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: