Graincorp Operations Limited v Inspector Mason

Graincorp Operations Limited v Inspector Mason - [2006] NSWIRComm 304 - NSWIRComm 2006 case summary — Zoe

[10]

1 This is an appeal under s 196 of the Industrial Relations Act 1996 and s 5AA of the Criminal Appeal Act 1912 against the judgment of Staff J of 13 September 2005 in which his Honour convicted the appellant of an offence under s 8(1) of the Occupational Health and Safety Act 2000 and imposed a fine of $180,000: Inspector Gary Mason v Graincorp Operations Limited [2005] NSWIRComm 328. The appellant had pleaded guilty to the charge and its appeal is limited to the claims that the penalty imposed by Staff J involved error and was excessive. 2 The appellant at the time of the offence conducted a business for the storage and handling of grain from a number of sites in New South Wales including a grain depot at Narrabri. The depot was located next to the Narrabri West railway line with two railway sidings running through it. To the west of the railway sidings was a truck hopper area and along the east side of this area were two raised metal platforms known as rail outlet access platforms. One platform was situated on the south side of the rail sidings and the other on the north side. Both platforms were connected by a drop down counter-weighted platform. The south platform which was 3.36m high had top and middle hand rails on the north and west sides but was open on the east side in order to allow access to the drop down platform. A portable aluminium ladder was used by the appellant's workers to access the south platform. It was some 3.6m in length with 150mm extending beyond the top of the platform level. It was not secured at the top where it rested on the platform. 3 On 30 December 2003, the day of the offence, an employee of the appellant, Michael John Ford, was working on the south platform filling railway trucks with grain. As was the prevailing practice he used a long metal bar to direct outlet spouts from where the grain was poured over the top of openings into the railway trucks which passed underneath. At about 11:30am Mr Ford while attempting to access the ladder in order to climb down from the south platform fell about 3 metres to the hopper floor below. He sustained serious injuries including a head laceration requiring twenty stiches, a laceration to his left knee and a fractured left wrist. 4 In about October 2003 the appellant had issued a directive to stop a practice of utilising rail wagons as platforms for loading the trains. A safer alternative which had been developed by the appellant involved the progressive installation of task specific platforms throughout its storage network. The estimated cost of the installation was $6,000,000 and the estimated time for completion of the installation at all sites was 48 months. Risk assessments in relation to the task had been carried out at various sites. These assessments utilised one of two different methods. The first referred to as a "Take Five" strategy was used for simple tasks and the second a "WRAC Assessment Program" was used for more complex tasks. Prior to 30 December 2003 a WRAC assessment had been carried out at one of the appellant's sites at Boggabri but not at the Narrabri site. Item 1 of the Boggabri WRAC assessment contained a directive to secure a ladder to a platform by tying it off with ropes. An interim measure at the Narrabri site, pending the installation of the task specific platforms, consisted of modifying the north and south platforms which were in turn accessed by portable ladders. This was the system used by Mr Ford on 30 December 2003. 5 In October 2003 the appellant had also made available to all staff a Safe and Healthy Practices Booklet (the safety booklet). This booklet contained instructions about working in high places, including the use of ladders. One simple instruction was: When placing a ladder (other than a stepladder) in position, make sure it will not slip and attach it at the top or get a workmate to hold it. Judgment at first instance

[68]

[63] The offence cannot be characterised as an aberration in my view, but should be seen as continuing an attitude of disobedience to the law. 49 The appellant's contention that a corporation cannot be morally culpable was advanced without the benefit of any supporting authorities. There is, however, an impressive body of judicial authority and literature which suggests the contrary position. It has been accepted that a corporation can, for example, be convicted of manslaughter: R v ICR Haulage Ltd [1944] KB 551 at 556; The Queen v Murray Wright Limited [1970] NZLR 476 at 483, 485; R v P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 72. A corporation may also be found guilty of conspiracy: Williams v Hursey (1959) 103 CLR 30 at 128. See also Hamilton v Whitehead (1988) 166 CLR 121 at 127-130. 50 As to the relevance of the protection of society and the obligations of an employer to employees under the occupational health and safety legislation, we would make the obvious point that the principle has undoubted application in the context of workplace safety. Indeed one of the objects under s 3(b) of the Act is, "to protect people at a place of work against risks to health and safety arising out of the activities of persons at work". 51 The appellant also relied on the first instance decision of Haylen J in Inspector Christensen v Harnischfeger of Australia Pty Ltd t/as H&P Minepro Services (Australia) & another [2004] NSWIRComm 131. That decision dealt primarily with the principle of parity and the impact of different maximum penalties on offenders charged with different but "parallel" or "related" offences under the Occupational Health and Safety Act 2000, where the difference in the maximum penalties was the result of one offender having a criminal record thereby triggering the application of s 12 of the Act: see [37]. The appellant urged upon the Full Bench a finding by Haylen J who rejected a submission that where the culpability of two defendants is broadly equal, the penalty imposed on the defendant with the prior record should reflect the fact that that defendant, being subject to the higher statutory maximum, is guilty of a more serious offence: at [48]. Our attention was directed to a particular portion of Haylen J's observations on the issue where his Honour said:

[69]

Section 12 of the 2000 Act (and s 51A of the 1983 Act) does not purport to directly intervene in the sentencing process by directing a specified result: for instance, s 12 does not require a minimum penalty for a second or subsequent offence nor does it require a penalty at least equal to or greater than the previous penalty imposed. Having regard to the width of conduct caught by s 8 (for example) it is not surprising that such an approach has not been adopted by the legislature: a very serious first offence may be followed by, objectively, a very minor and different subsequent offence especially in industries involving inherently dangerous conditions and/or involving large numbers of workers. The availability of a higher range of penalties for the second and subsequent offences provides the sentencing judge with a wider range of penalty options depending on the circumstances of the case, and underlines the legislature's disapproval of subsequent offences under the Act. The higher penalty regime will be available, for example, where the previous history shows a propensity to subject employees to unsafe systems of work. 52 We do not find it necessary on this appeal to consider whether Haylen J's approach to the impact of two different statutory maximum penalties on offenders whose culpabilities otherwise may be described as "broadly equal", was in accordance with prevailing authority. It is a long-established and uncontroversial proposition that a sentencing judge must look at the surrounding circumstances including the statutory maximum penalty when deciding what penalty to impose on sentence. An offender's prior history is one of many features that may be present in the sentencing process, and it may be used in a variety of ways, some of which are suggested in Veen v The Queen (No 2), such as whether, by reason of a prior record, leniency to which the offender may otherwise be entitled should be withheld. The statutory maximum for a particular offence forms part of the objective circumstances which must be taken into account. 53 The particular passage extracted above from the decision of Inspector Christensen v Harnischfeger, upon which the appellant placed reliance, deals with an offender under the occupational health and safety legislation, with a prior record who is thereby subject to the higher statutory maximum under s 12 of the Act. Staff J in the present decision considered the appellant's prior convictions in detail. His Honour considered the facts in relation to each conviction, whether the offences were a first or subsequent offence, the actual penalties imposed, and, whether the appellant had pleaded guilty or not guilty to particular offences. His Honour then concluded (at [59]):

[70]

[59] Although it can be seen from the above analysis that none of the prior offences are of a nature and degree such as the offence before me, it is wrong to submit, as Mr Skinner did, that this offence is distinguishable from the earlier offences and should be considered independently of the earlier convictions. I reject the submissions. The antecedent criminal history of the defendant may be taken into account in determining the sentence to be imposed. 54 It is reasonably clear from his Honour's examination of the appellant's prior record that his Honour placed the present offence in a more serious category when he remarked that the prior offences were not of the same "nature and degree" as the present offence. Nevertheless in our view, his Honour's approach in rejecting the appellant's submission that the present offence should be considered independently was entirely correct and in accordance with authority, which as we have earlier observed, requires the sentencing judge to consider an offender's prior record. 55 Finally, we should add that it is not at all clear to us that his Honour took into account, in relation to the appellant's prior history, its moral culpability or whether the prior offences showed a dangerous propensity or the need to impose condign punishment. The quotation from Veen v The Queen (No 2) which his Honour extracted in the decision at [62] discloses that those purposes or principles of punishment are expressed in the alternative. The real finding made by his Honour on the issue, in our view, appears in the following paragraph (at [63]) when his Honour says that the offence, "cannot be characterised as an aberration in my view, but should be seen as continuing an attitude of disobedience to the law". We can discern no error with this approach. His Honour was dealing with offences under the occupational health and safety legislation all of which dealt generally with breaches of safety by the appellant as an employer in the workplace. 56 This ground of appeal also fails. Ground 5

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