Inspector James v Paul

Industrial Relations Commission (NSW)|2011-06-29|Before: Boland J, Walton J, Staff J, Mr P, Marks J

Judgment 1On 29 June 2011, judgment was given in Inspector James v Paul [2011] NSWIRComm 82 in which the Full Bench granted leave to appeal and upheld an appeal by Inspector Wayne James against an order by Marks J unconditionally dismissing a charge brought pursuant to s 8(1) of the Occupational Health and Safety Act 2000 ("OHS Act") by reason of s 26(1) of the OHS Act, against Robert Mark Paul ("the respondent") a director of Dekorform Pty Ltd ("Dekorform"): Inspector James v Dekorform Pty Ltd & Paul [2010] NSWIRComm 150. 2The parties were given an opportunity to file written submissions in respect of the re-sentencing of the respondent and advised that unless either party specifically sought to further address the Full Bench, we would undertake re-sentencing of the respondent, having regard to the evidence and material in the appeal, submissions made at first instance and on appeal, and any further written submissions filed. Neither party sought a further hearing. 3It, therefore, follows that this judgment deals with the appropriate sentence to be imposed on the respondent.

Nature of the offence 9Adopting the approach of Wright J in Walco (No 2) , in assessing the culpability of the respondent it is important to place particular weight upon his role in the management of the corporation and the nature and gravity of the offence as identified in relation to Dekorform and to make an assessment in that context of the situation of Mr Paul. 10As we stated earlier, the primary judge's finding that the breach by Dekorform was a "most serious breach" may be accepted. The risk presented by the circular saw was a serious risk to health and safety, manifested in the death of Mr Hogden. In that context, one must consider Mr Paul's role. At the date of the incident, the respondent had responsibility for implementing and ensuring compliance with occupational health and safety standards and policies within Parbury Pty Ltd ("Parbury"), which included Dekorform. The respondent's failure was to have in place a system that would have enabled managers with the necessary knowledge and training to properly assess the safety of the machine and determine if it was missing its set of internal anti-kickback fingers. 11The failure in this regard lies at the centre of any consideration as to the respondent's culpability: he was directorially responsible for occupational health and safety at Dekorform and for ensuring compliance, but failed to ensure there was an effective system in place capable of enabling an assessment to be made by competent personnel about whether or not the circular saw was safe to operate. The saw was not safe to operate and as a consequence Mr Hogden lost his life.

Deterrence 12The importance of the principle of deterrence in the sentencing process cannot be underestimated here. The offence reveals yet another serious incident arising from the failure to undertake an adequate risk assessment to identify the risks associated with operating the machine, including an assessment of the risk of "kickback" of materials being fed into the machine. 13The dangers presented to workers in operating machines that are not the subject of regular safety audits are obvious. Management at all levels have a responsibility to ensure that systems are in place whereby regular and effective assessments of the safety of machinery are undertaken. We include in the penalty a component for general deterrence. 14As to the question of specific deterrence, after the incident, the respondent took active steps to arrange for a complete review of the occupational health and safety procedures and protocols of Dekorform and changed the structure of the businesses. He resigned from the parent company and decided to "move away from manufacturing and back into sales and marketing". He is now "extremely critical of the company's focus on OHS". Dekorform also carried out improvements to the machine including the following: (a) reinstalled the anti-kickback fingers in the machine; (b) enabled the electronic interlock device by fitting an air operated locking device to the splinter catchers to prevent the lever being moved (thereby lifting the splinter catchers) whilst the machine was being operated; (c) installed an interlock on the rear cover of the saw (non-operator side); (d) installed a laser beam safety cut-out device that prevents persons from accessing the feeder table (scissor lift) while the machine is operating; (e) installed new neoprene sleeves on the top rollers; (f) installed a fence and interlock gate on the exit end on the non-operator side of the machine; (g) installed a fence on the rear and side (non-operator) of the in-feed scissor lift with a sliding gate that is bolted and a safety switch mechanism to prevent unintentional access; (h) installed "c-section" guarding on the operator side of the in-feed roller table with a lanyard interlock and bar; (i) installed two sets of kickback (finger) flaps on the in-feed roller table and one continuous flap on the in-feed end of the scissor lift table; (j) repositioned the stop/start switch and installed three emergency stops; (k) installed an interlock switch on the lid of the machine; and (l) engaged two external consultants to perform a risk assessment of the machine. 15The respondent is no longer associated with Dekorform, but it is evident before his departure he took appropriate steps to remedy the flaws in the company's approach to health and safety and he undoubtedly has a new perspective on the fundamental importance of appropriate policies and procedures to ensure health and safety in the workplace. It was not entirely clear what was meant by the respondent's move back into "sales and marketing". However, it was not submitted that this move meant that the respondent no longer had any responsibility for occupational health and safety. We consider there should be a small element included in the penalty for specific deterrence.

Respondent's reliance on mitigating factors 16The respondent summarised the evidence and submissions made at first instance and on appeal in respect of the culpability of the respondent, together with the various subjective factors in mitigation relevant to penalty, this way: (a) The respondent was a director for only approximately 1 year before the incident. (b) He had a broad portfolio of responsibilities with the business of Dekorform operating at a discrete location and forming approximately 5% of the total. (c) The Dekorform business and the machine involved in the incident itself were of long standing, under stable long serving local management and with no history of OH&S issues. It appeared to the respondent as a well run, well managed operation. In those circumstances the respondent relied, not unreasonably, upon that local management. (d) He paid careful attention to his OH&S responsibilities. It was the subject of regular reporting and the subject of regular management meetings. This included reports that the machine was regularly inspected and serviced. (e) An employee was appointed to the Dekorform business with specific OH&S responsibilities. This was a new role created at Dekorform by the respondent and demonstrates a commitment to, and significant allocation of resources to, OH&S, upon taking up the directorship and prior to the incident. Processes were in place, albeit that they were not effective in preventing what happened in this case. (f) The absence of the anti-kickback mechanism was only apparent when the top lid of the machine was opened and the person looking down into the machine knew what to look for. The mechanism was apparently removed, some 18 months earlier, by external contracted maintenance workers. As submitted by the appellant, a director cannot be expected to have detailed awareness of day to day activities ( ASIC v Healey [2011] FCA 717 at [17]). This mitigates the failure set out at paragraph 2 (b) of the appellant's supplementary submission. The respondent did not know that the system of checks in place was faulty and it was by no means obvious to anyone, including to the long standing local management and operators that it was lacking. (g) After the incident, the respondent devoted unlimited corporate resources to OH&S to the point that nothing more could have been done. (h) The respondent, and under his control, other managers conducted relations with Mr Hogdens family with compassion and provided substantial support. (i) The incident has had an adverse impact upon the respondent at a personal level and has also impacted upon his career. (j) The evidence strongly suggests that the local manager of the Dekorform business could have been prosecuted pursuant to section 26 but was not. No explanation was proffered for that. 17We accept that the factors identified by the respondent should be taken into account in mitigation and given appropriate weight. However, that the respondent relied on local management and that he could not be expected to have detailed awareness of day to day activities of Dekorform, for example, are by no means exculpatory given the respondent's responsibility for occupational health and safety. That included a responsibility to ensure Dekorform carried out risk assessments on machinery by persons with the necessary training and instruction. That responsibility was not met.

Other subjective factors 18We take into account the plea of guilty. The appellant submitted that the plea was not entered at the earliest opportunity. The respondent contended that it was inappropriate for him to give consideration to entering a plea of guilty until he was aware of the course that Dekorform was likely to take to the charge under s 8(1) of the OHS Act. 19Marks J determined that Dekorform had not entered a plea at its earliest opportunity and applied a discount of 5 per cent. His Honour applied a discount of 10 per cent for the plea entered by the respondent. 20We propose a discount for the utilitarian value of the plea of 20 per cent. It was not unreasonable, in our opinion, for the respondent to wait, before entering a plea, for Dekorform to decide its response to the charge against the company. 21We also take into account the respondent's co-operation in the investigation of the incident, its contrition expressed by reason of the plea of guilty, the steps taken immediately after the incident to improve the machine's safety and the absence of a prior conviction. 22We consider that Dekorform and the respondent were equally culpable in relation to the conduct giving rise to the offence.

Principles of double jeopardy 23We turn to consider the relevance of the principle of "double jeopardy". Section 68A(1) and s 68A(2) of the Crimes (Appeal and Review) Act 2001 ("CAR Act") provides: 68A Double jeopardy not to be taken into account in prosecution appeals against sentence (1) An appeal court must not: (a) dismiss a prosecution appeal against sentence, or (b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate, because of any element of double jeopardy involved in the respondent being sentenced again. (2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal. 24Section 68A of the CAR Act applies to an "appeal court" which is defined in s 3 to mean the court to which an appeal or application for leave to appeal may be made under Pt 3, Pt 4 and Pt 5 of the Act. These parts deal with appeals from the Local Courts to the District Court, the Land and Environment Court and to the Supreme Court respectively. 25The respondent submitted that the present matter is an appeal from a single judge of a superior court of record and not from a Pt 3, Pt 4 or Pt 5 appeal court and therefore s 68A does not apply. We disagree. 26By operation of s 196 of the Industrial Relations Act 1996 ("IR Act"), the present appeal constitutes an appeal under s 5D of the Criminal Appeal Act 1912 and is subject to the provisions of that Act in both substantive and procedural respects, although modified, as expressly provided by s 196 of the IR Act : Inspector Neil Buggy v Weathertex Pty Limited [2003] NSWIRComm 273; (2003) 127 IR 60 at [45]. 27Section 68A removes from consideration on the part of this Full Bench, the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject: WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd [2000] NSWIRComm 142; (2000) 49 NSWLR 700 (2000) 100 IR 64 at [41]. 28It follows, therefore, that this Full Bench is precluded from, firstly, reducing the sentence which it would otherwise determine to be appropriate on the basis of such distress and anxiety, and secondly, from having regard to the "frequency or rarity" of Crown appeals as a sentencing principle applicable to an individual case by taking into account the factors of distress and anxiety: R v JW [2010] NSWCCA 49 at [141] per Spigelman CJ.

Orders 29We make the following orders:

The respondent, Robert Mark Paul, is fined an amount of $15,000 with a moiety thereof to the prosecutor.
The respondent is to pay the appellant's costs as agreed, or as assessed, of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2011

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