Inspector Guillarte v Industrial Galvanizers

PROSECUTOR Mr M P Cahill of counsel Solicitor: Mr N Correy Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT Mr P M Kite SC with Mr M L Shume of counsel Solicitor: Mr P Cutrone Sparke Helmore

JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR GUILLARTE v INDUSTRIAL GALVANIZERS CORPORATION PTY LIMITED

Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT RE: PENALTY [2003] NSWIRComm 241 1 On 9 August 2002 I gave judgment in this matter which concerned a prosecution of Industrial Galvanizers Corporation Pty Limited ("the defendant") by Inspector Corrie Guillarte of the WorkCover Authority of New South Wales for a breach of s 16(1) of the Occupational Health and Safety Act 1983. See WorkCover Authority of New South Wales (Inspector Guillarte) v Industrial Galvanizers Corporation Pty Ltd (2002) 119 IR 306. I found the offence proven. On 27 June 2003 the parties were heard on the question of penalty.

2 The prosecution of the defendant in this matter arose from an incident that occurred on 3 July 1999 at the premises of the defendant at 20-22 Amax Avenue, Girraween in the State. The circumstances giving rise to the charge were described in my judgment as follows (119 IR at 306, par [4]): An overhead travelling crane was transporting a structural steel beam or girder that measured 15 metres in length, was approximately 1.2 metres wide and weighed approximately 4.7 tonnes. Whilst being positioned to be weighed, it was alleged the steel beam struck a metal jig stand situated on the floor of the factory premises that supported a jig beam. The jig stand toppled and the jig beam fell onto Mr Lasalo Iosefa causing him serious injury.

3 Of the six particulars of the charge against the defendant I found that two were made out, namely: (iv) The jig stand was at all material times at risk of toppling over if bumped by objects being transported by the overhead crane because it was not properly affixed to the floor.

(v) The crane operator continued to operate the overhead travelling crane in transporting a large structural steel beam even though there were persons working in the dressing area.

4 At par [36] of the judgment I stated: 36 I consider that the proximity of the eastern jig stand to the girder as it was being positioned by a crane operator standing on the southern side of the beam, and thus whose view of the jig stand was obscured, represented a real risk that the girder might connect with the jig stand knocking it over and, in turn, bringing down the jig beam on any worker who had returned to his workstation under the jig beam. In this case it was Mr Iosefa who was exposed to the risk.

5 Consequently, at par [40] I said: 40 Particulars (iv) and (v), in my view, contained substantive allegations as to failure on the part of the defendant. Given that these have been made out I find that the essential elements of the offence have been proved beyond reasonable doubt. The defendant is, therefore, guilty of an offence under s 16(1) of the Occupational Health and Safety Act in relation to the charge brought in these proceedings unless it is able to make out a defence under s 53 of the Act.

6 The defendant had relied on s 53(a) of the Occupational Health and Safety Act which provides: It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that- (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence …

7 The defendant had submitted that: …the risk constituting the offence in this matter was not reasonably foreseeable and, therefore, it was not reasonably practicable to take steps to avoid the risk. He [Mr Kite SC for the defendant] contended that when one considers the complex chain of events constituting the risk, it was not easily explicable in hindsight let alone foreseeable. It was further contended that the system of work the subject of the charge had been in place for 19 years without incident.

8 At par [48] of the judgment I observed: 48 The risk presented by a girder 15 metres long, weighing 4.7 tonnes and suspended within 1 metre of a jig stand upon which rested a 300 kg jig beam with persons working underneath that beam, would, in my opinion, be readily apparent to a reasonable observer. The force of impact on the stand that could potentially be applied by the girder if it came into contact with the stand would easily overcome the locking effect of a single jig beam and the base plates of the jig stand. It would only take a relatively slight misjudgement on the part of a crane operator to cause the girder to come into contact with the jig stand, especially where the view of the operator of the distance between the girder and the stand was obscured. … 50 One simple remedial measure taken by the defendant following the incident was to bolt the eastern jig stand to the floor. Mr Dobson, an engineer, expressed the opinion that this measure would not have prevented the accident. However, Miller Milston and Ferris, consulting engineers, who provided a report to the defendant regarding the incident, stated: We inspected the area of the plant shown in Figure 1 on the 16th September and noted that since 3rd July the large steel plate assemblies at the base of the columns to frame 2 have been bolted into the concrete floor. The effect of this is to considerably reduce the possibility of a similar accident occurring again. 51 In any event, even if I were to accept Mr Dobson's opinion over that of the consulting engineers (which I do not) I consider that the defendant has failed to discharge the onus of showing that the costs, difficulty or trouble required to avoid or overcome the risks to safety in the workplace, outweighed those risks. It was held that the defence under s 53 of the Act had not been made out.

9 In the proceedings relating to penalty, there were two affidavits tendered. The first was an affidavit sworn by Malcolm Farfor, an occupational health and safety consultant to the defendant. Mr Farfor has held occupational health and safety auditing qualifications for approximately ten years. He had been auditing the defendant's Girraween site since 1998 to ensure compliance with occupational health and safety law and practice and had provided advice and training to employees of the defendant in risk assessment. Mr Farfor said in his affidavit that he had examined the jig stand as part of his audit and never considered the stand to pose a risk to safety and that it was not a standard practice in the galvanizing industry to bolt down jig stands. Mr Farfor also referred to the defendant's lost time injury frequency rates and offered the view that the figures suggested the defendant was an industry leader in its commitment and approach to occupational health and safety.

10 The second affidavit was sworn by Graham Choice, the defendant's general manager. Mr Choice was required for cross examination. Mr Choice's evidence went to:

· The defendant's history and the process of galvanising.

· The extensive changes that have been made to the layout of the plant since the incident on 3 July 1999 designed in part to prevent a recurrence of the incident. · The defendant's extensive policies and practices relating to occupational health and safety including the occupational health and safety committee, training in occupational health and safety, toolbox talks, occupational health and safety auditing. · The attendance by representatives of WorkCover at the defendant's premises whilst the overhead crane was operating. · The induction of new employees. · The use of a labour hire company (Integrated Workforce) to supply labour. · The qualifications of various personnel involved in the incident on 3 July 1999.Assistance provided to WorkCover. · The defendant's contrition.

11 In light of several previous convictions of the defendant in the Chief Industrial Magistrate's Court under the Occupational Health and Safety Act the maximum penalty in this case is $825,000. In relation to the relevance of the maximum penalty for an offence, Wright J, President observed in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at 185-186: The maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence; a large penalty indicates the gravity of the offence as perceived by the community. The task of the Court is thus to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the penalty scale of penalty set by the legislature from zero to the maximum: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699; Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 at 321; and Albury City Council at 407 - 408.

12 The relevant detriment to safety in this matter was identified in par [36] of my earlier judgment. At par [48] it was held that the risk was reasonably foreseeable and at par [50] that simple remedial measures had been available to avoid the risk.

13 Mr M Cahill of counsel appeared for the prosecutor. Mr Cahill submitted that given: the finding that the available evidence disclosed "a clear risk to health and safety"; the nature and extent of that risk (i.e. "a risk of the load striking the eastern jig stand causing it to topple over, thereby causing the jig beam to fall on a person or persons working underneath"); and, there were available to the defendant a number of simple measures that could have been taken to reduce or eliminate the risk of injury, it should be concluded that Mr Iosefa was exposed to a significant risk of injury.

14 Mr Cahill submitted that the subject breach of s 16(1) of the Act satisfied each of the factors addressed by the Full Bench in Fletcher Constructions Australia Limited v WorkCover Authority (Inspector Fischer) (1999) 91 IR 66 at 79 such that it is appropriate to describe the subject offence as "serious".

15 Mr P Kite SC with Mr M Shume of counsel for the defendant submitted that the nature and quality of the offence was such that it fell in the low range of offences. It was submitted that the matters which identify such a finding were: · There was a system that required all workers in the dressing area to leave the area when objects were being lifted over the jig stand; · The practice of all workers was to leave the dressing area when the objects were being lifted over the jig stand; · It was recognised that there was a risk to safety when objects were being lifted over the jig stand; · Workers were allowed to return to their area of work under the jig stand once the object had passed over the dressing area; · The period of time in which workers were placed at risk by the possibility of the jig stand being knocked over was very small; · The possibility of the jig stand being knocked over by the object once it had passed the dressing area was not foreseen by anyone prior to the incident; · The system had been in operation for 19 years without incident; and · Considerable force would have been required to topple the jig stand given its configuration at the time of the accident.

16 Whilst I agree with the prosecutor that the offence may be described as serious, I do not place it in the high range of seriousness. The risk was not glaringly obvious and did not represent any reprehensible disregard for safety on the part of the defendant who otherwise pays strong regard to safety. Nevertheless, the risk was foreseeable and amenable to a reasonably simple and straightforward remedy. It was also a risk that could have produced even more serious consequences than it did. I consider the offence lies in the moderately serious range.

17 Mr Cahill also submitted that both general and specific deterrence were matters which should be taken into account in determining the appropriate penalty to be imposed. In particular, a Full Bench of the Commission in Court Session has recognised that in the industrial context, it will be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. See Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at pars [71] - [80]. Mr Cahill further submitted that having regard to the defendant's prior convictions, the penalty to be imposed should reflect the need to direct the defendant's attention to the obligation imposed upon it by the Act to adopt a vigilant, pro-active approach to occupational health and safety and also to highlight that message to others operating in industry.

18 Mr Kite submitted that whilst in this case there would be some element of general deterrence applied to the penalty, the Court would consider that there is no necessity for the application of specific deterrence in particular because it is evident the defendant is pro-active, not merely re-active in relation to issues of workplace risks to health and safety. It was submitted the defendant's diligence over the past five years was at more than sufficient level to indicate a continuing desire to comply with both the terms and spirit of the law.

19 Consistent with the decision in Capral Aluminium it is appropriate for the penalty to include an element for general deterrence. Notwithstanding the defendant's proactive approach to safety, for the reasons expressed by the prosecutor the penalty should also reflect an element for specific deterrence, although not a significant element.

20 There are a number of subjective factors to be taken into account. The defendant cooperated with the authorities in relation to the investigation of the incident. The defendant took immediate and extensive steps to avoid any recurrence of the risk. The defendant also demonstrated a commitment to occupational health and safety and following the last of its previous convictions engaged Mr Farfor as an occupational health and safety consultant to assist with its occupational health and safety programs.

21 Mr Iosefa, the person injured in the incident on 3 July 1999, was employed by Integrated Workforce Pty Ltd ("Integrated"), a labour hire company. Integrated was prosecuted in relation to the risk to Mr Iosefa under s 15(1) of the Occupational Health and Safety Act 1983. In Inspector Corrie Guillarte v Integrated Workforce Pty Ltd the defendant pleaded guilty. Marks J imposed a penalty of $50,000 with a discount of 20 per cent for an early plea of guilty resulting in a fine of $40,000.

22 Mr Cahill for the prosecution, submitted that: In convicting Integrated Group Limited of a breach of Section 15(1) of the Act and imposing a fine of $40,000.00, Marks J made the following observations:

(a) The breaches of the principles set out in the Occupational Health & Safety Act , 1983 were "serious";

(b) The breach of Section 15(1) of the Act committed by Integrated Group Limited had to be considered in the context of the "particular obligations" imposed on labour hire companies (i.e. their relative lack of control over and supervision of the work performed by their employees for third party clients);

(c) The particular steps take by Integrated Group Limited to control/eliminate risks to health, safety and welfare of employees sent to work at the premises occupied and controlled by Industrial Galvanizers Corporation Pty Ltd;

(d) The nature of the breach - namely a breach principally committed by Industrial Galvanizers Corporation Pty Ltd;

(e) Integrated Group Ltd pleaded guilty which, according to Marks J, entitled Integrated Group Limited to a discount of 20%; and

(f) The fact that Integrated Group Limited had no prior convictions.

In the circumstances, the defendant's position, vis a vis Integrated Group Limited, should be seen in the following terms:

(a) Objectively, the defendant's breach of the Act is a serious one;

(b) The defendant, unlike Integrated Group Limited, had direct control of the workplace and the circumstances of the offence;

(c) Integrated Group Ltd was entitled to the benefit of its plea of guilty, together with the benefit of its good industrial record; and

(d) The defendant has a number of prior relevant convictions.

It follows that the defendant is not entitled to the leniency shown by Marks J in convicting Integrated Group Limited in imposing a fine of $40,000.00.

As a starting point, the Prosecution notes that the penalty to be imposed in the present case should reflect the "objective seriousness" of the offence committed by this defendant. In assessing the monetary penalty that reflects the objective seriousness of this defendant's offence, the Court must take into account the fact that the maximum penalty applicable to the subject offence is $825,000.00 and not $550,000.00, as was the case in WorkCover (Inspector Guillarte) v Integrated Group Limited .

The penalty imposed in the present case, should also reflect the absence of subjective factors, such as a plea of guilty and a prior good industrial history, which Marks J was obliged to take into account in assessing the penalty imposed on Integrated Group Limited.

23 Mr Kite, for the defendant, contended that Integrated pleaded guilty to a charge in which the particulars alleged failures relating to the transportation of the structural beam "above and across their [Mr Iosefa's and Mr Cetin's] place of work". It was submitted that Industrial Galvanizers was successful in defending these particulars. Given Integrated's plea of guilty to these particulars it was submitted by Mr Kite that Integrated had pleaded guilty to an offence that was higher on the scale of seriousness than that found to lie against Industrial Galvanizers.

24 Moreover, it was submitted, while Integrated was given a 20 per cent discount for the guilty plea it did not plead until the outcome of the proceedings against Industrial Galvanizers was known. Mr Kite submitted that if the proceedings in relation to Integrated had proceeded before Industrial Galvanizers the latter defendant may have taken the same course as Integrated and waited until the determination of the proceedings against Integrated before deciding on a plea. Consequently, it was submitted, parity required some balancing of the discount given to Integrated.

25 The issue here is consistency of sentencing rather than parity. In relation to parity, in Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 340 - 341 it was stated: We also accept that the principle of parity in sentencing as discussed by the High Court in Postiglione v The Queen (1997) 189 CLR 295 has application to sentences imposed under the O H & S Act. In that context it is appropriate to have some regard to the sentences imposed by Hungerford J on Drake Personnel Ltd, the direct employer of two of the injured workers. In Postiglione the High Court was concerned with an appeal against sentence which raised questions of comparison between the sentence imposed on a principal party in a conspiracy compared with that imposed on the appellant, who was subordinate in that conspiracy. Dawson and Gaudron JJ (at 411-412) said: The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them [ Lowe -v- R (1984) 154 CLR 606 at 610-11 per Mason J]. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error [ Lowe at 617-18 per Brennan J]. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe -v- R , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to `a justifiable sense of grievance' [ Lowe especially at 610 per Gibbs CJ, 613 per Mason J and 623 per Dawson J]. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.'

That principle was referred to by Mason J in Lowe -v- The Queen ((1984) 154 CLR 606 at 610) as follows: Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community. While the offences with which we are dealing under the O H & S Act do not involve the notion of co-offenders, the fact is that the same circumstances have given rise to prosecutions for offences under ss15 and 16 of the O H & S Act of the direct employer, Drake Personnel Ltd t/as Drake Industrial which supplied the labour involved, and the defendant here who utilised that labour in relevant circumstances. While those defendants have been found guilty of different offences, nevertheless the factual circumstances giving rise to the charges justify an approach to sentencing which shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe .

26 The distinction between parity and consistency was addressed by the Full Bench in Capral Aluminium 49 NSWLR at [62] - [65] as follows: It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime and thus is not relevant in this matter. However, as Walton J, Vice-President, observed in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (1999) 95 IR 383: Whilst the principle of parity normally operates in relation to co-offenders or across the range of those convicted of the offence in question (see Signato v R (1998) 194 CLR 656 at 670 and in relation to the same crime Postiglione at 309), this Court held in Warman (at 341) that where defendants (not being co-offenders) are prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which "shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe v The Queen " where there exists common factual circumstances giving rise to the charges. It should also be noted that the Court considered parity in Warman in the context of a labour hire company and the defendant who utilised that labour. Hence, the decision in Warman would require that the defendants, even though prosecuted under different sections of the Act, shall be treated consistently in accordance with the principles in Lowe v The Queen (1984) 154 CLR 606 ...

When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: see R v Morgan (1993) 70 A Crim R 368 where Hunt CJ at CL said, at 371: It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe v The Queen (1984) 154 CLR 606 at 612: "The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty." In Channon v The Queen (1978) 20 ALR 1 at 18, Deane J observed: In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances. As recently observed by Barr J and McInerney AJ in the Court of Criminal Appeal "each case is different, and one case does not demonstrate the limits of a sentencing Judge's discretion": R v Stahl [1999] NSWCCA 160 at 10.

27 It may be seen that whilst defendants in proceedings under s 15(1) and s 16(1) of the Occupational Health and Safety Act have been found guilty of different offences, the Court should nonetheless adopt an approach to sentencing which "shows consistency and not disparity in punishment … " where there exists common factual circumstances giving rise to the charges. However, "What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender …"

28 It is difficult, if not impossible, for me to determine the respective contributions of the two defendants to the creation of the risk to safety, not having dealt with the charge against Integrated. I would offer the opinion, however, it is not a simple matter of concluding that Industrial Galvanizers had direct control of the workplace, therefore, it must be more culpable than Integrated. See Inspector Blume v LG Electronics [2003] NSWIRComm 34; Inspector Blume v TMP Worldwide eResourcing [2003] NSWIRComm 37. 29 In considering the issue of consistency in sentencing I note that Integrated pleaded guilty to a charge which, on the face of the particulars, involved a more serious offence than the one found to lie against Industrial Galvanizers in that the charge against Integrated involved a failure relating to the transportation of the structural beam "above and across their [Integrated's employees] place of work". In the proceedings involving Industrial Galvanizers the prosecutor failed to make out the particular that the undertaking was unsafe because: In the transporting of a large structural steel beam above and across the dressing area there was a risk of it bumping the jig stand on the floor of the premises below it [my emphasis].

30 I also note that in pleading guilty Integrated did not do so until after it was known whether Industrial Galvanizers had been successful in pleading not guilty. 31 However, also to be taken into account is that in the case of Integrated the maximum penalty was $550,000 whilst the maximum penalty applicable to Industrial Galvanizers is $825,000. 32 It seems to me that I am not bound to impose a penalty of $40,000 on Industrial Galvanisers for the sake of achieving consistency in sentencing. In my opinion, such a penalty is manifestly inadequate. whilst I should not ignore entirely the penalty imposed on Integrated - and I do not - the ultimate question, as Deane J stated in Channon, is what is the appropriate punishment for the particular offence in the relevant circumstances? 33 I consider that given the nature and quality of the offence a penalty of $80,000 is appropriate with a discount of 10 per cent for the subjective factors. This results in a penalty of $72,000.

34 The Court makes the following orders: 1) The offence is proven and a verdict of guilty is entered.

2. The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $72,000 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's costs in an amount as agreed, or in default of agreement, as assessed.

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