Penalties in Action SAD 141 of 2014: the Grenfell Street Site: 1 May 2014
127 The contraventions which occurred on 1 May 2014 are the most serious of the contraventions in the four proceedings. The very number of CFMEU organisers attending the Grenfell St Site on 1 May 2014 suggests coordinated and strategic action by the CFMEU resulting in deliberate contraventions of s 500.
128 Mr McDermott was at the time the Assistant Secretary of the Construction and General Division of the CFMEU in South Australia. As such, he was one of the most senior officials of the CFMEU in South Australia. It is evident that he took a lead role in the conduct of the organisers on 1 May 2014.
129 Mr McDermott refused to produce a right of entry when requested to do so, refused to leave the Site after being requested to do so, went onto that part of the Site at which construction was taking place without any authorisation to do, and, when requested to produce his entry permit and an entry notice, refused in a profane and abusive manner.
130 Counsel for the Director submitted that account should also be taken of Mr McDermott's failure to intervene during the Flynn-Perkovic incident to restrain Mr Perkovic or to indicate that he did not support Mr Perkovic's conduct, even though he held a position in the CFMEU which was senior to Mr Perkovic. Although I consider that those submissions have some force, I have decided for two reasons that these aspects of Mr McDermott's conduct should not be regarded as adding to his culpability. First, during at least part of the incident, Mr McDermott, like Ms Peters, used his mobile phone to make a video recording of the incident. The making of the record served a useful purpose as it militated against the possibility of later disputes about precisely what had occurred. Secondly, it is apparent from Ms Peters' video that Mr McDermott was not present for the whole of the incident as at one stage he moved into another room. I also take into account that the time occupied by the incident was quite short which meant that he had limited opportunities in which to intervene.
131 Mr McDermott has contravened industrial legislation on one previous occasion. In Director of the Fair Work Building Industry Inspectorate v McDermott [2014] FCA 160, the Court imposed a penalty of $1,320.00 on Mr McDermott in respect of his coercive conduct, in contravention of s 355 of the FW Act.
132 Mr Stephenson's contravention on 1 May 2014 resulted from his conduct in not complying with three separate directions from Mr Kamminga to leave the Site, his non-compliance with two separate requests made by Mr Kamminga that he produce his entry permit and an entry notice, and his failure to provide an entry notice to Watpac, as required by s 487 of the FW Act, as least 24 hours before his entry.
133 I have referred to Mr Stephenson's personal circumstances earlier in these reasons and need not repeat them. His contravention on 1 May 2014 was the third contravention of s 500 by him in a period of six weeks. This indicates a degree of persistence by him in unlawful conduct. On the other hand, the element of personal deterrence in his case is not so prominent given that he is no longer employed by the CFMEU and (it is assumed) no longer the holder of an entry permit.
134 Mr Jarrett, who was an organiser, contravened s 500 of the FW Act on 1 May 2014 in the same way as did Mr Stephenson. He has no previous record of contravention and has since resigned employment with the CFMEU altogether. Personal deterrence is accordingly less important in his case.
135 Mr Sloane contravened s 500 of the FW Act at the Grenfell Street Site in the same way as did Mr Stephenson and Mr Jarrett. This was his first contravention of s 500.
136 Mr Sloane is ordinarily employed by the CFMEU in New South Wales as an organiser. He was in South Australia on 1 May 2014 to assist the South Australia Branch of the CFMEU. His role in the contraventions was more passive than that of Mr McDermott and Mr Perkovic in particular. He has no previous contraventions of s 500.
137 Mr Pitt contravened s 500 of the FW Act on 1 May 2014 in the same manner as did Messrs Stephenson, Jarrett and Sloane. He is employed by the CFMEU as an organiser.
138 Mr Pitt has contravened industrial legislation on three previous occasions for which penalties have been imposed. First, in September 2011 he engaged in coercive conduct in contravention of s 43(1)(a) of the former Building and Construction Industry Improvement Act 2005 (Cth) for which the Court imposed a penalty of $3,000.00: Director of the Fair Work Building Industry Inspectorate v CFMEU [2013] FCA 515. The second and third were contraventions of s 500 of the FW Act on each of 19 and 20 March 2014 for which Mansfield J imposed penalties of $6,000.00 and $3,000.00 respectively: DFWBI v Cartledge at [97]. This means that no lenience can be extended to Mr Pitt on account of a previous good record and his offending on 1 May 2014 is all the more culpable by reason of his earlier offending.
139 Mr Pitt was present throughout the Flynn-Perkovic incident. He made no attempt to intervene. Instead, like Mr McDermott, he used his mobile phone to make a video tape of the incident.
140 Counsel for the Director submitted that Mr Pitt's conduct too was to be assessed in the light of the circumstance that he did not intervene. For the reasons which I gave earlier in relation to Mr McDermott, I do not propose to act on that submission.
141 Mr Perkovic is employed by the CFMEU as an organiser. He has no previous record of contraventions.
142 Even without the Flynn-Perkovic incident, his contraventions have to be regarded seriously. Mr Perkovic's conduct in the Flynn-Perkovic incident was particularly egregious. He instigated the incident and engaged in sustained intimidatory and abusive conduct towards Mr Flynn. It must have been obvious to Mr Perkovic that Mr Flynn was an Inspector appointed by the Director and present on the Site in that capacity. Mr Perkovic attempted to belittle, humiliate and intimidate Mr Flynn. He is not entitled to any credit because those attempts were unsuccessful. It is on the contrary to Mr Flynn's credit that he stood his ground and did not respond in kind. Mr Perkovic created circumstances which could easily have developed into something more serious.
143 Counsel for Mr Perkovic submitted that the Court should not deal with Mr Perkovic on the basis that a physical assault occurred. I accept that that is so in the sense that the evidence does not establish actual physical contact between Mr Perkovic and Mr Flynn. However, Mr Perkovic positioned himself so closely to Mr Flynn during the incident as to attempt physical intimidation. I do not accept the submission of counsel for Mr Perkovic that Mr Flynn moved during the incident so as to position himself more closely to Mr Perkovic. Mr Flynn did no more than move his feet without altering his position relative to Mr Perkovic.
144 In the criminal sentencing context, assaults against members of the police force and others in involved in law enforcement are regarded as serious criminal offences warranting severe penalties. The Courts recognise that they should do what they can to protect those who, like police officers, are engaged in the protection of the community itself. Those who attack persons involved in law enforcement cannot, in the absence of exceptional circumstances, expect leniency. Deterrence is a major consideration: see R v McNamara [2009] SASC 227; (2009) 105 SASR 38 at [31].
145 In my opinion, similar considerations should inform the fixing of penalty in relation to conduct in contravention of s 500 of the FW Act which is directed to a FWBI Inspector. Inspectors appointed under s 59 of the FWBI Act have the same functions and powers as a Fair Work Inspector, but those functions and powers may be exercised only in relation to a "building matter" (s 59C) The powers of Fair Work Inspectors are governed by Ch 5 Pt 5-2 Div 3 of the FW Act. They may be exercised for a number of purposes but, in particular, in determining whether there has been compliance with the FW Act, the FWBI Act or with an industrial instrument. Inspectors should be able to discharge their duties without harassment, bullying or intimidation from anyone, let alone from persons who are present on a site only in the exercise of a right of entry granted for a limited purpose.
146 These considerations should be reflected in the penalty fixed in respect of Mr Perkovic.
147 I note again that there has been no expression of contrition or remorse by Mr Perkovic. He is entitled to some credit for his acknowledgment of his contravention and his willingness to facilitate the course of justice. However, the credit which can be given on account of this is diminished by the circumstance that he did not admit his conduct in the Flynn-Perkovic incident.
148 I impose the following penalties:
Mr McDermott: $4,000.00;
Mr Stephenson: $2,300.00;
Mr Jarrett: $800.00;
Mr Sloan: $1,100.00;
Mr Pitt: $3,500.00;
Mr Perkovic: $5,000.00.
149 In relation to the CFMEU, I consider it appropriate to impose a single penalty in respect of each of its six contraventions. On that basis I impose a penalty of $100,000.00. That is a significantly larger penalty than imposed in respect of the contraventions on 31 March 2014 and 7 April 2014. I consider that to be appropriate having regard in particular to the greater number of contraventions on 1 May 2014, the fact that those contraventions occurred after the contraventions on 31 March and 7 April 2014, the involvement of one of the CFMEU's more senior officers (Mr McDermott), the longer time that the CFMEU officials were on the Grenfell St Site, the manner in which Mr McDermott and Mr Perkovic responded to Mr Kamminga's requests, and, finally, the egregious conduct of Mr Perkovic.
150 Counsel for the respondent submitted that the Court should apply the totality principle so as to reduce the penalties imposed on Mr Stephenson, Mr Bolton and the CFMEU itself because they faced penalties for multiple contraventions.
151 The totality principle reflects a number of slightly different considerations. Doyle CJ referred to these considerations in R v E, AD [2005] SASC 332; (2005) 93 SASR 20 at [37]-[38]:
[37] The totality principle has been stated in terms that reflect slightly different aspects. The first aspect is that when an offender is sentenced for a number of offences, the court must ensure that "the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved": Postiglione v R (1997) 189 CLR 295 at 307-308 McHugh J. The other aspect is that sometimes, although the individual terms of imprisonment imposed in respect of each of a number of offences will be appropriate, the aggregate of all of those sentences will become so "crushing" as to call for some reduction in the aggregate: see King CJ in R v Rossi (1988) 142 LSJS 451, cited by McHugh J in Postiglione at 308. I refer also to the remarks of Kirby J on this point in Postiglione at 340-341. As these statements of the principle indicate, it is a general principle that requires the court to assess the overall criminality involved, and to do so by reference to the aggregate sentence to be imposed.
[38] In recent times there has been at tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.
152 I consider that the approach to the application of the principle of totality discussed by Doyle CJ in R v E, AD is applicable in the present circumstance. In the case of Mr Stephenson and Mr Bolton, I have imposed penalties in respect of their respective contraventions which are appropriate. There is no basis upon which the Court can conclude that those penalties will be "so crushing" as to call for some reduction in the aggregate. None of the respondents provided any evidence at all as to their individual financial circumstances or as to the likely impact on them of the penalties proposed by the Director. That being so it is very difficult for the Court to conclude that the aggregate of the sentences would be crushing. Nor do I consider that the aggregate of the penalties imposed on Mr Stephenson and Mr Bolton can be regarded as disproportionate to their overall culpability.
153 In relation to the CFMEU, I also consider that there is no scope for application of the principle of totality. I have, in respect of each set of contraventions, fixed a single penalty having regard to the overall culpability of the CFMEU in respect of those contraventions. That of itself leaves little scope for the application of the principle of totality in relation to each of the penalties so fixed. The aggregate of the penalties is not disproportionate, especially given the demonstrated requirement for deterrence to be a prominent consideration in the case of the CFMEU.
154 Further, there is no basis upon which the Court could regard the aggregate of the individual penalties as being so crushing as to call for some reduction. The CFMEU has not presented any evidence at all regarding its financial circumstances or as to the impact on it of penalties of the kind proposed by the Director. There is accordingly, no basis upon which the Court could conclude that the aggregate of the penalties will be crushing.