Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service

Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service - [2005] NSWIRComm 158 - NSWIRComm 1984 case summary — Zoe

[7]

Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 Anderson v Glen Ewin & Staff Pty Ltd (1985) 41 SASR 42 Association of Architects of Australia, Ex parte Municipal Officers Association of Australia & Ors, re (1989) 27 IR 278 Caltex Refining Co Pty Ltd v MSB (1995) 36 NSWLR 552 Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Coombs v Patrick Stevedores Holdings Pty Ltd [2005] NSWIRComm 56 Dinsdale v The Queen (2000) 202 CLR 321 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 Emanuele v Dau (1996) 87 A Crim R 417 Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 156 Fernandes Constructions Pty Ltd v WorkCover Authority of NSW (2002) 124 IR 148 F Howe & Sons (Engineers) Ltd [1999] 2 Cr.App.R.(S.) 37 Flatow v Mullins (unreported, Supreme Court of Western Australia, Smith J, Supreme Court Library No 5207, 1 February 1984) Friends of Hinchinbrook Society Inc v Minister for the Environment & Ors (No 3) (1997) 77 FCR 153 House v The King (1936) 55 CLR 499 Inspector Barry Childs v Kirk Group Holdings Pty Limited & Anor [2005] NSWIRComm 1 Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259 Inspector Hannah v Wonar Pty Limited (unreported, per Fisher CJ, Glynn and Cullen JJ Inspector Gregory Maddaford v Graham Gerard Coleman and Anor [2004] NSWIRComm 317 Inspector Yeung v Donald Wilson trading as Wilson's Tree Service [2004] NSWIRComm 346 Koenig v Fraser [2000] WASCA 262 Latoudis v Casey (1990) 170 CLR 534 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353 McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 Metwally v University of Wollongong (1985) 60 ALR 68 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Morgan v Biddle (unreported, Supreme Court of Western Australia, Wallace J, Supreme Court Library No 2845) Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96 Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61 NSW Crime Commission v Fleming and Heal (1991) 24 NSWLR 116 CASES CITED: Norbis v Norbis (1986) 161 CLR 513 O'Sullivan v Crown in Right of the State of New South Wales (Dept of Education and Training) (2003) 128 IR 15 Pearce v The Queen (1998) 194 CLR 610 R v Allpass (1993) 72 A Crim R 561 R v Geddes (1936) 36 SR (NSW) 554 R v George [2004] NSWCCA 247 R v Giam (No 2) [1999] NSWCCA 378, (1999) 109 A Crim R 348 R v Kalache [2000] NSWCCA 2, (2000) 111 A Crim R 152 R v Morgan (1993) 70 A Crim R 368 R v Northallerton Magistrates' Court, Ex Parte Christopher John Dove [2000] 1 CR App R (S) 136 R v Rahme (1989) 43 A Crim R 81 R v Rollco Screw and Rivet Co Ltd & Others [1999] 2 Cr.App.R.(S.) 436 R v Rose (unreported, NSW Court of Criminal Appeal, 23 May 1996) Regina v T (unreported, Court of Criminal Appeal, 15 March 1990) R v Thomson, R v Houlton (2000) 49 NSWLR 383 R v Wall [2002] NSWCCA 42 R v Way (2004) 60 NSWLR 168 Ridge Consolidated Pty Ltd v Workcover Authority of New South Wales (Inspector Maugher) (2002) 115 IR 78 Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 State Crime Commission v Heal & Fleming (unreported, 21 December 1992) Thomas v Schwager (unreported, Supreme Court of Western Australia, Parker J, Supreme Court Library No 970719) WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors (2001) 110 IR 351 WorkCover Authority of New South Wales (Inspector Dowling) v Bournelis and Another (2003) 124 IR 447 Workcover Authority of New South Wales (Inspector Farrell) v David Carl Shrader (2002) 112 IR 284 WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Waugh & Thora Saw Milling Pty (1995) 59 IR 89 WorkCover Authority of New South Wales (Inspector Gordon) v Shortland Electricity, (unreported, Marks J, 5 May 1995) WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 277 WorkCover Authority of NSW (Insp Keenan) v Lucon (Australia) Pty Ltd (No. 2) (2003) 124 IR 459 WorkCover Authority of New South Wales (Inspector Mansell) v Chen (2004) 137 IR 33 WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323

[37]

After having spoken briefly to the defendant, Skelton directed Munroe to utilize the excavator to remove approximately 23 trees and the trees so removed would be processed through the defendant's chipper. Munroe noticed the excavator would be operating on a 1 in 4 slope. He consulted with the defendant, Colnan and Jardine about the work. The system of work being utilized at the time of the accident was as follows: a) Munroe would use the excavator to push down the trees, a few at a time; b) Throughout this time the truck and chipper were 12 to 15 metres from the area where the excavator was being operated. c) Munroe told the defendant, Colnan and Jardine to stay behind the excavator when the trees were pushed over. The trees were being pushed over away from where Colnan and Jardine were standing and onto the remaining wood. d) Once the trees were pushed over, Munroe would swing the excavator around and indicate to the tree loppers to come in to sling the trees. Jardine would place a sling on the trees indicated by Munroe and then place the sling over the bucket teeth of the excavator. e) While the trees were being slung, Munroe would wait with the excavator bucket down. f) Once the tree loppers were clear of the excavator, Munroe would then use the excavator to move the slung trees to within a metre or so of the chipper. g) Colnan would then utilize a chainsaw to dissemble the tree. Colnan and Jardine would then feed the tree through the chipper. h) The defendant had a leg injury and was not able to participate in the work. The defendant spent the majority of the time next to the discharge chute of the chipper, directing the flow of woodchips into the truck. i) As the excavator moved down the slope removing trees, the workers reversed the truck with the wood chipper attached, behind the excavator. 25. When operating the excavator Munroe's vision did not extend to the rear of the excavator but according to him the workers were about 10 metres behind the excavator.

[65]

Respondent's Submissions Appeal Grounds 1,2 & 3 23 As to Boland J's considerations of the objective seriousness of the offence, the contribution of other parties to the risk and the inadequacy of the penalty imposed, Mr B G Docking of counsel, for the respondent, submitted the appeal is neither a rare case that satisfies the principles on Crown appeals against sentence nor an exceptional case justifying intervention. Reliance is placed on the appellant's own submission to the primary judge: [T]here is an unusual factor in this case, that there are possible intervening circumstances of him (the deceased a 61 year old man) possibly having had a heart attack …", "this is an unusual case" and "the subjective circumstances are - one has to have sympathy for Mr Wilson ... 24 Reliance is placed by the respondent on the principles concerning Crown appeals against sentence as enunciated in R v Wall [2002] NSWCCA 42 per Wood CJ at CL (with whom Meagher JA and Bell J agreed) at [70] and in House v The King (1936) 55 CLR 499 at 504 where it was noted there must be an error by the primary judge in exercising discretion. The respondent also relies upon the view espoused as to use of a court's discretion in Norbis v Norbis (1986) 161 CLR 513 at 518 - 519 per Mason and Deane JJ. 25 The principles enunciated in House v The King, the respondent submitted, were fashioned with a close eye on the characteristics of a discretionary order. The respondent submitted if the questions involved lent themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow the Full Bench to set aside a judgment at first instance merely because there exists just such a difference of opinion between the Judges on Appeal and the Judge at first instance. 26 In conformity with the dictates of principled decision-making, the respondent submitted it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the Judge at first instance, in the absence of error on his part. Therefore, the respondent submitted the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition to a successful appeal.

[67]

Under s 6 of the Fines Act 1996, his Honour determined to reduce the penalty given the respondent's limited means and impecuniosity. The respondent submitted the statutory injunction in s 6 has long been recognised as an appropriate part of the sentencing consideration. Boland J then determined that an appropriate penalty in this case was $4,000. 29 In the exercise of his discretion, Boland J applied a reduction under s 6 of the Fines Act and struck a figure of $4,000 and then reduced it by the 35 percent discount he had allowed resulting in a fine of $2,600. The respondent submitted there is no latent error revealed in his Honour's reasoning which could justify interference on appeal. In the context of a Crown appeal against a sentencing discretion "the only golden rule is that there is no golden rule" (R v Geddes (1936) 36 SR (NSW) 554 at 555 per Jordan CJ). Further, in Pearce v The Queen (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ at 624 [46] stated: Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. 30 The sentence imposed by Boland J was within the appropriate range. The respondent submitted there have been relatively few instances where personal respondents have come before the court and there is therefore no long standing sentencing practice for such defendants in the court. No range of appropriate penalty exists the respondent submitted unlike, for example, those which exist to assist a judge who would be sentencing drug offenders as a courier, or warehouseman, or middle man, or principal. 31 The appellant before the primary judge characterised the case as "unusual" but such is not an appropriate vehicle to establish matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons" the respondent submitted. It would be quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) to consider if it is outside the appropriate range for the case in hand. Reliance is placed by the appellant on the authority of R v Morgan (1993) 70 A Crim R 368 per Hunt CJ at CL (at 371) and R v George [2004] NSWCCA 247 at [48] - [49]. 32 The appellant submitted at first instance, in reply to the respondent's sentencing submissions that the offence was at the lowest end of the range of seriousness saying to the primary judge: The submission my friend makes is that this is at the very lowest end of seriousness. I do not necessarily oppose it, if that is the view that Your Honour comes to". The appellant further submitted, "Your Honour could treat it, in my view, as more serious than at the very lowest end, I would submit that your Honour could treat it as the medium range - that is, not the highest. That being so, it is a matter where the Court ought not to contemplate a section 10 order on the basis of the objective seriousness.

[71]

35 The respondent submitted the appellant could not demonstrate specific error of principle or fact. The reasoning of Boland J must be considered fairly and read as a whole (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291, as applied in Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 per Wright J, President and Walton J, Vice President at 458). 36 Boland J at [38] stated: … In this case the extent of the defendant's failure to provide adequate supervision and instruction and the likelihood of that failure resulting in serious injury or death is a matter to be taken into account in determining an appropriate sentence. and in so saying, the respondent submitted, found beyond reasonable doubt that there was a causal nexus between the respondent's failure and the general class of risk, namely, "serious injury or death" from the excavator. Consistently, with Mulgoa (at [18] and [23]) his Honour determined there was an indication of the kind of consequence that could have resulted from the breach. His Honour assessed the risk and its potential to cause or result in serious injury. 37 The respondent submitted no appealable error exists and Boland J did not confuse causation of the accident with causation of the risk. 38 The respondent submitted Boland J expressly applied correct principle as enunciated by the Full Bench in Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 at [32] as Boland J found at [36]: In this case there was a death but as the defendant submitted, Mr Jardine's death cannot properly be regarded as a manifestation of the risk and cannot be taken into account as an aggravating feature of the offence 39 The respondent submitted Boland J made no error in finding the specific risk comprising the actual occurrence of death did not manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected. 40 In determining an appropriate penalty in circumstances where more than one individual or legal entity contributed to the relevant risk, the respondent submitted Boland J correctly viewed the nature and seriousness of the defendant's offence by reference to the defendant's contribution to the relevant risk. His Honour concluded at [43] correctly, the respondent submitted, when he said: On the evidence in this case it would appear that the defendant should not bear the whole blame for the failure to adequately supervise and instruct and that a substantial part of that responsibility lies with other parties. I have taken this consideration into account in fixing the penalty. 41 As Boland J applied accepted statements of principle in Workcover Authority of New South Wales (Inspector Farrell) v David Carl Shrader (2002) 112 IR 284 at [61] referred to with approval in Ridge Consolidated Pty Ltd v Workcover Authority of New South Wales (Inspector Maugher) (2002) 115 IR 78 per Full Bench at [33] and Fernandes at [48] ([40]). No appealable error exists in Boland J's application of principle. This is confirmed by Inspector Barry Childs v Kirk Group Holdings Pty Limited & Anor [2005] NSWIRComm 1 per Walton J, Vice-President at [60] - [61]. 42 As no latent or patent error exists, the respondents' primary submission was the sentence appeal should be dismissed with costs to the respondent. 43 The respondent submitted if the appellant however does establish error, this Court should exercise its overriding discretion and refuse to intervene and the appeal should not be allowed (WorkCover Authority of New South Wales (Inspector Dowling) v Bournelis and Another (2003) 124 IR 447 per Wright J, President, Walton J, Vice President and Marks J at [18]; see also WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 at [53]). 44 If successful on appeal, the respondent submitted the Court must recognise the element of double jeopardy involved in the respondent twice standing for sentence by imposing a sentence which is less than the sentence it considers should have been imposed at first instance. This has been described as "the least sentence which could properly have been imposed …at first instance": (R v Rose (unreported, NSW Court of Criminal Appeal, 23 May 1996), as "one which is at the bottom of the range"; R v Giam (No 2) [1999] NSWCCA 378; (1999) 109 A Crim R 348 at [28] and one "towards the lower end of the range of available sentences"; Dinsdale v The Queen (2000) 202 CLR 321 at [62] per Kirby J; or the "minimum sentence which should have been imposed at first instance"; and R v Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152 at 204 [206] per Hulme J). Appellant's Submissions Ground 4 - costs

[75]

50 The appellant submitted the prosecutor has a responsibility to conduct a full investigation of matters and to institute such charges as might appropriately be brought. 51 The appellant submitted the respondent through submissions sought to constrain the appellant from pressing his appeal on the order as to costs given the way the appellant conducted its case before the primary judge. The appellant submitted it sought costs in the usual way and as the issue was clearly joined, it is entitled to appeal and was under no obligation to respond to the respondent's submissions further, which submissions would have been in reply. 52 The appellant submitted costs should have been awarded in accordance with the settled principles namely, given a plea was entered and penalty was imposed, costs be awarded to the prosecution. Settled principles include consideration of any statutory basis for the award of costs. This basis was considered in Plastachem as being s 14 of the Supreme Court (Summary Jurisdiction) Act 1967, which has since been replaced by s 253 of the Criminal Procedure Act 1986. Subsection 253(2), the appellant submitted, provides for the preliminary steps of agreement or assessment in accordance with the rules of the court before any quantum of costs ordered payable. 53 The appellant relied on the High Court judgment in Latoudis v Casey (1990) 170 CLR 534 where there was placed emphasis on the need, when there was an unqualified discretion conferred by statute, such as that as to award costs, to be exercised in the "ordinary" case in accordance with the principles laid down by appellate courts (Dawson J at 558, McHugh J at 569). The appellant submitted there was nothing in the matter before Boland J so as to take it out of the "ordinary" costs order (McHugh J in Latoudis at 566 - 567). 54 Further, the appellant submitted, it was open to a respondent to seek any fine imposed be paid by instalments, upon an application to the Registrar of the court and hardship ameliorating procedures available under the Fines Act 1996 were also available. Therefore, the appellant submitted his Honour erred as to the costs order given. Respondent's submissions ground 4 - Costs

[76]

55 The respondent submitted the appellant before the primary judge did not oppose in written or oral submissions the proposition of the respondent that in all the circumstances it was open for Boland J to exercise the statutory costs discretion to allow a just outcome and order the prosecution to bear the entire or a substantial portion of its costs. 56 It was submitted that the appellant is bound by the conduct of his case. The respondent submitted Boland J's order for costs is not an order where it is appropriate for an appellate court to interfere with the exercise of discretion by a judge. 57 The appellant called no evidence on costs before the primary judge except to make the application for the usual order. However, the respondent going the respondent's impecuniosity adduced extensive affidavit and documentary evidence. The appellant cross examined the respondent as to his financials. The respondent made written and oral submissions as to costs. 58 The respondent submitted the primary judge exercised his discretion and ordered the appellant bear a substantial proportion of the costs. This was an order based on the evidence placed before the court. 59 The respondent submitted there could be no appealable error as the primary judge had before him the merits of the application for such a costs order: Caltex Refining Co Pty Ltd v MSB (1995) 36 NSWLR 552 at 565 per Sully J, with whom Grove and Studdert JJ agreed. 60 The respondent submitted an appeal is not an appropriate forum for the appellant to attempt to remedy the deficiencies in the case that was mounted before a primary judge (Metwally v University of Wollongong (1985) 60 ALR 68 at 71 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ). 61 The obligation on the primary judge was, the respondent submitted, in exercising his power to award costs, to make an order which is just, reasonable and fair in all the circumstances of the case (see Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 156, Pearlman J). The "usual rule" is not an order, the making of which is dictated by the application of a fixed rule to the facts on which its operation depends (Norbis). The court does not simply apply an inflexible rule (Latoudis per Toohey J at 565). Boland J had a discretion and justly used it as his reasoning revealed. 62 The respondent submitted that, under common law principles, an inquiry as to the means of the respondent is a necessity when an order for costs is made. The respondent submitted under the provisions of s 6 of the Fines Act, Boland J had a discretion to fix the amount of any fine. Relevantly, a "fine" is defined to include any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer. The second statutory criteria of s 6 of the Fines Act, such other matters as, in the opinion of the court, are relevant to the fixing of costs (Friends of Hinchinbrook Society Inc v Minister for the Environment & Ors (No 3) (1997) 77 FCR 153 at 188). 63 Double counting was permitted and required by legislative requirement and intent for orders as to costs. "Means to pay" is also an existing common law factor as well as a statutory factor properly taken into account in determining a sentence the respondent submitted. In R v Rahme (1989) 43 A Crim R 81 at 86 it was stated a court generally should not impose a fine which the offender does not have the means to pay. If the sentencing court is satisfied that the offender would be unable to pay the amount of fine determined it might reduce it to take account of the offender's means and impecuniosity. In Rahme, means to pay was used to discount both types of punishment, namely, imprisonment by way of periodic detention instead of full time custody and the fine imposed. 64 Further the respondent submitted under s 6(a) of the Fines Act 1996 the court is required to consider such information regarding the means of the accused, the Full Bench in Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61 at [13] referred with approval to the application of ss 3A, 21A, 22, 22A and 23 of the Crimes (Sentencing Procedure) Act in relation to sentencing practice established by this Court under the Occupational Health and Safety Act.

[78]

68 In relation to means to pay it was submitted that the appellant erroneously attempted to erect an exceptional circumstances test in order for a sentencing judge to vary the usual rule that costs follow the event. This would require the application of a fixed rule. That would not equate to the exercise of a judicial discretion (Norbis at 518 - 519). Such a test is not found in either the express terms or legislative purposes of the relevant provisions in the Crimes (Sentencing Procedure) Act or the Fines Act. Nor is it consistent with the rule of law found in settled principle (McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353 at [23] - [25] distilled principles on the application of s 6 in the Fines Act). 69 The authorities referred to by the appellant as supporting "the usual practice" do not illuminate the path where there is a means to pay argument available under both existing common law factors and under s 6(a) of the Fines Act to properly determine both the fine and costs the respondent submitted. Such a means to pay argument is a stand-alone consideration and is different to considering circumstances "connected with the charge or the conduct of the proceeding." Further, no suggestion is made that those authorities considered what constituted other matters under s 6(b) of the Fines Act. Moreover, the plea of guilty entered at the earliest available opportunity was in any event a matter connected with "the conduct of the proceeding", more so when there are two co-defendants and the failure to provide a breakdown of costs prevented discerning if there were common costs that should be apportioned. 70 The respondent submitted in light of the way this case was conducted before the primary judge by the appellant, it is untenable for the appellant to argue a sentencing judge should arrive initially at a combined total of costs and fine and, if it is disproportionate, the court may then discount the total. 71 Further, the respondent submitted it is not open for the appellant to argue the prosecution was not given a proper opportunity to be heard. 72 The appellant submitted that costs "were assessed by the prosecution in the appeal hearing in the sum of $10,000". Whilst the figure was initially provided in answer to a question from the Full Bench, it was submitted the real import of the answer is that there was no reason before the primary judge that the requisite breakdown was not made available by the appellant. This was particularly the case after clear notice of the means to pay evidence was given to the prosecutor by the defendant three days before the hearing commenced, as was the defendant's submissions before the costs submissions were heard by Boland J. 73 The principle is that for a cost application made after criminal summary hearings, there must be provided an adequate summary and broad costing of a solicitor's work done and counsel's fees actually incurred (Anderson). This was a course followed by the respondent but not by the appellant. 74 The respondent submitted it does not seek to characterise its argument as there must be one total figure ordered as the fine and costs. Again, this would involve the application of a fixed rule and not equate to the exercise of a judicial discretion. In the proper exercise of the costs discretion, a sentencing judge might elect to take such an approach. On the other hand, the approach to totality in Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 at [72] - [78] might be applied, in that the sentencing judge should determine separately an appropriate penalty for the offence and separately an appropriate amount of fine, before applying the principle of totality in determining whether to reduce those amounts further. 75 Procedural fairness requires a party be given a reasonable opportunity to present its case and not that the Tribunal ensure a party take the best advantage of the opportunity to which it is entitled. It is always relevant to inquire whether the party or his legal representative should reasonably have apprehended the issue was or might become a live issue (re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia & Ors (1989) 27 IR 278 at 289 per Gaudron J). 76 The respondent submitted there has been no application to adduce new evidence on appeal and any such application is opposed. It is now too late to provide on appeal a break up that was never provided before the primary judge. 77 The judge dealing fairly with the application for an order, is both entitled and bound to receive any relevant evidence presented in admissible form by any party wishing to be heard as to the terms of a final costs order (Caltex Refining Co Pty Ltd v MSB (1995) 36 NSWLR 552 per Sully J, with whom Grove and Studdert JJ agreed at 564.2). 78 Reliance is also placed on NSW Crime Commission v Fleming and Heal (1991) 24 NSWLR 116, the question being what constituted "reasonable legal expenses" within the meaning of s 10(5)(b) of the Drug Trafficking (Civil Proceedings) Act 1990 (NSW) and Emanuele v Dau (1996) 87 A Crim R 417 at 423 - 424. 79 The respondent submitted the Full Bench is not entitled to proceed "... in the light of collective experience of the Bench as to the quantum of costs for similar matters …". 80 The appellant provided no authority where this Court has made such determinations. It is properly a matter of evidence given "orally with documents, invoices and receipts or by affidavit" (Dau). The respondent submitted costs in the appeal should be ordered in favour of the respondent in conformity with the costs orders made in Powercoal (No. 3) at [170].

[116]

A defendant in a criminal case therefore need only prove mitigating circumstances on the probabilities to satisfy the court as to the truth of such evidence and its relevance to the fixing of penalty. 109 The evidence before Boland J on this issue was very detailed. The respondent mounted an exceptional and well documented case before his Honour on the issue of his financial circumstances. Hardship to the family was a factor properly taken into account by Boland J in determining the sentence. The evidence was that a significant penalty was likely to lead to the respondent having to sell the family home. The respondent had a wife and two young children to support. We accept these circumstances could be held to be an exceptional hardship and note what was said by Hill J in Hinchinbrook (at 188) : There is always a difficulty when a statute provides that a decision-maker shall "have regard to" a particular matter or series of matters. While it is clear that what is meant is that the decision-maker must apply his mind to the matter or matters stipulated, and "take them into account and give weight to them" : cf R v Hunt; Ex parte Lean Investments Pty Ltd (1979) 25 ALR 497 at 504 per Mason J, it leaves it open what weight or influence each of the particular matters is to have in the decision to be made: cf Windeyer J in Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365 at 384. Sometimes the statute will, as was the case in Giris , direct regard be had to an indeterminate category of such other matters as the decision-maker may regard as relevant. 110 Boland J had a discretion in relation to penalty and it was proper he had regard to the evidence placed before him as to the financial situation of the respondent. However, the penalty fixed must ultimately reflect the objective seriousness of the offence and must not be inconsistent with the criminality of the offence. His Honour made a finding the offence was not in the "serious class" but rejected that it was at the "lowest end of the range of seriousness".

[121]

117 Boland J ordered that the defendant shall pay 20 percent of the prosecutor's costs of the proceedings in an amount as agreed or, if agreement could not be reached, leave is granted to either party. 118 His Honour came to this conclusion through the following reasoning (at [53]): Having weighed up the objective seriousness of the offence and the relevant subjective factors including, in particular, the defendant's relative impecuniosity, and noting that the purpose of costs is not punishment, I have decided the defendant will pay 20 per cent of the prosecutor's costs. As a consequence of the events of 3 July 2002, which was not all of his own making, the defendant and his young family face a period of quite severe emotional and financial hardship. I can see no point in adding to their difficulties by simply adopting the usual rule that costs follow the event. I do not consider in this case that to do so would be just and reasonable. 119 We should note at this point that we do not accept the respondent's submission that it was not open to the appellant to raise this issue on appeal. 120 The parties have raised the effect of various statutory provisions as they relate to the Commission sitting in Court Session and its power to award costs. The relevant statutory provisions addressed are contained in the Fines Act 1996, the Criminal Procedure Act, the Legal Professional Act and the Industrial Relations Act 1996 as recited above. 121 The appellant puts into contention the correct construction and application of ss 3(1), 4 and s 253 of the Criminal Procedure Act read in conjunction with s 202 of the Legal Professional Act and the associated rules of this Commission or, in the alternative, of the Supreme Court. The respondent to the appeal, in arguing that Boland J made no error in his costs order, relies upon the common law principles as adumbrated in a line of authorities best recited in Latoudis. 122 Relevantly, a "fine" in the Fines Act is defined to include any costs order (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer. 123 The issue before us relates to a costs order for the prosecution. In WorkCover Authority of NSW (Insp Dawson) v Plastachem Pty Ltd & Ors (2001) 110 IR 351, costs were considered in proceedings before the Court Session for breaches of the occupational health and safety legislation. That prosecution was dismissed The court made clear at [48]: In summary criminal proceedings in this Court, it will ordinarily be appropriate to award costs to a defendant against whom a prosecution has failed. Once the legislature abolished the traditional common law rule that the Crown and those who institute summary proceedings neither pay nor receive costs, as it has done by enacting s14 of the Supreme Court (Summary Jurisdiction) Act , the Court must exercise its discretion as to costs in accordance with what is just and reasonable. Where a defendant has secured the dismissal of a criminal charge, it will not generally be just and reasonable to deprive the defendant of an order for costs. 124 In Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96 the Full Bench said at [72]: [Section] 181 of the Industrial Relations Act grants virtually plenary powers to the Commission in Court Session as to costs both at first instance and on appeal (see, as to appeals, s 181(4)) although the power of the Commission, when not sitting in Court Session is significantly limited in dealing with and awarding costs: s 181(2). 125 The appellant contended Boland J in determining an appropriate fine and appropriate costs, double counted relevant subjective factors, including in particular, the respondent's relative impecuniosity. 126 However, it is not in dispute the primary judge holds a very broad discretion to determine any order as to costs. Boland J exercised his discretion but did not follow the usual practice of awarding 100 percent of costs to the prosecution; rather he ordered a payment of 20 percent of the costs. The appellant does not challenge that within its discretion the court can depart from the "usual practice". The "usual approach", the "general position" or "ordinary" approach is that costs will follow the event. 127 We accept the principle to award costs to a successful respondent is equally applicable to the award of costs to successful prosecutors. The Full Bench in Plastachem at [61] held: The appellant [prosecutor] doubtless had a responsibility to conduct a full investigation of the matter and to institute such charges as might appropriately be brought. 128 There has also been judicial consideration of the effect of a legislative provision on cost orders which orders need to be determined by a Court. In Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 156, Pearlman J held at [8]: Despite the excision of the words "just and reasonable" from the amended s52, the Court should, in exercising the power to award costs, make an order which is just, reasonable and fair in all the circumstances of the case. The governing principles for the exercise of the type of discretion which a provision such as s52 confers upon a court is to be found in the leading authority of Latoudis. Those principles are as follows: (1) The discretion is broad and unfettered (at 541); (2) The purpose of a costs order is not to punish the unsuccessful party, but to compensate the successful party (at 567); (3) The discretion must be exercised judicially, that is, for reasons directly connected with the charge or the conduct of the proceedings (at 557, 566, 568). 129 In Latoudis where the High Court considered the power of courts of summary jurisdiction to award costs in favour of a successful respondent the majority held, where a respondent had been successful, it would not generally be just and reasonable to deprive it of an order for costs (per Mason CJ at 542). 130 Addressing the issue raised by the appellant that the respondent gains a double deduction for his plea of impecuniosity if the court takes impecuniosity into account in the setting of costs as well as a penalty for a criminal conviction in the form of a fine, Lord Bingham CJ in R v Northallerton Magistrates' Court; Ex Parte Christopher John Dove [2000] 1 CR App R (S) 136 at [4] held: While there is no requirement that any sum ordered by justices to be paid to a prosecutor by way of costs should stand in any arithmetical relationship to any fine imposed, the costs ordered to be paid should not in the ordinary way be grossly disproportionate to the fine. Justices should ordinarily begin by deciding on the appropriate fine to reflect the criminality of the defendant's offence, always bearing in mind his means and his ability to pay, and then consider what, if any, costs he should be ordered to pay to the prosecutor. If, when the costs sought by the prosecutor are added to the proposed fine, the total exceeds the sum which in the light of the defendant's means and all other relevant circumstances the defendant can reasonably be ordered to pay, it is preferable to achieve an acceptable total by reducing the sum of costs which the defendant is ordered to pay rather than by reducing the fine.

[123]

We consider the approach of Lord Bingham preferable to this approach. 132 Section 6 of the Fines Act allows consideration of the financial situation of the respondent in the court's consideration as to the appropriate costs order. Pearlman J reasoned a costs order must be "just and reasonable". Lord Bingham CJ defined the test as an "acceptable total". While the power exists to consider the financial circumstances of a respondent in both penalty and costs the overall result must comply with the test of "just and reasonable". 133 His Honour, in our view, did not fall into error on the issue of costs. In accordance with established principle, the court must make its determination in accordance with s 6 of the Fines Act. The court must also set the appropriate penalty for the offence giving proper weight to the objective seriousness of the offence. The court must then determine the appropriate costs order. Such a consideration, in our view, may also take into account the financial situation of the defendant. In so ordering the court must then determine that the total fine and costs order be an "acceptable total" or as otherwise said "just and reasonable". If the total penalty and costs order is viewed by the court to be excessive the court must make an appropriate adjustment to the costs order. The total must not be disproportionate to the offence. Boland J took into consideration this latter step in his determination as to costs when he stated at [51]: The prosecutor sought costs and a moiety of the fine. The defendant accepted that the usual order as to costs was that the defendant be required to pay the prosecutor's costs in an amount as agreed or assessed. However, it was submitted, costs were ultimately in the Court's discretion and the Court must exercise its discretion as to costs in accordance with what is just and reasonable. 134 In this matter, his Honour's reasoning reveals he was aware of the unusual order he made and also the discretion the court held as to cost orders when he determined there were such exceptional circumstances. In the application of the appropriate principles and in consideration of the new penalty imposed by the Full Bench we find any order as to costs we would award would mirror the order given by Boland J. We will however return to the practical aspects of this issue when we deal with the costs of the appeal. The costs of the appeal

[124]

135 The question of the costs of the appeal are not without difficulty. The appellant has succeeded on one ground of appeal but failed on the other. On one view of the circumstances, the appellant should have one half of his costs; on another view there should be no order as to the costs of the appeal. There have been a number of appeal decisions in successful prosecution appeals where no costs order was made. 136 The issue of costs of the appeal is further complicated by the fact that we have found that Boland J did not err in principle or approach when he approached the issue of costs at first instance in the way he did because his Honour in substance had regard to the approach of Lord Bingham in R v Northallerton Magistrates' Court which we have held was appropriate in this case. The effect on appeal of increasing the fine to be imposed is to substantially increase the amount to be paid by the respondent if the costs order of Boland J is left undisturbed. Further, the Full Bench is not aware of the precise effect in monetary terms of the costs order made by Boland J. 137 The difficulty in identifying a fair means of resolving this issue is complicated by the fact that some matters requiring consideration were not raised with the parties because they were not aware of the approach the Full Bench would take on the sentencing part of the appeal. What we are about to say will necessarily be subject to the parties being given the opportunity of being heard on the following approach. 138 We do not consider that in this case the public interest would be served if the total amount to be paid by the respondent was increased beyond the practical effect of the orders made at first instance. The error we have discerned at first instance will be sufficiently dealt with and corrected by the significant increase in the fine imposed. It seems that the practical effect of the appropriate approach in this matter within the constraints of the appeal process might be achieved by the imposition of the increased fine, the setting aside of the costs order at first instance coupled with a direction to the parties that they shall bring in short minutes of costs orders for both the appeal and the proceedings at first instance in such an amount which will result in the respondent being liable (for both the fine and costs) for either $9,750 or for the total sum of penalty and costs awarded at first instance, whichever is the greater amount. We are mindful that in addition to that amount, the respondent will be liable for his own costs of the appeal. 139 The parties should therefore within 21 days file short submissions on the issue of costs having regard to what we have said in para [138] above or file short minutes of order of the costs of the appeal and of the proceedings at first instance in accordance with these reasons. ORDERS

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