Inspector Childs v Stimson [2005] NSWIRComm 336 | Case summary

(5) failing to ensure that the Defendant held a certificate of competency in the use of the excavator. (i) On the accident date, Raymond Leslie Clissold was fatally injured. 4 I made findings in respect of each of the five particulars at [73] - [80], [94], [95], [112] and [113] of my earlier judgment. Additional facts were also determined by me in the course of my judgment, which I do not propose to repeat here, except to the extent that I consider it necessary to do so for the purposes of sentence. 5 At [82] of my earlier judgment, in respect of the risk, I said: The risk was the failure to ensure people entering the trench, or coming within close proximity of the trench and suffering injury from a fall of earth into the trench, the failure to avert the risk by not providing shoring, earth retention equipment, the placement of spoil and in not carrying out any adequate risk assessment in relation to the fall or dislodgment of a section of the wall. 6 This judgment deals with the question of penalty. 7 Mr Stimson, the defendant, was called to give evidence, stating that he was aged 66 and had been married for 47 years. He has three adult children, all of whom are employed. Mr Stimson is self-employed. He left school in First Form and subsequently completed a motor mechanic apprenticeship with International Harvester. During his working life he has worked as a motor mechanic and had his own heavy haulage business. 8 Mr Stimson suffered a heart attack on the day of the accident and spent a week in hospital. His wife has suffered from multiple sclerosis since 1972 and has been confined to a wheelchair for the past 10 years. Mr Stimson provides "hands-on assistance" on a daily basis to his wife. As a result of Mr Stimson's health, he is now accompanied by an offsider when he is working. 9 Mr Stimson expressed his sorrow as a result of the accident. He went to see Mrs Clissold and took her flowers. 10 Mr Wendler of counsel, who appeared for the defendant, tendered a medical certificate from Dr Keith Blair, which addressed Mr Stimson's health. Submissions of the Prosecutor 11 Mr Skinner of counsel, who appeared for the prosecutor, provided written submissions to the Court. Counsel commenced his submissions by referring to Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 472 - 476; Fletcher Constructions Australia Pty Ltd v WorkCover Authority (NSW) (Inspector Fisher) (1999) 91 IR 66 at 77 - 81; Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 at 635 - 650, submitting that the primary factor to be considered when determining an appropriate sentence under the Act is the objective seriousness of the offence charged. 12 Mr Skinner further submitted that the correct approach to sentencing generally in the criminal justice system is that set out by the High Court in Markarian v R (2005) 215 ALR 213 and that the recent judgment of Boland J in Inspector Yeung v Howie Herring & Forsyth Pty Ltd & Anor [2005] NSWIRComm 266 at [21] - [40] should be followed. Counsel observed that the injury occurring as a result of the failures is relevant as a measure of the gravity of the breach and the culpability of the defendant: Lawrenson at 476, following Fisher CJ in Inspector Hannah v Wonar Pty Ltd (unreported CT 90/1214, 30 June 1992) and Hill J in Tyler v Sydney Electricity (1993) 47 IR 1. 13 Counsel submitted there should be an element of general deterrence, particularly because of the defendant's failure to observe the specific provision found in cl 240 of the Occupational Health & Safety Regulation 2001 which deals with the protection and stability of excavation work and risk controlled measures. Mr Skinner acknowledged that a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. 14 Counsel accepted that in relation to subjective features, contrition, repentance and remorse are mitigating factors which may lead to a reduction in the sentence otherwise to be imposed and that the serious state of the defendant's health could also be taken into account in mitigation. Submissions of the Defendant 15 Mr Wendler of counsel, who appeared for the defendant, submitted that this is a difficult and unusual case and that the defendant had no option but to defend it. Counsel contended that the accident occurred because of the wilful disobedience of Mr Clissold. Counsel submitted that the facts of this case were sufficient to bring it within s 9 and s 10 of the Crimes (Sentencing Procedure) Act 1999. Counsel submitted that the defendant had no prior convictions and that there were extenuating circumstances. 16 Mr Wendler observed that the defendant had expressed deep contrition for what had occurred and that he had been so shocked that he suffered a massive heart attack. Mr Stimson had made contact with Mr Clissold's wife who did not see him as being responsible for the accident. Mr Stimson had co-operated fully with the WorkCover Authority and had an excellent work history. It was submitted that there has been no delinquency on his part in respect of occupational health and safety matters. Although Mr Stimson has a medical condition, he still works. It was further submitted that Mr Stimson is unlikely to ever appear in court again. Consideration 17 It is well settled that in determining sentence for offences under the Act, it is necessary to consider the objective seriousness of the offence before the Court: Lawrenson Diecasting. 18 It will be a serious offence when there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and foreseeable: Inspector Hannah v Wonar Pty Limited. 19 The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the breach and the culpability of the defendant: Tyler v Sydney Electricity. 20 A further consideration is the subjective features of the offence, that is, the facts concerning the offender. This will assist the Court in determining whether any penalty justified by the objective circumstances of the offence should be modified. The penalty to be imposed must generally be such as to compel attention to occupational health and safety generally so as to ensure that workers whilst at work will not be exposed to risks to their health and safety: Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388, Capral Aluminium. 21 In this matter, the defendant failed to avert the risk of the trench collapsing when Mr Clissold walked into it. The risk to safety arose through the defendant's failure to carry out any adequate risk assessment and to comply with the WorkCover Authority of New South Wales Code of Practice ("the Code") in respect of excavation work and the 1997 Guide for Front End Loader and Excavation Drivers ("the Guide"). The Guide provides that spoil must be placed at least one metre away from the excavation to prevent cave ins and falls with the toe of the pile no closer than 500 mm. The defendant agreed that the spoil was not placed in the way the Guide provided. I have earlier found that the placement of the spoil created a risk to health and safety. 22 The obligations under the Act are not diminished because of the error, negligence or foolish disregard for safety, although these matters should, in this matter, reflect on the degree of culpability of the defendant for the purposes of sentencing. 23 In WorkCover Authority of New South Wales (Inspector Childs) v Stimson (No 2) [2005] NSWIRComm 201, a judgment which dealt with s 28 defences raised by the defendant, I stated: [19] Mr Stimson's evidence was that after he had been working on the trench for approximately half an hour, Mr Clissold walked into the trench. Mr Stimson stated that he told Mr Clissold to "get out of it, to stay out of it". Mrs Clissold's evidence was that Mr Clissold returned to the house during the afternoon before again returning to the site where he again entered the trench and was told by Mr Stimson to "go home and stay home and when I finish I will come and have a cup of coffee on the way home". It was shortly after this exchange that Mr Clissold again entered the trench. Mr Stimson's evidence after Mr Clissold had entered the trench on a second occasion, was "what could I do?". He went on to observe "if I had put an electric fence around the place he still would have got in if he had wanted to." [20] Mr Stimson was asserting that it was simply beyond his control to prevent Mr Clissold from walking into the trench. [21] I am not satisfied, on the evidence, that Mr Stimson could not have prevented Mr Clissold from entering the trench. As I have already found, the duty owed under the Act is to provide a risk free environment to all persons. In my view, the duty owed to employees is equally applicable to the duty self employed persons owe to others including the owner of the site, where an undertaking is being conducted. 24 In Capral Aluminium at [74], the Full Bench observed that both general and specific deterrence are matters "which should normally be given weight of some substance in the sentencing process". In relation to general deterrence, the Full Bench added at [75] that "[t]he need for general deterrence in relation to serious offences under the Act is undeniable." 25 This offence occurred in what may be broadly termed the construction industry which involves the use of backhoes. Clause 240 of the Occupational Health & Safety Regulation 2001 and the Code of Practice referred to earlier in this judgment require employers and contractors to observe specific provisions when undertaking excavation work. Such work is particularly dangerous and it is therefore appropriate that I include in the penalty an element for general deterrence. 26 In respect of specific deterrence, the Full Bench in Capral Aluminium stated at [77]: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, CCA, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, CCA, 8 December 1995)… 27 In this matter, the defendant no longer undertakes work involving an excavator. He did not proceed with the intended purchase of the excavator after the accident occurred. In my view, this is one of those rare cases where the Court may disregard the element of specific deterrence as the risk of re-offending is "extremely low, or non-existent". 28 There are a number of relevant subjective considerations. Firstly, the defendant has no prior convictions and the defendant has expressed contrition and remorse. It is also appropriate to take into account the defendant's health, age and the health of his wife. I have also taken into account the following mitigating factors prescribed by s 21A(3) of the Crimes (Sentencing Procedure) Act: (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation… 29 Turning to the approach that should be adopted in sentencing, I agree with the observations of Boland J in Inspector Yeung v Howie Herring & Forsyth Pty Ltd. In light of Markarian it is necessary to take into account all relevant considerations in sentencing and "make a value judgment as to what is the appropriate sentence given all the factors of the case" subject to the approach required by Lawrenson Diecasting. 30 Counsel for the defendant, submitted that the circumstances of the offence was such that I should properly apply the provisions of s 9 and s 10 of the Crimes (Sentencing Procedure) Act. 31 Section 9 and s 10 of that Act relevantly provide: 9 Good behaviour bonds (1) Instead of imposing a sentence of imprisonment on an offender, a court may make an order directing the offender to enter into a good behaviour bond for a specified term. (2) The term of a good behaviour bond must not exceed 5 years. (3) This section is subject to the provisions of Part 8. 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. … (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 32 The application of the provisions of s 10 to an offence arising under the Act and its predecessor has been considered in prior decisions of this Court and more particularly in the decision of WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700. The Full Bench, Wright J President, Walton J Vice-President, Hungerford J referred to the comments of Wright J in WorkCover Authority (NSW) v Ecolab Pty Ltd (1999) 90 IR 413 at 430 where his Honour noted the limited utility of comparing cases where provisions of the then 556A (the statutory predecessor to s 10 of the Crimes (Sentencing Procedure) Act) had been applied. His Honour stated: "… In my view, those matters turn purely upon their own facts and by virtue of the nature of the power that is being exercised when consideration is being given to the application of the ameliorative effects of s 556A, each matter has to be considered in relation to its own particular circumstances and an analysis of earlier decisions and their particular approach to the discretion arising under the section are of limited value. (In any event, as observed by the prosecutor's counsel, a number of those matters involved significant contributory negligence by the injured worker. That is not the case here.)…"

33 In Profab the Full Bench said at [21]: [21] The judgment of the Full Court ( Fisher CJ, Bauer and Cullen JJ) of the former Industrial Court in WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at 101, is clear authority for the propositions that the discretion under s 556A would rarely be available in significant offences against the legislation and any application for the benefit of the provision should be rigorously tested. 34 The need for a rigorous approach and the proper application of the provisions of s 10 to the offences under the Act is reinforced in Profab as follows: [24] Accordingly, when an application is made to a judge of this Court in sentencing proceedings under the Occupational Health and Safety Act for the exercise of the discretion under s 556A, that will invariably occur in relation to a serious breach of the Act. The purpose of the statute, which is well known and often referred to in judgments of this Court, may be referred to as one for the benefit of the public generally and particularly employees at work to prevent, deter and punish breaches of health and safety requirements. Although the discretion under s 556A is wide, it is not unfettered; rather, it is limited initially to a series of defined circumstances and then extended to "any other matter which the court considers it proper to consider". [25] The extent of reasons for decision that a judge is required to give varies. For example as observed in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 478: "The extent of the reasons required will vary in light of the nature of the proceedings and the nature of the matter being decided (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271 - 273 per Mahoney JA and (at 280 - 281) per McHugh JA and Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and (at 182 - 183) per Handley JA). In sentencing, the purpose of reasons is to make clear why the particular offence warrants the sentence imposed and it is not necessary to give detailed reasons as to all of the factors and circumstances which led to a particular conclusion: see J Robins & Sons Pty Ltd v WorkCover Authority of New South Wales (1998) 83 IR 338 at 340." [26] Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s 556A (cf s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission. The obligation is increased rather then diminished in a situation, such as the present, where the exercise of the discretion is not sought by the defendant but raised by the Court. 35 The application of s 10 was recently considered at length by a Full Bench in Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259, the Full Bench stated at [57] - [58]: [57] We acknowledge that the demands of the Local Court often preclude lengthy deliberation prior to the making of a decision. Nevertheless, it is critical when determining a sentence to clearly distinguish those factors which are special considerations in sentencing, and in particular those which warrant the application of s10 of the Crimes (Sentencing Procedure) Act . In our view, the utterance of the above words alone is insufficient, in our view, to justify the making of an order under s10 of the Crimes (Sentencing Procedure) Act . Given the existence of a clear line of authority establishing that such orders are available only in limited circumstances, any decision to make such an order must necessarily include an examination of the relevant circumstances and an explanation as to why those circumstances fall within the limited class of circumstances contemplated by the established authorities. The Full Bench in Profab Industries expressly stated (at [26]) that "...when a defendant seeks [the exercise of the discretion under s10] cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission." [58] We agree with the decision of Wright J, President in WorkCover Authority (NSW) v Ecolab Pty Limited at 430 that there is little value in considering the particular approach taken in other decisions or judgments to the exercise of discretion under s10 of the Crimes (Sentencing Procedure) Act, as each matter turns on its own facts. However, we note that in Department of Mineral Resources v Berrima Coal , the Court gave explicit details of the "extraordinary and highly exceptional circumstances" which existed in that case which warranted the exercise of the Court's discretion under s10 of the Crimes (Sentencing Procedure) Act . Whilst we would not wish to suggest that there are particular or defined criteria which will inevitably lead to the exercise of that discretion (as it is a wide discretion), it is pertinent to highlight the decision in Department of Mineral Resources v Berrima Coal as being one in which extensive reasoning was given to support the proper exercise of discretion under s10 of the Crimes (Sentencing Procedure) Act , in stark contrast to the matter presently before us where there is a total absence of such reasoning. 36 The Full Bench made it abundantly clear that it will only be in rare situations in which s 10 will be available to a defendant under the Act and that if it is to be applied "cogent reasons must … be provided by the defendant for such exercise and also by the judge acceding to that submission." 37 The Court has recognised that there are sometimes circumstances in strict liability offences where there is, practicably, little that could have been done by the defendant to address the risk. In my view, this is not such a case. The offence cannot be regarded as trivial and it was not suggested by the defendant that it was, and although there are some extenuating circumstances identified, in my view, these do not lead to the discretion being exercised in favour of the defendant. The consideration of the defendant's impeccable record over nearly 50 years of working life is more appropriately dealt with as a relevant consideration in assessing the subjective features relating to this offence. The contributory negligence of Mr Clissold also is more appropriately considered in respect of penalty. In the circumstances, the application under s 10 of the Crimes (Sentencing Procedure) Act is declined. 38 In relation to the offence and having due regard to the subjective and other mitigating factors earlier referred to, and that the maximum fine for the offence is $55,000, I consider that a fine of $5,000 should be imposed. 39 The penalty to be imposed would have been significantly greater had it not been for the subjective factors I have mentioned, particularly the defendant's demonstrated contrition, good record of industrial citizenship, outstanding character and the defendant's health. The prosecutor should have a moiety of the fine. 40 The defendant, in light of its application pursuant to s 10 submitted that I defer any determination of costs until sentence had been determined. I therefore reserve the question of costs for a period of 28 days from the date of this judgment. The parties are directed to discuss the question of costs. 41 The prosecutor should file, within that time period, a short submission in respect of the outcome of the process and any matters it may wish to put in respect of the question of costs. That submission should be served on the defendant. If the issue of costs is resolved, the Court will determine the question by orders in chambers. If the issue of costs is not resolved, then the defendant shall have 28 days thereafter to file any further submissions in reply, in writing, that he may wish to put as to this matter. ORDERS The Court makes the following orders:

The offence is proven and a verdict of guilty entered in this matter.
The defendant is convicted of the offence, as charged.
The defendant is fined in the sum of $5,000 with a moiety of that fine to the prosecutor.
Costs are reserved until the receipt of further submissions from the prosecutor and the defendant in accordance with this judgment as to that matter.

Inspector Childs v Stimson

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