[28] I therefore reject the prosecution's submission that the identified risk should include "risks associated with the skylights". Such a consideration would require the Court to reason from the injury and the fall rather than the pleaded risk to safety, namely, the foreseeable risk to safety in an unsupervised employee having unsafe access to a roof to perform a task in circumstances where there was a failure to provide a safe work method. I am satisfied this was a serious breach of the Act.
9 Kavanagh J considered the question of deterrence and then went on to consider subjective matters relevant to the penalty to be imposed. These included the safety systems in place at the time of the incident; the steps taken to implement them, with the engagement of an external consultant and a project manager; the defendant's operations and the significant contribution which it makes to the community through the employment of members of the aboriginal community; the steps taken after the incident to review its safety procedures; its co-operation with the prosecutor and the evidence as to its size and structure, as well as the effect of any fine imposed. As to the latter, her Honour concluded that:
[38] Even though the defendant is incorporated I accept it is an individually run business incorporated purely for the convenience of book-keeping and taxation arrangements. However, the defendant receives a financial benefit from that arrangement. The financial status of the defendant has been tendered. Ms Thomson submitted neither Mr Hewitt nor the defendant possess assets that would allow the payment of a substantial penalty without Mr Hewitt personally incurring great personal hardship. The Profit and Loss statement for the period ending 30 June 2005 reveals the defendant posted a profit of approximately $100,000, but that it also had a turnover of $5 million. I do not accept the defendant cannot meet any penalty imposed.
10 Her Honour allowed a 25 per cent discount for the utilitarian value of the early plea and imposed a penalty of $25,000, with a moiety to the prosecutor.
The cases advanced
11 The appellant's case was that a penalty of $25,000 for this offence was manifestly inadequate on the evidence, which demonstrated that the risk in question was serious and foreseeable; that there was a causal connection between the relevant failures and the risk to safety and that there was no incapacity in the respondent paying a fine.
12 It was submitted that the appeal should be upheld, even where there was no significant issue of principle raised, given the extremely low penalty imposed in a scheme which provided for a maximum penalty of $550,000 for this offence. It was accepted that the appeal had to be approached with caution and that clear and demonstrable error had to be demonstrated.
13 It was argued however, that her Honour had fallen into error on the question of causation and that had led her to fail to have proper regard to the agreed facts, which showed that the respondent had failed to provide or maintain a safe system for accessing the roof for the purpose of cleaning the gutters of the shed. The task was inherently dangerous and the risk of falling which materialised reasonably foreseeable. It was also submitted that the failure to take feasible and available steps to eliminate or minimise the risk, had not been properly taken into account, in determining penalty.
14 While finding the offence serious, a penalty at the lowest end of the scale was imposed, which did not reflect the objective seriousness of the offence, or the respondent's culpability for the risk which materialised. The gravity of the potential risk was high; it was reasonably foreseeable, given the inherently dangerous nature of the work undertaken; appropriate, feasible and available means to preclude the risk were not taken and the result was very serious injury, as was also foreseeable.
15 It was submitted that there was a significant public interest in compelling attention to safety obligations, in the case of companies who employ and train young people, as was the case here. The subjective matters taken into account ranked in importance behind the objective features of the offence.
16 It was submitted that it followed that her Honour had failed to apply the sentencing principles which bound her, by failing to adequately identify the objective features of the offence, relevant to the penalty imposed. Her Honour also fell into error in finding that the risk pleaded was not the risk which materialised and so failed properly to take into account relevant matters in the agreed statement of facts. An inapropriate distinction was drawn between facts and particulars. Her Honour erred in rejecting the appellants submission that the identified risk should include the 'risk associated with the skylights'. On the evidence, the risks associated with the skylight, were relevant to be taken into account on sentence. Her Honour failed to have adequate regard to the maximum penalty for the offence and to the simple remedial steps available, which would have prevented the risk materialising.
17 The respondent's case was that the appeal should be dismissed. No error of law, fact or principle was established and the penalty imposed was not manifestly inadequate, as the appellant claimed. The penalty was within the available range, on the evidence.
18 Her Honour's judgment made clear that she had applied the relevant sentencing principles to the factors identified and taken into account in assessing the objective seriousness of the offence. Her Honour also had regard to the nature of the risk in question and causative factors. While she rejected the condition of the roof and skylight as 'causative' of the risk, Kavanagh J nevertheless accepted that they contributed to the accident. This approach reflected the matters argued before her Honour and did not constitute any error in the application of sentencing principles.
19 Her Honour concluded that the offence was a 'serious breach' in a context where the defendant had assumed responsibility for establishing safe work practices for those who were working in the building industry. Her Honour applied specific and general deterrence in the context of that industry, having regard to the size and nature of the business which the respondent operated. It followed that no error of identification of objective factors was apparent in her Honour's judgment.
20 As to errors in relation to the particulars of the charge, it was submitted that at the hearing the appellant had submitted that the obligations imposed on the respondent extended to 'risks arising from the injured workers seeking and obtaining access to the roof of the shed, including risk associated with skylights'. These risks were argued to be serious and foreseeable. The respondent's case relied on the characterisation of the risk pleaded and the distinction between the foreseeability of those risks and the risk which arose when Mr McIntosh departed from his set task, which gave rise to risks associated with unsupported skylights.
21 Given the charge to which the plea was entered, it followed that her Honour was correct to conclude that the condition of the roof and skylights were relevant in establishing the context in which the breach had occurred, but could not be relied on as a particular of the breach. The prosecutor had accepted in its submissions that access to the roof was no part of the system of work which the respondent had proposed. The work was to be done from a ladder. It followed that her Honour's conclusions as to these matters contained no error and that her Honour was correct to reject the submission advanced, that risks of gaining access to the roof and those associated with the skylights, were relevant.
22 It was also argued that the appellant's submissions invited the Court to reason from the injury sustained by Mr McIntosh, rather than from the risk to which the plea was entered. In assessing that risk, Her Honour concluded that it was foreseeable that an unsupervised employee, instructed to clean the gutter by a work method which did not succeed, would seek out another method, and so it was foreseeable that access to the roof would be pursued.
23 It followed that the submission that there had been a failure to have proper regard to the objective features of the offence could not be sustained and that no error of principle could be identified in her Honour's approach. Great caution had to be exercised in considering a penalty imposed at first instance. Here no error of law or fact appeared and the penalty imposed was an available one, although falling within the low end of the range.
Consideration