Criminal Law - Appeal and new trial and inquiry after conviction - Appeal against sentence - Grounds for interference - General principles - Indicative sentence given at "contest mention hearing" - Sentence imposed at variance with indicative sentence - Not an error of law.

Justices Act 1959 (Tas), s107(4).

R v Warfield (1994) 34 NSWLR 200, referred to.

Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Review of sentence - Principles applicable - Indicative sentence given at "contest mention hearing" - Sentence imposed at variance with indicative sentence - Not an error of law.

R v Warfield (1994) 34 NSWLR 200, referred to.

Judgment Number: [1999] TASSC 95

1 On 25 March 1999, the applicant company pleaded guilty to a breach of the Workplace Health and Safety Act 1995, s9(1)(a)(ii), which provides:

"(1) An employer must, in respect of each employee employed by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular, must -

(a) provide and maintain so far as is reasonably practicable -

2 The learned magistrate ordered a fine of $8,000. The applicant now seeks a review of that order, pursuant to the Justices Act 1959, s107, upon the grounds that:

"1 The sentence imposed by the Learned Magistrate was manifestly excessive in all the circumstances including, but not limited to, the fact that prior to entering a plea of guilty to the charge the Applicant had received a 'sentence indication' from the Learned Magistrate which led the Applicant to reasonably anticipate that it could expect to receive a penalty within the range of having no conviction recorded to one which falls at the very bottom end of the scale.

2 The Learned Magistrate erred in law in determining the monetary penalty of $8,000.00 was an appropriate fine without having any information relating to or making enquiries as to either the capacity of the Applicant to pay the penalty or the financial effect of such a penalty upon the Applicant."

3 The following facts were put to the learned magistrate after the applicant had pleaded guilty. The applicant has been in the business of fabricating plastic products since it was incorporated 25 years ago. The business is a substantial one and exports products to several countries. During the last 15 years, the applicant has been active in the aquaculture industry. Part of this business consisted of modifying plastic oyster floats manufactured by Nylex Roparound.

4 The applicant was required to drill a hole into the Nylex floats through which was passed a hollow bar through which, in turn, was passed a rope or chain. The drilled holes were then sealed up and made water tight. The modified floats were destined to be used to hold oyster cages in position. They were intended to be used below the surface of the water.

5 It was necessary to test the floats for leaks after they had been modified. This was done by filling the floats with compressed air through the bung hole to a pressure of about only 4 PSI. It was the practice of the applicant's employees to squirt air into each float from an air gun in a two second burst. This practice was a common one in the industry throughout the country and had been followed by the applicant without incident for about 10 years. However, on the day referred to in the complaint, an employee applied compressed air to a float in the same manner as he had done on very many occasions previously, but this time, the float exploded. He was knocked unconscious and suffered a fractured nose and associated bruising. There was no explanation for the accident. The learned magistrate was told that a possible explanation was that the float was in some way defective.

6 There was no air pressure gauge on the air gun. At some time in the past the applicant had been in possession of an air gauge that measured less than 10 PSI, but it had not been used for some time. There was no reason to believe that the absence of a pressure gauge caused the accident or that the accident would have been avoided if a pressure gauge had been fitted to the compressed air gun. It was impossible to find a commercially made pressure gauge that would record pressures lower than 10 PSI.

7 The applicant had no prior convictions. The learned magistrate was told that since this accident, the practice of testing with compressed air had been abandoned and the floats were delivered without having been tested for leaks. He was also told that no one at the Workplace Standards Authority had been able to suggest any system for testing the floats for leaks, other than by the application of compressed air. In imposing penalty, the learned magistrate said:

"Well I think the matters relevant to sentencing in this matter are the obvious seriousness with which the legislation views these matters because the maximum penalty against a body corporate is a fine of fifteen hundred penalty units against the natural person, which is not relevant here now of course a five hundred penalty unit so obviously the section has a strong deterrent effect built into it. The company has no previous convictions, it is a company I gather with some reasonable experience in this particular field of endeavour with no previous incident which it is said could have alerted it to the dangers as far as this practice was concerned. However, the practice has now been discontinued so the likelihood of repetition is non-existent. The company has also pleaded guilty and that is always a relevant factor because a significant hearing time of probably in excess of one day has been saved and the cost and expense of bringing witnesses to court, et cetera, has also been avoided. So the company is entitled to have its plea of guilty taken into account based on that approach I think. The fact that someone is injured is always relevant because obviously that is a consequence of the company's breach of this legislation. It seems that the company's breach may well have been in failing to ensure that persons who were indulging in this practice made themselves or made the gauge part of their system it seems to me.

Taking all those matters into account it seems to me that a fine towards the lower end of the scale is appropriate taking into account as I said particularly the company's plea of guilty and a lack of previous matters and it seems very low risk of any repetition. I think in the circumstances on count 1 as against the company it is fined $8,000."

8 Ground 1 arises in part, out of a "contest mention hearing" held by the learned magistrate one month prior to the sentencing hearing. Contest mention hearings have no legislative authority, but I was handed what might be described as a practice note which I was informed governed the practice in courts of petty sessions in this State or, at least, in a significant number of them. According to the practice note, an objective of a contest mention hearing is early identification of certain prosecutions which are the subject of pleas of not guilty which are defended (inter alia) solely as a result of an unjustified fear of the consequences of conviction.

9 When this prosecution was called on at the contest mention hearing, the learned magistrate was told that there would be five or six prosecution witnesses. At that stage, there were two matters of complaint and two defendants, the applicant and an officer of the applicant. The learned magistrate inquired if any of the evidence could be admitted by consent. This was discussed. An estimate of five hours' hearing time was given to the learned magistrate. There followed some discussion about the hearing of the matters of complaint. Counsel for the applicant then asked the learned magistrate to give some indication of penalty. The learned magistrate was given a skeleton outline of the facts relevant to sentence consistent with the facts put to him in more detail at the sentencing hearing a month later. The learned magistrate then said:

"It would seem to me that if any penalty at all is to be imposed, it would fall at the lower end of the scale and I say that because of the long-standing system that has been in place without incident, the fact that the company has had nothing to draw its attention to that, and on a plea of guilty the Court is entitled to moderate what would otherwise be an appropriate sentence and there is authority in the Supreme Court for that - of this State - so I would have thought - I wouldn't be precise about it, I mean, there is an argument I would have thought for the matter to be adjourned under the Sentencing Act without conviction, and I would have thought - I'd ask Mr Sherriff what he thought about that - but that would be a possibility on a plea of guilty that the matter could be adjourned under S7(f) of the Sentencing Act without conviction. If a conviction is urged it would seem to me that the penalty ought fall at the very bottom end of the scale. That's my feeling about it. I can't be any more specific than that, and if you want to have some time to talk about that, have a think about it, I will be here for a while Mr Wallace so come back to me later in the morning, if you like. Or even at a later date."

10 In consequence of the sentence indication, the applicant changed its plea to the first matter of complaint and the prosecution elected not to proceed against the officer of the company, nor on the other matter of complaint. The matter proceeded to a sentencing hearing as I have set out earlier in these reasons for judgment. The complaint on ground 1 of the motion to review is that the sentence is manifestly excessive, either because it is far outside the range indicated at the contest mention hearing and/or in any event.

11 It must be remembered that the jurisdiction of this Court upon a motion to review sentence imposed in a court of petty sessions is confined to those cases where it can be shown that there has been an error of law or fact or law and fact, or that the learned magistrate acted without jurisdiction. See Justices Act 1959, s107(4).

12 On behalf of the applicant, Mr Wallace submitted that the sentence imposed was so far out of line with the sentence indicated at the contest mention hearing, that it gave rise to a justifiable sense of grievance on the part of the applicant analogous to that identified in Lowe v R [1984] HCA 46; (1984) 154 CLR 606. The justifiable sense of grievance which constituted an error of law identified in Lowe's case is quite different from that claimed by the applicant in this case. Lowe was concerned with the imposition of disparate sentences on like offenders. The philosophical basis underpinning such error of law was identified by Mason J (as he then was) at 610 - 611:

"Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."

13 There is only one sentence in the present case. No unfairness arises out of it per se. It was either imposed in consequence of a correct exercise of the sentencing discretion or it was not. It might be said that the indication of sentence differed from the sentence imposed and it might be said that the applicant is thereby aggrieved because it changed its plea as a result of the indication, but such grievance constitutes neither error of law, nor error of fact. A sentence indication is not an order capable of review.

14 No doubt sentence indications have the desirable effect of reducing the length of the lists of cases awaiting disposition in courts of petty sessions, but they also carry with them the risk that defendants may abandon good defences that are available to them upon receiving an indication of a light sentence in order to save the cost and trouble of defending complaints. The present matter might well be such a case, because upon the facts put to the learned sentencing magistrate, it is difficult to see in what respect the applicant failed to provide and maintain, so far as is reasonably practicable, a safe system of work. The Victorian Full Court made this observation in R v Marshall [1981] VicRp 69; [1981] VR 725, a case where a county court judge gave a sentence indication, at 734:

"But there is a positive fundamental principle to which, in our opinion, the process [sentence indication] runs counter. That is the principle that the judgment of a court is delivered only after the court has heard at a hearing at which members of the public are present or entitled to be present all that both parties before it wish to place before it. To allow this principle to yield to an expedient for clearing the lists is to clear the lists at too great a price."

15 However, for the purpose of determining this motion to review it is not necessary to explore the efficacy and effect of the contest mention scheme. Indeed, without the benefit of full argument about the scheme as a whole, and perhaps submissions by the Solicitor-General or the Director of Public Prosecutions, it would be ill-advised of me to embark upon that course. However, I note that a similar scheme appears to exist in the District Court of New South Wales. This scheme has statutory authority. See Criminal Procedure Act 1986 (NSW), Pt12. It was the subject of consideration by the New South Wales Court of Criminal Appeal in R v Warfield (1994) 34 NSWLR 200. I note from that case that, pursuant to statutory authority, the chief judge published a practice note which provides:

"After the indicative sentence is stated, the accused will be arraigned and requested to plead. If the plea is 'guilty', the matter will be stood over for a sentence hearing before the Judge who presided at the indication hearing, and any pre-sentence or other reports obtained. The sentence hearing will take the usual form following a plea of guilty. If the plea is 'not guilty', the matter will be listed for trial before another Judge.

The indicative sentence is intended to bind the Judge who formulated it, if the facts and other relevant material adduced for the purpose of the indication hearing are not altered when the case comes up for sentence. Should these be altered on the hearing by reason of different or additional material being adduced at the hearing, the Judge may decide to impose a lesser or a greater sentence. In the latter case, the accused would be advised of the new sentence. If he did not wish to accept that sentence, he would be entitled to change his plea to 'not guilty', and go to trial before another Judge."

It will be noted in particular from the foregoing, that the indicative sentence is intended to bind the judge who formulated it, provided that material put forward at the sentencing hearing is in substance, the same as that provided at the indicative sentence hearing. Further, should the material be different, requiring the sentencing officer to impose a greater sentence, the accused is to be so advised, and should he wish to do so, entitled to change his plea to not guilty.

16 In the circumstances of this case, I am satisfied that regardless of what was said at the contest mention hearing, a penalty of $8,000 is manifestly excessive. For the respondent, Mr Lodge, drew attention to the prescribed maximum penalty of 1,500 penalty units or $150,000 in the case of a corporation, and submitted that a fine of $8,000 constituted only 5.3 per cent of the maximum. His submission was that therefore, the penalty was "at the bottom end of the scale" as the learned magistrate said at the contest mention hearing. While Mr Lodge's submission is mathematically correct, it overlooks the fundamental fact that the Act, s9(1), proscribes the widest possible range of conduct over the widest possible range of workplaces by the widest possible range of employers and a proportional application of the maximum penalty is unlikely, in any one case, to provide an appropriate response to the magnitude of the wrongful conduct.

17 In his comments on passing sentence, the learned magistrate correctly articulated the relevant factors, but fell into error in concluding therefrom that a fine in the order of $8,000 was within the range of appropriate penalties in the circumstances of this case. The work in question was not inherently dangerous. The pressure of air involved was less than that put into a bicycle tyre. The system had been in place for a long time without incident, and there was no satisfactory explanation for the disintegration of the float that injured the worker. Not only was the system in common use throughout Australia, but no alternative system was within the contemplation of the Workplace Standards Authority. No specific shortcoming on the part of the applicant was identified to the learned magistrate as constituting the breach of the statutory duty of care and upon the material in the court below, there appears to have been no reason for the applicant to anticipate the accident which occurred. The company had been carrying on business for some 25 years without prior conviction. In all these circumstances it seems to me that the imposition of a fine of anything more than a few hundred dollars at most, would reflect undefined error in the exercise of the sentencing discretion. I accept that general deterrence weighs heavily in the sentencing process for offences such as this one, but even so, the sentence must not be disproportionate to the gravity of the wrongful conduct. In my opinion, the learned magistrate expressed a correct view of this matter at the contest mention hearing when he said that a possibility on a plea of guilty was that "the matter could be adjourned under S7(f) of the Sentencing Act without conviction". Whilst that option would certainly reflect the proper exercise of the discretion, it is not a choice I would take in this case. This is not an appropriate case in which to require the offender to give an undertaking with respect to the future because the relevant conduct had been abandoned by the time of the sentencing hearing and, as the learned magistrate found, was unlikely to be repeated. In the circumstances of this case a better approach is to record a conviction and order the discharge of the applicant as is provided by the Sentencing Act 1997, s7(g).

18 Ground 1 is made out. The fine of $8,000 is quashed and in lieu thereof, a conviction is recorded and the applicant discharged.

19 Although it is unnecessary to consider ground 2 in the light of the foregoing, I think it appropriate to observe that it is not made out. There is no rule of law to the effect that it is an error to impose a pecuniary penalty without having any information relating to, or without making inquiries as to the capacity of a defendant to meet the fine. As Crawford J said in Reeves v Ranson [1999] TASSC 52, par21:

"It may well be a sound argument, in the circumstances of some cases, that a sentencer is in error by imposing a fine without inquiring about the financial circumstances of the offender. An obvious example where that might be the case is one where the offender is not represented by counsel and there is clearly insufficient information concerning the offender's circumstances to allow the sentencing discretion to be properly exercised."

20 However, that is clearly not the case here. The learned magistrate was told that the applicant was a successful corporation, having been in business for more than 25 years. It was represented by senior and experienced counsel. Had there been material relevant to the capacity of the applicant to pay any pecuniary penalty, no doubt counsel would have put it to the learned magistrate. In those circumstances, there was no obligation on him to make inquiry of the applicant before imposing the penalty that he did impose.