24 Following the reference to Wong it was further stated in the joint judgment in Markarian at [39]:
Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of "instinctive synthesis", as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression "instinctive synthesis" may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.
25 At [24] and [27], however, it was stated in the joint judgment:
Neither the conclusion that a sentencer has reasoned sequentially, nor the observation that a sentencer has quantified the allowance made, for example, on account of the offender's plea of guilty, or the offender's assistance to authorities, of itself, reveals error. Indeed provisions like s 21E of the Crimes Act 1914 (Cth) may require the sentencer, in some circumstances, to identify the amount by which a sentence has been reduced on some account.
…
Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
26 In the joint judgment in Markarian it was held that the Court of Criminal Appeal had erred, principally because of the particular approach taken by Hulme J (with whom Heydon JA and Carruthers AJ agreed). In this respect, see [31]-[33].
27 In a separate judgment McHugh J also discussed the two approaches to sentencing, expressing a strong preference for the instinctive synthesis approach. His Honour described the two approaches at [51]:
By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the "objective circumstances" of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.
28 Whilst Kirby J agreed with the other members of the Court that the Court of Criminal Appeal had erred in adopting the wrong starting point (the quantity of the heroin the subject of the principal offence and the maximum sentences fixed by the relevant legislation for specific quantities), his Honour offered, with respect, a spirited defence of the two-tier approach to sentencing and a strong critique of the instinctive synthesis approach.
29 In R v Sharma (2002) 54 NSWLR 300 the Court of Criminal Appeal held that Wong did not require it to overrule R v Thomson; R v Houlton. The disapproval in Wong of the "two-tier" approach was, of course, made by only three of the Justices. In Markarian the disapproval of that approach was voiced by the majority but on my very tentative assessment it does not seem to me that expression of disapproval is sufficient to cause the sentencing practices in this Court to be abandoned. Those practices include taking into account all of the factors of the case, both objective and subjective. Moreover, the practice of nominating a specific discount made, for example, on account of the offender's plea of guilty, is not something the High Court has sought to overrule.
30 In any event, it is not for me to determine in this judgment the implications of Markarian for the sentencing practices of the Commission in Court Session, especially when I have not been addressed on the implications and where s 42A of the Crimes (Sentencing Procedure) Act 1999 requires me to take into account the relevant guideline judgments in sentencing. It seems to me, therefore, I am required to continue take into account the guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383.
31 I turn to a consideration of the factors to be taken into account. The risk in this case was the risk of the trailer collapsing whilst being worked on, thereby causing injury. As to the objective seriousness of the offence, the defendant failed in two respects to ensure the safety of Mr Miles. That is, the defendant failed to provide:
(a) a safe system of work; and
(b) information, instruction, training and supervision.
32 As to the first failure, the defendant had not previously performed work on this type of trailer, which was a tandem axle dolly trailer with an extra long drawbar. Notwithstanding this fact no safe work procedure was provided to Mr Miles in carrying out the maintenance work on the trailer and so the defendant had not identified, assessed or taken any steps to control the risks associated with working on this particular trailer.
33 Mr Beeck acknowledged that a formal risk assessment was not conducted but that he and Mr Scott inspected the trailer and he could see no reason why the defendant could not perform the tasks.
34 Whilst, on the surface, the trailer may have appeared similar to other trailers worked on by the defendant, there were important differences. One of these was the extra long drawbar that caused more weight to be at the front end of the trailer than was the case with other types of trailers and the trailer did not have stands permanently attached to the front end upon which the trailer could rest.
35 In order to work on the trailer it had to be placed on two safety stands at the front, a bottle jack was used to support the front axle and two other bottle jacks supported the rear axles. A forklift had also been used initially but was removed later in the procedure. The wheels were then removed. In this state the trailer was inherently unstable because the centre of gravity was not where it might normally be expected to be but rather it was towards the front of the trailer because of the long and heavy drawbar.
36 The work being performed by Mr Miles involved, amongst other things, removing one the bushes from underneath the trailer and he was having some difficulty with that task. The normal procedure for removing bushes was to knock the pins out with a hammer and a bar and then insert the bar into the radius rod bush and lever it up and down until the bush released. Mr Miles was using a lot of force and wiggling of the radius rods to get the bushes out on the day of the accident.
37 It appears that as Mr Miles was applying force, the trailer moved and collapsed on top of him. Mr Beeck opined that:
[T]he dolly had moved whilst it was been worked on by Jason, that the rear axle which was being supported by two bottle jacks had slipped and Jason was trapped underneath the equipment and injured. It further appeared that the dolly had moved in part because of the weight of the extremely heavy draw bar attached to the dolly.
38 Mr Beeck deposed that the procedure used to support the trailer was strictly against the defendant's policy and all instructions to employees. Jacks, he said, were to be used as a means of lifting equipment only, not as a means of support whilst work was being done. The proper means of support were safety stands and Mr Beeck claimed that there were sufficient stands available in the workshop but they were not used, as they should have been, and bottle jacks were used instead.
39 Had a proper evaluation of the risk been undertaken by the defendant, it would have become apparent that the long and heavy drawbar and the absence of permanently attached stands to the front of the trailer required the adoption of a particular system of work that ensured the trailer was adequately supported and would not collapse on any person working underneath. The defendant failed to ensure such a safe system of work was provided.
40 As to the second failure, namely, the failure to provide information, instruction, training and supervision, in the absence of a proper assessment of the trailer prior to commencing maintenance work on it, the significant feature associated with the drawbar causing instability was not identified. Consequently, Mr Miles was not informed of that feature. He was not informed, in particular, of the need to remove the drawbar prior to commencing maintenance.