Seda Pty Limited v Inspector James - [2003] NSWIRComm 368 - NSWIRComm 1997 case summary — Zoe

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Seda Pty Limited v Inspector James

[2003] NSWIRComm 368

Industrial Relations Commission (NSW)|1997-04-11|Before: Wright J, Walton J, Boland J, Hungerford J, Marks J, Bauer J, Fisher CJ, Mr J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1997-04-11

Before

Wright J, Walton J, Boland J, Hungerford J, Marks J

Source

Original judgment source is linked above.

Judgment (64 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Seda Pty Limited v Inspector James (WorkCover Authority of New South Wales) [2003] NSWIRComm 368 APPELLANT Seda Pty Limited PARTIES : DEFENDANT Inspector Wayne James (WorkCover Authority of New South Wales) FILE NUMBER: IRC 7403 of 2002 CORAM: Wright J President; Walton J Vice-President; Boland J CATCHWORDS : Appeal - Leave to Appeal - Occupational Health and Safety - Manufacturing industry - Crush injury - Appeal against severity of sentences - Nature of appeal - Delay in rectifying defects - Aggravation - Mitigation - Financial position of appellant - Turnover - Assets - Principle of totality - Penalties manifestly excessive - New penalties imposed Criminal Appeal Act 1912 s 5AA LEGISLATION CITED : Industrial Relations Act 1996 s 196 Occupational Health and Safety Act 1983 s 15 s 31R Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304, [2001] NSWCCA 280 Crown in the Right of the State of New South Wales (Dept of Education and Training) v Keenan (2001) 105 IR 181 Fernandes Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Steven Jones) [2002] NSWIRComm 364 Inspector Batty v Graincorp Operations Ltd [2002] NSWIRComm 49 Inspector Colin James West for the WorkCover Authority of New South Wales v Australian Veg-Tanners Pty Limited [1997] NSWIRComm 78 Inspector Frank Glass v BNG Battery Technologies Pty Ltd [2002] NSWIRComm 346 Inspector Glenn McCarthy v Advance Packaging Pty Ltd [1997] NSWIRComm 89 Inspector Mahinder Seneviratne v Eric Roberts Trading Co Pty Ltd [2002] NSWIRComm 87 Inspector Wayne James v Seda Pty Ltd [2002] NSWIRComm 369 John William Ingle v Erineton Pty Ltd and John William Ingle v Aspex Paper Australia Pty Limited (unreported, Hungerford J, CT 1238 of 1996, 11 April 1997) P F Thearle & Co Pty Limited v WorkCover Authority of New South Wales (Inspector Reynolds) [2002] NSWIRComm 102 R v De Simoni (1981) 147 CLR 383 CASES CITED : Ridge Consolidated Pty Ltd v WorkCover Authority of NSW (Inspector Mauger) (2002) 115 IR 78 Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector Ankucic) v Namoi Cotton Cooperative Ltd [1998] NSWIRComm 351 WorkCover Authority of New South Wales (Inspector Barbosa) v Leigh Mardon Pty Ltd [1999] NSWIRComm 121 WorkCover Authority of New South Wales (Inspector Batty) v Graincorp Operations Ltd [2001] NSWIRComm 127 WorkCover Authority of New South Wales (Inspector Dawson) v Robert John Waugh (1995) 59 IR 89 WorkCover Authority of New South Wales (Inspector Donnelly) v Riverina Wool Combing Pty Limited [2000] NSWIRComm 29 WorkCover Authority of New South Wales (Inspector Kitchen) v Tixana Manufacturing Pty Ltd [2001] NSWIRComm 76 WorkCover Authority of New South Wales (Inspector Mansell) v Australian Paper Limited (unreported, Marks J, CT 1229 of 1995, 28 March 1996) WorkCover Authority of New South Wales (Inspector Mansell) v Hayman Industries Pty Ltd [2003] NSWIRComm 154 WorkCover Authority of New South Wales (Inspector McMartin) v Milltech Pty Ltd [2000] NSWIRComm 246 WorkCover Authority of New South Wales (Inspector Rech) v Defiance Foods Pty Ltd (unreported, Bauer J, CT 1080 of 1995, 1 December 1995) WorkCover Authority of New South Wales v Zac's Pax Pty Ltd (unreported, Fisher CJ, CT 1282 of 1994, 20 December 1995) HEARING DATES: 07/31/2003 DATE OF JUDGMENT: 12/09/2003

[28]

12 Mr G J Hatcher SC with Mr R Moore of counsel appeared for the appellant. The submissions for the appellant may be summarised as follows: 1. The penalties imposed by her Honour were manifestly excessive. This may be illustrated by references to other cases involving similar risks. See for example, WorkCover Authority of New South Wales v Hayman Industries Pty Ltd [2003] NSWIRComm 154 where in a case involving a crush injury leading to amputation of four finger's a discounted penalty of $41,250 was imposed in circumstances where the maximum fine available was $825,000. 2. Her Honour inappropriately took into account matters arising after the date of the incident including the issuing of Improvement Notices. 3. The two prosecutions arose out of a common set of circumstances and should have been regarded by her Honour as one offence. 4. Her Honour placed undue weight on the circumstances in which the worker was injured in that her Honour said at par [11] of her judgment, "The risk to safety in the use of the Bread Improver Line No 2 was actualised when Mr Zhu on 4 August 2000 had his arm caught in the machine Line No 2." It was submitted that none of the Improvement Notices required any change to the guards that were in place in the location where Mr Zhu was drawn into the machine. The only difference in terms of ensuring safety in the circumstances that led to Mr Zhu's injuries was the installation of the switch that would enable any person caught by the machine in the way Mr Zhu was, to stop the machine. 5. Her Honour erroneously formed the view that it was only within the confines of the witness box under examination by her Honour that Mr Dahari first "understood" his obligations about providing a safe working environment and that this was the reason why there was a delay in the appellant finally complying with the Improvement Notices. It was submitted that Mr Dahari understood his obligations regarding the provision of machinery that met required safety standards and that he believed "up to and including 4 August 2000" the appellant's machinery met those standards. After 4 August 2000 it was submitted that the appellant understood the need to comply with the Improvement Notices. 6. Her Honour failed to give any recognition in fixing sentence to the subjective features of the circumstances of the appellant including the expression of contrition, the appellant's financial circumstances and the appellant's previous good record over 15 years of operation. 7. Her Honour's assessment of the appellant's culpability placed it in the middle of the worst possible case. This could not be so on the evidence. Submissions for the respondent

[29]

13 Ms L McManus of counsel appeared for the respondent. The submissions for the respondent may be summarised as follows: 1. The appeal is to be determined as an appeal stricto sensu . The Court will only intervene if an error of principle or a mistake of fact or law is established whereby her Honour's sentencing discretion miscarried or if the sentence is so excessive that the exercise of discretion must have been affected by error. 2. Many of the cases referred to by the appellant for comparative purposes were cases brought in the Chief Industrial Magistrate's Court where the maximum penalty is $55,000. In considering cases involving similar risks that had come before the Commission in Court Session the penalties imposed by Kavanagh J were at the higher end of the range of sentences. 3. When referring to the objective seriousness of the offence Kavanagh J referred to appropriate measures not having been taken immediately even though such measures were available and feasible. It was not clear from her Honour's judgment whether her Honour was making a statement of fact when identifying that simple and straightforward steps were available or whether her Honour had taken into account the fact that steps were not immediately taken by the appellant as a matter going to the objective seriousness of the offence. It had been submitted to her Honour by the prosecution that the delay in rectifying the breach was a subjective not objective factor. 4. As to the appellant's contention the two offences should have been treated as one, her Honour correctly applied the principle of totality. 5. Her Honour properly took into account the circumstances of the injured person. The injury manifested the risks arising from the unguarded machinery not only in the area of the machine in which he was caught but the other areas of the unguarded machine. 6. It was open to her Honour to find that Mr Dahari understood his full obligations under the Act when he gave evidence at the sentencing hearing. 7. Her Honour correctly took into account the appellant's financial circumstances. It was open to her Honour to come to the view that it was a company with financial means and to reject the submission that the company had lost 40 per cent of its potential income for the current financial year. 8. It would appear that her Honour took into account the objective seriousness of the offence and subjective matters in setting the fine of $130,000 in each matter. Further discounts were then given for the guilty pleas and the principle of totality. Accordingly, her Honour did discount for all of the subjective factors.

[45]

27 This observation is supported by the cases referred to by the prosecutor involving crush or amputation injuries. The cases referred to were: WorkCover Authority of New South Wales (Inspector Dawson) v Robert John Waugh (1995) 59 IR 89; WorkCover Authority of New South Wales (Inspector Rech) v Defiance Foods Pty Ltd (unreported, Bauer J, CT 1080 of 1995, 1 December 1995); WorkCover Authority 0f New South Wales v Zac's Pax Pty Ltd (unreported, Fisher CJ, CT 1282 of 1994, 20 December 1995); WorkCover Authority of New South Wales (Inspector Mansell) v Australian Paper Limited (unreported, Marks J, CT 1229 of 1995, 28 March 1996); John William Ingle v Erineton Pty Ltd and John William Ingle v Aspex Paper Australia Pty Limited (unreported, Hungerford J, CT 1238 of 1996, 11 April 1997); Inspector Colin James West for the WorkCover Authority of New South Wales v Australian Veg-Tanners Pty Limited [1997] NSWIRComm 78; Inspector Glenn McCarthy v Advance Packaging Pty Ltd [1997] NSWIRComm 89; Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326; WorkCover Authority of New South Wales (Inspector Ankucic) v Namoi Cotton Cooperative Ltd [1998] NSWIRComm 351; WorkCover Authority of New South Wales (Inspector Barbosa) v Leigh Mardon Pty Ltd [1999] NSWIRComm 121; WorkCover Authority of New South Wales (Inspector Donnelly) v Riverina Wool Combing Pty Limited [2000] NSWIRComm 29; WorkCover Authority of New South Wales (Inspector McMartin) v Milltech Pty Ltd [2000] NSWIRComm 246; WorkCover Authority of New South Wales (Inspector Kitchen) v Tixana Manufacturing Pty Ltd [2001] NSWIRComm 76; WorkCover Authority of New South Wales (Inspector Batty) v Graincorp Operations Ltd [2001] NSWIRComm 127; Inspector Mahinder Seneviratne v Eric Roberts Trading Co Pty Ltd [2002] NSWIRComm 87; Inspector Frank Glass v BNG Battery Technologies Pty Ltd [2002] NSWIRComm 346; WorkCover Authority of New South Wales (Inspector Mansell) v Hayman Industries Pty Ltd [2003] NSWIRComm 154