arose in circumstances where the defendant had not taken easily available steps which might have prevented the accident. These include steps such as informing itself as to whether the student suffered from any relevant learning difficulties; providing employees with relevant policies and procedures for instructing work experience students and ensuring that if, during a work experience programme, a student was to be instructed in driving a tractor, that such training would be provided by an employee who also had appropriate training and experience in such instruction. 11 Schmidt J took certain factors into account in mitigation, namely the guilty plea, relevant existing safety policies, and steps taken by the appellant after the accident. Her Honour also considered the appellant's record and the fact that in respect of the Department of Education and Training it had not previously been convicted of an offence under the Occupational Health and Safety Act . (Her Honour had rejected the appellant's submission that offences committed by other government departments could not be considered.) Her Honour considered that all these matters "must lead to a substantial reduction in the penalty otherwise imposed". 12 Her Honour expressed her conclusions in the following way: Having considered all of these matters, I have concluded that it is appropriate that a penalty must be imposed for each offence to which the defendant has pleaded guilty. The principle of totality must also be applied. Kavanagh J in WorkCover Authority of NSW (Insp Milligan) v State Rail Authority of New South Wales (Unreported, 13 October 1999), recently considered the proper approach to that principle, having regard to authorities such as Warman and WorkCover Authority of NSW v Waugh and Another (1995) 59 IR 89 at 100 and King v Pearce (sic) [1998] HCA 57, where it was said that: The principle of totality allows a Court in sentencing to avoid a straightforward arithmetical addition of sentences appropriate to each individual offence where the offences are similar, thus avoiding doubling of the penalty by enabling the judge to consider a single overall penalty which includes the circumstances of a second or further offence.

[63]

The appellant's submissions 13 The appellant accepted that significant punishment was appropriate and that the penalty of $180,000 identified by her Honour was appropriate for the charge under s 15. The appellant's central submission, however, was that the total penalty of $300,000 was manifestly excessive because both offences "arose out of what were essentially the same failures". Since "the criminality in each case was the same", the penalty of $180,000 ought to have been imposed for both offences. Her Honour's approach of imposing a penalty of $180,000 for each offence effectively doubled the appropriate penalty. 14 In its written submissions, the appellant described the essence of both offences as "a failure to fence and a failure to ensure that the operator of the machine was adequately trained". Mr P Menzies QC, who appeared with Mr M P Cahill of counsel for the appellant, in oral submissions, argued that: … there was still really only one essential defect, and that is the failure to have an appropriate system of training and guidance of people who came into the premises to work as work experience students. 15 The appellant submitted that there were two approaches to sentencing which could be applied in circumstances where the two charges related to essentially the same failures. Its principal submission was that, in such a case, "the conventional and appropriate method is to impose a single penalty for both offences". The appellant cited the case of Moore v E W Cox Pty Limited (1990) 37 IR 145 at 149 in support of this submission. It contended that it was not appropriate to apply the totality principle, as it is "more aptly applied in circumstances where there are a number of offences each involving separate acts of criminality". 16 The appellant's alternative submission was that the proper application of the principle of totality would also lead to the conclusion that an appropriate total fine for both offences was $180,000. Totality requires consideration of the "whole of the criminality" and, in circumstances where there was a "common substratum of facts" and where the "gravamen of each offence" was "in effect, identical", the appropriate fine for both offences was $180,000. This result could be achieved either by imposing no penalty on the second conviction, or by applying the same penalty to each offence, adding them together and then halving that figure. 17 The appellant did not challenge her Honour's conclusion that the maximum penalty for each offence was $750,000. It also accepted that her Honour was correct in considering it was appropriate to take into account prior convictions by other arms of the State, but submitted (as her Honour accepted) that it was relevant that the State had not previously been convicted through the Department of Education and Training.

[65]

The nature of the appeal 20 This appeal is brought pursuant to s 196 of the Industrial Relations Act 1996, which applies s 5AA of the Criminal Appeal Act 1912. The nature of an appeal under these provisions was authoritatively reviewed by a Full Bench of the Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 621-623; (2000) 99 IR 29 at 37-39. The appeal principles were also summarised usefully by a Full Bench of the Court in an appeal against the severity of a sentence under s 15 of the Occupational Health and Safety Act in State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218. In that judgment this Court held (at 219): [T]he appeal shall be by way of rehearing on the evidence given at first instance: s 5AA(3); the issue on appeal is not whether the trial judge fell into error but rather whether the appellate court is independently of the same opinion: NSW Sugar Milling Co-operative Ltd v Environment Protection Authority (1992) 59 A Crim R 6 at p 11 per Enderby J, with whom Hunt CJ at CL and Allen J agreed; the appeal is not a hearing de novo and new evidence may be adduced only with leave of the court: s 5AA(3A); the appeal court must consider afresh the ultimate issue to be determined: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at p 692; nevertheless, that does not mean the appeal bench will of necessity come to a conclusion in relation to penalty different from the sentencing judge but only that it must exercise the sentencing discretion: Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 at p 338; and, in independently determining an appropriate sentence, the appeal court nevertheless has regard to the way in which the matter was approached at first instance as a useful analytic device: Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at p 81.

[70]

[48] Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences. (references omitted, emphasis added) 23 The effect of Pearce is that, in sentencing a defendant for more than one offence, the Court is required to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. It is only after determining an appropriate sentence for each offence that the Court should consider whether the sum of the separate sentences properly reflects the totality of the criminality involved. 24 The approach in Pearce has been applied on a number of occasions by the Court of Criminal Appeal: see, for example, R v Kalache [2000] NSWCCA 2, at [106] to [111]; R v Wheeler [2000] NSWCCA 34 at [34] to [37]; and Giam (No 2) (1999) 109 A Crim R 348 at 351. 25 The approach in Pearce has also been applied by this Court in relation to multiple offences under the Occupational Health and Safety Act : see, for example, WorkCover Authority of New South Wales v State Rail Authority (unreported, Kavanagh J, IRC 97/7032-7036, 13 October 1999); WorkCover Authority of New South Wales (Inspector Donnelly) v Riverina Wool Combing Pty Ltd [2000] NSWIRComm 29; WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284; WorkCover Authority of New South Wales v Company B Ltd [2000] NSWIRComm 119; and WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd t/a Boral Asphalt (No 2) (2000) 101 IR 458 at 470-471. 26 In Pearce (at 624), the majority of the High Court referred to the earlier judgment in Mill v The Queen (1988) 166 CLR 59. In that case, the High Court (at 62-63) cited with approval the following passage from Thomas, Principles of Sentencing (2nd Edition, 1979, p56-57) as to the application of the totality principle: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'. 27 There are a number of judgments of this Court and its predecessors which have applied the principle of totality to multiple offences under the Act. In WorkCover Authority of NSW v Waugh (1995) 59 IR 89 at 100, the Full Bench stated: [W]e express the view that her Honour was not in error in her finding that the principle of totality was an available consideration on the question of sentencing. The principle of totality allows a Court in sentencing to avoid a straightforward arithmetical addition of sentences appropriate to each individual offence where the offences are similar, thus avoiding doubling of the penalty by enabling the judge to consider a single overall penalty which includes the circumstances of a second or further offence.

[72]

Common elements of multiple offences 30 The principle underlying the appellant's submissions was that a defendant should not be punished more than once for the same failures which may be the subject of multiple offences. This issue was considered by the High Court in Pearce at 623. In that case, McHugh , Hayne and Callinan JJ stated the principle in the following way: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. (emphasis added) 31 This statement of principle was applied in WorkCover Authority of NSW v Company B Ltd . In that case, the defendant was charged with one offence under s 15(1) and another under s 16(1) of the Occupational Health and Safety Act , arising out of the collapse of a temporary seating stand at a theatre performance. The collapse injured employees of the defendant and also members of the public. Boland J noted, at [71], that the defendant was "charged with two offences arising from the same set of facts and the gravamen of the offences is substantially similar". 32 His Honour observed, at [72], that the majority in Pearce "held that to the extent to which two offences of which a person is convicted contain common elements it would be wrong to punish the offender twice for the commission of elements which are common". His Honour therefore held that it was appropriate to apply the principle of totality. His Honour considered that an appropriate penalty for each offence, considered separately, would be $30,000, but that a total fine of $60,000 would be excessive. Applying the principle of totality, His Honour considered that the appropriate aggregate fine should be $40,000, comprising a fine of $20,000 for each offence. 33 A similar approach was adopted Wright J, President, in WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council at 298, in considering two charges under s 15(1) arising out of the one incident. His Honour's approach is set out in the following paragraph of the decision: [37] Taking all those matters into account, the assessment of each of the offences is to be approached in the terms set out in Pearce v The Queen . It is therefore necessary to assess the appropriate penalty in relation to each charge and then apply the principle of totality. Although at one stage I considered that the second charge was the more serious, I have now concluded that each of them is to be regarded as equally serious. Each charge is circumscribed to an extent and each is specific and limited to a particular feature of an overall system or method of work, although the first charge relates to a failure to provide appropriate equipment. Having due regard to the various mitigating features referred to, and the particular circumstances of the defendant, the appropriate penalty in relation to the charge in matter number IRC99/1609 is $65,000 and the penalty in relation to the charge numbered IRC99/1610 should also be $65,000. The principle of totality, as discussed in Pearce v The Queen , then requires consideration of the overall culpability or criminality attributable to the defendant from both convictions, and in that process ensuring that there is no "double counting" of the culpability of the defendant from the respective offences. Approaching the matter in that way, I consider that the overall culpability of the defendant, (bearing in mind the significant practical overlap between the two offences, and the aggregate culpability arising from the effect of both breaches occurring at the same time and being evidenced by a single incident ) would result in a total fine of $90,000. Having regard to the separate assessments of the culpability of the defendant in relation to the two offences, fines of $45,000 should be imposed in each matter. (emphasis added)

[73]

See also the judgment of Hungerford J in WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd t/a Boral Asphalt (No 2) at 470-471. 34 In Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 (a case decided before Pearce ), a Full Bench of this Court treated the fact that different offences have strong connecting features as supporting the application of the totality principle. In that case, the Full Bench considered the appropriate penalties for a defendant convicted of five offences under the Occupational Health and Safety Act (under both sections 15(1) and 16(1)), and one offence under s 27(1) of the Factories Shops and Industries Act 1962. Those offences arose out of four accidents and one inspection at the defendant's premises. The Full Bench stated (at 339) that: There were in our view clear features connecting a number of these events to each other. The first prosecution concerned a sheet metal rolling machine, which would appear to stand alone. The second and third prosecutions both related to the use and fencing of a fast loop moulding machine. The fourth prosecution related to a table mounted circular saw of some age which was sought to be replaced after the relevant accident by a new saw which itself, although freely available on the market, had two identified safety weaknesses which led to the fifth and sixth prosecutions. This inter-relationship seems to us to satisfy with considerable ease the proposition involved in the principle of totality that there be some similarity in the offences. 35 Subject to one consideration, that judgment reflects an appropriate application of the principle of totality, reflecting the need to avoid excessive punishment and to avoid "double punishment" for common elements of multiple offences. The last sentence of the passage cited, however, which seems to limit the circumstances in which the principle of totality is to be applied, appears to state the principle too narrowly and may well require reconsideration in subsequent Full Bench proceedings. See, for example, the judgment of the Court of Criminal Appeal in Close (1993) 65 A Crim R 55 at 59-60 where Hunt CJ at CL stated: Whenever sentences are accumulated, careful consideration must always be given to the principle of totality - as to whether the simple addition of two or more sentences which may individually be appropriate has nevertheless produced a total figure which is excessive having regard to the totality of the criminality involved: Glenister [1980] 2 NSWLR 597 at 612; Holder and Johnston [1983] 3 NSWLR 245 at 260-261; (1983) 13 A Crim R 375 at 389-390. That principle is not restricted to sentences imposed for offences committed as part of a connected and roughly contemporaneous series of offences: L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 at 168; Bakhos (1989) 39 A Crim R 174 at 176, 177-178; Harrison (1990) 48 A Crim R 197 at 198-199. It was clearly relevant in this case. In such circumstances, all of the sentences which are accumulated should usually be adjusted downwards in order to produce an acceptable total sentence.

[75]

The appropriate penalty for each offence 39 We have considered the reasons of Schmidt J in assessing the penalty for each offence as $180,000, which have been summarised earlier in this judgment. We have also noted the appellant's concession that a penalty of $180,000 was appropriate for the s 15(1) offence. 40 Leaving aside for the present the question of totality, we consider that the approach adopted by her Honour was appropriate. We agree, in particular, that the offences were of essentially equal seriousness. In those circumstances, we would therefore consider appropriate the approach and reasons of her Honour. 41 We note, however, that her Honour indicated she allowed a "substantial reduction and discount" for mitigating factors, which included the appellant's guilty plea. Her Honour's judgment was delivered before the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383 delivered its guideline judgment as to pleas of guilty. The guidelines established in that judgment have been applied on a number of occasions in this Court: see, for example, the judgment of the President in WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales [2000] NSWIRComm 179 at [37] to [40], and [50], and that of the Full Bench in State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) at 236-237. 42 In this case, the appellant entered a plea at an early stage and co-operated fully with the WorkCover Authority. In accordance with the guideline judgment, and in expressing agreement with the penalty fixed by her Honour, we do so on the basis of quantifying the overall discount on the penalty for each offence at 25 percent for the guilty plea and associated considerations - see the guideline judgment at [160(ii)] and [162]. 43 We now turn to consider the application of the principle of totality, in view of the appellant's submission that the two offences were essentially identical.

[76]

The relationship between sections 15 and 16 of the Occupational Health and Safety Act 44 The appellant was charged with an offence under both sections 15 and 16 of the Occupational Health and Safety Act . The relationship between these provisions was considered by Wright J, President, in WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited (1999) 98 IR 362. (Leave to appeal from this decision was refused: Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16.) His Honour considered an objection that a summons under s 16(1) used the language of s 15(2) to describe a charge under s 16(1) and was thereby invalid. His Honour said (at 372-373): However, on their proper construction, s15 and s16(1) are to be seen as in part parallel provisions. Both impose liability on employers. Section 15 imposes liability to "ensure health, safety and welfare at work of all of the employer's employees"; whereas s16(1) imposes an obligation to ensure that persons who are not employees of the employer are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking whilst at the employer's place of work. Both provisions contain a subsection which provides that, if in proceedings against a person for an offence under the section, the court is not satisfied that the person contravened the section, but is satisfied that the act or omission concerned constituted a contravention of the other section, the court may convict the person of an offence against that section: (sub-sections 15(4) and 16(3)). Some confirmation of the interrelationship of these sections is provided in the useful discussion by Bauer J in his Honour's judgment in Workcover Authority of New South Wales (Inspector Reid) v CSR Limited t/as CSR Wood Panels (unreported, matter number CT 1176/94, 10 August 1995) at pages 24-25. See also his Honour's discussion of the elements of the offence created by s16(1) at page 12 of that judgment.

[79]

The common elements of the offences 45 It is appropriate to refer to the submissions of counsel for the respondent, at the hearing of this appeal. Ms Backman submitted that: The submission made by my learned friend in relation to the respondent's submission is correct in that I submitted in this regard that even though the two separate offences under sections 15 and 16 do deal essentially with the same failure, the important distinguishing feature here of course was that there were different victims. Having said they deal substantially with the same failure, I do note as an aside that the particulars in each of those summonses are different. There is, for example, an additional particular in relation to the summons under section 16 subsection (1) concerning the non-employee. There is the additional particular (d) which relates to a failure to make an adequate assessment. So there is that difference, which I say is not of any real significance in terms of the failures nevertheless being essentially the same for both offences. 46 The respondent therefore conceded that the failures identified in the two offences were essentially the same. It was emphasised, however, that the persons exposed to danger were different (in that one was an employee and one a non-employee), and that the particulars of the two offences were not identical. 47 We accept that, in this case, the obligations owed to the employee under s 15 and to the work-experience student under s 16 (and the classes of persons represented by them) were clearly distinct. The particulars of the two charges were not identical. Specifically, the summons in Matter No. IRC 601 of 1998 - the s 16(1) charge - alleged a failure to carry out an adequate risk assessment of the task performed and equipment operated by work experience trainees at the school. There is no equivalent in the summons in Matter No IRC 598 of 1998. 48 Analysis of the respective summonses, however, demonstrates that there was a considerable overlap between the failures charged in the two offences. Both summonses alleged failures to: · Provide or maintain plant that was safe, particularly the failure to adequately guard the power take-off shaft; · Provide or maintain a system of work that ensured that the tractor and slasher were only operated by persons who were adequately trained, etc; · Adequately train Mr Jones (or other work experience trainees) in the safe operation of the tractor and slasher equipment. 49 The two offences plainly contained very substantial common elements.

[80]

Conclusions 50 Her Honour considered that the appropriate penalty for each offence, considered separately, was $180,000. As we have indicated, the applicant has accepted that penalty as appropriate and we agree with her Honour's assessment. Her Honour applied the principle of totality and imposed a total penalty, for both offences, of $300,000. Her Honour therefore reduced the overall penalty by $60,000 as a result of the application of the totality principle. 51 In view of our conclusion that the two offences contained very substantial common elements, it could not be considered that the deduction made by her Honour was appropriate and sufficient. In a case such as this, the totality principle must be applied to ensure that the defendant is not punished more than once for the common elements of the offences and that the resultant penalty is appropriate to the overall criminality of the offences for which the defendant is being sentenced. 52 To impose an overall fine of $300,000 for two separate offences for which the separate penalty for each was $180,000 and where there was a substantial overlap or intersection of the criminality or culpability of the defendant is to fail to apply properly the principle of totality. The judgment at first instance involves error and must be set aside. 53 Taking into account the separate penalties of $180,000 assessed for each offence, and the very substantial common elements in the two offences by applying the totality principle, the total fine should be $210,000. That penalty reflects the overall criminality of the appellant and also the discount we have determined by applying the guideline judgment. As we have held that each offence was equally serious, a penalty of $105,000 should be imposed on the appellant for each offence. 54 The Court therefore makes the following orders: 1. Appeal against the judgment of Schmidt J in relation to penalty upheld. 2. The fine imposed by Schmidt J quashed. 3. In lieu of the fine imposed by Schmidt J, the following fines are imposed on the appellant, with a moiety in each case to the prosecutor: a) As to Matter No IRC 598 of 1998, a fine of $105,000;