File No : PE 49377 of 2003, PE 49378 of 2003, PE 49379 of 2003, PE 49380 of 2003, PE 49381 of 2003

Occupational health and safety - Occupational Health and Safety Act (WA) - Penalties on conviction - Several convictions for act or omission arising out of same circumstances - Sentencing Act 1995 (WA) - Penalties

Criminal Appeals Act 2004 (WA)

Occupational Safety and Health Act 1984 (WA)

Occupational Safety and Health Legislation Amendment and Repeal Act 2004 (WA)

Occupational Safety and Health (Regulations) 1996 (WA)

Sentencing Act 1995 (WA)

1 EM HEENAN J: The background of the prosecutions by the appellant against the respondent alleging three offences against the provisions of the Occupational Safety & Health Act 1984 (WA) (the Act) and two further offences against the Occupational Safety & Health (Regulations) 1996 (WA) (the Regulations) made under the Act has been described in my reasons for decision of 18 January 2008 in which the appeals against the dismissal by the magistrate in the Magistrates Court of these charges were upheld. By the orders which I made on 18 January 2008, each of these five appeals was allowed and in lieu of the orders dismissing the charges in the Magistrates Court it was ordered that the respondent be convicted of each of the five charges. I also directed that the further disposition of these appeals should be adjourned to a date to be fixed for submissions about whether or not this court should hear and determine the penalties to be imposed and, if so, to hear submissions in relation to penalty and to determine those matters. I also ordered that written submissions should be filed and exchanged on these issues and, in particular, whether more than one penalty should be imposed in relation to the first three charges in view of the issue mentioned in [39] - [40] of my earlier reasons concerning the potential effect of s 11 of the Sentencing Act 1995 (WA).

2 Detailed written submissions on all these issues were filed and exchanged by the parties and I heard further submissions from counsel, including submissions concerning the penalties which might be imposed.

Which court should sentence the respondent?

3 This court has the power to sentence the respondent for these convictions pursuant to s 14(1)(d) of the Criminal Appeals Act 2004 (WA). The appellant submits that the sentencing should be carried out by this court because all the evidence from the trial has been canvassed extensively in the course of the appeals and, so it was submitted, this court is in as good or better a position as the learned magistrate to determine the penalty which should be imposed. The appellant submits that because this court has recently considered the relevant factual matters and the nature of the obligations imposed on the respondent under the Act and Regulations it would be more efficient and convenient for this court to sentence the respondent, especially where the learned trial magistrate has not had any occasion to consider this matter since August 2005 when his Honour last dealt with the charges. The appellant further submits that the course which he submits should be taken would cause no prejudice to the respondent, because the respondent's right to appeal from a decision on penalty imposed by this court is preserved by pt 2 div 3 of the Criminal Appeals Act 2004 (WA).

4 However, the respondent submits that the matter should be remitted to the learned magistrate who heard the trial to deal with the sentencing issues. In support of that submission, it was pointed out that his Honour possesses the advantage of having heard the evidence over the course of a relatively long, (12-day) trial and can, therefore, be presumed to have a thorough grasp of the factual issues which may affect the penalty or penalties to be imposed. Further, it is submitted that the learned magistrate who dealt with this matter, and the Magistrates Court generally, is accustomed to imposing sentences for various breaches of the Act or Regulations and has the advantage of being able to assess the respondent's degree of culpability within the context of other cases involving comparable prosecutions.

5 The facts and issues involving these prosecutions are undoubtedly lengthy and complicated. The disposition of the appeals required this court to undertake an examination of all the issues involved with the result that, if I may say so, I have the advantage of recent familiarity with all of these details, aided by the assistance which counsel on both sides provided by drawing attention to salient features both during the course of the appeal and since. In the circumstances, I consider that it would be both more efficient, and expeditious, for this court to sentence the respondent for the convictions resulting from the appeal and I, therefore, have decided to do so.

Not to be punished twice - in respect of any act or omission

6 At the time of these offences s 23B of the Occupational Safety and Health Act 1984 provided that:

A person is not liable to be punished twice under this Act in respect of any act or omission.

7 That section was repealed by the Occupational Safety and Health Legislation Amendment and Repeal Act 2004 (WA) which substituted s 55A, which is a provision in identical terms. The amending Act came into operation on 1 January 2005. The section contemplates that concurrent but distinct legal liabilities may be established in the event of one act or omission leading to the breach of more than one provision of the Act or the Regulations. In that event, however, only one 'punishment' should be imposed. As I observed in [39] of my principal reasons, in such a situation the fact of conviction and the recording of a conviction is not in itself punishment; however, no additional penalty or sanction may be imposed in respect of the second or subsequent conviction arising from the same act or omission: Harvey v Hull (No 2) [1902] St R Qd 53, 57 - 58 (Griffith CJ); Connolly v Meagher [1906] HCA 20; (1906) 3 CLR 682; and Kiripatea v The Queen [1991] 2 Qd R 686 - see also Phillips v Carbone (No 2) (1992) 10 WAR 169.

8 The three charges for contraventions of the provisions of the Act (as I described in [21] of my earlier reasons) were that the respondent had, in various respects, failed to take practicable measures to ensure that other persons were not adversely affected as a result of the work in which they were engaged, or were not exposed to hazards, as thereby alleged. There was a common feature to all these allegations; namely, that the relevant omission in respect of each of those charges was a failure to take practicable measures to address the hazard which arose from the steel rafters in Unit 3 being erected without adequate lateral restraint. The appellant submits, and I consider correctly, that although the obligations imposed by s 21(1); s 23(3a) and s 22(1)(a) of the Act are cast in different terms, the relevant omission the subject of each breach in the present charges is the same in all material respects. It follows that s 55A of the Act applies and that the respondent cannot be twice punished in relation to those three charges. The same result arises by application of s 11 of the Sentencing Act.

9 It is also the case that the court may, if it considers appropriate, impose a single global penalty in respect of the charges under the Act, namely PE 49377/03 to PE 49379/03 - Sentencing Act s 54.

10 I accept those submissions and consider that only one penalty may be imposed in respect of the convictions following from the first three charges.

11 The fourth and fifth convictions concern failures by the respondent to ensure that the concrete panels were properly manufactured and erected and each relates to distinct and separate breaches of duty at different places and times. Each is distinct and separate from the omissions which resulted in convictions on the first three charges.

12 Under the provisions of the Act at the time of these offences it was prescribed by s 21(3) and s 23(5) that any person who contravened s 21(1) and, further, any person who contravened s 23(3a) and by that contravention caused the death of, or serious harm to, any person committed an offence and was liable to a fine of $200,000. For a person who contravened s 22(1) the punishment for the offence, regardless of the consequences, was liable to a fine of $100,000. It follows that the maximum fine applicable for either of the first two offences in this case is $200,000 and for the third offence is $100,000. Furthermore, the applicable penalties for an offence involving a breach of reg 3.88(1) of the regulations at the time was a fine of $25,000, so that the respondent is liable to separate fines of $25,000 upon his convictions for the fourth and fifth offences.

13 The objects of this legislation are specified by s 5 of the Act. They include (s 5(a)) the objective of promoting and securing the safety and health of persons at work; the protection of persons against work hazards (s 5(b)); the assistance in securing safe and hygienic work environments (s 5(c)) and the reduction, elimination and control of hazards to which persons are exposed at work (s 5(d)) together with other associated objectives. In Morrison v Competitive Food Ltd t/as Hungry Jack's (Unreported, WASC, Library No 9118, 25 October 1991) Murray J observed that, in order to achieve these objectives, the legislation had created positive binding duties which were onerous and that the maximum penalties, where the death of a worker has occurred, indicate a legislative intention that significant consequences should follow such a breach.

14 Counsel for the appellant has submitted that a penalty should be imposed having regard to the degree of criminality involved and that essentially a sentence for a breach of s 19(1) of the Act is imposed for criminal negligence, relying on an analogy struck by Ipp J in Palynolab Resources Pty Ltd v Morrison (Unreported, WASC, Library No 960477, 22 August 1996) 5. This reference to the term 'criminal negligence' also appears in the judgment of Owen J in Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435, 480 although I am satisfied that in context it bears no other connotation than an observation that a conviction for failing to take reasonable care, as required by the legislation, will mean that that is negligence which has criminal consequences.

15 At least in the context of s 21 - s 23 of the Act the obligation is to take reasonable care or to take such measures as are practicable to address, remove or guard against a particular hazard or hazards in the manner prescribed by those sections. No attempt is made in those sections to distinguish between negligence or failure to take measures reasonably practicable and some other form of negligence or failure to take practicable means which involves 'criminal negligence' or some more serious degree of lack of care or failure. The requirements of the test of practicability have already been addressed earlier in my reasons at [110] - [125], particularly at [115] and [122], as well as being the subject of many other decisions of this court.

16 However, breaches of the obligations of those and other sections of the Act may, by an amendment made to the legislation in 2004, that is, since the events associated with this case, be accompanied by a circumstance of aggravation if committed in circumstances of gross negligence - see s 18A(2); 19A(2); 20A(1); 21A(1); 21C(1); 22A(1) and 23AA(1) - and therefore be liable to more severe penalties.

17 However, none of these provisions applies to the present prosecution and I therefore consider that the concept of 'criminal negligence', if meant to signify the severity of lack of care which might, on a charge of manslaughter, be necessary for conviction, is a concept foreign to the sentences applying to these prosecutions and has the tendency to be a misleading distraction. 'Criminal negligence' in this sense is as inapplicable to these charges as it is to charges of dangerous driving causing death or grievous bodily harm under the provisions of the Road Traffic Act 1974 (WA) as demonstrated by cases such as McBride v The Queen [1966] HCA 22; [1966] HCA 22; (1966) 115 CLR 44, 50 (Barwick CJ); A M Smith v The Queen [1976] WAR 97; and Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, 579 - 590 (Mason CJ, Brennan, Deane, Dawson, Toohey & Gaudron JJ) .

18 In the present situation, however, it is correct to maintain, and in my view the remarks in Palynolab Resources Pty Ltd v Morrison and Haysdale Nominees Pty Ltd v Shepherd should be treated as meaning that, as in every case, the severity of the lack of care or other criminal conduct is a factor which should be taken into account when sentencing. In convictions for offences under this Act it is obvious that the seriousness of the misconduct or negligence giving rise to the conviction is likely to vary considerably, varying from cases involving freak accidents such as in **Morrison v Winton (**Unreported, WASC, Library No 960698, 12 December 1996) per Scott J, who observed that 'the hazards which led to this accident were, by no means, of a gross or culpable nature' [23] to postulated cases where the breach might be regarded as gross, flagrant or deliberate, an example given in Henry Walker Eltin Contracting Pty Ltd v Briggs [2002] WASCA 53, although the breach involved in that case was not regarded as being so serious.

19 It is also the case that consideration should be given to whether the offence arose in the normal manner of business or from a one-off incident in unusual circumstances (per Owen J in Haysdale Nominees Pty Ltd v Shepherd, 440). The obligations created by the Act recognise that experience has shown that even careful and conscientious employees may from time to time act inadvertently or without due regard for their own safety as in R v Australian Char Pty Ltd (1995) 79 A Crim R 427, 422.

20 For reasons set out in my earlier decision on the appeals, I have reached the conclusion that the breaches of the statutory obligations, at least as they arose in relation to the first three offences, are largely attributable, if not entirely attributable, to ignorance by the respondent of the hazards involved in attempting to assemble these rafters in the manner chosen. He seems to have assumed, without justification, that if some special form of erection had been necessary it would have been disclosed in the design drawings or that his attention to such a requirement would have been drawn by some third person. In fact, the problem was that he did not have the knowledge or experience necessary to acquaint him with the existence of this hazard and the serious threat which it posed to workers on the site, notwithstanding that knowledge of that kind did exist at an objective level and could and should have been sought and acted upon by him. Certainly, I am satisfied that the non-compliance with the statutory obligations was not deliberate, flagrant or calculated. Rather, the tragic events which led to the death of Mr Kelsh are an illustration of how a lack of realisation of the extent of the responsibility of the builder in charge of the works, and the need to investigate the possibility of hazards, has led, unwittingly and tragically, to a death. This form of undesired, unintended and unknowing lack of care is the kind of phenomenon which is directly addressed by this legislation. The penalties to be imposed should reflect, in my view, the need to demonstrate and reinforce this legislative policy in situations where, however undesirable the realisation may be, the obligations are not fully understood or appreciated by some of the personnel engaged in such workplace activity.

21 Because the variety of the conduct and the gradations in the seriousness of the conduct which can constitute a breach of this legislation are so varied it is accepted that there is no distinct tariff for any particular form of breach - per Scott J in Superfine Homes Pty Ltd v Shepherd (Unreported, WASC, Library No 990088, 15 February 1999) [7]. The appellant, however, cites two appellate decisions regarding sentencing for offences involving the death of an employee, namely, Morrison v Winton and Palynolab Resources v Morrison. In the first, a fine amounting to 25% of the maximum then available was imposed and in the latter a fine of 35% of the maximum penalty was imposed. In relation to a case for a prosecution for an offence involving the death of an employee under the Mines Safety and Inspection Act 1994 (WA), Henry Walker Eltin v Briggs, a penalty of 37 1/2% of the maximum fine was imposed and although this fine of $75,000 was described as heavy, it was upheld on appeal.

22 Counsel for the respondent has referred to the decision of Pullin J in Go-Crete Pty Ltd v Innes [2002] WASCA 240 in which a fine of $40,000 (20% of the maximum) was imposed for a breach of s 19 of the Act. In that case, another involving the erection of pre-cast concrete panels, a rigger was holding the pre-cast panel steady when the chains suspending the panel contacted a conductor, leading to the worker's electrocution. The appeal against that conviction and penalty was dismissed. Shepherd v Co-Operative Bulk Handling Ltd [2001] WASCA 413, involved a conviction for a breach of s 19 of the Act, where an employee placing a tarpaulin over a grain stack was fatally injured after falling on to the tarpaulin and being blown to the ground when the tarpaulin billowed in a gust of wind. The magistrate imposed a fine of $7,500 (maximum $200,000) and Hasluck J, allowing the appeal, increased the fine to $12,000, taking into account the absence of any prior record and the respondent's previous safe working practices.

23 Industrial Galvinisers Corporation Pty Ltd t/as Industrial Galvinisers v Shepherd [1999] WASCA 282 involved a fatal injury following a failure by an employer to provide adequate protective clothing. Wheeler J imposed a fine of 20% of the maximum for a breach of s 19 where the employer had a previous conviction for a similar offence.

24 The details of the fatal accident and the working operations at the construction site at Myaree during August and September 2002 are fully described in my earlier reasons [2] - [16] together with a detailed analysis of the role of the respondent in the overall control and supervision of the work site. As the registered builder the respondent had effective control over the entire site and the duty to ensure that others working at the site, including subcontractors, performed their work to an acceptable standard. He visited the site daily and dealt regularly with the site supervisor, Mr Fuller, a person whom he had, with some justification, believed was supervising activities on a constant basis. The respondent's breaches of his obligation were to assume that Mr Fuller was acquainted with and dealing with all obligations relating to occupational work and safety and in failing himself to ensure that these precautions were being carried out and that the Act and regulations were being observed.

25 The real problem arose when the decision was taken to construct the steel rafters on Unit 3 without adequate lateral support. From the moment this was attempted it is clear that there was a serious risk of collapse and major injury. That the respondent failed in discharging the objective standard required to take practical measures has already been determined. He was personally aware of and involved in the decisions to proceed with the form of erection which led to the collapse but, I am satisfied, he was, through ignorance, oblivious to the large risks which this involved. Nevertheless, it was a major undertaking involving very big rafters and an extensive space being spanned which called for closer investigation and supplementary advice.

26 I accept the submissions of the appellant that the offences which are the subject of the first three charges involve a failure to consider and address the hazard arising from the lack of adequate lateral restraint in the construction of Unit 3. I would not describe that failure as a wilful or culpable disregard of the respondent's obligations. It seems to me that, in his own way, the respondent believed that he was acting conscientiously and was animated with a recognition of the need for industrial and occupational safety. However, these good intentions were insufficient because they were not coupled with the knowledge, experience or readiness to seek advice about potential hazards arising in such a large undertaking.

27 As earlier remarked, this unjustified and misplaced sense of satisfaction represented perhaps some of the most invidious latent dangers associated with this form of construction. It is to combat this form of inadequate appreciation of obligations that has led to the enactment of this legislation in these terms. There is no doubt about the sense of remorse and responsibility which has been demonstrated by the respondent but, as with all fatalities and serious injuries arising from carelessness, this reality of remorse, while a mitigating factor, has only limited effect. It shows recognition of responsibility, demonstrates an unlikelihood of repetition of the offence, but it does not excuse the conduct. It is usually insufficient to advance the objectives of general deterrence which have such an important purpose in this legislation.

28 The offences which are the subject of charges 4 and 5, breaches of reg 3.88 relating to the casting and the subsequent method of erecting (bracing) the cast concrete panels, stand in a rather different degree of significance.

29 First, and importantly, it must be clearly stated and acknowledged that neither of these offences contributed to the collapse of the rafters and associated structures or to the death of the late Mr Kelsh and, for those reasons alone, a much lower order of penalty is prescribed.

30 In one way, however, the gravity of the respondent's conduct in relation to these offences was more immediate and direct. He authorised the substitution of the alternative through bars for the Y16 through bars specified in the drawings for the casting of the concrete tilt-up panels (see earlier reasons, [133] - [134]). He left the supervision of the choice of installation of the through bars to Mr Fuller without taking any steps to check that Mr Fuller was performing that obligation correctly. In my view, this involved an abdication of his ultimate responsibility towards Mr Fuller and his lack of appreciation of the need for his personal oversight is, if anything, an aggravating factor.

31 Similar observations apply in relation to charge 2, a failure to erect braces to support the newly positioned cast concrete panels in accordance with the relevant drawings. In this regard, the respondent appears to have left the performance of this obligation again to Mr Fuller but, in reality, it seems to have been left with the KEFO team and, in particular, the deceased (see earlier reasons [140] - [143]). This demonstrates a lack of rigour in the supervision of the site by the respondent and a readiness to tolerate improvisations by other workmen without regard to the specifications in the construction drawings. This informal and casual approach may have perhaps been a common occurrence on this construction site but that only reveals a degree of slackness which undermines the protection which the legislation and regulations are designed to achieve. Were these the only offences which had been committed by the respondent so that the task of sentencing required the imposition of a fine for this or these offences alone, I consider that a greater fine than I intend to impose in this case would have been deserved. Here, however, because of the fine which must be imposed in relation to the convictions for offences 1, 2 and 3, issues of totality come into consideration and dictate a more moderate approach than I would have adopted had the offences for the breaches of the regulations been the sole offences for sentencing.

32 The deceased, Mr Kelsh, left a widow and two young children - a son and a daughter. Naturally, the whole family is deeply affected by his death and has experienced, and continues to experience, deep and shattering grief. Moving tributes from two members of the family have been provided in the victim impact statements. I have not the least doubt that, in addition to the natural sense of loss and bereavement, the death of a loved, devoted and responsible husband and father has caused all members of his family, and will continue to cause them, hardship, insecurity and uncertainty for a long time to come. No words will ever be able to console them adequately for this loss and, regrettably, nothing done or ordered by this court can hope to replace or diminish their sense of loss and grief.

33 These profound and immeasurable effects of premature accidental death and their consequences are why this society, through its laws, creates the obligations to exercise care and, as far as possible, to reduce occupational hazards and increase safety. After the event, nothing can be done to restore the life lost, but by continued enforcement of law such as the Occupational Health and Safety Act, the community hopes and expects that both the risk and frequency of such tragic events will be reduced and that fewer families will have to endure the pain of such loss. These are all factors which need to be taken into account when deciding upon the sentence to be imposed. The conclusion to which they so obviously point is that the factor of great, if not greatest, importance in imposing a sentence for such offences in circumstances like these is that of general deterrence. This is the factor which should instil recognition at a personal level of the obligation to comply with these laws and regulations, and if anything is to be gained from a tragic case such as this, it may perhaps be the wider recognition throughout the occupational and construction industries of the real need to be informed of, and to comply with, objective safety standards.

34 In this particular incidence, the factor of personal deterrence is very greatly diminished. I have no doubt whatever about the genuineness of Mr Tobiassen's remorse and the reality of the devastating sense of responsibility that he feels for this loss which could easily have involved further loss of life. These events have brought home to him, in an unmistakable and unforgettable manner, the importance of complying with these laws and regulations, but the principal purpose of the present exercise is to ensure that others also develop this realisation, so that ignorance and informality will not be permitted to obscure the responsibilities which the law imposes or to impair compliance with them.

35 Mr Tobiassen is presently aged 63, being born on 22 July 1944. He was, therefore, aged 58 at the time of these offences. He has had extensive building experience in the United Kingdom and in Australia. He obtained his registration as a builder in this State in June of 1993. He has been employed by Devcon since about 1997 as its registered builder responsible for the construction of a number of large warehouse or showroom developments. Often, as was the case with the construction of these showrooms at Myaree in September 2002, he was also engaged on four or five other major projects at any one time. He has no convictions for any offence regarding the safety of any construction site and this absence of prior convictions and his involvement in safe working practices over a long time are undoubtedly factors for consideration in his favour.

36 Mr Tobiassen's counsel submitted, and there was no challenge to the submissions, that the respondent's income was approximately $127,500 per annum from which tax of about $50,000 was payable. He owns no land or shares; has a relatively small amount of cash savings; and a motor vehicle of modest value. He is the sole director and shareholder of a company through which he conducts his building operations. The net equity of this company is also of modest dimensions.

37 It was also submitted that, as a result of these proceedings, the respondent faces a heavy liability for the costs of the trial in the Magistrates Court and of this appeal. I have no doubt that, for a variety of reasons, his financial resources are small and are likely to be greatly depleted. Mr Tobiassen's personal health is uncertain as he has been the subject of a diagnosis for bowel cancer, has undergone surgery and a period of chemotherapy and has been advised that the condition is presently in remission. His future working prospects must, therefore, be regarded as limited. By reason of his age it seems inevitable that he is presently nearing the end of a long working career in which he has achieved a reputation for reliability. These breaches of the law are serious but any sentencing decisions must also take this personal dimension into account.

38 After having weighed all these various considerations and endeavouring to take into account such guidance as can be distilled from the authorities to which I have been referred, I am of the view that in relation to the first offence a fine of $30,000 should be imposed. For reasons already explained, the imposition of that penalty will mean no further punishment should be, or will be, imposed in relation to the convictions on the second and third charges. In relation to charge number 4, the breach of the regulations relating to the casting of the concrete panels, I direct that a fine of $2,500 shall be imposed. In relation to the fifth charge, the conviction for the breach of the regulations concerning the bracing of the concrete panels, I direct that a further fine of $2,500 should be imposed. The result, therefore, is that the respondent is fined a total amount of $35,000 but that is the aggregate of the following penalties:

39 The appellant seeks an order that the respondent pay the taxed costs of this appeal and that there be a certificate for second counsel for the appeal. There is no objection to that order and I am satisfied that it is appropriate, and I will make such an order on motion by counsel.

40 With respect to the costs of the proceedings in the Magistrates Court, further orders are sought. After dismissing the five charges, the learned magistrate ordered that the appellant should pay to the respondent, the sum of $131,445.52 for his costs of the prosecutions and I have been informed, and it is agreed, that that sum was later paid. In view of the results of the appeal, that order should be set aside. It follows that the sum of $131,445.52 so paid to the respondent should be repaid to the appellant and I will make that order on application.

41 In addition to the costs of the appeal, the appellant seeks an order that the respondent should pay the appellant's costs of the trial before the learned magistrate, and that these should be fixed at the sum of $81,901. I am not in a position to fix such costs. I am informed that agreement on this liability at some figure near that sum is probable and that an order for the payment by the respondent of the taxed costs of the trial in the Magistrates Court will suffice. I will, therefore, make that latter order and give liberty to apply to this court to deal, if necessary, with any matters relating to the final determination of those costs.