Inspector Waterhouse v Stephensons Cranes Pty Limited

Inspector Waterhouse v Stephensons Cranes Pty Limited - [2005] NSWIRComm 103 - NSWIRComm 2005 case summary — Zoe

[15]

2 At first instance, the respondent appeared before her Honour on 26 July 2004 in answer to a Court Attendance Notice (CAN) issued on the authority of Inspector David Waterhouse as a duly appointed prosecutor on behalf of the WorkCover Authority of New South Wales. The CAN alleged an offence arising pursuant to s 8(1) of the Occupational Health and Safety Act 2000 (the Act) as follows: The defendant, being an employer at 78-82 Old Northern Road, Baulkham Hills, in the State of New South Wales (the Site) on 25 March 2002 did fail to ensure the health, safety and welfare at work of all the employees of the defendant employer and, in particular, Lukas Wayne Blackman. 3 The specific failures of the respondent were particularised as follows: (a) It failed to ensure that any plant provided for use by the employees at work was safe and without risks to health when properly used. The Tadano mobile crane ('the crane') was allowed to be operated without the anti-two block and load indicator parts functioning. (b) It failed to ensure that systems of work and the working environment of the employees were safe and without risks to health in that the system established for crane crews to ascertain the suitability of ground in relation to the setting up of the crane was inadequate. Further, there was an inadequate system in place in relation to the maintenance of the crane. (c) It failed to provide such information, instruction and supervision as may be necessary to ensure the employees' health and safety at work. There was no supervision at the site prior to the incident in relation to the set up of the crane nor at the time of the incident. There was also no occupational, health and safety plan developed. 4 The respondent subsequently entered a plea of guilty in respect of that charge, and on 26 July her Honour imposed a penalty of $1,000. In a relatively brief extempore decision her Honour said as follows: In relation to this matter I have before me, which is WorkCover v Stephensons Cranes Pty Limited, I have looked at the documents before me, the photographs of the crane and the affidavit of Mr Gauci and other matters as well when I found the offence proven. First of all of course I look at the objective seriousness of the offence of the matter and its at the lower end, and I thank Ms Fisher for that as well for agreeing that it is at the lower end.

[22]

6 On 3 March last, before the appeal proper was heard, the solicitors acting for the prosecutor advised the Court in writing that the parties proposed a joint application in relation to this matter. That was, the parties proposed that consent orders be made in the following terms: (1) Leave to appeal is granted; (2) The appeal is upheld; (3) The order of her Honour M Quinn, LCM imposing a fine of $1,000.00 on the Respondent for an offence under Section 8(1) of the Occupational Health and Safety Act, 2000 (NSW) in CIM proceedings No. 20095297 of 2004 be set aside; (4) The cost order of $2,896.00 made by her Honour in CIM proceedings No. 20095297 of 2004 be confirmed; (5) The matter be remitted to another Industrial Magistrate for re-hearing of the plea and determination of penalty; and (6) The Appellant and Respondent each pay their own costs of and incidental to the appeal proceedings. 7 As authority for such orders, both parties jointly relied upon the decision of the Full Bench in McCarthy v Sell & Parker Pty Ltd (2000) 102 IR 355 which involved an appeal arising from a decision of Magistrate O'Shane in the prosecution of an offence under s 15(1) of the Occupational Health and Safety Act 1983. In that matter, the defendant entered a plea of guilty at first instance and her Honour subsequently made an order pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 discharging the defendant without conviction. The prosecutor lodged an appeal going to the application of s 10 to the offence. That appeal was conceded. When the matter came before the Full Bench the parties sought consent orders be made quashing the order of her Honour, remitting the matter to an Industrial Magistrate for re-hearing and ordering that each party pay their own costs in connection with the appeal. In concluding that her Honour did in fact err in exercising her sentencing discretion, the Full Bench made the orders in the terms sought by the parties. 8 Notwithstanding the approach taken in Sell & Parker, which was entirely appropriate, we are not minded to adopt precisely the same approach in this instance. We are of the view that the most expeditious course is for the Court to proceed to deal with the matter to finality rather than have the parties confronted with a third set of proceedings and costs simply to determine penalty afresh. In saying that we are of the view, as is properly conceded, that her Honour's determination of penalty was manifestly inadequate. We will return to that in due course. We also observe that no weight was given by her Honour to questions of deterrence; there is no reference to that matter in her Honour's sentencing remarks. 9 Despite the fact that the respondent has consented to the appeal, we are mindful that this is a Crown appeal. It is well established, in approaching the redetermination of penalty at appellate level, an attitude of restraint must be exercised. The background to that principle was expressed by Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 340 as follows: For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time honoured concepts' of the administration of criminal justice in common law legal systems. For this reason it has sometimes been said that, as a 'matter of principle', such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced. The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences. 10 The above considerations as enunciated by Kirby J were considered by the Full Bench of the Court in WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 at 73 as follows: [47] Generally speaking, an appellate court must identify a clear and demonstrable error at first instance: see Dinsdale v The Queen (2000) 202 CLR 321 at 340 - 341 ( Kirby J) and 330 ( Gummow and Gaudron JJ); Wong v R (2001) 185 ALR 233 at 263, Batty v Graincorp at [4] and Inspector Ian Lancaster v Burnshaw Constructions Pty Ltd [2002] NSWIRComm 319 at [6].

[56]

18 To that extent, the principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646 as follows: The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence. 19 On the issue of foreseeability, the Full Bench in Capral also stated: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.

[57]

20 It is also necessary to not only consider the damage and injury suffered but to do so "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence." (Capral at 650). On that point the Full Bench in Capral stated: We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397 at 408-409, Lawrenseon Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and Page v Walco Hoist Rentals Pty Ltd (No 2) (at 22). 21 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643 - 645. Without detailing all that the Full Bench had to say on those issues we believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 22 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendant. As was said in R v Way at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). Relevant considerations 23 There is no issue that the maximum penalty that can be imposed in this matter is $550,000. That is so notwithstanding the statutory limitation placed on her Honour at first instance that limited her penalty jurisdiction to $55,000. The approach to be taken is consistent with the view expressed by the Court of Criminal Appeal in R v Doan (2000) 50 NSWLR 115 where the Court stated at 123 as follows: The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit.

[61]

27 In relation to foreseeability, the starting point for determination within the context of the objective seriousness of an offence is whether there was "an obvious or foreseeable risk to safety against which appropriate measures were not taken". (Lawrenson Diecasting at 476). It is readily apparent on any view that the operation of the crane involved the operation of an inherently dangerous piece of machinery that, if it were operated in an unsafe manner, quite foreseeably would pose significant risk to employees located in the vicinity. Given that the agreed statement of facts discloses an extensive process of risk assessment and preparation which was undertaken by employees of the defendant prior to the operation of the crane, it is clear that the defendant recognised the potential for serious risk to safety and took steps, if however inadequate, to ward against that risk. As the facts disclose, the base on which the crane was sited was or quickly became unstable once the crane commenced operation and particularly once the boom of the crane was fully extended and the full weight of the load took effect. In such circumstances, the foreseeability of the crane toppling over as it did became readily apparent as did the risk to safety. 28 It is also relevant that, whilst Mr Blackman only sustained relatively minor cuts and scratches from the incident, the potential risk of serious injury was significant. It is clear her Honour failed to properly appreciate this consideration by focussing on the extent of injuries received, and not the extent of the risk that subsequently led to that injury. Put another way, the fact that Mr Blackman escaped with minor injuries does not suggest that the risk to his health and safety was minimal or insignificant. On the contrary, it is obvious that, if Mr Blackman had not been as fleet of foot in extricating himself from the vicinity in which the crane toppled, then it is quite possible that he would not have survived the incident. In this matter, the severity of the risk is not adequately portrayed by referring only to the injuries sustained. On any view, the serious risk that was posed to Mr Blackman's safety is a matter that bears on the objective seriousness of the offence. 29 In relation to general and specific deterrence, it is clear that at first instance her Honour failed to adequately consider these elements in any detail. The relevance of those considerations is evident from the decision of the Full Bench of this Court in Capral particularly at paras [74] and [77]. In para [74] the Full Bench said in relation to general and specific deterrence, that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. 30 Paragraph [74] goes on to state that "the judge must indicate with some precision" if excluding either of those aspects in his/her consideration. On that point, para [77] states: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. 31 This is a matter where there is clearly a need for general deterrence, given the generally dangerous nature of crane operation activities in the building and construction industry. In relation to specific deterrence, consistent with the principles in Capral there is some need in the circumstances to make provision for such a factor. In our view that need is somewhat mitigated by the significant steps taken by the defendant since the incident to ensure the health and safety of employees and fulfil its obligations as an employer to ensure a safe system of work. At first instance her Honour identified those actions, with reference to the agreed statement of facts and the affidavit of Mr Gauci already referred to. In that affidavit, Mr Gauci annexes a document entitled "OHS&E Management Plan" on the defendant's letterhead, dated 24 March 2003. That plan states the following in the section entitled "Scope and Authorisation": The Plan identifies Company activities and lays down procedures clearly defining as necessary; · the purpose of the activity; · what should be done and by whom; · when, where and how it will be done; · the materials, equipment and documentation to be used; and · how the activity will be controlled and recorded. In particular activities are focused on the identification, reporting, rectification and elimination of OHS issues, hazards, dangerous occurrences, accidents and risks to health. ... 32 The Plan goes on to identify its objectives on page 5 as follows: To achieve an accident free workplace.

[67]

To provide effective injury management and rehabilitation for all employees. 33 In light of those considerations we believe that the risk of the respondent re-offending is low. Nevertheless, in the circumstances, we are of the opinion that specific deterrence is a factor we will consider when making a final determination as to the appropriate penalty. 34 We acknowledge that the plea of guilty was entered at the earliest opportunity. That fact entitles the defendant to a discount having regard to the principles enunciated in the guideline judgment in R v Thompson; R v Houlton (2000) 49 NSWLR 383. Her Honour clearly failed to comply with the guideline judgment by not quantifying the discount awarded, and simply holding that it was a matter taken into account in the determination of a final penalty. It is necessary, when awarding a discount to the defendant for an early plea, that the extent of that discount be set out in clear terms, by identifying an appropriate percentage. We assess that discount at 25 per cent. 35 The subjective features of the offence are considerations ancillary to the determination of the objective seriousness of the offence. In relation to this matter, the conduct of the respondent since the incident, going to ensuring that its obligations under s 8(1) of the Act were met, is particularly relevant. The respondent has gone to significant lengths since the incident to rectify the unsafe system of work that existed at the time of the incident. On the evidence before us, we are satisfied that the respondent is an employer conscious of its obligations under the Act and directly concerned with securing the health and safety of all employees. As well, there is no dispute that the respondent has cooperated in every respect with the WorkCover authorities in relation to this matter. They are subjective factors operating in favour of the respondent. 36 Taking into account all the matters to which we have referred, including the respondent's concession that the appeal be upheld, we determine a penalty before any discounts are applied of $20,000. But for the respondent's concession the penalty would have been greater. 37 In relation to the subjective elements of the offence we determine a discount of 10 per cent in favour of the respondent, resulting in a total discount of 35 per cent. In applying both discounts we determine a final penalty of $13,000. 38 Accordingly, we make the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld to the extent identified in these orders. (3) The order of her Honour Magistrate Quinn , LCM imposing a fine of $1,000.00 on the respondent for an offence under s 8(1) of the Occupational Health and Safety Act 2000 in CIM proceedings No. 20095297 of 2004 is set aside. (4) A penalty of $13,000 is imposed, and a moiety of the penalty is to be paid to the prosecutor.

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