Inspector Doug Rolland v Coles Supermarkets Australia Pty Ltd

Relevant Principles 4In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 8(1) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The Court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 5Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 6Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR 104 , correctly, given the consideration in Markarian , recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. Proper regard is to be had to express legislative provisions and to the relevant statutory regime ( Markarian at [27]).

Consideration 7In a consideration as to penalty, the Court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474): ... in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence"... And in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk, In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected... 8These proceedings arise from an incident which occurred on 29 August 2007 at the Manly Peninsula Store of Coles. Two employees, Ms Schultz and Ms Van Stratten, entered an area of the store known as the roof access room, which room was divided into two areas. On one smaller side to the right facing the wall were stairs with a handrail. Across from the stairs to the wall with the entry door was a thick steel guard rail. The trafficable area of the room was made of compressed cement. It was load bearing. The area to the right marked off with the guard rail, however, was plaster board above a suspended plaster board ceiling. In breach of pre-existing signage, there were boxes of old "Shrek" stock stored in baskets upon the plaster board area of the access room. Ms Schultz climbed over the guard rail onto the suspended plaster board ceiling to remove the stock. The ceiling collapsed and she fell down some two and a half metres. 9Coles have admitted to the particulars of the offence, although I will make some comment, a little later, as it is my view some of those particulars are repetitive. 10While the site held both a warning sign and a guard rail over the plaster board area of the roof access room, nonetheless, management had allowed for that area to be used for storage. The risk to safety once goods are stored therein is immediately obvious. The two sales women were required to retrieve the stored stock. 11I accept there is some overlap in the particulars as pleaded. There was not a safe system of work in place (particular (c)); there was a failure to properly instruct its employees (particular (d)) and a failure to properly restrict access to a dangerous roof access area (particular (f)). The other particulars pleaded have more general weight as descriptive of the circumstances of the offence. 12In an assessment of the objective seriousness of the offence, the defendant proposes that as some safety features were in place this was not a most serious incident. Evidence revealed the roof access room was kept locked, there was the guard rail indicating demarcation of the dangerous site and there was a handwritten note on the wall warning "Don't store any stock on the ceiling". Further, a safety alert had been received by the defendant warning each of its stores of the hazards in the use of such roof storage areas. However, it is conceded by the defendant this store had not effectively put into operation any warning system as the meeting to discuss the alert was not held until mid July 2007. 13It is difficult for the defendant to propose it had all reasonable safety features in place when it allowed storage in the area and required that storage to be retrieved. I am of the view the various signs and rails indicated the defendant was well aware of the risk to safety on this part of the site at its Manly store. It failed to warn its employees of the risk that the plaster board was not weight bearing and failed to ensure the employees had no access to the known danger. It must be held that there was a foreseeable element to this offence. It was an obvious risk well-known to the defendant. Given there was a foreseeable element, that makes the breach more serious. 14The availability of simple and straightforward steps to remedy the defects in the system is also relevant to the consideration of the objective seriousness of the offence (WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Ltd , unreported decision of Schmidt J dated 25 February 1994). There were known steps that could have been taken which either singly or in combination would have eliminated or reduced the risk. These steps have now been implemented by the defendant. Such activity after the incident is indicative of the fact that each amendment to the system of work was readily available and practicable. 15The principles of general and specific deterrence are also relevant in consideration. The approach to be taken has been considered in some detail in Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [71] to [77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example , Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] ) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 16As to specific deterrence, Coles submits prior to the incident it was a safety conscious employer. Further, since the incident, it has initiated a number of measures to minimise and eliminate the risk of re-occurrence. It has replaced the suspended plaster board ceiling and installed a plywood barrier behind the guard rail to effectively lock off access to the particular area of the roof access room that is not weight bearing. The usage of the Manly store premises was reviewed. A further safety alert was issued. That triggered a need for a national audit in all stores of all roof access areas, plant and equipment used in such areas. Controls have been put in place if roof areas are used for storage to ensure there is no risk of falls from heights. This issue is further addressed in the design of all new Coles stores. Nonetheless, there must be a small element of specific deterrence in penalty. 17As to general deterrence, the defendant accepts that the Court will take into account an element of general deterrence in determining penalty. Once more the Court is obliged to remind a major corporation who, in respect of its occupational, health and safety obligations, has work safe procedures in place, to nonetheless ensure "on the job" the safe performance of all tasks and that essential safety procedures in place must be adhered to. This incident once again serves as a reminder of the serious consequences, when risks to safety are recognised and appropriate safe working procedures are put in place to meet that risk, when those procedures are ignored the recognised risk can become a reality. While management knew the identified area was not safe, there was no proper information or training given to staff to warn of the risk to safety of the storage area. 18The Court finds this was a serious offence. 19Section 3A of the Crimes (Sentencing Procedure) Act 1999 contains a comprehensive statement of the purposes of sentencing. It provides: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 20Section 21A of the Crimes (Sentencing Procedure) Act sets out the aggravating and mitigating factors that a Court takes into account when determining a sentence. As well as the factors identified in sub-section 2 (aggravating factors) and 3 (mitigating factors), the Court is to take into account any other objective or subjective factors that affect the relative seriousness of the offence. 21The defendant relies firstly upon its commitment to workplace safety as defined in its preexisting systems of work and redefined in its amended systems. They have been placed before me and are thorough, exhaustive and to be commended. The system includes health and safety instruction such as inductions, specific department training including refresher training, the implementation of site hazard warnings, an inspection check list and safety committee meetings at both a national and at a store level. 22Further, the evidence reveals there was a first aid procedure in operation which was used after the incident to provide immediate and effective assistance to Ms Schultz. I accept Coles have provided Ms Schultz with appropriate care and have expressed the appropriate remorse. Further, I accept it responded to the incident with extreme concern and formally expressed that concern and contrition to the Court. 23The defendant submitted this was an early plea of guilty and that would attract the appropriate discount ( R v Thomson; R v Houlton ). The matter has some history. An Amended Application for Order was filed before the Court on 7 October 2011 by the prosecutor. There was a prior document filed by WorkCover on 24 August 2009. Coles raised objection to that first Application for Order. Coles then opposed the application to amend and asserted, by way of Notice of Motion, that the original Application for Order failed to identify the risk, failed to identify the acts or omissions constituting each defence and failed to identify the measures which it should have taken in the circumstances to avoid the risk. The prosector then sought to amend but defended the first Application. This Court in a prior judgment of 22 September 2011 ( Inspector Rolland v Coles Supermarkets Australia Pty Ltd [2011] NSWIRComm 126) dismissed the Notice of Motion and allowed the Amended Application for Order to go ahead. The Court held, however, the original Application for Order contained all the essential legal elements necessary for a charge and was therefore a valid charge. In such a circumstance an early plea was not entered to the Amended Application for Order. Nonetheless, once the Court made its determination, the defendant did respect that decision and acknowledged it by entering a plea of guilty to the Amended Application for Order. In R v Thomson; R v Houlton the Court of Criminal Appeal noted a defendant is entitled to a discount on penalty flowing from the utilitarian benefit of the plea in accordance with the principles as outlined in the guideline judgment. The defendant shall have a 10 percent discount for its plea in the circumstances. 24I accept that the defendant co-operated with the WorkCover Authority and assisted it. Nonetheless, the defendant does not come to the Court as a first offender. It has faced some eight prosecutions over the years for breaches in various forms of its obligations under the Occupational Health and Safety Act . The last offence, as recorded, was heard before this Court. The offence also attracted a penalty of $825,000 because of it being not a first offence. The same is applicable to this charge. 25The defendant submits that care must be taken in considering the past convictions and it is wrong to double punish an offender. Reliance was placed by the prosecutor upon the view expressed in Veen v The Queen (No 2) (1988) 164 CLR 465 at [477] where it was stated "retribution, deterrence and protection of society may indicate a more severe sentence is warranted". 26I am told Ms Schultz was supported by the corporation, as was her family, in her recovery stage and she has now returned to work on an injury management plan. It was said from the Bar Table she has received promotion. In accordance with s 21A(3), I accept the offender has shown remorse, has made appropriate reparation through its assistance to Ms Schultz and through the thorough adjustment it has made to its workplace practices and the use of its roof spaces. It has pleaded guilty. It has assisted the WorkCover Authority. 27The defendant makes a significant contribution to employment in New South Wales and nationally. The defendant commenced operating in Victoria and currently employs 23,000 people in 238 stores across New South Wales. It has operated the Manly store since 2001. I accept Coles is a good community citizen, as demonstrated by its financial and nonfinancial contributions to charity and community work, as has been set out before me in affidavit form. I give positive consideration to the corporate reputation and personal reputation of its directors and accept that has probative force which would allow a measure of mitigation ( Inspector Olive v Transfield Pty Ltd [2001] NSWIRComm 295 (at 323)). 28I take into account the above circumstances in mitigation of penalty and the subjective matters put before me. Nonetheless, this was a serious offence where a known risk became reality. The authorities persuade penalty must reflect the seriousness of the offence.

ORDERS

1. I find the defendant guilty.
2. The defendant is fined in the sum of $170,000 with a moiety to the WorkCover Authority of New South Wales.
3. The defendant shall pay the prosecutor's costs. As to the quantification of costs, I will hear the parties on this issue in the event no agreement is reached. Leave to relist at short notice. 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. Decision last updated: 02 February 2012