Consideration
79On the evidence, the offences were objectively serious. The evidence is the respondents inspired fear in the Inspectors by their conduct. Inspectors should not be physically intimidated or threatened with physical attacks in the course of their duties under the OHS Act. Her Honour's conclusion was that the actions of the respondents were not a minor obstruction and that the actions of both respondents made it impossible for Inspector Ochoa to carry out her duty. Her Honour also found that the conduct of both respondents was a "disgraceful performance" by them towards officials attempting to do their job. Nevertheless, regardless of these findings, her Honour imposed low penalties, despite finding that the intimidation offence fell within the middle of the range. The penalties were arrived at by applying a reduction of "slightly less" than 25 per cent for the pleas, although her Honour did not specify with precision the reduction that she allowed for the utilitarian savings flowing from what she must have considered to be relatively early guilty pleas.
80It is in this context that the question of whether the penalties imposed were manifestly inadequate, given the applicable sentencing principles, the evidence and the maximum penalty imposed by the OHS Act for a first offence, arises for consideration.
81It is unarguable that penalties of $1000 and $300, even for a first offence of this kind, are extremely low, given that the maximum penalty for each offence is $16,500.
82For reasons that we will explain, in our view these are cases where the sentences imposed at first instance were manifestly inadequate and warrant correction on appeal.
83The charges to which pleas were entered included that the respondents did: "obstruct, hinder or impede an authorised official, namely, Inspector Mara Karina Ochoa, in the exercise of the official's functions under the Occupational Health and Safety Act 2000", and did: "intimidate an authorised official".
84Attention first needs to be given to the two charges against each of the respondents and the conduct of each of the respondents in relation to those charges. The obstruction, hinder and impede charges under s 136(1)(a) were not in identical terms and the intimidation charges under s 136(1)(b) were significantly different. The intimidation charge in relation to Mr Chalhoub was particularised as the defendant threatening Inspector Buckett by using the words "beat you up", "sort you out", "fix" the Inspector, "going to snap" and "fuck" or "fucking." Mr Chalhoub turned his face to the Inspector, took a step towards the Inspector, fixed the Inspector with a stare and raised his voice. Thereupon, the Inspector decided to leave because he feared Mr Chalhoub was becoming violent.
85In Mr Khalil's case, the intimidation charge involved Inspector Ochoa and was particularised as the defendant turning to the Inspector and grabbing the Inspector's upper right arm, telling the Inspector to "fuck off", that the defendant did not care what the Inspector said, making loud remarks, swearing and becoming more aggressive in his remarks, being one of three men who were speaking over the Inspector.
86The hinder and obstruct charge against Mr Chalhoub was particularised as: cutting off the Inspector in an angry and abusive manner and swearing; speaking over the Inspector and calling the Inspector names such as "fat bitch", "fucking bitch", "pig" and "donkey" and screaming at the Inspector; when trying to explain safety issues, Mr Chalhoub and two other men "cut her off.
87Mr Khalil's hinder and obstruct charge was particularised as: during the Inspector's attempted explanation of safety issues she was cut off by three men, one being Mr Khalil; the Inspector could not finish speaking to Mr Chalhoub about the Improvement Notice because Mr Khalil told her that he "didn't fucking care" what the Inspector said and waved the Notice in front of her face while he "paced around."
88The Agreed Facts showed that Mr Chalhoub started the abuse, there were heated exchanges and, some time afterwards, Mr Khalil and another man became involved and "spoke" over the Inspector. Mr Khalil then waved the Improvement Notice in the Inspector's face and swore. He walked away and then turned and grabbed the Inspector's arm and when told to take his hands off the Inspector, he did so. It was then alleged that all three were verbally abusive to the Inspector. Mr Chalhoub made some remark about the "fucking bitch" that had got him into trouble and then Mr Khalil again waved the Improvement Notice and swore. Mr Chalhoub then became angry over the Improvement Notice and the issue of not having a Certificate of Currency for his Workers Compensation. Mr Chalhoub was then given a fine but refused to accept it. During this time, all three men made loud remarks, were swearing, becoming more aggressive and talking over the Inspector.
89When the Inspectors were in the carpark preparing to leave, the three men were present and stood on the pavement as the Inspectors drove out. The Inspectors said they feared for their safety with the men laughing and pointing at them. The carpark incident was not particularised in any of the offences, but appeared in the Agreed Facts. It cannot add anything to the charges.
90Notably, the particulars and the Agreed Facts indicate three people shouting and being abusive at the same time and it is not entirely clear who said what during these events. Significantly, the Agreed Facts only have Mr Chalhoub using the s 136(1)(a) language - Mr Khalil is not recorded as saying fat bitch, cow, pig or donkey.
91The intimidation charges as particularised and supported by the Agreed Facts, demonstrate a difference between the behaviour of Mr Chalhoub and Mr Khalil. Mr Chalhoub appears, on the Agreed Facts, to have instigated the abusive behaviour and that appears to have carried on for a time before the other two men became involved. The nature of Mr Chalhoub's intimidation charge, however, is quite serious with direct threats of beating up, fixing and sorting out the Inspector as well as the swearing that accompanied those threats.
92On the other hand, Mr Khalil grabbed the Inspector's right arm and removed it when told to do so. His conduct then involved swearing and probably swearing aggressively, but he is not alleged to have threatened to beat up, sort out or fix the Inspector, nor is his alleged use of abusive language as offensive or long running as is that of Mr Chalhoub. Further, telling the Inspector that he did not care what she said was common to both charges. Whilst grabbing the Inspector's arm may be regarded as a serious example of intimidation (although he let go immediately he was asked to do so), when Mr Khalil's conduct is assessed overall we consider it was less serious than the conduct of Mr Chalhoub.
93The Agreed Facts shows that the aggressive and abusive behaviour was commenced by Mr Chalhoub and later came to involve the two other men, including Mr Khalil. The common element in both charges of intimidation is the continued aggressive swearing. The aggressive swearing, therefore, represents a course of behaviour that overlaps both charges such that the principle of totality has a role to play in settling upon a final penalty. It is also to be taken into account that both respondents were first offenders and entitled to the leniency accorded to that status.
94In dealing with the offences, her Honour Magistrate Barkell concluded that the intimidation offence was in the mid-range, while the hinder offence was a "lesser offence". When her Honour said this, we do not believe that she was stating that the statutory offence under s 136(1)(a) of hindering was a lesser offence than the statutory provision of s 1361(b) dealing with intimidation, but rather was assessing the relative seriousness of the hinder offence as committed by the respondents and thereby indicating that a lower penalty was warranted. Her Honour was undertaking this sentencing task in a busy Court and was dealing with the matters ex tempore and, understandably, her language may not have been as precise as in a written decision.
95Her Honour made no reference to whether she took into account deterrence. In our view, general deterrence was an important factor in respect of penalty. The Inspectors were from the WorkCover Authority of New South Wales, the principal statutory regulator of the OHS Act. A strong message should have been sent to industry in general that offences of intimidation and obstruction of authorised officials would be met with strong punishment and judicial condemnation. The legislative scheme should not be frustrated in the manner engaged in by the respondents.
96In respect of specific deterrence, we accept that the second respondent is no longer working in the hairdressing industry and nor is the first respondent. However, there was no evidence that either respondent would never work again or operate a business again. The penalty should include an appropriate element for specific deterrence: see Capral Aluminium at [74].
97Her Honour also fell into error in not first determining or assessing an appropriate sentence for each offence before considering questions of totality. The element of obstructing, hindering or impeding in the s 136(1)(a) offences are different from and not common with the elements of intimidating in the s 136(1)(b) offences, both in terms of the essential legal and factual elements. Whilst the elements of the offences are different, we noted earlier that a common feature of each of the offences committed by the two defendants was aggressive swearing and this has to be taken into account in applying the totality principle. Nevertheless, her Honour failed to comply with the obligations to review the aggregate penalty and consider whether it was just and appropriate, as a reflection of the overall criminality.
98In Inspector Fraser v Karabelas [2011] NSWIRComm 56; (2011) 207 IR 228, the Full Bench observed at [27]:
It is clear from a reading of her Honour's judgment that she gave consideration to the principle of totality but apart from stating that she took that principle into account, precisely how that principle was applied was not disclosed. Having regard to the breadth of considerations that may legitimately arise in the application of the principle of totality, her Honour's failure to disclose what aspects of the matter she took into account reveals an error that itself may warrant an appeal being upheld. It must be accepted, however, that despite this defect, if the sentence imposed fell within an acceptable range after the totality principle was applied, then it may be appropriate to dismiss the appeal.
99If her Honour believed that the totality principle required an adjustment to the fines which otherwise may have been appropriate, the amount of each fine had to be altered: see Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan [2001] NSWIRComm 313; (2001) 105 IR 181 (at [23] - [29], [51]); Karabelas (at [28] - [34]) and Environment Protection Authority v Barnes [2006] NSWCCA 246; (at [44] - [50]).
100Her Honour also referred to the subjective matters relevant to the assessment of penalty, which we would observe were proven only to a limited extent on sentence or, in respect of some matters, were raised by the respondents' legal representative in submissions without producing evidence at all. The Court has emphasised on a number of occasions the nature of probative evidence that usually would be required to support an application under s 6 of the Fines Act 1996 (see, for example, See for example, Workcover Authority of NSW (Inspector Mansell) v Jian Chen and Obing Pty Ltd t/as Old But New [2004] NSWIRComm 247; (2004) 137 IR 33; McColl v John Watson Building Services Pty Ltd [2004] NSWIRComm 353; (2004) 137 IR 310.
101However, we note what was said in Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153 at [17] - [22]:
[17] Section 6 of the Fines Act, therefore, operates on a broad basis: the Court is required to consider "such information regarding the means of the accused as is reasonably and practicably available to the court for consideration" and "such other matters as, in the opinion of the court, are relevant to the fixing of that amount." Those words do not suggest any narrow or confined consideration but they leave the court to assess the appropriateness and adequacy of the information according to the circumstances concerning each particular case. Individual directors and family companies may not be as well placed to provide extensive material or specialist opinions as other better resourced individuals or companies.
[18] The three breaches committed by the respondent, Mr Karabelas, are serious offences occurring in the context of a prior conviction for a similar breach. The offences have been found to be aggravated in each case and represent a continuing disregard for safety at a large building site. The penalty to be imposed must reflect that situation except for an assessment of the extent to which that penalty should be reduced because of the financial circumstances of the respondent.
[19] The evidence and submissions for the appellant/prosecutor highlight the inadequacy of the financial information provided by Mr Karabelas. The solicitor for the appellant/prosecutor drew to the attention of Mr Karabelas' legal representatives the inadequacy of the material provided in his affidavit and sought additional information and source documents. None have been forthcoming. No party has asked for an oral hearing and no objection has been raised to the Court receiving Mr Karabales' affidavit nor has he been required for cross-examination.
[20] While the Court accepts much of the criticism levelled by the appellant/prosecutor against the adequacy of the material provided, the absence of submissions and a more detailed response to the issues raised by the appellant/prosecutor may also be an indication of the straitened financial circumstances of Mr Karabelas. The present state of the evidence leaves the Court in a difficult position. Mr Karabelas has sworn to being in dire financial circumstances but the full extent of his financial circumstances is unclear. Bankruptcy notices were served in June 2010 and February 2011 but Mr Karabelas' affidavit does not state that bankruptcy proceedings have, in fact, been commenced.
[21] A further issue arises for consideration. The terms of Mr Karabelas' affidavit did not raise the question of costs but logically, any inability to fully pay fines must also apply to costs. As no submissions were filed for the respondent, this aspect has not been developed.
...
[22] Applying the spirit of s 6 of the Fines Act, the Court can accept that Mr Karabelas is facing financial difficulties but the extent of those difficulties has not been established. Importantly, Mr Karabelas has accepted a limited ability to pay increased fines rather than asserting a total inability to pay any fine. His position, so described, may be met by an application to the Registrar for time to pay and/or to pay by instalments. The Court will, therefore, proceed on the basis that there will be some modest reduction in the penalties to be imposed.
A similar approach to that adopted by the Full Bench in Karabelas (No 2) may be adopted in the present case. It is clear that the Magistrate was prepared to accept the submissions from the Bar Table concerning the financial position of both respondents. She referred to "the straitened circumstances the defendants say they are in." In relation to Mr Khalil her Honour said:
Certainly, that [the physical but some psychological issues] has some affect on his ability to conduct his life and certainly to pay a fine, as does the fact that he is on Centrelink benefits. But, I also accept that there is no evidence of either parties assets and no evidence of the funds that they may have available. Although, there is evidence indirectly that Mr Khalil is unlikely to have cash in his own name, because it's in my understanding that you don't get Centrelink benefits if you do have cash.
And further:
I also accept that Mr Khalil is now not working since the end of his business and I accept that Mr Khalil has significant medical and psychological issues following an attack where he was stabbed and suffered a serious wound to his abdomen area. And, I accept that that has resulted in not only physical but some psychological issues.
Certainly, that has some affect on his ability to conduct his life and certainly to pay a fine ...
102In relation to Mr Chalhoub it was said he was under financial stress and owed money from the failed business venture. A submission was made on his behalf that:
Furthermore, he's in a position where he has an aunty that's quite ill, and I can hand up an email that was sent to my instructing solicitor where he outlines his position. He is, at the moment, in Queensland residing in Robina. That's where his aunty resides. He's unemployed and he's going to become a carer for his aunty and I'm instructed that it means, well, being a carer, I think, he's going to be in the position where he'll probably be in receipt of Centrelink benefits and things of that nature. So, his income and ability to pay under the circumstances are very limited or very minimal.
103As her Honour acknowledged, counsel for the defendants did not tender any financial documents in support of the submissions. A relevant consideration, however, is that the guilty pleas were entered on the hearing day when it became clear that particularly Mr Khalil wanted to avoid the stress of a hearing and was prepared to enter a guilty plea. If the matter was to be disposed of quickly, then there was little opportunity, other than to seek an adjournment and incur more costs, to obtain the type of evidence that the Court would normally expect in relation to any application made under s 6 of the Fines Act. It is difficult in those circumstances to refuse to allow any concession at all regarding incapacity to pay.
104Moreover, when the appeal was dealt with by the Court, the respondents were unrepresented. In that combination of circumstances, there is a capacity in the Court to acknowledge, albeit with some reluctance, what the Magistrate accepted, namely, that there were matters that affected the respondents' ability to meet a fine, with Mr Khalil the most affected person. The considerations generally raised in relation to Mr Khalil, both as to the nature of his offence and his means, suggest that on the application of the parity principle, he should face a lower fine than Mr Chalhoub.
105Notwithstanding the above, it is most important to maintain as a general principle that if defendants wish to rely on s 6 of the Fines Act that reliance will need to be underpinned by probative evidence. In the present case we are not prepared to discount to any substantial degree the amount of fine to be imposed on either respondent on the basis of incapacity to pay. However, in light of the circumstances as we have described them, including the approach the Magistrate took to the question of capacity to pay fines, we will "proceed on the basis that there will be some modest reduction in the penalties to be imposed": Karabelas (No 2) at [22].
106A further error concerns the discount for pleading guilty. Her Honour found the respondents were entitled to "slightly less" than the full 25 per cent discount, as guilty pleas were not entered at the earliest possible opportunity. There was no indication of an intention to enter guilty pleas until the third occasion that the matters were listed before the Chief Industrial Magistrate's Court. However, the guilty pleas were not formally entered until the matters were subsequently listed for sentence on 18 December 2012. Even then there were to be disputed facts, necessitating the prosecutor having the inspectors attend the Court to give evidence regarding the disputed facts. However, immediately prior to the proceedings commencing on 18 December 2012 counsel for the respondents indicated agreement to all of the prosecutor's facts.
107In these circumstances, it was an error to grant a discount of "slightly less" that 25 per cent for the utilitarian value of the pleas. A lower discount was warranted.
108We are satisfied that the penalties imposed do not reflect the gravity of these offences when viewed objectively, so that it must be concluded they were manifestly inadequate. It follows from this conclusion that there has been a failure to properly exercise the sentencing discretion at first instance: see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; (2000) 175 ALR 315; (2000) 74 ALJR 1538 (at 340).
109It must, therefore, follow that the appeals should be upheld and the respondents re-sentenced in accordance with the principles determined in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 (at 474) and Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) [2000] NSWIRComm 71; (2000) 49 NSWLR 610 (at 646); (2000) 99 IR 29 (at 53). These cases require a consideration of the objective seriousness of the offences, ensuring that there is an allowance for subjective factors that does not produce a sentence which fails to take into account the objective seriousness of the offence.
110This is, in effect, a Crown appeal. It was relevantly held in R v JW [2010] NSWCCA 49; (2010) 199 A Crim R 486; that:
(a) The words "double jeopardy" in s 68A of the Crimes (Appeal and Review) Act 2001 refer to the distress and anxiety which a respondent suffers from being exposed to the risk of a more severe sentence;
(b) Section 68A prevents the Court of Criminal Appeal on a Crown Appeal from reducing the sentence which it otherwise believes to be appropriate on the basis of such distress and anxiety.
111 Further, we note also the observations of the Full Bench in Karabelas (No 1) at [38] as follows:
The Court is satisfied that this approach is appropriate and proper in the case of the three offences committed by Mr Karabelas and that, accepting the primary penalties proposed by her Honour, there was, nevertheless, a manifest inadequacy resulting from the selection of $18,500 as representing the total criminality of these offences. In reaching this conclusion, the Court is aware that the principle of double jeopardy that had previously applied to Crown appeals has been modified by s 68A of the Crimes (Appeal and Review) Act 2001 and is also aware of the consideration given to that provision by the Court of Criminal Appeal in R v JW (2010) 199 A Crim R 486; [2010] NSWCCA 49;. The legislation and the approach of the Court of Criminal Appeal in R v JW has guided the approach of the Court in this matter in relation to the principle of double jeopardy.
112We are satisfied that higher penalties are required in these matters. Inspector Ochoa and Inspector Buckett were obstructed and intimidated in an offensive and unacceptable manner as they sought to carry out their duties of policing the occupational health and safety laws.
113We are of the view that there should be a discount of 15 per cent on penalty flowing from the utilitarian savings achieved by the entry of the pleas. The other various subjective matters referred to by her Honour should result in a further discount of the penalty.
114As we earlier mentioned, the Court is required to apply the principle of totality in determining the appropriate penalty. The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate": Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63 citing DA Thomas, Principles of Sentencing (2nd ed, 1979) 56-57; cited with approval in Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 at [18]: see Inspector Christensen v Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Limited) [2012] NSWIRComm 31 at [63]
115In the present appeal it may be accepted the totality principle has a role to play in considering whether any aggregate sentence that is proposed is "just and appropriate" noting, as we have, the element of obstructing, hindering or impeding in the s 136(a) offences is different from and not common with the element of intimidating in the s 136(b) offences, both in terms of the essential legal and factual elements, although as we earlier stated, there was conduct of the respondents that was common to both charges.
116In determining the appropriate penalty we have also had regard to the costs order made at first instance, which required each respondent to pay the prosecution's costs of $4,101.25.
117In relation to penalty, we have concluded as follows:
(a) In respect of Mr Chalhoub, the intimidation charge under s 136(1)(b) should attract a penalty of $3,000 and for the hinder and obstruct charge under s 136(1)(a) the penalty should be $1,500. Having regard to the totality principle a penalty of $3,500 appropriately reflects the total criminality involved. The penalty of $3,500 should be split as $2,600 in respect of the intimidation charge and $900 in respect of the hinder and obstruct charge.
(b) In respect of Mr Khalil the intimidation charge under s 136(1)(b) should attract a penalty of $2,100 and for the hinder and obstruct charge the penalty should be $1,400. Having regard to the totality principle a penalty of $2,350 appropriately reflects the total criminality involved. The penalty of $2,350 should be split as $1,600 in respect of the intimidation charge and $750 in respect of the hinder and obstruct charge.