Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor

Industrial Relations Commission (NSW)|2005-07-28|Before: Boland J, Mr P

Industrial Relations Commission of New South Wales in Court Session

CITATION: Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266

PROSECUTOR Inspector Thomas Yeung

CATCHWORDS: Occupational Health and Safety - Prosecution under sections 8(2) and 26(1) of Occupational Health and Safety Act - Construction Industry - Removal of trees from construction site - Fatality - Late plea of guilty - Inadequate supervision and instruction - Whether Markarian v R affects approach to sentencing - Offence proven - Penalty imposed

Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 LEGISLATION CITED: Fines Act 1996 Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Hoare v The Queen (1989) 167 CLR 348 Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service [2005] NSWIRComm 158 Inspector Yeung v Donald Wilson trading as Wilson's Tree Service [2004] NSWIRComm 346 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) [1999] NSWIRComm 343 CASES CITED: Markarian v R [2005] HCA 25 R v Sharma (2002) 54 NSWLR 300 R v Thompson, R v Houlton (2000) 29 NSWLR 383 Rodney Morrison v Powercoal Pty Limited (2003) 130 IR 364 Thorneloe v Filipowski (2001) 52 NSWLR 60 Wong v R (2001) 207 CLR 584

PROSECUTOR Mr P M Skinner of counsel Solicitor: Mr W Steenson WorkCover Legal Group LEGAL REPRESENTATIVES:

DEFENDANTS Mr A A Henskens of counsel Solicitor: Mr A Riordan Colin Biggers & Paisley

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR THOMAS YEUNG v HOWIE HERRING & FORSYTH PTY LIMITED

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

Prosecution under sections 8(2) and 26(1) of the Occupational Health and Safety Act 2000

1 Howie Herring & Forsyth Pty Ltd ("the corporate defendant") is a small company providing project management and construction management services. In 2002 the corporate defendant was retained as project and construction manager by Barlow Developments Pty Ltd to construct 16 light industrial units at 12 Yatala Road, Mt Ku-ring-gai. The corporate defendant's project manager on the site was Andrew Skelton ("the personal defendant"). 2 On 3 July 2002 Donald Edwin Wilson trading as Wilson's Tree Service or Wilson's Garden Management was undertaking the processing of trees including woodchipping at the construction site in Yatala Road. Wilson employed Michael John Colnan and had engaged a contractor, Geoffery William Jardine, to assist in the woodchipping operations. 3 Sometime between about 10.00am and 12.30pm Mr Jardine was preparing a sling around trees in order to assist an excavator being operated by Brian Paul Munroe to remove the trees and deliver them to Mr Wilson and Mr Colnan who would then process them through a woodchipping machine, at the construction site. At about 12.30pm Mr Munroe discovered Mr Jardine's dead body about 6 metres from the excavator, lying on the ground. Mr Jardine had multiple injuries consistent with having been run over by a heavy vehicle such as the excavator. 4 Mr Wilson was prosecuted under s 8(2) of the Act and pleaded guilty: Inspector Yeung v Donald Wilson trading as Wilson's Tree Service [2004] NSWIRComm 346. The decision in that matter was appealed: Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service [2005] NSWIRComm 158. I will come to the appeal later in this judgment. 5 The corporate defendant and the personal defendant were also charged in relation to what happened on 3 July 2002. The corporate defendant was charged under s 8(2) of the Occupational Health and Safety Act 2000 and the personal defendant was charged under Section 8(2) and Section 26(1) of that Act. Those provisions are in the following terms: Section 8(2) Others at workplace

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. Section 26(1) Offences by corporations - liability of directors and managers (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. 6 In relation to the corporate defendant it was alleged that being an employer it failed to ensure "Geoffrey William Jardine and others not in the first defendant's employment were not exposed to risks to their health or safety arising from the conduct of its undertaking at its place of work contrary to s 8(2) of the Act." The failures were alleged to be in relation to the provision of "such information, instruction, training and supervision as may be necessary to ensure the safety of Jardine and others while they were working near the excavator" and a failure to "ensure a safe system of work for Jardine and others while they were working near the excavator." 7 In relation to the personal defendant it was alleged: On 3 July 2002 at 12 Yatala Road, Mt Ku-ring-gai in the State of New South Wales, the second defendant, being a person concerned in the management of HHF, a corporation which contravened Section 8(2) of that Act at that place and date in that being an employer, it failed to ensure Jardine and others not in the first defendant's employment were not exposed to risks to their health or safety arising from the conduct of its undertaking at its place of work, is deemed to have contravened the same section pursuant to section 26(1) of the Act.

Both defendants pleaded guilty to the charges laid against them. 8 An extensive statement of agreed facts was tendered. It was agreed that: As Project Manager, Skelton, on behalf of Barlow, engaged the services of various contractors at the site. As part of this process HHF had a Safety Management Plan Document Register (" SMP ") consisting of some 13 pages with an issue date of 31 October 2000. The intention was that it to be provided by HHF to each contractor with the tender and contract documents, and to every person on site as part of a site-specific induction. In addition to the SMP, HHF maintained a "Hazard Control" policy. That policy was to be provided by HHF to all contractors with tender and contract documents and to every supervisor on site at site induction, where applicable. The SMP required that all personnel planning to work on site be inducted before having access to the work area. This was a general site induction which covered the rules and requirements of the site, emergency procedures, reporting procedures and site amenities. In accordance with the SMP, a record of each person's induction and qualifications was to be completed at the end of each induction. A Safety Management Plan Site Register (" Site Register ") was filled in and signed by those contractors who had undergone a site induction at the construction site. Skelton co-signed as the HHF representative. In addition, under the SMP, contractors were required to hold weekly toolbox meetings. The SMP also provided: "Wherever a potentially hazardous situation could occur, including working at heights or in confined spaces, bringing fuel or hazardous material to site, explosive power tools, cranage, oxy cutting and welding, special processes the HHF representative or the Contractor shall initiate a formal Hazard Control procedure to identify the hazards, suitable work method statements, risk analysis, permits to work as outlined in procedure HHF OHS 02 HAZARD CONTROL". The Hazard Control policy provided that "at least seven days prior to work" commencement on site, the following safety system will be implemented". The system then identified four matters that were to be addressed: a "Hazard Identification Sheet", the provision of a "Work Method Statement", the provision of a "Risk Analysis Sheet" and a "Work Safety Permit". The Hazard Identification Sheet was to be "used to identify all possible hazards pertaining to the project task" and that "initially this will be completed by the HHF representative, who will sign each hazard box which has a potential hazard relating to project task". The Hazard Identification Sheet was then to be "reviewed by HHF representatives and contractor's supervisor to agree on critical hazards". The Hazard Control policy required contractors, in the event of potentially hazardous situations, to submit a work method statement ("WMS") and a Risk Analysis Sheet. Skelton also kept a Daily Site Diary which purported to record, among other items, toolbox talks held, safety walks taken and any inductions completed. On or about 17 June 2002, Munroe an employee of Mystold Pty Ltd (" Mystold ") commenced work at the construction site. Munroe says he received a site induction either on that day or on 24 June 2002 from Skelton. The Daily Site Diary for 17 June 2002 records a toolbox talk given to excavator drivers and ground workers. Munroe's duties involved the operation of the excavator for the removal of trees and rocks in preparation for road construction. He operated under the supervision Harbourside Developments Pty Ltd (" Harbourside Developments ") and Skelton. On the day of the incident he received all his instructions from Skelton. The excavator was hired by Harbourside Developments from Mystold. Harbourside Developments also sub-contracted the services of Munroe's employer, Mystold. Between about 25 and 28 June 2002, Skelton on behalf Barlow engaged the services of Metro Tree Lopping Services Pty Ltd (" Metro ") to remove and grind tree stumps. On the first day of work Skelton directed Metro workers to their designated area of work at the construction site. Metro's director at the site, Dennis Warren Cockayne (" Cockayne "), appointed a spotter to watch out for the excavators operating at the site. On subsequent days, Metro workers operated inside an area bounded by a 2.4 metre high fence, with two access gates. The excavators were on the other side of the boundary fence. According to Cockayne, Skelton instructed Metro workers to stay within their designated work area away from the excavators. On the morning of the accident, Wednesday July 3 2002, Wilson arrived at the construction site with Colnan and Jardine. Wilson brought equipment with him to the construction site, namely one yellow Verneer wood chipper and one white IZUZU medium truck, registration number XJR 985. The wood chipper was attached to the truck. The job had an estimated duration of about 4 hours. Wilson had provided Colnan with personal protective equipment including gloves, eye protection and earmuffs. Jardine provided his own ear protection, eye protection and boots. Skelton did not provide an adequate site induction to Wilson, Colnan and Jardine before they commenced work. Sometime after arriving at the site Skelton showed Wilson the area to be cleared that morning. After pointing out the area to be cleared, Skelton left the area in which the work was to be performed and gave Wilson no further supervision. Prior to commencing work Wilson had a toolbox talk with Colnan and Jardine and instructed them on the work to be performed. Jardine and Colnan commenced work under the direct supervision of Wilson. The work was carried out in the vicinity of Munroe's excavator with no boundary between the workers and the excavator. Wilson and Colnan had both previously worked around moving plant. Jardine had worked on construction sites for a number of years and had been involved with heavy machinery all of his working life. After having spoken to Wilson, Skelton directed Munroe to utilise the excavator to remove approximately 23 trees and that the trees so removed would be processed through the defendant's chipper. Munroe noticed that the excavator would be operating on a 1 in 4 slope. He consulted with Wilson, Colnan and Jardine about the work. The system or work being utilised at the time of the incident 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 Wilson, 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. On the back of the excavator there were warning signs to keep clear from the swing area of the excavator. (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 meter or so of the chipper. (g) Colnan would then utilise a chainsaw to dissemble the tree. Colnan and Jardine would then feed the tree through the chipper. (h) Wilson had a leg injury and was not able to participate in the work. Wilson spent the majority of the time next to the discharge chute of the chipper, directing the flow of woodchips into the truck. Skelton contends he agreed with Wilson that Wilson would act as "spotter". Skelton did not take any steps to satisfy himself that Wilson was undertaking that task. (i) As the excavator moved down the slope removing trees, the workers reversed the truck with the wood chipper attached, behind the excavator. 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. Just before the incident, Jardine, working with the excavator, delivered a tree to the chipper. Colnan processed the tree into the wood chipper. The chipper was so noisy that none of the workers could be heard. In addition, the workers were wearing ear protection. Jardine motioned to Colnan who in turn passed Jardine the sling. Jardine walked off towards an area on the far side of the excavator where further trees were to be removed. Colnan continued to cut branches and feed them into the wood chipper. Both Wilson and Colnan were facing towards the truck with their backs to the excavator. A couple of minutes later, Munroe queried as to Jardine's whereabouts. Neither Wilson nor Colnan knew where he was and the work paused for a minute or so whilst they looked around. They failed to locate him and resumed work. A minute or so later, Munroe informed them he had found Jardine. Wilson and Colnan went to investigate and found Jardine lying on the far side of the excavator beside a large rock partially covered with small branches and foliage. The sling which had been used by Jardine over the course of the day was found approximately 15 metres up a slope north of Jardine's body attached to a tree. Accordingly to the autopsy report dated 14 September 2002, Jardine suffered multiple injuries consistent with being run over by a heavy vehicle such as an excavator. The autopsy report dated 14 September 2002 also showed the deceased suffered from "severe coronary artery disease" and that in one of the deceased's coronary arteries there was evidence of a fresh haemorrhage into a plaque deposited on the wall of the artery, indicating the deceased may have suffered a myocardial infarction or "heart attack". Dr Langlois undertook the post mortem examination and expressed the opinion that it was "extremely difficult" to determine whether the haemorrhage into the plaque happened prior to or following the deceased suffering various injuries. Dr Langlois expressed the opinion that: "Such an event [the heart attack] could have caused Mr Jardine to collapse where upon he was then run over by the excavator. However there was severe trauma to the chest and there was a tear of the heart. Therefore, it is possible that the haemorrhage into the plaque occurred as a result of the chest trauma. From a purely pathological view it is extremely difficult to separate these two possibilities. An investigation into the circumstances of the incident may assist in clarifying this matter". Senior Constable Paul Anthony Green of the Berowra Police Station attended on the construction site shortly after the accident and observed that "there was very little blood as a result of the large head injury that the deceased had suffered, which was unusual with such a head injury, in my experience". In the statement made to the Police on 30 July 2002 Skelton also observed "I did not see any blood" when giving evidence about viewing Jardine's body shortly after it was discovered. In his statement given to police on 1 August 2002, Thomas Patrick Forde observed: "I then looked at his head and his body, his head was badly damaged with a large opening in the back of his head on the top right hand side … I noticed that there was no blood around his head where the wound was. I thought this was strange that there was no blood. I thought he might have been dead before this happened". As such, it is not possible to determine whether Jardine died before or after the incident. The first and second defendants have no previous convictions for an offence under the Occupational Health and Safety Act 2000 or its predecessors. 9 Other evidence in the proceedings was an affidavit of Jeffrey Robert Clarke, general manager of the corporate defendant and an affidavit of the personal defendant. Neither deponent was required for cross-examination. Mr Clarke provided information about the background of the corporate defendant its operation and his role in the company. As well, he provided information about the corporate defendant's approach to safety on the Mt Ku-ring-gai site including safe work method statements, safety inductions and compliance with safety requirements. 10 Following the incident, the corporate defendant commissioned an independent occupational health and safety consultant to provide an assessment of the OH&S issues at the Mt Ku-ring-gai site. The assessment was made and a package of improvement measures was implemented. This included an "Occupation Health Safety and Rehabilitation Manual", which contained the policy and procedure for the company. 11 One of the components of new package is a site safety management plan. It is a generic document which is to be tailored and reviewed for specific project requirements.

12 Following the incident, the corporate defendant ensured that the employees of the company who were involved in the management of contractors on site received some informal training and guidance from its occupational health and safety consultant, which provided guidance to the personal defendant at the Ku-ring-gai site in the time following the incident. Mr Skelton also undertook separate training with Mr Clarke in order that they understood the Manual and were aware of how it should be implemented. The Manual is now used by the corporate defendant's employees. 13 Mr Clarke deposed that the corporate defendant and its staff provided full co-operation to WorkCover in carrying out its investigations. 14 Mr Clarke also provided information regarding the corporate defendant's financial position. He stated: For the current 2004/2005 year, I estimate HHF's income will be in the order of $820,000. This income I expect will place HHF in a breakeven position, without taking into account any extra-ordinary costs. However, for the year, HHF's current extra ordinary costs include legal costs and an extra special premium from GIO Insurance (both in relation to this proceeding) plus some long term debt recovery costs. This special premium has been imposed by HH F 's insurers (of approximately 28 years). The premium has been imposed since the Jardine family has made a claim through WorkCover. The additional premium itself is in the order of $25,000 and has been imposed without consultation with HHF. Due to cash flow concerns, HHF is not in a position where it can pay that premium and so has entered into an extended payment scheme that allows for payments (including penalty interest) over five monthly instalments which commenced in April. The above described premium, and combined with the extra-ordinary cost of legal costs arising from this proceeding, then HHF has an estimated loss situation in the order of $65 to $70,000 this year. … In addition to the above extra-ordinary costs, and the above noted financial position of the company it should be noted that: (a) due to the longevity of employment that its current employees have been with the company, HHF currently has a significant liability arising from its obligations to pay annual leave and long term service leave. That figure is in the order of $125,000. (b) HHF is carrying approximately $128,000 in long term bad debt. Whilst the debt is being pursued, the chances of recovery are unknown. (Therefore, it is worth noting that the profit margins in the previous 2004 - 2005 assume that the long term debt is in fact recovered. Obviously, if it is not recovered, the amount of that debt would need to be written off which would effect the fee income for the relevant year.). Obviously, any fine imposed on HHF will have a significant impact on the viability of the business. The cash flow in the company is extremely restricted. There is a question mark on HHF's ability to pay its current liability, let alone the ability to pay any further extra-ordinary costs or penalties. The imposition of a penalty has the potential to put HHF out of business. 15 Mr Clarke stated that: The Incident itself has had a serious and lasting impact on the staff at HHF who have been deeply affected by the Incident. Immediately after the Incident, HHF arranged on-site counselling for employees and trade contractors. The ramifications of the Incident continue on a personal level at different aspects of the business, from a long-term effect on productivity, to a lasting impact on staff moral. Current staff recognise that this Incident has potential to effect the viability of the company. 16 Mr Skelton completed a Bachelor of Science Degree in Construction Management at Salford University in Manchester, England in 1994. He commenced with the corporate defendant in June 2001 as a project coordinator. In relation to his role on the Mt Ku-ring-gai site Mr Skelton stated that in conjunction with Jeffrey Clarke, he developed the Site Specific Site Management Plan which was based primarily on the corporate defendant's safety management policies developed previously. He said he conducted formal site inductions on safety procedure.

17 Mr Skelton said he engaged Metro Tree Lopping Services Pty Limited to clear trees on site in order that the excavation could take place for the development and to clear the area for the planned road extension to Yatala Road. In his affidavit Mr Skelton deposed: Metro commenced work on site in late June 2002. I recall that on or about 28 June I became aware that Metro appeared to have vacated the site and had only completed approximately 90% of the work that they were contracted to undertake. Certain trees had not been removed and the core of some stumps had not been grinded. At this stage, Metro's failure to undertake the works was not holding up progress on the site. After becoming aware of the unfinished work, I had a number of discussions with Dennis Cockayne of Metro. The first conversation was on the afternoon of Friday 28th of June. I telephoned Dennis Cockayne and had a conversation with him in words to the following effect: I said: "Dennis, you guys seem to have left the site but haven't finished your work. When are you coming back to finish?"

Mr Cockayne said: "We've done everything we've agreed to, we've finished."

I said: "No you haven't ground all the stumps there are some trees up at the end of the access road that you haven't removed."

I said: "No you're not. Look you're not going to get paid if you don't come back and finish the work."

Mr Cockayne said: "If you don't pay me I'll bring the Union in and I'll close the site." I said: "Just come back and finish your work." Metro did not attend the site on Saturday 29 June 2002. At about midday on Monday 1 July 2002 I was driving out of the site to get myself some lunch, when I noticed that Metro's stump grinder was just finishing up work and leaving the site. Whilst the outstanding trees had been ground, the trees at the end of the access road had still not been removed. Sometime later on in the day on 1 July 2002 I telephoned Dennis Cockayne and had a further conversation with him. I said, "Dennis there was a guy here that's done more grinding but he hasn't removed the trees at the end of the access road."

Mr Cockayne said: "That was never part of the deal, I'm not removing them. I want to get paid for what I've done. That's what was agreed."

I said: "Look, as far as I'm concerned that was all part of the agreement. If I have to I'll get someone else in to do it. I'll take whatever it costs off your bill. You're to come back and finish it" The conversation was left at that. It wasn't clear to me what Mr Cockayne's intentions were. Later that day or on 2 July 2002, I received a telephone call from someone I now know to be Don Wilson (" Wilson ") and had a conversation with him in words to the following effect: Mr Wilson said: "My name is Don Wilson. I've been told that there's work that needs to be completed on your job at Yatala Road, pulling out trees. I'll be coming to site with a crew on the 3rd of July to complete those works for you."

I said: "OK that's fine, when you get there come down and see me at the site office." I had never previously spoken with Wilson. I assumed that Mr Wilson was retained by Metro and had been instructed by Metro to attend the site and complete Metro's works. 18 The personal defendant deposed that on the day of the incident: I met with Wilson and his workers before they commenced their work and conducted my usual site induction as I have described above. We then went to where the work was to be performed and held a tool box meeting with Munroe. The system of work to be undertaken by Mr Wilson and his workers and Munroe was:

(a) Munroe would use the excavator to push down the trees, a few at a time; (b) Throughout this time the truck and chipper would be 12 to 15 metres from the area where the excavator was being operated. (c) Wilson, Colnan and Jardine were to stay behind the excavator when the trees were pushed over. The trees were to be pushed over away from where Colnan and Jardine were standing and onto the remaining wood. On the back of the excavator there were warning signs to keep clear from the swing area of the excavator. (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 meter or so of the chipper. (g) Colnan would then utilise a chainsaw to dissemble the tree. (h) Colnan and Jardine would then feed the tree through the chipper. (i) Wilson had a leg injury and was not able to participate in the work. Wilson and I agreed that Wilson would act as "spotter". (j) As the excavator moved down the slope removing trees, the workers would reverse the truck with the wood chipper attached, behind the excavator. Thereafter I left them to undertake the work and returned to the site office. I understood that Wilson was retained by Metro to complete Metro's work and would be proceeding in accordance with Metro's Safe Work Method Statement. Metro had been on site and undertaken the tree lopping work in a proper and safe manner including with the use of a "spotter". I assumed Wilson and his workers would operate in the same way. I now understand that was not the case. 19 Mr Skelton provided details of his financial situation. He earns an annual salary of $80,000. In general, he does not receive bonuses through the company. He also receives a car allowance of $146 a fortnight. The salary and car allowance amounts to a fortnightly payment to him of $2,265.00. Mr Skelton and his wife have a fixed rate home loan in the sum of $468,076.00, which they used to purchase a property and variable line of credit facility on which they owe $115,000. Mr Skelton and his wife have a car each, home contents and personal effects. With loan repayments and daily expenses, Mr Skelton said his finances were tight. 20 Mr Skelton said he was "ashamed and regret that I now have a conviction for a breach of work safety." He stated: The Incident and the tragic consequences arising from the events of 3 July 2002 have had a profound affect on my life. I feel immense sympathy for the family of Mr Jardine and often think about the events of the day and how things could or might have been different. Since the time of the Incident, I have had intense periods of sleep disruption. It has put an enormous strain on Julie and my marriage, and our relationships with our family and friends. The effect has not only been to me personally, but to my family and obviously the other staff at HHF. In a work setting, again for periods of time I have been unable to focus completely on my work. The accident and these proceedings are matters that I think about every day. I am always deeply aware of the impact - both financially and personally - on my work colleagues. Since the Incident the directors of the company have offered me their full support. The directors have been 100% behind my case. I appreciate their support immensely. Nevertheless, I am very conscious of the financial impact this has had on the company which is struggling to maintain its position in a tough market. The events in question have made me even more conscious than I was prior to 3 July 2002 of occupational health and safety issues. Since the accident, I try even harder on site to ensure safe work practises. Markarian v R

21 A matter that needs to be dealt with at the outset of my consideration of this matter, is the impact of the High Court's decision in Markarian v R [2005] HCA 25 given on 18 May 2005. Mr Henskens of counsel for the defendants submitted that judgment "substantially changes the way in which this court has previously dealt with sentencing principles". Mr Henskens submitted that the approach to sentencing in R v Thomson; R v Houlton (2000) 49 NSWLR 383 had been overruled in Markarian. The essence of what Mr Henskens submitted was as follows: Up until Markarian, the maximum discount for subjective and utilitarian factors was 35 per cent, consistent with what is in R v Thomson. In my submission Markarian makes it clear that is no longer the case and it has quite an important effect on the way in which sentencing has been approached in this court because to the extent that the other 65 per cent of the penalty was reflective of objective seriousness and perhaps factors of general and specific deterrence and maybe aggravation, although aggravation is not a common factor Markarian says that is not an acceptable approach because in a mathematical way it decrees you must give percentage weight to those factors. In other words, your Honour would be entitled under Markarian to give objective seriousness a lesser proportion of the overall penalty if the circumstances demand it and a much greater consideration to the proportion of penalty for subjective circumstances or in some cases, the utilitarian value of the plea, and so on. So the two step approach of R v Thomson is to start with the objective seriousness principle and then discount from there is not an approach which has been condoned by the High Court and they say it is wrong in principle. … My submission to you is that the appropriate approach to objective seriousness is not to start from the point of view that it is an important matter but start from the point of view it is a matter which must be taken into account. The particular circumstances of the case will determine its relative importance having regard to the other factors of the case, and the same can be said of general deterrence and the importance that one gives general deterrence. It is a factor but it ought not to be presumptively assumed to be the important factor or the most important factor or one of the most important factors because your Honour has to weigh all the factors together simultaneously. 22 Markarian involved an appeal from the Court of Criminal Appeal of New South Wales in relation to the sentencing of an offender convicted of an offence under the Drug Misuse and Trafficking Act 1985. The question for the High Court was whether the Court of Criminal Appeal failed to apply or misapplied orthodox sentencing principles in upholding an appeal against sentence by the Crown. 23 The High Court found there was error. In the joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ ("the joint judgment") their Honours considered that the approach taken by Hulme J, who delivered the principal judgment (Heydon JA and Carruthers AJ agreeing), was wrong. It was noted in the joint judgment that Hulme J had rejected the instinctive synthesis approach to sentencing and that at [23]: His Honour proceeded by referring to a maximum penalty of 15 years, reducing that period by a third because the appellant's role was of a lesser kind than that of Caccamo [a co-offender], making a further reduction of 25% on account of the utilitarian value of the plea and contrition, increasing the sentence by 18 months to 2 years because of the further offences, and taking into account various other factors pointing in different directions, the prospects of rehabilitation, deterrence, the security of the community, and the double jeopardy arising by reason of a Crown appeal. 24 At [24] of the joint judgment, their Honours observed: It is not useful to begin by asking a general question like was a "staged sentencing process" followed. That is not useful because the expression "staged sentencing process" may mean no more than that the reasoning adopted by the sentencer can be seen to have proceeded sequentially. Or it may mean only that some specific numerical or proportional allowance has been made by the sentencer in arriving at an ultimate sentence on some account such as assistance to authorities or a plea of guilty. Neither the conclusion that a sentencer has reasoned sequentially, nor the observation that a sentencer has quantified the allowance made, for example, on account of the offender's plea of guilty, or the offender's assistance to authorities, of itself, reveals error. Indeed provisions like s 21E of the Crimes Act 1914 (Cth) may require the sentencer, in some circumstances, to identify the amount by which a sentence has been reduced on some account. 25 The joint judgment referred to the importance of maximum penalties and at [31] stated: 31 It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case. 32 The appellant's submission that the passage just quoted involved too great an emphasis upon quantity without regard to the facts of the case, should be accepted. True it is that his Honour did not overlook the objective facts, or indeed any other matters relating to penalty, but having started where he did, at a maximum, and then making deductions from it, he did not make, even in a provisional way, an assessment of the sentence called for by the objective facts. It might or might not be appropriate for a trial judge to state such a provisional view. A judge would rarely be in error in not doing so. It is, after all, a provisional position only. 33 A serious fallacy in his Honour's reasoning is that it assumes that any case involving more than 250 grams of heroin is likely to be a worse case than any case involving only 250 grams or less. That cannot be so in the virtually absolute terms in which his Honour puts it. Little imagination is required to envisage a case involving a relatively small quantity of heroin, as being of very great seriousness, for example, supply to create an addiction in an infant. The qualification which his Honour did make of "other things being equal" was not one to which he gave effect, for in adopting his starting point of 15 years he had no regard to the sorts of matters which could have had any equalising effect. The further defect in the reasoning is a related one. Having started with a penalty which would have been appropriate for the worst possible kind of offence of supply involving up to 250 grams of heroin, Hulme J made no attempt to identify the nature of such a case and to make a comparison of the facts of the principal offence with it.

The joint judgment upheld the first ground of appeal. 26 At [35]-[39] of the joint judgment consideration was given to the "sequential or two-tiered" approach to sentencing and the "process of instinctive synthesis". At [35] reference was made to the appellant's invitation to "reject sequential or two-tiered approaches to sentencing taking as their starting point the maximum penalty available, and to state as a universal rule to the extent that legislation does not otherwise dictate, that a process of instinctive synthesis is the one which sentencing courts should adopt." Their Honours considered, however, no universal rules could be stated in those terms. 27 The joint judgment referred with approval to what was said by Gaudron, Gummow and Hayne JJ in R v Wong (2001) 207 CLR 584 at [74]-[76] where their Honours stated the two stage approach to sentencing (described as "a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from, a predetermined range of sentences") should not be adopted. Their Honours in Wong stressed the importance of taking into account "all of the relevant factors and to arrive at a single result which takes due account of them all." 28 Following the reference to Wong, it was stated in the joint judgment at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of "instinctive synthesis", as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression "instinctive synthesis" may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge. 29 In a separate judgment upholding the appeal McHugh J also discussed the two approaches to sentencing, expressing a strong preference for the instinctive synthesis approach. His Honour described the two approaches at [51]: By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the "objective circumstances" of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence. 30 Whilst Kirby J agreed with the other members of the Court that the Court of Criminal Appeal had erred in adopting the wrong starting point (the quantity of the heroin the subject of the principal offence and the maximum sentences fixed by the relevant legislation for specific quantities), his Honour defended the two-tier approach to sentencing and offered a strong critique of the instinctive synthesis approach. 31 It seems to me that what flows from the joint judgment in Markarian is that: 1 It is impermissible to look first to a maximum penalty, and to proceed by making a proportional deduction from it for the various factors to be taken into account in sentencing [31]. 2 Neither the conclusion that a sentencer has reasoned sequentially, nor the observation that a sentencer has quantified the allowance made, for example, on account of the offender's plea of guilty, or the offender's assistance to authorities, of itself, reveals error [24]. 3 There is no universal rule that "instinctive synthesis" is the sentencing method the courts should adopt [36]. 4 Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached [27]. 5 Sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden [39]. 32 It is not entirely clear the extent to which the joint judgment disapproved of a two-stage approach to sentencing. By quoting the passages from Wong with approval would suggest that the four Justices considered that a two-stage approach was wrong in principle. It would also suggest that the joint judgment endorsed the view in Wong that it was inappropriate to discount a sentence by a nominated amount on account of a plea of guilty but that is inconsistent with what was said at [24] of Markarian, namely, the fact that a sentencer has quantified the allowance made on account of the offender's plea of guilty does not, of itself, reveal error. 33 In light of what was said at [24] in the joint judgment, it does not appear that in citing with approval the passages from Wong, it was the intention in Markarian to overrule R v Thompson; R v Houlton (2000) 29 NSWLR 383 and it remains permissible to quantify an allowance made for a plea of guilty in accordance with the guideline judgment in that matter. See also s 42A of the Crimes (Sentencing Procedure) Act 1999. 34 Moreover, I note that whereas the High Court had the opportunity to unequivocally overrule Thomson and R v Sharma (2002) 54 NSWLR 300 where the New South Wales Court of Appeal held that the criticism of a two stage approach to sentencing in Wong did not require the court to overrule Thomson (2000) 49 NSWLR 383, it did not do so. On the contrary, Sharma was acknowledged in the joint judgment without any indication of disapproval at [38]: Following Wong benches of five judges in New South Wales in R v Sharma and R v Whyte and in South Australia in R v Place, have sought to state general sentencing principles to be applied in those States. In the first two of these cases the Court of Criminal Appeal of New South Wales endorsed an approach of instinctive synthesis as a general rule but also accepted as a qualification that departure from it may be justified to allow for separate consideration of the objective circumstances of the crime.

35 Whilst it is clear from the joint judgment that the favoured approach to sentencing is the instinctive synthesis approach - which accords with the finding in Thompson at [57] that the instinctive synthesis approach is the correct general approach to sentencing in New South Wales - it also does not appear that the High Court in Markarian has disapproved of a two-stage approach to sentencing to the extent it may not be adopted at all by a sentencing court. It would appear from the joint judgment that the High Court was concerned that courts should not adopt a rigid two-step approach to sentencing. The emphasis in the joint judgment is on the requirement to take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached about an appropriate sentence and in making it clear that sentencing courts "may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison." Otherwise, as the joint judgment holds at [27]: Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is … And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. 36 The approach to sentencing in this jurisdiction has been well settled for many years at appellate level. The leading authority is Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) NSWIRComm 343. At 474-475 the Full Bench stated: However, in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence": see Independent Cargo & Wool Services Pty Limited v Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, CT92/1041, 10 March 1994) at p4; Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992) at p9; Inspector Mauger v P Ward Civil Engineering Pty Limited (unreported, Fisher CJ, CT94/1212, 21 December 1995) at p8-9. It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence. In WorkCover Authority of NSW v Waugh (1995) 59 IR 89 at 96, the Full Bench of the then Industrial Court cited with approval a passage from the judgment of Fisher CJ in Haynes v James Glass and Aluminium Pty Limited (unreported, CT91/772-775, 20 May 1994) where his Honour said: I consider that the primary factors to be looked at in relation to penalty in matters such as this are the nature and quality of complaint made out. These need not necessarily reflect death or injury actually occurring as a result of the failures, though all too commonly those circumstances are met with.

It is plain from the history of this legislation that Parliament has reflected its increasing concern at the lack of safety in some aspects of industrial operation by markedly restating the duty of care and the penalties that were provided for breaches of the industrial Occupational Health and Safety Act 1983. Again in 1991 by amendment penalties in relation to a corporation were raised from $100,000 to $250,000 and in the case of individuals, from $10,000 to $25,000. While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce. These comments were applied by Wright J, President, in WorkCover Authority of NSW v Albury City Council (unreported, IRC97/6538, 28 April 1999) at p26-29. His Honour considered the decision of the Full Bench in Waugh in light of subsequent authority, particularly the comment by Hungerford J in Fisher v Samaras Industrial Pty Limited (1996) 82 IR 384 at 388-389 that a penalty should not be "oppressively high" and the reference in Warman ((1998) 80 IR 326 at 340) to a "substantial reduction in the sentence" flowing from an early plea of guilty and/or co-operation with the authorities. His Honour concluded that he did not consider these comments were intended to qualify the approach to balancing objective and subjective factors expressed in Waugh . This approach was also taken by Hungerford J in Dowling v Overtop Pty Limited (1998) 86 IR 319 where his Honour said (at 333): In addressing the approach to penalty under the Occupational Safety Act, a Full Bench ( Fisher P., Peterson and Schmidt JJ.) of the Court succinctly put it in the following way in Warman International Limited v. WorkCover Authority of New South Wales [(1998) 80 IR 326 at 339]: 'The approach to the determination of penalty in cases such as these is now well settled. The penalty must reflect the nature and quality of the particular offence; the level of penalty must, on the one hand, compel attention to occupational health and safety risks in order to ensure that persons are not exposed to such risks at their workplaces but, on the other, must not be oppressively high.' Given, as I have found, the serious nature of this offence, I accept the submission by Mr. Docking that the subjective considerations going to mitigation are necessarily subsidiary to the objective factors of the nature and quality of the offence. In Ferguson v Nelmac Pty Limited (unreported, Wright J, President, IRC97/3421-3423, 24 May 1999) at p43, his Honour observed in relation to the sentence to be imposed: When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. As we have observed, the primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. While the court must keep in mind not only facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender (see Camilleri's Stock Feeds Pty Limited v Environmental Protection Authority (1993) 32 NSWLR 683 at 698 per Kirby P), the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence. In Dodd (1991) 57 A Crim R 349, a man gave himself up to police and confessed to killing a young woman 10 years previously. He pleaded guilty to manslaughter and was sentenced to three years periodic detention. The trial Judge considered a range of subjective circumstances in favour of the accused, including his obvious contrition, the fact that he pleaded guilty and his voluntary disclosure of guilt which would otherwise have remained undetected. The Court of Criminal Appeal concluded (at 354): As Jordan CJ pointed out in R v Geddes (36 SR at 556), making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary. (See, for example, the passage from the judgment of Street CJ in R v Todd [1982] 2 NSWLR 517 quoted in Mill v The Queen (1988) 166 CLR 59 at 64). Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case ( R v Rushby [1977] 1 NSWLR 594). We consider that to have happened here. In our view the requirement of a reasonable proportionality with the circumstances of the crime called for a significant full-time custodial sentence. As indicated in Dodd , the proper approach is to first consider the gravity of the offence viewed objectively: see also Gordon (1994) 71 A Crim R 459 at 468 R v Lett (unreported, Court of Criminal Appeal, Hunt CJ at CL, Sully and Levine JJ, 27 March 1995) at p5. The court must ensure that the allowance afforded for subjective factors does not produce a sentence which fails to take account of the objective gravity of the offence: see also Allpass (1993) 72 A Crim R 561 at 563; R v Murray (unreported, Court of Criminal Appeal, Newman and Barr JJ, 29 October 1997). 37 It is difficult to avoid the conclusion that the approach dictated by Lawrenson Diecasting is a two-stage approach to sentencing; the objective seriousness of the offence being the primary factor to be looked at in relation to penalty and subjective factors playing only a subsidiary role. That is, in determining sentence, subjective factors will not carry as much weight as objective factors. 38 However, nothing in Markarian would suggest that the general principle that a sentence must be "proportionate to the gravity of the crime considered in the light of its objective circumstances" (Hoare v The Queen (1989) 167 CLR 348 at 354) has been overturned. This is the principle, I believe, upon which Lawrenson Diecasting is based. Moreover, I note what Spigelman CJ stated in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69: However, in this State the principle of proportionality identified in Veen v The Queen (1978-1979 143 CLR 458 esp at 490; Veen v The Queen [No. 2] (1987-1988) 164 CLR 465 esp at 472-3, 476 has long been held to permit, indeed to require, that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 39 In the absence, however, of any clear indication in Markarian that a sentencing court may not use a two-stage approach to sentencing and may not give separate consideration to the objective circumstances of the crime (in fact at [38] in the joint judgment it appears to be said that this may be justified) and given that the implications of Markarian for the approach required by Lawrenson Diecasting were not fully debated before me, especially as to the statutory context in which sentencing occurs in this jurisdiction, I am disinclined to depart from the approach required by Lawrenson Diecasting. 40 The approach I have taken, therefore, is that required by Lawrenson Diecasting. The guideline judgment in R v Thomson continues to be one this Court is required to take into account and it is appropriate that I indicate a discount at least for the utilitarian value of the guilty plea. In the light of Markarian it is necessary that I take into account all relevant considerations in sentencing (which has always been part of the jurisprudence) and "make a value judgment as to what is the appropriate sentence given all the factors of the case" subject to the approach required by Lawrenson Diecasting. Amongst the objective and subjective factors I am required to take into account are those in ss 21A, 22 and 23 of the Crimes (Sentencing Procedure) Act. I do not consider it is any longer appropriate to take the approach of determining an amount of penalty based on the relevant objective considerations and deducting from that amount allowances for the individual subjective factors. Consideration

41 The failures to which the defendants pleaded guilty in these matters were a failure in relation to the provision of "such information, instruction, training and supervision as may be necessary to ensure the safety of Jardine and others while they were working near the excavator" and a failure to "ensure a safe system of work for Jardine and others while they were working near the excavator." 42 I accept that this is not a case where the corporate defendant had no systems in place in relation to occupational health and safety. The evidence indicated that the defendants did take occupational health and safety seriously but on 3 July 2002 the flaws in their approach to safety were brought into stark relief. 43 On that day Mr Skelton met with Wilson and his workers before they commenced their work and conducted his usual site induction. He explained how the work was to be performed and he understood that Mr Wilson would act as spotter. Mr Skelton did not, however, seek from Mr Wilson a Safe Work Method Statement. What appears to have occurred is that Mr Skelton assumed Mr Wilson and his workers would perform their work in the same manner as Metro had and in accordance with Metro's Safe Work Method Statement. 44 The critical failure, however, on the part of the defendants was the failure to recognise that Mr Wilson and his workers were new to the site and what should have occurred was that the defendants satisfied themselves, by observation, that the workers had adequate information, instruction and training to carry out the work and were being adequately supervised and that Mr Wilson was in fact acting as a spotter. That they should have at least initially been observed as to how they went about their tasks, working as they were in close proximity to an excavator in rough terrain, was crucial to ensuring no risks to health and safety developed. 45 The approach taken by the defendants to inducting persons on what was a dangerous construction site into how work is to be carried out safely, was seriously deficient involving as it did only verbal information and instruction. The fact was the defendants had no idea whether the work was being carried out safely and it was, therefore, impossible for them to ensure that persons not in their employment were not exposed to risks to safety. 46 The risks of working in close proximity to the excavator were obvious and in fact known to the defendants because the method of work was designed to avoid persons being hit by the excavator. The overall system of protection, however, was inadequate, as I have explained. 47 As I observed in Inspector Yeung v Donald Wilson trading as Wilson's Tree Service [2004] NSWIRComm 346 at [32]: 32 The work environment was bushland. It was noisy ("The chipper was so noisy that none of the workers could be heard"), the ground was rough and sloping and men were working in proximity to a 22 tonne excavating machine cutting up trees with chain saws and slinging the load onto the excavator's bucket. The excavator driver could not see to the rear of the machine and whilst the wood chipping was taking place Mr Wilson had his back to the excavator and surrounding area. Properly supervised the site should have involved the well-established practice of a "spotter" who, at all times, could account for the position of each worker on the site and if any person was not visible, would immediately signal a cessation of the work. Alternatively, the excavator operator should have been instructed that unless he could see Messrs Jardine and Colnan he was not to operate the machine and that Mr Watson would stay with the woodchipping machine and not approach the excavator.

The obligation on the defendants was to ensure the arrangements described in the passage from Wilson were in place and being observed. 48 The gravity of an injury resulting from a breach of the Act does not of itself dictate the amount of penalty. However, the occurrence of death or serious injury may manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Rodney Morrison v Powercoal Pty Limited (2003) 130 IR 364 at [32]. However, in this case 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. Nevertheless, the seriousness of the offence is determined by an objective consideration of the seriousness of the risk, not whether it caused injury or death. In other words, even though no injury or death occurs, if the risk to safety caused by the defendant's act or omission is likely to result in serious injury or death, that is a measure of the seriousness of the offence. In this case the extent of the defendant's failure to provide adequate supervision, information and instruction and a safe system of work and the likelihood of those failures resulting in serious injury or death is a matter to be taken into account in determining an appropriate sentence. 49 In fixing an appropriate sentence I have included an element for general deterrence: see Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29. As for specific deterrence I note the measures taken by the corporate defendant following the incident on 3 July 2002 to avoid a re-occurrence of the risk. Those measures are appropriate and commendable. The defendants have otherwise good records and there is nothing to indicate a propensity to re-offend. The defendants, however, continue to provide project management services including to the construction industry and will continue to face the need to be vigilant in guarding against risks to health and safety on those sites for which they have a responsibility for occupational health and safety matters. It is appropriate to provide for a small element of specific deterrence to remind the defendants of the need to be pro-active in searching out and eliminating risks. 50 There are a number of relevant subjective considerations. There was cooperation with the investigating authority by both defendants. There has also been contrition; Mr Skelton has been affected personally by what occurred on 3 July 2002 and expressed genuine remorse. Neither defendant has any previous convictions and I consider both to be of good character. 51 The defendants pleaded guilty but it was a late plea, entered on the first day of a scheduled five-day hearing. Nonetheless, time, inconvenience and expense were saved and a discount of 10 per cent should be given for the plea. 52 In relation to the corporate defendant I note it is a relatively small company and whilst no submissions were made regarding incapacity to pay any fine that may be imposed, its financial situation is not especially strong.

53 In relation to the defendants, a submission was made going to parity with the sentence imposed on the defendant in Wilson. In Wilson the Court as presently constituted stated as to sentence and costs: 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.

54 I have decided an appropriate penalty in this case is $4,000. This amount is to be reduced by 35 per cent, resulting in a fine of $2,600. 54 The orders made by the Court in Wilson were as follows: 1) A verdict of guilty is entered.

The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $2,600 with a moiety thereof to the prosecutor.

The defendant shall pay 20 per cent of the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. 55 As I earlier indicated, the judgment and orders in Wilson were the subject of an appeal by the prosecutor. On appeal the Full Bench determined: 113 Having reached the conclusion we have, it is not necessary to identify specific error. We find his Honour's judgment generally applies the orthodox principles of sentencing and that his Honour's findings were open to him. Nevertheless, it is appropriate to identify that his Honour fell into error in two respects:

(i) We do not consider his Honour should have reduced the consideration as to specific deterrence to a negligible level. The evidence revealed the business conducted by the respondent to the appeal was ongoing and as a matter of principle an element of specific deterrence should feature therefore in the sentencing ( Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610); and

(ii) The level of penalty applied by his Honour reflected a significant discount as a result of the operation of s 6 of the Fines Act 1996. Notwithstanding the very thorough case put before the primary judge on means and the respondent's financial circumstances, is our view his Honour gave insufficient weight to the objective seriousness of the offence which was itself discounted too greatly by his Honour. 114 We have therefore concluded the penalty applied was manifestly inadequate having particular regard to the objective seriousness of the offence. 115 In re-sentencing the respondent, the court must have regard to the principles of double jeopardy as discussed by the Full Bench of the Court in Weathertex at [45] - [55]. This would involve the question whether we should exercise our residual discretion not to vary the sentence on appeal although we find it is not appropriate to take such a course in this case. 116 We consider the penalty in this matter should be increased but accept and apply the same discount given by his Honour for subjective matters in the order of 35 percent given the maximum penalty were $55,500. We have also had regard to the issue of the double jeopardy as discussed earlier. The respondent should pay a fine of $9,750. 56 As to the approach to costs at first instance, the Full Bench held: 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. 57 In a further written submission on 7 July 2005, leave having been granted to make such a submission, the defendants contended that given their financial circumstances as set out in the evidence, an approach similar to that taken at first instance in Wilson should be applied to them. That is, in so far as costs are concerned, the order should be 20 per cent of the prosecutor's costs. 58 Mr P Skinner of counsel for the prosecutor submitted, however, that in Wilson the Full Bench noted that the usual practice in matters of this nature was to award 100 per cent of the costs to the prosecution (see [126]) and any departure from this practice would be unusual and exceptional (see [134]). Mr Skinner also drew attention to what the Full Bench said at [109] "The respondent mounted an exceptional and well documented case before his Honour on the issue of his financial circumstances" and held that this established an exceptional hardship. 59 I consider that Wilson was an exceptional case and I am not satisfied I should, in the case of the corporate defendant, follow the approach I took there in relation to costs and penalty as amended on appeal. Moreover, it is clear that whilst the Full Bench did not find error in the approach at first instance to costs and penalty it is apparent that the Full Bench considered that approach should be reserved for unusual and exceptional cases and that the usual practice of granting 100 per cent of the costs to the prosecutor should generally be maintained. I do not consider that the exceptional circumstances I found in relation to the defendant in Wilson existed in relation to the corporate defendant in this case. 60 In relation to the personal defendant, I have some reservations about whether the exceptional circumstances in Wilson apply to Mr Skelton. Nevertheless, principally for reasons of parity because I consider the degree of criminality of each of the offenders was within the same range, and to avoid any sense of injustice arising, I consider that in relation to Mr Skelton I should take the same approach as I did in Wilson. 61 Having regard to all of the relevant circumstances I consider an appropriate penalty in the case of the corporate defendant is $75,000. In so far as the personal defendant is concerned, the penalty should be $9,750. Orders

62 The Court makes the following orders: Corporate defendant - Matter No IRC 1042 of 2004 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $75,000 with a moiety to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. Personal defendant - Matter No IRC 1044 of 2004 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $9,750 with a moiety to the prosecutor. 4) The defendant shall pay 20 per cent of the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

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[1999] NSWIRComm 343

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