Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Other matters - Tasmania - Manifestly inadequate.

Workplace Health and Safety Act 1995 (Tas), s9.

Justices Act 1959 (Tas), ss107, 110.

Industrial Safety Health and Welfare Act 1977 (Tas), s46.

Warner's Sentencing in Tasmania, 1st edn (1991) [2.310].

House v The King [1936] HCA 40; (1936) 55 CLR 499, Lactos Pty Ltd v Kent [2003] TASSC 82, Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1, R v Jurisic [1998] NSWSC 423; (1998) 101 A Crim R 259, Workcover Authority of NSW (Insp Tyler) v The Roads and Traffic Authority [1999] NSWIRComm 391, R v Clarke [1996] VICSC 30; (1996) 2 VR 520, referred to.

Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The hearing - Practice on or after hearing - Admission of further evidence - Principle to be applied.

Justices Act 1959 (Tas), ss107, 110.

R v Smith (1987) 44 SASR 587, referred to.

Brinkman v Dix (No 2) [1999] TASSC 65, applied.

R v Stanley (1998) 7 Tas R 357, discussed.

Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139; (2003) 12 Tas R 337, Fernando v Medical Complaints Tribunal [2004] TASSC 130; (2003) 12 Tas R 366, distinguished.

Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - Matters relating to decision - Duty to state reasons.

Sentencing Act 1997 (Tas), s93.

Kelly v O'Sullivan A58/1994, Nash v Haas [1972] Tas SR 1, Shrubsole v Rodriguez (1978) 18 SASR 233, Bastick v Cochrane 77/1997, referred to.

Judgment Number: [2006] TASSC 48

ROBERT LINDSAY PEARCE v AUSTRALIAN FOOD GROUP PTY LTD

1 On 9 November 2005, the respondent was convicted of breaches of the Workplace Health and Safety Act 1995 ("the Act"), s9(1) and (4). It was fined $25,000. The circumstances which gave rise to one of the breaches involved the death of a 16-year-old youth. This notice to review the sentence has been brought by the young man's parents ("the first named applicants") and a representative of Workplace Standards Tasmania ("WST"), the body which mounted the original prosecution ("the second named applicant").

2 No issue was taken on the hearing of the notice as to whether the first named applicants were "persons aggrieved" pursuant to the Justices Act 1959, s107.

3 The Act, s9(1), provides:

"(1) An employer must, in respect of each employee employed by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular, must -

(a) provide and maintain so far as is reasonably practicable -

(iii) plant and substances in a safe condition; and

(b) provide facilities of a prescribed kind for the welfare of employees at any workplace that is under the control or management of the employer; and

(c) provide any information, instruction, training and supervision reasonably necessary to ensure that each employee is safe from injury and risks to health."

The Act, s9(4), provides:

"(4) Any employer who exercises, or is in a position to exercise, management or control over a workplace must ensure that, so far as is reasonably practicable, any person at that workplace is safe from injury and risks to health."

4 The charges against the respondent were in the following terms:

"1 That between on or about 1st July and on or about 12th July, 2004 Australian Food Group Pty Ltd being at all material times the employer within the meaning of the Workplace Health and Safety Act 1995 of Paul Leslie Digney and Christopher Ronald Shennan at a workplace; being a meatworks at 29 Killafaddy Road, Launceston in Tasmania, did fail in respect of the said employees to ensure, so far as was reasonably practicable, that they were, while at work at the said workplace, safe from injury and risks to health and, in particular, did fail to provide and maintain so far as was reasonably practicable plant in a safe condition, namely a Hyster 1.75 XL forklift truck, within the meaning of Section 9(1)(a)(iii) of the said Act, further particulars of such failure being set out below, CONTRARY to Section 9(1) of the said Act.

A The provision by the defendant of the said plant for use by the said' employees, when it had the following faults:

e) Hand brake not working (left hand cable seized);

h) Right hand steer tyre worn, showing steel tread;

B The failure by the defendant to repair or maintain the said plant in accordance with a service report of FRM Toyota dated 3rd May, 2004, which referred to the faults listed in paragraph (A) (a) to (f) herein, or in any event to maintain the said plant in good and serviceable condition in accordance with AS 2359.2-1985 (Section 6.4).

2 That between on or about 1st July and on or about 12th July, 2004 Australian Food Group Pty Ltd being at all material times an employer within the meaning of the Workplace Health and Safety Act 1995 at a workplace over which it exercised management or control, being a meatworks at 29 Killafaddy Road, Launceston in Tasmania, did fail to ensure, so far. as was reasonably practicable, that Matthew Guy. Hudson ('Matthew'), being a person at the said workplace, was safe from injury and risks to health, further particulars of such failure being set out below, when during the said period Matthew, having accompanied Tibor Mucha ('Mucha') to the said workplace for the purpose of assisting him in carrying out his work for and on behalf of the defendant, operated a Hyster 1.75 XL forklift truck belonging to the defendant, and in particular on 12th July, 2004 was operating (ie; reversing) the said machine upon uneven ground in the old by products area, the right hand wheels becoming elevated and the forks being raised, the said machine falling over on its left hand side, causing Matthew fatal injuries, CONTRARY to Section 9(4) of the said Act.

a) Allowing Matthew to operate the said machine without supervision;

b) Allowing Matthew to operate the said machine without ensuring that he had the requisite qualifications, training or skill to do so; particularly in accordance with AS 2359.2-1985 (Section 2);

c) Allowing Matthew to operate the said machine when it knew or ought to have known that the machine was suffering from the faults referred to in charge 1 herein;

d) Failing to direct Matthew and/or Mucha that Matthew was not to operate the said machine;

e) Failing to supervise Matthew whilst at the said workplace;

(h) Failing to have in place and to enforce a system or policy whereby the said machine was secured when not in use and unable to be operated by any person not authorised and qualified to do so (that is key issue to authorised forklift drivers only)."

5 What underpinned both charges against the respondent was a breach of a duty to ensure any person on its worksite was, as far as was reasonably practicable, safe from injury and risks to health. Count 1 was specifically directed to the provision for use by employees of a forklift with faults and a failure to repair and maintain that forklift. Count 2 was in a sense broader in that it related to allowing the use of the same forklift with faults by a non-employee, but with other elements. These were, of course, allowing the use of the forklift where there was no qualifications, training or experience to do so and a lack of supervision both generally and specifically at the time of use.

6 The respondent pleaded guilty to both charges. Following the plea, counsel for the second named applicant tendered to the learned chief magistrate a statement of facts which he said were agreed to by counsel for the respondent. He then proceeded to read that statement.

Up until 30 June 2004 the workplace at 29 Killafaddy Road, Launceston commonly known as 'Killafaddy' was operated by Blue Ribbon Products Pty Ltd. On 1 July 2004 the defendant, Australian Food Group Pty Ltd, took over management and control of the business at Killafaddy. Mr Graham Pilgrim remained as manager after the defendant company took over operations. Several other employees including Mr Paul Digney and Mr Christopher Shennan retained their positions after the AFG takeover.

Charge 1 - Breach of Section 9(1)(a)(iii) Workplace Health & Safety Act 1995

One of the items of plant operated by the defendant company and used by its employees including Mr Digney and Mr Shennan was a hyster 1.75XL forklift truck hereafter referred to as the 'FLT'. The FLT had been serviced by FRM Toyota on 3 May 2004. FRM provided a service report referring to a series of faults with the FLT as particularised in paragraph A(a) - (f) of the complaint. No attempt was made by the defendant company during the period 1 July 2004 to 12 July 2004 to rectify the faults identified in the FRM service report or to replace worn components. Two days following the accident giving rise to charge 2 on the complaint the FLT was inspected by Mr Tony Hindrum, the service manager at FRM, on 14 July 2004. Mr Hindrum noted the following faults:

1 Tyre pressure should be 100-110 psi; were LHF50, LR60, RHF60, RR64.

5 LF steer tyre needs replacing as did wheel bearing; grease leaking through seal.

The prosecution asserts the combined effect of the faults identified during the service on 3 May and demonstrated by the inspection of Mr Hindrum on 14 July not to have been rectified during the intervening period was such as to render the FLT unsafe to operate. It is asserted that the faults of particular significance prejudicing the safe operation of the vehicle were the underinflated tyres, absence of tread on LH steer tyre, inoperable hand brake and worn mast pivot bushes.

Charge 2 - Breach of Section 9(4) Workplace Health & Safety Act 1995

During the period 1 July 2004 to 12 July 2004 Mr Tibor Mucha was contracted by the defendant company to undertake boiler attendant tasks, boiler refitting and general refrigeration work. It was accepted by the defendant company through its servants and or agents including the work site manager Mr Graham Pilgrim that Mucha could use company plant to assist him with his tasks, in particular forklift trucks. Mucha had an endorsement for a forklift on his driver's licence but did not hold a certificate of competency for a forklift truck pursuant to Regulation 39 of the Workplace Health & Safety Regulations.

Matthew Hudson aged 16 years (date of birth 22/8/1987) an acquaintance of Mucha accompanied him to the Killafaddy worksite daily and assisted Mucha in carrying out his work for and on behalf of the defendant company. The work carried out by Hudson was not done for monetary reward; rather it was in the nature of work experience undertaken by Hudson in the hope or expectation that it would enhance his future employment prospects.

During his brief time at the Killafaddy work site Hudson from time to time operated forklift trucks on the site and also an agricultural tractor to the knowledge of the defendant company its servants and or agents. In effect Hudson had free unchecked movement within the work site. He did not receive any onsite operating guidelines or safety instructions either orally or in writing. He did not possess any of the requisite qualifications, training or skill to operate a forklift truck and in particular the hyster 1.7XL [sic] forklift truck FLT referred to in charge 1.

On Monday 12 July 2004 Hudson accompanied Mucha to the defendant company worksite at Killafaddy. After discussions relating to the intended day's activities Hudson operated the FLT while assisting Mucha to clean out a boiler. Mucha then carried out other tasks elsewhere on the worksite while Hudson was engaged in unwrapping a new boiler. While operating the FLT with the forks raised and reversing it upon uneven ground in the old by-products area of the worksite, the right hand wheels became elevated causing the machine to topple over onto its left hand side. Matthew Hudson was pinned under the machine sustaining fatal head injuries."

8 The learned chief magistrate was told the respondent had no prior matters.

9 In his plea in mitigation, counsel told the learned chief magistrate that the respondent had purchased the plant and equipment at the relevant site early in 2002, that is over two years prior to the accident. The plant and equipment were dilapidated and the systems of operation were substandard. The respondent worked tirelessly to modernise the site and work practices, significant money being spent on upgrading.

10 Matthew attended the site with a Mr Mucha, a person contracted by the respondent to carry out work on a boiler. The respondent believed Matthew was an employee of Mr Mucha and that he would be supervised by him. Management questioned Matthew about his qualifications and experience with forklifts. Matthew told them he had experience driving forklifts and had his licence. Management were unaware until after the accident that Matthew was only 16 years old. Mr Mucha was known to be a person who could provide supervision and instruction to people learning how to use forklifts. Mr Mucha allowed Matthew to operate a forklift on the respondent's site at times. It appeared to be uncertain as to just how Matthew came to be operating the forklift on this particular day, the inference being he had acted on his own initiative without direction by either any officer of the respondent or Mr Mucha.

11 In particular, counsel for the respondent told the learned chief magistrate that:

"I ask your Worship to note particularly that the condition of the forklift was not the cause of Matthew's death. The unfortunate and extremely sad death of Matthew appears to have occurred due to an operational error in backing the forklift over an uneven piece of ground. This is implicit in the statement of facts put by the prosecution."

12 The learned chief magistrate was handed a copy of the service report of 3 May 2004 referred to in the complaint. Counsel noted that there were 37 items checked on the forklift. Of those, 33 were marked as "OK" and the remaining 4 as "Requires Attention". In the comment section at the bottom there were the following remarks:

- Gas converter free flowing electric lock off (L80 SE Landi)"

13 There was nothing on the face of the report to indicate precisely what level of urgency, if any, was involved as far as attending to the items under the "Comments" heading or those marked as requiring attention. Counsel told the learned chief magistrate the service provider did not indicate the forklift was unsafe to use and should not be used. The service program was an ongoing one. A further service was undertaken on 9 July 2004. A two-page document relating to this was also handed to the learned chief magistrate. It was an invoice which listed some work apparently started on the machine on that date, which was the last working day prior to the accident. It is difficult to tell from that document what, if any, of the faults identified in May were fixed.

14 Counsel told the learned chief magistrate the document from the 3 May service was not made available to the respondent until some unidentified date in June when it received an invoice for that work. He also said:

"No person using the forklift had indicated any difficulty in its operation, particularly Digney or Shennan."

"The submission that the matters identified by Mr Hindrum from FRM form the complete matters of the complaint is not correct. The - some of the items that are referred to in the May servicing matter are faults that were identified later by Mr Hindrum but some of them aren't, and all of those matters, to the company's expectation, would have been attended to as I've said through this regular servicing program.

So particularly, it is not correct to assert that through the period of May to July the company was in a position of knowing that there were significant matters to be attended to and did nothing about it. Particularly, it is not contended and it was not the case that the condition of the forklift was in any way causative of Matthew's tragic death."

15 Counsel for the respondent then highlighted the steps the respondent had taken to address occupational health and safety issues and submitted this was not a matter at the high end of the scale, notwithstanding Matthew's unfortunate death.

16 The notice to review, as filed, contained only one ground of review and that was that the sentence imposed was, in all the circumstances, manifestly inadequate. At the commencement of the hearing, counsel for the applicants sought to amend the notice to include two further grounds, as follows:

"2 That the Learned Chief Magistrate erred in law by failing to give adequate or sufficient reasons for sentence, particularly by failing to state the factual basis upon which he proceeded to sentence the Respondent.

3 That the Learned Chief Magistrate erred in fact and/or law in finding 'That the matters alleged in the first charge are completely unrelated to the tragic consequences of the second charge'."

17 Counsel for the respondent opposed the amendments. He did not argue any prejudice to the respondent or that the amendments might cause delay. His principal opposition was that it would be futile to allow the amendments because there was no real or arguable prospect that the court would act upon them. It was agreed the hearing would proceed as if the amendments had been allowed and a decision as to whether they should be allowed would form part of that overall.

Application to amend notice to review - proposed ground 2

18 In support of her application, counsel for the applicants referred to the decision of Underwood J (as he then was) in Kelly v O'Sullivan A58/1994 where his Honour said at par8:

"It is now well accepted that failure by a judicial officer to give adequate reasons for the decision he or she makes is an error law. See Pettitt v Dunkley [1971] NSWLR 376; Watson v Anderson (1976) 13 SASR 329. Adequacy will depend on the nature of the tribunal and the nature of the case. '... it is not the obligation of a judge to give a jurisprudential exposition with every judgment. Nor is it the judge's duty to regurgitate evidence or state every step in the reasoning process, however remote that step may be to the ultimate conclusion. It is sufficient that the obligation be discharged by the judge for the purposes for which it is imposed by law'; per Kirby P in Palmer v Clarke (1989) 19 NSWLR 158 at 170. The purposes served by giving reasons was stated by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279-280 to be:

(a) to enable the parties to see the extent to which their arguments had been understood and accepted as a basis for the decision.

(c) to ascertain the basis upon which like cases will probably be decided in the future."

19 Counsel for the respondent raised the Sentencing Act 1997, s93, as a bar to this amendment. That section provides:

"(1) The failure of a court to give reasons or to comply with any other procedural requirement of this Act in sentencing an offender does not invalidate a sentence imposed by it.

(2) Nothing in subsection (1) prevents a court on an appeal against sentence from reviewing a sentence imposed by a court in circumstances where there has been a failure that is referred to in that subsection."

He argued that s93(1) prevented an attack on a sentence on the ground of inadequacy of reasons and that this section reflected case law in the area. Subsection (2), he said, permitted an attack on sentence on "traditional" grounds. The cases to which counsel for the applicant referred, he said, were situations where there were disputed facts or law. In this case there was no dispute, as the only outcome could be a fine and, in any event, comments on passing sentence were not the same as reasons for decision.

20 Counsel for the respondent referred to three authorities on this issue. These were Nash v Haas [1972] Tas SR 1, Bastick v Cochrane 77/1997 and Shrubsole v Rodriguez (1978) 18 SASR 233. As to the first of the three, while I accept it deals with an appeal against sentence, it does not, with respect, deal with the issue of adequacy of reasons and whether or not an appeal might lie on that ground. As to the second, Crawford J dealt with a notice to review in which one of the grounds was "failing to articulate reasons why a community service order, in addition to a fine, should be imposed". Crawford J said at 3:

"Counsel at first submitted that it is trite law that reasons must be given by a court for the imposition of a penalty. However the only authority to which counsel referred was Conlon v Arnold A56/1969, [1969] Tas SR 194 (NC 9), and it is not authority for the proposition that the failure to give reasons for a particular sentence amounts to an appealable error. Chambers J was concerned with a magistrate whose usual practice was not to express any reasons for sentence, and by way of obiter dicta, Chambers J said:

'It seems to me most desirable that, where a sentence of imprisonment is imposed and in the case of all serious offences (irrespective of the penalty), a Court should announce some reasons for its decision, however shortly expressed they may be. Appellate Courts from time to time find themselves in difficulty through no reasons having been given.'

Failure to give reasons does not of itself constitute a sufficient ground for setting aside a sentence. Tame v Fingleton (1974) 8 SASR 507; Massey v Muir A37/1976. I hold that the learned magistrate committed no appealable error arising out of a failure to give reasons, in particular a failure to explain why community service orders were imposed rather than not imposed. Often little can be said for preferring one sentence to another, or for imposing a particular sentence."

21 In the third case to which counsel referred, which also dealt with an appeal against sentence, Wells J said at 235:

"There is a tendency on the part of some counsel who appear regularly in appeals against sentence in Justices Appeals and in the Court of Criminal Appeal, by imperceptible adjustment of their submissions, to reach a stage where they invite the Court to treat remarks on sentencing as if they were reasons for judgment. They are, of course, nothing of the kind. A judgment, stricto sensu, is a compact piece of reasoning directed to the resolution of defined issues both factual and legal. Remarks on sentencing are primarily spoken to and for the benefit of the prisoner, and only secondarily to and for the benefit of the world at large. They follow the exercise by the court of a wide judicial discretion by means of which numerous factors are to be brought into a delicate balance, but the results of that exercise are not, except in the rarest of cases, susceptible to being presented as the inexorable outcome of a process of inductive or deductive reasoning. They appear at their most helpful and illuminating when they make plain to the prisoner the disrupting effect of his or her offence upon the community, or some segment of the community; explain to him or her the necessity for the sentence imposed or the order made, and where appropriate, how a particular order will operate for his betterment; and offer to him or her some sensible, practical advice, some serious, pertinent, admonition, or some encouragement, for the future. It would be wrong to force such remarks into an artificial mould whose shape and volume is dictated by the demands of a judicial process fundamentally different from that of sentencing.

I respectfully agree with the remarks of Walters J in Tame v Fingleton (1974) 8 SASR 507, at pp 509-510 and of Mitchell J in Felstead v Giersch (1976) 14 SASR 27, at p 30 on the desirability of Magistrates stating 'the factors which affected or influenced the Magistrate in passing sentence' (see Tame v Fingleton (supra) at p 510). Where a substantial penalty is being imposed, it is likely to have a salutary effect on the prisoner and to satisfy the public conscience if those factors are clearly stated; moreover, to state them in the manner suggested above will assist an appeal court asked to review the sentence or order but will not circumscribe the uninhibited exercise by the primary judge of his judicial discretion.

In the case before me it was, in my judgment, important for the Justices at least to mention briefly, for the reasons just advanced, the factors which affected or influenced them in imposing the sentence. But I am unable to find in the authorities or in principle reason to interfere if the absence of reasons alone is to be relied on. All that can be said is that I am left without the assistance that such remarks would offer when considering the surrounding circumstances in order to ascertain whether the sentences were fixed 'in the due and proper exercise of the Court's authority': see Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509."

22 The Sentencing Act, s93(1), of course, post dates all the cases referred to. However, with respect I am of the view it does not deal with the issue at hand. The section provides that failure to give reasons "or to comply with any other procedural requirement" does not invalidate a sentence (my emphasis). It does not prevent an appeal as such which is exactly what subs(2) says.

23 The words of Wells J in Shrubsole's case (supra), when he describes the difference between a judgment and sentencing remarks, are clearly apposite to this case. The only real sentencing option open to the learned chief magistrate was a fine, the issue being the size of it. Having regard to the nature of this case and the remarks made, any failure on its own to give adequate reasons could not be an appealable error. In my view, it would be futile to allow an amendment to the notice to review to add this ground. The application to do so is refused.

Application to amend notice to review - proposed ground 3

24 By this proposed ground, the applicants assert an error of fact and/or law by the learned chief magistrate. The error centres around a statement by him:

"I observe that the matters alleged in the first charge are completely unrelated to the tragic consequences of the second charge."

Counsel for the applicants posed the question, what did he mean, while counsel for the respondent submitted the learned chief magistrate was talking about causation.

25 The statement follows shortly after the learned chief magistrate purported to set out the charges faced by the respondent. When doing so he omitted subpar(c) of the particulars from count 2. That subparagraph created a direct link between the two charges in that it referred to the issue of the faults in the forklift and the respondent knowing of them. In the absence of that subparagraph, the learned chief magistrate's statement has some logic in it. However, with the existence of that subparagraph, it is difficult to see how he could say the matters alleged in count 1 were "completely unrelated" to the consequences of the second. Had he meant, for example, that he had the view that the faults in themselves were not causative of Matthew's death, he could have said so. The inference from the statement is that there simply was no connection.

26 In his comments, the learned chief magistrate did not identify the different elements to be considered in relation to each charge before him. Apart from the fact he set out what purported to be the two charges he was dealing with and referred in the next paragraph to general matters he took into account in relation to "the offences" and the one after to "the second charge", there was almost nothing in his reasons to indicate what specific factors he may have considered relating to each.

27 Counsel for the respondent submitted only that it would be futile to allow this amendment because the court would not act on it. He did not otherwise make submissions as to why the court should not allow it, confining his ultimate submissions to the ground itself. There is no suggestion the respondent would be prejudiced by allowing this amendment.

28 I am satisfied there is some merit in the ground. The learned chief magistrate incorrectly stated in his reasons the particulars of one charge. That misstatement, given the nature of it, may have led him into error. This application to amend the notice of review to add this ground will be allowed.

29 The maximum penalty for each of the breaches to which the respondent pleaded guilty was a fine of $150,000. The learned chief magistrate imposed a global sentence for both breaches of $25,000.

30 A sentence imposed by a magistrate is a matter of discretion and it has been frequently stated that discretion is wide. The words of Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 remain relevant to an appeal against the exercise of such discretion:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

31 Counsel for the applicants submitted that the learned chief magistrate's sentence was so low, having regard to the material facts of this case and the elements of each charge, that it demonstrated he failed to give proper regard to all relevant matters.

32 Counsel for the applicants submitted that the state of the respondent's knowledge of the faults in the forklift and the need for attention to them were highly relevant to the level of culpability of the respondent because users of the forklift were put at risk. There was no dispute the respondent knew of the faults. The issue was when it became aware of them and the state of its knowledge of the "need for attention" to them.

33 Counsel for the applicants submitted initially that the respondent knew of the faults from 3 May 2004 from the report of that date and that it knew some required attention. She said this was apparent from the terms of the complaint and the statement of facts. Neither, however, supports those facts. There is no argument the report was dated 3 May 2004, but the only information as to when its contents were communicated to the respondent came from its counsel, who said it was on an unidentified date in June 2004.

34 There was nothing in that report which obviously defined in any way the level of urgency required in respect of the repairs identified, or told the respondent, for example, "we recommend this equipment not be used until" certain repairs were carried out because it was unsafe. The only indication of urgency could have been derived from the nature of the faults identified and the words "Requires Attention". The respondent's response to that was we had an ongoing service arrangement in place, we relied on the service provider, it did not say there was any urgency, and so we assumed the repairs would be done at the next scheduled service.

35 Even allowing for the respondent perhaps not having the service report until June 2004, counsel for the applicants still submitted that what the respondent had done before the learned chief magistrate was infer that it was not a situation where it knew of faults and that repairs were needed, but just "sat" on them. She submitted this gave an incorrect picture to the learned chief magistrate.

36 Counsel for the applicants, at this point in her submissions, made an application pursuant to the Justices Act, s110(2), to introduce further evidence. The evidence sought to be introduced was an affidavit of the second named applicant sworn on 22 March 2006, attached to which were two documents. Both came into existence during the course of the investigation by WST into the accident resulting in Matthew's death and well prior to the hearing before the learned chief magistrate. One was a statement by a former employee of the respondent, said to have been made on 27 August 2004, about the safety of the forklift. The second was a form generated from a call made to WST Helpline on 31 May 2004.

37 This application was opposed by counsel for the respondent. It was agreed the material would be taken de bene esse and a ruling made on its admissibility as part of the overall matter.

38 It was conceded by counsel for the applicants that the documents attached to the affidavit formed part of the WST's file at the time of the sentencing hearing. However, she said they did not become available and known to the first named applicants until after that hearing and as the result of a freedom of information application. She argued they were directly relevant to the state of the respondent's knowledge of faults in the forklift and the need for attention to them, and directly contradicted what counsel for the respondent put to the learned chief magistrate about that state of knowledge. She argued the material put the state of knowledge in a proper light and that state of knowledge was directly relevant to culpability.

39 Counsel for the applicants submitted that while the material was not first hand evidence, the Court had the power, if it upheld the notice to review, to return the matter to the learned chief magistrate for the taking of evidence or indeed could take such evidence itself. In those circumstances the material could be tested and no prejudice would flow to the respondent.

40 The document which was annexure "A" to the affidavit was what purported to be an unsigned statement of Kim McPhee. It was dated 27 August 2004. By his affidavit, the second named applicant described the document as "a statement of Kim McPhee ... which was made as part of the investigation by Workplace Standards Tasmania into the death of ...". According to the statement, Mr McPhee worked at the site where the accident occurred until the first week of June 2004 and left under bad terms because of things he said about safety. The manager of the site at the time he left was the same manager at the time of the accident, Mr Pilgrim. Mr McPhee said he regularly drove the forklift referred to in these charges and for the three months before he left raised safety issues about it with the manager and others. He said nothing was done. Just before he left, the forklift had bald tyres, the brakes were not "crash hot", the hand brake did not work, there were oil leaks, the chains on the forks needed replacing and the machine needed servicing and repair. He said that he considered it unsafe, it was easy to turn over and it had frightened him several times. A lot of the ground around the site was uneven. He said he had told the manager before he left that the forklift was unsafe.

41 Counsel for the applicants submitted that the information contained in the statement was material in time (only weeks before the accident), the complaints made about faults corresponded to particulars in the complaint and the material went directly to the submission by the respondent's counsel to the learned chief magistrate that nobody using the forklift had raised any issue about its safety. It was potentially evidence which directly contradicted that submission.

42 Counsel for the respondent submitted that the evidence sought to be admitted was not fresh evidence because it was in the hands of the second named applicant at the time of the sentencing hearing.

43 The Justices Act, s110(2), provides for the Court, on the hearing of a motion to review, to consider "the evidence and materials adduced and brought before the justices and such further evidence (if any) as it thinks fit" (my emphasis). The section clearly gives the Court a discretion. However, it does not provide any guidance as to the circumstances in which such discretion might be exercised.

44 Counsel for the applicants referred to R v Stanley (1998) 7 Tas R 357 and Brinkman v Dix (No 2) [1999] TASSC 65. The first of these cases dealt with a Crown motion to review a sentence as a consequence of an offender being sentenced on the basis of his having agreed to give evidence against a co-offender and his having later reneged on that agreement. In the second, the court of review was asked to consider facts arising post sentence. Underwood J (as he then was) said at pars50 - 52:

"Although couched in quite different terms, the power conferred by the Criminal Code, s409(1) to receive evidence on appeal is just as wide as that conferred by the Justices Act, s110(2). Whether evidence of facts that have arisen after imposition of sentence or conviction will be received on an appeal or the hearing of a motion to review depends upon the issues raised by the grounds of appeal. It is a question of relevance. Evidence of some irregularity concerning the conduct of the hearing to support an appeal against conviction on the ground of error of law, may be admitted as relevant to that ground if, for example, the irregularity constituting the alleged error of law is not apparent on the face of the proceedings. In determining the issue of relevance, and thus admissibility, a flexible approach should be adopted. Admission of evidence of post-sentence facts upon an appeal against sentence requires careful consideration.

In Plumstead v R [1997] TASSC 158; (1997) 7 Tas R 206 and R v Stanley (1997) 7 Tas R 357, the Court of Criminal Appeal approved the following passage from the judgment of Gleeson CJ in R v Araya & Joannes (1992) 63 A Crim R 123 at 129 - 130:

'As a matter of practice this Court customarily adopts a flexible approach towards the reception of evidence in support of an application for leave to appeal against the severity of sentence. If it became necessary technically to justify reception of a good deal of the evidence we receive it would be done on the basis that it may become relevant to our resentencing the applicant if we decided to grant leave to appeal and have allowed the appeal.

However, I would prefer to say that the practice that the Court adopts is taken because of our overriding obligation to look at all the relevant facts or possibly relevant facts to determine whether a miscarriage of justice has occurred.'

Although I dissented in the outcome of R v Stanley, the whole Court was of one view with respect to the admission of post-sentence facts upon the hearing of an appeal against sentence on the ground of manifest inadequacy or excessiveness. Such evidence is relevant and admissible if it shows the true significance of facts which were in existence at the time of the imposition of sentence or if it explains facts that were before the sentencing judge so as to put them in a new light. I again refer to the passage from the judgment of King CJ in R v Smith (1987) 44 SASR 587 at 588:

'The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence, R v O'Shea (1982) 31 SASR 129 and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence.'"

45 Counsel for the applicants submitted, having regard to those authorities, that the evidence, in particular the statement of Mr McPhee, should be admitted as it put facts put to the learned chief magistrate in a new and particularly relevant light.

46 The second annexure to the second named applicant's affidavit was dealt with separately. The document as attached to the affidavit was difficult to read and counsel for the applicants, with the consent of counsel for the respondent, handed up what was said to be a better copy. A study of it, however, showed it was not precisely the same document. The subject matter was essentially the same and they both purported to relate to helpline request 1122/04. My comments will be directed to the document handed up. The second named applicant described it as a "Workplace Standards Tasmania Helpline Request record". As I understood it, the document was a record of a call said to have been made by an unidentified caller to the helpline maintained by WST and action taken by officers of WST thereafter relating to the contents of the call.

47 The date of the call is unclear. However, the notes which appear on the form are as follows:

"CALLER'S DAUGHTER'S BOYFRIEND WORKS AT BLUE RIBBON AND HAS BEEN INSTRUCTED TO USE FORKLIFTS DESPITE HIM NOT HAVING A COC AND STATING SUCH. CALLER IS CONCERNED ABOUT LEGAL RAMIFICATIONS IF AN ACCIDENT OCCURS.

3/6/04 SPOKE TO MANAGER GREAME PILGRIM TOLD HIM OF CONCERN BY CALLER ADVISED HIM OF REQUIREMENTS FOR OPERATING FORKLIFTS HE SAID HE WOULD FOLLOW UP CONCERN WITH HIS SUPERVISOR

48 The importance of this material would appear to be not so much whether what was alleged to have been said by an unidentified caller to WST was true or even if the call was made, but that WST representatives had dealings with the manager (Mr Pilgrim) about a month before the accident in the present case about a relevant issue, that is a practice of allowing unlicensed people to use the forklift. The material can obviously be tested by evidence from the relevant WST personnel and Mr Pilgrim. If indeed the contact occurred, it potentially contradicts the inference the learned chief magistrate was asked to draw which was that the respondent had done everything it could to ensure compliance with licence requirements.

49 Counsel for the respondent referred to Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139; (2003) 12 Tas R 337 and Fernando v Medical Complaints Tribunal [2004] TASSC 130; (2003) 12 Tas R 366. The cases dealt with an application to adduce fresh evidence on an appeal from a decision of a statutory tribunal. The issue was considered in the context of there being no express power pursuant to which the court could accept such evidence.

"... well-settled requirements as to fresh evidence in that (a) it is potentially credible; (b) it was not available to the appellant or his legal advisers before the Tribunal made its decision; (c) it was evidence which the appellant and his legal advisers could not reasonably have been expected to obtain with the exercise of due diligence before the Tribunal made its decision; and (d) it would have made a different result in the Tribunal proceedings so likely that the matters before the Tribunal should be reconsidered or re-determined."

51 Blow J went on to express himself satisfied that the evidence sought to be adduced met the first three requirements and then discussed the fourth and the differences in the tests to be applied in civil and criminal cases. He went on to apply a particular test and found against the appellant. The appellant then appealed. The Full Court held that the learned trial judge had applied the wrong test as far as the last requirement was concerned, the more appropriate one being that applicable in criminal cases. It allowed the appeal.

52 Counsel for the respondent submitted the tests dealt with in the Fernando decisions were the applicable tests in determining this application, and, in any event, the evidence sought to be admitted now was not fresh evidence. It was available to the appellants at the time of the hearing and the Court would need to be satisfied that the evidence was of such significance it would make a significant difference to the outcome. The Court needed to find, having regard to the Justices Act, s110, that there had been a miscarriage of justice in this case. He also submitted the cases referred to by counsel for the applicants had no bearing at all on this issue because in both cases the appellate court was dealing with post-sentence facts. In the present case the respondent's position was it did not know about the urgency or seriousness of the faults and nothing in the material sought to be led derogated from that.

53 Perhaps the first thing which needs to be said about the authorities to which each party referred and their arguments relating to their relevance, is that in the present case there is a statutory power to consider "further evidence" on the hearing of a notice to review. That was not the situation being dealt with in either of the Fernando matters. Secondly, the Fernando cases dealt with an appeal against a judgment after a hearing of evidence. The present review deals with a review of a sentence on what were said to be agreed facts.

54 With respect, counsel for the respondent has not appreciated the significance of what was said in Brinkman v Dix (supra). It is useful to look at what Underwood J said at pars53, 54, 57 and 60 because he outlined the differences in approach to material sought to be led. He said:

"It is important to remember when referring to Stanley that the sentence which was the subject matter of the appeal was passed upon the basis that as a matter of fact, the respondent would give evidence against the co-accused. The new fact upon which the Crown wished to rely was that when the co-accused came to trial, the respondent refused to give such evidence and, accordingly, the basis upon which sentence was passed was false.

The circumstances of the present motion to review are quite different. Sentence was not passed upon the basis either that Fishpak's permits would or would not be cancelled. It was passed upon the basis that it was 'surmised' that it might be cancelled. As I have already determined, that was the correct basis on which sentence should have been passed.

It seems to me that the correct approach to the preliminary point on grounds 6 and 7 of the motion to review is, firstly, to examine the factual material received de bene esse and, secondly, to determine if it either:

(a) shows the true significance of facts upon which sentence was passed; or

(b) explains facts that were before the sentencing officer so as to put them in a new light.

None of the above facts are admissible on grounds 6 and 7 of the motion to review. None of the material in the affidavits shows that sentence was imposed upon an incorrect basis. None of the material in the affidavits explain facts upon which sentence was passed so as to put them in a new light. As is invariably the case, the learned magistrate imposed sentence upon the basis (inter alia) that there was uncertainty about the occurrence of some future events. He was correct to do so. That sentence is for review upon the ground that, on the material before the learned magistrate, error attended its imposition. Evidence of events that were uncertain at the time of sentence, but which have subsequently become certain, are not per se relevant to the review. They only become relevant if, as I have said, such evidence shows the true significance of the state of uncertainty to which the learned magistrate referred when imposing sentence, or which shed new light on that state of uncertainty. None of the evidence admitted de bene esse falls into that category. It will not be admitted upon the determination of the motion to review."

55 I am of the view the reasoning process adopted by Underwood J in Brinkman v Dix (supra), based on the authorities to which he referred, is the correct approach to take in this matter.

56 The question is therefore whether the material, at this stage admitted de bene esse, either shows in some way the true significance of the facts upon which sentence was passed or explains facts that were put before the learned chief magistrate so as to put them in a new light.

57 I should indicate that counsels' submissions about the admissibility of the second named applicant's affidavit were predicated on the basis that what we were dealing with was not so much the affidavit itself but the documents attached to it, that is, the McPhee statement and the Helpline record. It appeared to be assumed that, if necessary, Mr McPhee could give sworn evidence as to the contents of what was said to be his document and that the Helpine record could stand alone and be indicative of the availability of other material, that is, evidence of discussions between a WST inspector and Mr Pilgrim referred to. It was, in effect, the content of that material which was the subject of the argument and its relevance to the sentencing process which was to be considered. I have dealt with the admissibility on that basis.

58 Counsel for the respondent submitted that what he put to the learned chief magistrate was that the respondent did not know of either the urgency or seriousness of the faults disclosed by the service provider's report and there was nothing in the material sought to be led which derogated from that. I have no difficulty with that particular submission. However, it ignores the remainder of the submissions which counsel put by way of mitigation.

59 At page 25 of the judges papers [43], counsel for the respondent said "No person using the forklift had indicated any difficulty in its operation, particularly Digney or Shennan." This statement was made in the course of submissions about the respondent's state of knowledge of the urgency and/or seriousness of the forklift faults. However, if regard is had to the contents of the statement of Mr McPhee, it tends to show the opposite of what counsel asserted. Counsel for the applicants argued that the McPhee statement demonstrated the respondent had knowledge of an aggravating factor from a source other than the service provider, that is, complaints about the safety of the forklift before the accident, and that the statement by the respondent's counsel to the learned chief magistrate would have led him to the opposite conclusion.

60 As to the Helpline request record, counsel for the applicants submitted it demonstrated knowledge by the respondent of a practice of permitting unlicensed forklift drivers to drive the machines existing prior to this accident and a failure to address the issue. Counsel for the respondent, on the other hand, submitted the information appeared to relate to an employee of the respondent and the matter arose well prior to the accident. The respondent's officers in the present case did make an enquiry of Matthew as to his licence status and were given a response by him which it could be said allayed any fears they might have had. There is no dispute they took the issue no further. It is unlikely that, had the learned chief magistrate had the Helpline request record at the time of sentence, it would have made any difference to the outcome, since what it discloses, and the explanation as to the enquiry made of Matthew, are not really inconsistent.

61 I propose to allow the applicant's application for the Court to consider further evidence on the hearing of this notice to review insofar as the affidavit of the second named applicant deals with the statement of Mr McPhee only. A relevant factor in the sentence of this matter was the knowledge of the existence of faults with the forklift and their impact on safety. Counsel's submission would have led the learned chief magistrate to the view that, because no employee had raised with the respondent any safety issues relating to the particular forklift, its only knowledge arose from the service provider's report. That knowledge, having regard to the terms of the report, did not extend to any which gave notice of serious repairs directly affecting safety which required urgent or immediate attention before further use. The fact that the respondent may have had such knowledge because an employee, within about a month prior to the accident, raised concerns about the safe use of the forklift as a consequence of certain faults, certainly shed new light on the facts before the learned chief magistrate and is likely to have been an aggravating factor as far as sentence was concerned.

62 Counsel for the applicants submitted that the further evidence arising from Mr McPhee's statement must raise grave doubts as to whether the learned chief magistrate gave appropriate weight to the issue of the respondent's knowledge of faults in the forklift. The learned chief magistrate did not address the issue of knowledge at all, and it was argued that because the state of the respondent's knowledge was highly relevant to culpability and the learned chief magistrate failed to comment upon it, he did not give the issue proper weight and hence the penalty was inadequate. That conclusion, with respect, does not automatically follow. It may be the level of penalty in itself suggests a lack of consideration of this factor. However, simply because it was not mentioned does not.

63 It must be remembered also that the issue is not the respondent's knowledge of the faults. It is its knowledge of the degree of urgency which should attach to them and, more particularly, its knowledge by other means of the safeness of the forklift generally.

64 The learned chief magistrate said he took into account the objects and functions of the Act. It was submitted that the penalty he imposed did not reflect a proper level of understanding of what the Act was supposed to achieve. Counsel referred to the legislation which was the predecessor of the Act, namely the Industrial Safety Health and Welfare Act 1977, s46. The penalty imposed where a death or serious injury was the consequence of the breach of that Act was $5,000. A substituted section inserted in 1991 made no connection with a death or serious injury, but increased the penalty for a breach of the Act to 500 penalty units. The Act, introduced in 1995, provided for a penalty for breach of $150,000. This escalation of penalties could only mean Parliament intended breaches of the Act to be treated seriously by the courts.

65 Counsel referred to the second reading speeches when the 1995 legislation was introduced and submitted the message was clear that unsafe workplaces would not be tolerated and that penalties had been increased to give effect to this. Emphasis was also placed on the protection of anyone on a worksite, not just employees. Counsel referred to Lactos Pty Ltd v Kent [2003] TASSC 82. She submitted the schedule of penalties attached to that decision was a useful summary. However, it begged the question - what did a company need to do before something close to the maximum penalty was imposed? It also demonstrated there appeared to be no consistency in penalties, although clearly the cases referred to were all different.

66 It is clear the learned chief magistrate was aware of this issue. He said at 3:

"That involves taking into account such matters as the culpability or blameworthiness of the defendant as well as the need to deter others from engaging in acts or omissions that may cause harm. The penalties provided for breaches of the Act are very substantial. Breaches of section 9(1) and of 9(4) can attract significant penalties. That fact speaks to the Parliament's view that breaches of the criminal law with regard workplace health and safety are capable of amounting to serious offending that should, in appropriate cases, attract deterrent but, of course, deserved penalties."

67 Counsel submitted that the Court should also have regard to community standards and expectations. She referred to Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1 and R v Jurisic [1998] NSWSC 423; (1998) 101 A Crim R 259 in relation to this issue and submitted that not only was a court entitled to have regard to these factors but also it could inform itself about them by reference to several sources. These included the second reading speeches in Hansard, legislative progression, the WST website and the information contained there, submissions to the Law Reform Commission, and media debate.

68 It was submitted that while the learned chief magistrate may have had regard to the objects of the Act and community standards and expectations, his sentence indicated clearly that he did not give those factors appropriate weight.

69 Counsel for the applicants referred to Workcover Authority of NSW (Insp Tyler) v The Roads and Traffic Authority [1999] NSWIRComm 391, a decision of the Industrial Relations Commission of New South Wales, which dealt with a charge similar to that under the Act, s9(1). Kavanagh J said at 7:

"The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability."

"It is plain from the history of this legislation that Parliament has reflected its increasing concern at the lack of safety in some aspects of industrial operation by markedly restating the duty of care and the penalties that were provided for breaches of the industrial Occupational Health and Safety Act. Again in 1991 by amendment penalties in relation to a corporation were raised from $100,000 to $250,000 and in the case of individuals, from $10,000 to $25,000. While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce."

70 It was submitted that the learned chief magistrate seemed more concerned with mitigatory factors, with no identification of where, in the scale of seriousness, he saw this case. Counsel urged that the Court should give guidance to lower courts in the matters to be considered in determining penalties in matters such as this and she outlined a number of what she submitted were such appropriate guidelines.

71 Counsel for the respondent rejected the proposition that any guidelines should be laid down, submitting that the courts should be left with the discretion to deal with matters on a case by case basis. In the present case, Matthew's death was an unintended consequence of the respondent's failures, for which it accepted responsibility by its plea. However, neither Matthew's death nor escalating penalties could be the only matters to be considered in determining penalty. There were the many mitigating factors put forward which also deserved consideration.

72 Counsel for the respondent submitted that the applicants in this case were in a similar position to the Crown in an appeal against sentence. It was rare for them to succeed and only in cases where there was a substantial miscarriage of justice should an appellate court interfere. An appellate court should not simply be of the view that a harsher penalty might have been more appropriate. There must be clear error shown. Counsel referred to R v Clarke [1996] VICSC 30; (1996) 2 VR 520 and the principles to be applied in considering a Crown appeal against sentence. He referred to other cases. However, none of these were authority for the proposition that an appeal such as the present should be considered in the same light as a Crown appeal against sentence. The situation in the present case is, in any event, somewhat different given the identity of the applicants.

73 Counsel for the respondent put to the Court that the thrust of the argument before the learned chief magistrate about the forklift was that it did not appreciate the seriousness of the faults. Detailed submissions were put to the learned chief magistrate and the prosecutor disputed nothing. Counsel referred to Professor Warner's text Sentencing in Tasmania 1st edn (1991) and the discussion of the sentencing process beginning at par2.310. He submitted that unless the prosecution disputed facts, the learned chief magistrate was obliged to sentence on the view of the facts most favourable to the respondent.

74 There can be no argument that this Court should not interfere with the sentence imposed by the learned chief magistrate unless clear error is shown and that it is not sufficient that this Court might, faced with the same circumstances, have imposed a harsher penalty. In essence, the applicants' case is that the penalty imposed was so low, having regard to the factors identified by their counsel, that in itself it demonstrated error. While the first named applicants in this case are Matthew's parents, who are understandably distressed by the avoidable death of their young son, that does not change the principles the Court must have regard to in determining this application. In particular, Matthew's death in itself is not a factor which should override all others in the sentencing process. By that statement Matthew's death is not ignored and his parents should not feel that his death is somehow being belittled in this process. It must, however, be considered in the proper light along with other relevant factors.

"The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability."

76 Counsel for the applicants has identified that the state of the respondent's knowledge was an important factor in determining its culpability. The respondent did not ever deny it knew of the faults in the forklift. What it denied was that it had any knowledge of the need for any urgent attention to be given to the repair of those faults and that the faults were themselves causative of Matthew's death. The prosecutions case was that the respondent knew of the faults and did not attend to them. It thereby created an unsafe system of work. The respondent admitted that by its plea to count 1. As to count 2, the existence of the faults was only one matter. The prosecutor did not put to the Court that Matthew's death was caused by the existence of the faults. The substance of count 2 was that the respondent had allowed Matthew to be present at its worksite and did not exercise appropriate supervision in that it allowed a situation to arise where he, an unlicensed and unqualified 16-year-old, could access and drive a forklift with certain faults without any supervision or direction.

77 There is nothing in the further evidence which derogates from the respondent's position as it was put to the learned chief magistrate about those matters.

78 However, what is of concern is not the respondent's knowledge of the existence of the faults but the respondent's knowledge of safety concerns relating to the particular forklift from sources other than its service provider. Had the learned magistrate known of and accepted the contents of the statement by Mr McPhee, he may have taken a different view of the culpability of the respondent and been less inclined to give significant weight to mitigating factors. The respondent put to the learned chief magistrate that it had no knowledge of any complaints from employees about the forklift. If Mr McPhee's statement is correct, that is patently untrue and suggests the respondent allowed the continued use of the forklift when it was unsafe to do so. That could be compounded by the site conditions which, again if Mr McPhee were accepted, consisted of more than one area of uneven ground.

79 The learned chief magistrate clearly gave significant weight to mitigating factors. However, in my view, his emphasis on them and an apparent failure to separately consider the factors underpinning each charge on the complaint in light of significant available penalties, led him into error such that a substantial miscarriage of justice has occurred. The foreseeability of risks flowing from the failures particularised in count 2 which, leaving aside any issue of faults in the forklift, led to a 16-year-old with no appropriate licence and no appropriate training, qualifications or experience being able to take control of, and drive, a forklift without supervision on a surface which, I infer, may have tested even an experienced operator, had to have been significant. This does not appear to have been given appropriate weight.

80 I have not commented further about ground 3 of the notice to review as amended. In itself, while it should, in my view, succeed because the learned chief magistrate has on the face of his reasons made an error, it would not demonstrate that a substantial miscarriage of justice has occurred.

81 The notice to review is to succeed and the sentence imposed by the learned chief magistrate is quashed.

82 Counsel for the applicants has applied for consequential orders that, whether the matter is finalised in this Court or remitted to the learned chief magistrate for re-sentence, there be directions for the taking of further evidence foreshadowed by the second named applicant's affidavit. There is no doubt, in my view, that the material referred to should be before a sentencing officer, whoever that may be, and that if relevant facts are unable to be agreed, evidence should be led and the sentencing officer required to make findings upon it. Counsel were both ambivalent at the hearing of this notice as to where the matter should be ultimately dealt with if the notice succeeded.

83 Rather than make further orders now, I propose to give counsel an opportunity to consider these reasons and to consider how they would prefer to have the matter finalised and make submissions about that. I would, of course, assume counsel would also consider whether any facts can be agreed for the purpose of re-sentence.