Inspector Jelley v Zac's Packs Pty Limited [2011] NSWIRComm 74 | Case summary

Consideration 21In a consideration as to penalty, the Court first assesses the objective seriousness of the offence as charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474): In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... And in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected ... 22The charges faced by the three defendants arise out of the same incident. The first defendant, Zac's Packs, is charged with breaching the provisions of ss 8(1) and (2) of the Act in putting at risk both employees and another's employees at its worksite. The second defendant, JIT Offset, is charged with breaching the provisions of s 8(1) of the Act. The individual defendant, Mr James Alexander Foran, an employee of J.I.T. Box Pty Limited ("JIT Box") (another associated corporation not before the Court), is charged with being a person concerned in the management of JIT Offset and Zac's Packs pursuant to s 26(1) of the Act and of having contravened the Act in the same manner as the corporate defendants. 23Prior to incorporation the defendants operated the business, in the packaging industry, through a family operation headed by Edward Zacaropoulos with his son, John Zacaropoulos. It had been in existence for over 64 years. Zac's Packs was incorporated in 1992 and JIT Offset and JIT Box (another related company not facing charges) were incorporated in 1995. The defendants produce corrugated cardboard, litho and litho laminated products. They are the only business entity in Australia to produce both corrugated and litho products under the one roof. While incorporated, the business is still operated as a family business, with Mr Edward Zacaropoulos attending the site on a regular basis. Mr Zacaropoulos Senior, however, had delegated the day to day operation of the business and, in particular, the production side of the business to his grandsons, Mr Paul Foran and Mr James Foran. Mr Zacaropoulos Senior retained control over higher level decisions such as the supply and purchasing of raw materials. The corporations together have some 90 employees - many, as is often found in family businesses, are long term employees. 24At the time of the incident Mr Paul Foran was General Manager and Mr James Foran was Operations Manager with responsibility for occupational health and safety. The companies operated out of the same warehouse and shared the same management and the same OHS policies and procedures. The latter was designed with the assistance of an OHS consultant who attended the premises two days a fortnight. While Mr James Foran was employed by JIT Box, both Zac's Packs and JIT Offset had employees on site performing this task. The crew members were Mr Morrison and Mr Rafla, who were employed by Zac's Packs and Mr Strange who was employed by JIT Offset. 25The facts reveal, as conceded by the defendants, that the system of work in place prior to the incident permitted the forklift operators to move two pallets at one time and to stack pallets four high. The last two pallets were lifted together. This system of work evolved over a long period of time. The system was unsafe and posed a risk to the forklift operators as well as to persons in the near vicinity of the stacked pallets. That unsafe system of work was in use on the day of the incident. 26The systems of work in place by the corporate defendants had not made provision for the safe stacking of product nor for the safe cleaning up of product, nor was a safe procedure in place for the restacking of product that had fallen. In addition, no formal system was in place for assessing the likely risk to employees and others before fallen product was cleaned up or restacked. The systems also failed to provide for the safe movement of employees and pedestrians near the stacked pallets. Further, it is accepted by the pleas of guilty entered by all, that each of the omissions created serious risks to safety to both employees and non-employees and that the risks were foreseeable. 27The Court, having sighted photographs of the condition of the stacks on that day, is of the view the risk to safety of a fall from stacks, not bound nor contained, was obvious. That element makes the offences more serious in nature. 28The availability of simple and straightforward steps to remedy the defects in the system in place is also relevant to the consideration of the objective seriousness of the offence ( WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited, unreported decision of Schmidt J dated 25 February 1994). There were such steps readily available. Stacks could have been lower and tied. Remedial activity after the incident is indicative of the fact a safe system of work was readily available and practical. 29The gravity of the potential risk to safety flowing from a breach is relevant as a measure of gravity of the breach and the culpability of the defendants ( Lawrenson Diecasting (at 474)). The potential risk of significant injury or death was not a remote possibility. There was a high risk to the safety of any person at work being required to work near these stacks. 30Evidence revealed once the stacks of cardboard fell onto the forklift Mr Rafla, the forklift driver, alighted and began to clean up the fallen sheets and was assisted by Mr Morrison and Mr Strange when a further two and a half pallet load of product, weighing approximately one tonne, fell and trapped all three employees. Each suffered injury and Mr Strange has a serious back injury. The words of Hill J, in Tyler v Sydney Electricity (1993) 47 IR 1 at (5), I find apposite: The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from the breach and its foreseeability are clearly relevant... This was a serious breach of the Act by each corporation and the risk was more than foreseeable - it was obvious. 31Mr Foran, as the Operations Manager and responsible for OH&S on site, has also committed a serious breach of the Act. It was submitted, where the crew worked under Mr Doherty as Production Supervisor and he reported to Mr Foran, the line of authority mitigates the gravity of the offence of Mr Foran. However, because the risk was so obvious - the stacks of cardboard were unbound, unprotected and too high - I do not accept Mr Doherty's position as Production Supervisor can alleviate the responsibility of the Operations Manager. Evidence was this was a very busy time over the Christmas period, that there was high demand and the normal warehouse space was not readily available. Such circumstances, rather, requires abundant caution and extra care taken to ensure safety. However, at the heart of these offences was not where the work was performed, but how it was performed. 32The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [71] - [77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example , Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] ) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 33In dealing with the issue of specific deterrence, the Court in Capral noted at [76]: ... the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence ... and further: The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence. and at [77]: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. While significant steps have been taken by the corporate defendants after the incident, to minimise and attempt to eliminate risk, an element of specific deterrence is factored into penalty against the corporate defendants who continue to operate this most successful business. 34In submissions Mr Foran contends the Court should have regard to the corporate structure in assessing any element of deterrence in its consideration of his culpability and the associated penalty in his prosecution. Reliance in support of this submission is placed upon the view expressed by Wright J (then President of the Industrial Court of NSW) in Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [43] where he stated: ... In my view, the relevant principles lead immediately to a conclusion that although questions of general deterrence are pertinent here, considerations of individual deterrence should not be accorded great weight in the very particular circumstances of both defendants and those of Mr Booth. Similarly, in considering the material as to the previous character and conduct, and the probable future life and conduct of the defendants and of Mr Booth, it is appropriate to act on the basis that the relevant individuals are persons of the highest character, both in the industry and generally, with a long and positive record in the building industry which has endured for a long period of time without their coming under adverse notice of the relevant authorities. This is particularly significant in the industry in which they operate. Such matters are entitled to great weight and they are to be taken into account in favour of the corporate defendant to a similar extent. ... 35The individual defendant submits that, in his role as Operations Manager, he reported to Mr Paul Foran and there was a structure below him where authority was held by the Production Manager and teams leaders. 36However, Mr Foran was responsible for the procedures in place before and after the incident. I also accept he ensured a rigorous review of those procedures after the incident. I also accept he is a person with an unblemished personal and industrial record and is to be viewed as a person of good character. I further accept he is a vulnerable personality, as attested to by a treating docto,r and note he has been badly affected by this incident. However, balanced against these criteria is the evidence he carried responsibility for the design, as well as the implementation, of the pre-existing OH&S policies and procedures. There will be an element of specific deterrence in all penalties. 37As to general deterrence, this warehouse operation, like most storage operations, is an inherently dangerous worksite. On site there is always the movement of forklifts, pallet stacking and removal, and much travel across worksites by both employees and moving machinery. Once more the Court must reiterate to warehouse operators the need for abundant caution especially in times of stress connected with excessive production demands. This warehouse was meeting demands for packaging by its major client, Woolworths, at the busiest time of year (the days before Christmas) but that is when greater care must be taken. It is to the credit of the defendants that such pressure in its ongoing business operation will be attenuated by an expense allocated for the construction of a new warehouse facility to provide for its re-designed storage needs. 38It is also necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A(1) of the Crimes (Sentencing Procedure) Act relevant to the defendants. As was said in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168: [56] ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c) Ultimately, all of the above factors must be considered as part of "a complex of inter-related considerations" ( R v Gallagher (1991) 23 NSWLR 220 (at 228)). 39In Cahill v State of NSW (Department of Community Services (No 4) [2008] NSWIRComm 201, Boland J (President of the Industrial Court of New South Wales) said at [62]: A simple expression of contrition or remorse by a representative of a corporate offender, no matter how senior the representative, is not enough to enable the Court to find that the offender is remorseful: As Cummins J said in DPP v Esso Australia Pty Ltd [2001] VSC 263; (2001) 124 A Crim R 200, "personal expressions of remorse need to be translated into reality". See also see Regina v Heip Tan Nguyen [2004] NSWCCA 438 per Bell J (Hidden and James JJ agreeing) at [21]. There must be evidence that the offender has accepted responsibility for its actions and also that the offender has acknowledged any injury, loss or damage caused by its actions or that it has made reparation for such injury, loss or damage (or both). Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act provides "remorse" may be taken into account as a mitigating fact if, and only if: .... the offender has provided evidence that he or she has accepted responsibility for his or her actions, and the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both). 40Boland J in Inspector Patton v Western Freight Management Pty Ltd (No 2) [2009] NSWIRComm 124 stated at [76]: The authorities establish that remorse and contrition can be demonstrated, particularly in the case of a corporation, by a variety, or combination, of factors. This can include, although not be limited to: the defendant entering a guilty plea ( WorkCover Authority (NSW) (Inspector Lai) v Rexma Pty Ltd [2008] NSWIRComm 78; 172 IR 210 at [29]); the assistance provided to the victim or the victim's family ( WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council [2000] NSWIRComm 57; 99 IR 284 at [35]); and an express statement of remorse or contrition by someone duly authorised to make such a statement on behalf of a defendant, although any statement must be assessed in light of the defendant's conduct ( WorkCover Authority of New South Wales v Hitchcock [2005] NSWIRComm 34; 139 IR 439 at [39]). 41The pleas are entered in recognition that the systems of work provided did not identify, or identify adequately, the risks associated with the movement and storage of cardboard product by forklift and/or provide systems for cleaning up and restacking. However, prior to the incident, the corporate defendants had in place an OH&S system that was documented and which provided systems of work and training to employees for most tasks. Those systems have been described in the affidavit of Mr Ngoh. This is not a warehouse site where there was no acknowledgement of workplace safety. The Court is satisfied that since the incident comprehensive reviews of all warehouse operations have been conducted; new forklifts have been purchased; tines and load guards are now used on stacks; stacks are now limited in height; new safe work procedures for forklift operators have been introduced; safe storage and clean up have been introduced. Expenditure on new warehouse facilities is to be credited. Height of stacks has been restricted. Retraining is consistently completed. The safety committee monitors the operation of the warehouse ("PAR system"). 42The relevant maximum penalty available for a corporate defendant with prior convictions is $825,000. Zac's Packs, the first defendant, has two prior convictions in relation to breaches of s 15(1) of the now repealed Occupational Health and Safety Act 1983. The conviction dated 28 July 1995 carried a penalty of $1,500 and the conviction dated 20 December 1995 carried a penalty of $40,000. Those convictions need to be considered in light of the long period of operation by the corporate defendant and the nature of its business operations together with the number of its employees. It was submitted that when those factors are taken into account, Zac's Packs has a good industrial record. However, the penalty imposed in December 1995 was related to a serious offence revealing the consequences of a basic risk to safety created by an unguarded machine used on its worksite. 43The relevant maximum penalty available for a corporate defendant with no prior convictions is $550,000. JIT Offset, the second defendant, has no prior convictions. 44The relevant maximum penalty available for an individual defendant with no prior convictions is $55,000. Mr James Foran, the third defendant, has no prior convictions. 45The corporate defendants entered pleas at the time each Amended Application for Order was filed. The utilitarian benefit of an early plea allows the Court to exercise its discretion in relation to allowing the maximum benefit to each of the corporate defendants ( R v Thomson; R v Houlton) . I allow a discount of 25 percent of penalty to the first and second defendants. 46The plea entered by the individual defendant was entered just prior to the 10 May 2011 hearing date. There was, therefore, little utilitarian value to the plea. However, the Court is entitled to take into account the fact that a guilty plea was entered. Reliance is placed upon the view expressed by Haylen J in Inspector Estreich v Ceerose Pty Ltd [2011] NSWIRComm 50 at [34] - [35], where he stated: [34] In relation to subjective matters, the issue that most divided the parties was the question of the extent to which, if at all, there should be any discount because of the pleas of guilty ultimately entered by the defendants. The prosecutor relied upon numerous passages from the guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104; At [130] the Court noted that the earlier the plea was received the greater the public benefit. The various benefits to the court and justice systems were discussed, including reducing the waste of time of witnesses and the reduction in congestion in court lists being matters of relevance in this particular jurisdiction. Other issues were of particular relevance to the general court system rather than the jurisdiction exercised by this Court. [35] Particular emphasis was placed upon the following passages in the guideline judgment: [132] All of these benefits are significantly attenuated, if not lost, to the extent that pleas occur only on the day of trial. In so far as such benefits are achieved, they enable the criminal justice system as presently resourced to reduce delays with further attendant advantages. [133] From the utilitarian perspective alone, an early plea offers distinctive and substantially greater benefits over a plea that occurs at the commencement, let alone during, a trial. By the time of the trial considerable expenditure has been incurred by the prosecution and the defence in preparing the case, witnesses and victims are in attendance, a substantial proportion of the cost of the legal aid system has already been incurred and a jury panel has been required for attendance. Furthermore, although backup trials, either criminal or civil, may be available to employ the court's time made available without notice, that may not always be the case. The frequency with which guilty pleas are made on the day of the trial is a matter which considerably disrupts the efficiency with which courts in New South Wales can plan the use of their resources. The listing of reserve trials can never be precisely accurate. This results on some occasions in adjournments, and consequently waste of resources by the parties, and on other occasions in waste of judicial and court time. Haylen J then allowed for a "modest utilitarian benefit" where a plea was entered halfway through the second day of a four day hearing. 47Taking all the above consideration into account, there shall be a 10 percent discount to Mr Foran for the utilitarian value of the plea. 48Both the corporate defendants and the individual defendant have demonstrated their remorse and contrition by the pleas of guilty; their actions after the incident in relation to the OHS system review; the support given to Mr Strange while he was receiving medical treatment; the provision of work for him after the incident. Expressions of deep regret and contrition have been made on behalf of the corporate defendants through Mr Ngoh. Mr Foran has also expressed his deep regret and contrition for the injuries sustained by Mr Strange and the risk posed to Mr Rafla and Mr Morrison. All parties came before the Court, including the elderly Principals, to express their concern that this family type operation (now corporatised) has breached the Act. 49Each defendant fully co-operated with the investigation by the WorkCover Authority of New South Wales. Mr Foran gave assistance to the investigator, Inspector Jelley, by providing the photos taken on the day of the incident, the notes he had taken about the incident and in the preservation of the incident area. The words of Wright J (then President) in Page v Walco Hoist Rentals at [26] are apposite: There are important policy considerations, both of principle and for reasons of pragmatism which have led to this situation. In Alcatel Australia Limited v WorkCover Authority of New South Wales (1996) 70 IR 90 at 106 - 107 and Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 339 - 340, it was observed by Full Benches that the policy reasons for the encouragement of early pleas of guilty and the giving of assistance to the WorkCover Authority in its investigation of suspected breaches are particularly important in a legislative scheme exemplified by the Occupational Health and Safety Act . Another important consideration was, however, emphasised in both Lawrenson Diecasting Pty Limited and Fletcher Construction Australia Limited at 474 and 81 respectively. Because of its importance in the present proceedings, it is appropriate to repeat that passage in this judgment: As recognised in Alcatel , the extent of the reduction or "discount" in penalty which will be afforded in consideration of subjective features of a case will depend on the nature of the subjective factors and the circumstances of the case. For example, the decision of the Court of Criminal Appeal in Winchester (1992) 58 A Crim R 345 at 350 properly indicates that the degree of leniency to be afforded based upon an early plea of guilty will depend upon the whether or not the plea of guilty resulted from a recognition of the inevitable. It is also appropriate to consider the nature of any assistance provided by the defendant to the investigation of the offence. 50In the circumstance before me I accept the plea entered by each defendant and I find each defendant guilty of the offences as charged. 51A Victim Impact Statement from Mr Strange has been tendered. He speaks of the difficulties his injuries have had on his daily life activities and also of the effect on his earning capacity. He has returned to limited duties. All the major shareholders and Directors of this family operation have heard of his distress and the Court is cognisant of the effect the breach to safety has had on Mr Strange. The Court expresses its admiration that he continues in the workforce. 52I accept the corporate defendants are active in the local community and are good corporate citizens who sponsor diverse local activities including soccer, softball, learning programs in western suburbs high schools and local youth club activities. Importantly, they provide training and employment opportunities to people in the local area and have done so for over 25 years as corporations, and before that through the family enterprises. These employment opportunities have been extended to persons with disabilities. The corporate character of the defendant is unblemished. However, the first defendant, Zac's Packs, has two prior industrial convictions. Its industrial record is not unblemished. 53Having regard to the evidence as to how these corporations operated together, the corporate defendants have properly conceded each corporate defendant contributed equally to the risk to safety. 54In the circumstances I enter a conviction for each breach of the Act by each corporate defendant. 55In considering the penalties to be imposed on Zac's Packs it is necessary to consider and apply the totality principle. Zac's Packs faces two charges - one under s 8(1) and the other under s 8(2) of the Act. It is therefore charged for putting at risk its employees (s 8(1)) as well as others at its worksite (s 8(2)). 56The Full Bench, in State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No.2) [2011] NSWIRComm 33, recently considered the principle of totality and its application to OHS prosecutions and stated at [452] - [454]: [452] Given that we have found the offence in Matter 1392 was not made out, we are only concerned with the penalties in Matters 1390 and 1391. As we earlier stated, the maximum penalties for the two offences is $825,000 for each offence. Schmidt J determined that the appropriate penalties for the -two offences were $250,000 for the 10 March offence and $200,000 for the 15 March offence. Having regard to the principle of totality her Honour found that because there was an overlap between the offences, the final penalties should be $200,000 for the 10 March offence and $160,000 for the 15 March offence. That was a proper application of the totality principle. [453] 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. 57There will be a variation to the penalties imposed for the offence under s 8(1) compared to the offence under s 8(2). While the risk of injury was similar, the gravity of the risk differs where, under the s 8(1) offence, there were a number of employees exposed to the risk and, under the s 8(2) offence, only one non-employee, particularly, was in effect exposed to the same risk. I find the offence under s 8(1), where the defendant Zac's Packs exposed its employees to this serious risk, should attract a penalty of $100,000. I find the offence under s 8(2), where the defendant Zac's Packs exposed some other persons who were not its employees to the same risk, should attract a penalty of $80,000. 58In the application of the principle of totality, given the commonality of each offence (which offences arose from the same incident), I find the totality of the penalties should be reduced to $130,000. Zac's Packs is therefore fined in the sum of $80,000 for its breach of s 8(1) of the Act, and in the sum of $50,000 for its breach of s 8(2) of the Act. Zac's Packs is therefore fined in the total sum of $130,000. 59The application of the principle of parity is a relevant consideration as to the penalty to be imposed for one offence by the second defendant, JIT Offset. Further that defendant comes before the Court with no prior industrial record and therefore faces a lower maximum penalty. The principle of parity in sentencing is given consideration in prosecutions which arise from the same incident. In Postiglione v The Queen (1997) 189 CLR 295, Dawson and Gaudron JJ stated the principle in the following terms at (301-303): 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. 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. 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 The Queen , 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". 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. ... 60The second defendant, JIT Offset, is charged with one offence under s 8(1) for putting its employees including, in particular, Terence John Strange, at risk. While not a co-defendant, JIT Offset faces conviction for one offence arising from the same incident as that for which Zac's Packs, the first defendant, has been convicted. Further, it is agreed that each defendant made a similar contribution to the risk. However, JIT Offset has no prior conviction and, from the evidence, had fewer employees on site. On the application of the principle of parity where, on the evidence, only one of its employees was directly exposed to the risk but where others were on the site and in a circumstance where both contributed equally to the risk, JIT Offset is fined for the offence under s 8(1) of the Act in the sum of $60,000. 61Given I accept the plea of guilty entered by Mr Foran to all charges as appropriate, it is submitted, in consideration as to the penalty to be imposed on the individual defendant for breaches of the Act, the words of Wright J (then President) in Page v Walco Hoist Rentals, are apposite (at [38] - [39]): [38] ... First, the level of culpability of a personal defendant who is deemed to have committed the offence by virtue of s 50(1) cannot be greater than that of the corporation who has been convicted or otherwise assumed to be guilty for the purposes of the operation of the section. However, most pertinently for the present proceedings, it must be recognised that the culpability of the personal or individual defendant may be less than that of the corporate defendant. It is not, in my view, a question of considering their relative contribution but assuming that the purpose of the provision is to make an individual who is responsible to an extent for the management of the corporation similarly responsible and culpable for the acts or omissions of the corporation. Although the relevant consideration is not whether, or to what extent, there is a level of contribution as between the corporate and individual defendants for the particular breach of safety which arose under the Act, it is nevertheless necessary when dealing with the precise gravity of the offence committed, or deemed to have been committed by the personal defendant, to accept the possibility or, in many cases where the individual is not simply the alter ego of the corporation, the likelihood that the level of gravity of the offence attributable to the personal defendant may be less than that which has been found to have been committed by the corporate defendant - that is, in these proceedings the first defendant. [39] In assessing the culpability of the second defendant it is, in my view, important to place particular weight upon the role of the defendant in the management of the corporation and the nature of the gravity of the offence as identified in relation to the first defendant, and to make an assessment in that context of the situation of the second defendant. Any matters of doubt should, generally speaking, be resolved in favour of the defendant: R v Olbrich (1999) 73 ALJR 1550 at 24 - 28; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699. Although the second defendant was an important and crucial part of the management of the first defendant, nevertheless he was a manager in the context of a small company which was a family company which was itself managed and run by a highly experienced manager who had many years of experience in the industry, as did those members of the family who preceded him. He was not the alter ego of the company. It would be appropriate therefore to proceed on the basis that although the second defendant would have had a significant role in decision making as to employment and the like and otherwise in the running the first defendant, it could not be assumed that he could make all crucial decisions, or changes to practices, relating to a change in employment policy as to, for example, the qualifications that would necessarily be required of all employees. Therefore, it may be appropriately assumed, and thus found for the purpose of these proceedings, that the system now in place as exemplified by paragraph 21 of the defendants' submissions was not a matter within the authority of the second defendant. Accordingly, I consider that there is a significant qualitative difference between the culpability attaching to the first and second defendants, although I find that the gravity of all of the offences is serious. And further at [41] - [42]: [41] As to the personal defendant, Mr Barber, I consider that, it can properly be concluded that he is a person of limited financial means and that any penalty, especially a significant one, will have a great impact on him. I also consider that his personal circumstances are such that there is a real likelihood that he may not continue working, or working in the building industry, for any significant time in the future. [42] The circumstance of this matter present a most difficult task for the Court in balancing all the relevant considerations. A most useful insight into the various relevant considerations however derives from a passage in the judgment of the New Zealand Court of Appeal in R v Radich [1954] NZLR 86 at 87 which was cited with the approval by the Court of Criminal Appeal ( Street CJ, Lee and Slattery JJ) 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 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. Those judgments have been referred to with approval in previous judgments of this Court. See, for example, WorkCover of New South Wales (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 335 and Ferguson v Nelmac Pty Limited at 209. 62It is contended Mr Foran was not the guiding mind of the corporation, nor the authoritative manager of the company on site, but simply the Operations Manager at the time of the incident. He, I accept, is a man of modest means. While no application is made under s 6 of the Fines Act 1996, suggesting he cannot meet any penalty imposed, it is submitted that in the consideration of penalty, given Mr Foran's particular circumstances and the subjective elements placed before the Court, that it is appropriate circumstances for the application of s 10 of the Crimes (Sentencing Procedure) Act. Reliance is placed also upon the following further facts: Mr Foran has no prior convictions; medical evidence satisfies that the incident has aggravated his pre-existing anxiety and depression. While the defendant concedes the offences may be deemed serious, he places relevance upon the view expressed by Simpson J in R v Paris [2001] NSWCCA 83 at [42], where she said: Subs 3 requires the court to have regard to the four factors listed. This is not intended to preclude the court having regard to any other relevant factors but it does require express regard to those matters identified. All that his Honour expressly mentioned in his conclusion were the extenuating circumstances in which the offence was committed. True it is that he had, in his earlier remarks on sentence, outlined matters related to the respondent's character, antecedents, age, health and mental condition but he did not clearly relate these to his views of s 10. He did, of course, set out at some length the circumstances of the offence and was therefore fully aware of its nature. On no view of it could it have been regarded as trivial. It is not necessary to the application of s 10 that the offence be characterised as trivial; the four factors mentioned in subs 3 are, in my view, intended to be disjunctive and nonexhaustive. Therefore, it is submitted, the personal circumstances of Mr Foran, seen in light of all the facts and circumstances and notwithstanding the offence was not trivial but serious, there is warrant for the exercise of s 10 of the Crimes (Sentencing Procedures) Act under which there is discretion held by the Court. 63Mr Foran has been found guilty of three breaches of the Act in his management capacity of the two corporations, Zac's Packs and JIT Offset, (as authorised under s 26 of the Act). The three prosecutions, however, arose from the same circumstances and involved employees and non-employees of both Zac's Packs (under s 8(1) and s 8(2) of the Act respectively), and JIT Offset under s 8(1). The defendant pleads guilty to each charge. I have difficulty in applying a s 10 non recorded conviction to Mr Foran given the seriousness of the offences to which he has pleaded and in a circumstance where he held management responsibility for occupational health and safety across the activities of both corporations. 64However, I accept the subjective matters placed before me including his modest financial circumstance, his health, his remorse and contrition (expressed though positive help given to the injured employees), and the fine character references on which he relies. These are all matters in mitigation of his penalty. 65Further, I accept the principal of totality is applicable to the charges Mr Foran faces. While penalty must reflect the seriousness of each offence where there are a number of charges laid against the same defendant, which charges arise from the same incident and have elements of commonality, totality is applicable. Here the offences relate to the one incident and there is much commonality. Further, the charge under s 8(2), in Mr Foran's capacity as Operations Manager of Zac's Packs, is related to the risk to Mr Strange and non-employees on site and is the same risk as that in the charge under s 8(1), in Mr Foran's capacity as Manager of JIT Offset, pleading the risk to Mr Strange (and other employees) as an employee of JIT Offset. 66For the offence under s 8(1) (through s 26(1)) for exposing employees of Zac's Packs to risk Mr Foran, as Operations Manager of Zac's Packs, is fined in the sum $3000. 67For the offence under s 8(2) (through s 26(1)) for exposing non employees of Zac's Packs to the risk Mr Foran, as Operations Manager of Zac's Packs, is fined in the sum of $2000. 68In the application of the principle of totality, Mr Foran is fined in totality in the sum of $3000. 69Therefore, Mr Foran, for placing employees of Zac's Packs at risk in breach of s 8(1), is fined in the sum of $2000. 70For placing non-employees of Zac's Packs at risk in breach of s 8(2), one of which was Mr Strange, Mr Foran is fined in the sum of $1000. 71For the offence under s 8(1) (through s 26(1)) for exposing JIT Offset's employees to risk, Mr Foran, as Operations Manager of JIT Offset, is fined in the sum of $200. 72For placing employees of JIT Offset, one of which was Mr Strange, at risk in breach of s 8(1), Mr Foran is fined in the sum of $200. Orders 73The Court makes the following orders:

For the charges brought against Zac's Packs Pty Limited in Matter No. IRC1458 of 2009, under s 8(1) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $80,000 with a moiety to the WorkCover Authority.
For the charges brought against Zac's Packs Pty Limited in Matter No. IRC1457 of 2009, under s 8(2) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $50,000 with a moiety to the WorkCover Authority.
For the charges brought against J.I.T. Offset Pty Limited in Matter No. IRC1463 of 2009, under s 8(1) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $60,000 with a moiety to the WorkCover Authority.
For the charges brought against James Alexander Foran in Matter No. IRC1461 of 2009, under s 8(1) by virtue of s 26(1) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $2000 with a moiety to the WorkCover Authority.
For the charges brought against James Alexander Foran in Matter No. IRC1462 of 2009, under s 8(2) by virtue of s 26(1) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $1000 with a moiety to the WorkCover Authority.
For the charges brought against James Alexander Foran in Matter No. IRC1465 of 2009, under s 8(1) by virtue of s 26(1) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $200 with a moiety to the WorkCover Authority.
The defendants to pay the costs of the prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2011

Inspector Jelley v Zac's Packs Pty Limited

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