Graincorp Operations Limited v Inspector Mason

Criminal Appeal Act 1912 LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 2000

Baumer v The Queen (1988) 166 CLR 51 Genner Constructions Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 Hamilton v Whitehead (1988) 166 CLR 121 Inspector Christensen v Harnischfeger of Australia Pty Ltd t/as H&P Minepro Services (Australia) & another [2004] NSWIRComm 131 Inspector Gary Mason v Graincorp Operations Limited [2005] NSWIRComm 328 Inspector Hannah v Graincorp Operations Limited [2005] NSWIRComm 427 CASES CITED: R v ICR Haulage Ltd [1944] KB 551 R v Johnson [2004] NSWCCA 76 R v P & O European Ferries (Dover) Ltd (1991) 93 Cr. App. R. 72 The Queen v Murray Wright Limited [1970] NZLR 476 Tieman Industries Pty Ltd v WorkCover Authority (NSW) (Inspector Littley) (2005) 142 IR 201 Veen v The Queen (No. 2) (1988) 164 CLR 465 Williams v Hursey (1959) 103 CLR 30

Appellant: Mr P Skinner of counsel Solicitors: Goldbergs Lawyers LEGAL REPRESENTATIVES: Respondent: Mr G Farmer of counsel Solicitors: Moray & Agnew

CORAM: WRIGHT J, President WALTON J, Vice-President BACKMAN J

Application by Graincorp Operation Limited against a decision of Justice Staff given on 13 September 2005 in Matter No IRC 5113 of 2005

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

6 Staff J after reciting the facts and setting out the submissions of the respective parties acknowledged by way of opening remarks that the appellant had safety systems in place prior to 30 December 2003 which were indicative of its serious approach to occupational health and safety. His Honour accepted that on 1 October 2003 at the Narrabri depot the appellant had in place interim measures designed to ensure the safety of its workers pending the installation of the task specific platforms. His Honour then said:

The critical failure was that the ladder had been placed in a position with the base against the overflow chute at the floor level with the top resting against the platform. The top of the ladder extended 150 mm above the platform. It is required to extend one metre above such platform. The ladder was not secured at the top. When Mr Ford completed his work, he stepped onto the ladder which moved sidewards, causing him to lose his footing and fall. 7 His Honour then referred to the induction programme which was in place prior to the offence and to the WRAC assessment observing that it had been issued to employees at the Boggabri site but no such assessment had been received at the Narrabri depot. In relation to the WRAC assessment his Honour said: Had such a document been forwarded to the Narrabri site, this could have brought home to the employees the need to secure the ladder.

His Honour also said: Appropriate supervision of the site should have also revealed the unsafe practice being utilised by the defendant's employees. This was especially so when the temporary practice was put in place to replace another practice that was deemed to be unsafe and the temporary practice was continued for a period of about two months. 8 His Honour then embarked on an analysis of the objective factors. The risk of working with an unsecured ladder his Honour found was obvious and known to the appellant. Readily available appropriate measures were not taken by the appellant, for example, provision of the WRAC assessment, tying off the ladder or providing a ladder of sufficient length; and appropriate supervision was not provided. The risk of injury his Honour found was both obvious and "easily minimised", and, in the context of Mr Ford's fall from a height of 3.6 metres onto a concrete and metal surface, any fall was, "likely to result in serious injury. At worst a death could have occurred". General and specific deterrence were also considered. His Honour found that there should be a, "strong element" of both principles reflected in the penalty because of a need to, "... remind the (appellant) of the need to be pro-active in searching out and eliminating risks". 9 Subjective factors were then considered. The early plea of guilty was acknowledged and a discount of 25 per cent awarded. Co-operation and contrition were also taken into account by his Honour in the appellant's favour. A submission made by the appellant at first instance that it had displayed "good corporate citizenship" was rejected by his Honour on the basis that it had eight prior convictions under occupational health and safety legislation. A further submission requesting the Court to take into account, "... the practicality of looking at every site and every worker and every piece of equipment" was also rejected by his Honour on the following basis:

[I]t is no answer to the absolute obligations imposed by the Act for any allowance to be given to the defendant's practicality of looking at every site and every worker and every place of equipment. The Act requires the defendant to ensure that employees are not exposed to risks to their health or safety whilst at work. The defendant is required to be proactive and vigilant in searching out risks to the safety of its employees. 10 His Honour next turned his attention to the appellant's prior convictions and examined the factual background to each conviction in some detail. His Honour then referred to the well-known principle extracted in Veen v The Queen (No. 2) (1988) 164 CLR 465 at 477-478 where the High Court explored the relevance of an offender's antecedent criminal history in the sentencing process. The Court of Criminal Appeal decision of R v Johnson [2004] NSWCCA 76 was commented upon by his Honour in terms of the discussion in that decision of Veen v The Queen (No. 2) concerning the extent to which a criminal record may be taken into account on sentence and the issues to which a sentencing judge should direct himself or herself. His Honour then concluded:

[62] It is therefore appropriate that I take into account the antecedent criminal history of the defendant as, in my view, "it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose a condign punishment to deter the offender and other offenders from committing further offences of a like kind."

[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. 11 Finally, his Honour stated that he accepted that the appellant had training programmes, described by his Honour as, "significant", and operational procedures in place which covered a diversity of workplace circumstances; and, that the incident occurred at a time when the appellant's safety systems were being upgraded at its grain depots, but, "through a lapse, an accident occurred". His Honour also took into account that the appellant, through the Graincorp Foundation, provides one per cent of its after-tax profits to provide and assist the region in which it operates. Grounds of appeal

12 The appellant's notice of appeal lists five grounds which are reproduced below: (1) His Honour erred in his reasoning process leading to his conclusion that the offence was serious, in particular in that: a. he gave too much weight to the failure by the appellant to establish that the WRAC statement forwarded to other sites had also been forwarded to the Narrabri depot or had otherwise come to the attention of the workers at Narrabri;

b. he erred at [38] of his judgment in holding that there was some requirement in law for the ladder to have extended one metre above the platform;

c. he erred in finding circumstances of aggravation that were not proved beyond reasonable doubt; and

d. he erred in holding that the worker suffered serious injuries;

2. His Honour gave too little weight to the circumstances of mitigation established by the appellant, in that: a. he gave too little weight to the procedures and documentation thereof which the appellant did have in place; and

b. he erred in holding at [52] of his judgment that the appellant was not a good corporate citizen and thus not entitled to mitigation of the sentence in that regard.

3. His Honour erred in holding at [52] of his judgment that for the purposes of sentencing "... it is no answer to the absolute obligations imposed by the Act for any allowance to be given to the defendant's practicality of looking at every site, and every worker and every piece of equipment " and then giving no allowance to the appellant for the difficulty in looking at every site, and every worker and every piece of equipment.

4. His Honour misapplied to this corporate appellant the common law sentencing principles in respect of individuals as elucidated in Veen v The Queen (No. 2) (1988) 164 CLR 465 and R v Johnson [2004] NSWCCA 76 and in coming to the erroneous conclusion that this corporate appellant had a " moral culpability ... or [a] dangerous propensity " (paragraph [62]) and that this offence " should be seen as continuing an attitude of disobedience to the law " (paragraph [63]).

5. The sentence was manifestly excessive. 13 We propose to consider each ground of appeal in turn. Ground 1

14 The appellant's first ground of appeal is divided into four parts. Since each part has been separately dealt with in the submissions of the parties, it is convenient to adopt a similar approach. Whether too much weight given to non-dissemination of WRAC statement at Narrabri depot

15 The appellant, in relation to the first part, relies on other documentation in addition to the WRAC assessment tendered in evidence in the sentence proceedings, such as the safety booklet and draft standard work instructions. These documents also contained specific safety instructions on the use of ladders. The appellant also relied on evidence which disclosed that Mr Ford, during a re-induction which took place a few months before the accident, had been instructed on the procedures for working in high places using ladders. The appellant also sought to advance a submission based on evidence given by Paul Robert McConaghy, the appellant's industrial relations manager, which, according to the appellant, supported a proposition that it was, "... quite possible that the injured worker had been trained in the new WRAC at Boggabri in any event". 16 These matters are advanced by the appellant in order to show that the failure to disseminate the WRAC assessment at the Narrabri depot should be assessed in the context of the detailed safety programme which was already in place at the time of the offence, and, that Mr Ford's actions at the time of the accident were in breach of clear company policy. His Honour however, according to the appellant, gave too much weight to the failure to disseminate the WRAC assessment at Narrabri, and, by implication, failed to sufficiently take into account the other evidence. 17 In relation to whether Mr Ford had been trained in the new WRAC assessment at Boggabri, Mr McConaghy gave the following evidence during the sentence proceedings: Q. Graincorp had determined that for the people at Boggabri a WRAC assessment was necessary, you accept that? A. We determined a WRAC assessment should be carried out at Boggabri, yes.

Q. And Boggabri and Narrabri are similar? A. Yes.

Q. And you don't know why a WRAC assessment was not provided to Narrabri, is that right? A. Well, I said that from the best of what I had been able to establish it was because of the similarity of the types of storages and the fact that much the same staff would be working at both sites.

Q. But you were unable to determine why it was that Narrabri did not receive the WRAC assessment? A. That is correct, I don't know the reason for that.

SKINNER: Q. Paragraph 12 refers to non-compliance with "the induction training given" and paragraph 13 then says something about the induction training that Mr Michael Ford would have been given, and annexes annexure E, do you see that? A. That is correct.

Q. Can I ask you something about annexure E, if you turn to that? A. Yes.

Q. I think the first document should have the heading "Employee training data" in the left hand corner top? A. Yes, I have got that.

Q. That is all about Mr Ford's training, is that correct? A. That is correct.

Q. And that is out of the computer records of the company? A. Yes.

Q. His Honour can take it that he attended those courses on those days and they were run by the people who are listed under the heading "Contractors", is that correct? A. That is correct.

Q. Which ones would you expect had taken Mr Ford through the working in high places requirements and the use of ladders? A. In particular, the first one, the OH&S site familiarisation.

Q. 12 October 2003? A. Yes, and the other two perhaps not exactly to the same extent but to some extent the occupational training for plant and equipment at Boggabri and the occupational training for plant and equipment at Werris Creek.

Q. You don't know whether it was but you would expect that certainly those matters would have been part of the module? A. They would have been part of the module.

Q. You were asked questions about the WRAC assessment for Boggabri which appears as annexure C. The team members are listed by name with two at the end just referred to as two casuals? A. Yes.

Q. You don't know one way or the other whether Mr Ford could have been one of those casuals? A. No, I don't.

Q. But he could have been? A. He could have been." 18 In our view, the fact that it was envisaged that staff would be working at both depots does nothing to advance the submission that Mr Ford received training in the WRAC assessment at the Boggabri site. Rather, what this evidence suggests is that the appellant, at some stage prior to the offence, made a decision not to disseminate the WRAC assessment at the Narrabri site because of perceived similarities between the storage facilities at both sites. 19 Nor does the evidence at first instance support the appellant's submission that his Honour gave too much weight to the failure to disseminate the WRAC assessment. In the sentencing remarks, his Honour viewed the assessment as one of a number of measures available to address defects in the system. His Honour said:

[40] I accept that the defendant had in place an induction programme designed to inform employees of the dangers of working with ladders and working at heights. However, although the defendant forwarded a WRAC statement to other loading sites, no such document was forwarded to the Narrabri site. Had such a document been forwarded to the Narrabri site, this could have brought home to the employees the need to secure the ladder. Appropriate supervision of the site should have also revealed the unsafe practice being utilised by the defendant's employees. This was especially so when the temporary practice was put in place to replace another practice that was deemed to be unsafe and the temporary practice was continued for a period of about two months.

[44] The availability of simple and straightforward steps to remedy the defects in the system is also relevant to the objective seriousness of the offence. In this matter, appropriate measures were not taken, in my view, even though such measures were available and feasible. These included the failure to provide to the employees at Narrabri a WRAC statement in relation to the temporary system, tying off the ladder at both ends and providing a ladder that was a sufficient length to properly perform the task at hand. Similarly, there was a failure to provide appropriate supervision of the work being undertaken or to have alerted the employees to the defects in the system that was being used by the employees. 20 These passages clearly show that his Honour, in addition to finding that the WRAC assessment had not been forwarded to the Narrabri site, also took into account in the appellant's favour, its induction programme. His Honour also considered other steps which the appellant, on the evidence, had failed to implement, as contributing factors to the overall assessment of the objective seriousness of the offence. These included the appellant's failure to properly supervise workers at the Narrabri site, as well as various failures associated with simple and readily available means which would otherwise have ensured the ladder used was safe. Whether a requirement in law for extension of ladder to one metre above platform

21 The appellant contended in the second part of its first ground of appeal that his Honour erred in holding that there was a requirement in law for the ladder, the subject of the accident, to have extended one metre above the platform. 22 During oral submissions, counsel for the respondent, the prosecutor at first instance, Mr Farmer, informed the Court:

I do not know if there is any real dispute about the particular concerning the height that the ladder must project beyond the platform onto which the worker is intended to step, but it does come from occupational health and safety guidelines which draw their information from various Australian standards. It was served on my friend. 23 Counsel for the appellant, Mr Skinner, responded as follows:

I do not dispute that there is a Standard around. My only point was that it isn't set in stone as a piece of legislation." 24 In the sentencing remarks, his Honour referred to the issue in the following statement (at [38]):

The top of the ladder extended 150mm above the platform. It is required to extend one metre above such platform. 25 The appellant submits that the reference to the extension of the ladder as a "requirement" reveals that his Honour erroneously regarded the failure to comply with the "requirement" as aggravating the offence. We do not agree. The fact that his Honour used the word "requirement" does not elevate it to a "requirement in law". His Honour was informed by the respondent in submissions at first instance that the "requirement" originated from the applicable Australian standard. There is no reason to conclude that this reference provided a basis for a finding that the offence was thereby rendered more serious because it aggravated the offence. Given the submissions of both counsel at first instance, the reference to a "requirement" may be reasonably construed simply as a reference to what was contained in the relevant Australian Standard. Whether circumstances of aggravation were not proved beyond reasonable doubt

26 In relation to the third part of the appellant's first ground of appeal, the submission is made that given the state of the evidence regarding the Boggabri WRAC assessment, it cannot be determined beyond reasonable doubt that Mr Ford was not aware of it. Further, the evidence did not allow a finding beyond reasonable doubt that there was a practice at the Narrabri site of utilising a ladder that was unsecured and used by one man working alone. 27 The submissions are predicated upon findings being made by Staff J at first instance beyond reasonable doubt in relation to both matters. A reading of his Honour's reasons, however, does not compel the conclusion that his Honour made any such findings. First, his Honour's findings were confined to facts of the offence which occurred within a time period of one day, that is, on 30 December 2003. Secondly, his Honour found that the WRAC assessment was not sent to the Narrabri site. No inference could be drawn from this finding that Mr Ford was not aware, of the WRAC assessment at the Boggabri site. The evidence which we have identified on the issue earlier in this judgment is inconclusive as to whether Mr Ford received training at the Boggabri site in the WRAC assessment. Thirdly, although his Honour alluded to an "unsafe practice" in the context of a failure to provide appropriate supervision, his Honour ultimately found that the accident occurred, "through a lapse", at a time when the appellant was upgrading its safety systems. Whether worker suffered serious injuries

28 The appellant, in the fourth part of Ground 1 of the appeal, contends that his Honour was in error in finding that the injuries suffered by Mr Ford as a result of the accident were serious. According to the appellant, Mr Ford's injuries were not "particularly serious" and his Honour appeared to approach the sentence on the basis that Mr Ford, "had a lucky escape from death". 29 After first reciting the relevant legal principle in relation to the extent to which a sentencing judge may take into account the gravity of any injury or injuries which result from a breach of the Act, his Honour said (at [46]):

46 In this matter, in my view, the risk of injury occurring was obvious and easily minimised. The work was being undertaken at a height of 3.36 metres above a ground surface of concrete and metal. Any fall was likely to result in serious injury. At worst, a death could have occurred. Mr Ford suffered serious injuries as a result of him falling in excess of three metres to the ground below. He remained off duty from 30 December 2003 to 7 January 2004 when he returned for one hour on light duties. He remained on light duties for approximately one month. 30 In our opinion, there can be no doubt on the evidence that Mr Ford suffered serious injuries as a direct consequence of the appellant's breach of the Act. Mr Ford sustained a head laceration requiring twenty stitches, a laceration to his left knee and a fractured left wrist. Moreover, this issue appears to have been conceded by the respondent. In submissions at first instance, Mr Skinner informed the Court:

The defendant doesn't wish to be seen to be belittling the nature of the injuries to this man by the deletion from the agreed statement of facts of the word "serious". 31 We can perceive no error in his Honour's finding that Mr Ford's injuries were serious. Nor do we perceive any error in the finding that Mr Ford's accident was likely to result in serious injury and, that "at worse a death could have occurred". The evidence established that Mr Ford fell approximately three metres to the hopper floor which was made of concrete and metal. 32 Accordingly, the appellant's first ground of appeal fails. Ground 2

33 The second ground of appeal is divided into two parts. We propose to separately consider each part. Whether too little weight given to procedures and documentation

34 The first part of the appellant's second ground of appeal overlaps to a considerable extent with the first ground. The appellant complains that his Honour gave too little weight to the procedures and documentation which it had in place prior to the offence. These included the safety booklet, the draft standard work instructions, as well as the training received by Mr Ford, apparently specifically in relation to procedures for working in high places and using ladders. 35 It is difficult to see, from a reading of his Honour's reasons, how it can properly be said that his Honour gave too little weight to the appellant's safety procedures. His Honour expressly took into account in the appellant's favour the induction programme in which Mr Ford took part some months prior to the offence. His Honour also expressly acknowledged the evidence which his Honour said indicated that the appellant took seriously its occupational health and safety procedures. 36 The respondent, in submissions, reminded the Court that the appellant had determined that a WRAC assessment be issued for the complex task of assisting in the loading of grain wagons from an elevated platform. The appellant submitted, in relation to this first part of its second ground, that it was entitled to mitigation because, "... a trained worker ignored set procedures and an obvious risk". We agree with the observation of the respondent that such a submission seems contrary to the perceived need for the WRAC assessment, as well as to the appellant's concession by way of its plea of guilty that necessary supervision was not provided on the day of the offence. Finding that appellant not a good corporate citizen

37 The appellant also contended under this second ground of appeal that his Honour erred in holding that it was not a good corporate citizen which disentitled it to any mitigation of the sentence. 38 His Honour's finding that the appellant has not shown good corporate citizenship and was therefore not entitled to a discount on sentence was based upon the evidence that the appellant had eight prior convictions. We perceive no error in this approach. The absence or presence of prior convictions can appropriately be taken into account on sentence either in mitigation or as a basis for withholding leniency: see, in relation to the absence of the prior convictions, Genner Constructions Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 at [74]. The question of good corporate citizenship may be considered by reference to an appropriate assessment of prior convictions: see, for example, Boland J's comment on the issue in Inspector Hannah v Graincorp Operations Limited [2005] NSWIRComm 427 at [41] where his Honour said:

[41] The defendant now has nine convictions against its name in a space of six years. The guilty pleas in relation to the charges before me will mean eleven convictions. It is not a simple matter, however, of pointing to the number of prior convictions and arriving at the conclusion the defendant is not a good corporate citizen. Of course, if the Court, after making a proper assessment of the prior convictions and other relevant factors, comes to the view that the defendant has a propensity to re-offend or is deserving of "condign punishment" to deter it from committing further offences, it would be inconsistent with such a finding to conclude that the defendant was a good corporate citizen in the context of its responsibilities for occupational health and safety." 39 Later, in Boland J's judgment (at [47]), his Honour expressed agreement with Staff J's approach to the issue in the present case. Clearly, that approach which involved a detailed examination of the appellant's prior convictions was not founded upon a consideration that a propensity to re-offend may result in an increase in sentence, which is impermissible in the absence of statutory authority, but rather as a basis for his Honour's finding that the appellant was not entitled to a discount. Such an approach is in accordance with prevailing authority. In Baumer v The Queen (1988) 166 CLR 51 at 58, for example, the High Court, in commenting upon a sentencing judge's observation that the applicant's "... literally appalling offence" had increased the seriousness of the offence said (at 57, 58):

If this means no more than that such a record would make it difficult to view the circumstances of the offence or of the offender with any degree of leniency then, of course, such a remark would be understandable and unobjectionable. It would clearly be wrong if, because of the record, his Honour was intending to increase the sentence beyond what he considered to be an appropriate sentence for the instant offence. Similarly, his Honour's observation that people with the propensity of the applicant to continue to commit driving offences must be "kept away" for the protection of the public is open to misunderstanding. Propensity may inhibit mitigation but in the absence of statutory authority it cannot do more. 40 We would add for completeness, that we do not consider that there was any compounding of this factor by his Honour considering both 'corporate citizenship' and prior convictions. In this matter they are related issues and both went to the question of leniency. 41 In conclusion in relation to this second ground of appeal, we can discern no proper basis for the appellant's contention that too little weight was given to the circumstances of mitigation in the sentencing process. His Honour awarded a 25 per cent discount for the utilitarian value of the plea of guilty. His Honour expressly took into account in the appellant's favour its cooperation with WorkCover, its expression of contrition; the "significant training programmes" and operational procedures which the appellant had in place prior to the offence; and, the fact that the appellant, through its Graincorp Foundation provides one per cent of its after tax profits to assist the rural area in which it operates. 42 This ground of appeal also fails. Ground 3

43 In the third ground of appeal the appellant takes issue with a finding by his Honour at [52] of the judgment that,

[S]imilarly, it is no answer to the absolute obligations imposed by the Act for any allowance to be given to the defendant's practicability of looking at every site and every worker and every piece of equipment. 44 In expanding the point the appellant advances a series of short propositions which may be briefly stated:

(i) the Act provides for offences of absolute liability;

(ii) statutory defences under s 28 are nevertheless available to amend or qualify the absolute liability by raising the concept of practicality;

(iii) even if his Honour had made the statement (extracted above from [52] of the judgment) in the context of a defended hearing in which liability is disputed his Honour would have been in error;

(iv) the appellant by its plea accepted liability and accepted that it could not make out a defence although extensive safety measures had been implemented in order to protect workers from risks involving falls from ladders and there was "clear evidence" of the scale of the appellant's operations which presented difficulties in "looking at every site, and every worker and every piece of equipment..." 45 What these simple propositions ignore, in our opinion, is that, as the respondent submitted, it was not open to the appellant in the sentencing proceedings below to submit that it was not "reasonably practicable" to have ensured Mr Ford's safety. This is because it had specifically turned its attention to the need to obviate the risks associated with working in high places while utilising ladders. The safety manual for example in a section headed "Working in High Places" contained the instruction:

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.

The WRAC assessment, for the Boggabri site dated 1 October 2003, also assessed the risks associated with working with ladders in high places. Item 1 of the Boggabri WRAC assessment contained a directive to secure a ladder to a platform by tying it off with ropes. 46 This ground of appeal also fails. Ground 4

47 The appellant in oral submissions described its fourth ground of appeal as, "the central point of principle in this appeal". The primary submission here is that his Honour misapplied the sentencing principles set out in Veen v The Queen (No 2) to the appellant by virtue of its corporate status. In short, the appellant submitted that a corporation cannot have moral culpability. As well, the principle of the protection of society which was the critical issue in Veen v The Queen (No 2), the appellant says is not applicable to it. 48 In the sentencing remarks his Honour adverted to the principle expressed in Veen v The Queen (No 2), that an offender's criminal record is not an aggravating feature which therefore operates to increase the seriousness of the offence but is relevant to issues such as, "denunciation and deterrence". His Honour then said (at [62] and [63]):

[62] It is therefore appropriate that I take into account the antecedent criminal history of the defendant as, in my view, "it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose a condign punishment to deter the offender and other offenders from committing further offences of a like kind."

[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:

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]):

[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

57 The appellant's fifth ground relies on a submission that the sentence imposed by Staff J was manifestly excessive. It has been said many times in this jurisdiction, that a sentence which warrants a conclusion that it is excessive does not depend for this conclusion on the attribution of identified specific error in the sentencing remarks: see for example Tieman Industries Pty Ltd v WorkCover Authority (NSW) (Inspector Littley) (2005) 142 IR 201 at 202-203. 58 The transcript at first instance records the appellant making the following submission on sentence:

The range of sentences for matters dealt with in this Court are from as low as $1,275 in a fine, up to something over $1,000,000, but that was for multiple offences and that is distinguishable. For matter of plea, the range is really about $200,000 to $300,000, very, very low fines.

I urge your Honour towards the lower end in all the circumstances. 59 The appellant here disputes the correctness of the transcript insofar as it purports to record the appellant as saying that $200,000 to $300,000 represented a starting point as "very, very low fines". 60 We are of the view that the transcript more accurately reflects an attempt by the appellant to identify a range from somewhere between $1,275, being a "very, very low" fine and $200,000 to $300,000, within which a sentencing judge may consider the imposition of penalty for breaches of the Act. If so this is precisely what his Honour did when he imposed a penalty of $180,000. In any event, we note that we do not concur with the appellant's statement as to the applicable range where a plea of guilty is made. 61 Given the available maximum penalty, the objective and subjective features as well as the prior criminal history all of which his Honour took into account in the sentencing process we are not of the view that the penalty imposed was, in all the circumstances, excessive. 62 This ground of appeal also fails. Orders

2. The respondent shall have its costs of the appeal as agreed or in the absence of agreement as assessed by the Court.

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