Inspector Wilkie v Anstee [2007] NSWIRComm 20 | Case summary

1 This matter involves the prosecution of Barry Francis Anstee ("the defendant") in respect of an offence under s 10(1) of the Occupational Health & Safety Act 2000 ("the Act"). 2 The defendant was charged on 30 August 2002 for failing to ensure that the premises he controlled, known as "The Maltings", Ferguson Crescent, Mittagong in New South Wales, and used by people as a place of work, were safe and without risks to health. The failures alleged in the particulars of the charge were: The Defendant, on the said date at the said site, being a person in control of premises used by people, in particular Mick Roy, Paul Rigby, John Eccleston and Luke Sloggett, as a place of work, DID FAIL, contrary to Section 10(1) of the 2000 Act to ensure that the premises were safe and without risks to health. In particular, the Defendant failed to provide and maintain a safe system of work in relation to removal of lead-based paints and asbestos from the site. 3 The defendant pleaded guilty to the charge. 4 The agreed statement of facts provided: 1. At all material times, the Defendant, Barry Francis Anstee (DOB: 13 March 1949) was the sole director of Velowing Pty Ltd [ACN: 077 393 394] ("Velowing"). 2. At all material times the Defendant and Velowing owned a property located at 'The Maltings', Ferguson Crescent, Mittagong in the State of New South Wales ("the site"), as tenants in common, the Defendant owning 1/5th of the site, and Velowing owing 4/5th of the site. 3. The Defendant and Velowing had control over the site at all material times. 4. At all material times, the Defendant had control over all of the activities of Velowing and over the work practices at the site. 5. At all material times the Defendant and Velowing were conducting demolition and construction work at the site which was a place of work. Velowing was an employer in the State of New South Wales at all material times. 6. Velowing employed a site supervisor, Mr John Murdoch. 7. The internal walls of "The Maltings" building, its ceiling and timber columns upstairs were all lime-washed. Visit on 18 December 2001 8. As a result of receiving a total of three (3) verbal complaints on 5 November, 27 November and 12 December 2001, the Prosecutor attended the site on 18 December 2001. Also present was Ken Vassel, Inspector WorkCover NSW. The Prosecutor observed the following: a) Several buildings on the site in varying states of repair and or disrepair. There was a creek that divided the site and that ran the entire width of the site. The eastern side of the site was occupied by a large building varying in heights from one (1), three (3) and four (4) stories high and was described as the 'malt-house'. The building was described as the 'old' Tooth brewery. b) The building was built of brick and had several window bays and door openings. There were roof rafters evident due to missing roof shingles from several parts of the roof structure. On the western side of the building was a large white horse emblem affixed to the building. On this side and near the White Horse was an area best described as a box like entry structure. This provided access to an area with a lift shaft and is described as the 'bag-lift'. c) Both inside and outside the building, large redevelopment was taking place. This included the demolition of structures, the stripping of large steel columns of paint, construction of stairways, removal of parts of the existing flooring and walls, and trenches were dug. Housekeeping involved the piling of rubbish within the building. d) The floor area of the inside of the building was speckled with what appeared to be green and cream paint flakes. The Prosecutor took samples of these flakes near the base of the columns. These samples were forwarded to WorkCover Laboratory Services Unit. These samples tested positive for lead. e) The ground on the outside of the building was littered with broken and crumbled fibrous type cement pieces. I took samples of these products. These samples were forwarded to WorkCover Laboratory Services Unit. These samples tested positive for Chrysotile asbestos. f) Also present on the outside ground was an amount of what appeared to be creamy coloured paint flakes. The Prosecutor took samples of these flakes. These samples were forwarded to WorkCover Laboratory Services Unit. These samples tested positive for lead. g) During inspection of the first and second floor of the building, several broken pieces of what appeared to be the same or similar material that was littering the ground outside were found. (Sub-paragraphs (h) and (i) not read). j) Taking into account the exposure to lead based paints (dust and airborne particles - abrasive blasting) and asbestos, there was no direct information available in the form of a risk assessment for the possible risk of exposure to such hazardous substances, prior to and including 18 December 2001. However, where elevated lead levels in the blood of workers was identified, the worker was removed from working with lead. An example of this was Mr Mark Gleeson, who tested for elevated levels of lead in his blood in November 2001. 9. The Prosecutor took two (2) paint samples from the site on 18 December 2001 described above and sent them to WorkCover Laboratory Services Unit. Testing, reported on 4 January 2002, identified that the two (2) paint flakes samples were positive for lead with levels being recorded at 27.5 (% w/w) and 30.7 (% w/w) respectively. A copy of the test results is attached at Annexure "A". 10. The Prosecutor took two (2) fibrous cement samples from the site on 18 December 2001 and sent them to WorkCover Laboratory Services Unit. Testing, reported on 10 January 2002, identified that the two (2) samples tested positive for Chrysotile asbestos. A copy of the test results dated 10 January 2002 is attached at Annexure "B". Visit on 27 February 2002 11. A follow up visit was conducted on the site on 27 February 2002. The prosecutor attended the work site in the company of Inspector Vassel for a Compliance Follow up. John Murdoch, foreman on site, and employed by Velowing, said to me "The painters had ceased work and no work is being undertaken". The Prosecutor could see no work being performed. Visit on 30 August 2002 12. After receiving another complaint of work being conducted at the site, a further site inspection was undertaken by Inspector Vassel and the Prosecutor on 30 August 2002. 13. Present on site on 30 August 2002 were the following workers who were exposed to risks to their health and safety from lead and asbestos, in particular Mick Roy, Paul Rigby, John Eccleston and Luke Sloggett. Set out below are the Prosecutor's observations from that inspection: a. At the ground floor level inside the building known as the Malthouse which is situated at the rear of the site and closest to Southey St, were partially 'shot blasted' steel columns. The ground floor was totally covered with what appeared to be 'spent shot blast' that was littered with what appeared to be white/cream paint flakes. No containment or enclosure system was evident on the ground floor where shot blasting was taking place. b. The staircase at the rear of the Malthouse that led to the first floor was covered in what appeared to be 'spent shot blast'. The landings leading to the first floor were covered in what appeared to be 'spent shot blast' c. The first floor was covered with what appeared to be 'spent shot blast'. d. Lead based paint flakes, chips and debris had not been removed, bagged and or sealed and disposed of in accordance with Industry Standards and guidelines. e. Several workers were undertaking work within the confines of the Malthouse. I observed that access and egress for workers was through the 'spent shot blast'. I observed work being undertaken in areas that contained 'spent shot blast'. This work included bricklaying and general labouring duties. The workers doing the above work included Mick Roy, Paul Rigby, John Eccleston, and Luke Sloggett. f. The Prosecutor observed that no assessment of the risks of lead exposure had been undertaken. The Prosecutor observed that there was no adequate training or supervision on the removal of lead based paint. The equipment, being the shot-blasting machine, was deficient in that the on/off lever was at the compressor end and not at the nozzle end. The operator was unable to turn off the expelling shot blast. The Prosecutor saw no appropriate Personal Protective Equipment. The Prosecutor saw nothing to indicate that lead based paint flakes/chips/debris was being disposed of safely. Rather, such debris was just left lying where it fell. g. The Prosecutor observed that workers continued to undertake their tasks in the contamination that was present on that day. h. No suitably qualified person or company had been engaged at the time of 30 August 2002 to decontaminate the site of lead particles. Employment of an Occupational Hygienist did not occur until on or about 29 November 2002. i. Asbestos roof had been broken to gain access for the scaffold. Broken pieces of asbestos were evident. What appeared to be a new guttering system was laden with broken asbestos pieces. At the rear of and within the building approximately 40 open and split white bags of broken asbestos. No sealing of the asbestos was evident. j. On 30 August 2002 the Prosecutor observed that there was no prevention of persons gaining access to the site or contaminated areas of the site in particular from Southey St or within a certain location of the site. k. At the rear of the site there was no site security. The boundary from this side of the site (Southey St) no gate or perimeter fencing or other similar means of restricting access to the workplace was visible or in place. Access from Southey St was unimpeded; anyone could walk onto the site at anytime. Anyone could enter the contaminated building at anytime. l. The contaminated area was not fenced off to deny access. No signage was visible from Southey St identifying and warning of the hazards present on site at the Maltings. There was no signage within areas of the workplace alerting of hazards within that particular area or restricting access to a particular area. 14. On 30 August 2002, the Prosecutor took further samples of what appeared to be paint flakes and what appeared to be fibrous cement pieces and sent them to be tested at WorkCover Laboratory Services Unit. Test results dated 17 and 19 September 2002 were returned positive for asbestos identifying the samples to be Chrysotile asbestos and lead from 0.86% up to 34.3%. A copy of the test results dated 17 and 19 September 2002 are attached at Annexure "C". 15. A copy of a report from Ristech Holdings Pty Ltd dated 9 December 2002 is attached at Annexure "D". 16. Velowing went into liquidation on 17 December 2003. 17. The Defendant is an undischarged bankrupt from 28 July 2005. 18. Southern Finance & Investment Pty Ltd, being the first mortgagee of the site is in possession of the "The Maltings" property. 5 In addition, the prosecutor relied upon 60 colour photographs, two of which were taken on 18 December 2001, 47 on 30 August 2002 and 11 on 21 March 2003. 6 The defendant, who appeared in person, tendered the following: (i) a document headed "Maltings Mittagong Work Method Statement (WMS)" (undated). The defendant contended that this document was prepared on or around February 2002; (ii) a document headed "'Maltings' Mittagong Work Method Statement (WMS)" dated 15 February 2002; (iii) a document titled "WorkCover Authority of New South Wales 'Guidelines Notification of Lead Risk Work Employer Duties' "; and (iv) a document titled "Environmental Protection Authority 'EPA Home Page, Lead - Based Paint & Home Renovations' " bearing facsimile date of 25 September 2001 and Lead based Paint in Construction Work. Submissions 7 Mr A Searle of counsel, who appeared for the prosecutor, submitted that the sentencing practice in this Court under the Act involves a consideration of both the objective and subjective factors relevant to the offence and the offender. Counsel relied upon well-known authorities. Mr Searle submitted that the proper approach is to first consider the gravity of the offence, viewed objectively, keeping in mind those factors that militate the seriousness of the offence. 8 Counsel submitted that subjective factors play a subsidiary role and that there was a need for general and specific deterrence. 9 Mr Searle submitted having regard to the factual material, that the offence is a serious one, falling within the mid to high end of the range. Counsel acknowledged that the financial position of the defendant, and how it is to be dealt with in the sentencing process, is a relevant consideration, referring to s 6 of the Fines Act 1996 ("the Fines Act"). 10 In light of the financial situation of the defendant, Mr Searle submitted that the Court should give consideration to orders pursuant to s 115 of the Act, or, alternatively, an order in respect of 116 of the Act. 11 The defendant, who was unrepresented, drew attention to a number of factual matters. He submitted that the size of the building known as "The Maltings" was relevant. "The Maltings" was a malting house, which used the 19th Century process of making malt from barley. It is one of three buildings built in 1914 by Tooth & Co Ltd as part of their malting houses. The defendant contended that the inside of the building had to be of a certain health standard at the time so that the barley was not contaminated. He acknowledged that yellow and green paint that appeared on the columns inside the building contained lead. However, the defendant submitted that the rest of the building, including the internal walls was all lime washed, as was evident from the photographs. He contended that there had been four columns stripped of paint and sandblasted and the seriousness of the offence had to be seen in this context. 12 The defendant pointed to the paint samples obtained on 30 August 2002 and analysed by the WorkCover Authority of New South Wales ("WorkCover"). One sample registered 0.06 per cent lead, while the second sample registered 34.3 per cent lead. This confirmed that one of the samples was of paint, which did not contain lead. The defendant contended that this was because much of the "shot blast" on the floor of the malt house was shot blast of the lime wash. 13 Whilst the defendant accepted that his plea to the charge had been properly entered, he contended that the seriousness was quite minimal. He contended that appropriate steps were taken and a work method statement prepared requiring removal of the paint by stripper. That was found to be unsatisfactory and WorkCover was approached to advise on a proper method to encapsulate and sandblast each individual column. It was further contended this resulted in an appropriate course being taken to minimise the risk. 14 In addition, the defendant submitted that asbestos was contained in the tiles on the roof of the building, which had been laid in about 1915-1920. It was necessary to remove some of the tiles due to a fire. A work method statement was prepared in respect of this work. 15 The defendant, whilst acknowledging work was occurring at the site, which resulted in the charge being brought, submitted it was not "incredibly serious". He submitted the work involving the removal of paint containing lead and tiles containing asbestos formed a very small part of the overall work. 16 In light of the totality of the building, he accepted that there was a foreseeable risk but submitted that it was not large. 17 The defendant stated that he is an undischarged bankrupt, becoming bankrupt on 28 July 2005 and that the company, Velowing Pty Ltd, which owns 4/5ths of the site, is in liquidation. He submitted the project had cost he and his family dearly and impacts on his ability to pay any fine. He commenced business in 1971 as a builder and property developer. However, he is no longer in business and is unemployed. The defendant is 57 years of age. He has no prior convictions. 18 The defendant contended that WorkCover had only informed him in September 2006 that the decision in Inspector Wolf v Rockdale Beef Pty Ltd [2006] NSWIRComm 280 had been delivered by the Full Bench. This matter had been adjourned pending delivery of that decision, as the defendant believed he had an arguable case in respect of jurisdiction. He informed WorkCover approximately two to three weeks prior to the hearing of the possibility that he intended to plead guilty and submitted that the first opportunity he had to do that was on the first day of the hearing. 19 The defendant opposed any order pursuant to s 115 of the Act, submitting that any publication of the offence may affect the marketability of the property. He did not oppose an order pursuant to s 116 of the Act. Consideration 20 The sentencing principles to be applied in the assessment of appropriate penalties under the Act have been considered on many occasions by Members of the Court and at Full Bench level and need not be repeated here: see U-RECT-IT Pty Ltd v WorkCover Authority of New South Wales (Inspector de Silva) [2004] NSWIRComm 266 at [11]; Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 at [10]. 21 The penalty in this matter must reflect the nature and quality of the offence in question and in the case of the plea, must be approached on the basis of the principles established in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419. 22 There was a failure on the part of the defendant to ensure the safety of workers at "The Maltings", Ferguson Crescent, Mittagong on 30 August 2002. The defendant and Velowing Pty Ltd, of which the defendant is the sole Director, owned the site and had control of it. The defendant did not have in place a safe system of work in relation to the removal of lead based paint and asbestos from the malt house. Although the defendant tendered a work method statement in respect of the removal of old lead based paint from steel columns, stripped paint material was allowed to contaminate the ground. The defendant submitted that the work method statement regarding the removal of lead paint was dated February 2002. Although this was not strictly proven to be the case, a work method statement in respect of asbestos removal bears a date of February 2002. I am prepared to accept the work method statement regarding lead paint removal was dated February 2002. The defendant acknowledged that this work method statement was deficient. 23 The agreed statement of facts provides that Mr Mark Gleeson, an employee at the site, was found to have elevated levels of lead in his blood when tested in November 2001. This was prior to the charge being brought against the defendant. There was no evidence of employees being tested in August 2002 at the time the charge was brought. However, the results of Mr Gleeson's blood test should have put the defendant on notice that there existed a risk of exposure to lead in working at the site. 24 There was no evidence of any signs warning of lead paint stripping in progress and the site was readily accessible to the public. Similarly, in respect of the removal of asbestos, although the defendant had a work method statement dated 15 February 2002, there had been no proper assessment of the risks associated with the removal of asbestos or the risks of lead exposure undertaken. No adequate training or supervision on the removal of lead based paints or asbestos was undertaken. Furthermore, there was no appropriate personnel protective equipment. The lead based paint flakes and chips were left lying where they fell. 25 Broken pieces of asbestos were evident on the site and there were approximately 40 open and split white bags of broken asbestos tiles at the rear of and within the building. No sealing of asbestos was evident. Furthermore, there was no perimeter fencing on the Southey Street side of the site to prevent access to the site and the contaminated area, nor was there any signage identifying and warning of the hazards present on the site. 26 It appears that the defendant knew of the need to have a work method statement in respect of the lead based paint and asbestos, but despite having such statements, failed to ensure compliance with them. Compliance with the work method statements would have avoided the risk. These statements had identified the risks and proposed putting in place procedures to avoid the risk. Such statements are essential to ensure safe systems of work and avoid risks to the health and safety of employees. All employees on the site should have been completely aware of the necessity for strict adherence to the work method statements and it was the defendant's responsibility to ensure that they were followed. 27 The dangers of exposure to lead were discussed in WorkCover Authority of New South Wales (Inspector Petar Ankucic) v The Crown in the Right of the State of New South Wales (Police Service of New South Wales) [2002] NSWIRComm 335, where Walton J, Vice-President observed at [3]: Lead exposure represents a significant health risk depending upon the nature and duration of exposure, the form of lead and particle size. It is a toxic substance which, when absorbed, ingested or inhaled, may be retained within the body over the long term. At certain levels of contamination, lead can have adverse effects upon the nervous and reproductive systems, kidneys and can interfere with the ability of the body to make haemoglobin. 28 Under cl 345 of the Occupational Health and Safety Regulation 2001, WorkCover must be notified before any lead risk work is carried out. Sixty (60) days notice is required. Persons intending to carry out such work are also required to establish health surveillance (including blood tests) for employees. It is clear, that what was lacking at "The Maltings" site was the implementation of a co-ordinated approach to safe operating procedures for the handling and disposal of lead based paint and asbestos including the use of personal protective equipment. 29 The risks of carrying out work where employees are exposed to lead based paint and asbestos were known to the defendant and were obvious. The measures available to overcome the risks were simple and straightforward. This included employees wearing personal protective equipment and ensuring health surveillance was undertaken. Appropriate induction training and ongoing instruction and supervision should have also been provided to the employees working with the lead based paint and asbestos. 30 In respect of general deterrence, the existence of lead based paint and asbestos in older factories, buildings or homes is well known. It is appropriate to draw attention to the need for employers involved in the demolition, renovation, and painting which involve the removal of existing paint, which may contain lead, to be proactive and constantly vigilant of the need to ensure that workers are not exposed to risks to their health and safety from working in an environment where there is a risk of lead contamination. I propose to include an element in the penalty for general deterrence. 31 In respect of specific deterrence, the defendant is no longer in business and is an undischarged bankrupt from 28 July 2005. He is also currently unemployed. Velowing, a company of which the defendant is the sole Director and which owned 4/5ths of the site, was placed in liquidation on 17 December 2003. Southern Finance and Investment Pty Ltd, being the first mortgagee of the site, is now in possession of "The Maltings" property. Nevertheless, there is no evidence to the effect that the defendant will never again work in the building industry. Specific deterrence, therefore, should be a factor taken into account in fixing penalty but not a factor carrying significant weight: see Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610. 32 There are a number of relevant subjective considerations. The defendant initially pleaded not guilty. He decided to await the determination of six questions of law referred to the Full Bench pursuant to s 5AE of the Criminal Appeal Act 1912, as applied by s 196 of the Industrial Relations Act 1996 by her Honour Justice Schmidt on 23 August 2005. One of the questions referred to the Full Bench raised the issue of whether, for a charge alleging an offence against s 10 of the Act to be valid, the application for order must plead any, or all of those matters which are referred to in s 10(3) and s 10(4) of the Act. 33 The decision in Inspector Wolf v Rockdale Beef Pty Ltd was delivered on 31 August 2006. This matter was originally listed for hearing commencing 13 June 2006 but adjourned by consent pending the decision in Rockdale Beef. 34 The defendant contends that WorkCover advised him of the publication of the decision in Rockdale Beef in early September 2006. He further contends that approximately two to three weeks prior to the hearing of this matter, he advised WorkCover of the possibility that he proposed to now enter a plea of guilty. A plea of guilty was entered on the first day of the hearing. 35 In these circumstances, I propose to allow a discount of 25 per cent for the utilitarian value of the plea in accordance with the principles found in R v Thomson; R v Houlton. In reaching this decision, I accept that a plea of guilty may have been entered at an earlier time, but for the proceedings involving Rockdale Beef. 36 A fundamental consideration in assessing penalty is the maximum penalty for the relevant offence. In the present case, the defendant is facing a maximum penalty of $55,000. 37 I take into account that the defendant has no prior convictions. I also take into account that the defendant had prepared work method statements in respect of the removal of asbestos and lead based paint, although such statements were deficient and not properly implemented. 38 I regard this matter as a serious one, falling within the mid range. It follows that the detriment to safety, which arises for consideration, was a serious one. 39 This judgment should serve as a reminder to all employers in the building, construction and renovation industry that they are required, in accordance with the Act, to be proactive so as to ensure the health and safety of employees and non-employees. 40 It is appropriate that I take into account the defendant's financial position. Section 6 of the Fines Act requires that, in the exercise of a discretion to fix the amount of any fine, the Court is required to consider, amongst other things, "such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration". 41 The relevant principles in relation to the application of s 6 of the Fines Act have been considered in a number of decisions in this jurisdiction: see most recently Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 166 at [21]: [21] Her Honour also appeared to take into account the respondents' capacities to pay fines, notwithstanding that there was no evidence placed before her to enable any assessment of their respective financial means. Section 6 of the Fines Act 1996 NSW requires a court, in the exercise of its discretion to fix the amount of any fine, to give consideration to the defendant's means to pay the fine. In doing so, the section requires the court to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. Plainly, s 6 provides the court with an obligation to consider the defendant's means in a practical and commonsense way. Nevertheless, the consideration must not be, in proceedings under the Occupational Health and Safety Act, ritualistic or token, so that where a defendant relies on the provisions of s 6 of the Fines Act in such proceedings to temper the amount of any fine to be imposed, the defendant bears the onus of placing appropriate evidence before the court to enable it to give proper consideration to the exercise of its sentencing discretion. 42 It was an agreed fact that the defendant is an undischarged bankrupt from 28 July 2005. The effect of bankruptcy is considered in Butterworth's Practice and Procedure High Court and Federal Court of Australia Service at [80,000.45], page 88,174, where the authors state: When a debtor becomes a bankrupt his or her real and personal property at the date of the commencement of the bankruptcy vests in the trustee of the bankrupt estate: s 58. … The property of the bankrupt which vests in the trustee is that which is divisible among the creditors of the bankrupt estate, including after-acquired property (which vests as soon as it is acquired), and powers of appointment, pursuant to s 116(1) of the Bankruptcy Act 1966. Section 116(2) excludes certain classes of property, including necessary household furniture and effects, a car and tools of trade up to certain values, superannuation and some life insurance policies, etc. See regs 6.03 and 6.04. Other consequences of bankruptcy to the debtor are that he or she may be prohibited from being a director, promoter or concerned in the management of a company without the leave of a court; a partnership of which the debtor may be dissolved; and he or she may not sit as a member of Parliament etc. The debtor once bankrupt may forfeit certain professional qualifications and may be prevented from travelling overseas without the written consent of his or her trustee or an order of the court and must hand in his or her passport to his or her trustee. The debtor may be exposed to criminal sanctions for certain misconduct prior to bankruptcy and may commit offences after bankruptcy (for example, if he or she obtains credit of more than a certain amount without disclosing the fact that he or she is an undischarged bankrupt), and civil proceedings in which he or she has been involved prior to bankruptcy will be stayed (compare ss 58(3) and 60(4)). 43 In passing, I note that s 269 of the Bankruptcy Act 1966 (Cth) precludes an undischarged bankrupt from obtaining credit to the extent of $3,000 or more, or goods or services to the value of $3,000 or more from a person without informing that person that he or she is an undischarged bankrupt. 44 In my view, the fact that a defendant is a bankrupt may not be sufficient, without the provision of financial material showing the true state of a defendant's affairs, to meet the test in s 6 of the Fines Act. No issue was taken by the prosecutor in respect of the defendant's bankruptcy. 45 Although I have some reservations as to whether the Court is able to make an informed assessment of the defendant's means in light of the effect of bankruptcy on a defendant, coupled with s 269 of the Bankruptcy Act and his self representation, I am satisfied, in the circumstances of this matter, that I should take into account s 6 of the Fines Act. I should make clear that this may not be the result in all cases where a defendant is bankrupt. It was implicit in the submissions of the parties that the defendant is bankrupt, and unemployed. 46 In WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at pars [83] to [85] Walton J, Vice-President reviewed the various authorities regarding the financial means of a defendant: [83] The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at [50]): It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200 - 201.

Inspector Wilkie v Anstee

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Judgment (37 paragraphs)

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