4 The respondent pleaded guilty at an early stage to an offence under s 8(1) of the Occupational Health and Safety Act 2000 arising from the manner in which its employees moved or "tilted" heavy rolls of product (weighing up to 200kg). The Agreed Statement of Facts tendered at the sentencing hearing stated that one of the respondent's employees sustained a lower back disk injury as a result of following the respondent's system.
5 We agree with the appellant that Industrial Magistrate Quinn erred in exercising her discretion in the manner described in House v The King (1936) 55 CLR 499 at 505. The sentence was manifestly inadequate and was based on identifiable material errors: it did not adequately reflect the objective seriousness of the offence; it failed to take into account general and specific deterrence and may well have been based on an error as to the appropriate scale of penalties.
6 Although the lower back injury may be described as minor, we disagree with her Honour that the offence falls within the low range of objective seriousness. The damage or injury does not, of itself, dictate the seriousness of the offence or the penalty: see Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [94] and [95] and Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. Whatever factors Industrial Magistrate Quinn considered when assessing the objective seriousness of the offence (and we reject here as irrelevant the respondent's submissions concerning the importance of the distinction between "lifting" and "tilting"), her Honour failed to give sufficient weight to the fact that the risk was plainly reasonably foreseeable (and that reasonable foreseeability is not diminished by the absence of previous similar accidents) and failed to consider the relevance of general and specific deterrence, both of which enlarge the objective seriousness of the offence and should influence the assessment of penalty.
7 The principles relating to general and specific deterrence have been referred to recently by the Full Bench in Inspector Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 at [80] and need not be repeated here. Injuries arising from manual lifting are one of the most prominent forms of workplace injury, and general deterrence is clearly relevant in the determination of penalty in this case. Further, there was no dispute that the respondent continues to operate its packaging business, making specific deterrence relevant to the determination of penalty. Although we commend the respondent for its laudable efforts to reduce or eliminate the risk of injury arising from manual moving or "tilting" rolls of product, and recognise that the risk of re-offending is low, we do not consider that the risk is so low as to rule out specific deterrence: see generally Capral Aluminium Ltd v WorkCover Authority of New South Wales at [76] - [77].
8 Notwithstanding that the jurisdictional limit in the Local Court was $55,000, the maximum penalty under the Occupational Health and Safety Act 2000 for a corporation with no prior convictions was $550,000: see R v Doan (2000) 50 NSWLR 115. Although her Honour referred to this fact, it appears from the transcript of the sentencing hearing that she may have assessed the penalty by reference to the jurisdictional limit, rather than by reference to the maximum available penalty. This inference is supported by the fact that, although her Honour imposed a penalty approximating the penalty for a trivial offence ($1000 in the context of a potential maximum of $550,000), there was no assessment or discussion to the effect that this was a minor or trivial offence as distinct from being at the lower end of the range. As noted earlier, her Honour's decision made no reference to deterrence either general or specific and no reference to the importance of deterrence in sentencing under the Occupational Health and Safety Act.
9 We reject, however, the appellant's criticism of her Honour's assessment of subjective factors and the weight given to them. In particular, we agree with her Honour's approach to the early plea of guilty, the absence of any prior convictions, and the significant efforts of the respondent after the accident to rectify its systems of work. These factors warrant a significant mitigation of the sentence to be imposed. We have assessed the approximate discount for the guilty plea and other subjective factors as being in the order of 35 per cent (including 25 per cent for the guilty plea).
10 In conclusion, given the manifest inadequacy of the penalty at first instance, and the errors upon which it was based, we have determined that we should set it aside and assess the appropriate sentence to be imposed in this matter, taking into account the appropriate scale of penalties; the objective seriousness of the offence (including the need for general and specific deterrence); and the substantial mitigating factors. In doing so we shall adopt a conservative approach and impose a penalty which is at the lower end of the range of available sentences having regard to the principle of double jeopardy. In that regard, see the discussion of the Full Bench in WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 at [54]-[55] and in Maddaford v Coleman at [33]-[36].