Subjective factors
75The prosecutor accepted that Desiya entered a plea of guilty at the earliest opportunity and the Court accepts that was the case. The penalty will be discounted by 25 per cent. In respect of Vinsente, the prosecutor submitted Vinsente did not indicate a willingness to plead guilty at the earliest opportunity and is therefore not entitled to the maximum discount. There was some delay in Vinsente entering a plea but the utilitarian value was still substantial. Accordingly, in relation to that defendant, I intend to allow a discount of 22.5 per cent.
76In relation to contrition and remorse, the Court is satisfied the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 have been met by both defendants.
77Section 21A(2)(d) of the Crimes (Sentencing Procedure) Act provides that a record of prior convictions may be taken into account as an aggravating feature. Vinsente has one prior conviction in New South Wales under occupational health and safety legislation (Inspector Hutchinson v Vinsente Pty Ltd (trading as Agrigrain) CIMC, 5 December 2007).
78How the Court is to approach the question of prior convictions is determined by what was held in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51 and Regina v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [25]. Prior criminal record is not to be used as an aggravating factor to increase the objective seriousness of the offence warranting a heavier sentence, but it may be used to "show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted": Veen v The Queen (No 2) at 477-478.
79The prior conviction related to an incident that involved a forklift being reversed into a worker who was sitting on the ground behind the area where the forklift was being operated. Vinsente submitted that whilst the circumstances of the prior conviction and the facts underpinning it were distinct from the present facts, it acknowledged that the prior conviction of the defendant involved a failure in relation to training and supervision in respect to the use of mobile plant. However, it was submitted that the nature of that offence was not sufficiently similar to the present offence "that retribution, deterrence and protection of society" would require that a more severe sentence was warranted.
80Whilst I have some reservations, I am prepared to accept that the circumstances of the incident that led to the prior conviction are sufficiently different from the circumstances of the present offence so as to not warrant a more severe sentence because of any continuing disobedient attitude of the defendant to observing the occupational health and safety laws. However, the fact that Vinsente has a prior conviction "disentitles it to leniency normally extended to offenders who are not adversely recorded": Inspector Cooper v Visy Pulp and Paper Pty Ltd [2011] NSWIRComm 136 at [33]; and Inspector Barber v Leighton Contractors Pty Limited [2012] NSWIRComm 145 at [70].
81It is accepted there was full co-operation with the investigation by WorkCover Authority of New South Wales by the defendants. It is also accepted that the evidence supports a conclusion the defendants are good corporate citizens. Moreover, I note the Agrigrain business has been operating for nearly 30 years across a large site with 40-50 employees involving the use of large numbers of vehicles, plant and equipment. With only one prior conviction (Vinsente) one may conclude the defendants have taken their health and safety obligations seriously and that it has a relatively good health and safety industrial record.
82A particular issue that arises in the case is the approach to sentencing defendants who operate a business in partnership. They have been charged with and pleaded guilty to the same offence, in the same terms arising out of the same risk and circumstances, although it should be noted Vinsente is subject to a higher maximum penalty than Desiya. The two defendants are employers and as partners in the Agrigrain Partnership, employed Mr Elliss (and others) as a labourer. The partners were jointly and severally liable for the debts and obligations of the partnership: see s 9 of the Partnership Act 1892.
83The defendants submitted that in such circumstances it was in the interests of justice that a single penalty be assessed in relation to the breach by the Agrigrain business and that the penalty then be apportioned between the corporate partners of that partnership. To do otherwise, it was submitted, would create a circumstance of inconsistency in punishment between corporations and partnerships.
84For their submission, the defendants relied on the Full Bench decision in JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177; (2008) 184 IR 1. In that case the two appellants operated as partners trading as Tippett's Scrub Hill Pastoral Co. Each had pleaded not guilty to charges under s 8(1) of the Act arising out of an incident in which Mr Anthony Butcher, an employee employed jointly by the appellants in partnership, was injured in the course of operating a potato harvesting machine. The trial judge (Backman J) found the appellants guilty.
85 In her consideration of penalty the trial judge considered a submission advanced by the appellants that the Court should view the offences in a global way. The submissions sought the imposition of a single penalty and each defendant to be sentenced to 50 per cent of the whole. Her Honour rejected this approach, observing that it was inconsistent with the principle determined by the Full Bench in WorkCover Authority (NSW) (Inspector Green) v Big River Timbers Pty Ltd [2006] NSWIRComm 279; (2006) 156 IR 341. Her Honour followed WorkCover Authority (NSW) (Inspector Green) v Big River Timbers Pty Ltd .
86On appeal, the appellants submitted they ought to be treated together as part of a partnership, rather than separately, to avoid any inconsistency in punishment between corporations and a partnership. To the extent that her Honour relied on the principles determined by the Full Bench in WorkCover Authority (NSW) (Inspector Green) v Big River Timbers Pty Ltd in the present case, the appellants submitted that her Honour fell into error.
87On appeal, the Full Bench stated at [89]-[99] and [114]:
[89] The issue therefore for determination in this appeal is whether the principle stated in Big River Timbers should be maintained where a quite different, indeed unusual, position exists factually, namely that there are separate corporations the subject of charges, but the prosecutor concedes that the corporations form part of not just a trading business, but an actual partnership which is the employer. Furthermore, the corporations are facing the same offences and same charges and same particulars in respect of the one incident. In our view, for the reasons that follow, the circumstances of this matter are distinguishable from those found in Big River Timbers because the role of the entity here, which was the employer, was essentially in law, one employer entity.
[90] It was submitted by the appellants that a single penalty should be imposed, with each appellant being sentenced to 50 per cent of the whole. In support of this contention the appellants pointed to the circumstances where the appellants conducted a rural enterprise as one economic unit being a partnership. According to their submission, the partnership engaged employees, including Mr Butcher, for the purposes of the partnership and pursuant to s 9 of the Partnership Act the defendants, as partners, were liable for the debts and obligations of the partnership including the wages due to the employees. The appellants submit that where a defendant is charged pursuant to one section of the Act (s 8(1)) and a charge against another defendant is in identical terms, involving the same factual background, it is appropriate in the interests of justice to view the offence in a global way and to apply a penalty on the partnership as the employer. This approach acknowledges the existence of the partners and imposes upon each a penalty equal to 50 per cent of the whole.
[91] The respondent tendered before the Trial Judge an Australian Business Register, which disclosed that the legal name of the business was JL Tippett Family Trust and RL Tippett Family Trust trading under the name of Tippett's Scub Hill Pastoral Co. Against the words "type of entity" is the description "family partnership". There is one entity with an Australian Business Number. An Historical Business Extract also records Tippett's Scrub Hill Pastoral Co as being registered as a business name on 4 March 1980, describing the nature of the business as "farming". The respondent submitted before the Trial Judge that the two entities were in partnership. Mr Butcher was issued with a group certificate that described his employer as Tippett's Scrub Hill Pastoral Co partnership.
[92] Her Honour applied the principles set down by the Full Bench of this Court in Big River Timbers. We would observe that her Honour was bound to apply Big River Timbers if applicable, thus the question becomes "did the principles in Big River Timbers apply to the circumstances of this matter"? Her Honour found that they did.
[93] In Big River Timbers the Full Bench reviewed the application of the principle of totality by the Court. Briefly stated, Big River Timbers Pty Ltd and Big River Timbers (Veneer) Pty Ltd were involved in the manufacture of plywood and flooring. Big River Timbers Pty Ltd controlled the business activities and owned the relevant plant. Big River Timbers (Veneer) Pty Ltd operated an employment company for the veneer and engineering divisions, which included an employee who suffered crush injuries. The respective companies were charged pursuant to s 8(1) and s 8(2) of the Act respectively. At first instance, the two corporate defendants were treated as one entity for the purpose of sentencing, because they were as the Chief Industrial Magistrate ("CIM") had observed "interlocked" which the Full Bench understood the CIM to mean that the respondents were closely related corporate entities having a common governance and operation.
[94] The Full Bench referred to an earlier judgment of a Full Bench in Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149. The Court in Haynes considered the appropriate approach to penalty where two related companies, namely, in CI & D Manufacturing Pty Ltd (Manufacturing) and CI & D (Industries) were charged respectively under s 15 and s 16 of the Act in relation to an accident resulting in the death of an employee. The Court came to the view, on the evidence, that the connection between the two companies were so intimate that it was permissible to view the offence in a global way. The Court imposed a total fine and determined that each company should bear 50 per cent of the total fine. The Full Bench in Big River Timbers specifically rejected this approach as wrong and overruled Haynes.
[95] The Full Bench then adopted and applied the principles set out in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Anor (2000) 95 IR 383, where Walton J Vice-President (at 456), rejected the application of the totality principle, where different corporate entities faced separate charges. Walton J rejected the defendant's submissions that a franchisor and lessor ought to be treated as one for the purpose of sentencing, observing that totality presupposes a single defendant charged with multiple offences as a condition precedent to determining a measure of criminality.
[96] There has been no case before the Court where there has been a corporate, or non corporate partnership, as is the case here. In McDonalds one of the corporations was responsible for the organisational arrangements of the business and an associated corporation responsible for the finance and management of the business. The net effect was that there were two separate corporations having a close relationship based on certain factors, but different in that the corporations were carrying out different functions. The reality was that there were separate incorporations that were the subject of different offences under different provisions of the 1983 Act.
[97] The appellants submitted that a global approach was adopted by O'Loughlin J in Trade Practices Commission v Cue Design Pty Ltd. As the trial judge observed, that decision involved multiple charges against the same defendant, as well as charges against a second defendant. O'Loughlin J found that the gravamen of each count against each defendant was the same, and, the defendants were part of the same corporate group. One defendant was the manufacturer, designer and wholesaler of women's garments. The other defendant retailed the garments. The offences involved attaching price tags to garments displayed in stores bearing higher prices crossed out and lower prices written below, when the garments had not been previously offered for sale at the higher price. O'Loughlin J held at 508:
I also am of the opinion that it is appropriate to deal with this matter as if there had been one offender but to acknowledge the existence of the two defendants by imposing upon each a penalty equal to 50 per cent of the whole. In reality, what happened was the implementation of one sales strategy by one business house. It would be unfair to impose a multiplication of penalties because of the number of outlets or the number of the companies in the group.
[98] The trial judge rejected the approach of O'Loughlin J in the light of her conclusions as to Big River Timbers. It is unnecessary for us to rule upon the question raised in that respect because of the conclusions that we have reached as to the proper disposition of this aspect of the appeal.
[99] Although the defendants have been found guilty of the same offence that was in the same terms and arose out of the same circumstances, their offences relate to corporate co-offenders who are in a partnership that is the employer. There is, therefore, a critical factual difference to that found to exist in Big River Timbers: in this case, the issue of totality does not arise because, as a result of the partnership, there is but one employer entity in law. We propose to proceed to sentence on this basis.
...
[114] We have considered all of the circumstances of the case, including the seriousness of the offence, and have taken into account the mitigating factors identified in the evidence. The maximum penalty for the offence is $550,000. Having regard to the objective seriousness of the offence and all the circumstances, we consider that an appropriate penalty is $80,000 with each defendant paying 50 per cent of this amount.
88The prosecutor submitted that, in respect of assessing each of the defendants, one needed to look at their respective culpability for the offence and, in this case, that it was equal; that their culpability as an employer through the partnership was equal. JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales was cited as authority for this proposition.
89However, it was submitted by the prosecutor the principle of parity, which was not in issue in JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales , applied in the present case and that principle did not require equal sentences where there existed differences between the defendants that warranted a different approach; where there were relevant differences, due allowance should be made for them. The differences, the prosecutor submitted were that:
(a)Vinsente had a prior conviction whereas Desiya did not;
(b)Desiya entered a plea at the earliest opportunity whereas Vinsente did not; and
(c)On and from 1 July 2012 Desiya ceased being a partner in Agrigrain; Desiya no longer undertakes any commercial operations in any industry, including the grain trading and packing industry; Desiya will be wound up following judgment in this matter. This is relevant to specific deterrence.
90The prosecutor referred to Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ, at 309 per McHugh J and at 325 per Gummow J and what was there said regarding parity. It is sufficient to refer to what Dawson and Gaudron JJ said (footnote omitted):
The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated.
91I do not cavil with JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales , but I would observe that it is not the partnership that is being prosecuted; it is the two employers who are the partners. Each has been charged with a separate offence and in the proceedings were represented by two different counsel. Moreover, unlike JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales the maximum penalties in this case are different: $550,000 for Desiya as opposed to $825,000 for Vinsente. In those circumstances, I do not see how the Court is able to determine a global penalty where the range in which to fix the penalties is different. This is especially so in the absence of any submissions that the difference in maximum penalties is or is not a relevant consideration. I should think it is a significant consideration given the decision in Markarian v The Queen.
92Furthermore, JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales did not identify any relevant differences between the corporate entities that made up the partnership. It was implicit in the Full Bench's decision that culpability was regarded as the same between the two defendants and, in the absence of any relevant differences, that the defendants should receive the same fine, albeit based on a "global" approach to sentencing, with an amount being determined in respect of the overall culpability of the two defendants and that amount being split evenly between the two.
93Given these differences I would, therefore, distinguish JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales .
94It was not in issue that the two defendants, Vinsente and Desiya, were charged with and pleaded guilty to the same offence, in the same terms arising out of the same risk and circumstances. I do not understand the defendants to have submitted that between them there were different degrees of culpability; they were equally culpable. In those circumstances, I do not see how I am able to fine the defendants according to a formula, derived from the Partnership Agreement (the 80/20 split), that has nothing to do with culpability.
95Moreover, as the prosecutor submitted, there are different sentencing considerations applying to the defendants that cannot be overlooked in favour of applying the asset ratio in the Partnership Agreement.
96In my opinion, the fact that the defendants are equally culpable would suggest that the fines should be the same. However, when one has regard to the differentiating factors referred to by the prosecutor the penalty to be applied to Vinsente should be higher than that for Desiya.
97As I earlier noted, the prosecutor identified three differences in the matters the Court is required to consider in sentencing the defendants: prior conviction of Vinsente (disentitled to the leniency normally extended to offenders who are not adversely recorded and higher maximum penalty); difference in discounts for guilty plea; and specific deterrence. The appropriate penalty in respect of Vinsente is $90,000 and in respect of Desiya is $60,000.