Inspector Jones v Challita and Anor

CORAM: Wright J President; Walton J Vice-President; Backman J

Appeal - occupational health and safety - Occupational Health and Safety Act 2000 - s 196 of the Industrial Relations Act 1996 and s 5D of the Criminal Appeal Act 1912 - appeal against inadequacy of sentence of individual respondent- proper approach to be taken where inadequacy in the absence of specific material error identified - failure to give sufficient weight to specific deterrence - principles of specific deterrence in context of occupational health and safety prosecutions considered - whether too much weight given to subjective factors - appeal dismissed - costs. CATCHWORDS: Occupational health and safety - appeal - Occupational Health and Safety Act 2000 - s 196 of the Industrial Relations Act 1996 and s 5D of the Criminal Appeal Act 1912 - appeal against inadequacy of sentence of corporate respondent - whether failure to give appropriate weight to objective criteria - whether too much emphasis placed on prior systems - whether failure to give sufficient weight to specific deterrence - insufficient weight attributed to the financial capacity to pay a fine - whether sentence manifestly inadequate by reason of demonstrated material errors - appeal upheld - corporate respondent resentenced - costs.

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 Industrial Relations Act 1996 Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Inspector Green v Camilleri Properties Pty Limited and Anor [2006] NSWIRComm 90 Inspector Jones v Buddy Charbel Challita; Inspector Alan Jones v Mr Pump Pty Ltd [2005] NSWIRComm 385 Neal v Queen (1982) 149 CLR 305 Regina v Baker [2000] NSWCCA 85 R v Allpass (1993) 72 ACrimR 561 CASES CITED: R v Hallocoglu (1992) 29 NSWLR 67 R v Winchester (1992) 50 ACrimR 345 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of New South Wales (Insp. Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 WorkCover Authority of New South Wales (Insp. Ankucic) v McDonald's Australia Ltd (1999) 95 IR 383 WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Limited (2003) 127 IR 60 WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor Co Ltd (1999) 92 IR 392 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80

Appellant: Mr M Cahill of counsel Solicitor: Criminal Law Practice Legal Group WorkCover Authority

LEGAL REPRESENTATIVES: First respondent: Mr L Abboud, solicitor Solicitor: Leslie Abboud Solicitor

Second respondent: Mr J Xenos, solicitor Solicitor: Xenos, Lawyers

CORAM: Wright J, President Walton J, Vice-President Backman J

Appeals from a judgment of his Honour Justice Staff given in Matter No IRC 7537 of 2004

Appeals from a judgment of his Honour Justice Staff given in Matter No IRC 7538 of 2004

1 These proceedings involve appeals under s 196 of the Industrial Relations Act 1996 and s 5D of the Criminal Appeal Act 1912 against the inadequacy of sentences imposed by Staff J on 26 October 2005 in relation to the prosecutions of Buddy Charbel Challita under s 20 of the Occupational Health and Safety Act 2000 and Mr Pump Pty Ltd under s 8(1) of the 2000 Act: Inspector Jones v Buddy Charbel Challita; Inspector Alan Jones v Mr Pump Pty Ltd [2005] NSWIRComm 385. 2 The sentences were imposed by his Honour on the respondents following pleas of guilty to both charges. The first respondent, Mr Challita, was fined $600 and the second respondent, Mr Pump Pty Ltd, was fined $65,000. 3 The offences arose in circumstances where on 7 January 2003 the second respondent, described in the Agreed Statement of Facts as a supplier of concrete pumping and placing services, was contacted to provide a concrete placing boom and crew at a work site on the following day, 8 January 2003. On 8 January, the first respondent, a boom pump operator and employee of the second respondent, was assigned by the second respondent to operate a concrete placing boom for the purpose of placing concrete at the work site. A second employee of the second respondent, Marcel Budwee, was assigned to assist the first respondent as a linesman. The concrete placing boom was mounted on a truck. The first respondent was licensed to drive the truck and was certified to set up and take down the concrete placing boom. 4 The first respondent and Mr Budwee arrived at the work site between about 1.00 pm and 1.30 pm. The truck was parked at the front of the site and the first respondent spoke to Mr Ishak, the Project Manager and Site Supervisor. Mr Ishak nominated an area within the site in which the concrete placing boom could be set up but that was deemed unsuitable by the first respondent because he could not adequately deploy the stabilisers on the boom as the area had been previously filled. After further discussion the first respondent parked the truck in the driveway with the back of the truck extending outside the site across the footpath to the gutter line. To the left of the truck in the north west corner in front of the worksite stood a tree approximately nine metres tall. In addition a combination of high voltage powerlines (11kV), low voltage mains and street lighting were slung along the street frontage of the site immediately adjacent to the front boundary. The high voltage powerlines were slung about 9.5 metres above the footpath, the low voltage mains were slung about 6.6 metres above the footpath and the street lighting was slung about 7.2 metres above the footpath. Each set of wires passed directly over the rear of the truck mounted concrete placing boom as it was set up in the driveway. 5 The boom was 3950mm high when at rest. It was an agreed fact in the second respondent's case that the safe working distance for electricity mains up to 132kV (132000 volts) was 3 metres. A label stuck near the rear of the truck contained the following warning:

Unlawful to operate this equipment within 3 metres of power lines. Electrocution Hazard. Keep Clear

It was also agreed in the second respondent's case that once the truck was set up in the driveway the boom was already within the safe working distance of 3 metres before it was deployed. 6 Deployment of the boom (which was performed by the first respondent) involved unfolding it and slewing it so that it faced the rear of the site. About 20 minutes after the boom was deployed the first truckload of concrete was poured. As this was in progress a storm passed through the area consisting of rain, light hail, and very strong winds. In the final stages of the concrete pour the first respondent directed Mr Budwee to clear the lines with a sponge. Mr Budwee went to the rear side of the boom in order to complete the task. Standing nearby was another worker, Mr Chehine. The first respondent at the same time proceeded to retract the boom. As the boom was being folded the first respondent slewed it toward and into the foliage of the tree which was adjacent to the front boundary of the site. At that point he saw the power lines blowing back and forth within the foliage of the tree. He became concerned that the boom was too close to the power lines and called to Mr Budwee to assist him. There was no answer. The first respondent turned to his right and saw Mr Budwee lying on the ground. A post mortem conducted on 10 January 2003 revealed injuries to Mr Budwee consistent with electrocution. 7 Mr Chehine said that, at about the same time as the first respondent had called out to Mr Budwee for assistance, he heard a "crackling snap noise". He then turned and saw Mr Budwee lying on the ground. Mr Chehine, Mr Ishak and other independent witnesses all said that at the time of the incident the end of the boom was within the foliage of the tree. 8 The first respondent gave evidence during the sentence proceedings and conceded that he was aware of the Code of Practice (which was not further identified) which established a safe working distance of 3 metres up to 132,000 volts. He also conceded that on the day of the incident he was in possession of a safe work method statement provided to him by the second respondent. He agreed that this document contained a requirement for a written risk assessment to be undertaken and another requirement to ensure the maintenance of safe distances from power lines with specific reference to a safe working distance within 3 metres for up to 132,000 volt powerlines and a possible hazard being electrocution. He also agreed with a number of propositions that were put to him in cross-examination which may be conveniently set out in point form as: · the truck when parked at the worksite was 3950mm above road level to the top of the arm; · power lines were located 6.6m above the ground; · when the truck was parked under the powerlines it was within three metres of the safe working distance; · once the boom arm was raised (during deployment) it penetrated further into the 3 metre minimum safe working distance; · the powerlines were swinging (in the wind) to within 1.5 metres of the top of the boom arm; · the danger from the powerlines blowing back and forth in the wind was apparent and was the reason why he stopped folding or retracting the boom. Judgment at first instance

9 After reciting the facts, the submissions of the parties and the relevant sentencing principles his Honour referred to the applicable maximum penalties ($3,300 in relation to the first respondent and $550,000 in relation to the second respondent) and concluded that in respect of both respondents the offences fell in the mid range of seriousness. 10 In relation to the first respondent his Honour was satisfied that the top of the boom at rest when parked in the driveway, passed within the minimum safe working distance of the low voltage power lines. His Honour also found that the first respondent did not undertake a written risk assessment, or consult the SWMS which was supplied by the second respondent. Other findings made by his Honour in relation to the first respondent were that the first respondent knew of the existence of powerlines and appreciated the seriousness of the risk they presented. In addition his Honour found that simple steps were available which could have reduced the risk; that Mr Budwee's death manifested the seriousness of the risk to safety; and that general deterrence was significant. In relation to specific deterrence his Honour cited the well known passage in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [77] and then said (at [91]):

The first defendant no longer works as a boom pump operator, having left that industry. He now works as a fencer. In my view, this is an unusual case where I am satisfied the risk of re-offending is non-existent because the offender will not have the opportunity to commit a similar offence in the future. I therefore determine that there should be no element of specific deterrence reflected in the penalty. 11 A number of subjective factors were also taken into account in the sentencing remarks. The plea of guilty was taken into account both as to the utilitarian benefit derived from the fact of the plea (for which his Honour applied a discount of 25 per cent) and, as to the contrition reflective of the plea. Cooperation and remorse were also considered in the first respondent's favour as was the fact that the first respondent had no prior convictions. 12 His Honour then directed his attention to the first respondent's capacity to pay a fine and after an examination of the evidence and the relevant authorities proposed to take the first respondent's financial circumstances into account. A submission made on behalf of the first respondent on the application of s 10 of the Crimes (Sentencing Procedure) Act 1999 was rejected. 13 His Honour then turned to an assessment of the factors relevant to the second respondent. The risks associated with the operation of the boom in proximity to the powerlines, his Honour found, were obvious, well known and carried with them the potential for "grave, if not, fatal injury". These risks were for example both reflected in the SWMS provided by the second respondent to the first respondent and by various warning notices which appeared on the boom and on the truck. The evidence on sentence had disclosed that the first respondent did not complete the SWMS and that the second respondent relied on information given to him by Mr Chehine on 7 January 2003 about the site including information (which we interpolate turned out to be incorrect) that there were no powerlines to worry about if the truck was parked inside the site. 14 The fact that the second respondent did not undertake an inspection of its own prompted his Honour to refer to the well known principle set out in WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 which emphasised the need for employers to exercise constant vigilance to ensure safety in the workplace and adopt a pro-active approach in the search for and detection of risks to safety. Observations as to the objective seriousness of the offence made by his Honour in relation to the first respondent were adopted in relation to the second respondent. These included the gravity of the risk which was manifested by the death of Mr Budwee in accordance with the principle laid down in Tyler v Sydney Electricity (1993) 47 IR 1 and the finding that the relevant risk could have been obviated by means of a number of simple, available steps. 15 The issue of the contribution of the parties towards the offence was also examined by reference to the evidence and to the relevant authorities. On the evidence, Dewcape Pty Ltd, the head contractor, was retained to supervise sub-contractors and monitor their activities which included the requirement that sub-contractors submit SWMS. Mr Ishak, the Project Manager, had not, however, required the first defendant to provide him with a SWMS or to conduct a risk assessment. Nor was the first defendant supervised by Mr Ishak. Given these circumstances his Honour found that it was appropriate to assess the nature and seriousness of the offence alleged against the second respondent "by reference to the contribution of the second respondent to the relevant risk". 16 His Honour also took into account the principles of general and specific deterrence. In relation to specific deterrence his Honour said:

[T]he second defendant no longer engages employees and undertakes the use of the concrete placing boom himself. In my view, this is an unusual case where I am satisfied that the risk of re-offending is extremely low as a result of the decision of the second defendant to no longer engage employees and to dispose of his second concrete placing boom. However, the second defendant does continue to operate in a dangerous industry. I therefore determine that a small element of the penalty should reflect specific deterrence. 17 The second respondent's capacity to pay a fine was then considered. His Honour found that it had a limited capacity to pay a fine, was a small company, and, that a large fine would, "exacerbate the company's efforts to achieve a sustainable financial position and could have a negative impact on the overall viability of the company". His Honour proposed to approach the question of penalty in accordance with the principles in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209-210. 18 The evidence on sentence tendered on behalf of the second respondent revealed a number of safety measures which it had taken prior to the date of the offence. These measures were reviewed by his Honour (at [108]) and the following findings were made:

[134] I have formed the view that the offence is a sufficiently serious one to bring it within the mid range of the scale of culpability. I make clear that the objective seriousness of the offence is moderated by the fact that the second defendant did have in place an elaborate set of systems designed to ensure the safety of its employees in their application to this case. However, the procedures which were in place were not supported by a secondary layer of safety, for example, a copy of the SWMS being provided to the second defendant by its employees in respect of each job.

[135] The second defendant has demonstrated an impressive safety record and a conscientious approach to the safety in the workplace. However, in my view, there was an obvious risk to safety which was likely to cause and did in fact cause fatal injuries. 19 A number of factors personal to the second respondent were also considered and taken into account by his Honour in the second respondent's favour. These factors included the second respondent's good corporate citizenship, its good character as evidenced by its focus on safety prior to the incident, its demonstrated strong commitment to workplace safety, its assistance to WorkCover, its acceptance of responsibility for the incident, its swift actions taken in order to ensure that no similar incident will occur in future, and its plea of guilty which was entered at the earliest opportunity. In relation to this latter factor his Honour applied a discount of 25 per cent for the utilitarian value of the plea. 20 The absence of prior convictions was also taken into account in the second respondent's favour. Grounds of the appeals

21 The grounds of appeal raised against the first respondent list some seven grounds of appeal. The first ground asserts that the sentence is, "manifestly inadequate in all the circumstances of the case". Grounds 2 to 5 inclusive comprise a recitation by the appellant of a number of objective features which seek to emphasise the seriousness of the offence. Ground 6 relies on an asserted failure by his Honour, "to give sufficient weight to specific deterrence". Ground 7 asserts that too much weight was given to the subjective factors said to mitigate the objective seriousness of the offence. 22 It is appropriate to deal with grounds 1 to 5 together. Grounds 2 to 5 purport to provide some particularisation of ground 1, without identifying any specific error or errors. Grounds 6 and 7 will be considered separately. 23 For convenience grounds 1 to 7 are set out below:

(1) The sentence by his Honour is manifestly inadequate in all the circumstances.

(2) The respondent was aware of the safe working distances that governed the deployment and use of the boom of the concrete pumping truck.

(3) The risk of serious injury, including the risk of electrocution associated with the deployment and/or use of the boom of the concrete pumping truck in proximity to overhead electrical wires was specifically identified to and known by the respondent prior to the subject incident.

(4) The respondent was aware of the weather conditions prevailing at the time of the incident in which Mr Budwee was electrocuted and that the weather conditions compounded the risks associated with the deployment of the boom of the concrete pumping truck.

(5) The respondent was aware of simple steps that could have been taken to reduce or eliminate the risk.

(6) His Honour failed to give sufficient weight to specific deterrence.

(7) His Honour gave to (sic) much weight to the subject (sic) factors that were said to mitigate the objective seriousness of the offence. Second respondent

24 The grounds of appeal raised against the second respondent list six grounds of appeal. The first ground relies on the sentence being manifestly inadequate. Grounds 2 to 6 all assert specific errors resulting in a sentence that was manifestly inadequate. These grounds may be dealt with together. They are reproduced below:

(1) The sentence imposed upon the respondent by his Honour is manifestly inadequate in all the circumstances of the case.

(2) The sentence imposed by his Honour failed to give appropriate weight to the nature and seriousness of the subject offence having regard, in particular, to the following:

(i) the risk, to which the respondent's employees, in particular Mr Budwee, were exposed, was specifically known to and had been previously identified by the respondent;

(ii) the steps available to the respondent to ensure the safety of its employees, in particular Mr Budwee, were simple, readily available and could have been implemented with little cost and/or inconvenience to the respondent;

(iii) the detriment to safety was one that carried with it a significant risk of serious injury, including a substantial risk of electrocution; and

(iv) the serious detriment to safety manifested itself in the subject incident in which Mr Budwee was electrocuted.

(3) His Honour erred in finding that the respondent had in place "an elaborate set of systems designed to ensure the safety of its employees in their application to this case".

(4) His Honour erred in failing to give sufficient weight, to the respondent's failure to provide adequate training, instruction and supervision to its employees consistent with the particulars which the respondent admitted for the purpose of the sentence proceedings.

(5) His Honour erred in finding that, in all the circumstances, the risk of the respondent re-offending is extremely low as a result of the decision of the respondent to no longer engage employees and to dispose of his second concrete placing boom.

(6) His Honour failed, in all the circumstances, to give sufficient weight to the need for specific deterrence. Consideration

25 Having read his Honour's sentencing remarks it seems reasonably clear that the particulars set out in grounds 2 to 5 in the Notice of Appeal conform to both the evidence before his Honour in the sentencing proceedings and his Honour's conclusions. The submissions of the appellant in relation to these issues appear to suggest that, as a result of the direct knowledge of the first respondent in relation to certain matters (set out in grounds 2-5), the evidence clearly did not involve inadvertence, a momentary departure from safe practices or ignorance of the rules. It followed from this conclusion that the offence in the appellant's words, was, "objectively most serious and called for the imposition of condign punishment". 26 The error which the appellant seeks to make good in relation to these issues concerns his Honour's assessment of the objective seriousness of the offence as falling within the mid range. In other words it appears to us that grounds 1-5 at least, rely, in the absence of identification of any specific error, on an assertion of manifest inadequacy as a conclusion that some error in the sentencing process has been made. Reliance on the conclusion that the sentence is manifestly inadequate does not preclude an appellate Court from intervening in the sentencing process at first instance: WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Limited (2003) 127 IR 60 at [62]; Inspector Green v Camilleri Properties Pty Limited and Anor [2006] NSWIRComm 90 at [25]. 27 Nevertheless prosecution appeals which rely on the contention that the sentence is manifestly inadequate in the absence of specific errors as the foundation for that conclusion, should be approached with great caution by appellate courts in deciding whether to interfere with the sentencing discretion at first instance. 28 This observation (which is uncontroversial and well-known) finds support in a number of authorities. For present purposes we will refer briefly to two such authorities. The first is R v Hallocoglu (1992) 29 NSWLR 67 where Hunt CJ at CL (with whom Grove and Sharpe JJ agreed) observed (at 78):

A Crown appeal against inadequacy will not usually be allowed unless the judge has acted upon a wrong principle or upon a misunderstanding or a wrong assessment of the evidence. Such an error may be demonstrated by the sentence itself, where it is not merely inadequate but manifestly so. In the absence of a well documented mistake, the discretion of the sentencing judge will be interfered with only in a compelling case; it is not sufficient that this Court would have imposed a more severe sentence: see, generally, R v Tait (1979) 46 FLR 386 at 387-390; 24 ALR 473 at 476-477; R v Holder [1983] 3 NSWLR 245 at 252-256; R v Dodd (at 353). 29 A similar observation was made in Regina v Baker [2000] NSWCCA 85 at [19] by Spigelman CJ (with whom Grove and Hidden JJ agreed):

The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principal must have occurred. 30 As grounds 1 to 5 in the first respondent's Notice of Appeal rely on the conclusion that the penalty imposed on the first respondent was manifestly inadequate, it is appropriate that this Court be guided by the sentencing principles set out above concerning prosecution appeals against manifest inadequacy where the ground of appeal relied upon does not assert any specific error in the sentencing reasons. The first respondent faced a maximum penalty of $3,300. After his Honour discounted the penalty by 25 per cent because of the early guilty plea, a fine was imposed of $600. Taking into account the sentence principles referred to above, the principle of double jeopardy, the maximum penalty available and the actual penalty imposed on the first respondent, we do not consider that the sentence was manifestly inadequate. Accordingly, grounds 1 to 5 are not made out. Ground 6: first respondent 31 We turn now to consider ground 6 in the Notice of Appeal which asserts a failure to give sufficient weight to specific deterrence. We would commence our consideration of this particular ground with the preliminary observation that questions of weight are clearly within the province of the sentencing judge and should be interfered with at appellate level only in limited circumstances. In Regina v Baker for example (at [11]) the following observation was made by Spigelman CJ:

The use of terminology such as "sufficient weight" highlights the difficulty for the Crown case. Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of "weight" will justify intervention by an appellate court are narrowly confined. 32 The evidence before his Honour on this issue revealed that the first respondent no longer operates a line pump or boom pump and now works as a self employed fencing contractor. In his affidavit which was tendered during the sentence proceedings the first respondent explained that he, "had to change his line of work... and train to do fencing... I can never go back to pumping concrete." Based on this evidence his Honour concluded that the risk of the first respondent re-offending was "non-existent because he would not have the opportunity to commit a similar offence in the future". Accordingly, his Honour determined that there should be no element of specific deterrence reflected in the penalty. 33 The reference to, "similar offence", by his Honour is a reference to the passage at [77] in Capral Aluminium. An examination of that passage suggests that the statement was made in the context of sentencing generally as distinct from the particular considerations pertaining to the principle in its application to occupational health and safety offences. In relation to those types of offences the Full Bench placed the relevance of specific deterrence in a special category when it observed:

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. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46. 34 We do not suggest that the passage referred to above requires that in all cases the sentencing judge is obliged to give weight to specific deterrence. Nevertheless the passage clearly sets the parameters in which the principle should be applied and limits considerably those circumstances where the principle may not be invoked in the context of occupational health and safety offences by a sentencing judge without falling into error. We would emphasise, however, that the expression of the principle and its breadth of application as suggested in Capral Aluminium in the passage at [77], is not confined to those offenders under the occupational health and safety legislation who are also employers. Specific deterrence is applicable to any offender under the 2000 Act as the deterrence is for avoidance of crimes generally under that Act and the various classes of offenders relating thereto. 35 In our view his Honour fell into error in holding that the principle had no application to the circumstances of the first respondent. While the first respondent continues to operate as a fencer, a trade associated with the building industry, it cannot be said that the first respondent will not have an opportunity to commit further occupational health and safety offences. 36 Notwithstanding our conclusion that his Honour erred in relation to the applicability of specific deterrence we decline to intervene in order to re-sentence the first respondent. We have already expressed our view that the penalty imposed on the first respondent was not manifestly inadequate. The identification of a specific material error in the sentencing reasons does not in this instance alter that view. The discretion of an appellate Court not to interfere even where error has been shown has never been in doubt in this jurisdiction. In WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor Co Ltd (1999) 92 IR 392 Wright J, President, (who was in the minority) discussed the correct approach to be taken to the principles on Crown appeals by reference to the Court of Criminal Appeal judgment in R v Allpass (1993) 72 ACrimR 561. In R v Allpass the Full Court detailed the circumstances in which an appellate Court may exercise its discretion to intervene to re-sentence an offender in the event of a successful Crown appeal, and added:

[5] An appellate court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection the conduct of the Crown at the original sentencing proceedings may be a matter of significance. 37 WorkCover v Allen Taylor was also the subject of comment in WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty. In referring to the two types of error which may be demonstrated in a sentencing judge's reasons and which may result in appellate intervention, the Full Bench confirmed the existence of the discretion not to intervene where error is found (at [53]):

The identification of either type of error is sufficient to enable intervention by an appellate court. The appellate court is not required, in our view, to find an additional element of novelty, as suggested by Hungerford and Peterson JJ in Mayo-Ramsay v Allen Taylor. Clearly, however, an appellate court in a Crown appeal has an obligation to act with caution or restraint, given the principle of double jeopardy and the Court's overriding discretion not to intervene: see Kirby J's observations in Dinsdale v The Queen (2000) 202 CLR 321 at 341 - 342 and in Wong v R (2001) 185 ALR 233 at 263; see also R v Allpass at 562 - 563, the joint judgment of Brennan , Deane , Dawson and Gaudron JJ in Everett v The Queen (1994) 181 CLR 295 at 299 and Batty v Graincorp . 38 Accordingly this ground of appeal should also be rejected. Ground 7: first respondent

39 The seventh ground raised against the first respondent alleges that too much weight was given to subjective matters in mitigation by his Honour. We do not agree. His Honour accepted that the guilty plea reflected contrition on the part of the defendant. This his Honour was entitled to do in light of relevant authority: R v Winchester (1992) 50 ACrimR 345 at 350. His Honour also considered it appropriate to take into account the remorse demonstrated by the first defendant. In his affidavit, the first respondent said that he was depressed and upset at the death of Mr Budwee and that he continues to have nightmares and flashbacks where he sees Mr Budwee shaking on the ground. He has not done any concrete plumbing work since the accident. Emotional problems provoking difficult personal circumstances are acceptable within the sentencing process as a mitigating factor: Neal v Queen (1982) 149 CLR 305 at 315; WorkCover Authority of New South Wales (Insp. Ankucic) v McDonald's Australia Ltd (1999) 95 IR 383 at 454; WorkCover Authority of New South Wales (Insp. Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 at 478. His Honour also took into account, as he was entitled to, the cooperation provided to WorkCover during its investigations and the absence of prior convictions. Also taken into account was the first respondent's financial position. This latter factor was not specifically addressed in relation to the first respondent by the appellant either in written or oral submissions. 40 In all the circumstances, we perceive no error in his Honour's approach to the factors personal to the first respondent. There is nothing in the sentencing reasons which might facilitate the conclusion that too much weight was given to these factors. The ground of appeal therefore also fails. 41 Having regard to the foregoing reasons, the appeal brought in relation to the first respondent should be dismissed. Grounds 1 to 6: second respondent

42 The grounds of appeal raised by the second respondent allege both types of error in the sentencing reasons, namely manifest inadequacy in the absence of specific error and a number of specific material errors nominated in grounds 2 to 6 of the Notice of Appeal. It is appropriate that we consider first the alleged specific errors. Those errors separately allege a failure to give appropriate weight to the objective seriousness of the offence by reference to certain objective criteria; the emphasis placed by his Honour on the second respondent's systems in place prior to the offence; a failure to give sufficient weight to the particulars of the offence; and a failure to give sufficient weight to specific deterrence. A further ground of appeal not nominated in the Notice of Appeal under the heading "Grounds of Appeal", but raised in oral submissions by the appellant concerns the weight attributed to the second respondent's financial capacity to pay a fine. We propose to deal with each of these alleged specific errors in turn. Failure to give appropriate weight to the objective criteria

43 The second ground of appeal asserts that his Honour in the sentencing remarks failed to give appropriate weight to four objective criteria when imposing a penalty on the second respondent. The first criterion refers to a failure in relation to the relevant risk to safety which, according to the applicant, was both known and earlier identified by the second respondent. The relevant risk was identified in the sentencing remarks as "the risks" associated with the overhead electricity cables located adjacent to the street frontage at the site. In relation to these risks his Honour said:

The risks associated with the operation of the concrete placing boom in proximity to overhead electrical mains was an obvious and well known risk that carried with it the clear potential for grave, if not fatal, injury. The subject risks were actually known to the defendant and clearly reflected in the SWMS provided by the second defendant to the first defendant and by warning notices, regarding safe working distances posted on the concrete boom and the truck itself. 44 It is obvious from the above passage that his Honour had regard to the relevant risks which were expressly acknowledged as both known and previously identified. His Honour also recognised the seriousness of the risks when his Honour observed that those risks had the potential to result in a fatal injury. Given these findings there is no basis upon which we should conclude that his Honour did not give appropriate weight to those risks. 45 The appellant also contended that inappropriate weight was given to the availability of simple, inexpensive steps which would have ensured the safety of Mr Budwee and others but were not implemented. His Honour however (at [112] of the judgment) expressly adopted against the second respondent the readily available measures which were found against the first respondent (at [86] of the judgment) and which his Honour recognised would have obviated or at least reduced the risk. There is nothing in his Honour's reasons or findings in relation to this objective criterion which could justify a conclusion that inappropriate weight was attributed to this particular criterion. 46 A third objective criterion upon which the appellant relies to make good the assertion of inappropriate weight concerns the detriment to safety which carried with it a significant risk of injury, including a "substantial risk" of electrocution. His Honour, however, recognised and took into account that the risks had the potential for, "grave if not fatal injury". His Honour also noted that the second respondent expressly conceded that the seriousness of the risk reflected in the potential for fatal injury was relevant as a measure of gravity of the breach (at [107]). This is in accordance with established principle. His Honour also expressly referred to and took into account as relevant to the seriousness of the risk, the fourth criterion upon which the appellant relies to make good the assertion of inappropriate weight, namely, that the serious "detriment to safety" manifested itself in Mr Budwee's electrocution. At [111] of the judgment his Honour said:

My observations in respect of the first defendant and the death of Mr Budwee are also applicable to the second defendant. Mr Budwee's death is manifest evidence of the gravity of the detriment to safety involved in the subject operation: Tyler v Sydney Electricity. 47 The sentencing reasons and his Honour's findings, in our view suggest, contrary to the appellant's contentions of inappropriate weight, that his Honour not only took the criteria into account but found that they had contributed to the objective seriousness of the offence. Given this approach we are unable to discern any relevant error. Emphasis placed on prior systems

48 The third ground of appeal relies on an error in his Honour's finding that the second respondent had in place prior to the offence "an elaborate set of systems" designed to ensure the safety of employees. In both written and oral submissions the appellant contended that documentation created and developed by the second respondent such as its safety policy did not warrant the description of an "elaborate" system. The safety policy, for example, consisted of two typed pages which the appellant described as "general exhortations to safety". Moreover, the second respondent did not produce any written records of safety training provided to either the first respondent or Mr Budwee, and, did not produce any copies of the SWMS said to have been worked through with the workers. In any event, the SWMS did not provide for operation of the boom during high winds or electrical storms. The second respondent also did not have a system in place to enable assessment of its employees' compliance with safety policies. The first respondent for example was not required by Mr Tohme, the director of the second respondent, to hand him a copy of the SWMS. Nor was there any evidence during the sentence proceedings to suggest that the second respondent had a risk assessment system. 49 It is appropriate to reproduce his Honour's findings in relation to the safety system which was put in place by the second respondent prior to the offence. At [108] and [110] his Honour said:

[108] In respect of the second defendant, the risk to safety was identified and safety procedures and instructions were developed to address the risk. Upon engaging employees, Mr Tohme reviewed his occupational health and safety procedures and developed his own SWMS. The SWMS identified the risk presented by power lines and outlined safe working distances for working in the vicinity of power lines, including a three metre safe working distance for cables carrying voltage of up to 132,000 volts, six metres for above 132,000 volts and 8 metres for above 330,000 volts. Copies of the SWMS were kept in the cabin of the pump truck and the first defendant was instructed to complete an SWMS at each job with the site supervisor prior to the commencement of work. An occupational health and safety course was undertaken by the employees.

[110] In respect of this accident, the first defendant did not complete a SWMS. Management has a positive obligation of not only informing itself of proper and safe working methods but also of ensuring that proper safe working methods are followed by those persons for whom they are responsible. The second defendant relied on information provided to him regarding the site without undertaking an inspection. In my view, proceeding with the job in circumstances where the first defendant had significant reservations about the risk was indicative of a lack of proper training and supervision. This was compounded with the "take down" of the boom during high wind conditions at the time of the subject accident. 50 At [134] and [135] set out earlier in these reasons, his Honour recorded his findings as to the second respondent's system by expressing first the view that the system was "elaborate", and then, after qualifying the system on the basis that it had lacked "a secondary layer of safety", describing the system as "impressive". 51 It is apparent to us from the extract of his Honour's reasons at [134] and [135] that the second respondent had created and implemented a system designed to ensure the safety of its employees which was in operation prior to the offence. The system was reasonably comprehensive particularly having regard to the size of the second respondent's operations and part of that system was specifically tailored to the prevention of the identified risks associated with powerlines and working in the vicinity of powerlines. His Honour recognised that the procedures which were in place were not supported by a "secondary level of safety" such as the provision of a SWMS to the second respondent in respect of each job undertaken. Nevertheless in our view this did not preclude his Honour from describing the system as "elaborate". His Honour, we note, later described the system as "impressive", after the comment that the "elaborate" system was otherwise qualified by the absence of a secondary layer of safety. Given these considerations we perceive no error on his Honour's part in so describing the system. Failure to give sufficient weight to the particulars of the offence

52 The fourth ground of appeal alleges a failure by his Honour to give sufficient weight to the particulars of the offence. We see no basis for this allegation. In the passage earlier quoted at [110] of his Honour's sentencing remarks, his Honour clearly took into account in assessing the objective seriousness of the offence the fact that the second respondent relied on information about the site without making his own inspection. His Honour also expressly found that conduct on the part of the second respondent was indicative of a lack of proper training and supervision. Failure to give sufficient weight to specific deterrence

53 Grounds 5 and 6 of the Notice of Appeal assert error in the finding by his Honour that the risk of the second respondent re-offending was low and that his Honour failed to give sufficient weight to specific deterrence. 54 During oral submissions the appellant directed our attention to certain evidence which was before the Court at first instance and which suggested that the second respondent following the commission of the offence continued to pay contractors. In a Trading Profit and Loss Statement for the year ended 30 June 2004 the sum of $72,489.35 was apparently spent on contractors. Wages and salaries as a separate item were expended in an amount of $112,830. This material, which was specifically brought to his Honour's attention, upon which Mr Tohme was extensively cross-examined, suggests that the second respondent continued to engage sub-contractors following the offence. The second respondent operates in the building industry which was acknowledged by his Honour as a dangerous industry. The combination of these factors must necessarily result in a characterisation of the risk of re-offending under the occupational health and safety legislation as other than "extremely low" which in turn should have significant effect on the ultimate penalty. We also apply our earlier observations concerning the principle in relation to the first respondent. We also note that, as well as continuing to employ sub-contractors, the wife of the director, Mr Tohme, was employed by the second respondent as the bookkeeper, and that thus, even if only on that basis, the second respondent continues to be "an employer" for the purposes of the statute. Taking into account these considerations we conclude that his Honour fell into error when characterising the risk of re-offending as "extremely low" and determining that a "small element" of penalty should reflect this. Insufficient weight attributed to the financial capacity to pay a fine

55 Finally, the appellant also relies on his Honour's findings concerning the second respondent's financial capacity to pay a fine as disclosing further error. In relation to this finding his Honour first examined the relevant authorities and then said:

[122] Clearly, the second defendant is a small company. Mr Tohme is the sole director of the second defendant and employs no other persons, excepting his wife, who undertakes bookkeeping for the company. The Income Tax Returns for the company clearly demonstrate, in my view, that the second defendant has limited resources to pay a large fine. Certainly, a large fine will exacerbate the company's efforts to achieve a sustainable financial position and could have a negative impact on the overall viability of the company. I propose to approach this aspect of penalty in accordance with the observations of Wright J, President in Ferguson v Nelmac , set out earlier in this judgment. 56 The material tendered on sentence suggested that the second respondent's business generated a sizable profit. The evidence disclosed that the business was a husband and wife operation. Salaries and wages for the year ended 30 June 2004 according to the Trade Profit and Loss Statement were, as already mentioned, $112,830. The Balance Sheet for the same year shows Current Liabilities owed to Mr Tohme, the sole director, in the sum of $513,442.80, and cash at bank in the sum of $218,752.78. The total profit disclosed in both the second respondent's tax return for 2004 and in the Balance Sheet is $141,727 and the tax return shows a taxable income of $142,190. These figures suggest that, contrary to his Honour's finding, the second respondent generates a relatively high turnover and is in a relatively secure financial position. It was certainly not one properly attracting a discount on the penalty initially imposed. To the extent that his Honour found otherwise it is our view that his Honour fell into error. Adequacy of sentence

57 This leads us to a consideration of whether or not in all the circumstances the penalty imposed against the second respondent was manifestly inadequate. In our view the penalty was below what was appropriate in the circumstances and was so manifestly inadequate that the inference may be drawn that there has been a failure to properly exercise the sentencing discretion at first instance: see Dinsdale v The Queen (2000) 202 CLR 321 at 340. In addition, the reasons and findings at first instance concerning his Honour's treatment of the principle of specific deterrence and the second respondent's capacity to pay a fine, demonstrate material errors. The existence of these errors and the inadequacy of the penalty justify in our view the exercise of our discretion to intervene and resentence the second respondent: WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd. 58 In assessing the appropriate penalty against the second respondent we consider that the offence was serious although we recognise as his Honour did at first instance, that the second respondent's systems of safety which were in place and in operation prior to the offence mitigated the objective seriousness of the offence. We also take into account a number of subjective factors which his Honour at first instance also acknowledged in the second respondent's favour including the early plea of guilty which warrants a discount of 25 per cent, the absence of any prior convictions, as well as the contrition, remorse and the cooperation with WorkCover. The respective contributions of other parties to the risk to safety add the context in which to consider the true contribution of the second respondent to that risk, and we agree with his Honour's analysis in that regard. In addition to the discount of penalty awarded by reason of the subjective factors referred to above we are mindful of the principle of double jeopardy which requires an appellate Court in resentencing in relation to Crown appeals to impose a penalty at the lower end of the scale, bearing in mind the maximum penalty here which is $550,000. We consider therefore the appropriate penalty in the circumstances should be $75,000. 59 We accordingly order:

In Matter No IRC 5877 of 2005: (1) The appeal is dismissed; (2) The appellant shall pay the respondent's costs of the appeal.

In Matter No IRC 5878 of 2005: (1) The appeal is upheld; (2) The penalty at first instance is set aside and the respondent is fined $75,000 with a moiety thereof to be paid to appellant; (3) No order as to the costs of the appeal.

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