Inspector Christopher Downie v Menzies Property Services Pty Limited

Industrial Relations Commission (NSW)|2004-07-01|Before: Walton J, Boland J, Backman J

The application of the former equivalent of s10 of the Crimes (Sentencing Procedure) Act 1999, that is, s556A of the Crimes Act 1900, was recently and comprehensively considered in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700. In that decision, the Full Bench of the Commission in Court Session pointed out the clear and long standing authority which established the rarity of situations in which such an ameliorative provision was available to a defendant under the Act.

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) 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.

Further, in a recent discussion of s10 of the Crimes (Sentencing Procedure) Act 1999, the Full Bench of the Commission in Court Session reiterated that the exercise of such a discretion is saved for extraordinary and highly exceptional circumstances (see Australian Grader Hire ). I shall apply the principles stated in Profab and Australian Grader Hire in this matter.

In Waugh, the former Industrial Court had noted that the company and the personal defendant had a prior good character. However, this seemed to be due to good fortune rather than good conduct. The Court approached the question of s556A in quashing the decision at first instance as follows (at 101):

We consider that in serious cases where, as found by her Honour, the risk of injury from an accident was not one difficult to foresee, where the breach could and did result in serious consequences to the health of the injured man, where the risk of injury was preventable and where a safety fence with an isolation device was installed without difficulty after a second inspection, the operation of s556A of the Crimes Act to such proceedings would seldom be appropriate. If such an application is pressed but opposed it should normally be supported by evidence subject to cross-examination rather than the untested assertions made from the bar table.

This approach was applied by Hungerford J in WorkCover Authority of New South Wales v Neaves [1996] NSWIRComm 58. His Honour rejected an application under s556A of the Crimes Act 1900 because the detriment to safety there occasioned by the employee had been foreseeable and the work practice involved was known to be dangerous and resulted in serious injury. His Honour found that the risk could have been prevented.

In applying the foregoing authorities to an application for the exercise of the Court's discretion under s10 of the Crimes (Sentencing Procedure) Act , it is important, however, to bear in mind that each matter requiring consideration under s10 of that Act needs to be considered in the light of its own particular circumstances: WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Ltd (1999) 90 IR 413 at 430.

47 We consider the statements of principle in Profab Industries, summarised in Department of Mineral Resources v Berrima Coal and affirmed in Riley v Australian Grader Hire, as to the application of s10 of the Crimes (Sentencing Procedure) Act are correct and we apply those principles in the present matter.

48 We note that Marks J in Inspector Carmody v Power [2002] NSWIRComm 286 considered in some detail a number of decisions which give guidance concerning the application of s10 of the Crimes (Sentencing Procedure) Act. We point to two of those observations: (1) whilst the section is intended to have general application and creates a wide discretion, the discretion is "a judicial discretion, to be exercised consistently with the scheme and the purpose of the section as a whole" (see Gleeson CJ (as his Honour then was) in the Court of Criminal Appeal in R v Ingrassia (1996) 41 NSWLR 447 at 449); and (2) the factors listed in s10(3) as relevant to the exercise of discretion to make an order under s10(1) should be considered disjunctive and non-exhaustive, and that whilst none of those factors is conclusive, all are to be taken into account (see Spigelman CJ in the NSW Court of Criminal Appeal (with whom Simpson J and Einfeld A-J agreed) in Commissioner of Taxation v Baffsky (2001) 164 FLR 375; and R v Paris [2001] NSWCCA 83 (14 March 2001)). A similar conclusion was reached in the earlier decision of Cobiac v Liddy (1969) 119 CR 257 where Windeyer J held, in relation to the exercise of a comparable discretion in South Australian legislation, that "the magistrate must be of the opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several of them together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits ... They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence".

49 We consider these observations to be both relevant and useful to our discussion regarding the application of s10 of the Crimes (Sentencing Procedure) Act.

50 We also note that Marks J concluded that s10 may be applied even though the offence may not be trivial, but that overall application of s10 must "reflect the objective seriousness of the offence" and must "maintain a reasonable proportionality between the sentence and the circumstances of the offence" (referrring to Hulme J in R v Piccin (No 2); Stein J (with whom Hidden and Howie JJ agreed) in the New South Wales Court of Criminal Appeal in R v Lord [2001] NSWCCA 533 (4 December 2001)). However, the authorities earlier referred to make it clear that it would be rare for an order under s10 to be made in favour of a defendant where the offence is objectively serious.

51 Mr Hodgkinson submitted that the decision in Profab Industries "can properly be seen as a guide or as providing guidance in the consideration of the application of [the discretion under s10 of the Crimes (Sentencing Procedure) Act]", but that it is not appropriate to elevate that decision as in some way directing the exercise of discretion.

52 Mr Hodgkinson also referred to the decision in Thorneloe v Filipowski (2001) 52 NSWLR 60 in which Spigelman CJ held, in the context of a breach of the Marine Pollution Act 1987, (at [178]):

It is, in my opinion, relevant to the exercise of the discretion under s10 of the Sentencing Act , in the context of a strict liability offence, to consider what the applicant for the benefit of s10 could have done to avert the event that has occurred. While questions of weight are always for the sentencing judge, it is unlikely that this consideration will be given determinative weight in the case of a serious offence or a repeat offender. Where, as here, there was a comparatively minor pollution by a first offender, this consideration is entitled to weight.

53 It was the respondent's contention that the Full Bench decisions since Profab Industries (such as WorkCover (Inspector Buggy) v Weathertex; Riley v Australian Grader Hire; McCarthy v Sell & Parker; and Barber v Gundegai Shire Council), as well as the above decision in Thorneloe v Filipowski, support the proposition that "one does not fetter by a determination such as Profab the otherwise legislative discretion but it might provide some guidance in its exercise".

54 We have considered in the context of this submission the view expressed by Marks J in Inspector Carmody v Power that "in this Court, an approach has been taken at Full Bench level to the application of s10 and the former s556A to occupational heath and safety offences, which has created an additional qualification on the discretion conferred by these provisions", a view which Peterson J accepted as correct in Inspector Victor Larobina v Mahmoud Khodr Trading as MK Tiling & Anor [2003] NSWIRComm 473. We note that in forming this view, Marks J referred to the decision in Profab Industries at [23]-[24].

55 However, we agree with the respondent's submission that the decision of the Full Bench in Profab Industries does not impose a qualification or limitation on the exercise of discretion under s10 of the Crimes (Sentencing Procedure) Act per se. What it does do is to ensure that the discretion under s10 is exercised consistently with the scheme and purpose of the Occupational Health and Safety Act. As was described in Profab Industries, a significant purpose of the Occupational Health and Safety Act is "to prevent, deter and punish breaches of health and safety requirements". The Full Bench in that case referred to the purpose of the Act as being for the benefit of the public generally. Further, the "strongly defined duty of care, clear public policy considerations in the [Occupational Health and Safety Act] and major penalties provided" were identified in Shultz v Tamworth City at 229 and WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Ltd (1999) 90 IR 413 at 430. When seen in the light of these considerations, an offence which is objectively serious will, therefore, rarely attract the exercise of a sentencing discretion under s10 in favour of a defendant. This approach also flows from the nature of the prosecutions which are typically brought before this Court (although we note the present matter is before us on appeal).

56 In our view, although not citing chapter and verse, the Deputy Chief Magistrate acknowledged the authorities which establish that an order under s10 of the Crimes (Sentencing Procedure) Act is unusual in occupational health and safety matters. However, whilst her Honour's decision was generally well reasoned in terms of fact finding (particularly having regard to the fact that it was delivered ex tempore) there is a distinct lack of reasoning to demonstrate why an objectively serious matter presented exceptional circumstances which warranted the making of a s10 order. The Deputy Chief Magistrate stated only this:

But taking into account the facts and circumstances of this matter and the circumstances of the company, I place it outside the usual circumstances of any case and all things considered this is a rare and appropriate matter where s10 should be granted not recording a conviction against the company.

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.

59 We consider that this failure to give close attention to the circumstances warranting the exercise of discretion distracted her Honour from the proper exercise of discretion, resulting in the manifestly inadequate sentence given. In turn, we agree with the appellant that the decision of the Deputy Chief Magistrate demonstrated a number of errors of law and principle which resulted in the improper exercise of her discretion under s10 of the Crimes (Sentencing Procedure) Act.

60 The Full Bench decision in Lawrenson Diecasting established that the objective seriousness of an offence is the primary factor to be considered when determining the appropriate sentence to impose, and that subjective factors which may mitigate the seriousness of the offence must be secondary to a consideration of the nature and quality of the offence. See also, for example, Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; Ridge Consolidated v WorkCover (Inspector Mauger); WorkCover Authority (Inspector Patton) v Fletcher Constructions.

61 We agree with the appellant that the Deputy Chief Magistrate failed to give sufficient weight to the objective seriousness of the offence and placed too much weight on the subjective factors of the offence, and in doing so fell into appealable error of the type contemplated in House v The King.

Underrating of objective seriousness of the offence

62 As to the factors which demonstrated the objective seriousness of the offence, we consider that the Deputy Chief Magistrate failed to properly appreciate, or to give sufficient weight to, the following six elements.

63 First, her Honour failed to comprehend the deficiencies in the system of work that was in place with respect to the cleaning of high, louvre windows.

64 Her Honour referred to the respondent's overall "good work practices", stating that "the company certainly appears to be properly and well equipped with an appropriate occupational health and safety policy that appears to be properly followed up at all appropriate times". The appellant submitted that "what the magistrate had before her in this case was a paper system which she determined was on paper an adequate system, a good system, and a supervisor who did not follow the paper system or what might have been a good system, but with no explanation as to why he was not supervised, or what was done beyond having a paper system to ensure it was implemented".

65 Mr Agius submitted that there was no evidence that there was in place a system for the cleaning of high, louvre windows, particularly one which required the use of a step ladder. We agree. The "Safety Rules Policy", relied on by the respondent, stated:

Whenever possible, use a ladder for a high reaching job, never use a substitute such as a chair, box or table. Never stand on the edge of a sink hand basin.

66 We do not consider that such a policy was clear, or applicable in the circumstances of the present matter. Firstly, the words "whenever possible" have little meaning. Secondly, whilst the louvre windows were high, there was no evidence that it was a "high reaching" job. Thirdly, notwithstanding the stated policy not to substitute a ladder with a table, there was no dispute that the use of the desks as a work platform in the present case was unsafe.

67 The following discussion of paper systems in WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] (2000) 100 IR 23 at [35] is pertinent: The existence of a system on paper alone is clearly not sufficient to comply with the obligations imposed by the Act. The employer is required to ensure that its ''paper systems'' are implemented and maintained in its daily operations: see Sydney City Council v Coulson (1987) 21 IR 477 at 480; WorkCover Authority (NSW) (Inspector Tyler) v Abigroup Contractors Pty Ltd (2000) 99 IR 196 at 214 par 26. The Court must have regard not merely to the system as it exists in theory, but as it is implemented in practice. In Inspector Davies v Supercoat Feeds Pty Limited (unreported, CT96/1020, 22 April 1997, at p4), for example, Fisher P said:

The relevant system of work, however, is the customary method of carrying out the operation in which the employer is engaged - the system of work is that actually utilised and operated at the place of work.' Paper' systems whose prescriptions are not followed do not represent the actual system of work utilised and are irrelevant. See also WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207 at [155]-[156].

68 In our view, whilst there may have been evidence that the respondent maintained a paper system, the content of that system was inadequate having regard to the nature of the duties actually performed by workers. Further, not only did the respondent fail to actively promulgate the system (such as it was) in the workplace, by the actions of Mr Counsell, the respondent ultimately promulgated an inherently unsafe system of work. Mr Hodgkinson submitted that "it is not a paper system in that the employer derives the system which he expects to be implemented. It became an unused system because Mr Counsell adopted a system which didn't employ the use of the ladder". We do not consider that that submission conflicts with our findings.

69 Dr Denis Boulais, National OHS & Workers Compensation manager for the respondent, gave the following evidence:

I have confirmed that ladders were available for use by the cleaners at this school, but in this instance, Valerie Pyart had chosen to use a chair instead. Unfortunately, this decision to use the chair appears to have been condoned (if not supported) by the site supervisor, Brian Counsell.

70 However, Dr Boulais also referred in his affidavit to the report dated 31 October 2003 which was prepared by him for the purpose of these proceedings. That report included the following passage:

According to the statements provided, Brian Counsell had indicated he instructed the two cleaners to alight the bench using a chair and he even did this himself and assisted them in their cleaning process. Both the cleaners' statements concur with Brian's statement. The true OHS issue is the contract manager's complacent instructions to his cleaners despite the employer providing him extensive training in safety.

71 The Deputy Chief Magistrate referred in her decision to a letter tendered by the respondent, with the appellant's consent, which indicated that step ladders were available to cleaning staff at the workplace "from the late 1980's". The appellant questioned the veracity of that evidence, given that the author of the letter was not part of the respondent's business between 1994 and 2001. In any event, the appellant submitted before the Deputy Chief Magistrate that the mere presence of ladders at the workplace did not satisfy the respondent's obligation to "provide" or "make available" that equipment, although that submission was not ultimately pressed at that time. However, the submission was raised again in the present proceedings. The appellant contended that "the mere availability or existence of a stepladder at the relevant premises manifestly does not equate to the provision of such equipment to Ms Pyart; nor does such availability of itself diminish the respondent's culpability in the face of the express instruction given to Ms Pyart that she should alight the computer desk by the use of the plastic chair".

72 In our view, the discussion before the Deputy Chief Magistrate regarding the availability of stepladders at the workplace was fundamentally in error. Regardless of whether stepladders were present, available or provided at the relevant workplace, the absence of a safe system of work, the respondent's concession that an instruction was given to Ms Pyart to use a plastic chair instead of a stepladder, and its further concession that therein lay a safety issue, is conclusive of the serious nature of the offence.

73 Secondly, the Deputy Chief Magistrate underrated the significance of the respondent's failure to provide adequate supervision. Dr Boulais' uncontroverted evidence was that "Mr Counsel was not at the premises when Ms Pyart ... [was] undertaking tasks of cleaning the louvre windows on 8 October 2001". The absence of supervision is, in itself, a serious failure. However, the severity of that offence is increased by virtue of the express instruction given by Ms Pyart's supervisor to adopt the inherently unsafe practice of using a plastic chair rather than a stepladder to climb onto the desks. Once that instruction had been given to Ms Pyart, there immediately ceased to be a safe system of work for the cleaning of high, louvre windows, if indeed a safe system existed in the first place.

74 Thirdly, the Deputy Chief Magistrate had insufficient regard to the respondent's failure to provide adequate training. We agree with Mr Agius that the Employee Handbook provided to Ms Pyart, and the acknowledgement signed by her regarding her acceptance and understanding of the respondent's safety policies were of limited value. There was no evidence that Ms Pyart had "read and fully understood" the relevant "Safety Rules Policy" extracted earlier regarding the use of ladders, as that policy was contained in the Menzies Employee Handbook, a document not directly referred to on the form signed by Ms Pyart. Further, there was no evidence that Ms Pyart had been given any additional training since she commenced employment in 1999. In any event, any training that may have been given to Ms Pyart with regard to the cleaning of high, louvre windows was overridden by Mr Counsell's instruction to use an unsafe system of work.

75 As to the training provided to Mr Counsell, the essence of the respondent's submission was that the respondent did not fail to adequately train to Mr Counsell, but that Mr Counsell failed in the performance of his duties, in particular, his duty to properly instruct and supervise Ms Pyart. The appellant highlighted the fact that the training relied upon by the respondent consisted of a WorkCover Accredited Supervisors' and Line Managers' Course, undertaken by Mr Counsell more than a month after Ms Pyart's accident, and other unidentified training conducted four years prior to the accident. Whatever training Mr Counsell had undertaken did not appear to have been effective.

76 It is not to the point, in our view, that the cleaning of windows was an annual event at that particular location in the workplace: the duty to ensure the health and safety of employees exists with respect to all workplace activities, not only the regular or day-to-day activities. The very fact that the cleaning duties were seldom performed suggests that greater emphasis should have been given to instruction, training and supervision.

77 Fourthly, her Honour incorrectly collapsed her consideration of the charge relating to failure to supervise and failure to provide training within her overall consideration of the respondent's failure to provide a safe system of work. We do not consider that approach to be appropriate. The failure to provide training and supervision were indicative of the objective seriousness of the offence, and warranted separate and distinct findings to that effect. In our view, separate consideration of those particulars of the charge further highlight the extent of the respondent's failure to provide a safe system of work.

78 Fifthly, her Honour placed insufficient weight on the foreseeability of the risk to Ms Pyart. The Deputy Chief Magistrate made clear findings that the risk of falling when using a plastic chair to climb onto a desk was foreseeable. She held: ...certainly [a fall from a chair] is foreseeable within the work system that the worker operated in. and later

Certainly this risk was foreseeable and I have no doubt that had a particular risk assessment been conducted in relation to this particular activity prior to the activity being undertaken, there would have been some assessment of the risk of falling off the chair.

79 We are satisfied that the Deputy Chief Magistrate found, correctly in our view, that the risk was foreseeable. However, as was concisely stated in the decision of the Full Bench in Capral Aluminium (at 646), "the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature". Despite her clear findings as to foreseeability, the Deputy Chief Magistrate ignored the inescapable conclusion that such foreseeability renders the offence more serious and raised questions about the proper exercise of discretion under s10. Further, given the evidence of Dr Boulais that the mean age of cleaners employed by the respondent was 65, that Ms Pyart herself was age 60 at the time of the accident, and that Ms Pyart was said to be overweight, the foreseeability of the risk was self-evident.

80 Her Honour also made the following additional observation regarding the foreseeability of Ms Pyart's injuries:

Certainly the injury was relatively severe, however the circumstances surrounding the injury were not such that a severe injury could have been foreseen in such a way - well, it could have been foreseen in such a way but perhaps not such a severe injury.

81 We consider this approach to be erroneous. The Deputy Chief Magistrate focussed on the foreseeability of the injuries sustained by Ms Pyart rather than the foreseeability of a risk to her safety in arriving at her decision to dismiss the charge under s10 of the Crimes (Sentencing Procedure) Act.

82 The Deputy Chief Magistrate observed that the cleaning industry was not an industry which she would consider to be "inherently dangerous". That may well be the case, however the matter before her Honour involved a plainly foreseeable risk; a risk which presumably exists on a daily basis for many cleaners in New South Wales who are regularly required to clean room fittings or furniture which may be awkward or difficult to access. Add to that the fact the cleaner in question was 60 years of age, and the seriousness of the offence, and the obvious need for deterrence, is evident. In our view, the fact that the respondent allowed a 60 year old employee to use a plastic chair to climb onto a desk, rather than instructing her to use a stepladder and then ensuring that she did so, represented a patent breach of the respondent's duties under the Occupational Health and Safety Act.

83 Finally, her Honour failed to give sufficient weight to the general and specific deterrent effect of a conviction and the imposition of a penalty. As to the issue of general deterrence, the court in WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312 at 326 emphasised that:

It is "the fundamental duty of this Court" to ensure that any penalty imposed is severe enough to "compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 adopted in Capral Aluminium (at par 74).

84 In the present matter, the Deputy Chief Magistrate did little more than note the relevance of imposing an appropriate sentence to deter other employers from engaging in "risky behaviour". There was no explanation in her decision as to why general deterrence did not loom large in the present matter.

85 As to specific deterrence, we consider that no effective finding was made. Her Honour held "I don't propose to use the services of a s10 bond as it does not seem to me that the company needs any persuasion to continue to do the right thing". The Deputy Chief Magistrate's failure to have regard to specific deterrence is contrary to well established principle that specific deterrence is a matter "which should normally be given weight of some substance in the sentencing process": Capral Aluminium at [74]. Given the age of many of the respondent's employees (and in the case of Ms Pyart, her weight), we consider that the need for specific deterrence does, in fact, loom large.

86 Two additional matters warrant comment. Although recognising the seriousness of the injuries sustained by Ms Pyart, the Deputy Chief Magistrate failed to have regard to the proper relationship between the seriousness of injuries suffered and the gravity of the offence. Whilst not determinative of the seriousness of an offence or the level of penalty, an offence which results in serious injury (or has the potential to result in serious injury) manifests the degree of seriousness of the relevant detriment to safety. (See Capral Aluminium, WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383; Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39.

87 Further, we agree with the appellant that there was no discussion in her Honour's decision as to the existence of simple and straightforward steps which could have been taken to eliminate the risk to safety. There were simple measures available which would have eliminated, or minimised, the risk of falling from a chair, some of which have been implemented since the accident. Those measures included express instruction regarding the use of stepladders, training in relation to difficult or unfamiliar tasks, and closer supervision. Again, an offence will be considered more serious where there is an obvious and foreseeable risk to safety, against which appropriate measures were not taken even though simple measures were available and feasible: Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal and Coke.

88 That the Deputy Chief Magistrate wrongly appreciated the objective seriousness of the offence is sufficient to warrant granting the appeal. That question is put beyond doubt, in our view, by the fact that, in addition to under-rating the objective elements of the offence, it would appear her Honour placed excessive weight on subjective factors. The Deputy Chief Magistrate's decision to exercise her discretion under s10 of the Crimes (Sentencing Procedure) Act was made "taking into account the facts and circumstances of [the] matter and the circumstances of the company". The circumstances which her Honour described in her decision were those going to the respondent's work practices and health and safety record, that is, the subjective elements of the matter.

89 We agree with the Deputy Chief Magistrate that, on the face of the evidence before us, the respondent does indeed appear to have a good health and safety record. The unchallenged evidence of Dr Denis Boulais demonstrated that: (1) during his employment with the respondent, Mr Brian Counsell, the site supervisor, had attended a variety of training courses relating to health and safety in the workplace; (2) The respondent has a health and safety policy which is reviewed on a regular basis;

(3) Ms Pyart acknowledged on her Employee Application Form that she had "read and fully understood" the respondent's Occupational Health, Safety and Welfare Policy, which expressly stated that "whenever possible, use a ladder for a high reaching job, never use a substitute such as a chair, box or table". (4) The respondent employs over 5000 employees, and performs cleaning work at more than 900 government school sites, all of which have been assessed for risks to health and safety. Until the present matter, the respondent has had no prior prosecutions for health or safety breaches; and (5) since the accident, employees have been specifically instructed to use the ladders available to them for the purpose of getting on and off any work platform, and for otherwise reaching high areas that require cleaning.

90 Those matters are relevant subjective considerations which, subject to our comments above, operate to mitigate the objective seriousness of the offence. However, we agree with the appellant that it is clear from the ultimate conclusions reached that the Deputy Chief Magistrate gave excessive weight to those considerations. If primacy is given to the objective seriousness of the offence, then notwithstanding the subjective elements, the matter could not be considered to be so rare or exceptional that an order under s10 of the Crimes (Sentencing Procedure) Act would be warranted.

91 These considerations warrant the appeal being upheld and the order made by the Deputy Chief Magistrate pursuant to s10 of the Crimes (Sentencing Procedure) Act being set aside. We do not consider the present matter to be one where we should exercise our overriding discretion to not intervene, particularly having regard to the objective seriousness of the offence (see R v Allpass at 566). Further, given our findings that the Deputy Chief Magistrate made errors of law, it is not appropriate that those errors remain on the record. Her Honour did not apply the principles laid down in Profab Industries and WorkCover (Inspector Buggy) v Weathertex.

92 We propose, therefore, to re-sentence the respondent. In doing so, we note the respondent's submission that we should have regard to the respondent's early plea of guilty; its co-operation with the investigation; its good safety record; its proactive approach to safety; and the measures taken to improve safety since the accident involving Ms Pyart. We have given primary emphasis to the objective features which we have earlier discussed in this judgment.

93 As to penalty, Mr Agius contended that the offence should be considered a mid-range offence, and that it is an appropriate case for the imposition of a monetary penalty. In support of that contention Mr Agius highlighted the following facts: the unsafe system of work used by Ms Pyart was actually propounded by her supervisor; Ms Pyart was exposed to risk as a result of that unsafe system of work, not only at the time of the accident, but for a period of 3 days whilst the cleaning work was being performed; there was prior knowledge (at least on the part of the supervisor) that an unsafe system of work was being utilised; and given that prior knowledge and the length of time that the cleaning work was being undertaken, the respondent had ample opportunity to take steps to eliminate the risk, but did not do so. We agree with these submissions. When those factors are considered in the light of our earlier analysis of the objective features of the offence (and taking into account our discussion of the subjective factors), it is appropriate that we impose a monetary penalty in re-sentencing on appeal.

94 We are conscious of the potential for double jeopardy. In Dowling v Bournelis & Bedrock Constructions (NSW) Pty Ltd [2003] NSWIRComm 88, a Full Bench discussed the nature of the issue of double jeopardy, citing Pearce v The Queen (1988) 194 CLR 610, before considering the impact of that issue in appeals from sentencing decisions in this jurisdiction:

Wright J, President referred to the principle of double jeopardy in the context of Crown appeals against sentence in WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor (1999) 92 IR 392. Although his Honour was in dissent as to the ultimate outcome, there was no issue as to his Honour's observations concerning the principle of double jeopardy. His Honour adopted the approach of the Court of Criminal Appeal in R v Allpass (1993) 72 A Crim R 561 where the Court specifically referred to the over-riding discretion of an appellate court "which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process …". His Honour specifically referred to the significance of the circumstance of double jeopardy generated by a Crown appeal against sentence and the exercise of discretion which thus arose. This approach was also taken by the other members of the Court, Hungerford and Peterson JJ.

95 Having regard to the potential double jeopardy, it is appropriate that we adopt a conservative approach to the review of the penalty imposed on the respondent. In that regard, we note the findings of the Full Bench in WorkCover (Inspector Buggy) v Weathertex (at [53]):

Clearly, however, an appellate court in a Crown appeal has an obligation to act with caution or restraint, given the principle of double jeopardy and the Court's overriding discretion not to intervene: see Kirby J's observations in Dinsdale v The Queen (2000) 202 CLR 321 at 341 - 342 and in Wong v R (2001) 185 ALR 233 at 263; see also R v Allpass at 562 - 563, the joint judgment of Brennan , Deane , Dawson and Gaudron JJ in Everett v The Queen (1994) 181 CLR 295 at 299 and Batty v Graincorp .

96 We note further the existing authority which dictates that, in a prosecution appeal from a sentencing decision, any re-examination of penalty must be approached with caution: See Inspector Ian Batty v Graincorp Operations Limited [2002] NSWIRComm 49 at [4]; WorkCover (Inspector Buggy) v Weathertex at [46]. (See also WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 at [16] and [17]).

97 Mr Agius submitted that the issue of double jeopardy should be given little weight in the present matter because the respondent was a large corporation with a large number of employees, which faced the prospect of the imposition of a fine for breaches of the Occupational Health and Safety Act rather than a term of imprisonment. The appellant contended that all of the criminal cases dealing with double jeopardy are against the background where the available penalty was a term of imprisonment. In those circumstances, according to the appellant, considerations of double jeopardy should be limited. We reject that submission upon the basis of the authorities earlier referred to by us.

98 Mr Agius further submitted that the respondent invited the Deputy Chief Magistrate into error by making an application for an order under s10 of the Crimes (Sentencing Procedure) Act, and should therefore bear the risks associated with an appeal, including the risks of double jeopardy and costs. This issue may be appropriate for consideration in another appeal brought by a prosecutor. However, in this matter, the appellant contributed, in our view, to leading the Deputy Chief Magistrate into error by failing to place sufficient emphasis upon critical factors going to the objective seriousness of the offence.

99 The maximum penalty for the offence prescribed by s12 of the Occupational Health and Safety Act was $550,000, which was limited by the statutory cap on penalty to $55,000 by virtue of the prosecution being brought before a Magistrate (WorkCover Authority (Inspector Mansell) v Chen at [29]). We have taken into account the maximum penalty for the offence, the objective seriousness of the offence, the need for deterrence (both general and specific), the element of double jeopardy raised by this appeal, and the matters raised as subjective considerations. We consider that the appropriate penalty that should be imposed on the respondent is $8,000.

100 As to costs, we adopt the same approach as that taken by the Full Bench in Profab Industries (at [47]). Having regard to the considerations raised in paragraph [99] above, we consider that the appropriate order as to costs is to leave the costs order made by her Honour at first instance in place and to make no order as to the costs of the appeal.

101 We make the following orders: (1) Leave to appeal is granted;

(2) The appeal is upheld; (3) The orders made by Deputy Chief Magistrate Syme of 4 December 2003 in Plaint No 20273954/03/2 (other than the order as to costs) are set aside;

(4) In lieu thereof, a penalty of $8,000 is imposed on the respondent; and

(5) Each party is to pay its own costs of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259 APPELLANT Inspector Christopher Downie PARTIES : RESPONDENT Menzies Property Services Pty Limited FILE NUMBER: IRC 7438 of 2003 CORAM: Walton J Vice-President; Boland J; Backman J CATCHWORDS : Appeal from decision of magistrate - leave to appeal - guilty plea - dismissal of charge under s10 of Crimes (Sentencing Procedure) Act - appeal from discretionary decision - improper exercise of discretion - errors of law and principle - sentence manifestly inadequate - failure to properly consider objective seriousness of offence - instruction to use unsafe system of work - failure to supervise - failure to provide training - excessive weight given to subjective factors - insufficient weight given to consideration of general and specific deterrence - s10 order rare in occupational health and safety prosecutions - review of sentencing decisions - double jeopardy - leave to appeal granted - appeal upheld - respondent re-sentenced - no order as to costs of appeal Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Abdullah Al-Shennag v Bankstown City Council Civic Services Group (2002) 118 IR 138 Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2001) 112 IR 139 Alcatel Australia Limited v WorkCover Authority (NSW) (Inspector Clyant) (1996) 70 IR 99 Barber v Gundegai Shire Council (2002) 118 IR 193 Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Cobiac v Liddy (1969) 119 CR 257 Commissioner of Taxation v Baffsky (2001) 164 FLR 375 Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd & Anor (2001) 105 IR 348 Department of Mineral Resources NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Dowling v Bournelis & Bedrock Constructions (NSW) Pty Ltd [2003] NSWIRComm 88 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Griffiths v The Queen (1977) 137 CLR 293 House v The King (1936) 55 CLR 499 Inspector Carmody v Power [2002] NSWIRComm 286 Inspector Ian Batty v Graincorp Operations Limited [2002] NSWIRComm 49 Inspector Victor Larobina v Mahmoud Khodr Trading as MK Tiling & Anor [2003] NSWIRComm 473 King v State Bank of New South Wales (2002) 126 IR 407 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Mace v Murray (1955) 92 CLR 370 McCarthy v Sell & Parker Pty Ltd [2000] NSWIRComm 273 Mitchforce v Starkey (2002) 117 IR 122 Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 Pearce v The Queen (1988) 194 CLR 610 R v Allpass (1993) 72 A Crim R 561 CASES CITED : R v Ingrassia (1996) 41 NSWLR 447 R v Lord [2001] NSWCCA 533 (4 December 2001) R v Paris [2001] NSWCCA 83 R v Piccin (No 2) [2001] NSWCCA 323 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 Riley v Australian Grader Hire (2001) 103 IR 143 Schultz v Tamworth City Council (1995) 58 IR 221 Thorneloe v Filipowski (2001) 52 NSWLR 60

35 In relation to the availability of an order under s10 where an offence is not trivial, the appellant relied on the decision of James J (with whom Giles JA agreed) in the Court of Criminal Appeal decision in R v Piccin (No 2) [2001] NSWCCA 323, in which his Honour concluded that once it is determined that an offence is not trivial in nature, the discretion created by s10 of the Crimes (Sentencing Procedure) Act should not be exercised. Whilst acknowledging the contrary decision of the majority of the Court of Criminal Appeal in R v Paris [2001] NSWCCA 83, the appellant submitted that "having regard to the settled jurisprudence concerning the application of s10 in offences under the OHS Act it is submitted that, notwithstanding any relevant extenuating circumstances or subjective features of a defendant, s10 would not ordinarily be applied in respect of offences that are not trivial in nature".

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