P F Thearle & Co Pty Limited v WorkCover Authority of New South Wales - [2002] NSWIRComm 102 - NSWIRComm 2002 case summary — Zoe

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P F Thearle & Co Pty Limited v WorkCover Authority of New South Wales

[2002] NSWIRComm 102

Industrial Relations Commission (NSW)|2002-07-01|Before: Wright J, Walton J, Kavanagh J, Mr P, Glynn J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2002-07-01

Before

Wright J, Walton J, Kavanagh J, Mr P, Glynn J

Source

Original judgment source is linked above.

Judgment (43 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : P F Thearle & Co Pty Limited v WorkCover Authority of New South Wales (Inspector Reynolds) [2002] NSWIRComm 102 APPELLANT P F Thearle & Co Pty Limited PARTIES : RESPONDENT WorkCover Authority of New South Wales FILE NUMBER: IRC 4369 of 2001 CORAM: Wright J President; Walton J Vice-President; Kavanagh J CATCHWORDS : Appeal - Appeal against severity of penalty imposed - OH&S Prosecution under s15(1) of OH& S Act - Two defendants pleaded guilty for breaches arising from the same incident - Defendants convicted of an offence and fined - Alleged disparity in sentences imposed - Parity principle of fundamental importance - Seriousness of offence - Appellant's offence of significantly greater gravity than other respondent - No system of work to ensure safety in workplace by appellant - Insufficient training provided by appellant and no provision of safety equipment or protective clothing - Appellant's employees not authorised to carry out work required - Aggravated features to be taken into account in assessing objective circumstances of offence - Extreme and self-evident risks to safety and gravity of risk - Foreseeability will result in significant increase to assessment of gravity of offence - Notions of specific and general deterrence - Submission regarding failure to have sufficient regard to financial standing of appellant rejected - Previous conviction for offence of similar nature - Warrant of nearly equal penalties - Appeal dismissed Criminal Appeal Act 1912 s 5AA LEGISLATION CITED : Electricity (Workers Safety) Regulation 1992 Industrial Relations Act 1996 s 196 Occupational Health and Safety Act 1983 s 15 s 16 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Fletcher Constructions Australia Limited v WorkCover Authority of NSW (Inspector Fisher) (1999) 91 IR 66 House v King (1936) 55 CLR 499 R v Reid [2000] NSWCCA 166 Signato v The Queen (1998) 194 CLR 656 CASES CITED : WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd and anor (No 2) (2000) 99 IR 163 Warman Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector Reynolds) v North Power [2001] NSWIRComm 104 WorkCover Authority of New South Wales (Inspector Reynolds) v P F Thearle & Co Pty Limited [2001] NSWIR 105 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (1999) 95 IR 383 WorkCover Authority of New South Wales (Inspector Viesis) v Thiess Contractors Pty Limited (1996) 85 IR 12 HEARING DATES: 03/28/2002 EXTEMPORE JUDGMENT DATE : 03/28/2002

[23]

15 The parity principle has been described as of fundamental importance in the administration of justice: Signato v The Queen (1998) 194 CLR 656 at 670. The principle has been considered applicable to prosecutions brought pursuant to the Act. In Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 340 - 341 it was stated: We also accept that the principle of parity in sentencing as discussed by the High Court in Postiglione v The Queen (1997) 189 CLR 295 has application to sentences imposed under the O H & S Act. In that context it is appropriate to have some regard to the sentences imposed by Hungerford J on Drake Personnel Ltd, the direct employer of two of the injured workers. In Postiglione the High Court was concerned with an appeal against sentence which raised questions of comparison between the sentence imposed on a principal party in a conspiracy compared with that imposed on the appellant, who was subordinate in that conspiracy. Dawson and Gaudron JJ (at 411-412) said: The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them [ Lowe -v- R (1984) 154 CLR 606 at 610-11 per Mason J]. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error [ Lowe at 617-18 per Brennan J]. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe -v- R , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to `a justifiable sense of grievance' [ Lowe especially at 610 per Gibbs CJ, 613 per Mason J and 623 per Dawson J]. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.'

[28]

When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: see R v Morgan (1993) 70 A Crim R 368 where Hunt CJ at CL said, at 371: It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe v The Queen (1984) 154 CLR 606 at 612: "The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty." In Channon v The Queen (1978) 20 ALR 1 at 18, Deane J observed: In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances. As recently observed by Barr J and McInerney AJ in the Court of Criminal Appeal "each case is different, and one case does not demonstrate the limits of a sentencing Judge's discretion": R v Stahl [1999] NSWCCA 160 at 10.