1 Barry John Stimson ("the defendant"), was found guilty of an offence under s 9 of the Occupational Health & Safety Act 2000 and fined the sum of $5,000 with a moiety of that fine to the prosecutor: see WorkCover Authority of New South Wales (Inspector Childs) v Stimson [2004] NSWIRComm 395; Inspector Childs v Stimson (No 3) [2005] NSWIRComm 336.
2 During the sentencing hearing, the defendant made an application pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 and submitted that I defer any determination of costs until sentence had been determined.
3 In delivering sentence in this matter, I directed the parties to discuss the question of costs and to file short submissions in respect of the outcome of those discussions and any matters that they may wish to bring to the court's attention in respect of this question.
4 Due to the health of the defendant, a number of extensions were granted to the parties for the filing of written submissions. I propose to determine this issue on the written submissions.
5 Mr P Skinner of counsel, who appeared for the prosecutor, submitted that the usual award to the prosecution of 100% of its costs, should be made. The prosecutor assessed its costs to be $37,100.
6 Mr Skinner acknowledged that a trial judge has a very real discretion to decide what orders to make as to costs and that the reasoning that he or she may apply to justify their order need not be precisely elucidated: Maynard v Dabinett [1999] NSWCA 295, per Stein and Giles JJA, at [16] - [17].
7 The defendant submitted that there should be no order for costs, or alternatively, a significantly reduced quantum of costs awarded. The defendant submitted that a costs order is tantamount to a further penalty and, in a broad sense a form of double jeopardy. It was submitted that having regard to the special circumstances of this case, in particular, the difficult causation issue, it was not unreasonable for the defendant to have defended the charge.
8 It was submitted that the wilful and disobedient conduct of the deceased contributed to his death. The court found that the deceased did not fall into the trench excavated by the defendant, but voluntarily walked in, after having been warned by the defendant on two occasions to stay away from the worksite. It was submitted that in these circumstances, the defendant's decision to defend the charge was not in bad faith, or for an improper purpose.
9 The defendant noted that the court has an unencumbered discretion concerning costs orders and enabling the court to address the issue of costs in this matter in a flexible and non-mechanical manner: Latoudis v Casey (1990) 170 CLR 534.
10 It was submitted that if a costs order was made, it should be made in accordance with the principles set out by the English Court of Criminal Appeal in R v Whalley (1972) 56 CR.App.R. 304. Those principles provide that regard should be had to the capacity of the defendant to pay costs and the quantum of the fine and moiety. At the very least, it was submitted the fine should be set-off against any costs orders.
11 It was submitted that the defendant is an elderly man in very poor physical condition. He may not have very long to live. He has the added responsibility of caring for his crippled wife. The defendant's wife is confined to a wheelchair and suffers from multiple sclerosis. She has recently been unwell, requiring hospitalisation and is incontinent. The defendant was recently hospitalised on two occasions with respiratory failure, including a lengthy period in intensive care. The defendant is suffering a heart disease and has suffered two heart attacks since the incident the subject of the charge and is under stress due to his wife's poor health. The defendant is the sole carer and assists with the activities of daily living. The defendant attached medical certificates from two doctors, Dr Hisham Hallani and Dr Yusuf Bassa, and from the Respiratory Registrar at Nepean Hospital.
12 The defendant also provided a consolidated trading, profit and loss statement as at 30 June 2005. The operating profit before income tax was $4,755.23. This figure would have been significantly reduced but for the sale of an asset to the value of $58,654.27. Without the sale of this asset, The Operating Profit Before Income Tax would have been minus $52,890.04. The Excess of Liabilities Over Assets is shown as $121,292.89. Without the sale of the Asset referred above, the Excess of Liabilities Over Assets would be $154,498.28.
13 It follows that the defendant had little income in the financial year ending 30 June 2005, particularly if the sale of an Asset is deducted from the income.
Statutory Provisions
Fines Act 1996