(b) $7,000 in relation to the s 94 offence.
6 It is apparent that, without the application of a discount of 35 per cent, the respondent's penalties would be in the order of $7,700 for each offence. The prosecution has appealed in relation to the penalties imposed upon the respondent only, but the penalties imposed upon Ms Pan are relevant to submissions concerning parity.
7 We agree with the appellant that this case raises issues of such importance to the proper exercise of the sentencing discretion in occupational health and safety prosecutions that leave to appeal should be granted. The Full Bench has observed in two recent appeals from Industrial Magistrates upon the need to ensure that penalties reflect the important social purposes of the Occupational Health and Safety Act 2000: see, for example, Beacham v Interface Manufacturing Pty Ltd and Another [2005] NSWIRComm 123 at [27] and Glass v Flexible Packaging (Australia) Pty Limited [2005] NSWIRComm 93 at [2]. Lip service to these authorities is not enough: they need to be applied in practice at the time of sentencing.
8 No written submissions were filed by the respondent in accordance with the directions made on 18 July. However, at the hearing of the matter today, Ms Pan, a director of the respondent, appeared on its behalf. She did not wish to have the matter adjourned and did not offer any submissions in reply except to clarify a factual matter, to indicate her regrets about the injury to the patron, and to advise that the business was closed (it was intended the respondent would be deregistered). Ms Pan also indicated she had decided against further engaging in business and had returned to nursing.
9 We consider that the Chief Industrial Magistrate erred in exercising his discretion in the manner described in House v The King (1936) 55 CLR 499 at 505. The sentences were manifestly inadequate and were also based on identifiable material errors. It is on these bases that we allow the appeal. The sentences did not adequately reflect the objective seriousness of the offences, particularly by reference to the available scale of penalties; they misapplied the sentencing principles relating to parity and totality.
10 The maximum penalty for the s 8(2) offence is $550,000 although the jurisdictional limit of the fine available to be imposed by the Magistrate was $55,000. It is well established that a sentencing court must assess the relative seriousness of an offence in relation to a worst case for which the maximum penalty is provided and then impose a penalty which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum: per Kirby P (as he then was) in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698-699. See also Nesmat Pty Ltd v WorkCover Authority (NSW) (1998) 87 IR 312 at 321 and WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163 at 186.
11 The objective seriousness of the s 8(2) offence is apparent from his Honour's unequivocal findings of the existence of "an obvious and foreseeable risk" of "serious injury" that was "capable of being eliminated by the taking of simple, straightforward and inexpensive steps": see Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [82]; Inspector Stephen Campbell v James Gordon Hitchcock [2005] NSWIRComm 34 at [25]; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at [476] and Department of Mineral Resources (NSW) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27. His honour also stressed the importance of general deterrence in relation to the offence.
12 These findings, which together emphasise the gravity of the offence, cannot be reconciled with a fine (before making any discount for subjective factors) in the order of $7,700 in light of the maximum penalty of $550,000. Nor is a fine in the order of $7,700 (absent subjective factors) commensurate with the substantial criminality of the s 94 offence (the maximum penalty for which is $110,000, subject to the same jurisdictional limit earlier referred to), which must include general deterrence as a most significant factor. It is critical that the public appreciates the significance of prompt and full compliance with prohibition orders. This offence, which itself stems from the commission of an earlier offence and exhibits blatant disregard for the important social purposes of the Occupational Health and Safety Act, must be viewed in a most serious light.
13 There can be no doubt that the Chief Industrial Magistrate erred in his application of the principles of parity and totality. The respondent and Ms Pan should have been treated alike, there being no relevant difference in their levels of culpability, and yet, by reference to the different scales of penalties, the respondent was fined in the order of one-tenth the amount Ms Pan was fined. There is no justification for his Honour's finding that Ms Pan's culpability was of a higher order to the culpability of the respondent simply on the basis that she was an active director and 50 per cent shareholder.
14 The principle of totality is relevant when a court is sentencing a defendant for more than one offence which contain common elements. In relation to totality, his Honour made the following observation which clearly demonstrates an error of law:
In relation to both s 8(2) offences, I find that in each case the nature and quality of the offence indicates that penalties in the medium range are warranted subject to appropriate consideration for the subjective mitigating factors and after taking into account relevant sentencing principles including the principle of parity and the principle of totality.