Glass v Flexible Packaging

CATCHWORDS: Prosecution appeal from decision of Industrial Magistrate - leave to appeal - guilty plea - sentence manifestly inadequate - based on identifiable errors - did not reflect objective seriousness of offence - failed to take into account general and specific deterrence - based on wrong scale of penalties - insufficient weight given to consideration that risk was reasonably forseeable - assessment of subjective factors - cautionary approach required - double jeopardy - leave to appeal granted - appeal upheld - respondent resentenced.

Industrial Relations Act 1996 s 197 LEGISLATION CITED: Occupational Health and Safety Act 2000 s8(1)

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 House v The King (1936) 55 CLR 499 Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 CASES CITED: R v Doan (2000) 50 NSWLR 115 WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60

HEARING DATES: 04/11/2005 EXTEMPORE JUDGMENT DATE: 04/11/2005

APPELLANT: Ms K Nomchong of Counsel

SOLICITOR: Mr Gerard Phillips LEGAL REPRESENTATIVES: Carroll & O'Dea

RESPONDENT Mr R.S. Warren of Counsel

• 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: WRIGHT J, President WALTON J, Vice-President BACKMAN J Monday, 11 April 2005 Matter No IRC 4890 of 2004 INSPECTOR FRANK GLASS v FLEXIBLE PACKAGING (AUSTRALIA) PTY LIMITED

Application by WorkCover Authority of New South Wales for leave to appeal and appeal against a decision of Industrial Magistrate Quinn given on 22 July 2004 in Matter No 20137004/04/2.

JUDGMENT OF THE COURT (EX TEMPORE) [2005] NSWIRComm 93 1 This is a prosecution appeal against a sentence imposed by an Industrial Magistrate, Magistrate Quinn. This appeal is brought pursuant to s 197 of the Industrial Relations Act 1996. 2 The respondent opposed leave to appeal on the basis that the decision at first instance disclosed neither an appealable error nor the improper exercise of discretion. For the reasons stated subsequently, we disagree with the respondent's submissions and we consider that this appeal raises matters of such importance that, in the public interest, leave to appeal should be granted. There is a clear public interest in ensuring that the penalties imposed by the Magistracy for Occupational Health and Safety offences reflect the important social purposes of the legislation and the related need for adequate sentences. 3 Following the written and oral submissions of both parties we have been able to reach a firm conclusion that the appeal should be upheld. We also consider that it is appropriate to deliver judgment today and to provide short reasons for upholding the appeal.

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].

11 One submission remains to be addressed: the respondent's assertion that the appellant (having urged her Honour to regard the offence as falling in the low to mid-range of objective seriousness) could not submit, on appeal, that the offence was in the moderate range. This submission is misconceived for two reasons: first, we do not agree that the appellant is raising a new point; "moderate" means "of medium or middling quality, size, or extent" and is therefore included in the estimate of low to mid-range. Secondly, having found that the sentence was manifestly inadequate and based on demonstrable errors, the Full Bench has the discretion to assess the appropriate sentence. This discretion is not constrained by the appellant's submissions below. In all the circumstances, we consider the appropriate penalty to be $15,000 having regard to the discounts earlier referred to. There should be no order as to the costs of the appeal. ORDERS

12 We make the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The penalty at first instance is set aside. (4) The respondent is fined the sum of $15,000 with a moiety of the penalty to be paid to the appellant. (5) No order as to costs.

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