Morris McMahon & Co Pty Limited v SafeWork NSW

Court of Criminal Appeal (NSW)|2019-02-11|Before: Hoeben CJ, Schmidt J, Adamson J

This ground cannot succeed

Russell DCJ's reasons, fairly read, do not permit of the conclusion that his Honour failed to take into account any relevant matter, or that the conclusions which he reached as to the objective seriousness of the offence were not open on the evidence. To the contrary, the evidence which his Honour discussed in detail and in light of which his conclusions must be understood, well demonstrated that there was a proper basis for them.
In Riley it was observed at [15], in relation to the predecessor legislation, the Occupational Health and Safety Act 2000 (NSW), that employers were required to be diligent and proactive to ensure the safety of their employees and that their obligations were not displaced, because of error or negligence by an employee, although that may reflect on the degree of the employer's culpability. In Capral Aluminium Limited at [82], it was held that the existence of a reasonably foreseeable risk of injury, will result in an offence being found to be more serious. In Tyler v Sydney Electricity (1993) 47 IR 1 it was observed at 5, that the gravity of the consequences of an accident does not, of itself, dictate the seriousness of a particular offence. It is the gravity, or otherwise, of the potential risk to safety flowing from a breach of the statutory obligation, which is relevant to the assessment of the gravity of the offence and the culpability of the offender.
When it is offences under the Act which now arise for sentence it must be borne in mind, however, that the nature of the duty imposed by s 19 to ensure health and safety is different to that which was imposed by the predecessor legislation. That is the result of the introduction of the concept of what is "reasonably practicable", defined in s 18. This reflects the adoption in this State of the outcome of a national review of work health and safety legislation: see Agreement in Principle speech Parliamentary Debates (Hansard), 6 May 2011 at 223.
In Silver City, Basten JA thus observed as to the proper approach to sentencing for offences under the Act that: "53 It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
Contrary to the applicant's case, there was no error in Russell DCJ's consideration of these matters.
The applicant's case was essentially that its offence was objectively less serious than that dealt with in Silver City, even though both offences were found to have fallen within the mid-range. But the comparison which the applicant sought to make was inapt. That is because while comparable cases may serve as "yardsticks", where the objective circumstances of the crimes or the subjective circumstances of the offenders are so distinguishable as to render the decision irrelevant, they cannot be relied on in the way for which the applicant contended: R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [29].
The offence in Silver City involved a failure to carry out a risk assessment in a mining operation, when available steps to secure a pipe were not taken, which resulted in a worker suffering even greater injury than that which Ms Klimoska suffered, when the risk there in question materialised. Those circumstances were so different to what was involved in the applicant's offending, as to preclude sensible comparisons being drawn, when the objective seriousness of the applicant's offence was assessed.
If comparisons were to be drawn with the objective seriousness of other offending, it is cases involving the operation of other unguarded machines which put operators' safety at risk, of which there are many, which might have been of some assistance. But no such cases were sought to be relied on, either on sentence or on this application.
It should also be borne in mind that in Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266, where the Court declined to intervene to increase the sentences there in issue, even though they were found to be manifestly inadequate, it was explained at [82]: "... although it is conventional practice to divide objective seriousness into low, mid and high ranges (sometimes with further detail, such as "near the top of the low range") there is no clear delineation of the scope of each range and it cannot be assumed that all judges apply the terminology uniformly. Accordingly, there is a difficulty in drawing firm conclusions from the penalties with respect to each range. … to identify a standard range of penalties merely by reference to an assessment of objective seriousness is to discount the importance of other considerations, including evidence of steps taken to adopt better practices since the time of the offending."
As to Nash, where the fines imposed on the two offenders before discount were $230,000 and $240,000, the offences involved an oversight during maintenance procedures when a bolt was not replaced on a piece of machinery. In observations on which the applicant relied, I concluded at [89]-[92]: "89 The defendants' moral culpability for their offences was no doubt less than it would have been, had they not devised an extensive, albeit somewhat deficient, paper safety system which nevertheless, had it been properly adhered to, would have ensured safety. This was certainly not a case where the defendants were paying mere lip service to the important obligations which this legislative scheme imposed upon them, as has been established in other cases. 90 On the evidence it must, however, be concluded that their culpability was more significant than they accepted, given the agreed deficiencies of their systems and their implementation. 91 There were available steps which could and ought to have been taken beforehand, given the deficiencies of the paper system and employees' adherence to it, in practice, at this dangerous workplace. Had they been taken, they would have precluded this most serious of all risks to safety from materialising. 92 The agreed facts thus establish that the defendants had considerable culpability for this offending."
The evidence in this case also established that the applicant had in place a safety system for its maintenance procedures, which the incident revealed to be deficient. Further, that while it also had not paid mere lip service to its obligations to ensure safety, it had failed to ensure that important aspects of its system were observed. Even though a corporation can only act through its employees, those failures were ones for which the applicant was responsible, not its employees, as entry of its plea properly acknowledged.
The evidence also well established that the applicant had not done what was reasonably practical, in the circumstances, to ensure the health and safety of those like Ms Klimoska, whom it engaged to operate the press, its failures having permitted that press to be operated unguarded as it was.
In assessing the objective seriousness of the applicant's offence, it was thus relevant for his Honour to take into account that not only had the applicant actually foreseen the risk of very serious injury resulting, if the press was operated without the guards in place, but that it had also foreseen that even an experienced setter such as Mr Kamal might inadvertently overlook reinstalling the guards, after performing maintenance work.
Its system thus also sought to address this possibility, but it proved to be inadequate.
It was Mr Lynch's evidence that the system involved a supervisor checking the press, before it went back into operation, but on the day Ms Klimoska was injured Mr Kamal's supervisor was absent and his duties then also fell to Mr Kamal. The result was both that his work was not checked by a supervisor, to ensure that he had reinstalled the guards as the system intended, before the press was operated and that it was he who then instructed Ms Klimoska to operate the press, his error not having been detected by him or anyone else.
What was not in place was a documentary system, such as a written checklist, which might have enabled a setter's oversight to have been detected, even if a supervisor was not present to check the work.
The press being operated unguarded was thus not just the result of Mr Kamal's inadvertence during the maintenance work which he performed, but also of the applicant's failure to ensure that its system was not only operating, but was capable of ensuring safety, if a supervisor was absent.
The applicant's written procedure for operation of the press did include the 5 second test, intended to be undertaken by an operator before the press was used, in order to ensure that the guards were in place whenever it was operated. But that test was not conducted, Ms Klimoska not having been trained to perform it. Had it been, the risk would also not have materialised.
Mr Lynch's evidence was that the system provided for a supervisor to train operators in safe operation of the press, but it was another operator who had trained Ms Klimoska. It was not the applicant's case that this operator had been trained in the written procedure or the 5 second test, but had simply failed to give Ms Klimoska the required training.
It follows that the evidence also established that it was the applicant which had not ensured that this other aspect of its system, training of operators by a supervisor in implementation of the crucial 5 second test, was implemented. The result was that Ms Klimoska did not know that her safe operation of the press depended on undertaking the 5 second test, before it was operated.
Undoubtedly, the applicant relied on its employees to perform the work they had been trained to undertake, but still it had to meet the duties which the Act imposed upon it. While duties as to health and safety are imposed on workers by s 28 of the Act, s 14 precludes one person from transferring its statutory duties to another person and even the same duty can be imposed on more than one person: s 16.
As the applicant accepted by its plea, in the circumstances, any negligence on the part of its employees did not reduce the objective seriousness of its offence, given the deficiencies of its system and its failures to ensure that it was fully implemented.
That the system which the applicant had devised did not prevent the risk which flowed from unguarded operation of the machine materialising, even though it had a prior record of offences involving injuries caused when a press was operated, was also relevant. As was the evidence which established that there were available and suitable ways in which the risk could have been eliminated.
The evidence was that before the incident the applicant had placed an order for a press which could not be operated unguarded, albeit that was not for reasons of safety. That new press was later installed, but even beforehand the applicant altered its system in order to address the deficiencies which its investigation of the incident had identified. This confirmed that at the time of the offence, the applicant's system was not adequate to meet the duty to ensure safety which the Act imposed upon it.
There was simply no error in Russell DCJ's consideration of the evidence which established the objective seriousness of the applicant's offence or that he failed to pay necessary regard to the matters on which the applicant relied to advance this ground. His Honour's conclusion that the applicant's offence fell within the mid-range, was well open.
It follows that this ground must fail.

Ground 2 - mitigating matters

Under the heading "Mitigating Matters" Russell DCJ referred to matters arising under s 21A of the Crimes (Sentencing Procedure Act) 1999 (NSW), taking into account that the applicant was otherwise of good character, as demonstrated by the steps which it took after the incident. His Honour also noted that the applicant provided employment for a large number of people, but that it did not have an unblemished record, including as it did previous incidents with the press. But that was not taken into account as an aggravating matter. Nor was the fact that the injury caused to Ms Klimoska was substantial.
His Honour also accepted that despite its record, the applicant had good prospects of rehabilitation, given the positive steps it had taken to guard against the risk materialising again. Remorse and an acceptance of responsibility for its actions and an acknowledgment of the injury caused the victim were also taken into account, as was entry of the plea and the assistance given to law enforcement agencies and the prosecutor.
The applicant's case was that even if the matters relied on to advance ground 1 were not accepted, so that the conclusion that the offence fell within the mid-range was not disturbed, proper account not been taken of those matters, when his Honour considered mitigating matters.
I am also satisfied that this cannot be accepted.
The matters on which the applicant relied in respect of ground 1 did not arise to be considered in the way for which the applicant contended, given what I have already discussed, because they simply did not mitigate the applicant's culpability for its offence.
In any event, his Honour's judgment fairly read as it must be, reveals that he did take proper account of the evidence as to these matters in arriving at the views which he formed about the applicant's safety system; how it was implemented; how the risk materialised; how the applicant's investigation resulted in changes to its system, to address the deficiencies which had been identified; and in the conclusions which he reached about its moral culpability for that offending.
Accordingly this ground must also fail.

Ground 3 - manifest excess

I am also satisfied that this ground was not made out.

The applicant's case

By comparisons sought to be drawn with the sentences imposed in Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 and Silver City, the applicant contended that the sentence imposed upon it was manifestly excessive and not proportional to the offence it had committed.
In oral submissions it was argued that these comparisons established that the applicant's offence should have been dealt with as "a 10% case as a starting point", that is "10% of the most serious case, not 17 or 20%" as Russell DCJ found.
The submission was supported by the contention that the sentence imposed in Silver City, which had as its staring point $250,000, was a yardstick against which sentences now had to be arrived at. Its offence being much less serious than that dealt with in Silver City, a much lower sentence should have been imposed upon it than the sentence which Russell DCJ imposed, that having as its starting point only $240,000.
In the result, it was submitted, the sentence which was imposed was manifestly excessive

This ground also cannot succeed.

Manifest excess is a conclusion which does not depend on specific error being established: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA at [6]. Nor may it admit of amplification, except by stating the respect in which the sentence is inadequate or excessive.
The submission which the applicant advanced by reference to a "10% case", did not pay necessary regard to the way in which a sentencing judge must, in every case, arrive at the sentence imposed. That is, by considering all of the relevant factors, both of evidence and principle, which arise to be considered and then making a value judgment as to the appropriate sentence, by way of the instinctive synthesis discussed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
In that exercise, while it is important for account to be taken of previous cases, not just what was done, but why it was done must also be taken into account. It is consistency in the application of legal principles, not some numerical or mathematical equivalence in sentence, which must be achieved by that exercise: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [18]. The result should be that like cases are decided alike and different cases are dealt with differently: at [49].
Thus past sentences can stand as a yardstick against which a proposed sentence can be measured: at [54]. But intervention will not be warranted, unless it can be concluded that in all of the circumstances of the offence in question, there must have been some misapplication of principle, in arriving at the sentence which was imposed: at [59].
It follows that a sentence cannot be shown to be manifestly excessive, by a limited comparison with other sentences of the kind which the applicant here advanced: Dyno Nobel Asia Pacific Pty Ltd v Environment Protection Authority [2017] NSWCCA 302 at [48]. Further, what was advanced in relation to the sentence imposed in Silver City, raised for consideration what was decided in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41, to which I will return.
In Bulga it was an offence under the predecessor legislation, s 8(1) of the Occupational Health and Safety Act, which arose to be considered.
The risk in question had materialised when a worker was struck and seriously injured by a piece of rock that had come from a rock face being mined by use of a shearer. That had resulted from what was found to have been "an extremely improbable sequence of events", where the appellant was acutely aware of and concerned with the safety of its operations; had established and maintained a well-developed and robust health and safety management system and a record, which to that point, was unblemished: at [166]-[167].
Still the challenge to the finding that the objective seriousness of the offence, whilst below the mid-range, but not at the lowest degree of guilt, failed.
As to the sentence imposed, it was observed: "206 Whilst the objective seriousness of the offence was below the mid-range it was not at the bottom of the range. Whilst the appellant's systems, approach to safety and its record meant that the case was an exceptional one as far as specific deterrence was concerned, general deterrence was a matter of considerable significance. Further, the appellant's lack of remorse for the incident which seemed to derive from a belief that it had done everything it reasonably should have, is a matter that must be reflected in the penalty. 207 In our opinion and having in mind that the appellant is being resentenced after a successful Crown appeal the appropriate penalty is a fine of $100,000."
The applicant's case was that the outcome in Bulga sat uncomfortably both with the finding that it had committed a mid-range offence and with the sentence imposed upon it. That cannot be accepted.
Unlike the offender in Bulga, the particulars of the applicant's offence were established on the evidence; the risk which operation of the unguarded press posed did not materialise as the result of an extremely improbable sequence of events, but was foreseen; there were deficiencies in the applicant's safety system, which it also did not adequately implement; and it did not have an unblemished record, to the contrary, it had a record of relevant prior offending. It followed, as his Honour found, that both specific and general deterrence had a role to play in the sentence imposed on the applicant.
It follows that a comparison between the fine imposed in Bulga with the starting point for the applicant's fine, does not support the conclusion that the sentence imposed on the applicant was manifestly excessive.
In reaching that conclusion it is necessary to take into account that the $100,000 fine imposed in Bulga for its below mid- range offence was arrived at when the maximum penalty for its offence was $550,000, it being a first offence. That which applied to the applicant's mid-range offence was $1.5 million and yet it was arrived at from a starting point of $240,000.
That the duty imposed by s 19 was different to that imposed under the predecessor legislation and that the penalties imposed by s32 for breach of that duty were significantly higher than those imposed by the predecessor legislation, must also be taken into account. That increase was introduced in order to reflect "the strength of this legislation as a deterrent to conduct that endangers health and safety.": Agreement in Principle speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 May 2011 at 223.
As to Silver City, reliance was placed on the fact that it was risk of death which had there materialised and resulted in rendering a worker a tetraplegic, but the fine imposed for what was also found to have been a mid-range offence, had as its starting point $250,000, not much greater than the starting point in the applicant's case, of $240,000, even though Ms Klimovska had suffered much less serious injury.
The applicant thus contended that the starting point for its fine was too high, submitting that while the pleaded risk was that of death or serious injury, as a matter of probability it was risk of injury, rather than death which had arisen.
This comparison also does not establish that the applicant's fine was manifestly excessive.
In Silver City the nature of the statutory scheme was considered. Basten JA observed. "54 … it is important to emphasise that the proportionality of the sentence should depend upon an assessment of the particular offence in the context of the penalties imposed by the Act. As noted above, the Act provides a gradation rising from category 3 through to category 1, in order of seriousness. In addressing a category 2 offence, attention must be paid to the nature of the conduct which could have led to the employer being charged with a category 1 offence (namely reckless disregard as to the risk to the individual of death or serious injury), combined with a lack of reasonable excuse for engaging in such conduct. Serious derelictions of duty, which do not reach that standard, will constitute the high end of objective seriousness for category 2 offences. That factor is to be considered in the context of a category 2 offence which must, to qualify as such, involve conduct which exposes the individual to a risk of death or at least serious injury or illness. 55 By contrast, a category 3 offence may involve a dereliction of duty, varying from the casual to the deliberate, but in circumstances where no individual is exposed to a risk of serious injury or illness. 56 Once the nature of the gradation is borne in mind, the relevance of the maximum penalties may be appreciated."
These observations were directed to ss 31 to 34 of the Act, which relevantly provide: "31 Reckless conduct - Category 1 (1) A person commits a Category 1 offence if: (a) the person has a health and safety duty, and (b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness, and (c) the person is reckless as to the risk to an individual of death or serious injury or illness. Maximum penalty: (a) in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking) - $300,000 or 5 years imprisonment or both, or (b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking - $600,000 or 5 years imprisonment or both, or (c) in the case of an offence committed by a body corporate - $3,000,000. (2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse. 32 Failure to comply with health and safety duty - Category 2 A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness. Maximum penalty: (a) in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking) - $150,000, or (b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking - $300,000, or (c) in the case of an offence committed by a body corporate - $1,500,000. 33 Failure to comply with health and safety duty - Category 3 A person commits a Category 3 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty. Maximum penalty: (a) in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking) - $50,000, or (b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking - $100,000, or (c) in the case of an offence committed by a body corporate - $500,000."
It can be seen that the differences between the penalties imposed by the Act is that the highest penalties attach to conduct proven to have exposed an individual to whom that duty is owed to a risk of death or serious injury or illness, where the offender was reckless as to that risk. The lowest penalties attach to conduct proven to have involved only a failure to comply with the duty.
The offences which arose for sentence in both Silver City and the applicant's case involved conduct proven to have involved a failure which exposed a worker to risk of death or serious injury or illness. They both thus attracted the maximum penalty fixed by s 32 for a corporate offender, $1.5million. On sentence that maximum had to be taken into account in the way discussed in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.
In Muldrock error in the resentencing process undertaken on appeal was established, because the appellate court had not started with the maximum penalty for an offence involving the quantity of drug in question, but had rather used another maximum penalty, as its starting point. It was there observed at [31]: "The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence. An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased." [footnote omitted]
It follows that the fact that maximum penalties fixed by the Act have been significantly increased by the Legislature is not only relevant when comparisons are sought to be drawn with sentences imposed under the predecessor legislative scheme. Those increases must also be taken into account when sentences are imposed for offences against s 19 of the Act
As to the use sought to be made of the sentence imposed in Silver City, as imposing a constraint when other offenders are sentenced, it must be remembered that in Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31, it was observed at [27]: "27 The suggestion that the court's sentencing discretion is subject to constraint requires examination. Plainly enough, the "constraint" on the court's discretion that is said to arise from the exercise of the prosecutorial discretion is the maximum penalty for the offence charged. The maximum penalty is one of many factors that bear on the ultimate discretionary determination of the sentence for the offence. It represents the legislature's assessment of the seriousness of the offence and for this reason provides a sentencing yardstick. Commonly the maximum penalty invites comparison between the case with which the court is dealing and cases falling within the category of the "worst case". As explained in Markarian v The Queen, for these reasons careful attention is almost always required to the maximum penalty. However, this is not to suggest that consideration of the maximum penalty will necessarily play a decisive role in the final determination. As also explained in Markarian, in some instances - as where the maximum sentence was fixed at a very high level in the 19th century - reference to it may be of little relevance. As this Court has explained on more than one occasion, the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion. It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted." [footnotes omitted]
In Silver City, Basten JA took the view that: "57 For the reasons explained above, a proper assessment of the conduct of the respondent warrants the conclusion that it was in the mid-range for severity with respect to a category 2 offence. Accordingly, it required a significantly larger fine than that imposed by the sentencing judge. In that regard, the maximum penalty (a fine of $1.5 million) is an important, though not determinative guidepost, as is the maximum penalty for a category 3 offence ($500,000).
What his Honour so observed cannot be understood as having intended any departure from what was decided in Markarian or Elias, as to the attention which must be paid when the sentencing discretion is exercised, to the maximum penalty imposed by s 32 for a category 2 offence.
In Silver City Basten JA also observed: "58 Two factors would indicate that, objectively speaking, the fine should not be at or above the half-way point of the range available. The factors are related. First, the fine will apply to corporate employers of wide-ranging size and ability to absorb a fine. That which would hardly be noticed in the balance sheet of a large corporation may push a smaller corporation to the verge of insolvency, or over. Secondly, it is possible to be satisfied in the case of a small corporation that changes in management practice may diminish significantly the need for individual deterrence. That may not be so powerful a factor with a large corporation which will rely upon general systems and the quality and diligence of its supervisory officers."
There, unlike in the applicant's case, the requirements of s 6 of the Fines Act 1996 (NSW) arose to be considered, the sentencing judge having concluded that the sentence should not be reduced, despite the evidence led on that issue: at [27]. Basten JA's observations at [58] cannot be understood as having intended any departure from the requirements of that section.
In Unity Basten JA observed: "79 Apart from the factors already considered, it is necessary to address any questions raised at the sentencing hearing as to capacity to pay. Such questions arise in two ways. First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to "the means" of the defendant, pursuant to s 6 of the Fines Act 1996 (NSW). The sentencing judge found that Hanna Plumbing and Unity each had "a reduced capacity to pay a fine", [43] but appears to have fixed the level of the fine primarily by reference to the culpability of the defendants."
This reflects that on sentence evidence of an offender's subjective circumstances must always be taken into account in arriving at the fine which is imposed. In the case of corporate offenders, such evidence may concern the industry in which the offender is engaged and where they operate; its size and financial circumstances; its management structures and the number of employees and other workers who it engages; its criminal record and corporate character; how it has treated any injured worker; and how it may have rectified deficiencies in its safety systems.
If evidence as to an offender's means is led, however, it must be dealt with in accordance with the requirements of s 6 of the Fines Act, which provides: "6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount."
While such evidence will be in the hands of an offender, it could conceivably be led by a prosecutor and its consequences may or may not be in issue. What is found on such evidence must be taken into account in arriving at the sentence, together with all of the other matters relevant to the court's determination of the fine to be imposed on the offender. That will include both the other evidence led and all of the principles which govern the sentencing exercise.
If it is concluded that the evidence establishes that an offender's financial resources will result in the penalty imposing a considerable burden, for example pushing a smaller corporation to the verge of insolvency, or over, as Basten JA discussed in Silver City at [58], that must be taken into account in arriving at the fine imposed.
But while the result of that consideration may be that a lower penalty than that which would otherwise have been imposed will be arrived at, that will not necessarily be the result. That is because consideration of evidence of means is a relevant, but not decisive matter and in the particular case, a fine may need to be increased, rather than decreased because, for example, of the need to deter the offender: Mahdi Jahandideh v R [2014] NSWCCA 178 at [16]-[17].
Even if the fine imposed is lower than it would otherwise have been in the absence of evidence as to means, that will not preclude a substantial fine being imposed. That is because every sentence must be determined in light of the applicable maximum penalty and the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act, which includes the statutory expression of the principle of proportionality, that is, that the punishment must fit the crime. The section provides: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."
In the applicant's case, while there was evidence as to its circumstances, no issue as to its means arose to be determined. That was thus another relevant point of distinction with Silver City, where there was evidence that the offender's financial position involved a net shortfall and that it was continuing to trade with the support of a director. There were also other relevant differences in the applicant's circumstances, including as to its serious prior record.
That the starting point for the fine imposed upon the applicant was only $10,000 lower than that imposed in Silver City, thus cannot reveal error, reflecting as that did the views which Russell DCJ reached about the objective seriousness of the applicant's offence, its moral culpability, its subjective circumstances and of other relevant matters which arose for consideration, including the need for deterrence.
That exercise was simply not governed by the sentence imposed in Silver City, as the applicant contended, that case not having established a sentencing practice.
It should also be observed that in Dalgliesh the care with which sentences imposed in other cases must be approached arose for consideration again, there in the context of an appellate court's adherence to developed sentencing practice for a particular offence.
It was there concluded that current sentencing practices for that offence did not reflect its objective gravity: at [53]. The obligation in every case was explained to be that the sentencing judge impose a just sentence on the offender, as the result of the exercise of judicial discretion, by application of established principle to the evidence, so that the administration of the criminal justice system is systemically fair and applied with reasonable consistency, albeit over time views may change about the length of sentences which should be imposed in particular cases: at [48]-[49].
Thus it was concluded that the appellate court having there found that the sentence in issue was manifestly disproportionate to the gravity of the offending and the offender's moral culpability, so as to bespeak an error of principle, it was the court's proper function to correct that injustice: at [63]. That had not been achieved by the appellate court's conformity to past sentencing practice.
Developing sentencing practice for s 32 offences arose for consideration in Unity, where the sentences imposed on the three offenders were $4,250 in one case and $10,000 in the other two. They, it was concluded, were manifestly inadequate and "should not be accepted as demonstrating an appropriate range in future cases": at [103].
Penalties imposed by the District Court in 2017 and 2018 in 38 cases were considered, the majority having involved pleas of guilty for which discounts were allowed: at [77]. It was also there observed by Basten JA. "... Those assessed by the sentencing judges as being in the "low range" of objective seriousness involved penalties ranging from $42,400 to $90,000. For those assessed as being in the mid-range, penalties ranged from $75,000 to $500,000. Three cases involving work on construction sites were assessed as being in the high range, with penalties ranging from $412,500 to $1 million."
It was SafeWork's case that neither the sentence imposed in Silver City nor this sentencing range, supported the conclusion that the fine imposed for the applicant's mid-range offence was manifestly excessive. Furthermore, that the highest penalty imposed for a mid-range s 32 offence being only $500,000, appeared to be "remarkably low", given the maximum applicable penalty of $1.5 million, notwithstanding that account always had to be taken of the size of the offender being sentenced.
Support for that submission can be found in the penalty of $100,000 imposed in Bulga, where the maximum penalty was but $550,000 for an offence which fell below the mid-range and where the risk which materialised was found to have been 'extremely improbable''. Had that been a second offence, the maximum penalty would have been $825,000 and the sentence imposed would thus have necessarily been higher: s 12 Occupational Health and Safety Act.
Dalgliesh requires that consideration be given to whether sentencing practice adheres to what was decided in Markarian, given the increased maximum penalties introduced by the Act, which must properly be reflected in the sentences which are imposed, be considered. The thirty eight cases referred in Unity, is not many upon which to form views about whether current sentencing practice accords with the Legislature's view about the objective gravity of offences under the Act, reflected in the increased maximum penalties imposed for such offending.
Were the role which the applicant contended the sentence imposed in Silver City has to play in the development of sentencing practice under the Act to be accepted, that would be contrary to what was decided in Dalgliesh. That is but another reason for rejecting the case which the applicant advanced.
In any event, the fine imposed on the applicant for its mid-range offence, committed in the context of a risk of serious injury which was not only foreseeable, but which it had foreseen and which materialised in Ms Klimoska's right hand being seriously and permanently injured, was very far even from the top of the range of sentences for mid-range s 32 offences discussed in Unity, of $500,000.
That makes it impossible to conclude that the sentence imposed upon the applicant was manifestly excessive, given that the applicable maximum penalty for its offence was $1.5 million.
No error of principle in Russell DCJ's instinctive synthesis of all of the matters which his Honour discussed has been identified or established. Nor is it open to conclude that the fine imposed on the applicant was manifestly excessive, given the nature and seriousness of its offence, its moral culpability for that offending or its subjective circumstances, which clearly called for a substantial fine to be imposed upon it, which reflected necessary elements of both general and specific deterrence.
Accordingly this ground must also fail.

Orders

The orders which I would make are thus: 1. Leave to appeal granted. 2. Appeal dismissed.
ADAMSON J: I have had the benefit of reading the draft judgment of Schmidt J. I agree substantially with her Honour's reasons with respect to grounds 1 and 2. I agree that ground 3 has not been made out. It was open to the sentencing judge to impose a penalty of that magnitude having regard to all the objective and subjective matters to which his Honour referred. I would prefer not to express a view on what Basten JA said in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [59] since it neither arose nor was fully argued in the present application. I agree with the orders proposed by Schmidt J.

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Occupational Health and Safety Act 2000(NSW)

Grounds of Appeal

The grounds of appeal which the applicant now seeks to advance are: "1. The sentencing judge was in error in concluding that the offending fell into the mid-range of objective seriousness when he ought to have found that it fell into the low range, having regard to the fact that: a. The appellant had in place a system to eliminate or minimise the risk to health and safety which was overlapping and which if followed would have been effective to protect the operator of the press in question. The system is described in the "Agreed Statement of facts" and in the evidence called in the appellant's case. That the system in place would have been effective to eliminate the risk or at least to minimise the risk should have been taken into account in favour of the appellant and reduction of the objective seriousness of the offending. The system that was in place included the following elements: (i) The press had two guarding systems which interlocked with the operating mechanism of the press, one mechanical the other pneumatic which operated independently of each other, either one of which, if connected, would have prevented the injury to the operator; (ii) The employee who reset the machine was well qualified and had responsibility for reconnecting the two interlocking guards and testing them without explanation failed to reconnect the interlocking guards or to test them before assigning the operator to work on the press. This was contrary to his responsibility, training and experience. (iii) Had the work by the setter been completed prior to the commencement of the shift rather than during it the setter would have been required to complete a check list certifying that the guarding was in place. The checklist is recorded on a card attached to the press. (iv) The appellant had in place a system which required the operator to challenge test the operation of the guard mechanisms before commencing work on the press, however for reasons which were not explained, despite the appellant's procedures requiring that the training include an explanation of the safety features and precautions and that the operator did in fact receive training on the relevant press, the operator had not been trained to challenge test the machine and, as a consequence, she did not challenge test the press before she operated it. Had she done so she would have observed that the guarding systems were not connected and she would not have been exposed to the risk and injured. 2. Further or in the alternative even if it was appropriate to find that the objective seriousness was in the mid-range, the sentencing judge fell into error in not taking the factors in Ground 1 (a) above into account and/or in not giving them proper weight. 3. The fine imposed was manifestly excessive: a. in the circumstances outlined in grounds 1 and 2, and or b. when the fine imposed in this matter is compared to other more serious offending identified in other work, health and safety matters and the matter of Nash v Silver City Drilling (NSW) Pty Ltd; AG NSW v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 in particular."
For reasons which follow, I am satisfied that while the applicant should be granted leave to appeal, its appeal cannot succeed.

Ground 1 - assessment of the objective seriousness of the offence

The applicant's case was that Russell DCJ erred in concluding that its offence fell within the mid-range of objective seriousness, contending that his Honour should have concluded that it fell within the low-range.
There was no issue taken with his Honour's explanation of the principles which governed the assessment of the seriousness of the offence, or that it was one which fell within the role of the sentencing judge, in finding facts and drawing inferences from them, with which this Court is slow to interfere, given the exercise of discretion involved: Mulato v R [2006] NSWCCA 282 at [37]. What must be established is that the finding was "clearly erroneous", given that minds may differ as to the level of objective seriousness of a particular offence: Mirza v R [2007] NSWCCA 248 at [16].
It was explained that the gravamen of this ground was that his Honour had not assessed objective seriousness of the offence against at least the following significant features: "a. The appellant did have in place a system of safety in respect of the risk pleaded which had it been followed would have eliminated the risk of the operator's hand being caught in the machine. The system wasn't followed however the existence of the system and the fact that it would have eliminated the risk were significant circumstances that should have been explicitly taken into account by his Honour. b. The failure of the setter to follow the safety procedure that the safety system had mandated and the failure of the trainer assigned to the operator to properly complete the required training were matters to be taken into account in reduction of the culpability (as opposed to liability) of the appellant."
That error was argued to have been the result of his Honour's failure to take relevant matters into account, identified in written submissions to be: "a. The appellant had in place a system to eliminate or minimise the risk to health and safety which was overlapping and which if followed would have been effective to protect the operator of the press in question. The system is described in the "Agreed Statement of facts" and in the evidence called in the appellant's case. That the system in place would have been effective to eliminate the risk or at least to minimise the risk should have been taken into account in favour of the appellant and reduction of the objective seriousness of the offending. The system that was in place included the following elements: (i) The press had two guarding systems which interlocked with the operating mechanism of the press, one mechanical the other pneumatic which operated independently of each other, either one of which, if connected, would have prevented the injury to the operator; (ii) The employee who reset the machine was well qualified and had responsibility for reconnecting the two interlocking guards and testing them without explanation failed to reconnect the interlocking guards or to test them before assigning the operator to work on the press. This was contrary to his responsibility, training and experience. (iii) Had the work by the setter been completed prior to the commencement of the shift rather than during it the setter would have been required to complete a check list certifying that the guarding was in place. The checklist is recorded on a card attached to the press. (iv) The appellant had in place a system which required the operator to challenge test the operation of the guard mechanisms before commencing work on the press. However for reasons which were not explained the operator had not been trained to challenge test the machine despite the appellant's procedures requiring that the training include an explanation of the safety features and precautions and that the operator did in fact receive training on the relevant press. As a consequence, she did not challenge test the press before she operated it. Had she done so she would have observed that the guarding systems were not connected and she would not have been exposed to the risk and injured;"

The reasons given

In his reasons Russell DCJ discussed: 1. the need to assess the objective seriousness of the offence, which must be ascertained from the circumstances of the crime: R v McNaughten (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15]; 2. the need to consider where in the range of conduct covered by the offence, the offender falls: Baumer v The Queen (1988) 166 CLR 51 at 57; taking into account surrounding circumstances relevant as circumstances of aggravation or mitigation: Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610; [2000] NSWIRComm 7 at [89]; and 3. how offending against the Act is to be assessed, discussed in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96, where Basten JA observed at [34] and [42]: "34 The sentencing judge commenced his consideration with the proposition that "[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely." [26] However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors. … 42 The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent's responsible officers knew or ought to have known."
His Honour came to unchallenged findings on the agreed facts and the evidence led by the applicant from its director, Mr Lynch, and its human resource manager, Ms Tancevska, under the headings "systems of work before the incident", "Guidance material", "systems of work following the incident" and "the evidence for the offender", as to: 1. how the press and its safety features operated; 2. the applicant's systems of work, including its safety management system; 3. how it trained its employees, including in relation to ensuring safety; 4. its procedures and policies as to the safe operation of the press; 5. who was given responsibility for supervising its staff, including those who maintained and operated the press; 6. what its investigation into the incident had established; and 7. what changes it had made to its systems, as a result.

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (4)

Cases Cited (30)

Cited By (7)