Inspector Jurmann v Port Kembla Copper Pty Ltd

Industrial Relations Commission (NSW)|1992-07-14|Before: Marks J, Mr P

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Jurmann v Port Kembla Copper Pty Ltd [2004] NSWIRComm 150 PROSECUTOR Inspector Brett Jurmann PARTIES : DEFENDANT Port Kembla Copper Pty Ltd FILE NUMBER: 4487 of 2003 CORAM: Marks J CATCHWORDS : OH&S prosecution - early plea of guilty - assessment of appropriate penalty - objective seriousness of offence considered - prior convictions - discount applied - proper approach to fixing penalty where a concurrent jurisdiction with much reduced maximum penalty - case authorities considered - appropriate approach based on legislative regime - moiety and costs ordered. Commonwealth Crimes Act Crimes Act LEGISLATION CITED : Occupational Health and Safety Act 1983 s15(1) Occupational Health & Safety Act 2000 (NSW) Social Services Act Taxation Administration Act Bardo (unreported, 14 July 1992, NSWCCA) Inspector Carmody v Frankel [2003] NSWIRComm 159 Miller (1989) 44 A Crim R 185 at 189 CASES CITED : R v Whitnall (1993) 42 FCR 512 R v Finlay (20 December 1996, NSWCCA 60339/96) Sandford (1994) 72 A Crim R 160 Scott v Cameron (1980) 26 SASR 321 WorkCover Authority of New South Wales (Inspector Robbins) v Ecolab Pty Ltd (1999) NSWIRComm 300 HEARING DATES: 05/27/2004 DATE OF JUDGMENT: 07/14/2004

PROSECUTOR Ms Lowson for WorkCover Authority Solicitor: Mr N A Correy Moray and Agnew Solicitors

LEGAL REPRESENTATIVES: DEFENDANT Mr P Hall QC Solicitor: Lea Constantine Blake Dawson Waldron

JUDGMENT: - 19 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Wednesday 14 July 2004 Matter No IRC 4487 of 2003 INSPECTOR BRETT JURMANN v PORT KEMBLA COPPER PTY LTD Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT NSWIRComm 150

1 By amended order the Prosecutor, Inspector Brett Jurmann of the WorkCover Authority of New South Wales, has charged the defendant, Port Kembla Copper Pty Ltd, with a breach of s 15(1) of the Occupational Health and Safety Act 1983 ("the Act"). The charge is in the following terms: PORT KEMBLA COPPER PTY LTD [ACN 076 258 976] a company duly incorporated and having its registered office at Military Road, Port Kembla in the State of New South Wales (the defendant) being an employer on 14 August 2001 at the precious metals plant ("PMP") within the defendant's premises at Military Road, Port Kembla in the State of New South Wales ("the premises"); DID FAIL To ensure the health, safety and welfare at work of its employees, including Claude Franze (the worker), contrary to s.15(1) of the Occupational Health & Safety Act 1983 in that the said worker, while engaged in work involving the operation of the Supaflo Filter Press (the machine) which was situated within the PMP of the premises, the machine blew slimes containing, among other things, sulphuric acid, into the right side of his face causing serious injury to him by reason that: 1. The defendant failed to provide and maintain a system of work that was safe and without risk to health in relation to the work involving operation of the machine in that: (a) there were no adequate protective devices in place to screen emissions of hazardous substances at all material times when workers were in the vicinity of the machine; (b) location of control switches for the machine in close proximity to it when it was prone to such emissions of hazardous substances, was inappropriate; (c) no proper risk assessment had been conducted in relation to the work of processing of hazardous substances in the machine; (d) the conduct of work, involving the operation of the machine when a proper risk assessment had not been conducted identifying the dangers from such emissions of hazardous substances, was unsafe; (e) it failed to prevent or adequately control the workers exposure to hazardous substances by measures other than the provision of personal protective equipment. 2. The defendant failed to provide and maintain plant, to wit, the machine, in a condition that was safe and without risk to health in that it was prone to spontaneous emissions of hazardous substances from it; 3. The defendant failed to provide such information, instruction, training and supervision in relation to work involving the operation of the machine in the processing of slimes as was necessary to ensure the health and safety at work of its employees. Particulars of which are as follows: (i) The defendant was at all material times an employer; (ii) At all material times the defendant employed the worker as a refinery process technician; (iii) At all material times the defendant operated the machine known as the Superflo Filter Press at the premises; (iv) At all material times the slimes being processed in the machine were hazardous substances within the meaning of the Occupational Health & Safety (Hazardous Substances) Regulation 1996; (v) The worker sustained serious injuries on 14 August 2001 when he was sprayed with slimes which emanated from the machine.

2 The defendant pleaded guilty to the amended charge and this judgment is concerned solely with penalty.

3 There was tendered into evidence an agreed statement of facts in the following terms: 1. The Inspector prosecuting this matter is duly appointed under Division 1 of Part 5 of the Occupational Health & Safety Act 2000 (NSW) and empowered under s.106(1)(c) of the said Act to institute proceedings in the within matter. 2. PORT KEMBLA COPPER PTY LTD [ACN 076 258 976] ("the defendant") is a company duly incorporated and has its registered office at Military Road, Port Kembla in the State of New South Wales. 3. The defendant, at all material times, conducted its operations involving the smelting of copper and refining of metal from its premises at Military Road, Port Kembla 2505, in the State of New South Wales ("the premises"). 4. At all material times the defendant was an employer and employed Claude Franze ("Franze") as a refinery process technician. 5. Franze commenced employment with the defendant in approximately January 2000. 6. The defendant's refining operations are conducted in areas including the Tank House and the Precious Metals Plant. 7. As part of the defendant's copper refining process cathodes were grown in an electrolyte solution in a tank. Metal impurities, referred to as "slimes", form as part of this process and are removed from the electrolyte solution. 8. At all material times, the defendant owned and operated a SupaFlo Filter ("the machine"). The machine was used in the copper refining process to remove the slimes from the electrolyte solution. 9. The machine was located in the Precious Metals Plant at the top of a platform approximately 6 metres from the ground. Access to the machine was via a set of stairs. There was a short landing where the stairs met the platform. At the end of the landing adjacent to the machine was the machine's control panel. 10. The machine consists of a number of filter plates covered by cloth filter bags. Electrolyte solution is injected into the filter plates through a pipe at one end of the machine. The filter plates are then compressed by a hydraulic ram which is also located at one end of the machine. The pressure created by the compression of the filter plates causes the electrolyte to be discharged from the electrolyte solution. The electrolyte is then filtered away from the machine through a second pipe located at the other end of the machine. Once the electrolyte has been discharged from the plates, a cake of slimes remains stuck between the filter plates. 11. The slimes attached to the filter plates consist of a mixture of metals consisting of approximately 70% water, 20% sulphuric acid and 5% copper. Due to the presence of sulphuric acid, slimes are classed as corrosive and classified as hazardous according to the criteria of Worksafe Australia. The concentration of sulphuric acid in the slimes can be of a lower percentage of slimes produced during the refining process. 12. The machine's filtering process, or cycle, takes approximately 1 hour and can occur several times in one day while the machine is in operation. At the end of each filtering cycle, an alarm is automatically activated and sounds throughout the Precious Metals Plant to alert technicians that the cycle is complete. 13. A technician must ascend the stairs to the machine in order to access the control panel to stop, or acknowledge, the alarm. Once the alarm is acknowledged, the ram of the machine decompresses, the filter plates open and are agitated if needed, to shake the slimes off the filter plates. The loosened slimes are discharged through the bottom of the machine into a steel hopper located beneath the platform. 14. At various times prior to 14 August 2001 the defendant was aware of incidents in which slimes, mixed with electrolyte and water, had sprayed from the machine contrary to the normal operation of the machine. Recorded instances of emissions from the machine were reported on 4 and 6 May 2000 and 13 March 2001. 15. Prior to 14 August 2001 the defendant had investigated the cause of emissions from the machine. The defendant had performed maintenance on the machine and made modifications to the machine to reduce and eliminate the emissions. One such modification was the placement of a protective tarpaulin which was positioned over a handrail which was located adjacent to the machine and was approximately waist height, in such a position where it was intended to prevent emissions from spraying onto the stairway access to the control panel of the machine or onto the ground below. It is not known whether the tarpaulin was in place on 14 August 2001. 16. At approximately 11:00 pm on 14 August 2001, Franze ascended the stairs of the machine in order to acknowledge the alarm which was sounding indicating that the machine cycle was complete. Franze pressed the alarm button on the control panel of the machine. Franze turned away from the control panel to proceed back down the stairs when he was sprayed with slimes which struck his face and went behind his safety glasses. 17. Franze suffered corrosive burn injuries to his right eye and was unable to resume his normal work for a period in excess of seven days following the incident. 18. At the time of the accident, Franze was wearing safety glasses, safety gloves, a safety helmet and a respirator around his neck. 19. Prior to 14 August 2001, Franze received classroom style and on the job training in relation to electrolyte circulation and the handling of slimes and was certified as competent to operate the machine. At all material times prior to and on the accident date the training received by Franze did not include information or warning in relation to the risk of possible emissions of slimes from the machine during its operation. 20. At all material times on 14 August 2001, there was no adequate protective screening provided by the defendant to ensure that any emission from the machine was prevented from coming into contact with any workers. 21. Following the accident, the defendant undertook an internal investigation ("the Company Investigation"). 22. The Company Investigation determined that pipe work to the machine may have been partially blocked with solid material at the time of the incident, leading to a build-up of pressure which caused the emission from the machine. The partial blockage may have developed in the days prior to the accident date when the machine had not been in operation. 23. Subsequent to the incident involving Franze, and as a result of the Company Investigation, the defendant made further changes to the machine involving the construction of a permanent sliding perspex barrier to prevent emissions coming into contact with workers and introduced procedural changes to ensure that the manual flush of the machine was conducted when it had been off line for a period of time to ensure that any sediment which had formed and could have led to residual filter pressure, was averted. The permanent perspex barrier was extended to the roof. 24. After the accident, the defendant prepared a new written procedure for the task performed by Franze entitled Operating Supaflo Filter - PKC - 11306 RF-SL-1-9 ("the New Supaflo Procedure"). The New Supaflo Procedure includes instruction on how to safely operate the machine and requires that the technician ensure that the perspex barrier is in place prior to accessing the control panel in order to acknowledge the alarm and end the filter cycle. 25. After the accident, the defendant prepared a new written procedure for the task performed by Franze entitled Operation of Raw Slimes Handling Area - PKC - 9547 RF-SL.1.1 ("the New Slimes Procedure"). The Slimes New Procedure alerts technicians to the hazard of electrolyte splashes when working with electrolyte and slimes. 26. The alleged offence committed by the defendant under s.15(1) of the Occupational Health & Safety Act 1983 is that on 14 August 2001 at the premises, the defendant failed to ensure the health, safety and welfare at work of its employees, including Franze, in that Franze, while engaged in work involving the operation of the Supaflo filter press, which was situated within the precious metals plant of the premises, the machine blew slimes containing, among other things, sulphuric acid, into the right side of his face causing serious injury to him by reason that: (a) The defendant failed to provide and maintain a system of work that was safe and without risk to health in relation to the work involving operation of the machine in that: (i) there were no adequate protective devices in place to screen emissions of hazardous substances at all material times when workers were in the vicinity of the machine; (ii) location of control switches for the machine in close proximity to it when it was prone to such emissions of hazardous substances, was inappropriate; (iii) no proper risk assessment had been conducted in relation to the work of processing of hazardous substances in the machine; (iv) the conduct of work, involving the operation of the machine when a proper risk assessment had not been conducted identifying the dangers from such emissions of hazardous substances, was unsafe; and (v) it failed to prevent or adequately control the worker's exposure to hazardous substances by measures other than the provision of personal protective equipment. (b) the defendant failed to provide and maintain plant, to wit, the machine, in a condition that was safe and without risk to health in that it was prone to spontaneous emissions of hazardous substances from it; and (c) the defendant failed to provide such information, instruction, training and supervision in relation to work involving the operation of the machine in the processing of slimes as was necessary to ensure the health and safety at work of its employees. As a result of the said failures, Claude Franze was injured.

4 In addition, the prosecutor tendered in evidence a number of factual reports, photographs and other material relating to the proceedings.

5 The defendant tendered an affidavit of James Wayne McNamara, formerly the Occupational Health and Safety Superintendent employed by the defendant, and an affidavit of Mathew Cox, formerly employed as Refinery Superintendent. I understand this position to have been the most senior position in the defendant's organisation in terms of the refinery processes which covered the area of the defendant's operations and which was the subject of these proceedings. Mr Cox has tertiary qualifications in chemistry.

6 There are a number of factual matters contained within the affidavit of Mr Cox which the defendant submitted were relevant and which supplement the evidentiary material contained in the agreed statement of facts.

7 The first relates to the contents of paragraph 14 of the agreed statement of facts which refers to three previous incidents. It was the evidence of Mr Cox, supported by documentation, that each of these three prior incidents had a different cause, each had been thoroughly examined and the equipment and processes utilised had been modified so as to endeavour to reduce and eliminate any further emissions. Therefore, the incident which occurred on 14 August 2001 had a different cause to any prior reported incident. It was further submitted that neither the prosecutor nor the defendant was able to identify with precision the cause of the incident on 14 August 2001 which gave rise to these proceedings. An internal investigation report is indicative that the incident was thoroughly investigated by the defendant, the equipment was thoroughly tested and that measures were identified to reduce or eliminate any further problems associated with the operation of the equipment.

8 Mr Cox also commented that the defendant's "refinery operations used and produced chemical substances which were corrosive and in some cases classified as hazardous substances. Due to the presence of Sulphuric Acid, slimes are classed as corrosive and classified as hazardous according to the WorkSafe Australia. The concentration of Sulphuric Acid in slimes, however, will not cause immediate damage to clothing or skin." Whilst Mr P Hall QC, who appeared for the defendant, stressed the minimal risk of injury posed by the small concentration of Sulphuric Acid in the slimes, the fact is that the employee involved in the incident did suffer an injury to his eyes, albeit and fortunately of a minor nature. Mr Hall emphasised in this regard that when viewing the objective seriousness of the offence the court should take into account that there was no undue exposure to a substance which had the potential to inflict serious injury.

9 The evidence of Mr Cox is indicative of a proactive approach to occupational health and safety matters being taken generally by the defendant both prior to and after this particular incident. The defendant had in place a process whereby employees were not only subjected to detailed instruction concerning the equipment upon which they were working and the risks associated with working in a smelter, but were also required to demonstrate understanding of the defendant's requirements in this regard. There was evidence of regular inspections and the undertaking of preventative maintenance of the defendant's equipment, including the supaflo machine. There is also detailed evidence of an extensive number of remedial steps taken by the defendant following the incident designed to enhance the safe operation of the equipment.

10 The affidavit of Mr Cox also emphasised the nature and extent of safety clothing and equipment provided for employees, as witnessed by the fact that the injured worker was utilising the equipment referred to in paragraph 18 of the agreed statement of facts.

11 The affidavit of Mr McNamara detailed the extensive commitment of the defendant to occupational health and safety programs introduced following his appointment as Occupational Health and Safety Superintendent from 8 July 2002.

12 It was evidence also that the defendant's operations ceased in about October 2003. The defendant has not operated the refinery since that date.

13 In assessing the appropriate penalty it is first necessary to consider the objective seriousness of the offence. The prosecutor submitted that although the defendant had taken steps to remedy emissions which had occurred on three previous occasions those steps were inadequate because emissions continued to occur after each one of them. Whilst this may be the case as a matter of logic, it is not necessarily indicative that the defendant's investigations should have created sufficient concern that further emissions from some other cause might occur. I do not accept on the state of the evidence that this particular matter would and should be taken into account in determining the objective seriousness of the offence. The same comment applies to the prosecutor's submission that the defendant should have undertaken a further and appropriate risk assessment when equipment was changed to process slimes rather than sludge. However, it is clear that the tarpaulin barrier which was installed and which may or may not have been in place at the time that this incident occurred was not effective to prevent the injured employee being struck by the emissions. What is clear is that the protective screening which was later installed would have prevented this incident occurring in terms of the injuries sustained by the employee. Furthermore, as paragraph 19 indicates, the injured employee did not receive specific information or warning about the possibility of emissions of slimes from the machine and the risk of injury which this created.

14 The prosecutor's submissions emphasised the necessity for employers to conduct themselves in a pro-active manner with a relevant foresight and asserted that this defendant should have been aware because of the previous incidents that there was a likelihood of further such incidents occurring. I have already stated that on the basis of the evidence it has not been established clearly that the defendant ought to have been aware of any further causes for further emissions taking place.

15 The defendant's submissions focussed attention on the difficulty in identifying the cause of the emissions and the efforts of the defendant to thoroughly investigate each prior event. It was stated that, on the basis of the documentation produced with respect to each incident, that there was a separate and different cause for each and that appropriate remedial action had been taken. On each occasion the defendant had believed that the measures which it had taken had eliminated the cause of the risk of any further emissions. The steps taken by the defendant included the implementation of a preventative maintenance schedule and the utilisation of the services of an external provider of inspection and maintenance services.

16 The defendant submitted that in reality its contravention of the legislation and the reason for the entry of a plea of guilty was its failure to enforce the use of a barrier and, in particular, its failure to have erected a perspex screen of the kind erected after the incident. On this basis, the objective seriousness of the offence should be characterised as minimal, or of a lower order.

17 This characterisation of the offence was, in reality, the only matter in controversy in terms of the application of the well-known principles to be applied in sentencing. The prosecutor conceded that a plea of guilty had been entered at the earliest possible opportunity, namely upon agreement being reached as to the charge, that the defendant had co-operated with the WorkCover Authority in connection with its investigations, that the defendant had taken remedial steps after the incident and that in general terms the defendant had in place a methodology and systems to enhance occupational health and safety in its work environment.

18 Having regard to the totality of the factual circumstances, I am of the opinion that the breach by the defendant is a serious one. This assessment is made in the context of the overall nature of the Act and in particular in the context of the absolute nature of the obligations imposed by the Act. I accept the submissions by the prosecution in this regard that there was a risk of injury which was reasonably foreseeable and there were steps available to the defendant to have avoided that risk. However, I also agree with the prosecution that, in terms of an overall relative characterisation, the breach is at the lower end of the relative scale of seriousness.

19 Finally, whilst there was agreement that the court should take into account the general deterrent effect of any penalty imposed, there was agreement that the specific deterrent effect should be minimised because the defendant had ceased operations and there was no evidence that it intended recommencing operations at that site.

20 The defendant had a number of prior convictions but both parties agreed that the nature and extent of the offences should not impact upon the level of penalty to be applied in the context of these proceedings. However, because of these prior convictions the maximum penalty applicable was $825,000.

21 It is generally accepted that a discount of 25% should apply to an early plea of guilty and that up to a further 10% is available with respect to the other mitigating factors to which I have referred. In my opinion an overall discount of 35% is appropriate in the circumstances of these proceedings.

22 It is now necessary to address the fixing of an appropriate penalty by reference to which this discount should apply, which is to be assessed predominantly by reference to the objective seriousness of the offence but taking into account also the two other matters to which I have already referred.

23 During the course of submissions at the hearing of this matter Mr P Hall QC, who appeared for the defendant, submitted that the penalty should be "at the very low end of the range". He submitted that the penalty would be less than $55,000 and within the range of 0 to $27,500. Reference was made to the concurrent jurisdiction available to the prosecution in which to commence proceedings, namely before the Chief Industrial Magistrate, where the defendant would be exposed to a maximum penalty of $55,000. Mr Hall's submissions, as later summarised in writing by the defendant's solicitors, were to the following effect: "The assessment of the penalty, regardless of whether (the proceedings) were commenced in the Chief Industrial Magistrate's Court or the Industrial Relations Commission of New South Wales in Court Session necessarily starts at zero and the defendant should not be prejudiced by the Prosecution's selection of the Commission as the forum in which proceedings were instituted …The principles of justice, fairness and established sentencing principles require that the assessment of penalty must be determined in accordance with the merits of the case uninfluenced by the Prosecutor's choice as to forum and the defendant strongly contests and takes issue with the Prosecution's submissions that the offence falls in the low end of the mid range of penalties and submits that this is not supported by the evidence tendered at the hearing on 27 May 2004".

24 After the hearing of this matter on 27 May 2004 the parties made written submissions with respect to the point raised by Mr Hall, namely the proper approach to sentencing in circumstances where concurrent jurisdiction exists to deal with offences, especially where there is an extreme difference in terms of the maximum penalty which might be imposed. The dilemma for the court arises from fundamental principles of sentencing which Mr Hall summarised as follows: "The task of the court is to assess the relative seriousness of the offender's particular offence in relation to 'a worst case' for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the penalty scale of penalties set by the legislature from zero to the maximum". The written submissions of Ms Lowson, counsel for the prosecutor, helpfully made reference to a number of authorities in this area, with which it is now necessary to deal.

25 Scott v Cameron (1980) 26 SASR 321 is a judgment of White J in the Supreme Court of South Australia. His Honour was considering an appeal from a court of summary jurisdiction arising out of a sentence imposed under the Commonwealth Crimes Act. The maximum penalty under that section was imprisonment for two years. The offences with which the appellant had been charged could have been the subject of charges brought under the Social Services Act which provided for a maximum penalty of $100 or imprisonment for six months. In dealing with the proper approach to be taken where there were dual offences under which the defendant could have been properly charged White J said: "Counsel for the respondent correctly said that the prosecution had an absolute discretion whether to lay the complaints under one section or the other. But it is for the Court, not the prosecution, to impose the appropriate sentence. And the Court's discretion is not to be fettered by the prosecutor's choice, at least in those cases where the facts are such that the prosecution could have been equally appropriately brought under one section or the other. Indeed, it seems to me that the prosecution would more appropriately have been brought under s 138 of the Social Services Act because that section deals specifically with this type of offence and contains the maximum penalty chosen by the legislature therefor. On the other hand, s 29C of the Crimes Act is a general blanket s designed to cover all kinds of false statements which might be made in all kinds of circumstances to all kinds of departments for all kinds of purposes. Where, as here, the facts reveal a general 'run of the mill' series of offences, it seems to me that the specific section ought to be used, while the more general provisions of s 29C of the Crimes Act should be reserved for particularly serious cases where it is quite obvious that the offending is far beyond the maximum penalty contemplated by the section. If there is administrative dissatisfaction with the level of penalties imposed by the Courts for breaches of s 138, then the position should not be cured administratively but cured either legislatively by seeking an increased maximum penalty or by launching an appropriately researched test appeal through the court system" (at 325-6).

26 The next case to which I was referred was R v Whitnall (1993) 42 FCR 512, a decision of the Full Court of the Supreme Court of the Australian Capital Territory. These proceedings dealt with an appeal by the Crown against an alleged inadequate sentence imposed on a person who had failed to declare income in a number of taxation returns. The defendant had been prosecuted for a breach of the Crimes Act which carried a much greater maximum penalty than would apply to a prosecution by the Commission of Taxation under the Taxation Administration Act. The prosecution had sought a penalty of imprisonment.

27 Davies J noted that there were: "Guidelines for the investigation and prosecution of taxation related offences, as between the DPP and the ATO. I have to say that I view the legislative and administrative regime with some disquiet. The Court was urged to have regard to general deterrence. The range of administrative decisions available which will avoid the bringing of charges under s 29D (the most serious option) must lead taxpayers to hope that the latter option will only rarely be activated. Further, the reasons, if any, for choosing a less serious option are not exposed to public scrutiny as are the reasons for the imposition of a sentence by a court. What the ATO or the DPP regard as a 'serious offence' is not really defined. It may be supposed that the present case is regarded, at least by the DPP, as 'serious'." (at 518).

28 In his judgment, Drummond J referred to Scott v Cameron and said: "while it is solely for the prosecuting authority to select the provision under which it will launch a prosecution, the Court is not bound to treat the prosecution's decision as placing a fetter upon the Court's sentencing direction, in the sense of compelling the Court to impose a heavier sentence than it would regard as appropriate, but for that one consideration." (at 520).

29 The next case to which I was referred was Sandford (1994) 72 ACrim R 160, a decision of the New South Wales Court of Criminal Appeal. In dealing with the question of concurrent jurisdiction Hunt CJ at CL (Studdert J agreeing) said: "The judge also rejected the submission that, because the charge could have been dealt with in the Local Court, he should impose a sentence no higher than would have been imposed in that Court (where the maximum sentence was imprisonment for two years and/or a fine of $2,000). That submission was put too broadly and it was correctly rejected. It will usually be appropriate to take into account the fact that the offence could have been dealt with summarily: Miller (1989) 44 A Crim R 185 at 189; Bardo (unreported, Court of Criminal Appeal, NSW, 14 July 1992) at p1. But it is not a universal rule. If an accused elects to plead guilty and to be tried in the District Court, he takes the risk that the higher penalty available in that Court will be applied. In the present case, the appellant had asked the magistrate to deal with the matter summarily rather than commit him for trial. The Crown submitted to the magistrate that it was a serious matter and left it to his discretion, and the magistrate declined to deal with the matter summarily. The basis upon which he did so was clearly enough the seriousness of the offence and thus the inadequacy of the maximum sentence available in the Local Court. In those circumstances (unless the magistrate was shown to have erred), it would be wholly inappropriate to sentence the appellant as if he had been dealt with in the Local Court. I am not satisfied that any such error on the part of the magistrate has been demonstrated upon the facts of this case. That does not mean, of course, that regard should not be had to the smallness of the amount of heroin involved in the crime. That remains of importance." (at 195).

30 These comments of Hunt CJ at CL in Sandford were specifically adopted by James J (Bell AJ agreeing) in the New South Wales Court of Criminal Appeal in R v Finlay (20 December 1996, NSWCCA 60339/96).

31 Finally, I refer also to comments made by Wright J, President of this Court, in WorkCover Authority of New South Wales (Inspector Robbins) v Ecolab Pty Ltd (1999) NSWIRComm 300. His Honour said: "Further, I do not consider that, in the particular circumstances of this case any consideration of significance arises from the fact that the prosecution commenced proceedings before this Court, rather than before the Chief Industrial Magistrate. Except in the case of a minor offence in which case there may be considerations as to whether there had been an abuse of prosecutorial discretion, I consider that it is a matter for the prosecution as to the forum in which it proceeds. I do not consider that there is any basis to hold in this matter that the offence was not of relevant seriousness…".

32 I should add for completeness that I considered analogous arguments with respect to the level of costs which should be imposed by this court in circumstances where proceedings could have been commenced before the Chief Industrial Magistrate in Inspector Carmody v Frankel [2003] NSWIRComm 159.

33 I now turn to consider what principles might be drawn from the authorities to which I have referred. In Scott v Cameron, White J fixed the penalty by reference to the level of penalty which would have been applicable under the regime providing for a lower maximum penalty which his Honour thought was the appropriate regime to apply. Whilst Drummond J in R v Whitnall embraced the approach in Scott v Cameron, the particular factual circumstances applying in those proceedings make it difficult to ascertain whether in effect the upholding of the penalty at first instance necessitated the fixing of a penalty by reference to the maximum applicable under the regime providing for a lesser maximum penalty. The complicating features in Whitnall included the fact that the Australian Taxation Office had imposed heavy administrative penalties, including interest and it was necessary to take this into account in determining what was an appropriate penalty. Again, the circumstances in Sandford are quite different. In those proceedings a summary process had been undertaken and the magistrate had declined to accede to the defendant's application to have the matter dealt with summarily. Thus there had been a curial decision that the matter was sufficiently serious to be dealt with in the District Court of New South Wales. There is no intermediate step of this kind available in connection with proceedings instituted under the Act where it is for the prosecutor alone, presumably on an entirely discretionary basis, to determine in which court proceedings are to be instituted.

34 Higgins J in Whitnall expressed concern about the legislative and administrative regime applying in terms of the dual bases for the institution of prosecutions for breach of taxation laws. However, as his Honour noted, there were guidelines issued for the investigation and prosecution of taxation related offences. I am not aware of any guidelines having been issued by the WorkCover Authority of New South Wales with respect to the circumstances in which prosecutions are to be instituted before the Chief Industrial Magistrate rather than this court. Certainly, the most obvious discriminating feature would be the "seriousness" of the offence. If this court were to follow the line of reasoning adopted by White J in Scott v Cameron, as endorsed by Drummond J in Whitnall, it would be necessary for the court to determine whether by reason of this "seriousness" whether the proceedings should more properly have been instituted before the Chief Industrial Magistrate. Conceptually, one means of determining such an issue would be by reference to the penalty which ought properly to be imposed having regard to both objective and subjective features and having regard also to all mitigating circumstances and the applicability of any discount factors. But, this process can only be undertaken by reference to the appropriate maximum penalty. The appropriate maximum penalty can only be determined by reference back to the appropriate jurisdiction. Accordingly, as a matter of logic, such an exercise is circuitous and, ultimately, may not be of real assistance.

35 In his written submissions Mr Hall conceded that it was solely for the prosecutor to decide in which forum proceedings were to be commenced. However he submitted that: "it is a relevant consideration, and one that the court may in some cases be required to take into account, the fact as to whether a case could and/or should have been more appropriately commenced in the Chief Industrial Magistrates Court rather than in the Industrial Relations Commission. If so, the jurisdictional limit of the Chief Industrial Magistrates Court then acts as a frame of reference for assessing penalty on the basis developed in these submissions. To disregard jurisdictional limits on the powers of the Chief Industrial Magistrates Court, in a case where it is determined on the facts that the case could and/or should have been more appropriately commenced in the Chief Industrial Magistrates Court, would offend, in the defendant's submission, the principle whereby a sentencing court, consistent with its duty to act judicially, is required to take into account all relevant considerations."

36 The difficulty which I have in accepting this submission is that it requires a determination to be made by this court as to whether a case could or should have been more appropriately commenced before the Chief Industrial Magistrate. It also involves, in my opinion, the same circuitous reasoning process to which I have referred above. There can be no question of any differential competency between the Chief Industrial Magistrates Court and this Court in terms of dealing with prosecutions. As I have observed above, the only discriminating factor appears to be the "seriousness" with which the prosecutor might regard the alleged offence. Perhaps the answer lies in approaching the matter on an "intuitive" basis which, theoretically, is inherent in the sentencing process. Having regard to the authorities to which I have been referred, I intend applying what I feel is an appropriate approach within the context of the legislative regime which applies to these proceedings. The legislature has seen fit to allow the WorkCover Authority of New South Wales to institute proceedings before either the Chief Industrial Magistrate or this Court. In the absence of any suggestion of "an abuse of prosecutorial discretion", as referred to by Wright J in Ecolab, constituted by what might be characterised as "a minor offence" or in the absence of any indicia that these proceedings might be characterised as an abuse of process, I intend to proceed on the basis that they have been properly and appropriately commenced. Accordingly, the maximum penalty is the sum of $825,000. The fact that the WorkCover Authority of New South Wales will be entitled to a moiety of a higher penalty and to a higher scale of costs are incidental consequences.

37 Having regard to all of the circumstances to which I have referred, I am of the opinion that an appropriate penalty is the sum of $90,000 to which a discount of 35% should be applied, leaving a net penalty of $58,500.

38 The prosecutor sought orders for a moiety and costs which were not opposed.

39 ORDERS Accordingly I make the following orders:

The defendant is convicted and found guilty of the offence charged. 2. The defendant is fined the sum of $58,500 with a moiety to the WorkCover Authority of New South Wales. 3. The defendant is to pay the costs of the prosecutor assessed by the court in default of agreement.

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Safety Act 2000(NSW)

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Judgment (46 paragraphs)

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