29 Mr Seal again described the devastating effect that this accident had on his business and family life and how the strong and prosperous business that had been built up over the years was now in ruins. He explained the safety equipment purchased by the company at considerable expense, the training provided in its use and its ready availability for all work performed by the company including work in confined spaces. He again frankly accepted his own responsibility for these breaches of the Act, but submitted that neither he nor the company had any capacity to pay a fine. A fine imposed on the company would render it insolvent and insolvency or bankruptcy would lead to the termination of the contract with Austress. Without income from that contract, the company's outstanding debts could not be paid and Mr Seal would have no capacity to meet those debts let alone meet the much reduced day-to-day expenditure of his household. His request was for the Court to take these matters into account, while accepting total responsibility for the breaches of the Act as particularised and to alleviate the potential burden of the fines in any way possible.
DELIBERATION
30 The first matter to be considered is the objective seriousness of the offence. In this case, although Mr Woodbridge made a quick and apparently complete recovery, there was a risk of very serious injury by performing work with materials emitting toxic fumes when that work was to be undertaken in a confined space such as the water tank. The risk was increased because of the lack of formal training and the compilation of emergency procedures. The particulars of the charge to which both defendants have pleaded guilty is indicative of the seriousness the offence.
31 There are, nevertheless, a number of matters to be weighed in the balance in determining this matter. Mr Seal had approximately 34 years' experience in the building and construction industry and had been the person in overall charge of operations undertaken by Kwik-Seal Pty Ltd. I accept the evidence suggesting that Kwik-Seal was a leader in the field of waterproofing in Australia and had been involved in the introduction of modern techniques in this particular speciality. I also accept that Mr Seal had a reputation for being careful and conscientious in undertaking this work and as a director of Kwik-Seal. The evidence demonstrates that at the Park Regis site, the sub-contractors engaged were provided with a wide range of safety equipment and I accept the evidence of the financial investment made by the company in securing breathing and associated safety equipment for the performance of its work. Mr Seal's evidence was that apart from man-down alarms there was a full three to one recovery harnesses and the correct lifting equipment as well as respirators provided and available at this site.
32 The prosecutor readily accepted that this was not a case where no attention had been paid to a safe system of work but rather that the incident involving Mr Woodbridge brought to attention a gap in that system, especially in relation to work in confined space and the use of toxic substances. The defendants have accepted that training, as required, had not been undertaken in the performance of such work and that there was an absence of formal plans in relation to standby assistance and emergency procedures but the thrust of Mr Seal's evidence was that he had engaged experienced sub-contractors in this area and a very experienced foreman to oversee the work. These were people who were well aware, by experience, as to what was required for the safe working in this specialist industry and knew how to operate the safety equipment that had been provided including the respirators, the harness and the lifting equipment.
33 The circumstances of this particular incident also have to be considered. The work had been carried on at this site for a considerable period without incident using the defendant's system of work and the safety equipment provided. Mr Seal's tender document specified the materials to be used and identified the work as being work in confined spaces - to that extent full confined space recovery equipment would be required to be used during the whole of the works with men down alarms and self contained breathing equipment to be on location during the entirety of the works. There were to be extraction blowers and ducted air in/outlets and air out of the tanks to be used at all times during the process. While the operations manager Mr Mislov was in direct charge of the project, Mr Woodbridge was the main contractor at the site and when work was being performed on this particular tank both Mr Mislov and Mr Woodbridge contacted Mr O'Brien to assist in that work. The work was meant to commence at 11 am but it was well into the afternoon before Mr Woodbridge was able to attend the site. Having regard to the defendant's unblemished history of work in this area and the steps proposed for the performance of this work, on balance, I accept the defendants' submission that it appears that on this day because he was running late, Mr Woodbridge performed the work in a way that had not been authorised by the defendants and was quite contrary to its tender and specific instructions given by Mr Seal that very day. In almost every respect Mr Woodbridge departed from the normal safe system of work adopted by the defendants in his rush to perform the work. He elected to use a product that was not proposed in the tender apparently because of its quick drying properties and went straight into the tank without arranging for the presence of all of the safety equipment and while Mr O'Brien was absent. The haste with which this work was performed is indicated by the fact that Mr Woodbridge did not even attach his safety harness. There is no evidence to suggest that he had informed the defendants of his intention to use this highly toxic product and it is highly unlikely that he would have discussed with the defendants or their operation's manager Mr Mislov his intention to perform the work without the presence of the safety equipment they had provided. There is substance in Mr Seal's submission that even if formal training in confined spaces work and the production of formal emergency procedures had been made available to Mr Woodbridge prior to this incident, that he would have done anything different on the day in question. This situation highlights the oft stated importance of focusing upon the charge rather than the incident itself.
34 Balancing all of these considerations, I conclude that this was a serious breach of the Act although it is not one that could be ranked in the high range of culpability or regarded as being in the worst category of breach.
35 General deterrence is an important consideration in any offence, especially offences under the Occupational Health and Safety Act 2000. The building and construction industry, encompassing a variety of specialist undertakings, is notorious for the dangerous nature of the work performed and every penalty imposed for a breach of the Act serves to alert those participating in the industry of the need to be diligent in matters of safety. Specific deterrence in this case, having regard to the limited operation of the company and the work now performed by Mr Seal at a supervisory level, has, realistically, a very limited role.
36 There are a number of subjective factors to be considered. It says something about the capacity of Mr Seal, as a person not trained in the law, to put forward all matters that might be relevant to his case, when it was counsel for the prosecutor who disclosed in written submissions that after the accident the defendant took steps prior to the company ceasing to trade to have the operations manager Mr Mislov and other employees and contractors externally trained and certified for confined space work. There is no suggestion in the evidence that any other safety equipment was required for the type of work to be performed. The defendants fully co-operated with the WorkCover Authority and made frank admissions in relation to their guilt. In his evidence and submissions Mr Seal, without equivocation, accepted total responsibility for this accident and spoke with conviction about the obligations of participants in industry to accept responsibility for their acts and omissions. His contrition was publicly expressed, heartfelt and genuine. Each defendant is a first offender and Mr Seal appears to have considerable standing as a good citizen in this specialised area of industry. Having regard to the dangerous nature of the industry, the hitherto unblemished record of the defendants speaks well of their previous attention to occupational health and safety. In addition, the pleas of guilty were entered at an early stage and would entitle the defendants to a substantial discount usually made available for the utilitarian value of the plea.
37 Counsel for the prosecutor conceded that, given the unusual circumstances of this case, the impact of the incident upon Mr Seal including the impact upon his health, his financial, marital and familial circumstances, were matters to be properly taken into account by the Court in determining the appropriate penalty to be imposed upon him.
38 In the course of submissions, counsel for the prosecutor raised the prospect that the defendants may seek the exercise of the Court's discretion under s 10 of the Sentencing Procedure Act . In essence, the prosecutor submitted that in view of the Court's well established jurisprudence requiring special and exceptional circumstances to be established, the objective seriousness of this offence made it inappropriate for the defendants to be the beneficiary of the exercise of that discretion. As earlier indicated, in the course of his submissions, while raising matters relevant to the operation of s 10, Mr Seal confessed to not knowing of or being informed by his previous legal advisors of the operation of s 10 but nevertheless asked the Court to deal with the matter with leniency including any consideration that may be available to the defendants under s 10 of the Sentencing Act. In light of this development both the prosecutor and the Court proceeded on the basis that the defendants had made an application under s 10 of the Sentencing Act.
39 There are numerous statements by Full Benches of this Court stating that s 10 of the Sentencing Act, like its predecessor, s 556A of the Crimes Act, will be available only in rare and limited circumstances in relation to proceedings brought under the Occupational Health and Safety Act: indeed, I have been a member of Full Benches that have reiterated and adopted that approach. Many of those statements can be found in the more recent case of WorkCover Authority (NSW) (Inspector Maddaford) v Coleman [2004] 138 IR 21. In that case it was noted that in the Department of Mineral Resources v Berrima Coal Pty Ltd (2001) 105 IR 348 reference was made to earlier cases establishing the proposition that the discretion available under s 556A would be "rarely available in significant offences against the legislation". Some cases had noted the prior good record of the defendant but had concluded that the record was due to good fortune rather than good conduct. Cases where the risk of injury from an accident was not difficult to foresee, where the breach could be and did result in serious consequences for the health of the injured person, where the risk of injury was preventable and where a step was taken without difficulty to address that risk, provided circumstances in which it would be seldom appropriate to exercise the discretion under s 10.
40 Significantly, in Berrima Coal, the Vice-President, Walton J, stated:
[174] In applying the foregoing authorities for an application for the exercise of the Court's discretion under s 10 of the Crimes (Sentencing Procedure) Act, it is important, however, to bear in mind that each matter requiring consideration under s 10 of that Act needs to be considered in the light of its own particular circumstances: WorkCover Authority (NSW) (Inspector Robins v Ecolab Pty Ltd (1999) 90 IR 413 at 430.
41 It is appropriate in this discussion to set out the relevant provisions of s 10 of the Sentencing Act :
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.
. . .
(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,
(e) any other matter that the court think roper to consider.
42 In the context of dealing with an appeal against a conviction for malicious wounding, the Court of Criminal Appeal (Giles, JA, James and Hulme JJ) gave consideration to the operation of s 10 of the Sentencing Act in R v Kay Piccin (2001) NSWCCA 323. In that case, the appellant, following a relationship breakdown, arranged a meeting with the victim having predetermined to injury him with a knife and did in fact inflict knife wound injuries on the victim. James J was of the view that having regard to the nature of the offence and his conclusion that the offence was not trivial in nature, it was not a proper case for the Court to dismiss the charge or to discharge the applicant without proceeding to conviction in accordance with the provisions of s 10 of the Sentencing Act.
43 Although agreeing with the reasons and orders proposed by James J, Hulme J recorded the following observations:
[25] Although the matter has not been argued, I wish to record my view that it is not a precondition of the exercise of power under s 10 of the Crimes (Sentencing Procedure) Act, 1999 that the offence involved be trivial. That conclusion was more obvious in the case of s 556A of the Crimes Act, 1990 (as amended) which, s 10 replaced ... .
[26] However, there is nothing in the explanatory memorandum to the later Act or in the Minister's Second Reading Speech or in the Law Reform Discussion Paper 33 or Report 79 which preceded the legislative changes reflected in the Crimes (Sentencing Procedure) Act to suggest that any change of significance so far as s 556A is concerned was intended. And clearly, a limitation such that the section could be invoked in trivial cases would be a change of significance.
[27] That some power should exist to ameliorate the rigours of the criminal law in cases calling out for such an approach has been recognised in a number of cases. It is sufficient for present purposes to refer to one. In R v Ingrassia (1997) 41 NSWLR 447 at 449, Gleeson CJ with the concurrence of the other members of this Court said:-
The essence of s 556A is that it empowers a Court which considers that a charge has been proved, in certain circumstances, to take steps 'without proceeding to a conviction'. The legal and social consequence of being convicted of an offence often extend beyond any penalty imposed by a Court. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269, 'a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice'.
[28] I am unaware of any other statutory provision or other power applying to offences or offenders generally which enables a Court to avoid recording a conviction when the facts proved establish the commission of an offence. Against this judicially recognised purpose and function of s 556A, one cannot conclude from what is obviously a 'plain English' rewriting of the section that a change to only trivial offences was intended. Indeed, were one to regard the reference to 'the trivial nature of the offence' as limiting the section's application to only such offences, one would have to take the same approach to the terms of para (c) and conclude that the section was not merely limited to trivial offences but trivial offences where there was also 'extenuating circumstances'.
[29] Such an emasculation of an important provision, designed to mitigate 'the rigidity of inexorable law', is not to be inferred in the absence of legislative intent far more clearly demonstrated that in the charge change in terminology from s 556A to s 10.
44 The circumstances in which the s 10 discretion may be available in strict or absolute liability offences were discussed by the Court of Criminal Appeal in Thorneloe v Filipowski (2001) 52 NSWLR 60. In that case, a small amount of oil was discharged into the waters of Botany Bay during loading operations and the master of the vessel responsible was convicted on a plea of guilty and fined and his application to have the charge dismissed under s 10 of the Sentencing Act was refused. Although only a small amount of oil was discharged there was a potential for a much larger discharge. In discussion, Spigelman CJ stated that in the present matter little turned on the difference between absolute and strict offences but noted at [143] that in s 15 of the Occupational Health and Safety Act, 1983 the potential for harm was a material consideration because the offence was not a result offence and the focus was on the state or condition rather than on the result or consequence of an act.
45 In the course of his judgment, the Chief Justice compared offences under the Clean Waters Act, 1970 and offences under the Occupational Health and Safety Act, 1983. The nature of these offences was a matter of statutory construction but it appeared that certain Clean Waters Act offences were to be treated as "result" offences such that the effect of pollution identified a particular result or consequence which was an essential ingredient of the offence. This was to be compared with, for instance, an offence under s 15 of the Occupational Health and Safety Act, 1983: s 15 was not to be regarded as a result offence as its focus was on a state or condition rather than a result or consequences and the potentiality for harm arose by reason of the existence of the state or condition. The issue then arose as to whether in Thorneloe the sentencing Judge had taken into account an irrelevant consideration and whether the potential harm was a proper matter to be considered by the sentencing Judge when exercising the discretion to order that the relevant charge be dismissed. In dealing with this issue, Spigelman CJ stated:
[151] The discretion conferred by s 10 is wide-ranging. There is no warrant for treating the scope and range of matters which is 'proper' for a sentencing judge to take into account in a narrow way. Nevertheless, it is a discretion which must be exercised judicially. The identification of relevant considerations turns on the scope of purpose of s 10.
[152] As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269 in the context of concluding that the then equivalent on s 10 in South Australia applies to the offence thereunder consideration:
... the whole history of criminal justice has shewn the severity of punishment begets the need of a capacity for mercy. The more strict a rule is made, the more serious become the consequences of breaking it, the less likely it may be that Parliament would intend to close all avenues of exception. Especially when penalties are made rigid, not to be reduced or mitigated, it might seem improbable that Parliament would not retain a means of escaping the imposition of a penalty which must follow upon conviction, that it would abolish it, not directly but by a side wind. This is not because mercy, in Portia's sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.
46 Although not finding it easy to determine whether a factor is not relevant on sentencing for the charge, it can nevertheless be a "proper" matter to be considered when exercising the discretion under s 10, Spigelman CJ found, on balance, that s 10 did have a scope and purpose extending beyond the elements of the offence of the relevant charge. Therefore the risk to which society was subject was a relevant and accordingly a proper consideration to be taken into account in deciding whether to dismiss proceedings without proceeding to a conviction and this was so even in the context of a strict liability result offence such as under s 27 of the Marine Pollution Act.
47 The Chief Justice then noted a line of authority for the proposition that it would be a rare case when a dismissal under s 556A was seen as appropriate in relation to an environmental offence, especially a breach of the Clean Waters Act. A similar formulation had been applied by the Land and Environment Court in a number of cases and also in relation to s 15 of the Occupational Health and Safety Act by the previous Industrial Court and its predecessor. There was no error in such an approach.
48 The Chief Justice then gave consideration to a submission whether the sentencing Judge had given adequate consideration to the fact that no reasonable action on the part of the master of the ship could have averted the incident. Of this proposition the Chief Justice stated:
[171] Even in the case of an offence of strict liability, no public purpose is served by recording a conviction or imposing a penalty in circumstances where the relevant accused could not, as a matter of practical reality, have done anything to ensure that the offence or, in the case of a result offence, the adverse consequences of the conduct, did not occur.
[172] Lord Scarman expressed the purpose of imposing strict liability in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1 at 14:
... The creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act. ...
[178] It is, in my opinion, relevant to the exercise of the discretion under s 10 of the Sentencing Act, in the context of a strict liability offence, to consider what the applicant for the benefit of s 10 could have done to avert the event that has occurred. While questions of weight are always for the sentencing Judge, it is unlikely that this consideration will be give determinative weight in the case of a serious offence or a repeat offender. Where, as here, there was a comparatively minor pollution by a first offender, this consideration is entitled to weight.
49 While agreeing with the reasons for judgment of the Chief Justice, Hulme J added further comment:
[201] ... One may accept the numerous statements to which the Chief Justice has referred to the effect that, in the case of environmental offences, it is rare for s 556A of the Crimes Act 1900 (the precursor to s 10) to be applied. However, when one comes to consider a particular case, it seems to me preferable to look primarily at the considerations which arise in that case. These will, of course, include the nature of the offence as defined in the statute creating it and the penalty provided together with the perceived object of the relevant statutory provisions. But, subject to such matters, there is no reason to give s 10 any more restrictive operation in the case of environmental offences than in the case of the general run of offences to which it applies.
50 In dealing with the relevance of what, if anything, the Master could have done to prevent the lapses, Hulme J stated:
[205] That such a matter is relevant to the exercise of discretion under s 10 is amply demonstrated by the reasons of the Chief Justice. To them I would add only this. Of the five principal general considerations in sentencing - general deterrence, personal deterrence, retribution, rehabilitation and protection of the community: see Veen v The Queen (No 2) (1988) 164 CLR 465 at 476, the last two are normally of little additional consequence where, as in this case, the penalty takes the form of a fine. Retribution may well have a part to play but save insofar as considerations of deterrence may cause actual or prospective offenders to cease activities which have associated with them risks of the commission of strict liability offences, there is little point in punishing someone for an event which he could have done nothing to avert.
51 Although I have referred extensively to the judgments in Piccin and Thorneloe, for present purposes their relevance may be shortly stated. Firstly, s 10 of the Sentencing Act is not confined to "trivial" offences but is available in all circumstances where an offence has been proved. Secondly, even in the case of absolute or strict offences the discretion available under s 10 of the Sentencing Act is not excluded. Thirdly, in relation to strict offences it will be a relevant consideration as to what the defendant could have done to avert the breach although that consideration does not exclude consideration of other relevant matters: nor is it the only consideration when applying s 10.