185 The sentencing of an offender involves a consideration of both objective and subjective factors: Morrison v Powercoal (2005) at [13]. The Court will keep in mind not only the facts which establish the seriousness of the offence but also those which tend to mitigate that seriousness or exculpate the offender: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 to 699; Lawrenson at 475; Fletcher Construction (1999) at 78 and Morrison v Powercoal (2005) at [13] (applying Lawrenson). Thus, in sentencing, the factual basis for the Court's decision will include what the offender actually did and the history and other personal circumstances of the offender: R v Olbrich (1999) 199 CLR 270 at [1] (as to the proof of fact, see Olbrich at [25]). As to what the offender did, it must be borne in mind that the offender can only be sentenced "for the offence for which the offender has been convicted" (Camilleri's Stock Feeds at 699 and also Ridge Consolidated Pty Ltd v Workcover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78 at [29] ('Ridge'); Powercoal v Morrison (2005) at [76]; and Profab at [34], but the Court is bound to take into consideration the circumstances surrounding the offence for which the defendant has been convicted "so long as the circumstances are not inconsistent with the plea or verdict" (Camilleri's Stock Feeds at 699 applying R v De Simoni (1981) 147 CLR 383 at 396). It should be noted that a plea of guilty only carries with it an admission of the essential legal ingredients of the offence admitted by the plea: R v O'Neill (1974) 2 NSWLR 582 at 588. Any facts (or disputes of fact) beyond that (and particularly those advanced by the Crown that are said to aggravate the offence) must either be agreed or proved in accordance with relevant principles: see O'Neill at 588 - 589 and Olbrich at [25 - 28].
186 However, the primary factor to consider in sentencing under occupational health and safety legislation is the objective seriousness of an offence: Lawrenson at 475, Fletcher Construction (1999) at 78, Morrison v Powercoal (2005) at [13], Albright at [28], Capral at [53], Profab at [30], Manpac at [70] to [71], Menzies at [60], McDonald's at 428 and 430, and Walco at [22] to [23]. Thus, it is always important, in seeking to determine the sentence appropriate for a breach of occupational health and safety legislation, to consider the gravity of the offence viewed objectively, as "without this assessment the other factors requiring consideration in order to arrive at a proper sentence to be imposed cannot properly be given their place": Dodd (1991) 57 A Crim R 349 at 354, as applied in Lawrenson at 476 and Fletcher Construction (1999) at 74 (see also R v Gordon (1994) 71 A Crim R 459 at 468, R v Allpass (1993) 72 A Crim R 561 at 563 and McDonald's at 432). (Indeed, the objective seriousness of the offence should be considered "first of all": Gordon at 468.)
187 Adopting the approach in Veen (at 472), each offence has its own objective gravity meriting at most a sentence proportionate to that gravity with the maximum sentence fixed by the legislation defining the limits of sentence for the most grave category (see Dodd at 354). This approach will ensure that allowance for subjective factors does not produce a sentence which fails to adequately take into account the objective gravity of the offence: Dodd at 354; Lawrenson at 476 and Fletcher at 79 and that there is a reasonable proportionality between a sentence and the circumstances of the offence (Dodd at 354). Thus, this Court has consistently stated that subjective matters such as a plea of guilty, previous good individual citizenship, cooperation with the investigation and subsequent measures to improve safety, "rank in importance well behind the two primary aspects of the matter, namely, the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce" (per Walco at [23]; see also Morrison v Powercoal (2005) at [13], Fletcher Construction (1999) at 78, Lawrenson at 475, Waugh at 97 and McDonald's at 429).
188 In Morrison v Powercoal (2005), the Full Bench approved (at [14]) the dicta of Hungerford J in Fisher v Samaras (at [388]) where his Honour held that the Court had a duty to "ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty in so far as a defendant is concerned not to impose such a penalty as would be oppressively high" (emphasis added) (a confirmation of that approach - without specific referral to Fisher v Samaras was given by the Full Bench in Warman at [339]).
189 Wright J, in Walco (at [23]), considered that this dicta should not be considered as qualifying the approach to balancing subjective and objective factors as expressed in Waugh. His Honour was referring to the subsidiary role of subjective factors discussed above. However, in my view, no contrary view was expressed in Fisher v Samaras. Hungerford J's observations were, in fact, derived from an earlier decision of Cullen J (Workcover Authority of New South Wales (Inspector Glen David Gordon) v Walco Elevators Pty Ltd (unreported, NSW Industrial Court, 13 March 1996) in which Cullen J (at [116]) had expressed the view that the Court has a duty to ensure breaches of occupational health and safety legislation are punished with penalties of such magnitude "that companies will address occupational health and safety issues before such accidents occur". In substance, Hungerford J was, as he noted, correctly in my view, applying the oft quoted passage from the judgment of the Court of Criminal Appeal (delivered by Street CJ) in R v Rushby (1977) 1 NSWLR 594 at 598, as follows:
If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and the probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment.
190 The objective seriousness of the offence involves an objective assessment of the nature and quality of the offence: Morrison v Powercoal (2003) at [13]; Lawrenson at 474; Independent Cargo at 4 and Hannah v Wonar at 9. As earlier noted, this will involve an assessment of what the defendant did (the objective circumstances of the offence) which, in the case of occupational health and safety legislation, will involve an assessment of the detriment to safety occasioned by the defendant (McDonald's at [438]) and the nature and quality of the defendant's acts, as assessed in that respect.
191 As was observed by the Full Bench in Morrison v Powercoal (2005) at [13], the sentencing practice established by this Court under the occupational health and safety legislation conforms with the requirements of the Crimes (Sentencing Procedure) Act 1999 (see ss 3A, 21A, 22, 22A and 23). The decision of the Full Bench in Fletcher Construction (1999) (at 79) (and Morrison v Powercoal (2005)) demonstrates that, nonetheless, there are a number of factors which, in the jurisprudence of the Court, may tend to establish the existence of an objectively serious offence. A few may be nominated for present purposes, as follows:
(i) Foreseeability
In McDonald's at 450 ( following Kembla Coal and Coke at [27]), the Court held that the degree of foreseeability of a risk to safety was a significant factor to be taken into account when assessing the level of culpability of the defendant (see also Benbow v Planada at [9]). Hence, the existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a relevant factor in the assessment of the gravity of the offence. By the Full Bench judgment in Capral (at [82]), it was held that the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature.
The gravity of the offence will increase where the risk to safety is known and left unabated with remedial action being available. In reliance on Hannah v Wonar (at [9]), Lawrenson (at [476]) and Coleman at [88], the Full Bench in Powercoal v Morrison at [90] acknowledged the proposition that it will be a serious offence where there is "an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible" (see also Menzies at [87]. In Hannah at [8]), the Full Bench referred to a "known and perceived danger, unchecked, and left in place". The Full Bench in Morrison v Powercoal (2005) referred to a risk being "glaringly obvious" (see also Wild Geese at [27]). Similarly, an offence has been found to have a high level of seriousness where the risk to safety was actually foreseen and not eliminated or minimised by available remedial measures ( Coleman at [89] to [91] and McDonald's at 452, Workcover Authority of NSW (Insp Lyons v Warman International Ltd (2001) 105 IR 236 and Benbow v Planada at [10]).
It should be emphasised, however, as did the Full Bench in Capral (at [82]), the absence of foreseeability does not necessarily render the offence as being nominal or 'not serious'. The defendant is required to be proactive in seeking out and managing risks to safety ( Rexma at [52], Corinthian Industries at [10], Coleman at [86] and Workcover Authority of New South Wales v Fletcher Construction Australia Ltd (2002) 123 IR 121 at [43] and [44]). Thus, the defendant will not benefit from a lack of knowledge or foresight deriving from a failure to put in place a proper system for risk assessment, adequate work methods for a location or proper training (see Patton v Fletcher 123 IR 121 at [41] and [42], Benbow v Planada at [21] and Inspector Yeung v Thiess Pty Ltd (No 2) [2004] NSWIRComm 96 at [15] and [16]).
(ii) Death or Serious Injury in Relation to an Offence