Inspector Shaw v Du Pont

Crimes Act 1900 s 556A LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 10 Occupational Health and Safety Act 2000 s 8(1)

Inspector Downie v Menzies Property Services Pty Ltd (2004) 136 IR 449 Morrison v Powercoal Pty Ltd & Anor (No. 3) (2005) 147 IR 117 CASES CITED: Morrison v Waratah Engineering Pty Ltd (2005) 139 IR 186 U-RECT-IT Pty Ltd v WorkCover Authority of New South Wales (Inspector de Silva) [2004] NSWIRComm 266 WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60

APPELLANT Ms P MacDonald of counsel Solicitor: Mr J Doo Shaw Mead Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr R Crow of counsel Solicitor: Mr M Diamond McCarthy Ausgroup Pty Ltd

CORAM: Wright J, President Marks J Backman J Friday 7 April 2006

INSPECTOR SANDRA SHAW v DU PONT (AUSTRALIA) PTY LTD

Application by WorkCover Authority of New South Wales for leave to appeal and appeal against the penalty imposed by Magistrate Maloney given on 22 June 2005 in Matter No 20073581/05/2

1 The appellant, Inspector Sandra Shaw, of the WorkCover Authority of New South Wales has sought leave to appeal and has appealed from a decision of a local court magistrate, his Honour Magistrate Maloney, sitting in the Chief Industrial Magistrates' Court, arising out of a prosecution brought under s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). 2 The respondent to the appeal, Du Pont (Australia) Pty Ltd, pleaded guilty to having failed to ensure the health, safety and welfare of its employees at work on 20 May 2004 to charges arising out of injuries sustained by an employee to his hand when the unguarded portion of a rotating edge of a piece of equipment caused part of the employee's hand to be jammed against a fixed part of the equipment. The employee completely recovered from lacerations sustained to the middle and ring fingers of the right hand without any loss of time from work. 3 In the course of the proceedings before the Magistrate, an agreed statement of facts, inspection reports, photographs and other documents were tendered in evidence. The solicitor for the informant, the appellant in these proceedings, proceeded to explain some features of the case to the Magistrate. In the course of that exchange it was revealed to his Honour that inspections of the relevant plant and equipment had been conducted at an earlier time but there had been a failure to notice the particular pinch point of the particular piece of equipment. 4 Counsel for the respondent then commenced to take the Magistrate through the evidentiary material tendered on its behalf. In doing so Counsel highlighted the company's "very impressive record of attention to occupational health considerations", the safety procedures adopted by the respondent and the fact that it had conducted a thorough investigation of the incident, had assisted the injured employee in a tangible fashion and, in general terms, had extensive safety programs created for the benefit of employees. His Honour was also advised that the machine in question had been replaced with a new machine which had been adequately guarded. 5 Whilst the respondent's counsel was in the course of dealing with this evidentiary material, his Honour referred to the amount of professional costs sought by the appellant and then said: "[a]ccidents happen. It's not a wanton breach. Done the right thing since, I'm impressed with what they've done … For those reasons I'm not going to record a conviction". We should emphasise that at that stage neither the prosecutor nor the defendant had made any submissions with respect to penalty, nor had they been given an opportunity to do so. The transcript records that the appellant's solicitor then objected to the "imposition of s 10". The Magistrate then proceeded to dispose of the matter by not recording any conviction, but making an order for the payment of costs. 6 For completeness we note that the respondent had no prior convictions and that the Magistrate was informed of this. 7 The Magistrate dealt with the matter under s 10 of the Crimes (Sentencing Procedure) Act 1999. That section is in the following terms: s 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person s character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 8 The appellant submitted that leave to appeal should be granted and that the appeal should be upheld on the following bases: 1. The Magistrate applied s 10 of the Crimes (Sentencing Procedure) Act 1999 without having been asked by either party to do so and without having given the appellant as prosecutor an opportunity of making submissions about the appropriateness of so doing;

2. In all the circumstances it was inappropriate to apply s 10 of that Act;

3. In all the circumstances the sentence was manifestly inadequate;

4. In all the circumstances there had been a denial of natural justice. 9 We deal first with the natural justice point. It is obvious from the circumstances which we have set out that the Magistrate applied s 10 of the Crimes (Sentencing Procedure) Act 1999 without having been asked by either party to do so and at a stage of the proceedings where it was inappropriate to do so; that is, at a stage when no submissions had been made nor had any opportunity of making submissions been granted. This resulted in both parties being denied an opportunity of making submissions and thereby being deprived of a fundamental principle of natural justice. This in turn resulted in the proceedings miscarrying and would, of itself, justify the grant of leave to appeal and the upholding of the appeal. 10 It is necessary, however, that we make some brief observations about the application of s 10 of the Crimes (Sentencing Procedure) Act 1999. The circumstances in which that section should be applied in connection with prosecutions brought under the Act have been comprehensively considered by the Full Bench of this Court in Inspector Downie v Menzies Property Services Pty Ltd (2004) 136 IR 449. It is not necessary to repeat in any detail the observations made by the Court therein, which we respectfully adopt and apply for the purpose of these proceedings. We merely observe the requirement to exercise the discretion created by s 10 consistently with the scheme and purpose of the Act, and the obligation of a judicial officer to apply s 10 consistently with the requirements inherent in that provision, giving such reasons as will enable an understanding and an appreciation of the process by which s 10 was applied. In this regard we refer in particular to Menzies Property Services at paragraph [57]. 11 It is also clear from our summary of what occurred that the Magistrate did not give reasons which would allow this Court on review to determine that his Honour had regard to any of the factors described in s 10(3). 12 Furthermore, it is essential that adequate reasons be given for the approach to assessment of penalty so as to allow an understanding and appreciation that the sentencing principles have been applied in an appropriate and proper manner. The starting point is always the objective seriousness of the offence and the need to satisfy the public interest concerning deterrence. Whilst we readily appreciate that the Magistrates' Court is a busy one and that this compels the necessity, where possible, to deal with matters and deliver judgment on an extempore basis, it is nevertheless necessary that some indication be given, albeit in a summary manner, of the approach taken to a sentencing for reasons which are obvious. Even allowing for the cryptic nature of his Honour's reasoning, it is apparent that a compelling factor was the record of the respondent and its commitment in general terms to occupational health and safety matters. This is, with respect, not the correct approach which, as we have said, dictates that the objective seriousness of the offence be identified and given primacy in the sentencing consideration. 13 In the circumstances of these proceedings, there was clearly a piece of equipment which was not adequately guarded. The breach of the Act must, therefore, have been a serious one when viewed objectively. It is this consideration which, in our opinion, should have been at the forefront of the Magistrate's consideration when assessing the appropriate penalty. 14 In our opinion, the failure to give reasons and, in all the circumstances, the determination to apply s 10 which results in a penalty which is manifestly inadequate, create further reasons for the grant of leave to appeal and we find accordingly. There is both "specified material error" in the Magistrate's approach and reasoning and "error on the face of the judgment" demonstrated by the conclusion reached by the Magistrate as is referred to by the Full Bench in Menzies Property Services at paragraph [29] when adopting the judgment of the Full Bench in WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60. 15 As we have concluded that the appeal must succeed, it is appropriate for this Court to consider the imposition of the appropriate penalty. Indeed, both the appellant and the respondent asked that we do so. We should immediately state that in our opinion the application of s 10 of the Crimes (Sentencing Procedure) Act 1999 is entirely inappropriate. Whilst it is clear that the respondent had a previous good record and, on the evidence, a positive commitment to its occupational health and safety obligations, this is not, alone, sufficient to justify the application of s 10. Under no circumstances could the offence with which the respondent has been charged be described as trivial and there is no evidence of any extenuating circumstances surrounding the commission of the offence or any other matter that should properly be taken into account when determining whether s 10 should be applied. The principles relevant to the application of s 10 are referred to in general terms at paragraphs [46] to [49] in Menzies Property Services. 16 In considering the objective seriousness of this offence we take into account submissions made by the respondent during the course of the appeal proceedings to the effect that the equipment in question, although unguarded, had been reviewed by officers of the respondent and its employees on many occasions. The fact that the pinch point was located at the rear of the machine, away from any operating area, and that the machine was located near a wall and the exposed pinch point was only accessible for the purpose of maintenance and cleaning were put forward as factors which should relevantly be taken into account. Whilst we shall have regard to these factors, there nevertheless remains the fact that there was a piece of equipment to which an employee of the respondent had access which was unguarded. 17 In assessing penalty we shall also take into account the need for both general deterrence and specific deterrence. The evidence and submissions established that there are also a number of matters subjective to the respondent which should be taken into account in its favour, as conceded by the appellant. The respondent cooperated fully with investigations conducted by the WorkCover Authority, expressed contrition and remorse for what occurred and actively assisted in securing treatment for, and the rehabilitation of, the injured worker. Furthermore, the respondent has a comprehensive and extensive occupational health and safety programme and a commitment to the discharge of its occupational health and safety obligations. 18 Having regard to all of these matters, it is appropriate that a discount in the order of 35 per cent be applied. 19 Furthermore, because this is a successful appeal by the prosecutor, it is appropriate to take into account principles in the nature of double jeopardy when determining an appropriate penalty (see, for example, Morrison v Powercoal Pty Ltd & Anor (No. 3) (2005) 147 IR 117 at 150 and Morrison v Waratah Engineering Pty Ltd (2005) 139 IR 186 at 207 - 208). 20 The maximum penalty for the offence is $550,000 but the maximum penalty that can be imposed in these proceedings is $55,000. Having regard to all the circumstances and the proper approach to assessment of penalty in the Magistrates' Court (see U-RECT-IT Pty Ltd v WorkCover Authority of New South Wales (Inspector de Silva) [2004] NSWIRComm 266), we determine that the appropriate penalty is the sum of $14,300. 21 The appellant sought a moiety of the penalty which was not opposed. 22 We now turn to the issue of costs. The respondent has correctly noted that the practice of this Court on appeal has been not to award costs in prosecution appeals where the prosecution has been successful in contending that the decision at first instance was in error either because of inadequacy of penalty or because s 10 of the Crimes (Sentencing Procedure) Act (or its predecessor s 556A of the Crimes Act 1900) had been inappropriately applied: see, for example, WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64; Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143; Inspector Downie v Menzies Property Services Pty Limited (2004) 136 IR 449; Glass v Flexible Packaging (Australia) Pty Limited (2005) 144 IR 385; Inspector Waterhouse v Stephensons Cranes Pty Limited [2005] NSWIRComm 103; Inspector De Leon-Stacey v The Salvation Army (NSW) Property Trust (2005) 141 IR 219; Beacham v Interface Manufacturing Pty Ltd and Another (2005) 141 IR 416; and Inspector De Silva v Spicer Axle Australia Pty Ltd [2005] NSWIRComm 278. 23 However, because of the extensive jurisprudence that now exists in the area as to such prosecution appeals, the time has come to consider whether this situation as to costs should continue. The Full Bench thus gives notice that the approach as to costs may need to be reconsidered in future proceedings although there will be no costs order in these proceedings. 24 In reaching this conclusion we have had regard to the further submissions filed by the appellant after the appeal was heard. Notwithstanding the matters validly raised in those submissions as to the parties' unsuccessful negotiations to narrow the issues in the appeal, which might in future cases well sound in an order for costs in favour of a successful appellant, we do not propose to depart from the existing practice at this time.

25 We make the following orders: 1. The decision of Magistrate Maloney given 22 June 2005 is set aside, save for the order for costs;

2. The respondent is found guilty of the offence with which it is charged and convicted accordingly;

3. The respondent is fined the sum of $14,300 with a moiety to the prosecutor;

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