Inspector Fraser v Karabelas [2011] NSWIRComm 56 | Case summary

Inspector Fraser v Karabelas [2011] NSWIRComm 56 | Case summary | Zoe

Judgment 1Inspector Colin Fraser has appealed against penalties imposed by Backman J upon Mr Peter Karabelas in three matters arising under s 8(1) by operation of s 26(1) of the Occupational Health and Safety Act 2000 (see Inspector Colin Fraser v Formcom Holdings Pty Ltd (ACN 118 494 509) and Another [2010] NSWIRComm 114). The appeals are made pursuant to s 5D of the Criminal Appeal Act 1912 and s 196 of the Industrial Relations Act 1996. 2The three prosecutions concerned separate incidents that took place at a construction site in Wollongong in 2006. Proceedings were taken against Formcom Holdings Pty Ltd ("Formcom") pursuant to s 8(1) and Mr Karabelas as the sole director of Formcom and its managing director responsible for the overall management of Formcom pursuant to s 8(1) and s 26 (1). Formcom supplied labour, material, plant and equipment for the provision of formwork and associated works for a construction project where the principal contractor was Apex Building Services Pty Ltd ("Apex"). Her Honour described Mr Karabelas as a qualified and experienced formwork and falsework carpenter. He had signed the contract with Apex on behalf of Formcom. Formcon employed labourers and carpenters to construct formwork at the site including Steve Saad, a labourer, Joseph Karam, a labourer and Ryan Stewart, a formwork carpenter. Formcom also employed Mr Tom Karabelas, brother of Mr Peter Karabelas, as site supervisor. The labourers and the formwork carpenter reported to Mr Tom Karabelas. 3Formcom and Mr Karabelas each entered pleas of guilty to the charges brought against them. In relation to the matters concerning Formcom, the company was initially found to be liable to a penalty of $100,000 for the first offence, $120,000 for the second offence and $150,000 in relation to the third offence. Applying the principle of totality, her Honour concluded that the total fine for the three offences regarding Formcon's conduct should be $123,500 and the fine was divided such that for the first offence an ultimate penalty of $41,600 was imposed, for the second offence a penalty of $41,700 was imposed and the same penalty was imposed for the third offence. 4In relation to Mr Karabelas, for the first offence, he was initially found to be liable to a penalty of $15,000, $18,000 in relation to the second offence and $22,500 in relation to the third offence. Her Honour concluded that, having regard to the principle of totality, the total criminality of Mr Karabelas was $18,500 in relation to all offences. That amount was divided such that a fine of $6,160 was imposed for the first offence and $6,170 was imposed for the second and third offences. In relation to these offences it was noted by her Honour that Formcon had no prior convictions and faced a maximum penalty of $550,000 for each offence. Mr Karabelas had one prior conviction and faced a maximum penalty of $82,500 for each offence. 5Her Honour appears to have taken a similar approach in relation to each defendant. On appeal the prosecutor informed the Full Bench that, between the sentencing hearing and the delivery of her Honour's judgment on penalty, Formcon was deregistered and therefore there was no appeal against that part of her Honour's decision: the only appeal pursued was in relation to the three offences to which Mr Karabelas had pleaded guilty. 6While accepting that the primary penalties found by her Honour (of $15,000, $18,000 and $22,500) were appropriate, the prosecutor on appeal submitted that the final penalties imposed were manifestly inadequate in all the circumstances and that her Honour had erred in the application of the principle of totality. The error was said to be particularly demonstrated by the fact that the aggregate fine ordered to be paid by the respondent for the three offences was less than the individual fine deemed appropriate for the third offence alone. It was also submitted that her Honour's application of the totality principle had the effect of providing Mr Karabelas with a discount for multiple offending, contrary to sentencing principle. Her Honour's approach failed to impose a sentence properly reflecting the objective seriousness of each of the three offences. Further, her Honour had failed to provide any or adequate reasons in respect of the application of the principle of totality. It was also submitted that, in finding the second and third offence a more serious offence than the preceding offence, as a matter of logic as well as the proper application of the totality principle, her Honour could not have imposed a penalty in total less than $22,500 - the imposition of a total penalty of $18,500, to be divided between the three offences, demonstrated the error and inadequacy of her Honour's penalties in each matter. 7Against this background it is appropriate to consider the context in which these charges arose. Eighteen months before the first of three incidents occurred leading to the charges under present consideration Mr Karabelas, as the sole director of another company ("PTV"), was found to be in breach of s 8(1) by operation of s 26(1) of the Act when an employee of that company fell 2.7 metres from the unguarded edge of a formwork deck onto a concrete floor and sustained serious injuries, including a fractured skull and three fractured ribs. No handrails or fall protection measures were in place at the time of the incident (see Inspector Sherras v Interland Constructions Pty Ltd & ors [2008] NSWIRComm 65). The statement of facts in that matter concerning Mr Karabelas contained the following concessions:

Mr Peter Karabelas seldom attended the site and kept in contact with the site by telephone calls to his foreman, Vic Karabelas. Mr Peter Karabelas had attended the site once prior to the incident;
PTV did not enforce compliance with the SWMS relevant to the premises; 8In his evidence in those proceedings Mr Karabelas stated that he had already formed Formcom as the major vehicle to conduct his work providing formwork and steelwork to the construction industry. He stated that he had learned a great deal from the incident and in particular that it was necessary for Formcom to take responsibility for all aspects of work safety and not to rely on others. Improvements to safety had been made to ensure that this type of incident did not occur again. The Court found that PTV had a defective system of work which failed to provide safeguards to prevent falls from a formwork platform. It had removed the handrail and failed to implement any alternative safety system (see [47]). The Court imposed a fine of $9,000 for this offence. 9In relation to the matters under appeal, the first charge concerned an incident that occurred on 19 July 2006. On this occasion Mr Saad was constructing a new 1.2 metre wide formwork deck and to do so was working at a height of approximately 7 metres above the concrete floor of the premises. A temporary catch platform had been constructed below the new formwork deck being constructed by Mr Saad but the catch platform was deficient in a number of respects. The catch platform was not at an appropriate height to act as an adequate catch platform for employees working on the new formwork deck including Mr Saad and was approximately 3.27 metres below the formwork deck where Mr Saad was working. The temporary catch platform also had a number of penetrations including a penetration immediately below where Mr Saad was working (as well as others) at the western and southern edges. Mr Saad was not using any other fall protection system such as a harness and safety line system. 10At the time that Mr Saad was performing this work, Mr Tom Karabelas, as the company site supervisor, was at the premises and was located at a point where he was able to observe the area where Mr Saad was working. Mr Tom Karabelas did not take any steps to warn Mr Saad about the risk of falling and did not require him to wear a harness and safety line system. While performing this task, Mr Saad lost his balance and fell off the partially constructed formwork deck. His fall was not stopped by the temporary catch platform as he fell directly through a penetration in the temporary catch platform and as a result, fell a distance of 3.27 metres and then a further 4.04 metres to the concrete floor below. As he fell, Mr Saad's head came into contact with components of the scaffolding adjacent to the new formwork deck of the temporary catch platform. The concrete floor onto which Mr Saad fell had a number of vertical steel concrete reinforcements starter bars protruding from it and Mr Saad landed adjacent to these bars. Mr Saad suffered a severe head injury including an extensive skull fracture with associated extradural and subdural haemorrhaging as well as multiple contusions. He was taken to Wollongong hospital and underwent surgery (a trans-temporal craniotomy for evacuation of extradural and subdural haemorrhage). Mr Saad remained in hospital for nineteen days and was off work for more than six months. 11In relation to this incident her Honour gave credit for the existence of some systems of work safety rules adopted by Mr Karabelas and Formcom but stated that they were, nevertheless, "seriously deficient." The Safe Work Method Statement ("SWMS") was inadequate in that it failed to require temporary catch platforms and handrails to be erected where employees were required to work at heights of more than 1.8 metres and in particular, that such temporary catch work platforms were to be erected not more than 1.8 metres below the formwork deck and be free of penetrations. While using experienced and trained formworkers when performing work on leading edges and while there was exterior scaffolding on the premises, Formcom failed to ensure that employees working at heights of less than 2 metres from the leading edge had adequate fall protection, including temporary catch platforms which were not more than 1.8 metres below the formwork deck. 12Importantly, as part of the background to this incident, Formcom had been put on notice that its system of work, involving work performed at heights greater than 1.8 metres from the ground, was unsafe. WorkCover Inspector Fraser had attended the site on a number of occasions prior to the first incident and on 10 July 2006 had observed Formcom's employees and sub-contractors and in particular Mr Saad, working on a formwork catch deck with no guardrail. The Inspector noted that there were numerous gaps in the deck and there was no safe access to and egress from the area of the deck on which they were working. These safety issues were raised by Inspector Fraser with the site supervisor for the company, Mr Tom Karabelas. Mr Tom Karabelas then informed Mr Peter Karabelas about the matters raised by the Inspector. 13On 11 July 2006 Inspector Fraser observed Mr Saad undertaking work involving the extension of a new formwork deck at the northwest corner of the premises. At that location the deck was 3.35 metres above the ground floor below but there were no handrails, no temporary catch platform and no ladder to the deck upon which Mr Saad was working. Mr Saad was not wearing a safety harness and there was no other fall protection provided to him. The Inspector spoke to the site supervisor, Mr Tom Karabelas, and notified him of the unsafe system of work he had observed being performed by Mr Saad. On the same day the Inspector issued a prohibition notice to the principal contractor, Apex, prohibiting them from "allowing persons to be at risk of falling off or through formwork decks." Mr Tom Karabelas was made aware of the terms of the prohibition notice and he subsequently informed Mr Peter Karabelas about these matters. 14Despite these two warnings just days prior to the first incident, Formcom failed to ensure that a safe system of work operated in practice in relation to the process of construction of a formwork deck requiring work at heights above 1.8 metres. While experienced formworkers were employed on leading edges and there was exterior scaffolding, Formcom failed to ensure that employees working at heights less than two metres from the leading edge had adequate fall protection in place, including temporary catch platforms which were not more than 1.8 metres below the formwork deck. Formcom also failed to ensure that any temporary catch platform provided in front of the leading edge of a formwork deck was completely free from penetrations. Formcom also failed to provide adequate information, instruction, training and supervision to its employees in relation to the process of construction of a formwork deck requiring work at a height of approximately 7.3 metres at the premises. In particular, Formcom had failed to inform its employees that the WorkCover Code of Practice for formwork required temporary catch platforms to be no more than 1.8 metres below a leading edge. Mr Peter Karabelas had failed to ensure that the risks of falls from heights was managed appropriately prior to and at the date of the incident on 19 July 2006. These matters were all acknowledged in the Agreed Statement of Facts. 15In relation to this first incident, her Honour noted that there were a number of objective factors that rendered the offences "very serious." Her Honour concluded that the risk to Mr Saad's safety was "both obvious and foreseeable." The potential consequences of the breach were "gravely serious" with the potential for a fatal injury. There were simple and readily available measures that could have averted the risk such as the erection of catch scaffolds and handrails at appropriate heights below the workers. Although Mr Tom Karabelas was working where he could observe Mr Saad at work, he did not take any steps to prevent Mr Saad from working above an open penetration without any adequate fall protection. Her Honour referred to the fact that Inspector Fraser had raised a number of safety issues with Formcom on 10 July and 11 July 2006 as well as issuing a prohibition notice to the principal contractor. 16The second incident occurred on 20 July 2006, just one day after the first incident. On that day, Mr Karam was constructing formwork for a new formwork deck. He was working on and next to the leading edge of the deck but there was no scaffolding or handrail at the leading edge of that deck. There was an incomplete temporary catch platform below the new formwork deck and it was placed approximately 3.6 metres below the formwork deck. There was no other form of fall protection system such as a safety line system. While performing this work Mr Karam was not wearing a harness attached to a safety line system. Mr Tom Karabelas, the supervisor, had given Mr Karam permission to perform this work on the formwork deck. In performing this work, Mr Karam was at risk of serious injury from a fall of approximately 3.6 metres from the formwork deck. 17Her Honour found that Mr Karam was placed at obvious and foreseeable risk to his safety in circumstances "similar to that prevailing at the time of Mr Saad's accident." Both Mr Saad and Mr Karam had been constructing formwork where there was no handrail and an incomplete temporary catch platform located approximately 3.6 metres below the formwork. In spite of the incident occurring on the previous day, Mr Tom Karabelas had given permission to Mr Karam to work on the formwork deck in circumstances that her Honour found to be "patently unsafe." Her Honour noted these matters rendered the offence "very serious indeed." 18At the time of the second incident the defendant had actual knowledge of the risk to safety arising from inadequate catch scaffolding and there were simple and straightforward measures that would have obviated the risk such as erecting adequate catch platforms underneath where employees were working at height. Although Mr Karam was not injured her Honour noted that fact did nothing to reduce the objective seriousness of the offence. The likely or probable consequence of the breach could well have been "very serious injuries." 19The need for the erection of temporary catch scaffolding at the appropriate height below Mr Karam should have been "abundantly clear" after Mr Saad's accident. Her Honour noted that the deficiencies in the system on this day were the same as occurred on the day of Mr Saad's accident and her Honour adopted the observations and findings she had made in relation to the first incident. The deficiencies in the systems on 20 July 2006 had to be assessed by reference to the circumstances of the first incident involving Mr Saad: despite the earlier incident, no steps were taken to ensure the temporary catch platforms were erected at a height of no more than 1.8 metres below the formwork deck. 20The third incident arose on 4 August 2006. On this day Mr Stewart was constructing a formwork column while standing on a work platform supported by formwork frames. This work platform was at a height of approximately four metres. There was no adequate form of fall protection provided in relation to this work and the work platform did not have handrails on its edge. There was no temporary catch platform immediately below the edge of the work platform. Mr Stewart was not wearing a harness or other fall protection equipment. There was no ladder access to the work platform. At the time Mr Stewart was performing this work, Mr Tom Karabelas was in a position to observe the work. On this date the temporary catch platform that had previously been in place at the southern end of premises, at a height of approximately four metres, had been removed. The temporary catch platform had been removed to provide materials to extend the formwork deck on other parts of the premises. Mr Steward was therefore placed at risk of serious injury from a fall of approximately four metres from a work platform to the concrete floor below. 21In dealing with objective factors, her Honour noted that the system of work in place prior to the offence and the various serious deficiencies in those systems were the "same systems" in operation at the time of the first and second incidents. Her Honour adopted her observations and findings in relation to those incidents in dealing with the third incident. Her Honour noted that, on the day after the second incident, namely, 21 July 2006, Inspector Fraser attended the site. He issued Formcom with two improvement notices addressing unsafe access to and egress from formwork decks and the risk of working at heights while working on formwork decks, namely, decks that did not have temporary catch platforms of a height of no more than 1.8 metres below the formwork decks. Her Honour expressed the conclusion that the deficiencies in Formcom's safety systems were "even more pronounced at the time of the third incident." 22Notwithstanding the two earlier Formcom incidents, Formcom and Mr Peter Karabalas had failed: (i) to ensure that a safe system of work operated in practice in constructing formwork columns when employees were required to work at heights above 1.8 metres; (ii) to ensure employees working at heights above 1.8 metres on work platforms had adequate fall protection, including temporary catch platforms no more than 1.8 metres below the work platform; (iii) to ensure safe access to and egress from the temporary work platforms in that there was a failure to provide access via a ladder or scaffolding; (iv) to provide adequate information, instruction, training and supervision to its employees in relation to constructing formwork columns that required work at a height of approximately four metres at the premises; (v) to inform employees that the Code of Practice for formwork required temporary catch platforms to be no more than 1.8 metres below a work platform. 23Having identified these issues, her Honour then stated at [27]: These matters demonstrate that the defendants, for the third time within a relatively short period of time, and in full knowledge of the risk of falling from heights, again exposed an employee to the same risk to safety. The risk to Mr Stewart on 4 August 2006 must have been, by that time, overwhelmingly obvious to the defendants, yet they failed to act effectively to obviate the risk. ... This incident demonstrates an even more serious deficiency in Formcom's systems of work in that in this particular case there was no temporary catch platform at all below where Mr Stewart was working. This was so, notwithstanding Formcom's efforts to amend its safe work method statement (SWMS) in late July 1996 to insert a requirement that catch platforms and handrails were to be erected in places where employees were working at heights in excess of 1.8 metres. 24In dealing with all offences, her Honour concluded that general deterrence assumed particular significance in these matters because of Formcom's persistent course of conduct in exposing employees to the risk of falling from heights. Given the interventions by the Inspector and the serious injury suffered by Mr Saad, these failures called for a component of the penalties that sufficiently addressed the necessity for employers to take appropriate steps to protect their employees from risks from falling from heights because of a failure "to ensure basic protective measures" were taken. 25Specific deterrence was also found to assume "particular significance." Her Honour pointed out that the amendment to the SWMS by requiring catch platforms and handrails to be erected where employees were working at heights in excess of 1.8 metres was of "no practical utility" because it was not implemented by 4 August 2006 in relation to the incident involving Mr Stewart. Her Honour then observed: "So long as both defendants continued to disregard the health and safety of their workers, there must exist the possibility at least of further incidents where Formcom's employees may be exposed to risk to their safety while working at sites in which Formcom is engaged to undertake work." Mr Peter Karabelas continued to work in the construction industry and the Court could not be satisfied that the risk of "re-offending by either defendant is low." In Mr Peter Karabelas' case, the Court "could be even less satisfied." Her Honour noted that less than 18 months prior to the first incident involving Mr Saad, Mr Karabelas had been guilty of a breach of s 8(1) with "similar characteristics to the present offences." 26In relation to subjective factors, Mr Karabelas was given a 25 per cent discount for his early pleas and there was acknowledged co-operation with WorkCover during the course of its investigations. Her Honour concluded that Mr Karabelas was at least as culpable as Formcom in relation to the circumstances of the offences. It was in those circumstances that her Honour considered that a fine in the sum of $15,000 for the first incident, a fine of $18,000 in relation to the second incident and a fine of $22,500 in relation to the third incident was appropriate. Her Honour said at [45]: In order to properly reflect the criminality of Mr Karabelas, taking into account the principle of totality, I consider that a total fine for the three offences should be $18,500.

[3]

CONSIDERATION 27It is clear from a reading of her Honour's judgment that she gave consideration to the principle of totality but apart from stating that she took that principle into account, precisely how that principle was applied was not disclosed. Having regard to the breadth of considerations that may legitimately arise in the application of the principle of totality, her Honour's failure to disclose what aspects of the matter she took into account reveals an error that itself may warrant an appeal being upheld. It must be accepted, however, that despite this defect, if the sentence imposed fell within an acceptable range after the totality principle was applied, then it may be appropriate to dismiss the appeal. 28The Full Bench of the Court has recently dealt with the principle of totality and in particular has drawn attention to the flexibility to be allowed to the sentencing Judge. In State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No 2) [2011] NSWIRComm 33, the Full Bench stated: In R v Holder [1983] 3 NSWLR 245, Street CJ described the totality principle at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straight forward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences. As has been said more than once in this Court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order . 454 The application of the principle of totality where the penalty is a fine was considered by Kirby P in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 704: The principle of totality is applicable where the penalty imposed is by way of fine: R v Sgroi ( 1989) 40 A Crim R 197 at 203. However, it may be that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has special operation: see R v Brown (1982) 5 A Crim R 4034 at 407 . 455 In Makarian v R [2005] HCA 25; (2005) 228 CLR 357 at [27] the High Court (Gleeson CJ, Gummow, Hayne and Callinan JJ) stated: [27] Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. 29In Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, the Court was dealing with the issue of double jeopardy and two charges with overlapping elements. In that case, in relation to the same incident, the accused was indicted for having maliciously inflicted grievous bodily harm with intent to do the victim grievous bodily harm contrary to s 33 of the Crimes Act 1900 and was also charged with having broken into and entered the same victim's dwelling and then inflicting grievous bodily harm contrary to s 110 of the Crimes Act . Dealing with the overlap of the two charges the Court determined that, to the extent to which the two offences contained common elements, it would be wrong to punish the offender twice for the commission of elements that were common. At [40] McHugh, Hayne and Callinan JJ stated: To the extent to which two offences of which an offender stands convicted contained common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlay would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts. 30That passage has to be understood in the context of the one event leading to two criminal charges being laid where the infliction of grievous bodily harm was a common element. In prosecutions brought under Occupational Health and Safety legislation, it is not uncommon to have charges brought in relation to a single accident but where the defendant is charged in identical terms, for example, in relation to a breach of s 8(1) and s 8(2). In prosecutions of that nature, the principle of totality will have a very important role to play to the extent there is either a significant or complete overlap of the elements of the offences. That approach has been applied in relation to the Occupational Health and Safety Act (see the Full Bench judgment in The Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan [2001] NSWIRComm 106; (2001) 105 IR 181. 31In Postiglione v The Queen (1996-1997) 189 CLR 295; [1996] HCA 26 Dawson and Gaudron JJ at [304] cited Thomas, Principles of Sentencing, 2nd ed (1979) at 57-58 in recognition of a wider operation of the totality principle in that an offender should not be subjected to "a crushing sentence." 32In a separate judgment in Postiglione , McHugh J, at p 307 stated: The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved ( Mill v The Queen (1988) 166 CLR 59 at 63). In Kelly v R (1992) 33 FCR 536 at 541, O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi ..: There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect. The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged (R v Holder (1983) 3 NSWLR 245 at 260. Where necessary, the court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. 33In a further separate judgment in Postiglione , Kirby J at 340 spoke of the totality principle having a dual aspect, namely, to allow a review of the aggregate sentence and consider whether the aggregate sentence is "just and appropriate" and does not exceed the overall culpability of the offender and also to ensure that the aggregate sentence is not substantially above the normal level of a sentence for the most serious of the individual offences involved or if the effect is to impose on the offender a crushing sentence not in keeping with his record and prospects. 34The flexibility of the principle of totality was highlighted in the judgments of the Court of Criminal Appeal in R v Todd (1992) 2 NSWLR 517. In that case, Street CJ at 519-520 commented that it would be both relevant and material to pay regard to the totality of the imprisonment being visited on the appellant in consequence of the totality of his criminality over a period of eight days of committing offences of a similar character. Moffitt P at 521 stated: The present offence is not 'closely rated in time' to the Western Australian matter. However, the principle of totality must always inform the sentencing process when a prisoner comes to be sentenced at a time when he is already serving another sentence. When cumulative sentences are to be imposed, the appropriateness of each sentence has to be assessed by having regard to the ultimate aggregate sentence that results from that adoption of that cause of action. The totality of the sentence imposed on the offender must bear a proper relationship to the overall criminality involved in the various offences being dealt with. ... 35In her sentencing remarks her Honour made reference to the fact that Mr Karabelas' prior offence bore similar characteristics to the three offences being considered by her Honour. Because of the previous offence, Mr Karabelas faced maximum fines of $82,500 in relation to each of the three matters. We would agree with her Honour's remarks but would note that the three offences committed on the same site were such that, having regard to the surrounding circumstances identified earlier, the first offence was an aggravated offence in view of the two warnings given by Inspector Fraser just days before Mr Saad's serious fall. The second offence was an aggravated offence because, only a day before, the risk of falling from height was dramatically demonstrated to Mr Karabelas and he was therefore aware of the need to have fall protection arrangements, including a catch platform set at the appropriate height. The third incident was also an aggravated offence because of the previous two incidents that had occurred so recently and where Formcom still ignored the same type of safety measure to be taken and indeed, in this case, had removed the catch platform. These offences therefore demonstrated an attitude of deliberate defiance of the safety laws and a conscious refusal to comply with them. The result is that these offences were very serious indeed. 36The prosecutor submitted that the manifest inadequacy of the ultimate penalty, after the application of the totality principle, was demonstrated by the fact that the most serious incident (being the last incident) warranted a penalty of $22,500. It was submitted that, as a matter of logic and principle, those circumstances must have resulted in a total fine no less than $22,500. In the purported application of the totality principle, however, her Honour had imposed a fine of $18,500 to reflect the total criminality of the conduct and had divided that sum between the three offences. This result indicated that her Honour had, in effect, impermissibly provided a discount for multiple offences. One difficulty, however, with this submission is that it suggests a mathematical approach, one that had been consistently rejected by the courts (see Kirby J in Postiglione at 340 and per Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at [74]); [2001] HCA 64. This submission for the prosecutor on appeal is too broad to adopt as a general proposition: the broad considerations encompassed by the principle of totality requiring, amongst other matters, consideration being given to common elements (where they exist), the appropriateness of the overall penalty and to avoid a crushing penalty, has been acknowledged as being capable of resulting in a penalty in total that is less than what might normally be regarded as appropriate. 37It may well have been that her Honour was influenced by what she regarded as a high degree of common elements in the three offences leading to the reduced penalties that she nominated. That possibility is, however, mere conjecture. A consideration of the three offences as described earlier shows that, on different days, the commission of three separate offences in relation to different employees arising from the same type of unsafe conduct by Mr Karabelas. This is not a case where it can be said that Mr Karabelas should not be penalised twice for the common elements as in Pearce but rather that the same type of criminality occurring over a short period of time in relation to the same work site might call for the broader application of the totality principle. 38The Court is satisfied that this approach is appropriate and proper in the case of the three offences committed by Mr Karabelas and that, accepting the primary penalties proposed by her Honour, there was, nevertheless, a manifest inadequacy resulting from the selection of $18,500 as representing the total criminality of these offences. In reaching this conclusion, the Court is aware that the principle of double jeopardy that had previously applied to Crown appeals has been modified by s 68A of the Crimes (Appeal and Review) Act 2001 and is also aware of the consideration given to that provision by the Court of Criminal Appeal in R v JW (2010) 199 A Crim R 486; [2010] NSWCCA 49;. The legislation and the approach of the Court of Criminal Appeal in R v JW has guided the approach of the Court in this matter in relation to the principle of double jeopardy. 39In coming to the conclusion that the penalties imposed on Mr Karabelas were manifestly inadequate, the Court observes that it is something of a rarity to find repeat offences of almost exactly the same nature continuing after a serious accident and reflecting conduct that brought the same person before the Court some 18 months earlier: although repeat offending is not unknown under occupational health and safety legislation, it is frequently the case that there is some form of markedly different conduct that brings the offenders back before the Court. 40The continuing failure of Mr Karabelas, as a working director, to ensure the safety of his workers when working at heights requires the imposition of a penalty that will bring home to him the seriousness of his conduct. Her Honour was correct to describe the first incident as "very serious" where the risk was obvious and foreseeable and where the consequences were "gravely serious." Her Honour was also entitled to note that the second incident had similar deficiencies to those demonstrated in the first incident and were "very serious indeed." The need for the catch scaffold by this time was "abundantly clear" yet nothing had been done by Mr Karabelas to address the risk. Her Honour described the third incident as being one where the safety system deficiencies were "even more pronounced than previously." Her Honour was correct to find that there was a failure to ensure basic protective measures were taken and that all of these matters had particular significance for the issue of specific deterrence. The fines imposed should have more adequately reflected her Honour's observation that the disregard of the health and safety of the workers exhibited by Mr Karabelas meant that there was a real possibility that he would re-offend and that the chances of not re-offending were "low." 41Apart from the significance of the first offence again involving a disregard for the safety of employees working at height, these three offences demonstrate a continued refusal to abide by safety laws in this respect. There was a repetition of the same deficiencies over the period from 10 July to 4 August 2006 on what was a large construction site. The catch platform in particular was not set at a proper height or it was not fully available during work at height even after Mr Saad had been so seriously injured. That this occurred after the Inspector had twice warned Mr Karabelas about the risk to employees working at heights and had issued a prohibition notice is difficult to understand but then one day after the second incident, those deficiencies continued and Formcom was issued with an improvement notice. It is truly astounding that in those circumstances Formcom and Mr Karabelas had not addressed these obvious risks. 42It is because of this special background that it is appropriate to set a significant penalty for the first breach and to set a higher penalty in relation to the second breach, taking into account both for and against Mr Karabelas, that the second offence occurred just one day after the first offence. The third offence in this sequence is entitled to be treated as a separate and most serious offence. Aggregating the penalties and then subjecting them to further consideration in the application of the totality principle, nevertheless, requires the imposition of a total penalty significantly more than the $18,500 imposed by her Honour. In the view of the Court the total penalty should be higher than the third penalty imposed by her Honour but should not be so high as to be unjust and not a true reflection of the total criminality of Mr Karabelas, nor should it be crushing in its effect. 43A significant portion of the respondent's submissions on the appeal adopted essentially a mathematical approach and concentrated on what was said to be the common elements between the three offences. For reasons already outlined, we are unable to accept those submissions. There was a further submission as to the parity between the sentences imposed on Formcom and those imposed on Mr Karabelas: mathematically, they were identical having regard to the different maximum penalties available in each offence. It was submitted that there would be unfairness and a departure from the parity principle for Mr Karabelas to now have to face an increased penalty when Formcom could not be subjected to the same result. While parity is an important principle, here it is Mr Karabelas' company that has been fined and has been deregistered in a time frame that has made it impossible for the prosecutor to also appeal against her Honour's approach to totality in those cases. In the special circumstances of this case, parity considerations do not have the same force that they might have in other circumstances. It was also submitted for the respondent that her Honour had applied her mind appropriately to the objective seriousness of all the offences in relation to Formcom and Mr Karabelas: she had then calculated the average of the three fines and applied the result. This result was said to be fair and appropriate and reflected the objective seriousness of the offences. As earlier indicated, her Honour did not disclose her reasoning in applying the totality principle and this submission is no more than speculation. It might be observed, however, that in the circumstances of these cases, a mere averaging approach in the calculation of a sentence to reflect totality would not be appropriate. 44In all of the circumstances, the appeal should be upheld and the sentence imposed upon the respondent varied in accordance with this judgment. 45During the course of addresses counsel for Mr Karabelas indicated that, should the Court be persuaded to uphold the appeal, he would request the opportunity of placing material before the Court as to the personal circumstances of Mr Karabelas and that those matters could be conveniently dealt with by way of written submissions without a further oral hearing. The difficulty with this proposition is that, to the extent that Mr Karabelas seeks to make out a case under s 6 of the Fines Act 1996, he will need to submit evidence in support of his case and it may well be the position of the prosecutor that the material as to financial capacity should be tested by cross-examination. In those circumstances, Mr Karabelas is to be given 21 days from the date of this judgment to file and serve evidence and submissions in relation to his personal circumstances regarding the payment of any increased penalty and the appellant is to have a further 14 days to submit any evidence and submissions in reply to those filed by Mr Karabelas. If a further hearing is not required, the Court will determine the outstanding issues on the basis of the evidence and written submissions and without conducting a further hearing. Should a further hearing be required, the parties are to notify the Court and provide an estimate of the time necessary to finalise the appeal.

Inspector Fraser v Karabelas

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (4 paragraphs)

Parties

Cases Cited (27)

Cited By (4)