Lyco Industries Pty Limited v Inspector Ruth Buggy

Crimes Act 1900 Criminal Appeal Act 1912 LEGISLATION CITED: Goods Act 1958 (Vic) Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Sales of Goods Act 1923

Daly Smith Corporation (Aust) Pty Limited & Anor v WorkCover Authority of New South Wales (Inspector Mansell) (2006) 151 IR 173 Forster v Osprey Manufacturing Pty Ltd [2003] NSWIRComm 131 Inspector Ruth Buggy v Kentan Pty Limited [2005] NSWIRComm 422 CASES CITED: Inspector Ruth Buggy v Lyco Industries Pty Limited [2005] NSWIRComm 298 Inspector Ruth Buggy v Lyco Industries Pty Limited [2005] NSWIRComm 423 Isaac, Tajeddine and Elachi (1996) 87 ACrimR 513 Johnson v Miller (1937) 59 CLR 467 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited & Anor (2000) 95 IR 383

Appellant: Mr J. Phillips SC Mr P. Sutherland of counsel Solicitors: McCulloch & Buggy LEGAL REPRESENTATIVES: Respondent: Mr R. Reitano of counsel Solicitors: Criminal Law Practice Group WorkCover Authority of New South Wales

CORAM: WALTON J, Vice President MARKS J BACKMAN J

LYCO INDUSTRIES PTY LIMITED v INSPECTOR RUTH BUGGY (WORKCOVER AUTHORITY OF NSW)

Appeal by Lyco Industries Pty Limited against judgments of Justice Schmidt given in Matter Nos IRC 5078 and 5079 of 2004

JUDGMENT OF THE VICE PRESIDENT AND BACKMAN J [2006] NSWIRComm 396

1 These proceedings involve an appeal against conviction and sentence under s 196 of the Industrial Relations Act 1996 and s 5AA(1) of the Criminal Appeal Act 1912 imposed by Schmidt J in Inspector Ruth Buggy v Lyco Industries Pty Limited [2005] NSWIRComm 298 and Inspector Ruth Buggy v Lyco Industries Pty Limited [2005] NSWIRComm 423. 2 Following pleas of not guilty to two charges under ss 18(1)(a) and 18(1)(b) respectively of the Occupational Health and Safety Act 1983 (1983 Act), her Honour found both offences proven and imposed penalties. 3 By way of brief factual background, the defendant manufactured and designed agricultural products, including a hydraulically powered post driving machine (the machine). The machine was manufactured in Victoria and ordered by Kentan Pty Limited (Kentan), a company based in New South Wales, on 16 February 1999. It was despatched on 25 February by the appellant from its Victorian premises to Kentan's premises at Hexham on the Pacific Highway. The machine was collected for transportation by a freight company, P.M.T. Thereafter, it was freighted by P.M.T. and two other carrier companies, and delivered to Kentan at its Hexham address. 4 The machine was purchased from Kentan by a Mr William Munton on 8 March 1999. Mr Munton intended to use the machine to fence his property at Millers Forest. On 23 May 1999, Mr Munton employed two farm hands, Caine Hayward and Owen Suters, to fence his property. Mr Hayward operated the machine while Mr Suters drove the tractor. While operating the machine Mr Hayward was fatally injured. Proceedings at first instance

5 The charge under s 18(1)(a) of the 1983 Act alleged that the appellant:

[F]rom 24 February 1999 to 8 March 1999 at 338 Pacific Highway, Hexham, in the State of New South Wales, did supply to Kentan Pty Limited for use by persons at work plant being a hydraulically powered post driving machine which it failed to ensure was safe and without risks to health when properly used. 6 A second charge, under s 18(1)(b), alleged that the appellant:

[F]rom 24 February 1999 to 8 March 1999 at 338 Pacific Highway, Hexham, in the State of New South Wales, did supply to Kentan Pty Limited for use by persons at work plant being a hydraulically powered post driving machine and fail (sic) to provide, or arrange for the provision of, adequate information about the plant to the person to whom it was supplied to ensure its safe use. 7 After a review of the evidence the trial judge, Schmidt J found that both charges had been made out by the respondent, the prosecutor at first instance, beyond reasonable doubt. During the course of her Honour's reasons, her Honour addressed an issue raised by the appellant that the Court lacked jurisdiction to deal with both charges because the machine had not been supplied in New South Wales. Her Honour rejected the appellant's submissions on the point. An extract of her Honour's findings in this regard are set out below:

[35] The proper construction of the word 'supplies', used in s 18(1) must be approached from a consideration of the ordinary meaning of the word, as used in its statutory context, having regard to the purpose of the provision in question. As the High Court recently observed in Network Ten Pty Ltd v Channel Nine Pty Ltd and Ors (2004) 205 ALR 1 at 4:

In Newcastle City Council v GIO General Ltd [(1997) 191 CLR 85 at 112. McHugh J observed:

[A] court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context. His Honour went on to refer to what had been said in the joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384. There, Brennan CJ, Dawson, Toohey and Gummow JJ said at 408:

It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent. [footnotes omitted]

[36] Section 33 of the Interpretation Act provides: 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

[37] In construing s 18(1) the provision made in s 18(2) may not be overlooked. The offence is not only concerned with supply in the context of a sale, but also in the case of transfer, lease and hire. In that context, the difficulty of confining the meaning of 'supplies', as used in the section, by reference to the provision made as to the time of delivery, in statutes concerned with the regulation of contracts for the sale of goods, is immediately apparent.

[38] The legislature could have made such provision directly in the Act, but has not done so. To the contrary, it has not even used words such as 'delivers' or 'delivery', but a different word, 'supplies'. In the absence of a deeming provision, which has the effect of making the time of supply the time at which goods are delivered to a carrier, in the case of delivery by carrier, I am satisfied that the ordinary meaning of 'supplies' connotes physical delivery, or the giving of physical possession of the goods to a purchaser, in the case of a sale, or a lessee, in the case of a leasing arrangement, a transferee in the case of a transfer and a hirer, in the case of a hiring arrangement. There is no supply until the goods or substance in question are in the hands of the purchaser, the lessee, the transferee or hirer.

[39] If it were otherwise, surprising consequences would follow. Designers, manufacturers and suppliers of plant and substances intended to be used by persons at work in New South Wales, would have no obligations under the section, so long as they ensured that they did not themselves deliver the plant or substance into New South Wales. Engaging a carrier would remove any liability under the Act. This appears to be entirely inconsistent with the statutory intent.

[40] On this approach, there can be no doubt that supply here occurred in New South Wales, not Victoria. 8 Her Honour also dealt with an alternative submission advanced by the appellant in relation to s 3A of the Crimes Act 1900, as it then was. After setting out the provision in full her Honour found (at [42]):

[42] One element of the offences here charged is that the plant be supplied for a particular purpose, namely for use by persons at work. It was not the defendant's case that the machine was not supplied to be used by persons at work in New South Wales. The argument turned on whether supply had occurred in New South Wales or Victoria. It follows that even if supply had occurred in Victoria, s 3A of the Crimes Act applies in this case, the provisions of s 3A(1) being satisfied. 9 A defence under s 53(a) relied upon by the appellant was found not to be established by the appellant in relation to both charges. Grounds of appeal

10 The grounds of appeal are set out in full below:

(1) Her Honour erred in finding that the "supply" of the plant took place in the State of New South Wales.

(2) Her Honour erred in construing the word "supply" so as to give it an extra territorial effect.

(3) Her Honour erred in finding that there was a territorial nexus between one element of alleged offence in the State of New South Wales.

(4) Her Honour erred in failing to apply the provisions of the Goods Act of Victoria or in the alternative, the comparable provisions for the Sales of Goods Act (NSW).

(5) Her Honour erred in construing the word "supply" contrary to the limit of jurisdiction contained within Section 3A of the Crimes Act New South Wales.

(6) Her Honour erred in law in holding that there was a territorial nexus with the State of New South Wales.

(7) Her Honour erred in holding that the purpose for which the plant was supplied constitutes an element of the offence.

(8) Her Honour erred in failing to properly construe the effect of section 3A of the Crimes Act (NSW).

(9) Her Honour erred in using section 3A when this was not relied upon by the Prosecutor.

(10) Her Honour erred in her interpretation of the section 18 of the Occupational Health and Safety Act.

(11) Her Honour erred in failing to find that once supply had taken place the offence was complete.

(12) Her Honour erred in her assessment of the nature and the quality of the offence.

(13) Her Honour erred in determining matter of totality and parity of sentencing.

(14) Three was no evidence that the plant was supplied for the purpose of use by persons at work in New South Wales.

(15) Her Honour failed to find that it was not reasonably practicable for the Defendant to provide a fully enclosed guard.

(16) Her Honour erred in finding contrary to the evidence, that there were no warnings on the machine itself.

(17) Her Honour erred in making such a finding in circumstances where no such allegation had been pleaded against the Defendant. 11 The grounds of appeal reveal considerable overlap and where this is so they will be dealt with together. The appellant's submissions both oral and written rely on three principal grounds. These are, the meaning of "supplies", as it appears in s 18 of the 1983 Act, the question of the application of s 3A of the Crimes Act 1900 to both offences, and, error or errors, alleged in the sentencing remarks. Most of the grounds of appeal may be conveniently grouped into three groups reflecting each one of the three principal grounds. Grounds 1, 2, 4, 7, 10, 11, 14

12 The first group raises the issue of the meaning of "supplies" as used in s18(1) of the 1983 Act. The appellant contends that Schmidt J was in error in finding that the supply of the machine took place in New South Wales. The submissions were advanced on the basis that the machine was supplied to Kentan in Victoria at the point when delivery was effected to the carriers, the first of which was the freight company P.M.T. According to the appellant, no supply took place in New South Wales and therefore, the requisite "territorial nexus" could not be established. This latter proposition purports to be based on the High Court authority of Johnson v Miller (1937) 59 CLR 467 at 486. In that judgment the High Court observed that a charge should plead, in addition to disclosing the elements of an offence, three essential factual ingredients of time, place and manner. The failure to state in the body of a charge any one of the essential factual ingredients constituted a defect which nevertheless was capable of rectification. The charge, when applied to the facts, was found to contain a latent ambiguity, namely a failure to specify with sufficient precision either the time at which it was alleged certain unnamed persons said to be patrons of a hotel had emerged from the hotel, or in what order those persons were said to have emerged. The latent ambiguity, or defect, was nevertheless curable by resort to amendment of the charge. The complainant, however, did not seek to avail himself of this option and instead elected to proceed upon the complaint as originally particularised. 13 In relation to the present charges it would be readily observed that both identify the time, place and manner of the alleged acts or omissions of the appellant. Nor does it appear that the evidence led before the trial judge disclosed a latent ambiguity in relation to either charge. The reliance placed upon Johnson v Miller by the appellant appears therefore to be misplaced. The real issue which the appellant raised before the Full Bench is where the supply of the machine to Kentan took place. The appellant's position, in that regard, is not that the charges fail to identify the place where the offences were said to have occurred but that they incorrectly identify the place of supply as New South Wales. 14 The appellant sought support for its proposition that the supply of the machine to Kentan was effected in Victoria from s 39(1) of the Goods Act 1958 (Vic), a similar provision to s 35 of the Sales of Goods Act 1923 (NSW). Section 39(1) of the Victorian Act provides:

(1) Where in pursuance of a contract of sale the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is prima facie deemed to be a delivery of the goods to the buyer. 15 In accordance with the terms of that provision, the appellant advances the proposition that when the carrier took delivery of the machine in Victoria the machine was deemed to have been delivered to Kentan. We would make two brief observations in relation to this proposition. First, s 39(1) makes no reference to "supply" which is a concept not necessarily used interchangeably with "delivery". Secondly, the issue of the meaning of "supplies" as it appears in s 18(1) of the 1983 Act does not fall to be determined by reference to characteristics drawn from the law of commercial contract. We agree with the approach adopted by the trial judge that the meaning of "supplies" as used in s 18 must be considered by reference to its ordinary meaning as used in its statutory context (at [35] to [38]). 16 Her Honour, in considering the meaning of "supplies" as it appeared in s 18, relied on the observations of Wright J, President, in Forster v Osprey Manufacturing Pty Ltd [2003] NSWIRComm 131. In that judgment, his Honour, the President, considered the meaning of "supplies" in the section by directing attention to s 18(2) and observing (at [28] to[30]):

[It] is instructive to examine the provisions of s 18(2) and in particular subsections (c) to (f), which provide that the obligation extends to "the design, manufacture or supply of components for, or accessories to, any plant", the supply "by way of sale, transfer, lease or hire and whether as principal or agent", the "supply ... for the purpose of supply to others" and is expressed not to be applicable to "a person merely because the person supplies the plant or substance in the course of a business of financing the acquisition of the plant or substance by a customer from another person". Each of these items is more consistent with construing the term "supply" as an individual transaction, rather than as creating some continuing and ongoing relationship between the supplier and the client. This is also consistent with the ordinary English usage of the term "supply" which is defined, for example, in The Macquarie Dictionary (Third Edition, 1997) at p2127 in the following ways:

... to furnish or provide (something wanting or requisite) ... to make up (a deficiency); ... to satisfy (a need, demand, etc) ... to fill (a place, vacancy, etc); ...

See also The Shorter Oxford English Dictionary (Third Edition, 1984 Revision) p2196.

[T]here is nothing in the terms of the section, or in the context in which it appears, which would warrant a different or alternative construction of the word "supply". The section imposes an obligation at the time the relevant "supply" occurs, and consequently, the obligation is complete or completed when the supply occurs. While the reference to supply "by way of sale, transfer, lease or hire" may require a determination, as a matter of fact, as to when the relevant transaction occurs and when, in relation to the transaction, the act or fact of supply or "supplying" occurs (and is complete) those issues do not appear to have any present significance.

[In] the present case, where the circumstances involve the outright sale of the loader (the relevant piece of plant) the "supply" would appear to be concluded, or completed at the time the particular designer, manufacturer or supplier actually supplied the relevant plant. This would usually be at the time of the actual, in the sense of the physical, delivery of the plant but could conceivably occur when the title passed, if that occurred subsequent to physical delivery. As was conceded by the prosecutor, it is unnecessary to determine exactly at what point the title in the loader passed to Namoi Cotton as, on any view, were the prosecutor to fail on his construction argument, and leaving aside at this point the warranty issue, the proceedings would be out of time. 17 In the present circumstances, the intended recipient of the machine was Kentan. An invoice from the appellant made out to Kentan, which appears in the Appeal Book, discloses that the machine was despatched to Kentan on 25 February 1999 and that Kentan purchased the machine from the appellant in an amount of $9,513.00 which included the costs of the freight. Other evidence discloses that the machine was physically delivered to Kentan at its Hexham premises. The appellant's contention that the supply of the machine to Kentan was effected in Victoria when the carrier took delivery must be rejected. On the definition of "supply" adopted by us, the supply must have occurred in New South Wales. Kentan was the intended recipient, the purchaser of the machine and took physical delivery. If the appellant's contention were accepted, all interstate suppliers of plant could evade their statutory obligations under the section to ensure the plant was safe when supplied, by simply engaging an intermediary freight carrier outside New South Wales to deliver the plant. Moreover, the construction of "supplies" which we have endorsed finds support in the extended definition of "supply" in ss 18(2)(d) and 18(2)(e). Those provisions extend the supplier's statutory obligations under the section, to the supply of plant by way of sale, transfer lease or hire, and to supply for the purpose of supply to others. This statutory context takes the definition outside of the more narrow context of physical delivery. The present facts reveal that this is precisely what occurred. The appellant sold the machine to Kentan. After taking physical delivery of the machine, Kentan sold it to the intended user, Mr Munton. 18 These grounds of appeal therefore fail. Grounds 3, 5, 6, 8 and 9. 19 Schmidt J also considered in the alternative, the application of s 3A of the Crimes Act 1900 and concluded that it must be given effect. This finding was obiter given her Honour's earlier findings in relation to the meaning of "supplies" as it appears in s 18(1) of the 1983 Act. 20 The appellant contends that her Honour was in error in finding that the section must be given effect. Her Honour found that even if the machine had been supplied to Kentan in Victoria, it was nevertheless supplied for use by persons at work in New South Wales. The expression, "for use by persons at work", her Honour found, constituted an element of the offence and was therefore sufficient to attract the application of the section. The basis of the appellant's contention is that the expression, "for use by persons at work", appearing in s 18(1) is not an element of the offence but merely a descriptive phrase qualifying the machine which has been supplied. 21 It becomes necessary to set out in full s 3A of the Crimes Act as it applied at the time of the alleged offences:

3A Territorial application of the criminal law of the State (1) An offence against the law of the State is committed if: (a) all elements necessary to constitute the offence (disregarding territorial considerations) exist, and (b) a territorial nexus exists between the State and at least one element of the offence. (2) A territorial nexus exists between the State and an element of an offence if: (a) the element is or includes an event occurring in the State, or (b) the element is or includes an event that occurs outside the State but while the person alleged to have committed the offence is in the State. (3) The existence of the territorial nexus required by subsection (1) (b) ( the necessary territorial nexus ) is to be presumed and the presumption is conclusive unless rebutted under subsection (4). (4) If a person charged with an offence disputes the existence of the necessary territorial nexus, the court is to proceed with the trial of the offence in the usual way and if at the conclusion of the trial the court, or, in the case of a jury trial, the jury, is satisfied on the balance of probabilities that the necessary territorial nexus does not exist, it must, subject to subsection (5), make or return a finding to that effect and the charge is to be dismissed. (5) If the court, or, in the case of a jury trial, the jury, would, disregarding territorial considerations, find the person not guilty of the offence (but not on the ground of mental illness) the court or jury must make or return a finding of not guilty. (6) The issue of whether the necessary territorial nexus exists must, if raised before the trial, be reserved for consideration at the trial. (7) A power or authority exercisable on reasonable suspicion that an offence has been committed may be exercised in the State if the person in whom the power or authority is vested suspects on reasonable grounds that the elements necessary to constitute the offence exist (whether or not that person suspects or has any ground to suspect that the necessary territorial nexus with the State exists). (8) This section applies to offences committed before or after the commencement of this section but does not apply to an offence if: (a) the law under which the offence is created makes the place of commission (explicitly or by necessary implication) an element of the offence, or (b) the law under which the offence is created is a law of extraterritorial operation and explicitly or by necessary implication excludes the requirement for a territorial nexus between the State and an element of the offence, or (c) proceedings are pending at the commencement of this section in relation to the offence. (9) This section is in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction. (10) In this section: event means any act, omission, occurrence, circumstance or state of affairs (not including intention, knowledge or any other state of mind). the State includes: (a) the territorial sea adjacent to the State, and (b) the sea on the landward side of the territorial sea that is not within the limits of the State. (11) If a person charged with a particular offence could be found guilty on that charge of some other offence or offences, that person is, for the purposes of this section, taken to be charged with each offence. (12) To avoid doubt, a reference in this section to a trial (whether or not a jury trial) includes a reference to a special hearing within the meaning of the Mental Health (Criminal Procedure) Act 1990 .

22 The section was considered in some detail by Hunt CJ at CL (as he then was) in Isaac, Tajeddine and Elachi (1996) 87 ACrimR 513. At 524, 525 his Honour said:

[I] turn now to s 3A of the Crimes Act . That section provides that an offence is committed against the law of this State if all elements necessary to constitute the offence (disregarding territorial considerations) exist and if a territorial nexus exists between this State and at least one element of the offence. Such a territorial nexus exists if an element of the offence includes an "event" which occurs in this State or an "event" which occurs outside the State but while the person alleged to have committed the offence is in the State, and the existence of the territorial nexus is presumed unless rebutted by the accused at the trial. An "event" is defined to mean any act, omission, occurrence, circumstance or state of affairs but to exclude intention, knowledge or any other state of mind.

Section 3A was introduced by each State and Territory, by agreement between the Standing Committee of Attorneys-General, in order to overcome the jurisdictional problems identified in Thompson . That was a case in which the appellant had been charged in the Australian Capital Territory with murder. The bodies of the two deceased were found in a motor vehicle some 45 to 50 m inside the border of the Territory near to a highway. The appellant told the police that he was driving into the Territory when he was blinded by the lights of an oncoming vehicle, as a result of which the vehicle he was driving left the road, hit a tree and burst into flames. Section 25 of the Crimes Act (NSW), which applied in an amended form to the Territory, provided in that amended form that, where the cause of death occurred outside the Territory but death occurred inside the Territory, the offence of murder may be dealt with, in all respects, as if the same had been wholly committed inside the Territory. The High Court was concerned only with proof that the death of the deceased took place inside the Territory, but there is some discussion in the judgments as to the nature of the jurisdiction to try a crime where some elements of the crime took place outside the jurisdictional area in which the charge is laid.

Section 3A resolves the problem where not all of the elements of a crime took place within this State by making the offence constituted by all the elements an offence against the law of this State provided that all those elements existed and that there is a territorial nexus (as defined) with this State. The section does not create an offence if none previously existed." 23 Adopting his Honour's analysis of the section set out above, and proceeding upon the assumption that the machine was supplied in Victoria, it must then follow, for the sake of argument, that the supply of the machine constitutes one element of an offence under s 18(1) which occurred outside the State of New South Wales. The other two elements of the offence are that the machine was supplied for use by persons at work, and that the supplier failed to ensure that the machine was safe and without risks to health when properly used. These second and third elements of an offence under s 18(1) also constitute "events" (being either acts or omissions) under s 3A which occurred in New South Wales. We do not agree that the expression, "for use by persons at work" is merely descriptive and not an element of the offence. If this were so, all plant supplied for any purpose would be caught by the section. The existence of two elements or "events" found to have occurred within New South Wales provides the requisite territorial nexus under s 3A which facilitates the finding that an offence was committed against the law of New South Wales. We should add that in our opinion, s 3A(8)(a), contrary to the appellant's contention, has no application to an offence under s 18(1) of the 1983 Act since the place in which the offence was said to have been committed is not an element of the offence, but is an essential factual ingredient which must be pleaded in a charge. 24 These grounds of appeal also fail. Grounds 12, 13, 16 and 17. 25 The appellant also contends that the penalty imposed on it was excessive when compared to the penalty imposed on Kentan. According to the appellant, her Honour erred in applying the principle of parity to the sentences of the appellant and Kentan, on the basis that, "... there should be equal justice for equal crimes". 26 We should observe at the outset that strictly speaking the principle of parity does not apply to the present circumstances since the appellant and Kentan are not co-offenders although both were charged under the same section. Different considerations, however, apply to both offenders. The appellant was the manufacturer of the machine found by her Honour to be inherently unsafe. Kentan sold the machine to Mr Munton. Nevertheless, because both have been prosecuted in relation to circumstances arising out of the same incident, the respective culpabilities of both offenders may be compared: see WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited & Anor (2000) 95 IR 383 at [103]. 27 Schmidt J accepted, on the applications of both parties in both matters, that the principle of parity fell to be applied. The sentence hearing in relation to Kentan proceeded ex parte. Any factors personal to Kentan therefore could not be taken into account in mitigation. Her Honour compared the respective culpabilities of Kentan, the appellant and Mr Munton. Mr Munton appeared on sentence and entered a plea of guilty. He was apparently convicted and fined $10,000. The sentences of the appellant and Kentan were heard on the same day. In relation to the application of parity, her Honour acknowledged the differences in the circumstances pertaining to each offender. A penalty of $100,000 was imposed on Kentan, and, a penalty of $130,000 was imposed on the appellant: Inspector Ruth Buggy v Kentan Pty Limited [2005] NSWIRComm 422 at [18]; Inspector Ruth Buggy v Lyco Industries Pty Limited at [39]. 28 Her Honour's sentencing remarks in relation to the appellant record (at [34], [35]):

[B]oth parties accepted that the parity principle must here be applied, which I also accept. I am unable to conclude, as invited by the defendant, that the employer of Mr Hayward, Mr Munton, was the most culpable for the risks here in question. True it was that he was the employer of Mr Hayward, with his own obligations for safety imposed by the Act. Nevertheless, the machine in question was inherently unsafe and the information provided inadequate - obviously so, as was accepted for the defendant. It is true that the employees Mr Munton had working the machine were inexperienced. That, of course, is always a possibility where such a machine is sold in the marketplace by a manufacturer such as the defendant. In any event, the charge is concerned with the risks to safety in question, namely that relating to the machine itself and the information supplied with it, not what in fact happened to Mr Hayward.

[O]therwise, so far as parity is concerned, account must be taken of the differing charges laid against the other defendants and the circumstances in which they came to be dealt with by the Court. Mr Munton pleaded guilty and the charge against Kentan proceeded ex parte. The judgments dealing with these defendants indicate the differing facts and other matters which accordingly arose for consideration in their cases, which do not arise here. I have taken account of these various matters in determining penalty. 29 In relation to Kentan and the application of the parity principle on sentence, her Honour said (at [15]):

[I]n terms of parity it is relevant that in the case of the other two defendants, they each appeared and advanced relevant subjective matters to be taken into account, as well as leading evidence as to their financial circumstances. Mr Munton entered a plea, Lyco unsuccessfully defended the charges laid against it. These matters all impacted the penalty imposed on those defendants and there are differences necessary to be taken into account, in determining penalty here, this defendant not having entered a plea, nor having appeared to defend the charges. As far as parity is concerned, it is relevant that I note that the view to which I came on the evidence, in terms of culpability, was that Lyco, the manufacturer of what was on any view an inherently unsafe piece of equipment, which was (sic) provided with (sic) inadequate information to ensure safety, must be regarded as having the greatest culpability. 30 We can discern no error in her Honour's assessment that the appellant's culpability in relation to the circumstances of the offence was greater than the culpabilities of the other two offenders. Her Honour's assessment proceeded on the basis that the appellant manufactured the machine which was inherently unsafe and provided information which, from the perspective of safety, was inadequate. As the Full Bench observed in Daly Smith Corporation (Aust) Pty Limited & Anor v WorkCover Authority of New South Wales (Inspector Mansell) (2006) 151 IR 173 at [76]:

... The proper exercise of the sentencing discretion requires considerable experience and skill. The difficulties which may be encountered by sentencing judges within the sentencing process was recently the subject of judicial comment in Markarian v R (2005) 215 ALR 213 per McHugh J who said at [65]:

"Unfortunately, discretionary sentencing is not capable of mathematical precision or, for that matter, approximation. At best, experienced judges will agree on a range of sentences that reasonably fit all the circumstances of the case. There is no magic number for any particular crime when a discretionary sentence has to be imposed." 31 We would add to these observations that the penalty differential in our view, was not so great as to give rise to any real disparity. This is particularly so given that the maximum penalty faced by each offender was $550,000. Penalties imposed of $130,000 and $100,000 were well within the range of penalties that may be imposed and within the exercise of her Honour's sentencing discretion. 32 The appellant also contends that her Honour erred in the sentencing process by taking into account a factor regarding the failure to have a warning sign on the machine because the evidence revealed that a warning sign was present on the machine. This contention however appears to ignore her Honour's sentencing remarks in which her Honour expressly said that she accepted a submission made by the appellant that there was a warning on the machine alerting operators to safety risks in its operation: at [33]. 33 Accordingly, these grounds of appeal also fail. Ground 15. 34 We should add by way of final comment that the appellant's Ground 15 was not advanced by the making of any submissions, either written or oral, by either party. In the absence of any submissions as to whether or not her Honour, "failed to find that it was not reasonably practicable for the defendant to provide a fully enclosed guard", we are unable to consider whether this ground has been made out. A reading of her Honour's judgment on liability however suggests that, contrary to the allegation contained in the ground of appeal, her Honour did not fail to make the finding. At [45] of the judgment, her Honour said:

[G]iven the earlier design of the guard, it cannot be concluded that it was not 'reasonably practicable' for the defendant to have complied with the requirements of s18. That the WorkCover Authority has not taken steps to issue improvement or prohibition notices in relation to the machine, cannot take away from this conclusion. 35 This ground, to the extent proved, must also fail.

2. The appellant is to pay the respondent's costs of the appeal as agreed or in default of agreement as assessed by the Court. JUDGMENT OF MARKS J 37 In these appeal proceedings I have had the advantage of reading the draft judgment of Walton J, Vice-President and Backman J. I agree in general terms with their Honours' reasoning and the proposed disposition of the appeal. 38 I wish, however, to make some brief observations of my own. 39 The proceedings of first instance and on appeal revolve substantially around the provisions of s 18 of the Occupational Health and Safety Act 1983 ("the Act") which is in the following terms:

18 Designers, manufacturers and suppliers to ensure health and safety as regards plant and substances for use at work

(1) A person who designs, manufactures or supplies any plant or substance for use by persons at work must: (a) ensure that the plant or substance is safe and without risks to health when properly used, and (b) provide, or arrange for the provision of, adequate information about the plant or substance to the persons to whom it is supplied to ensure its safe use.

(2) The obligations under this section: (a) apply only if the plant or substance is designed, manufactured or supplied in the course of a trade, business or other undertaking (whether for profit or not), and (b) apply whether or not the plant or substance is exclusively designed, manufactured or supplied for use by persons at work, and (c) extend to the design, manufacture or supply of components for, or accessories to, any plant for use by persons at work, and (d) extend to the supply of the plant or substance by way of sale, transfer, lease or hire and whether as principal or agent, and (e) extend to the supply of the plant or substance to a person for the purpose of supply to others, and (f) do not apply to a person merely because the person supplies the plant or substance in the course of a business of financing the acquisition of the plant or substance by a customer from another person.

(3) In this section, manufacture plant includes assemble, install or erect plant.

Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. 40 The factual situation is within a short compass. The appellant Lyco Industries Pty Ltd ("Lyco") manufactured a hydraulically powered post-driving machine. Kentan Pty Ltd ("Kentan") of Hexham, in New South Wales, placed an order from Lyco for one of those machines on 16 February 1997. Delivery of the machine was to be made by Lyco to Kentan. Lyco invoiced Kentan for the machine. The invoice included "carrier details" which named various carriers who would transport the machine from its place of manufacture in the State of Victoria ultimately to Kentan at Hexham. 41 The appellant argued that the supply of the machinery did not take place in New South Wales but in Victoria, when it caused the machinery in question to be delivered to the carrier, also in Victoria, for ultimate transportation by that carrier and other carriers to Hexham in New South Wales. 42 The question is whether or not the equipment was supplied by the appellant in New South Wales for use by persons at work in New South Wales. 43 Without traversing in detail the authorities referred to in the judgment of Walton J, Vice President and Backman J, I observe that, in a general sense, to "supply" something is to make it available to someone else. It is quite clear, in my opinion, that the appellant made the equipment available to Kentan in Hexham, New South Wales by arranging for its delivery in New South Wales. That s 18 of the Act is intended to apply this way is, in my opinion, abundantly clear when one has regard to the provisions of ss (2)(d) and (e). Subsection (2)(e) in particular contemplates that there will be a supply chain through others. 44 Accordingly, it is unarguable that the appellant supplied the equipment in New South Wales when it arranged for it to be delivered to Kentan in New South Wales. 45 In my respectful opinion, questions of the application of Sale of Goods legislation and when title passes and who assumes the risk of delivery are all irrelevant to the question as to whether or not, as a matter of fact, a defendant has made plant available in New South Wales for use by persons at work. 46 Having regard to these matters and having regard to the remainder of the matters set out in their Honours' judgment, I agree that the appeal must be dismissed. I would join in the orders proposed by their Honours. _____________________

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