It was also accepted that the primary factor to be considered in determining the sentence to be imposed was the objective seriousness of the offence charged: the proper approach to sentencing involved an initial consideration of the gravity of the subject offence viewed objectively.
33 In relation to Zelbarry, the prosecutor drew attention to the detailed consideration of the duty of labour hire firms by the Full Court in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (Inspector Ch'ng) (2000) 90 IR 432. It was submitted that in the present case the defendant did not address itself in an effective manner to issues of occupational health and safety touching upon its placement of Mr Batterham at the Mt Thorley site prior to the accident. The defendant asserted that it carried out a safety inspection and an assessment of the premises in about November 2001 but the prosecutor submitted that on the evidence the defendant had relied upon Harnischfeger to provide Mr Batterham with induction training, safe systems of work, safe work procedures, adequate training in its occupational health and safety systems and supervision without any effective auditing of those systems by Zelbarry. Importantly, Zelbarry placed reliance on Harnischfeger's system without performing any adequate risk analysis assessment of the occupational health and safety systems in place at Mt Thorley or any assessment of Harnischfeger's management system at the site.
34 It was accepted by the prosecutor that Zelbarry had entered a plea at an early stage, had co-operated with the WorkCover Authority and had the benefit of an unblemished record.
35 It was noted by the prosecutor that, because the defendants were charged with different offences albeit arising out of the same facts and circumstances, technically the principles of parity did not apply. The Full Court in Warman International Ltd v WorkCover Authority (1998) 80 IR 326 had recognised the need for consistency in the sentencing of offenders for what might be described as "related" offences.
36 It was submitted that both the principle of parity and the principle of consistency in sentencing referred to in Warman only operated to the extent of comparing like with like. Attention was drawn to the judgment of Doyle CJ in R v Cox (1996) 66 SASR 152 at 159 as follows:
I do not understand the principles stated by the High Court in Lowe v The Queen to require a reduction in a sentence when the disparity between it and a sentence imposed upon a co-offender is justified by significant differences in antecedents. As I understand the principle it applies when, although the higher sentence cannot on its face be said to be erroneous or excessive, there is no identifiable factor in the sentencing process which objectively assessed supports the different approach. If there are factors which support different treatment then, to use expressions in the authorities, there can be no justifiable sense of grievance on the part of the offender who receives the heavier sentence, and no appearance of unfairness to the community.
37 It was submitted that it followed that the differences in sentencing outcomes that reflect differences in the circumstances between co-offenders where the principle of parity applies and between offenders charged with different but "parallel" or "related" offences under the Occupational Health and Safety Act will not offend against those principles.
38 Factors such as differences in the maximum penalty for the offence had to be taken into account and properly reflected in the respective penalties imposed (Signanto v The Queen (1998) 194 CLR 656 at 670). It followed that, in determining the extent to which the penalty to be imposed in the circumstances of the present case should be governed by notions of parity, the Court must have regard to the differences in the maximum penalty applicable, namely $550,000 in the case of Zelbarry and $825,000 in the case of Harnischfeger.
39 It was also submitted relevant to have regard to the differing roles played by Zelbarry and Harnischfeger. The differences in these roles did not, by themselves, provide a basis for any significant differentiation in determining the penalty to be imposed. Nevertheless, in these cases, one of the main distinguishing factors was the different industrial history of Zelbarry and Harnischfeger. There were also differences in the subjective circumstances between the two defendants, such as evidence of the safe system that Harnischfeger had in place prior to the accident involving Mr Batterham.
40 The prosecutor submitted that the offences reflected a significant failure on the part of the defendants to meet their obligations under the Act. Having regard to the nature and quality of the offence, the Court should impose a significant monetary penalty. In the task of distinguishing between the two defendants, it was significant that Harnischfeger not only had a previous conviction but that it related to a failure to undertake a risk assessment in similar circumstances to the nature of the task being undertaken by Mr Batterham. Nevertheless, the prosecutor did not submit that this second offence was not to be treated as just a repeat offence, but as some special class of repeat offender: the Court was concerned with the criminality of the defendant's current conduct, not the criminality of the defendant's conduct on a previous occasion.
41 In the submissions of the prosecutor, there were three factors to be considered by the Court. Firstly, the legislature had drawn a distinction between those with a previous record and defendants who had not previously offended against the Act - the Court was required to address the higher penalty imposed on the subsequent offender. Secondly, where the second offence raises in the Court's view the need for corrective action to be taken against the defendant, that history might be taken into account in relation to the current behaviour of the defendant but not in relation to its previous behaviour. Thirdly, there would be a differentiation because of subjective differences between the parties. While Harnischfeger could not be punished again for its past record, it was not entitled to the leniency which may be available to Zelbarry.
42 For Harnischfeger, it was submitted that the change of business which involved the defendant no longer performing the task that Mr Batterham was involved in at the time of the incident was a radical change to the business operations. It was accepted that the system of work was ineffective. Nevertheless, there were substantial processes in place and substantial education within the organisation: this was not a defendant which was "inactive in safety". The detailed evidence of Mr Lennard was relied upon to demonstrate the significant additional steps taken to improve workplace safety.
43 For Zelbarry, it was submitted that Harnischfeger was the operator of the work site and had day to day responsibility of that operation, but it was accepted that Zelbarry still had to do what it could to ensure that there was no exposure to risk of its employees. Harnischfeger had a detailed work safety system and Zelbarry were entitled to rely on that system and what appeared to be on paper a good system. It was accepted that, if Zelbarry was to rely on Harnischfeger's system, it had to take steps to ensure, as best it could, that the system worked and that it was implemented. Therefore, while it was legitimate for the labour hire company to rely on a well established and seasoned industry operator to lay down a safe system, by its plea of guilty Zelbarry accepted that it failed to take the additional step of ensuring the effectiveness of that system in relation to its own employees. While Zelbarry had failed to undertake a risk assessment for this particular task and failed to ensure that a work method system was created, there was nothing to indicate that if either of those two steps had been carried out it would have necessarily made any difference as to whether this accident would have occurred. The central problem was that it was a two person job and Mr Batterham knew that and had asked for another worker to assist him. Here, there was not a lack of a system or a lack of knowledge or a lack of awareness - the problem was one of human judgement. There should have been two workers on the job and senior and experienced staff on the Harnischfeger site nevertheless decided to depart from what was an established practice.
44 It was strongly submitted that Zelbarry was the least culpable of the two defendants and that there was a real difference between them. If Harnischfeger was dealt with in moderation as to penalty then Zelbarry was a beneficiary. The track record for Harnischfeger was "very good", but the track record of Zelbarry was considerably better having been in the industry for 22 years without an offence. The other significant difference was that Harnischfeger, by reason of the previous incident, was on notice of a problem, albeit a different problem. Zelbarry was not on notice as was Harnischfeger. It took a second accident for a dramatic redressing of the issue by Harnischfeger.
45 It was submitted that, as Harnischfeger was the operator of the site, there were very real limits on what Zelbarry could do especially where those on the job decided to disregard the safety rules. Here, the standard practice was to have two persons involved in the operation. Mr Batterham had asked for the assistance of another person and that had not been supplied by Harnischfeger. There was little that Zelbarry could do about that situation apart from having a supervisor there every minute of the day. Mr Batterham knew he should not have gone ahead on his own although he waited for assistance, but nevertheless decided to do so. Zelbarry could have had a piece of paper in its training that told him not to go ahead. That lesson had been learnt and now there were better systems in place.
46 In relation to issues of principle, it was submitted by counsel for Zelbarry that the decision of the High Court in Veen v The Queen [No 2] (1987-19880) 164 CLR 465 was that somebody who had a prior conviction may as a result miss out on the mitigation which is afforded to a first offender but that was only one aspect of the influence that a prior conviction could have. Consideration would be given as to whether or not the particular conduct was in some sense out of character: the Court could not penalise for the presence of a prior conviction. However, a prior conviction should deprive the person of a discount for leniency.
DELIBERATION
47 As the submissions indicate, the starting point for consideration of an appropriate penalty for each of these defendants is the objective seriousness of each offence. The offences arise out of the same incident and the different charges result primarily from the different role of each defendant: Zelbarry being the employer and Harnischfeger failing to take measures in relation to the safety at work of a person not its employee. This simple statement of the initial task in this case masks an issue of some difficulty arising from the fact that the defendant Harnischfeger, having had a previous conviction under the Act, faces a maximum penalty of $825,000 while the defendant Zelbarry, having no relevant record of breaches under the Act, faces a maximum penalty of $550,000.
48 Judgments of the Court show that it is not unusual, in cases where there are two or more defendants involved in the same workplace incident, that an assessment is made that in a general sense, although charged under different sections, the culpability of each defendant is considered broadly equal. Where, however, as in this case, one of the defendants has a prior offence and is liable to a fine of up to $825,000 and the other defendant having no record is liable to a fine of up to a maximum of $550,000, it is said that the offence with which the defendant with a record is charged is a more serious offence because of the higher maximum penalty (relying upon the approach in Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683): the Court is bound to consider the maximum penalty and set an appropriate penalty somewhere between zero and the maximum. The submission suggests, either directly or indirectly that, although the culpability of the defendants may be very similar, the penalty imposed on the defendant with a prior record should reflect the fact that the defendant is guilty of a more serious charge by virtue of the legislature prescribing a higher maximum penalty: that is, by the imposition of a higher penalty bearing some relationship to the 50 per cent higher maximum penalty regime for subsequent offences. The difficulty with that approach is, firstly, it strongly bears the appearance of a mathematical approach and is thus contrary to longstanding principle. Secondly, the approach seems to involve, without any consideration of the circumstances, the imposition of a higher penalty because of the defendant's prior record and irrespective of what was involved in that record. Thirdly, it leads to the seemingly anomalous position that defendants with a very similar level of culpability are liable for quite disproportionately different penalties arising out of very similar conduct. One answer suggested in support of this result, in spite of its difficulties, is that such a result was contemplated by the legislature when it enacted provisions imposing a significantly higher penalty for second and subsequent offences. That explanation holds little appeal when it results in the overturning of long standing sentencing principles. Had the legislature intended this result, it would be expected that very clear language would be used rather than the mere specification of a higher maximum penalty for second and subsequent offences. Section 12 of the 2000 Act (and s 51A of the 1983 Act) does not purport to directly intervene in the sentencing process by directing a specified result: for instance, s 12 does not require a minimum penalty for a second or subsequent offence nor does it require a penalty at least equal to or greater than the previous penalty imposed. Having regard to the width of conduct caught by s 8 (for example) it is not surprising that such an approach has not been adopted by the legislature: a very serious first offence may be followed by, objectively, a very minor and different subsequent offence especially in industries involving inherently dangerous conditions and/or involving large numbers of workers. The availability of a higher range of penalties for the second and subsequent offences provides the sentencing judge with a wider range of penalty options depending on the circumstances of the case, and underlines the legislature's disapproval of subsequent offences under the Act. The higher penalty regime will be available, for example, where the previous history shows a propensity to subject employees to unsafe systems of work.
49 It is useful in this exercise to again consider what was said by Kirby P in Camilleri's Stockfeeds in relation to general principles of sentencing (at 698-699):
1. While it is the function of the Court itself to assess the seriousness of the offence in question, the maximum penalty available for an offence reflects the "public expression" by Parliament of the seriousness of the offence: R v H (1980) 3 A Crim R 63 AT 65. Here, the maximum penalty is $125,000. Such a large penalty indicates the gravity of the offence as perceived by the community: see the comments of the Hon T J Moore in New South Wales Parliamentary Debates (Legislative Assembly), 20 November 1990, 10037 at 10038. The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum.
2. A maximum penalty is to be imposed where the case falls within the worst category of cases for which the penalty is prescribed. This is to be determined on the facts of the case: Ibbs v The Queen (1987) 163 CLR 447 at 452. However, 'that does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposed the maximum penalty offends this principle only if the case is recognisably outside the worst category': Veen v The Queen [No 2] (1988) 164 CLR 465 at 478.
3. The court must keep in mind not only the facts which establish the seriousness of the offence but also those which tend to mitigate that seriousness or exculpate the offender. In this process, where a relevant fact is the subject of conflicting evidence, and where that evidence is of like probability, the court should resolve the conflict of fact in favour of the offender: see R v O'Neil (at 588).
4. While the offender can only be sentenced for the offence for which it has been convicted, the court is 'bound to take into consideration the circumstances surrounding the offence of which the prisoner has been convicted, so long as those circumstances are not inconsistent with the plea or verdict': R v DeSimoni (1981) 147 CLR 383 at 396. Such an approach is consistent with the court's proper evaluation of an offender's antecedent history where it does not lead to the imposition of a penalty disproportionate the gravity of the particular offence(s) charged: see Veen v The Queen [No 2] (at 477).
50 It can be seen here that Kirby P was addressing general sentencing principles and was not directly dealing with the type of issue now under consideration. Those principles require a sentencing judge to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. I do not regard this sentencing principle as requiring substantially different penalties for the same type of conduct where the only difference is that one defendant has a higher penalty range because of a previous conviction. This approach seems to generally conform with the last principle referred to by Kirby P, namely, that an offender's antecedent history should not lead to the imposition of a penalty disproportionate to the gravity of the particular offence charged. The cases have also referred to the need to ensure that a penalty is not oppressively high. As the majority stated in Veen [No 2], a sentence should not be increased beyond what is proportionate to the crime although the previous criminal history of an offender may be taken into account in determining a sentence: nevertheless, that factor could not be given such weight as to lead to a penalty which was disproportionate to the gravity of the offence. The majority stated that it was legitimate to take into account the previous history of an offender when it illuminated an offender's moral culpability in the instant case, or showed the offender's dangerous propensity or the need to impose condign punishment to deter the offender and other offenders from committing similar offences. The majority also stated that the principle of proportionality was now firmly established in Australia. In Veen, the court was considering a provision which allowed the crime of murder to be reduced to manslaughter, especially by providing a modified defence to mentally affected offenders. The majority noted that the provision had never been regarded as requiring in all instances, the imposition of a penalty less than life imprisonment. In the course of that discussion, the majority said:
However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions ( at 476).
51 The majority in Veen then referred to what were described as subsidiary principles:
There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: The Director of Public Prosecutions v Ottewell (1970) AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. (at 477).
… The second subsidiary principle material to this case is that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which the penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-452. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness . A sentence which imposed the maximum penalty offends this principle only if the case is recognisably outside the worse category. (at 478)
52 In Postiglione v The Queen (1997) 189 CLR 295 the joint judgment of Dawson and Gaudron JJ (at 301-302) dealt with the principle of parity:
The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated ... However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offences. Rather it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.
53 In WorkCover Authority, (Inspector Ankucic) v McDonalds Australia Ltd (1999) 95 IR 383, the court accepted that, while the principle of parity normally operated in relation to co-offenders or across the range of those convicted of the offence in question and in relation to the same crime, this Court had held in Warman's case that, where defendants not being co-offenders were prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe, where there exist common factual circumstances giving rise to the charges. In Warman, the Court also noted that parity was considered in the context of a labour hire company and the defendant who utilised that labour.
54 A number of other authorities bear upon this discussion. In Pearce v The Queen (1998) 194 CLR 610 the court stated (at 645-646):
Sentencing is not a process which leads to a single correct answer arrived at by some process admitting of mathematical precision (cf House v The King (1936) 55 CLR 499). It is, then, all the more important that proper principle be applied throughout the process.
It is accepted that a change or a difference in the statutory maximum penalty is a matter that the Court must take into account: such a change may represent a movement in the community feeling or expectation as to the sentence appropriate for such an offence although a change of this nature will not necessarily have a determinative or conclusive effect ( R v Crump, unreported NSWCCA, 30 May 1994). Where two defendants are guilty of a similar offence committed in similar circumstances a defendant with a record, while not being sentenced twice for the same offence, is usually not entitled to the same leniency as a defendant who has no prior record ( R v Loosenoore (1980) 2 Cr App R (S) 92; R v The Queen (1981) 3 Cr App R (S) 245).
55 The judgments in Veen confirm that in Australian law sentences of preventative detention are impermissible: an approach which virtually automatically treats a second offence as more serious and requiring a penalty approximately 50 per cent higher, regardless of the objective features of the offence appears to be an approach similar to the rejected concept of preventive detention and the basis upon which it is propounded.