Inspector Vierow v LBJ Crane & Rigging Pty Ltd

Industrial Relations Commission (NSW)|2003-05-16|Before: Peterson J, Mr P, Ms P, Staunton J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Vierow v LBJ Crane & Rigging Pty Ltd [2003] NSWIRComm 358 PROSECUTOR Inspector Maurice Vierow PARTIES : DEFENDANT LBJ Crane & Rigging Pty Limited FILE NUMBER: IRC183 of 2002 CORAM: Peterson J CATCHWORDS : Occupational health and safety - issue concerning penalty - Employee of contractor suffering fatal injuries while operating crane on railway maintance work near Strathfield Station - Under supervision of Railway Safety Authority - Earlier finding of guilt - Issue of penalty - Inability of defendant to influence events - Withdrawal of defendant from the industry - Application for dismissal of charge under s10 of the Crimes (Sentencing Procedure) Act - Consideration of relevant issues - Offence found proved - Charge dismissed without proceeding to conviction. LEGISLATION CITED : Occupational Health and Safety Act 1983 s15 Crimes (Sentencing Procedure) Act 1999 s10 Inspector Vierow v LBJ Crane & Rigging Pty Ltd [2003] NSWIRComm 152, 16 May 2003, unreported. WorkCover Authority of New South Wales (Inspector Maurice Vierow) v Rail Infrastructure Corporation [2003] NSWIRComm 112, 17 March 2003, unreported. WorkCover Authority of New South Wales (Inspector Benbow) v Converquip Pty Limited (2001) 106 IR 258 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 CASES CITED : Department of Mineral Resources of New South Wales v AM Hoipo & Sons Pty Limited [2000] NSWIRComm 16, 15 March 2000, unreported WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 Wong v Melinda Group Pty Ltd (1998) 82 IR 118 Thorneloe v Filipowski (2001) 52 NSWLR 60 HEARING DATES: 09/23/2003 DATE OF JUDGMENT: 10/24/2003

PROSECUTION Mr P M Skinner of counsel

SOLICITOR WorkCover Authority of New South Wales SYDNEY. LEGAL REPRESENTATIVES: DEFENDANT Ms P E McDonald of counsel

SOLICITOR Coleman & Greig PARRAMATTA.

JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

INSPECTOR MAURICE VIEROW v LBJ CRANE & RIGGING PTY LTD

Prosecution under s 15(1) of the Occupational Health and Safety Act 1983. JUDGMENT RE PENALTY

1 This matter, which concerns a prosecution of the defendant, LBJ Crane & Rigging Pty Limited in relation to a breach of s 15(1) of the Occupational Health and Safety Act 1983 ('the Act') was the subject of a judgment on the issue of liability delivered on 16 May 2003 [2003] NSWIRComm 152, unreported.

2 In the reasons published on that occasion the defendant, which had chosen not to appear on the issue of liability, in circumstances which are explained in the earlier judgment, was the subject of a finding that the prosecutor had made out each of the elements of the alleged offence. On the question of penalty, the defendant was represented by counsel, Ms P E McDonald. Mr Skinner of counsel appeared again for the prosecutor.

3 The offence the subject of the matter occurred in relation to work being undertaken by two employees of the defendant, who were operating a mobile crane owned by the defendant upon lands occupied by the State Rail Authority and under the care at the time of a body known as Railways Safety Australia ('RSA'), now known as the Rail Infrastructure Corporation. That corporation was prosecuted in respect of a breach of s16(1) of the Act and was the subject of a conviction by Staunton J on 17 March 2003 in WorkCover Authority of New South Wales (Inspector Maurice Vierow) v Rail Infrastructure Corporation [2003] NSWIRComm 112, unreported. The Corporation was convicted and fined the sum of $168,000.

4 The defendant adduced evidence from its principal, Radovan (Ronald) Stojanovic who, together with his wife, are the only directors of the defendant. The evidence establishes that the defendant owned and operated two cranes which were utilised by another crane company, Gillespie Cranes, upon contract work undertaken by it, on the basis that the defendant would be paid an 18% commission of the contract price. Other aspects of that commercial relationship are of no present relevance.

5 On the day in question, 23 May 1998, an employee of the defendant, Rodney Fox, suffered fatal injuries when struck by a train whilst working adjacent to an active railway line near Strathfield station.

6 As I have said, the finding of guilt occurred in circumstances where the court did not have the benefit of representation of the defendant and where matters which may well have been able to be advanced on its behalf were not put. Indeed, as Mr Skinner submitted in the context of the penalty proceeding, some of the features advanced on that issue were not advanced in a s53 defence application, as might normally have been expected.

7 Mr Stojanovic swore an extensive affidavit, which was tendered in the proceedings and upon which he was cross-examined. That affidavit establishes that the deceased employee was a virtually life-long friend of Mr Stojanovic. They attended primary school and grew up together. Mr Fox was a groomsman at Mr Stojanovic's wedding and was treated by the Stojanovics' children as an uncle. The death has had a very serious impact on Mr and Mrs Stojanovic. The evidence included a report by Dr Alex Gilandas, a corporate and medical psychologist dated 4 November 2002, some 4½ years after the fatality, which described the results of his testing of Mr Stojanovic as putting him in the severely depressed range and moderately anxious range. He was found to be suffering from an Adjustment Disorder With Mixed Anxiety & Depressed Mood (DSM-IV 309.28). The Adjustment Disorder and the listed problems with which he was having to deal were all said to be "directly related to the death of his friend in the work-related accident over which Mr Stojanovic feels he had no control".

8 This question of lack of control was, on the evidence, at the heart of the defendant's stated inability to plead guilty to the charge. Mr Stojanovic took the view that a plea of guilty would convey or mean that he had been responsible for his friend's death. In truth, he regards State Rail as responsible for the events leading to the accident. While the prosecutor submitted this demonstrated a lack of remorse or contrition, the other evidence is overwhelmingly to the contrary. The remorse which Mr Stojanovic continues to feel was palpable in the course of his evidence and presence in court. I find on the evidence that the work accident the subject of these proceedings dealt a devastating blow of an emotional kind to both Mr and Mrs Stojanovic.

9 The effects did not, however, stop there. The evidence includes the following: 42. Shortly after the accident a job arose at Yennora for State Rail I did not want to have anything to do with the 25 tonne crane. At the site I was asked to do a job near high powered lines and I told them that I would not to (sic) do it. They sent me back to Gillespie's yard. I have never worked on a State Rail site since then.

At this point I was having difficulty coping with my work. I did not want to be in the crane, and only did so to support my family. Prior to the accident I loved to work on cranes and it was all I knew how to do.

I also found difficulty coping at home. Before the accident I was easy going and happy. I liked to have a beer and my family was the focus of my life. I could drink and it was not a problem. After the accident I was increasingly drinking more which would make me further depressed. When we went out with family and friends I would try to act normal, but inside I was tormented. I would also fight with Kim, who has often remarked that I am not the same person. I would also lose my patience with the kids. Friends often commented "what have I done wrong to Ron".

I had, and continue to have a lot of hatred for State Rail. I swore that I would never go on a train again. My children have never been on a train because I will not go travel on them.

LBJ BUSINESS POST ACCIDENT. 46. In 1999 I had had enough and put both cranes up for sale. 1999 was a busy year because it was the year before the Olympics. In the middle of 2000 I had an opportunity to purchase a hardware business. The cranes were still on the market.

In September 2000 I eventually sold the 50 tonne crane. Rod was still driving the 25 tonne crane, but he was not coping either. He continued to turn up to work but was never the same. He too was good friends with Foxy. They spent a lot of time together and when working would spend whole days at a time together.

Between 2000 and 2001 I undertook no crane work. I did not care if the crane was hired out as I did not want anything to do with it. It (sic - I) had great difficulty selling the 25 tonne crane. Whilst this crane was painted in Gillespie colours, I had the words "The Fox" painted on the back of it in honour of Foxy.

In July 2001 I sold the 25 tonne crane. It owed me $126,000.00 and I sold it for that amount just to get rid of it.

10 The affidavit also dealt with the defendant's financial position as follows: LBJ's FINANCIAL POSITION.

In relation to the capacity of LBJ to pay any fine, the company has no assets. Currently it is the trustee company of the hardware business but from 29 September 2003 it will cease to be the trustee. The hardware business cost around $700,000.00. $400,000.00 of this was borrowed from the Westpac by LBJ. We borrowed $300,000.00 from my mother.

LBJ no longer trades, nor has it any assets. Annexed and marked "A", "B" and "C" respectively are the financial statements for LBJ for the financial years ended 2001, 2002 and 2003. The loan for the purchase of the Hardware business has now be (sic - been) transferred to Southern Shoalhaven Suppliers Pty Ltd.

In respect of LBJ's balance sheet as at 30 June 2003 it includes as an asset land valued at $100,000. Subsequently the land has been sold to Southern Shoalhaven Suppliers Pty Ltd and the proceeds of the sale have been paid to the Westpac Bank in satisfaction of debts owed by LBJ, including an overdraft to Westpac. The land is now providing security to the Westpac for its loan to Southern Shoalhaven.

LBJ has significant tax debts. It owes the Office of State Revenue $66,925.94. Kim and I are paying this debt off through monthly instalments of $11,226.60. The repayments are coming out of the hardware business. Annexed and marked "D" is a letter from the Office of State Revenue dated 24 June 2003 indicating the debt owed. Annexed and marked "E" is a copy of a letter from my accountant indicating the level of repayments.

LBJ also owes an amount of $16,456.48 to the Australian Taxation Office. Annexed and marked "F" is a copy of a payment advice dated 30 August 2003.

LBJ has also been the victim of fraudulent activity by a former secretary who worked with the company between 1993 and August 2001. We have discovered, to date, that she took over $150,000.00 through forged cheques, fraudulent payments and pay list schedules. We went to the Nowra Police in March 2002 after discussing the matter with our accountant and are waiting on them to bring fraud charges against her. Annexed and marked "G" and "H" respectively are two initial reports prepared by my accountant following discovery of the fraudulent activities.

LBJ has fully co-operated with WorkCover and has supplied them statements and documentation as requested.

11 In my judgment on the question of liability, I held that the defendant's failure was essentially one relating to induction (see pars. [19] and [20] of the judgment of 16 May 2003). Counsel for the prosecutor has now referred me to the judgment of Staunton J in the related matter concerning the prosecution of the Rail Infrastructure Corporation (the successor to Railway Safety Australia) ('RSA') which was responsible for the maintenance work being undertaken when Mr Fox was struck by the train.

12 The relevance of the related judgment of Staunton J was submitted as being the issue of parity. However, I observe that the material before her Honour permitted the following conclusion to be made: On this issue the agreed statement of facts discloses at paras [37] to [41] those procedures that were in place at the time of the accident in May 1998. Those paragraphs particularly disclose that the RSA procedures for work on or about railway lines were governed by procedures known as 'Safe Working Units', otherwise referred to as SWU's. By all accounts those SWU's were voluminous in nature and incorporated within them were procedures entitled 'Safe working procedures for Engineering Work' generally referred to in the facts before me as the '900 series'.

It is not disputed that at the time of the accident the responsibility and control for the oversighting of SWUs rested with the SRA. Nevertheless, all persons employed or engaged by the defendant before me were required to be bound in following the procedures as set out in the SWUs. In a number of those SWUs there were procedures to be followed by persons working on or near railway lines. That work included repairs, maintenance or upgrading of railway tracks or associated work.

13 It appears that the material supporting those conclusions was advanced in the defence case in that matter. Here, of course, the defendant did not appear on the issue of liability and, accordingly, no evidence was advanced in that context.

14 It is troubling that my finding with respect to the defendant's failure in the present case would appear to be in some conflict with the conclusions by Staunton J. I accept, unequivocally, the correctness of her Honour's conclusions but it concerns me that my conclusion would seem to impose on the defendant here a burden which could not operate as a matter of practicality in the work environment of the RSA.

15 That is not to say the defendant is without a burden arising under the OHS Act. The significance of this question seems to me to be its impact upon the level of seriousness with which the court should now view the offence in the context of the fixation of penalty.

16 Mr Skinner relied upon the judgment of Wright J, President in WorkCover Authority of New South Wales (Inspector Benbow) v Converquip Pty Limited (2001) 106 IR 258 as lending support for the view that the fact the defendant company here is now without funds and indebted ought not militate against the imposition of an otherwise suitable fine. Ms McDonald sought to distinguish that decision. After declaring the inappropriateness on the facts of the case of an order under s10 of the Crimes (Sentencing Procedure) Act, 1999 Wright J said: However, to ensure a just outcome in the proceedings before the Court I have taken into account all of the circumstances as to the current operating situation of the defendant and its financial situation. Notwithstanding the submissions of the prosecution, I accept those of counsel for the defendant that the defendant at present has no assets, which represents a change in its circumstances. Although it had been essentially a service company it would have been able to pay any fine imposed.

The Court obviously would hesitate before it would impose a fine which could be described, as counsel for the defendant did, as "vacuous". However what the Court must do is to take all relevant circumstances into account. In that regard, as well as giving weight to the finding earlier made as to the bona fide commercial decisions which led to the present situation, I should also have regard to the acknowledgment by the defendant that the existence of these proceedings was not the only factor which led to the defendant being kept in existence. Other considerations included that it had "a place in the market" and that situation is to be seen as having commercial benefit to its associated companies and those controlling them.

17 The reference to "bona fide commercial decisions" related to a corporate restructure identified earlier in the judgment by which one company was formed, subsequently to the accident the subject of the proceedings, to take over the running of a number of corporations within the group because of impending GST legislation and the number of inter-company transactions that would have been subjected unnecessarily to tax.

18 I consider Ms McDonald's submission does correctly distinguish this judgment. The facts before me are very different. While "corporate restructuring" is a term that might be capable of application, the motivation therefor was entirely different. The crane business, as the evidence set out above illustrates, was withering away, essentially through the inability of Mr Stojanovic to further and develop it because of the after-effects of the accident. In 2000 he and his wife determined to purchase a hardware business, which they did, the defendant company becoming the trustee company of the hardware business although that will cease from 29 September 2003. The purchase price of that business was funded by borrowings from Westpac and Mr Stojanovic's mother. The defendant, while no longer trading nor having any assets, retains tax debts to both the Australian Tax Office and the New South Wales Office of State Revenue. Those debts are being met from contributions from Southern Shoalhaven Suppliers Pty Limited, which now carries the loan for the purchase of the hardware business.

19 Although one may infer an income from the hardware business, at least sufficient to pay the tax instalments to which I have referred, the evidence does not demonstrate any capacity in the defendant to meet any fine that might be imposed. While s6 of the Fines Act requires the court to take that matter into account, the defence has submitted that that feature, together with a number of other features to which I will come, is a factor which may be taken into account in the consideration of making a s10 order.

20 In Converquip, Wright J said: The defendant's financial circumstances must be considered by the Court and I shall return to that aspect later. It is sufficient to state as to the reliance on that matter in submissions seeking the application of s 10, that I do not consider that such circumstances are relevant in any decisive way to the exercise of the discretion under s 10 in occupational health and safety offences. The reasons for this conclusion I would have thought were obvious. However, by way of example, reference may be made to the fact that the favourable exercise of the discretion would fail to take into account sufficiently the important public interests and public purposes served by the Occupational Health and Safety Act and sentencing under it, particularly insofar as the deterrent effect of sentencing under the legislation is concerned. The importance of that deterrent effect should neither be underestimated nor understated. Further, the inappropriate exercise of the discretion could lead to the misuse of company restructures and the like by less scrupulous corporations and those controlling them. The defendant's plea should, in all the circumstances, result in the defendant being convicted of the offence charged.

21 That paragraph makes two points of general import. The first is that impecuniosity of a defendant is not decisive in its favour in a s10 application. The second is that proper regard must be had to the need for general deterrence in imposing penalties under the Act.

22 It was also submitted for the prosecutor that the principle of parity must be borne in mind. In contrast with the matter before Staunton J, there was no plea of guilty entered here and, as I have earlier suggested, the prosecutor submitted there was evidence of a lack of contrition. It was recognised that the approach taken by not appearing on the issue of liability left the prosecutor to prove its case but did abbreviate the estimated hearing time of seven days to one half day.

23 Ms McDonald submitted for the defendant the evidence establishes the objective seriousness of the offence is at the lower level. It was a relatively small operation with two cranes conducted by a corporation that was essentially a family business operated by husband and wife. There was nothing the defendant could do with respect to the obligations of the RSA to induct persons on to the work sites. The Safe Working Units were in operation. The summary of contributing factors contained in a report of an investigation into the accident demonstrates that the real culpability for the injury lies with the RSA.

24 Further, the Coroner's Report records that the accident site was "devoid of lighting, flag person or demarcation tape. There were no signs of this being a work site". It also referred to the police as having described the lighting in the area as dim, with a need to use torch light to walk amongst the tracks and various obstacles. There appeared to be no physical division between the work area and the live tracks. There appeared to have been no risk assessment document for this job at Strathfield in use at the time of the incident. It was submitted that the culpability of the defendant in the present proceedings is of a smaller degree than that of the RSA.

25 Ms McDonald submitted that the element of specific deterrence could be disregarded in this case in accordance with the approach adopted in Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 at par. [77] where the risk of re-offending was low or non-existent. There is no evidence in the matter that the defendant is or will again be an employer.

26 On subjective factors, it was submitted that whilst a plea of not guilty was entered, the procedure adopted was one which was designed to facilitate the hearing. The prosecution was not put to proving its case in the usual way. This should be taken into account in the defendant's favour. Reference was also made to the contrition and remorse of the defendant and its previous record of good industrial citizenship, and to the assistance which was given by the Stojanovics to the Fox family. I note that two brothers of the deceased employee continue to be regular visitors to the Stojanovics' home.

27 As to the effect of the death, Ms McDonald referred to Department of Mineral Resources of New South Wales v AM Hoipo & Sons Pty Limited [2000] NSWIRComm 16, 15 March 2000, unreported, a judgment of Walton J. In that matter, this was said: 64 I accept that Mr Hoipo's regret and contrition are genuine. Contrition, repentance and remorse after the offence are mitigating factors which may lead to a reduction in the sentence which may otherwise have been imposed: see Neal (1982) 56 ALJR 848 at 852. I also note that, although the quarry continues to be owned by the defendant, it is now operated by a third party and various improvements have been made. The personal impact of Mr Banville's death on Mr Hoipo has clearly made this a very difficult time for him. He has, in a real sense, already paid a significant penalty. Nonetheless, the offence is such that the imposition of a significant penalty is required.

28 It is necessary to observe that the facts in that case were very different. Mr Hoipo left an employee to operate a quarry at Somersby, New South Wales, alone when Mr Hoipo was ill. The employee was later found dead on the end of a conveyor belt. It was found that he had died from "traumatic asphyxia due to a crush injury to his chest after his arm was pulled under the axle of the head drum of the conveyor". There seems to me to have been a culpability of a much higher level involved in the defendant's failure in that matter than can be attributed to the defendant in the present matter.

29 It was submitted on behalf of the defendant that this is a case in which the benefit of a s 10 order would be an appropriate result. Section 10 is in the following terms: 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.

(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,

(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.

30 In respect of any other matters that the court considers relevant it was submitted that there are here strong subjective factors in favour of the defendant. There is the intense degree of personal suffering by the directors; there is the element of the defendant's financial status which, while relevant, is not decisive; there is the lack of prior convictions and a record of good industrial citizenship and there is the culpability overwhelmingly on the RSA in this case. While in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 it was held that s 10 applications ought be confined to the rare and exceptional case, this is such a case. There is no prospect of the defendant re-offending and, taking into account the matters adverted to by Staunton J, there is no, or a reduced, prospect of an accident of this kind happening again.

Conclusions 31 Having sat in this jurisdiction for more than 11 years, I have to say that this case illustrates what I consider to be the worst effect on a (putative) employer of a fatal injury suffered by an employee. The facts of the case, as they have been summarised, shows that the deceased employee was a personal friend of the closest kind of Mr Stojanovic and his family. The work was to be undertaken in an environment in which the RSA had special and particular obligations with respect to safety which were incapable of impact to some different result by Mr Stojanovic. I find that the culpability for the accident lay overwhelmingly with the RSA. I am inclined to think that had the question of liability been defended, the defendant would have had a reasonable prospect of raising a s 53 defence.

32 The need to consider deterrence as an aspect of sentencing is fundamental, however, its significance may vary according to the circumstances of the case. Here, I find the impact upon the Stojanovics and Mr Stojanovic in particular, as the controlling mind of the defendant, was so severe that there is demonstrably no need to factor specific deterrence into the sentencing process. This conclusion is also supported by the discontinuance of the defendant's business. In the light of the differences between Staunton J and myself, to which I have adverted, in terms of the responsibility for the accident, I consider the defendant is left in a position where the concept of general deterrence has equally little impact in this case on the assessment of penalty.

33 In Profab the Full Bench referred to a judgment of the Full Court of the former Industrial Court in WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at 101, as "clear authority for the propositions that the discretion under s 556A" (of the Crimes Act 1900, now s 10 of the Crimes (Sentencing Procedure) Act 1999) "would rarely be available in significant offences against the legislation and any application for the benefit of the provision should be rigorously tested".

34 The Full Bench then set out what it described as a judgment exemplifying the rare cases in which s 556A might be applied in occupational health and safety prosecutions. Accepting that observation as binding, it is necessary to look to the features of the exemplar case, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 133 per Hungerford J. The Full Bench said: The unusual circumstances of the case and the reservation expressed by his Honour demonstrate both the limited nature of cases where s 556A will be appropriate and the reluctance in this jurisdiction to invoke it: "I wavered during the hearing, as debated with Mr Goot, whether this case was appropriate for the application of s 556A. However, on balance, and after reviewing the evidence, I am comfortably satisfied it is. In all the circumstances, I cannot conceive it to be just for the defendant to suffer a criminal record for what occurred.

The defendant has no prior convictions and it pleaded guilty to the present charge in a timely way. Its attention to safety considerations in respect of the King Street building over very many years was well established and, in particular, its actions in arranging an appropriate and safe system for the external cleaning of the building's windows, including the approval of the WorkCover Authority, is clear. The real and effective culpability for the tragic accident which occurred to Mr Child was that of a tenant, Mr Timmins, and of Mr Child's employer, Towabug Pty Ltd. The defendant was simply unaware of the arrangements for the work to be performed by Mr Child and, in view of its policy on window cleaning and the steps for a safe system, could not reasonably have foreseen the accident which occurred. Indeed, the defendant engaged a consultant, Alan Keevers Enterprises Pty Ltd, to provide building services, necessarily including safety arrangements, for the King Street property and that corporation must bear a degree of responsibility for the incident. The defendant, in my view, has been subjected to extenuating circumstances over which it had no direct control. It follows, in my view, that it is inexpedient to inflict any punishment on the defendant. I propose to apply the provisions of s556A of the Crimes Act by dismissing the charge."

35 In Thorneloe v Filipowski (2001) 52 NSWLR 60 the Court of Criminal Appeal (Spigelman CJ, Hulme and Howie JJ) dealt with an appeal from a judgment of the Land and Environment Court imposing a penalty on the Master of a vessel which had discharged a small amount of oil into the waters of Botany Bay. One issue which arose was the argument advanced on appeal that the defendant should have been given the benefit of s10 of the Crimes (Sentencing Procedure) Act 1999. Spigelman CJ (with whom Hulme J agreed generally although expressing his own reasons on one issue, Howie J agreeing in both judgments) said: 164 When, as in the case of s27 of the Marine Pollution Act , the Parliament has expressly provided that both the owner and Master may be held liable for the same pollution, there is no reason to invoke a concept like "double penalty" as if it restricted the sentencing court in any way. In Federal Steam Navigation Lord Morris of Borth-y-Gest was in dissent on this very point. He concluded that under the statute there under consideration, either the owner or the Master - but not both - could be convicted. The majority decided otherwise. The identification by Lord Salmon of the distinct bases for responsibility of the owner and the Master represents the majority view. The idea of "double penalty" has no role to play in this context.

165 In Hunter Water Board v State Rail Authority of New South Wales [No 2] (supra) at 23, Stein J said: "This Court has not infrequently stated that it will be a rare case when a dismissal under s556A is seen as appropriate for an environmental offence, especially a breach of the Clean Waters Act ." 166 On appeal to this Court, Gleeson CJ, with whom Cripps JA and Slattery AJ agreed, said at 726G that there was no error in his Honour's approach to penalty.

167 The formulation "a rare case", or equivalent words, has been applied in the Land and Environment Court a number of times. (See e.g. Morrison v Peters (supra) at 42; Morrison v Kingston Marine (supra); Clarke v Environment Protection Commission (1997) 98 LGERA 114 at 116; Filipowski v Terminals Pty Ltd (supra) at [73]).

168 Similar issues have arisen under s15 of the Occupational Health and Safety Act which I have set out above. In Schultz v Tamworth City Council (1995) 58 IR 221 at 229, Fisher CJ said: "The use of s556A of the Crimes Act , which in the light of the strongly defined duty of care, clear public policy considerations in the Act and major penalties provided, ought to be rare indeed ... ." 169 This formulation has frequently been used in the Industrial Relations Commission. See the joint judgment of Wright, Walton and Hungerford JJ in WorkCover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [19], [21], [26].

170 I would reject the Appellant's general submission that the result itself suggests legal error. However, one of the Appellant's specific submissions requires further consideration. As noted above, the Appellant challenged whether Talbot J had given any, or, alternatively, adequate consideration to the fact, for which the Appellant contended, that no reasonable action on the part of the Master could have averted the incident.

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.

36 In the result, the appeal there was allowed. The offence was found to have been proved but no conviction was recorded and the proceedings were dismissed.

37 Despite my finding as to guilt, I consider in the light of all of the material now before the court that this is a like case in the sense that, as in Wong v Melinda and Thorneloe v Filipowski, there was nothing the respondent could, as a matter of practical reality, have done to ensure the offence did not occur. I consider no public purpose would be served by recording a conviction or imposing a penalty in those circumstances.

38 I order that the offence in Matter No IRC183 of 2002 is proved but no conviction is recorded and the proceedings are dismissed.

39 I have not heard the parties on the issue of costs. I direct them to confer on that issue and will relist the matter to deal with it if it be necessary.

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Cases Cited (13)