Sacco Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153 | Case summary

Sacco Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153 | Case summary | Zoe

Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; 99 IR 29 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Diemould Tooling Services Pty Ltd v Oaten (2008) 174 IR 80; [2008] SASC 197 Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Hannes v DPP (Commonwealth) (No 2) [2006] NSWCCA 373 House v The King (1936) 55 CLR 499 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Inspector Mason v Wild Geese Building and Maintenance Group Pty Ltd [2006] NSWIRComm 350; 157 IR 313 Inspector Melissa Chaston v Sacco Builders Pty Ltd and Others [2008] NSWIRComm 152 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177 Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2007] NSWIRComm 86; 164 IR 146 CASES CITED: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v Workcover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Morrison v Powercoal Pty Ltd (2003) 130 IR 364 R v De Simoni (1981) 147 CLR 383 R v Olbrich (1999) HCA 54; 199 CLR 270 R v Palu [2002] NSWCCA 381 Rail Infrastructure Corporation v Inspector Victor Page [2008] NSWIRComm 169 Regina v Goodwin (1990) 51 ACrimR 328 Rodden v R [2008] NSWCCA 53 S v The Queen (1989) 168 CLR 266 State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; 100 IR 64 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316; 123 IR 121

6 The offences arose out of the same incident which occurred on 3 June 2005 at 29 Governor Macquarie Drive, Chipping Norton, where 50 factory units were under construction. Sacco Builders Pty Ltd ('the first appellant') was the project manager at the site. It contracted Ronald John McGeoch to be responsible for safety at the site. Both Mr McGeoch and the first appellant were responsible for implementing the safety plan at the site. 7 The first appellant contracted Kaydee Engineering Pty Ltd ('the second appellant') to supply and erect structural steel beams. The second appellant employed Simon Beddow as a manager with responsibilities that included implementing its occupational health and safety systems at the site. The second appellant contracted Sydney Metro Cranes Pty Ltd ('SMC') to erect the structural beams at the site and operate a boom lift, also known as an elevating work platform ('EWP') at the site. Mr J W Cunningham (the personal defendant before her Honour) was a director of SMC and a supervisor at the site. SMC employed Mark Gallace as a rigger at the site. SMC went into liquidation and was not the subject of a prosecution. SMC also employed Robert Freeland as its site foreman. Mr Freeland was also Mr Gallace's 'designated supervisor'. 8 On 3 June 2005, Mr Gallace and Mr Freeland were engaged in tightening the bolts of splice plates over the joints of the metal roof purlins which had been placed into position at roof level. The task was carried out from the platform of a boom lift at a height of 7.7 metres above ground level. Between 9.30 am and 10.30 am, Mr Dario Traini, the site foreman engaged by the first appellant, noticed that Mr Gallace's harness lanyard was not connected to the anchor point of the basket of the boom lift. He advised Mr Cunningham who immediately directed SMC employees to cease work and gather at ground level. He then verbally instructed the workers to attach the lanyards to their harnesses when working from the platform of the boom lift. 9 Some time before lunch, Mr Gallace commenced work in factory unit No 1, where he worked alone in the bucket of the boom lift. About 25 minutes after lunch, Mr Cunningham saw Mr Gallace apparently stuck between one of the purlins and the boom lift platform and safety rail. The purlin was pressed against Mr Gallace's chest and his body was bent backwards over the basket of the boom lift. He did not respond when Mr Cunningham called out to him. Mr Cunningham attempted to free Mr Gallace by operating the boom lift from the ground controls. He lowered the boom down to some six metres from the ground. As he did so, Mr Gallace tumbled to the ground. Both Mr Cunningham and Mr Freeland observed that Mr Gallace's lanyard, which was attached to the back of his harness, had not been clipped onto the boom lift platform. It emerged in the evidence (contained in the expert's report) during the sentencing hearings, that there was a fault in the safety drive override system of the boom lift. The override system, if it had been operating correctly, should have automatically switched the machine to slow speed when the boom was raised past a certain angle. The fault may have resulted in the machine not switching to slow speed when it should have, instead continuing to operate at high speed. 10 The post mortem report in relation to Mr Gallace found his death was due to the combined effects of a head injury and asphyxia. 11 Backman J, after reciting the facts, including those referred to above, observed that at the time of the accident Mr Gallace was a trainee in the use and operation of the EWP working alone at a height of over seven metres. He had only been at the site for five weeks. The work which Mr Gallace was performing was 'scheduled work' under cl 266 of the Occupational Health and Safety Regulation 2001 ('the Regulation'). Under cl 271 of the Regulation, a trainee is permitted to do 'scheduled work to which a recognised course of training in which the trainee is engaged, relates', only if the trainee performs the work under supervision. The supervisor is required to help and maintain a record of training in accordance with requirements under cl 275 of the Regulation. As Mr Gallace's 'designated supervisor', Mr Freeland was required to hold a certificate of competency in the use and operation of the boom lift. Mr Freeland could not produce his certificate of competency and an investigation was unable to reveal whether he, in fact, had such a certificate. It appears that Mr Freeland did not provide any instruction to Mr Gallace on the operation of the boom lift. 12 The operation and maintenance manual for the boom lift set out comprehensive instructions on its operation and emphasised the many hazards and risks associated with the operation, as well as the need to ensure an operator had been properly trained and instructed in the use of the machine. The instructions included, first, that only trained operators were allowed to use the Haulotte self-propelling platforms (i.e., the boom lift). Secondly, a person familiar with the operation of the machine should be located at ground level so that, if necessary, they could operate the controls at ground level in an emergency situation or, if directed, by the person(s) in the bucket. Thirdly, before commencing work, the operator must always assess overhead risks. 13 On the evidence, none of these matters had been attended to or brought to the attention of Mr Gallace, prior to his accident. Mr Cunningham was the 'responsible person' for Mr Gallace as a trainee for the 'scheduled work'. Clause 273 of the Regulation sets out the responsible person(s)' obligations in relation to a trainee doing scheduled work. Her Honour set out cl 273, noting that none of the obligations referred to in the clause appeared to have been discharged by Mr Cunningham in relation to Mr Gallace's traineeship. Clause 273 provides: 273 Responsible person's obligations

... [29] Given the nature of the risk to which Mr Gallace was exposed, and the extent of the failures to ensure his safety on the part of each of the three defendants it may be readily concluded that the consequences of those failures would, in all likelihood, be serious. In my view Mr Gallace's death was a manifestation of the risk to safety to which he was exposed by reason of those failures to ensure he could safely undertake the work he was performing immediately prior to the accident. None of the defendants have contended otherwise. 16 These considerations led her Honour to conclude that the offences charged against the defendants were objectively very serious. Her Honour then considered the systems of work in place prior to the offences, stating at [41]: [41] This material suggests that the three defendants had reasonably comprehensive systems in place before 3 June 2005, which sought to reflect matters of occupational health and safety. Although the systems all suffered from certain deficiencies, in particular with regard to the identification of risks, training, instruction and supervision associated with the operation of the boom lift, the systems nevertheless indicate that the defendants endeavoured to take their occupational health and safety obligations seriously. These matters are deserving of some mitigation of the otherwise objective seriousness of the offences. 17 The principles of general and specific deterrence were then referred to by her Honour, who considered that appropriate weight should be given to both factors in setting penalty. Her Honour considered the respective culpabilities of each of the defendants, concluding (at [49]) 'that they were probably equal' because: [E]ach defendant had some direct involvement in the construction work and had statutory obligations to ensure the safety of workers at the site. Each defendant failed to ensure that safe work methods were designed and implemented with regard to the work being undertaken by Mr Gallace at the time of the accident. 18 Her Honour allowed a 25 per cent discount for the utilitarian value of the early plea and took into account various subjective matters, including remedial measures implemented by the first appellant, co-operation with WorkCover, the appellants' good corporate citizenship and assistance provided by each of the appellants to Mr Gallace's family. The appeal

23 The essential question raised by the appeals goes to her Honour's determination of the objective seriousness of the offence, which resulted in the penalties imposed by her Honour that the appellants say were manifestly excessive. It is, therefore, necessary, noting that each appellant pleaded guilty to the charges and the particulars, to focus on the facts which were, of course, agreed and which have been summarised earlier in this decision. 24 It is convenient to deal with the grounds of appeal together because the starting point for considering the appropriate penalty is the objective seriousness of the offences. 25 We turn, firstly, to consider the appellants' contention that the degree of objective seriousness determined by her Honour was not justified on the evidence and upon a proper application of principle. 26 On the evidence, there can be no doubt that her Honour was correct in her conclusion that the offences were objectively very serious. The evidence, and her Honour's judgment, showed that the risk which materialised was the risk of serious injury or death resulting from a young, untrained and unsupervised employee being involved in operating a boom lift seven metres above the ground. 27 Her Honour found (at [13]), that '... the factual background and the factors which gave rise to the offences against the three defendants are substantially the same ...' Mr Skinner submitted that each of the appellants had different roles and persons on the site. The first appellant was the project manager, charged with having in place appropriate systems. It was the second appellant that had the contract to supply and erect the structural beams and it was SMC that had the contract to supply and operate the EWP. Counsel submitted that the first appellant relied upon the expertise of SMC and Mr Cunningham to operate the EWP and contended that it was SMC who had the responsibility under the regulatory scheme of ensuring that Mr Gallace was properly supervised. In addition, counsel pointed to the mechanical defect in the EWP, which it submitted, was not known or discoverable to the appellants. It had engaged Mr McGeoch, an appropriate OHS consultant and was entitled to rely upon him carrying out his duties. 28 The evidence as to the fault in the EWP was set out at [11] of her Honour's judgment, where her Honour observed: It emerged in the evidence (contained in the expert's report) during the sentence hearings, that there was a fault in the safety drive speed over-ride system. The over-ride system, if it had been operating correctly, should have automatically switched the machine to slow speed when the boom was raised past a certain angle. The fault may have resulted in the machine not switching to slow speed when it should have, instead continuing to operate at high speed. 29 Her Honour, correctly, rejected a submission from the first appellant as to this being a contributing factor. Her Honour concluded that the first appellant's reliance on this as a contributing factor was misplaced because it sought to connect the defect to the cause of the accident. 30 It is important to remember that the cause of the accident must not be confused with the offences in respect of which each of the defendants pleaded guilty, and which concerned breaches of the Act and potential risk to safety, not an actual injury or an accident. Whether the defect, which prevented the EWP from changing to low speed mode, was manifest at the precise time of the accident, was placed no higher than a possibility in the expert's report. 31 In any event, the risk in these proceedings was not that the EWP might develop a fault and rise in height too quickly, crushing the occupant against a purlin. The risk was a risk of serious injury or death resulting from a young, untrained and unsupervised employee being involved in operating a boom lift seven metres above the ground. Thus, the reliance by the appellants on the proposition that the fault in the EWP was not known to them and that should be a substantial mitigating factor, was misguided. It seems to us that if we were to accept the appellants' proposition it would mean that despite having failed in a number of significant ways to protect Mr Gallace from the risk of working alone at height in a machine he had not been trained to operate safely that the appellants should not be held entirely responsible for those failures because his death may have been caused or contributed to by a fault in the EWP. Such an approach undermines completely the purpose of s 8(2) of the Act, which is to require employers to ensure persons are not exposed to risk at the employer's undertaking. 32 The first appellant was the manager of the site and, as such, it was required to ensure that any work method statements incorporated a reference to the risks associated with the operation of the EWP under overhead structures and how such risks might be eliminated. The first appellant was not entitled to rely upon anyone delegating its statutory obligations, including to Mr McGeoch: see WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316; 123 IR 121 at [40]-[42]; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2007] NSWIRComm 86; 164 IR 146 at [35]. The fact that Mr Cunningham and Mr Freeland had supervisory responsibilities for Mr Gallace in relation to the operation of the boom, does not discharge the first appellant from its obligations to provide necessary supervision to Mr Gallace, or to ensure that necessary supervision was provided by someone else. Her Honour was correct, in our view, in finding that if direct supervision were not possible, because of, for example, lack of appropriate expertise or qualifications, it was incumbent upon the first appellant to ensure that some other suitably qualified person or persons could carry out appropriate safety instruction and supervision as directed by it: WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd. 33 Clause 273 of the Regulation, sets out the responsible person(s) obligations for a trainee doing scheduled work. The trainee must at all times be directly supervised unless the trainee's competency made direct supervision unnecessary. On the evidence, her Honour found that none of the obligations referred to in cl 273 appeared to have been discharged by Mr Cunningham in relation to Mr Gallace's traineeship. Similarly, Mr Freeland had similar obligations under cl 274, which were not discharged by him. Clearly, the failure by both appellants which gave rise to the risk to safety was not ensuring that a supervisor was present all of the time that Mr Gallace was carrying out his work on the site. The matters raised by the first appellant, which we referred to earlier, do not objectively give the offence a different character, when the obvious nature of the risk, the steps that could be taken to prevent it and the seriousness of exposing employees to it, are considered. 34 The first appellant had every opportunity, indeed obligation, to inform itself as to what was going on at its site and with its contractors and its contractors' employees and to put in place its systems and procedures to ensure the safety of employees working at the site. The contractual relations by which, in effect, it sought to divest itself of its obligations under the Act are of little significance when the matter is viewed in this way. 35 The second appellant's submissions also focused wrongly upon the cause of an accident or the actual injury and are rejected on the same basis as we have rejected the first appellant's contentions. 36 To the extent that Mr I Latham of counsel, who appeared for the second appellant, submitted that her Honour did not deal with its submission as to the fault in the EWP and, therefore, her Honour denied the second appellant procedural fairness and failed to take into account material considerations in terms of the principles in House v The King (1936) 55 CLR 499, this submission is misconceived. The principles set down by the High Court in House v The King, do not require a sentencing judge to deal with each and every submission made by a defendant. In any event, her Honour dealt with this submission, which was similar to a submission made by the first appellant and rejected it (at [45]). 37 The principles applicable to sentencing under the Occupational Health and Safety Act have been well established in this jurisdiction since Full Bench judgments in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 472 - 476; Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77 - 81; Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; 99 IR 29 at 51 - 67. Each of these judgments emphasise that an assessment of the objective seriousness of the offence is the appropriate starting point for the reasoning of the sentencing judge. 38 Mr Gallace, whilst operating the boom lift at height, was at risk to his safety because of a lack of proper training and instruction in the operation of the machine. Contrary to the requirements of the Regulation, he was not supervised at the time of the accident. He was a trainee, working alone, operating a machine with which he had inadequate familiarity at a height in excess of seven metres. The risk to his safety was not only reasonably foreseeable but obvious. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence; Lawrenson Diecasting at 467; Capral Aluminium at [81]; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at [27]. 39 Although damage or injury to employees does not, of itself, dictate the seriousness of the offence, or the penalty, a breach where there was every prospect of serious consequences, may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury, may manifest the degree of seriousness of the relevant risk: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral Aluminium at [94] - [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 at 428; Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. 40 In these matters, the incident resulted in the death of Mr Gallace. In our view, the seriousness of the risk and its foreseeability renders these offences, as was found by her Honour, to be objectively very serious. Looking at the range of objective seriousness, whilst being cognisant that subjective factors will always be different, these offences must fall within the mid-range of seriousness. The risk here was obvious and known. A trainee working alone on a moving machine at height, close to steel purlins was always exposed to the risk of being crushed and falling to the ground. The contention by the appellants that the risk was neither foreseeable nor able to be readily ascertained (because of the fault in the EWP), cannot be sustained. 41 Furthermore, employers are required to search out risks to safety and to take steps that mitigate such risks: WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; 100 IR 64; JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177; Rail Infrastructure Corporation v Inspector Victor Page [2008] NSWIRComm 169. It could not be said of either the first or second appellant that they actively searched out the risk to which Mr Gallace was exposed. The first appellant was the project manager at the site and whilst it had engaged Mr McGeoch to be responsible for safety, that was not sufficient to escape liability, a fact accepted by the first appellant through its guilty plea. The first appellant had no adequate system in place to ensure persons working on the site had the necessary certification to operate machinery and thereby provide at least prima facie evidence of competency. In other words, it did not know whether Mr Gallace was trained to operate the boom lift or whether Mr Freeland was qualified to act as Mr Gallace's designated supervisor and it did not take appropriate steps to put in place a basic checking system to avoid untrained personnel operating dangerous machinery. 42 As for the second appellant, it was contracted to supply and erect the structural steel beams and subcontracted SMC to erect the beams using a boom lift. Like the first appellant it took no adequate steps to ensure Mr Gallace was trained to operate the EWP or to check whether Mr Freeland was qualified to act as Mr Gallace's designated supervisor. Neither the first nor second appellant took steps to ensure that Mr Gallace was not working alone. 43 It was contended to the effect that SMC, the deceased's employer, was directly responsible for the failure to ensure safety and that neither the first nor second appellant, being at least once removed from the chain of supervision, could be regarded as culpable as SMC for exposing Mr Gallace to the risk to his safety. SMC was not prosecuted, apparently because it went into liquidation. That SMC was not prosecuted was a decision for the prosecutor. But there was no purpose served speculating about the level of SMC's culpability and how it might compare to the two appellants. What was required was an examination of the relevant objective and subjective factors in relation to each of the appellants and, through a process of 'instinctive synthesis', arriving at a judgment about what was the appropriate level of penalty having regard to the maximum penalty. 44 In any event, even if there were some basis for differentiating the penalty between the first and second appellants, which we obviously do not consider exists, the penalty imposed on both was within an acceptable range and, therefore, provides no ground for us to intervene to alter one or both penalties. 45 In respect of the penalty imposed by her Honour being manifestly excessive, the first appellant's submission was that: [A] fine of $180,000, where her Honour would have imposed a fine of $240,000 but for the 25 per cent discount stated by her Honour as being applicable for the utilitarian benefit of the appellant's plea of guilty, is in all the circumstances manifestly excessive. 46 Mr Skinner referred to three judgments of this Court in an attempt to demonstrate that lesser fines should have been imposed. In our view, such an approach fails to recognise the true nature of the sentencing process, as outlined by the High Court in Markarian v R [2005] HCA 25; (2005) 228 CLR 357, particularly the observations of McHugh J at [65], namely: Unfortunately, discretionary sentencing is not capable of mathematical precision or, for that matter, approximation. At best, experienced judges will agree on a range of sentences that reasonably fit all the circumstances of the case. There is no magic number for any particular crime when a discretionary sentence has to be imposed. 47 Recently, a Full Bench in dealing with a similar submission comparing cases and penalties stated, in Inspector Mason v Wild Geese Building and Maintenance Group Pty Ltd [2006] NSWIRComm 350; 157 IR 313 at [38]: ... We consider that there are real difficulties in comparing penalties imposed under the Occupational Health & Safety Act, even in cases where there is an essential common feature, such as a falling incident, crashing incident, etc. because of the myriad of differing surrounding factual circumstances in the cases ... 48 At [41], the Full Bench stated adequate regard has to be paid to the evidence as to the objective features of the offence: It has often been observed that the objective seriousness of an offence must be reflected in the penalty imposed. In Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1990) 90 IR 464, the Full Bench said at 474 - 475: The proper approach involves initially considering the gravity of the offence viewed objectively with the court ensuring that the allowance for subjective factors does not produce a sentence which fails to take into account the objective gravity of the offence.

See also Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383; WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163. 49 In the presentation of the case on appeal, Mr Skinner was not guided by this approach. The submissions on appeal frequently promoted subjective factors as controlling the sentencing exercise. In the present case, the system of work, the foreseeability of the risk, the serious nature of the risk, together with considerations of general and specific deterrence, did not allow for a lower level of penalty. 50 The second appellant submitted that the sentence imposed by her Honour was manifestly excessive in circumstances where: (i) the risk was neither foreseeable or able to be readily obviated; (ii) the culpability of the second defendant was significantly less than that of SMC; (iii) the second defendant had significant subjective factors that supported a lower sentence; (iv) the second defendant had implemented significant remedial measures after the accident, at [56]; (v) the burden of the sentence will fall upon one person or family group. 51 The second appellant's contention that the sentences imposed by her Honour were manifestly excessive must fail for the same reasons that we have given in rejecting this ground of appeal brought by the first appellant. 52 The bringing of this appeal on the question of whether the penalty was manifestly excessive not only demonstrates a fundamental misunderstanding of the role of subjective features in these matters, but also the role of penalties. The starting point in the sentencing process is an assessment of the relative seriousness of the offence in relation to the worst case for which the maximum penalty is provided: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698, (per Kirby P, which whom Campbell and James JJ agreed). The maximum penalty for these offences was $550,000. This was a case where there were significant objective factors in respect of the maximum penalty and where the risk was very high. It is completely misconceived in that context that a low mid range penalty should apply. In our view, such a submission shows a misunderstanding of how the maximum penalty should be applied. We wish to make it abundantly clear that having regard to the objective and subjective factors that are relevant to be assessed in these proceedings, penalties of the kind imposed fall within the acceptable range, albeit at the lower end. 53 In this respect, we refer to the observations of Full Benches in the following judgments. In Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v Workcover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435, the Full Bench in determining an appeal in which an employee sustained fatal crush injuries and where a penalty of $160,000 had been imposed at first instance, observed at [72]: ... We have very much in mind too the submission by the appellant on appeal when Mr Archer put that the fine of $160,000 imposed by her Honour 'would be at the lowest end of the scale of penalties for serious offences with mitigating circumstances causing a death'. In light of a maximum penalty for the offence of $550,000, we accept the force of counsel's submission. ... 54 Similarly, in Capral Aluminium, where the Full Bench was considering an appeal in which a penalty of $150,000 had been imposed at the first instance in circumstances where an employee had sustained burns to the back of his head, neck and left arm and hand, the Full Bench observed at [99]: ... For our own part, we would nevertheless state that a penalty which was one fifth of the maximum for the offence was not excessive, giving due weight to the matters which the appellant is entitled to rely upon, but having regard also to its previous record. Indeed, we consider that it is open to the Full Bench to impose a penalty in the order of $200,000 to $220,000. However, we do not consider it appropriate to do so for a number of reasons. ... 55 Recently, Walton J Vice-President in Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92, in an extensive review of the principles applicable in occupational health and safety sentencing matters, observed in respect of determining the maximum penalty as follows at [192]: (i) Maximum Penalty

In Morrison v Powercoal (2005) (at [16] and [17]), the Full Bench observed that a fundamental consideration in determining penalty is the maximum penalty for an offence. In R v Moon (2000) 117 A Crim R 497 at [70], Howie J described "the nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence" as being "crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed". Wright J, in Walco (at [23]), described the task of the Court in sentencing as "assessing the relative seriousness of the offender's particular offence in relation to the worst case for which the maximum penalty is provided" (see Independent Cargo at 4). Ultimately, maximum penalties will have significance in sentencing in accordance with the statement of the High Court of Australia (per Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian v The Queen (2005) 228 CLR 357 at [30] and [31] as follows: Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing , Stockdale and Devlin observe that: 'A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ... A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].' It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case... 56 Penalties of $180,000, given that the maximum for the offence was $550,000, were well within the range of penalties that may be imposed, taking into account the objective seriousness of the offence, the particulars to which the appellants pleaded guilty, and the findings made by her Honour. The offences here were aggravated by the fact that the worker who was exposed to the risk was a trainee. The penalty imposed by her Honour fits within the mid range, but is not at the upper end of it. It is most important that sentencing under any regime be done against the maximum penalty, not on the basis of what is thought to be fair in any case. 57 We turn to consider the contention that her Honour erred in her application of the principle of parity. The first appellant contended that the failures of SMC and to a lesser extent, the second appellant, were objectively more serious than its failures. It pointed to SMC having the obligation under cl 273 of the Regulation, to ensure that Mr Gallace was directly supervised by a designated supervisor and that Mr Gallace himself was obliged to keep records of his training under cl 275. It is noted that SMC was not even charged, although the evidence discloses that this was because it went into liquidation. A similar position was put by the second appellant, although it conceded that the question of parity was more difficult to apply in this case, given that SMC was not prosecuted. 58 These submissions, as observed by Mr Reitano, demonstrate why it is that on balance, the respective culpabilities of the appellants were the same. The fact that the first appellant had direct control of the work on the site and the second appellant had control of SMC, illustrated their equal culpability. We can find nothing inconsistent with her Honour's reasoning in arriving at a position of equal parity and sentences being the same when considering subjective matters. As to the subjective factors, it is apparent that her Honour did not overlook them. They were dealt with at [50]-[59] of her Honour's judgment. 59 We can discern no error in her Honour's assessment of the appellants' culpabilities in relation to the circumstances of the offence and we are unable to conclude that the culpability of one appellant was greater than the culpability of the other. Her Honour's assessment proceeded on the basis that each defendant had some direct involvement in the construction work and had statutory obligations to ensure the safety of workers at the site. Each defendant failed to ensure that safe work methods were designed and implemented with regard to the work being undertaken by Mr Gallace at the time of his accident. This led her Honour to conclude that the respective culpabilities of the three defendants (including Mr Cunningham), were probably equal. 60 Finally, since the drafting of these reasons, we have had the opportunity to read the reasons, in draft, of Marks J. Nothing raised by his Honour has caused us to form a different view of these appeals. Such matters addressed by Marks J were not raised by the parties, nor have we had the benefit of any submissions in respect of them. Furthermore, we have real doubts about the approach his Honour has adopted and in that respect we make the following observations. 61 First, the appellants/defendants were represented by experienced counsel practising in the criminal law jurisdiction, at first instance and on appeal. 62 Secondly, no issue was raised in respect of the particulars being defective, failing to identify a 'material particular', nor was there any issue regarding the sufficiency of the particulars, or there being any latent ambiguity. In the authorities referred to by his Honour which dealt with the inadequacy of, or defective, particulars, such issue was raised at the outset by the defendant and are clearly distinguishable. 63 Thirdly, in respect of the contention of a miscarriage of justice and the principles in Rodden v R [2008] NSWCCA 53, this was a jury trial and the trial judge's summing up was found to be inadequate. It is clearly distinguishable also. 64 Here, the defendants pleaded guilty (no doubt, after considered legal advice); an extensive agreed statement of facts was tendered in the sentencing proceedings; and no issue was raised in the appeal in respect of the particulars or the form and content of the charge. 65 In respect of his Honour's general observations as to the extent of an employer's obligation under the Act, we obviously disagree with his Honour's view.

Annexed to this Statement of Facts are the following documents: (1) Clause 266 of the Regulation; (2) Clause 271 of the Regulation; (3) Mr Gallace's OH&S Certificates; (4) Operating and Maintenance Manual for the EWP; (5) TestSafe Report dated 24 January 2006; (6) Photographs of the EWP and Boom; (7) Factual Inspection dated 20 June 2005; and (8) Statement of Prior Convictions. 74 During the course of the appeal proceedings, the appellant Sacco sought to have tendered into evidence certain documents that were contained within the prosecutor's brief of evidence. The basis for doing so was that they contained material that amplified and explained some of the material in the agreed statement of facts. The respondent on the appeal, the prosecutor in the proceedings below, objected to the tender of this material. The Full Bench reserved its position. 75 This evidence consisted of extracts of statements made by Messrs Robert Freeland, James Cunningham and Dario Traini to Inspector Chaston, the prosecutor, and an investigating police officer, an extract of the statement of Sergeant Jayne Dougherty, the investigating police officer and the post-mortem report carried out on the body of the late Mr Gallace. This information indicates that Mr Cunningham saw the deceased as he was walking through the building site. He saw that he was "stuck between a purlin and boom lift platform hand safety rail. I saw that the purlin was pressed against his chest area causing him to bend backwards over the basket of the boom lift." He called Mr Freeland, who was the deceased's direct supervisor, who came over. Mr Cunningham endeavoured to lower the bucket. It appears that the deceased's legs were "up above the bucket" and as it was lowered, the deceased slid out of it, falling to the ground some six to eight metres below. A description of the deceased given by Mr Freeland, who had a "senior first aider's certificate", was that he was unable to detect a pulse. He said, "As I have seen people crushed before and his eyes were popped, and they were full of blood, I knew he was already dead." Mr Freeland saw that the deceased had a wound to the back, that the deceased's eyes "were bulging out of his head" and said that he had seen that he had seen this before "with crush victims". He also said that the deceased had blood coming from his left ear. 76 The post-mortem examination noted: "A fracture of the base of the skull consistent with the application of a side-to-side compressive force to the head. The presence of severe congestion of the head, face, neck and upper chest together with numerous pinpoint haemorrhages in the eyes…was consistent with compressive/traumatic asphyxia." Death was said to be due "to the combined effects of head injury and asphyxia." 77 As will be seen, I have concluded that the approach to sentencing followed by Backman J was erroneous in that her Honour did not undertake the sentencing process in the context of the offences with which each of the appellants was charged and, more importantly for present purposes, her Honour failed to take into account the factual matters established to the required standard when undertaking the sentencing process. 78 The further material sought to be tendered on appeal was available to all of the parties, but did not find its way into the amended agreed statement of facts. Given the paucity of factual material that was put before her Honour by the parties, it was, in my opinion, incumbent upon them to assist her Honour in undertaking the sentencing process by reference to all of the factual material that was reasonably available for that purpose. It was certainly the duty of the prosecutor to ensure that this was accomplished. 79 In my opinion, the additional evidence would have assisted her Honour in undertaking the sentencing process. For present purposes I cannot say, however, that the existence of this material was not known to the parties. Nor am I able to conclude that the parties had failed to realise the significance of the material although, in my opinion, they should have done so. The circumstances attending this application to admit the additional material do not fall in the strict sense within the principles applied by appellate courts, as exemplified by cases such as Regina v Goodwin (1990) 51 ACrimR 328 (New South Wales Court of Criminal Appeal). However, given what I regard as the duty of this Court as presently constituted to ensure that no serious miscarriage of justice occurs, I would favour the grant of leave to make this evidence available on appeal. I shall refer later in these reasons for judgment to overall principles concerning miscarriage of justice. 80 In her judgment, the trial judge, Backman J, discussed "the risk to safety and foreseeability of the risk." Her Honour emphasised that the deceased was a trainee "working alone at a height of over seven metres" and had been at the site for "only five weeks". The work was regarded as "extremely dangerous". Her Honour noted that the deceased was working under the supervision of Mr Freeland who had not kept him within sight or within earshot, as required by the relevant regulation. Nor had a record of training been kept as required. Furthermore, there was some doubt about whether Mr Freeland held a relevant certificate of competency. Her Honour noted that there had also been a failure to ensure that the deceased was properly instructed in the operation of the boom lift. Finally, her Honour noted that only trained operators were allowed to use the boom lift, a person was required to be located at ground level while the boom lift was being operated and an assessment should have been undertaken about the overhead risks involved in the work. All of these were said to represent failures on the part of personnel of SMC. 81 In discussing the circumstances that applied to Sacco, her Honour noted that there were "no documented safe work methods for the operation of boom lifts between the employers at the site." Furthermore, although Sacco's site foreman had given the deceased site-specific induction, he had not been inducted into the SMC safe work methods statement, "nor was he inducted into a safe work procedure for the fixing of structural steel beams prior to the accident." 82 In the same way, Kaydee's work methods statement was said by her Honour to be deficient "because it did not incorporate any reference at all to risks associated with the operation of boom lifts under overhead structures or the method by which such risks might be eliminated." 83 The prosecutor had argued that the culpability of each of Sacco, Kaydee and Mr Cunningham as a director of SMC was "probably equal." Her Honour agreed with that submission. She concluded that "each defendant had some direct involvement in the construction of work and had statutory obligations to ensure the safety of workers at the site. Each defendant failed to ensure that safe work methods were designed and implemented with regard to the work being undertaken by Mr Gallace at the time of his accident." 84 In reaching this conclusion, her Honour relied upon the inability of a person or entity bound by the provisions of the Act to delegate the statutory obligations imposed upon them to ensure safety to another person. Accordingly, her Honour's reasoning proceeded on the basis that the obligations of each of Sacco and Kaydee in terms of the lack of proper and instruction in the operation of the machine and the lack of supervision at the time of the accident. In terms of the responsibility of Sacco, her Honour said:

[43] In my view, the fact that Mr Gallace's employer (and Mr Cunningham) had supervisory responsibilities for Mr Gallace in relation to the operation of the boom, does not discharge Sacco from its obligations to provide necessary supervision to Mr Gallace or to ensure that necessary supervision was provided by someone else. If direct supervision were not possible because of, for example, lack of appropriate expertise or qualifications, it was incumbent upon Sacco to ensure that some other suitably qualified person or persons could carry out appropriate safety instruction and supervision as directed by it. 85 It was this reasoning that led her Honour to the conclusion that all of the three defendants were equally culpable and that, as it transpired, each of the appellants was fined the sum of $180,000. 86 The appellants submitted, in essence, that in all the circumstances the objective seriousness of the offences to which they had pleaded guilty was significantly less than that which applied to SMC as the employer of the deceased. 87 The determination of these appeal proceedings involves, in part, a consideration of the manner in which the objective seriousness of the offences, the subject of the appeals, should be characterised and whether, in all the circumstances, account should be taken of the relative functions of each of the appellants on the building site. I do not apprehend that an examination of the general criminal law authorities concerning an assessment of the objective seriousness of an offence will provide a great deal of assistance. However, some guidance is provided by the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A is in the following terms: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(e) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in any of the above paragraphs. serious personal violence offence means a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) that is punishable by imprisonment for life or for a term of 5 years or more. 88 It will be seen that the aggravating factors which are referred to in s 21A(2) canvass a wide variety of circumstances that apply to the commission of the offence. Probably, the recitation of these aggravating factors does not add to the position at common law, namely that courts are required, in assessing the objective seriousness of the offence, to look at the degree of culpability and the gravity of the situation in the context of all of the circumstances that apply to the commission of the offence. 89 Ultimately, what is thrown up in stark fashion for determination in these appeal proceedings is whether the court should, as a matter of principle, take into account, as part of the context in which these offences were committed, the respective functions of the principal contractor and its sub-contractor who in turn contracted out part of its work to SMC. An example is provided by the approach taken by Backman J. As I have previously referred to, her Honour said that if direct supervision by the deceased's employer were not "possible", then it was incumbent upon Sacco to ensure that some other suitably qualified persons performed that task. 90 However, in the circumstances of these proceedings, there was no question of the possibility of direct supervision arising. What occurred was that the deceased's direct supervisor did not have him either in sight or within hearing whilst the deceased was carrying out the work and, on one view of the facts, the deceased should not have been carrying out the work itself. 91 In the course of submissions on the appeal, counsel for the WorkCover Authority of New South Wales said that both Sacco and Kaydee were compelled to ensure that at all times the deceased was adequately and appropriately supervised. If such an obligation, as formulated by the WorkCover Authority of New South Wales, was carried out to the extent contended for by that Authority, this would require sufficient personnel to be engaged by Sacco and Kaydee to enable constant supervision of each and every employee of a contractor and of any sub-contractors on the site so as to ensure that each of them was appropriately supervised or, if not, that such supervision could be given by them. Not only would this require the provision of a large workforce on a large worksite to supervise either the supervisors of such employees or to supervise those employees directly, but it would also be necessary to provide within that workforce persons with such technical and trade expertise that they were able to appropriately supervise the supervisors of or the employees themselves with respect to all of the trade and technical work that they were undertaking. 92 The Act creates absolute liability. However, the fact remains that the creation of a risk to the safety or welfare of persons at work in almost all cases will ipso facto result in a breach of the provisions of the Act. A person working in a closed environment, such as an office, factory or shop, who was suffering from the common cold would create a risk to the health of fellow workers by reason of the contagious nature of the virus. There are means reasonably available to eradicate the risk, namely sending the employee home or prohibiting any employee so suffering from such a condition from attending work. 93 In my opinion, it is inappropriate to ignore the respective functions of a principal contractor and a sub-contractor when assessing the degree of culpability in connection with the characterisation of the objective seriousness of an offence in the circumstances as they applied to these proceedings. As the amended statement of agreed facts indicates, and as her Honour accepted, each of Sacco and Kaydee had in place extensive systems designed to optimise the safety of the working environment at the building site. Each of them had gone to some trouble to attempt to discharge the heavy obligations imposed upon them by the Act. In my opinion, the position contended for by the WorkCover Authority of New South Wales is impractical and impossible to comply with without the imposition of increased costs. 94 There is a more fundamental matter to which I should refer in the context of a consideration of her Honour's judgment. That has as its basis the particulars of the charge brought against each of the defendants. By way of example, the appellant Sacco was charged with a breach of s 8(2) of the Act in that it "failed to ensure that people other than its employees were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work …." The breach of the Act is said to have occurred on 3 June 2005 at the address noted in [3] of the amended statement of agreed facts, which I have extracted at [6] above. 95 I now set out the particulars of the charge as brought against the appellant Sacco, which are in relevantly identical terms to those brought against the appellant Kaydee.

By reason of the defendant's omissions Mark Gallace was fatally injured. 96 The omissions asserted against the appellant are contained in [4] to [7]. It will be noted that each of them refers to a failure that impacts upon "people". There is no greater specificity than this general reference. It is not until one comes to [8] that any particular person is named. In referring to the late Mr Gallace, [8] is framed in terms that introduce a causal nexus between each of the omissions referred to in [4] to [7] and the death of Mr Gallace. 97 Accordingly, as I read the offence with which the appellant Sacco was charged, it is that the appellant at the named place and on the named date breached the provisions of s 8(2) of the Act by reason of each of the omissions identified in [4] to [7], each of which omissions caused the death of Mr Gallace. 98 Particularisation of a charge brought against a defendant is a fundamental requirement in the administration of the criminal justice system. It is a basic tenet of criminal law that a defendant and the court must at all times be made aware of the particulars of the charge that has been asserted by the prosecutor. These are the particulars of how it is asserted that the offence has been committed. 99 In John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508, Mason CJ, Deane and Dawson JJ said: the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: "an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence" …. (At [14]). 100 The judgment in John L in turn referred to the oft quoted and seminal reasons for judgment of Dixon J and Evatt J in Johnson v Miller (1937) 59 CLR 467. 101 At 489, Dixon J spoke of: For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. 102 At 497 and 498, Evatt J said: It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court's inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law. For various reasons, including the miscarriages caused by technical objections to matters of form, the formal indictment, information or complaint is allowed to become more sparing in the information it imparts. Side by side, the jurisdiction to order particulars may call for more frequent exercise. It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer. 103 The importance of particulars was also referred to in the High Court of Australia in S v The Queen (1989) 168 CLR 266, and see especially the judgment of Gaudron and McHugh JJ at 288. 104 If further authority be required for such a fundamental requirement that a charge be properly particularised, I refer to the judgment of Barr and Hall JJ in the New South Wales Court of Criminal Appeal in Hannes v DPP (Commonwealth) (No 2) [2006] NSWCCA 373. (Basten JA agreed with their Honours' reasons). 105 At [397] to [400], their Honours said: [397] In Regina v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281; (2005) 223 ALR 580, at [52]-[53], Spigelman CJ stated: "Most of the functions performed by the process which initiates criminal proceedings, particularly an indictment for serious offences, have been fully satisfied by the precise terms of the charge appearing, as it does, in the same form in the various indictments. These include

(v) To invest the trial court with jurisdiction to hear and determine the prosecution ( John L (supra) at 519)." [398] In John L Pty Limited v Attorney General (NSW) (supra) at 519, Mason CJ, Deane and Dawson JJ referred to the underlying requirement that an information inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed: "The rationale of that requirement has, in more recent times, commonly be seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet." [399] The joint judgment refers to dicta in Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153 at 166 in the following terms: "… an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence." [400] Mason CJ, Deane and Dawson JJ in John L (at 519) referred to legislation enacted to render summary proceedings before justices less open to technical objection but observed that such legislation did not go so far as to abrogate the requirement "… that a valid information must at least identify the essential factual ingredients of the actual offence": see, eg., Smith v Moody (supra) at 60; Johnson (supra) at 486-487, 501; Ex parte Graham; re Dowling (1968) 88 WN (NSW) 270 at 280. 106 The relevance of particulars of a charge in the context of the criminal process is further exemplified by the recourse to particulars of the charge in determining whether pleas of autrefois acquit or the principle of double jeopardy applies. See, for example, the discussion by Abadee J in the New South Wales Court of Appeal in State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517 at 535. 107 The part that is played by particulars of a charge in the context of occupational health and safety legislation was discussed by Doyle CJ in the Full Court of the Supreme Court of South Australia in Diemould Tooling Services Pty Ltd v Oaten (2008) 174 IR 80; [2008] SASC 197. Those proceedings dealt with a matter that has been settled some time in New South Wales, namely whether or not breaches of the equivalent of ss 8(1) and 8(2) constitute single breaches with multiple particulars or whether they are in essence separate breaches. 108 The observations of Doyle CJ concerning the structure of the Act and the particularisation contained within charges may be found in [31] to [36] of his Honour's judgment which are set out hereunder. [31] A contravention of s 19(1) of the Act can be described as constituted by a state of affairs rather than individual acts or omissions. That reflects the fact that the contravention of the statutory command is the failure to ensure, so far as is reasonably practicable, safety from injury and risks to health.

[36] It might emerge when the evidence is led that some of the matters alleged as particulars did not contribute to the contravention of the statutory command on the occasion in question, that is, when the employee used the horizontal borer. It may be that the evidence will reveal that a number of the matters alleged as particulars lack the required nexus in time, place and circumstance for them to be treated as proof or part of the proof of the alleged contravention. In that event the relevant particular will not be made out. It is possible that when the evidence is heard it might tend to establish not the offence alleged, but some other breach of the statutory command that plays no part in the offence alleged. In that event, latent duplicity will have emerged and the relevant particular should be struck out, and the relevant evidence held inadmissible. 109 In short, not all of the particulars of an offence with which a defendant is charged may represent essential elements or ingredients of the offence. Certainly, the fact that Mark Gallace was fatally injured does not fall within this category. Nevertheless, it constitutes a particular of the offence with which the appellants were charged. These were, in my opinion, the charges that were levelled against each appellant and with respect to which the appellants pleaded guilty. 110 As I have previously noted, the particulars contain an assertion of a causal nexus between the omissions particularised against each appellant and the death of Mark Gallace. It might be said that such an assertion was unnecessary. Nevertheless, they were included within the particulars asserted against each appellant by the prosecutor and, to the extent that the causal nexus between the failures and the death of Mr Gallace is contained within the particulars, they might also be seen as having a restrictive or limiting effect. Namely, the charge brought against each appellant is confined to such failures as caused the death of Mr Gallace. On this basis, the reference in each of [4] to [7] of the particulars of the charge must be confined by reason of [8] to those circumstances that brought about the death of Mr Gallace. 111 I now refer to such evidence as was before Backman J concerning the cause of the death of Mr Gallace. As I have previously indicated, no one witnessed the incident. It may be deduced from the amended statement of agreed facts that at the time of his death Mr Gallace was positioned approximately 7.7 metres above ground level. Although there was no or insufficient evidence before Backman J as to whether Mr Gallace was dead when initially found in the bucket of the EWP, I would conclude, on the basis of the additional evidence which I would have been prepared to admit for the purpose of the appeal proceedings, that Mr Gallace was dead by the time he was first seen in the bucket. This is clear from the statements given by Messrs Freeland and Cunningham and is consistent with the results of the post-mortem examination, which refers to the combined effects of head injury and asphyxia. 112 There was, however, no evidence before Backman J as contained within the amended statement of agreed facts that would assist in creating some understanding as to what caused Mr Gallace to manipulate the bucket to a height in circumstances where his chest area became caught between the purlin and the hand safety rail of the boom lift platform. There is no evidence of the speed at which the EWP would have been raised under normal operation, that is low speed as referred to in [41] of the amended statement of agreed facts or at high speed as referred to in the same paragraph. There is no evidence therefore as to the time that would be taken to travel either all or part of the distance travelled at either speed, assuming that there were only two relevant speeds, namely low speed and high speed. Put shortly, there is no evidence as to whether the incident was caused by operator error, machine error or perhaps a combination of both. There was no evidence available from any person with expertise in the operation of the equipment who would be able to assist the Court with some understanding as to the conditions under which Mr Gallace was working when operating the equipment. I conclude that there was either no or insufficient evidence to enable Backman J to have determined to the requisite standard of proof the cause or causes that brought Mr Gallace into contact with the roof purlin. 113 In these circumstances, there must be some considerable doubt about the extent of the culpability of both of the appellants. By way of example, if it is concluded that it is more likely than not that Mr Gallace died when his body struck the purlin, then it is difficult to conclude that his death was caused by reason of his failure to wear a harness which was properly affixed to the platform. In the same way, it is difficult to comprehend how any failure to give proper training, instruction and supervision might have prevented the death of Mr Gallace. Perhaps, if his supervisor had been in the bucket with him, he may have been able to avert the incident, but this is purely speculation. 114 Perhaps, an examination of the boom lift to detect whether there were any mechanical problems taken on the day of the incident might have detected the possibility of the detection of the fault referred to in [45] of the amended statement of agreed facts. However, as recorded in [42], there was evidence of a maintenance inspection carried out on 1 April 2005 and there was certainly no evidence before Backman J that any difficulty had been encountered by anyone in the operation of the equipment prior to the incident. 115 My review of the evidentiary material that was before Backman J, undertaken in the context of the manner in which the particulars of charge were framed, leads me to conclude that there must be considerable doubt about whether or not there was sufficient evidence before Backman J to enable her Honour to embark upon the sentencing process. Of course, the difficulties encountered with respect to reliance upon agreed statements of fact are well known. The obligations imposed upon the parties in assisting the Court concerning the relevant and appropriate factual material in the context of a sentencing process were referred to by Howie J in the New South Wales Court of Criminal Appeal in R v Palu [2002] NSWCCA 381. Levine and Hidden JJ agreed with his Honour's judgment. At [21] his Honour said: [21] It behoves the parties, especially after a "plea bargain", to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court, Chow v DPP (1992) 28 NSWLR 593 at 604-608. If a statement of facts is to be tendered, it should both support the charge for which the offender is to be sentenced and accord with the offence charged. It should not contain facts that would aggravate the offence in breach of the principle in The Queen v De Simoni (1981) 147 CLR 383. If it purports to be an agreed statement of facts so that it is intended to provide the factual basis upon which the parties wish the court to sentence the offender, the facts should be sufficient to permit the court to exercise its discretion and the Crown should not tender other material which might supplement or contradict the facts set out in the agreed statement. If other material is placed before the court which relates to the facts of the offence, then the parties should understand that the court is not bound by the tendered statement of facts or any agreement made between the parties as to the basis upon which the offender is to be sentenced: Altham (1992) 62 A Crim R 126; Chow v DPP , above at 606. All too frequently, or so it seems to me, uncertainty, confusion and, sometimes, error arises because of the failure of the parties, and in particular the Crown, to clearly identify the material upon which the facts of the matter are to be gleaned by the sentencing court. So it was in the present case. 116 The fundamental importance of the fact-finding exercise in connection with the sentencing process in criminal trials was emphasised in the joint judgment of Gleeson CJ, Gaudron, Hayne and Callinan JJ in the High Court of Australia in R v Olbrich (1999) HCA 54; 199 CLR 270. At [1], their Honours said, in part: [1] The process by which a court arrives at the sentence to be imposed on an offender has just as much significance for the offender as the process by which guilt or innocence is determined. Unless the legislature has limited the sentencing discretion, a judge passing sentence on an offender must decide not only what type of penalty will be exacted but also how large that penalty should be. Those decisions will be very much affected by the factual basis from which the judge proceeds. In particular, the judge's conclusions about what the offender did and about the history and other personal circumstances of the offender will be very important. 117 Their Honours also discussed in general terms matters relating to the onus and standard of proof in connection with the fact-finding process involved in the sentencing component of criminal proceedings. At [25] and [27], their Honours said: [25] Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.) (Footnotes omitted)

[27] As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey [1998] 1 VR 359 at 369 (per Winneke P, Brooking and Hayne JJA and Southwell AJA) - that a sentencing judge "may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities." 118 I should refer also briefly to the decision of the High Court of Australia in R v De Simoni (1981) 147 CLR 383. The Court concluded that in the circumstances of those proceedings, and in criminal proceedings generally, the sentencing process must be directed to the manner in which the charge is framed. If, for example, it is asserted by the prosecutor that the particular proceedings constitute an aggravated example of the offence, the prosecutor is required to prove the facts that establish that conclusion beyond reasonable doubt. 119 The attention of Backman J was drawn to the possible part played by any defect in the EWP in leading to the death of Mr Gallace. Her Honour rejected any suggested relevance of such evidence. At [45] her Honour said: [45] As to the mechanical fault detected in the operation of the boom lift, Sacco's reliance on this as a contributing factor is misplaced. This is because Sacco sought to connect the defect to the cause of the accident. The offences with which each defendant was charged are concerned with breaches of the Act and resultant risks to safety, that is, a risk of injury, for example, and not an actual injury, or an accident. In any event the conclusion in the expert's report, in relation to the cause of the accident, was speculative as to that cause. Whether the defect, which prevented the EWP from changing to low speed mode, was manifest at the precise time of the accident, was placed no higher than a possibility in the report. 120 It will be noted that her Honour, in rejecting any suggestion of a causal nexus between the mechanical fault and the offence with which each of the appellants was charged, described those charges as being "concerned with breaches of the Act and resultant risks to safety, that is, a risk of injury, for example, and not an actual injury, or an accident." 121 I have previously set out the details of each of the charges, as contained in the application for order. As I read them, they are directed to and specifically assert that Mark Gallace was fatally injured by reason of the four omissions which were particularised. Whilst it would be permissible to find the appellants guilty of a breach of s 8(2) of the Act by reason of any of the four omissions particularised, in the case of each of them it was a particular of the offence with which each of them was charged that the death of Mark Gallace was caused by the omission. 122 The application for order makes no reference to a risk of injury created by any of the omissions. There is no reference to any particular person other than the reference to Mr Gallace. 123 The applications for order were made under s 246(1) of the Criminal Procedure Act 1986, which is in the following terms: 246 Orders for appearance or apprehension of accused persons (1) A prosecutor may apply for an order: (a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or

(b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order. 124 It will be seen that the order applied for must contain an allegation that a person has "committed an offence….". The order requires such a person to appear before a court "to answer to the offence charged in the order….". 125 Accordingly, the application for the order and the effect of the order is to require a person to deal with that offence which is charged within its terms. 126 I have already referred to the functions fulfilled by the particularisation of an offence and the necessity for such particularisation to be given as will allow a defendant to understand the precise terms of the charge that is levelled and to enable a court to adjudicate. 127 The particulars of the charge will identify the way in which it is said the defendant has committed the offence with which it has been charged and will establish the case that the prosecutor must make out in order to secure a conviction. Particulars when ordered and delivered will have a force and significance by virtue of the very fact that our criminal procedure provides for them. Once delivered they will have a consequence in the further conduct of the trial. Obviously they will have to be read with the terms of the indictment in defining the terms of the charge and the case which the Crown has to prove. (Per Macrossan CJ in the Queensland Court of Appeal in R v Lewis [1994] 1 QdR 613 at 624.) 128 It is necessary to distinguish between the elements of the offence with which a defendant is charged and the particulars of the charge itself. If a defendant is charged with having committed a criminal offence, then it is necessary for the prosecution to establish each and every element of the offence beyond reasonable doubt. However, it is not necessary that each and every particular of the charge should be established provided that the prosecution is able to prove a sufficient number of particulars as will enable the elements of the offence to have been established. 129 The essential elements of the charge brought against each of the appellants in order to establish a breach of s 8(2) of the Act is that they were each an employer, that persons who were not their employees were exposed to a risk to their health or safety, that that risk arose from the conduct of the appellant's undertaking and that the risk arose while they were at the appellant's place of work. 130 The manner in which such an offence might be particularised will obviously depend on the relevant circumstances that applied. In the case of these proceedings, the risk in each case was said to have been created by a failure to provide a safe system of work for persons operating the EWP, the failure to undertake an adequate risk assessment for the work that was being undertaken, the failure to ensure that those persons working on the EWP were properly trained, instructed and supervised and a failure to ensure that those persons were adequately protected from falls by ensuring that harnesses were properly affixed. 131 Each of those particulars was qualified by an allegation that in each case the omission caused the death of Mark Gallace. 132 It is possible that if the proceedings had gone to trial and had been defended, the prosecution may have failed to have established by proof any one or more of the particulars of omissions to which I have referred. However, it would only have been necessary for the prosecution to have established one of the omissions coupled with the causal nexus between that omission and the death of Mr Gallace to have succeeded in establishing the commission of the offence. 133 It is possible also that the prosecution may have established any one or more of the omissions but had failed to establish the causal nexus with the death of Mr Gallace. In those circumstances, the particulars of each of the charges as formulated would have not been established and, unless the particulars were amended in some appropriate way, the charges would have failed. 134 Even if I were incorrect in this last conclusion and that, in some way, it could be concluded that, in the circumstances where any one or more of the omissions were established to the requisite standard but the prosecution failed to prove the causal nexus with the death of Mr Gallace, it might nevertheless be concluded that the essential elements of the offence had been made out, and the appellants were susceptible to conviction, any penalty imposed could not be predicated on the basis that the death of Mr Gallace was causally connected to the commission of the offence. Indeed, there is no particularisation of any particular risk to any particular person or persons. Nor was there any evidence about any of these matters. 135 Having regard to the observations that I have made, I would conclude that it is arguable that the sentencing process before Backman J miscarried. This is firstly because there was an unsatisfactory factual basis upon which her Honour could determine to impose a penalty on each of the appellants given the fact that the particulars required the establishment of a causal nexus between their omissions and the death of Mr Gallace. The second reason refers to the approach taken by her Honour to the rejection of any consideration of a causal nexus between the omissions of the appellants and the death of Mr Gallace. I have previously extracted [45] of her Honour's judgment in this regard. The focus of attention within this paragraph, which pervades her Honour's approach to the sentencing process, is on a risk of injury, and not on what actually occurred. Her Honour is thus directing her attention to the elements of the offence, which is a necessary process when determining whether or not to convict. However, the sentencing process must be directed to what actually occurred and to those particulars that have been established to the requisite standard. Whilst it is clear that her Honour addressed the omissions with which each of the appellants was charged, her Honour did not address the causal nexus of each of those omissions with the death of Mr Gallace. In fact, her Honour eschewed the establishment of any such nexus. The sentencing process should have been directed to the particulars of the charge and those that had been established to the requisite standard, or, at the least, by reference to the factual material that was in evidence before her Honour with respect to the particulars of each of the charges. I respectfully conclude that her Honour's approach was erroneous and that this must call into question a consideration of the sentencing process adopted by her Honour and the ultimate penalty imposed by her. 136 I am conscious that in the appeal proceedings the parties did not direct their attention to whether or not the sentencing process miscarried on the basis that I have referred to above. Furthermore, I acknowledge that the amended statement of agreed facts was embraced not only by counsel for the prosecutor, the respondent on the appeals, but also by counsel for each of the appellants. (In making this observation I note that Mr Skinner of counsel, who appeared for the appellant Sacco, did attempt, as I have said, to introduce new evidence before the Court as currently constituted on the appeal proceedings and that Mr Skinner did not represent Sacco in the proceedings below.) 137 It is a trite observation that the sentencing process is an integral part of the administration of justice and that the imposition of an appropriate penalty is as much a concern as determining whether or not a defendant is guilty of a charged offence. In the circumstances that I have identified, it is also necessary to consider whether or not it would be appropriate for this Full Bench to take the matter any further. In my opinion, because of the concerns which I have expressed that the sentencing process has miscarried, this is a matter that should be dealt with in these appeal proceedings. The appropriate in principle approach to be taken is summarised in the judgment of Hall J in the New South Wales Court of Criminal Appeal in Rodden v Regina [2008] NSWCCA 53. Beazley JA and Fullerton J agreed in his Honour's reasons. At [90] to [93], his Honour said: [90] In circumstances in which an appeal is brought and it becomes apparent to an appellate court, whether or not a particular ground of appeal has been raised, that a serious miscarriage of justice has occurred, then, of course, such a court must intervene: Gipp v The Queen (1998) 194 CLR 106 at 153. As Kirby J in that case, at 154, stated:- "Defensive of the liberty … and other rights of those convicted of criminal offences, courts of criminal appeal in Australia have always been ready, more so than in civil matters, to take a lenient view of procedural failures where that course is deemed appropriate and just. In exceptional cases, where serious error is brought to light, such courts regularly allow a ground to be raised belatedly which concerns a 'manifest miscarriage of justice'

Sacco Builders Pty Ltd v Inspector Chaston

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Judgment (151 paragraphs)

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Legislation Cited (1)

Cases Cited (38)

Cited By (8)