Morrison v Eureka Opals Pty Limited

Morrison v Eureka Opals Pty Limited - [2006] NSWIRComm 151 - NSWIRComm 2006 case summary — Zoe

[15]

63 To establish a defence under s 53, a defendant must prove, to the civil standard, either that it was not reasonably practicable to comply with the Act or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision. What the respondent in this appeal contended was that it had no control over the unavailability of a mobile phone service and no control over the failure of the Lightning Ridge Police to answer the phone. Such a contention does nothing to discharge the onus on the respondent to show it was not reasonably practicable to ensure the safety of persons working Claim 26313 or that that the failure was due to causes over which the respondent had no control and against the happening of which it was impracticable to make provision. 64 It was reasonably foreseeable that a risk to health and safety might arise if the communications system at the mine was inadequate. However, there was no evidence brought by the respondent to show that it was not reasonably practicable because of the absence of technologies other than mobile phones, or cost, or time, or the trouble involved, to adopt measures to avert the risk to health and safety: See WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2002) 123 IR 121 at [83] to [86]. It is apparent that the respondent had not given any consideration to providing adequate communication at the mine in the event of an accident. We are satisfied beyond reasonable doubt that the respondent failed to ensure that the mine was equipped with an adequate communication system so as to enable medical and emergency services to be contacted when persons were injured in the mine. 65 The fifth particular pleaded was that the respondent failed to develop and put in place an emergency procedure. At first instance, counsel for the respondent conceded there was evidence of the facts alleged in the particular but submitted there was no evidence that the failure as particularised caused the risk to health and safety. Staunton J made no finding in relation to the alleged failure. 66 The pleadings do not explain what was meant by "emergency procedure". However, it is evident from the proceedings at first instance that it was understood by the respondent to refer to an emergency procedure for dealing with accidents in the mine that might result in injury to a person. Such a procedure would normally countenance such measures as the provision of first aid, avoiding further risk, evacuation procedures where possible and contacting medical and emergency services.

[37]

8 We agree with the prosecutor that this offence is not in the category of "most serious offences". However, the risks arising from failures to ensure adequate egress in emergency situations; adequate communications systems and adequate emergency procedures were obvious and foreseeable risks. Furthermore, we accept the prosecutor's submissions as to the importance of general deterrence in this case, and note that Eureka has not put forward any evidence upon which we could conclude that the risk of re-offending is so low as to rule out consideration of specific deterrence: see generally Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [76] - [77]. In this light, and following cases such as Capral Aluminium at [82] and Inspector Stephen Campbell v James Gordon Hitchcock [2005] NSWIRComm 34 at [28], the offence must be viewed as objectively serious. 9 Eureka's submission that none of the particulars which were made out involved a risk of injury is misconceived. It has long been recognised by this Court that the gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty: see Capral Aluminium at paragraphs [94] and [95]. Secondly, each of the failures particularised could have resulted in the risk of serious injury: it is not difficult to imagine the consequences for someone suffering a spinal injury (for example) if he or she could not be removed from the mine on a stretcher. Similarly, it is not difficult to imagine the consequences of delay (both of which are implicit in the remaining two failures) for someone who had been critically injured. 10 Similarly, we do not accept Eureka's submission that the need for general deterrence has been served by the inconvenience and cost experienced by Eureka during the investigation and subsequent prosecution. These factors are experienced by every defendant, even where there is no compelling need for general deterrence. Moreover, the principles relating to general deterrence set out in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at [69] - [70], referred to with approval by the Full Bench in Maddaford v Coleman [2004] NSWIRComm 317 at [80], emphasise the more severe punishment which attends general deterrence, should it feature in sentencing. This purpose would not be served by a bond. 11 There is no evidence to substantiate Eureka's submissions that Eureka is a person of good character and is unlikely to offend. Nor are the issues of criminal intent or prospects of rehabilitation relevant to sentencing for offences under the Occupational Health and Safety Act. 12 It is sufficient for the purposes of this judgment to note that there are subjective factors which must be taken into account (and for which we make allowance) such as Eureka's lack of prior convictions and consistent co-operation with the prosecutor during its investigation of the incident. It is not necessary to resolve any issues of principle concerning the exercise of sentencing discretion which may arise due to Markarian v R (2005) 215 ALR 213, except to say that we agree with the submissions of the prosecutor that nothing in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (whose primary authority relates to general objective considerations) offends the principle in Markarkian against two stage sentencing.

[38]

13 Having regard to the objective seriousness of the offence, and the lack of exceptional or extraordinary matters, there is no proper basis for the exercise of our discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999 (see, for example Morrison v Powercoal Pty Limited & Anor (No 3) [2005] NSWIRComm 61 at [130]-[135]). Accordingly, it is not necessary to consider whether s 10(1) applies to corporations in addition to natural persons. (We note in passing that the prosecutor has not put forward any submissions to substantiate this contention). 14 Finally, this is not an appropriate matter to apply the principle of parity. In relation to Eureka's allegations concerning the Department of Mineral Resources and the Crown, neither of which was charged with any offence, we adopt the ratio in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (1999) 95 IR 383 at [160]-[161]: it is not consistent with the principle of parity for the Court to embark upon an inquiry in sentencing proceedings which, in substance, would require the Court to make specific findings as to the culpability of such entities and the "nature and quality" of any offence committed by them. 15 As the Court noted in WorkCover v McDonald's Australia Ltd at [152], the principle of parity only operates to the extent of comparing like with like. Differences in sentences arising from different circumstances, including differences in maximum penalty for the same offence, will not violate the principle: Signato v The Queen (1998) 73 ALJR 162 at 170. In this case, not only did Mr Buchanan face a different maximum penalty, his penalty was limited, in the discretion of the Court, due to his impecuniosity. The exercise of such a broad discretion - dependant upon many factors particular to Mr Buchanan's circumstances - precludes the comparison of like with like. 16 Taking into account the factors mentioned above, in the context of the maximum penalty of $550,000, we have determined that Eureka should be fined $30,000. In the exercise of our discretion to fix this fine, in accordance with s 6 of the Fines Act, we have taken into consideration the matters raised by Mr Wayne Buchanan, director, in his affidavit sworn 10 February 2006 concerning Eureka's means to pay. Orders

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