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.