Inspector Paul Wade v Litchfield Roofing

CORAM: Walton J Vice-President; Schmidt J; Staff J

Appeal - Application for leave to appeal and appeal - prosecution appeal from a decision of Industrial Magistrate - whether penalty imposed was manifestly inadequate - whether sentencing principles were misapplied - leave to appeal granted - appeal upheld - orders as to penalty set aside - new penalty imposed on respondent - costs CATCHWORDS:

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

Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal and Coke (1999) 92 IR 8 Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259 at 30 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Inspector Paul Wade v Litchfield Roofing (Australia) Pty Ltd (Unreported, Plaint No 121323/04/4, March 2005 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 CASES CITED: U-RECT-IT-Pty Limited v WorkCover Authority of New South Wales (Inspector DeSilva) [2004] NSWIRComm 266 WorkCover Authority of New South Wales v Chen and Anor [2004] NSWIRComm 247 WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] (2000) 100 IR 23 WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312

HEARING DATES: 10/28/2005 EXTEMPORE JUDGMENT DATE: 10/28/2005

APPELLANT: Ms P McDonald of counsel SOLICITORS: Phillips Fox LEGAL REPRESENTATIVES:

RESPONDENT: Mr Edwards of counsel SOLICITORS: Turnbull Hill Lawyers

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Walton J, Vice-President Schmidt J Staff J

INSPECTOR PAUL WADE V LITCHFIELD ROOFING (AUSTRALIA) PTY LTD

Application by WorkCover Authority of New South Wales for leave to appeal and appeal from a judgement on penalty imposed by Chief Industrial Magistrate given on 30.3.2005 in matter no. CIM 121323/04/04

JUDGMENT OF THE COURT EX-TEMPORE [2005] NSWIRComm 394

1 This is an application brought by Inspector Paul Wade for leave to appeal, and if granted, appeal pursuant to s 105(3) of the Occupational Health and Safety Act 2000 ('the OHS Act) and s 197 of the Industrial Relations Act 1996 (the Act). The appeal concerns a sentencing decision given by Chief Industrial Magistrate Miller in March 2005. (Inspector Paul Wade v Litchfield Roofing (Australia) Pty Ltd (Unreported, Plaint No 121323/04/4, March 2005). 2 The offence was committed when four of the respondent's employees went to repair a leak in the roof of the Crowne Plaza Hotel at Newcastle. They were there observed by the Inspector, while working close to the edge of the roof, without fall protection. Such equipment was required to be used, given the height of the roof, some six metres above ground level. 3 The respondent, Litchfield Roofing (Australia) Pty Ltd, entered a plea of guilty to a charge brought under s 8(1) of the OHS Act. The charge provided:

It is alleged that the Defendant, Litchfield Roofing (Australia) Pty Limited (ACN 0830080 602), an employer, breached Section 8(1) of the Occupational Health & Safety Act 2000 at the Crowne Plaza building, Wharf Road, Newcastle in the State of New South Wales (premises) on 30 March 2004, in that it failed to ensure the health, safety and welfare of its employees at work, in particular Scott Harris, Luke Austerberry, Tony Vella and Rick Balcombe, in that it failed to ensure a system of work that was safe and without risks to health for performing repair work on the roof of the premises. Particulars of the Defendant's failure are as follows: 1 Failure to provide equipment associated with fall prevention and or protection when working from heights;

2 Failure to undertake a risk assessment to ensure that risks associated with falls from heights were controlled;

3 Failure to provide adequate information, instruction, supervision and training to ensure that risks associated with falls from heights were controlled;

As a result of the Defendant's breach Scott Harris, Luke Austerberry, Tony Vella and Ricky Balcombe were exposed to risks to their health, safety and welfare whilst working at heights at the premises. 4 His Honour refused an application that the charge be dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. He concluded that:

Although the nature and quality of the offence falls within the low range and the defendant has demonstrated commitment to the objectives of the Act I do not feel in all the circumstances that I can exercise my discretion in favour of the defendant. Falls are far to(sic) frequent in this jurisdiction and in my view there is a need for a general deterrence factor. In respect of the early plea and the subjective factors I will apply the maximum discount of 35% to the penalty to be imposed. 5 The maximum penalty for this first offence was $550,000, but the maximum penalty which could be imposed by his Honour was $55,000. (See WorkCover Authority of New South Wales v Chen and Anor [2004] NSWIRComm 247.) The fine imposed was $3,250. 6 The appellant appeals the penalty imposed as being manifestly inadequate. Leave to appeal is sought, given the inadequacy of the sentence and the misapplication of the applicable sentencing principles. Two matters of public importance are said to be raised; the reasonableness of the penalty in circumstances where the offence to which the plea was entered exposed employees, including apprentices, to a risk of a fall from height and where the consequences of the breach were serious. As to the appeal, it is said that his Honour failed to give weight in sentencing to relevant objective factors, including:

3.1 The seriousness of the risk to health and safety;

3.2 The detriment to safety could have resulted in the death or serious injury of an employee;

3.3. The failure of the respondent to ensure that employees used fall protection when working at heights;

3.4 The requirement for specific deterrence in assessing the appropriate sentence, especially when the respondent continues to be an employer operating in the same industry;

3.5 The maximum penalty for the offence being $550,000, although the maximum penalty that could be imposed by his Honour was $55,000;

3.6 The extent of the statutory mandate under section 8(1) of the Act;

3.7 The nature of the offence in that it involved a reasonably foreseeable risk flowing from an inherently dangerous task of working at heights; and

3.8 The respondent's failure to take feasible and available steps to eliminate or minimise the risk of injury.

7 The respondent's case was that the penalty was adequate in the circumstances and complied with applicable sentencing principles, as discussed by the Full Court in U-RECT-IT-Pty Limited v WorkCover Authority of New South Wales (Inspector DeSilva) [2004] NSWIRComm 266. Leave to appeal was opposed, on the approach discussed by the Full Court in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380. There had been no material error in his Honour's approach or reasoning. (Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259 at 30.) In written submissions it was argued that this was evident from: s There is no wrong principle. s He did not allow extraneous or irrelevant material to guide or affect. s There was no mistake of fact. s He did not fail to take into account some material consideration. s The sentence was not manifestly inadequate so as to disclose error. s The sentence was not outside the range given the subjective and objective facts. s The Magistrate properly considered the totality of the matter and weighed effectively the objective and subjective elements (see Inspector Christopher Downey v. Menzies Property Services Pty Limited [2004] NSWIRComm 259 at 452).

8 These submissions were amplified in oral submission. Particularly, it was submitted that on the facts here, there was a slight degree of foreseeable risk of injury, given the surface on which the work was performed and what the employees were in fact called upon to do. The photos showed, for example, the employees standing around, idle, not participating in actual work. It was only when the repair work was actually being performed, that there was a real foreseeable risk of injury present. 9 The penalty was also submitted to be adequate, when comparison was made to the penalty of $8,000 imposed on appeal in Menzies Property Services Pty Limited, where a worker was seriously injured after a fall from a plastic chair, in circumstances where the worker was unsupervised, but under express instructions to use the unsafe practice in question. In obtaining leave to appeal, the issue of double jeopardy also must also be considered by the Full Bench. Any re-sentencing would also have to be approached with caution, if leave were granted. Consideration

10 We are satisfied that this is a case where leave to appeal must be granted and the appeal upheld. As observed by the Full Court in Menzies Property Services Pty Limited at [25]:

25 The principles to be applied in an appeal from a sentencing decision were considered recently by the Full Bench in WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60. The Full Bench in that matter discussed the High Court decision in Dinsdale v The Queen (2000) 202 CLR 321, noting the observations of Gleeson CJ and Hayne J that an appeal may arise either due to the imposition of a penalty which is manifestly inadequate (or manifestly excessive), or due to error on the face of the judgment or decision. We shall turn to consider that distinction in more detail shortly, however it is suffice to say that in evaluating error in a discretionary decision on appeal, such as a sentencing decision, the principles in House v The King apply. 11 The penalty here imposed reflected the conclusion that the respondent was entitled to a discount of 35%, in the circumstances revealed on the evidence. This conclusion was not challenged on appeal. Nevertheless, we are satisfied that the penalty, even so understood, was manifestly inadequate, given the charge to which the plea was entered, in the context of the agreed statement of facts and other evidence, put before his Honour by the parties below. 12 We are satisfied that the conclusion that the offence fell within the low range, reflected a failure to properly apply the applicable sentencing principles, to the uncontested evidence. (See Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 at 474-475.) While leave to appeal will never be lightly or automatically granted, as the authorities discuss, in those circumstances, we are satisfied that leave to appeal cannot be refused. 13 His Honour's conclusion that the nature and quality of the offence fell within the low range followed an outline, where his Honour noted that the work was carried out; safety equipment was available at the respondent's office, five minutes away; the roof had a slope of 3 degrees, three employees were positioned within two metres of the edge of the roof; at the edge there was a low parapet of approximately 30 cm in height; the respondent had a safety management system which involved the development of a written risk assessment and a safe work method statement prior to the commencement of the job; compliance with the safety plan was constantly monitored by a supervisor and periodically by senior management; site toolbox meetings were periodically held in which employees participated; Mr Litchfield was in Indonesia and the respondent's supervisor had been suspended as a result of a dispute with a client; the employees involved had attended numerous site training inductions during their employment and the respondent had safety equipment valued at $68,300 and had taken various steps since March 2004, to reinforce its safety system. 14 His Honour declined to dismiss the charge, given his view that general deterrence was required. No reference was made to specific deterrence. We accept that it may be inferred that this well known sentencing element was taken into account, given his Honour's great experience in prosecutions such as this. It is, nevertheless, apparent from his Honour's judgement, that the necessary approach to sentencing, which requires a consideration of the nature and quality of the offence in question, as the primary determinant of penalty, was not in this case adhered to. The result was that a penalty reflective of the objective seriousness of the offence, while also taking proper account of relevant subjective factors, was not imposed. 15 We are satisfied that the agreed statement of facts left in no doubt that this was a considerably more serious offence than his Honour concluded. The risk in question involved four employees working close to the edge of a roof, over 6 metres off the ground, without any fall equipment being used to ensure their safety, as the OHS Act required. Two of the employees were 17 year old apprentices, one of whom had only had 10 months' work experience and the other three. The other two employees were two older, and hence it might be assumed, more experienced, roof plumbers. 16 This work came about because, while working on another job, the employees were directed to the hotel, to repair a roof leak. The respondent's supervisor was absent from work that day and so supervision was being provided by one of the roof plumbers present. The safety equipment usually carried by the supervisor was not with the employees, when they were instructed to effect the repair. The employee acting as the supervisor had limited experience in supervision and had not been trained as a supervisor. He was not aware of the respondent's applicable safety policies and had not been provided with the safety equipment, which the usual supervisor carried. 17 No other safety equipment was provided to the employees. After the supervisor had first attended the site himself, all four employees went direct to the hotel, climbed onto the roof, investigated the leak and repaired it, without using any fall protection equipment. The respondent's safety policy, which required a written risk assessment and safe work method statement to be prepared, was not implemented. 18 Not only did the employees approach the edge of the roof at various times while there, an inexperienced apprentice was standing with his foot on the edge of the parapet, when first observed by the passing Inspector. On the evidence, the only caution or safety instruction he was given was by one employee, not the supervisor, who told him 'be careful, stay away from the edge'. The other apprentice was given a similar instruction. 19 Contrary to the respondent's submission, we are satisfied that it is entirely foreseeable that workers on a roof might (and, in fact, did) venture near the edge of the roof. That is precisely why fall equipment is required when such work is performed at height. Indeed, Clause 3.1 of the WorkCover Code of Practice, Safe Work on Roofs, requires provision to be made on commercial and industrial buildings, when work is to be carried out on a roof where a person could fall two metres or more, to prevent them falling. 20 It follows from this evidence that the risk to which the employees were exposed, a fall from a height of over six metres, was a serious one, albeit no injury was, in this case, sustained by any of the four employees. It is well settled that an offence which results in serious injury, or has the potential to result in serious injury, manifests the degree of seriousness of the relevant detriment to safety. (See Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610.) 21 There can be no doubt of the serious potential consequences of a fall from a roof at a height of over 6 metres. Nor can the foreseeability of such a risk be doubted. As discussed in Capral Aluminium Ltd at 646, "the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature". 22 We are satisfied, contrary to his Honour's conclusion, that the evidence showed beyond doubt that the offence was a serious one. That the respondent had safety systems in place, which were not adhered to, is a relevant factor in assessing the objective seriousness of the offence. (See for example the discussion of 'paper' systems in WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] (2000) 100 IR 23 at [35].) 23 It follows that in assessing sentence, while it was proper to take into account that this was an employer which had paid attention to its safety obligations prior to the offence, the agreed statement of facts and the uncontested evidence of Mr Litchfield, the respondent's manager, that on this occasion the applicable policies were ignored, cannot be overlooked. Nor was there proper supervision of the work, or use of the available and necessary safety equipment. 24 It is also well settled that an offence is more serious where there is an obvious and foreseeable risk to safety, against which appropriate measures were not taken, even though simple measures were available and feasible. (See Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal and Coke (1999) 92 IR 8.) On the evidence in this case, these factors were also present, pointing to an offence which could not properly be assessed as falling at the lower end of the scale, consistently with these applicable principles. 25 In light of those conclusions, it follows that this Bench must redetermine sentence. We are unable to accept the comparison sought to be drawn with the offence dealt with in Menzies Property Services. Neither the risks in question, the evidence of the circumstances in which the offence occurred, or the charge laid, were properly comparable. 26 The evidence demonstrated the necessity for general and specific deterrence to feature in the sentence imposed. As the Full Court observed in Capral Aluminium at [74], specific deterrence is a matter "which should normally be given weight of some substance in the sentencing process". In WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312 at 326:

It is "the fundamental duty of this Court" to ensure that any penalty imposed is severe enough to "compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 adopted in Capral Aluminium (at par 74).

27 In re-sentencing it is proper to have regard to the respondent's plea of guilty, entered at the earliest opportunity; its co-operation with the investigation; its good safety record; its proactive approach to safety; and Mr Litchfield's evidence as to the measures taken to improve safety since the offence. We have taken these matters into account. 28 It is also well settled that an appeal bench re-sentencing in circumstances such as this, must do so with caution. (See Weathertex at [46].) Having regard to the potential double jeopardy in re-sentencing an offender, it is also appropriate that a conservative approach to the review of the penalty imposed on the respondent be adopted. (See Weathertex at [53]). But for these factors, a significantly higher penalty than that which this Appeal Bench can properly impose, would have to follow. 29 In determining sentence we therefore have taken into account the maximum penalty for the offence, the limit of the Chief Industrial Magistrate's power to sentence, the objective seriousness of the offence, the need for deterrence (both general and specific), the element of double jeopardy raised by this appeal, and the matters raised as subjective considerations. We do not disturb the approach taken below to discount, a matter not challenged on appeal. On that basis we have concluded that the appropriate penalty in all of those circumstances is $11,700.

30 For all of the reasons given we make the following orders:

(3) The orders made by Chief Industrial Magistrate Miller as to penalty are set aside;

(4) In lieu thereof, a penalty of $11,700 is imposed on the respondent; and

(5) The respondent is to pay the appellant's costs of the appeal, as agreed or assessed by the Court.

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