[15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]:
'[I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).' "
Consideration
24 The primary consideration, as set out in the above principles, requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence as set out in the statement of agreed facts, and the evidence. Without repeating what is contained in the agreed statement of facts, in considering the seriousness of the offence, it is relevant to set out some of the important matters.
25 First, prior to using the second mezzanine level for the storage of stock, the defendant did not conduct a risk assessment of the suitability of the area for storage or access by staff.
26 Secondly, no assessment was conducted by the defendant as to the load bearing capacity of the ceiling material underneath the second mezzanine level prior to using the level for storage and employees working upon that level.
27 Thirdly, the defendant did not provide its employees with any fall arrest system whilst they were working on the second mezzanine level.
28 Fourthly, there was no adequate flooring and no suitable guardrail in place as required by the Australian Standard AS 1657 - 1992 Fixed platforms, walkways, stairways and ladders - Design, construction and installation.
29 Fifthly, the defendant failed to provide its employees with any adequate training and information with respect to working on the second mezzanine level.
30 Sixthly, the Occupational Health and Safety Management System dated November 2006 did not contain any information in relation to working at heights or safe storage procedures at heights.
31 In my view, there was a simple failure on the part of the defendant to take steps to ensure that work, including the storage of items, could be undertaken on the second mezzanine level without the risk of injury. It appears that the defendant assumed that the second mezzanine level was safe, however, it did not undertake any risk assessment or give any instruction to its employees regarding the safe use of the second mezzanine level.
32 Mr Shariff conceded that this was a case where the defendant failed to prevent and guard against the risk of a fall. Counsel acknowledged that the defendant accepted the force of what was observed by Boland J in Inspector Jones v James Denson and Another [2006] NSWIRComm 234 at [27]:
Given the danger of falling from a height of three metres, let alone six to seven metres, which may easily result in death as too many of the cases that come before this Court demonstrate, it beggars belief that an employer would not take steps nowadays to ensure that employees working at height were secure. Moreover, only three weeks earlier Mr Denson had been issued with an Improvement Notice that "Employees/Persons may be exposed to risk of injury due to unsafe access/egress to roof work area. Persons access roof area using Elevated Work Platform as point of landing." This should have placed him on a high state of alert regarding the risks associated with working on the roof of the complex.
33 The defendant also accepted that a fall from any height was a serious matter and that the risk of a fall could have been, and should have been, eliminated or controlled.
34 Mr Shariff submitted that, although the risk of a fall was a serious risk, the present case fell within the lower to mid range in terms of objective seriousness.
35 Mr Pontello described the risk of falling 2.8 m as high and that this case might be assessed at the mid to high level of the applicable range.
36 Despite the defendant's failure to ensure the mezzanine was safe, the offence does not fall within the more serious class of cases that come before this Court. I am satisfied that the defendant was safety conscious. It simply assumed that the second mezzanine level was safe. However, there were no suitable guardrails in place as required by the Australian Standard. The defendant had made available a first mezzanine level which provided a safe, secure and guarded location in which to store stock. The defendant also had in place policies relating to the management of inventory to assist in the management of storage and space at Branches. These were legitimate steps taken by the defendant in order to avoid the need for "ad hoc" and unsafe storage spaces. The use of the second mezzanine level emerged as an "ad hoc" practice at the Castle Hill Branch. It was never intended to be used for this purpose.
37 The foregoing considerations tend to mitigate the seriousness of the offence, but they do not take it into the lowest range of available penalties as submitted by the defendant. The risk of injury from falling from the second mezzanine level because of the failure to provide adequate guardrails and to assess the load bearing capacity of the ceiling material underneath the second mezzanine level, was reasonably foreseeable. The height of the fall was approximately 2.8 m. Furthermore, the risk was easily avoidable, as is obvious from the steps taken by the defendant to prevent a recurrence of the incident, as set out in the evidence of Ms Atherton.
38 Mr Pontello submitted that the offence was made out by a number of acts of criminality (or putting it another way, a number of acts which separately constitute a breach of s 8(1) of the Act), and this is an aggravating feature to be taken into account in determining the appropriate sentence for the offence: s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999. Counsel submitted the aggravating factor in s 21A(2)(m) was concerned with the situation found in the present case, where a single offence contained a number of allegations of criminal acts that were part and parcel of a single course of criminal conduct: R v Tadrosse (2005) 65 NSWLR 740 at [29] per Howie J.
39 Mr Shariff submitted that the prosecutor's submissions sought to invite the court to punish the defendant for matters which it had not been charged nor particularised. In particular, Mr Shariff submitted the defendant had not been charged with any matter relating to the use of a forklift and the presence of electrical wiring. Counsel further submitted these were not matters which comprised the charge against the defendant and it should not be punished for these or other matters. Mr Shariff conceded that the Court was entitled to take into account that the offence involved a failure to have a safe system of work (particular (a)); a failure to conduct a risk assessment (particular (b)), and a failure to provide training and instruction (particular (c)). However, outside these specifically charged matters, counsel submitted there was no other series of criminal acts which the Court may take into account. It followed, so counsel submitted, matters which the defendant has not been charged cannot be taken into account in determining sentence.
40 Mr Shariff emphasised the warning of Howie J in Tadrosse at [29] that the Court must bear in mind the prohibition against taking into account, as a matter of aggravation that which is an element of the offence charged.
41 I did not understand Mr Pontello's submissions to extend to taking into account acts which could have given rise to a breach of the Act, for example, the use of the forklift and the presence of electrical wiring, to be acts that I should take into account in determining sentence.
42 In any event, in R v Olbrich (1999) HCA 54; 199 CLR 270 Gleeson CJ, Gaudron, Hayne and Callinan JJ observed at [27]:
... we would adopt what was said by the majority in R v Storey ([1998] 1 VR 359) [15] - that a sentencing judge
"may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."