Occupational health and safety - Duty to provide working environment where employees not exposed to hazards - Fatal accident at grain receival depot - Use of tarpaulin to cover grain stack - Fall from stack in high wind - Guilty plea - Appropriate penalty

Justices Act 1902, s 196

Occupational Safety and Health Act 1984, s 5, s 19, s 20

Bowen v Sheetmetal & Mechanical Services (WA) Pty Ltd, unreported; SCt of WA (Scott J); Library No 930279; 20 May 1993

Bunnings Forest Industries Pty Ltd v Shepherd, unreported; SCt of WA (Anderson J); Library No 980235; 5 May 1998

Graham v Dalkeith/Nedlands Bowling Club Inc, unreported SCt of WA (Walsh J); Library No 8630; 5 December 1990

Green v Mabey, unreported; SCt of WA (Parker J); Library No 940711; 7 December 1994

James (1985) 14 A Crim R 364

Langridge v The Queen (1996) 17 WAR 346

Law v Deed (1970) SASR 374

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Lurssen v Williams, unreported; SCt of WA (Murray J); Library No 950015; 20 January 1995

McKeagg v The Queen [2001] WASCA 99

Miles v The Queen (1997) 17 WAR 518

Morrison v Amalgamated Food & Poultry Pty Ltd (t/a Red Rooster Foods) (1993) 55 IR 271

Morrison v Hulme Wool Scouring Co (1938) Pty Ltd, unreported SCt of WA (Commissioner Ng); Library No 930457; 6 August 1993

Morrison v Winton, unreported; SCt of WA (Scott J); Library No 960698; 12 December 1996

Murphy v Morrison, unreported; SCt of WA (Parker J); Library No 960089; 15 February 1996

R v Aloia [1983] WAR 133

R v Boudelah [1991] FCA 124; (1991) 100 ALR 93

R v Clarke [1996] VICSC 30; [1996] 2 VR 520

R v Osenkowski (1982) 30 SASR 212

Shepherd v Qantas, Charge No 10439 of 1998; Perth Court of Petty Sessions

Smith v R (1993) 7 WAR 527

1 HASLUCK J: This is an appeal against a sentence imposed upon the respondent, Co-Operative Bulk Handing Ltd, pursuant to provisions of the Occupational Safety and Health Act 1984. The question is whether the learned Magistrate erred in imposing a fine of $7,500 upon the respondent.

2 The evidentiary materials establish that on the afternoon of 26 November 1999 an employee of the respondent, Stuart Syme, was involved in a fatal accident at the respondent's grain receival depot at Beaumont near Esperance in the south-west of the State.

3 The appellant, Tanya Gai Shepherd, being a person duly authorised by WorkSafe Western Australia subsequently laid a formal complaint against the respondent that on 26 November 1999 at Beaumont Grain Receival Depot, 100 kilometres east of Esperance, the respondent, being an employer, failed to provide and maintain, so far as was practicable, a working environment in which its employees were not exposed to hazards contrary to s 19(1) and s 19(6) of the Act.

4 Section 19(1) of the Act provides that an employer shall, so far as is practicable, provide and maintain a working environment in which his employees are not exposed to hazards. The provision goes on to set out the obligations of employers in a more particular form. For example, an employer is obliged to provide such information and instruction as is necessary to enable employees to perform their work in such a manner that they are not exposed to hazards. Where it is not practicable to avoid the presence of hazards at the workplace, an employer must provide his employees with adequate personal protective clothing and equipment.

5 Section 19(6) provides that an employer who contravenes subs (1) commits an offence and is liable to a fine of $100,000. By s 19(7), an employer who contravenes subs (1) and by that contravention causes the death of, or serious harm to, an employee commits and offence and is liable to a fine of $200,000.

6 I digress briefly to note that the subject complaint, as originally formulated, included an allegation that the respondent's default had caused the death of an employee. This opened up the prospect of a conviction being recorded pursuant to s 19(7) of the Act. However, it is apparent from the transcript of the hearing before the learned Magistrate at the Court of Petty Sessions at Esperance on 9 August 2001 that an application was made by the prosecutor to delete from the complaint the words "and by that failure caused the death of an employee" and to substitute for the allegation that an offence had been committed pursuant to s 19(7) an allegation that the respondent was liable to the lesser penalty prescribed by s 19(6) of the Act.

7 It is also apparent from the transcript that particulars of the complaint had been provided prior to the hearing. An application was made by the prosecutor to amend these particulars also. The application was allowed. This meant that particulars were before the Court of the employees said to have been exposed to the hazard. The relevant names included that of Mr Syme. Particulars were provided as to the nature of the hazard referred to in the complaint and as to the practicable means of providing and maintaining a working environment in which the employees in question were not exposed to the hazard. I will return to this aspect of the matter in due course.

8 It was against this background that a plea of guilty was entered by the respondent to the complaint as amended. The prosecutor then presented the material facts of the matter to the Court.

9 The prosecutor said that the respondent is responsible for the operation of various grain receival and storage depots throughout the State. She said that there are 330 open bulkhead storage receptacles, including a depot at Beaumont, which is approximately 100 kilometres east of Esperance.

10 The prosecutor went on to say that when stored in open bulkhead storages, grain is not protected from the elements. Rain can damage grain, and for that reason the respondent needs to take steps to shelter the grain from wet weather.

11 At the start of the 1999/2000 harvest period, the respondent introduced a policy applicable to the Esperance zone whereby each afternoon the receiver point operator in charge of the depot was required to call a Mr Des Main, the regional manager, who would decide whether or not, based on the weather forecast to which he had access, the grain stacks in open bulkhead storage needed to be "tarped", that is to say, covered with tarpaulins, by its employees.

12 The prosecutor said that when a grain stack reaches its full height, tarping contractors engaged by the respondent put tarpaulins on the peaks of grain stacks in open bulkhead storages. In the case of an initial grain stack, that is to say, a stack where the peak of the grain stack has not reached its full height, employees of the respondent may be required to put a tarpaulin on the peak of the grain stack.

13 In the course of the hearing before the learned Magistrate, it became apparent that the respondent provided instruction to its employees in regard to various safety matters. The respondent's receival point safety induction guide contains passages bearing upon the tarping procedure in which it is said that employees had to be inducted into the potential hazards associated with moving a tarpaulin or covering a grain stack. The guide refers to the power of the wind and the potential for it to lift a tarp and flip a person if they are standing on or holding the tarp. The relevant document includes a reminder that if environmental conditions become too hazardous to tarp a stack, then the decision has to be made to delay the task until conditions become safer.

14 There was also evidence before the learned Magistrate that Mr Syme was employed on a casual work basis. He was a signatory to a receival point safety induction form, showing that his employment commenced on 8 November 1999 (two weeks prior to the incident the subject of the complaint) and that he had been taken through the tarping induction. The relevant form includes reference to danger from wind and rain and the need for care on the grain stack.

15 The circumstances of the offence arose out of an operation conducted by the respondent on 26 November 1999 at the Beaumont grain receival depot.

16 At about 3 pm on the afternoon of that day, as required by the respondent's policy, Mr Curley, who was the receival point operator in charge, or RPOIC of the depot, contacted Mr Main in Esperance to obtain instructions in relation to whether or not forecast weather conditions were such that tarping needed to occur that afternoon. On speaking to Mr Main, Mr Curley indicated that he had some concerns about how windy it was in Beaumont at the time, but Mr Main told him that the weather conditions warranted tarping of the grain stack.

17 At approximately 5.30 pm that afternoon, seven employees of the respondent, and a farmer who was not an employee of the respondent, commenced to tarp an initial grain stack in an open bulkhead storage. A multi-load stacker and a front-end loader were used to assist with the tarping.

18 The vehicles were slowly driven, dragging the tarpaulin, which was also being pulled up the stack by six of the eight employees. The tarpaulin was being pulled against the wind. Immediately prior to the accident, the employees were having some difficulty in pulling the tarpaulin because of the wind. The workers reached the peak of the grain stack, whereupon a sudden, strong gust of wind exerted a force upon the tarpaulin and the rope attached to the front-end loader broke.

19 At that moment, Mr Curley saw that Mr Syme, a receival point operator, being one of the respondent's employees, was positioned on the tarpaulin. According to the prosecutor, it was not clear whether Mr Syme jumped on the tarpaulin or fell upon it. Employees had been instructed not to hold on to the tarpaulin or to stand on it.

20 Mr Curley shouted at Mr Syme to get off the tarpaulin. It then flapped and billowed in the wind and was blown off the grain stack, with the result that Mr Syme was thrown to the ground near the grain sampling shed and received fatal injuries.

21 The prosecutor informed the learned Magistrate that at the time the rope broke, a weighbridge operator employed by the respondent who was watching the tarping process from the weighbridge was on the telephone to the Esperance trying to obtain permission to have the tarping process stopped because he considered it to be too dangerous, having regard to the wind conditions.

22 It seems that subsequently an expert from Curtin Consultancy Service examined the rope that broke. It was a three-strand sisal rope with a diameter of 20 millimetres. The rope was badly contaminated over a considerable length by an organic material. The contaminated sections were rigid and could only be bent with difficulty. Although the contamination was not found to have had any significant effect on the rope's breaking strain, the expert concluded that it would have affected the handling properties of the rope and its flexible or uncontaminated sections could have been subject to unusual stress. The place where the rope broke was not contaminated.

23 After conducting tests on the portions of the rope, the expert concluded that the breaking strain of the rope was insufficient for the forces acting upon it. Those forces included the wind, the weight of the tarpaulin and the drag of the tarpaulin over the grain. Information was placed before the Court as to the strength of the wind at the time of the accident.

24 It is against this background that I must return to the particulars provided by the prosecution. In par 2 of the particulars, the relevant hazard is described as the risk of death or injury to a person as a result of being blown from a grain stack in an open bulkhead, or being caught up in, or thrown from, a tarpaulin on a grain stack in an open bulkhead, when wind blows a tarpaulin being placed by the employees on the stack.

25 According to the particulars provided by the prosecution, the practicable means of providing and maintaining a working environment in which the employees were not exposed to the hazard were as follows:

"(a) provide and maintain plant, namely ropes of sufficient strength to be able to withstand the forces expected to be applied when pulling a tarpaulin up the initial grain stack in an open bulkhead without breaking, such that, so far as was practicable, the employees were not exposed to the hazard;

(b) provide and maintain a system of work, namely a system in which a secured belly rope or strap was placed across the initial grain stack in an open bulkhead from end to end of the bulkhead or from side to side of the bulkhead and the tarpaulin was pulled up the initial grain stack under the belly rope or strap, such that, so far as was practicable, the employees were not exposed to the hazard; and

(c) provide such supervision of the employees as was necessary to enable them to perform their work in such a manner as they are not exposed to hazards, namely a supervisor present at the grain stack when the tarpaulin was placed on the grain stack who was authorised to make, and responsible for making, a decision as to whether or not the tarpaulin could be safely placed on the grain stack having regard to weather conditions prevailing immediately prior to, and during, the placement of the tarpaulin on the stack."

26 The prosecutor's position before the learned Magistrate was that the respondent by its plea of guilty accepted that the hazard defined by the complaint and particulars was the risk of death or injury as a result of the wind catching the tarpaulin. In essence, the respondent had failed to take certain reasonably practicable steps to mitigate the hazard, namely, the provision of ropes of sufficient strength. The respondent had also failed to ensure that the supervisor responsible for making the decision as to whether the weather conditions allowed the operation to be conducted safety was actually present at the site of the grain stack.

27 The prosecutor submitted that the dangers associated with the ability to control tarpaulins in windy conditions when tarping initial grain stacks were well-known to the respondent. When its new employees were inducted, they were warned about the dangers of the wind catching a tarpaulin. Employees were instructed not to hold on to a tarpaulin that was caught by the wind. They were also told not to stand on tarpaulins.

28 The prosecutor reminded the Court that, as a consequence of the amendment to the complaint, it was not alleged that the respondent's contravention of the Act caused the death of Mr Syme. The charge was brought pursuant to s 19(6) and, thus, the maximum penalty was liability to a fine of $100,000. The prosecutor affirmed that the respondent had no prior convictions.

29 Counsel for the respondent then presented a lengthy, detailed plea in mitigation. I will not attempt to cover all the facts and matters put to the Court on behalf of the respondent. It will be sufficient for present purposes to draw out of the materials in the appeal book a number of points of particular significance, most of which were reiterated on the hearing of the appeal.

30 Counsel for the respondent informed the learned Magistrate that the respondent is owned and controlled by West Australian grain growers and is responsible to the grain industry in ensuring the safekeeping of grain during the receival, storage and out-turning process. In all of its 68 years of existence, the respondent has not been charged with, nor convicted of, any single offence. At any given harvest time (which is when the accident occurred), the respondent has in its employ an average of in excess of 2,000 employees, being both casual and permanent employees.

31 Before and after the date of the contravention, the respondent employed two full-time safety officers. It had been allocating and spending approximately $550,000 per annum on safety matters, including safety training. At the time of the contravention, an annual sum in excess of $1.3 million was allocated to safety matters, or safety-related matters. The respondent had been the recipient of an award relating directly to safety.

32 Counsel advised the Court that the respondent is a "not for profit" organisation operating under the Bulk Handling Act and all income generated by it is put back into the business by way of providing enhanced services to shareholders in the co-operative. The shareholders are primarily growers of grain in Western Australia. The respondent is a patron of numerous charities, organisations and philanthropic events, allocating an annual budget of $55,000 to such matters.

33 The plea in mitigation included reference to the induction and tarping procedures prior to the accident. The respondent had been actively involved in developing more efficient, safe systems of tarping since the early 1990s. In order to maximise the safety of its tarping operations, the respondent had in place (and still has in place) stringent induction procedures, requiring every employee to go through a rigorous and comprehensive induction programme with trained personnel. It was in this context that reference was made to the receival point safety induction guide mentioned earlier, which was printed in 1999 prior to the date of the incident. Counsel drew attention to the signed form indicating that the deceased, Stuart Syme, had been given an induction course by Mr Curley, the RPOIC at Beaumont on 8 November 1999. Reference was also made to a conference held a few weeks prior to the date of the incident at the Esperance Yacht Club for all personnel in the Esperance region.

34 Counsel went on to describe some of the particular difficulties in the Esperance region, including the insistence by certain growers that a depot be kept open for the receival of grain for as long as possible on any day. This meant that, although it was up to Mr Main, as area manager, to determine whether tarping was warranted due to weather conditions, the policy of the respondent was that a residual discretion as to whether or not it was safe enough to tarp nonetheless still lay with the RPOIC of each depot. At the time Mr Curley spoke to Mr Main, the prevailing weather conditions were of concern, but constituted conditions in which Mr Curley had previously safely tarped.

35 The respondent's submission to the Court was that Mr Main assumed that, by reason of what had been discussed at the Esperance conference, if the weather conditions became too inclement, Mr Curley would exercise his final discretion not to tarp. It was not entirely clear how Mr Syme came to be on the tarp. It had been emphasised in the induction course that if an unexpected gust of wind came up, employees were to let the tarp go. It was precisely at that point in time that the rope attached to the front-end loader broke.

36 Counsel submitted that as tarping takes place against the direction of the wind, the respondent's experience was that if a strong gust of wind came up, the tarp would simply be released and would blow away without incident in the opposite direction to which the personnel were situated. It was not anticipated that the use of rope of breaking strength insufficient to resist the unusually strong gusts of wind would actually cause anyone harm or injury. No injury had ever occurred in the past 20 years or more due to a broken rope. This suggested that the degree or extent of culpability on the part of the respondent should be regarded at the lower end of the scale.

37 The learned Magistrate gave consideration to the facts and matters placed before him and to the provisions of the Act. Having taken account of such matters and the various decided cases submitted to him, he concluded that a starting-point in regard to the imposition of a penalty "might be something in the nature of 5 per cent of the maximum penalty". In the final analysis, after purporting to take account of various mitigating circumstances, he concluded that an appropriate fine would be $7,500 and proceeded to sentence accordingly.

38 The appellant obtained leave to appeal against the learned Magistrate's sentencing disposition upon the following grounds:

"(a) The learned Magistrate erred in fact and law in giving any weight, or alternatively in giving undue weight, to the importance of the Respondent's operations to the community;

(b) The learned Magistrate erred in fact and law in concluding that the Respondent's counterparts in other States have not come upon any better way of performing the task of tarping a grain stack, and in giving any, or alternatively undue, weight to that conclusion, when that conclusion was inconsistent with the Respondent's plea of guilty to, and conviction on, the complaint.

(c) The learned Magistrate erred in fact and law in refusing, because the Respondent is the only organisation which does what it does in this State, to have any regard, or alternatively sufficient regard, to need for the sentence to have general deterrent effect.

(d) The learned Magistrate erred in fact and law in imposing a sentence that was, in all the circumstances, manifestly inadequate."

39 Before turning to the issues raised by the grounds of appeal, it will be useful to look at various principles and statutory provisions bearing upon the matters in issue.

40 I begin by noting that by s 196 of the Justices Act 1902, the Court shall determine the appeal on the material before the Court below. By s 199, the Court may dismiss the appeal, or set aside, quash or vary the decision or remit the case for hearing. The Court is not required to set aside or quash if the facts or evidence in substance support the decision. If the Court considers that no substantial miscarriage has occurred, it may dismiss the appeal, notwithstanding that a point raised in the appeal has been decided in favour of the appellant.

41 It appears from the decided cases that it is not enough in a sentencing matter that an appellate court might have exercised its discretion in a different manner. It must appear that some error has been made in exercising the discretion, such as acting upon a wrong principle, mistaking the facts or allowing extraneous or irrelevant matters to affect the decision made. An appeal against sentence by the Crown will be decided by the same general principles provided the Crown has done what was reasonably required to ensure the avoidance of error: R v Grein [1989] WAR 178.

42 In House v The King [1936] HCA 40; (1936) 55 CLR 499, Dixon, Evatt and MacTiernan JJ had this to say at 505:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

43 In the present case, the penalty prescribed for an infringement of the Act in the circumstances of the present case is a fine. Prior to 1 October 1995, the maximum penalty for any contravention of s 19 of the Act was a fine of $50,000. As a consequence of amendments taking effect on that date, the maximum penalty for the offence charged in the present case is a fine of $100,000 for a breach not proven to have caused death or serious harm. As I have already noted, a separate penalty of $200,000 is created by s 19(7) of the Act for contraventions causing death or serious harm.

44 The Court of Criminal Appeal indicated in Weng Keong Chan (1989) 38 A Crim R 337 at 342 that it is necessary in the exercise of the appellate function to have regard, among other things, to the maximum penalty prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that type, and personal circumstances of the offence. The maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs [1987] HCA 46; (1987) 163 CLR 447 at 451.

45 Where the penalty for the offence is the imposition of a fine, there are two further important factors the Court must consider in sentencing. First, the Court is required to have regard to the effect of such a fine on the defendant and its ability to pay such a fine. Secondly, where the penalty is pursuant to legislation, the sentencing Judge is to consider whether the fine satisfies the required deterrent objective of the legislation.

46 It has been held, in regard to cases arising under the Occupational Safety and Health Act 1984, that the fine should be of an amount that would ensure an employer undertakes its responsibilities under the Act and provides employees with working conditions free from hazards: Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435.

47 This brings me to the scheme and provisions of the Act and to a number of previously decided cases concerning the question of penalty.

48 The objects of the Act are described in s 5. They include protecting persons at work against hazards and the promotion of community awareness on matters relating to occupational safety and health. I have already noted that by s 19, various obligations are imposed upon employers directed to the maintenance of a working environment, so far as is practicable, in which employees are not exposed to hazards. It is important to note, however, that by s 20 certain duties are also imposed upon employees, including an obligation upon an employee to take reasonable care to ensure his own safety and health at work.

49 The term "hazard" is defined in s 3 to mean anything that may result in injury to the person or harm to the health of a person. The term "practicable" means reasonably practicable, having regard, where the context permits, to various factors such as the severity of any potential injury or harm to health that may be involved and the degree of risk of it occurring. Regard must also be had to the state of knowledge about the risk of injury or harm to health occurring and the means or removing or mitigating the risk or harm to health. Account must also be taken of the availability, suitability and cost of the means of removing or mitigating risks or potential injury or harm to health.

50 In Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA (Steytler J); Library No 980573; 2 October 1998 the learned Judge was addressing the requirement that, so far as is practicable, the employer provide a safe working environment. He said that this involved a duty, personal to the employer, not only to do what is reasonably practicable for the purposes of attaining that objective in the course of its own activities, but to ensure, where that is reasonably practicable, that reasonable care is taken by subcontractors whose assistance is necessary in circumstances in which their failure to take such care might expose employees of the employer to hazards. He went on to say at page 22 that the state of knowledge referred to in the definition of "practicable" in the Act is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge in fact possessed by a specific employer in particular circumstances.

51 In Ogonowski v McCarron, unreported; SCt of WA (Ipp J); Library No 8119; 8 March 1990, Ipp J said that the object of the Act is to require employers to take appropriate steps to provide a safe working environment for employees in circumstances where a failure to do so could result in serious injury or even death to the workers concerned. It is apparent from a consideration of s 19 that there is an extremely wide range of conduct which could give rise to contraventions of the Act. Contraventions could range from the trivial to the extremely serious.

52 The learned Judge went on to say that the manner in which the Act could be contravened is infinitely various. The purpose of imposing such a heavy maximum penalty was, in his view, in recognition of the fact that there was a vast range of acts or omissions, falling within various degrees of seriousness, which could result in the commission of offences. The Court adjudicating upon such offences is, by the substantial maximum penalty, provided with a broad discretion whereby it is able to impose appropriate sentences for trivial offences and appropriate sentences for serious offences.

53 At that time, the Act prescribed a maximum penalty of $50,000. It was in that context that Ipp J went on to say that he did not consider the provision of such a penalty was an indication that an offence, which on its merits, was not of a class which could be described as serious, should be visited with a fine out of proportion to the degree of criminal culpability which would ordinarily attach thereto.

54 Ipp J acknowledged that a deterrence factor would be relevant in cases where there were serious breaches of the Act. In his view, the provision of a relatively high maximum penalty, in circumstances where there was such an extremely wide range of possible offences and possible degrees of seriousness, did not mean that in a case where criminal culpability was small an unusually high fine should be imposed. He drew upon the relevant Second Reading Speech in order to suggest that the legislation was designed to provide an effective deterrent to the intransigent employer or employee. The reasoning of Ipp J is reflected in a number of subsequently decided cases.

55 The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The Courts will assist the attainment of this end by looking at the facts of each case as practical people who would look at them, not with the benefit of hindsight, nor with the wisdom of Solomon. See Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119, cited with approval in Australian Char Pty Ltd (1995) 79 A Crim R 427 at 437.

56 It is quite clear from the decided cases that the degree of the employer's culpability is a significant consideration and that it is appropriate to give weight to the concept of general deterrence.

57 When one turns to the question of penalty, a thought consistently reflected in the decided cases is that in this area of the law it is somewhat unrealistic to have regard to a fixed standard or tariff in the determination of fines because there will be substantial variation in the facts from case to case. Nonetheless, it is necessary in the exercise of the appellate function to have regard to the standards of sentencing customarily observed with respect to the offence. Mitigating circumstances must be given their proper weight and in that respect, consistently with sentencing principles, a plea of guilty at the earliest possible opportunity is a significant matter.

58 In Industrial Galvanizers Corporation Pty Ltd trading as Industrial Galvanizers v Shepherd [1999] WASCA 282 the appellant company was engaged in the business of hot-dip galvanising. An employee was injured as a consequence of being instructed to enter a tank containing a residue of caustic soda and was burned as a consequence of caustic soda splashing inside his boots. The appellant entered a plea of guilty to failing to provide adequate personal protective clothing and was fined $20,000. An appeal on the ground that the penalty was manifestly excessive was dismissed by Wheeler J. In the course of her judgment, she noted from the materials provided that it is relatively uncommon apparently for a penalty in excess of $10,000 to be imposed. She noted that the courts have consistently warned against establishing what appears to be a tariff based on superficial examination of what may prove to be unlike cases. She noted also that the case before her was not one in which significant weight could be given to a plea of guilty as the plea appeared to be in recognition of the inevitability of conviction.

59 In Shepherd v Qantas Airways Ltd, being a decision delivered by Magistrate P G Malone SM in the Perth Court of Petty Sessions on 16 November 1999, the learned Magistrate undertook an extensive review of previously decided cases and concluded in respect of the circumstances before him that an appropriate starting-point for the imposition of a fine would be the sum of $10,000, which should then be reduced by $3,000 in order to take account of the plea of guilty and other mitigating factors. That was a case in which the employee acted unwisely in his use of the employer's equipment and there were thought to be no specific aggravating factors that pointed to increased culpability of the defendant. Nonetheless, the employer could have anticipated that an employee might act in an untoward manner. The learned Magistrate noted that a fine of $7,500 was imposed in a case having some comparative value, namely, Superfine Homes Pty Ltd v Shepherd, unreported; SCt of WA (Scott J); Library No 990088; 2 March 1999. In that case, however, the breach was thought to be "a very serious breach indeed", although no fatality or injury arose from the use of the dangerous equipment in question.

60 Before returning to the grounds of appeal, I remind myself that in the circumstances of the present appeal it was the defendant's system of work to have on site a supervisor whose ultimate responsibility it was to delay the task of tarping if environmental conditions became too hazardous. The memorandum in that regard issued in the Esperance region was intended to create the impression to deliverers of grain en route to the depot that with the onset of inclement weather, it would be of little use to attempt to persuade the person in charge in the Esperance region to delay completing tarping prior to delivery so as to enable their grain to be accepted at the depot. It was not the intention of the defendant by the memorandum to remove the discretion of the person in charge to delay tarping if environmental conditions became too hazardous.

61 The respondent accepted that it could have been made clearer to Mr Curley that notwithstanding the memorandum, he still had the ultimate say whether or not to tarp if conditions became too hazardous. The respondent accepted in its written submissions before me that the learned Magistrate was entitled to accept, and did accept, that this gave rise to an unclear allocation of responsibility. Nonetheless, there was no evidence to suggest that any other RPOIC in the Esperance region understood the memorandum to mean that the person in charge did not have the ultimate say to delay tarping if environmental conditions became too hazardous. Any failure on the part of the Esperance regional manager to ensure that the memorandum would not be misinterpreted has to be viewed in light of the overall system of the defendant that gave all persons in charge the ultimate say.

62 Counsel for the respondent submitted that this was not a situation in which the defendant's operations were conducted with blatant disregard as to whether or not there existed an overall safe working environment. It was not a situation in which the defendant had no system of work in place to attempt to avoid hazards whilst tarping. It was also not a situation in which there was any display of intransigence on the part of the defendant to previous warnings or warning signs.

63 The first ground of appeal was that the learned Magistrate erred in fact and law in giving weight, or alternatively in giving undue weight, to the importance of the respondent's operations to the community.

64 Counsel for the appellant contended that while it may be accepted that the respondent fulfils an important role, that fact is irrelevant to, or at least not a controlling consideration in, the process of sentencing the respondent for breaches of the Act. The duty is to ensure that, so far as is practicable, employees are not exposed to hazards regardless of the importance of the function the employer performs to the community. There is no basis for such a consideration in the Act and in focussing on the issue in the way he did, the learned Magistrate erred in principle.

65 Counsel for the respondent emphasised in regard to this and the following grounds of appeal that, even if there was any error in the reasoning process of the learned Magistrate, it had not been demonstrated that such an error caused a miscarriage of justice. Further, and in any event, it is apparent from the materials included in the appeal book that the learned Magistrate had regard to a multitude of factors, bearing in mind the very detailed submissions that were placed before him, and one should therefore assume that he viewed matters as a whole.

66 As to the first ground of appeal in particular, counsel for the respondent went on to submit that the observations made by the learned Magistrate concerning the respondent's role in the community are to be viewed by reference to his consideration of the issue as to whether the respondent ought to engage in the process of pulling tarpaulins over grain stacks at all, with the onset of inclement weather. If the respondent was not to engage in the tarping process at all, it would not be able to perform its important function of handling grain on behalf of farmers throughout the State of Western Australia. There is no suggestion in the reasoning of the learned Magistrate that the importance of the respondent's operations absolves it from compliance with its obligations under the Act.

67 I accept the position contended for by the respondent in regard to this ground of appeal. In my view, the appellant's position in regard to this issue was to give an undue degree of emphasis to some general observations made by the learned Magistrate and I am not satisfied that the learned Magistrate fell into error. It is true that the value of the activity to the community is not a consideration adverted to in the Act, but upon a fair reading of the learned Magistrate's reasons, it is apparent that his observations were doing no more than placing the respondent's activities within a context.

68 According to the second ground of appeal, the learned Magistrate erred in fact and law in concluding that the respondent's counterparts in other States had not come upon any better way of performing the task of tarping a grain stack, and in giving any, or alternatively undue, weight to that conclusion, when that conclusion was inconsistent with the respondent's plea of guilty.

69 Counsel for the appellant submitted that the plea of guilty involved an acceptance that the respondent did not take reasonably practical steps, having regard, among other things, to the state of knowledge in the relevant industry. Reference was made to the observations made by Steytler J in the Hamersley Iron case (supra) as to what is encompassed by the concept of "practicable" in s 3(1) of the Act.

70 It was said further that having regard to the respondent's admitted defalcation and the fact that the allegation concerned the respondent's failure to ensure the safety of its existing system rather than it failure to introduce a different system, this is not a factor that was relevant to, or to which any substantial weight could properly be given in the sentencing process.

71 Again, I am not persuaded that the learned Magistrate's observations concerning this aspect of the matter should be characterised as an error in regard to sentencing. These observations were simply part of the process of weighing up the nature of the activity and assessing the degree of culpability which should be attributed to the respondent, having regard to the plea of guilty. I am not satisfied that a sufficient link has been demonstrated between any observations made by the learned Magistrate in regard to this aspect of the matter and a miscarriage of justice arising out of the penalty that was actually imposed.

72 The third ground of appeal was that the learned Magistrate erred in fact and law in refusing, because the respondent is the only organisation which does what it does in this State, to have any regard, or alternatively sufficient regard, to a need for the sentence to have a general deterrent effect.

73 This ground of appeal is referable to a passage in the learned Magistrate's sentencing remarks in which he affirmed that the respondent was a co-operative organisation performing a vital task on behalf of the community. He noted that the respondent was "effectively a monopoly". He went on to say that "there seems little that can be achieved by way of general deterrence because the defendant is the only organisation which does what it does in this State." He added that specific or personal deterrence was not much of an issue because he was satisfied that the party before him was "very keen to ensure that there is no repetition of the unfortunate events of 26th of November 1999 and that it is taking all steps possible to prevent that."

74 A little later, the learned Magistrate said that "the defendant knew or should have known of what I have already described as the inherent danger involved in having someone on top of a wheat stack in strong wind which causes a 700 kilo tarpaulin to flap about."

75 Counsel for the appellant submitted that when regard is had to the objects of the legislation, it is clear that considerations of general deterrence play an important role in sentencing for an offence against s 19 of the Act. In Morrison v Competitive Foods Ltd trading as Hungry Jacks, unreported; SCt of WA (Murray J); Library No 9118; 25 October 1991, a fine of $500 was increased on appeal to $6,000 in order to emphasise the importance of general deterrence in circumstances where the injury in question was caused by a "usual practice" held to be fraught with risk. This suggests that the imposition of a fine for a breach exposing employees to a substantial risk of serious harm in the case of an operation conducted on a large economic scale must be sufficient to have a deterrent effect. Such a penalty will advance the objects of the legislation.

76 Counsel went on to submit that the learned Magistrate seemed to put aside considerations of general deterrence on the basis that the respondent was the only employer that did what it did in the State. In doing so, the learned Magistrate failed to appreciate that the penalties given under the Act will have a general deterrent effect beyond the particular industry in which the particular breach occurs. In failing to have any regard to the need for the sentence to have a general deterrent effect, the learned Magistrate erred in principle.

77 Counsel for the respondent submitted that even if the learned Magistrate was in error in expressing the view that little could be achieved in the way of general deterrence, that has not been demonstrated to have resulted in any substantial miscarriage of justice, as the penalty imposed was consistent with the standards of sentencing customarily observed with respect to the offence.

78 I have to say in regard to this ground of appeal that I am satisfied that the Magistrate did err in the exercise of his discretion and in a manner which can be characterised as giving rise to a miscarriage of justice. To my mind, notwithstanding the previous record of good conduct of the appellant, the incident in the present case did reveal a degree of culpability on the part of the respondent. It failed to provide a rope of sufficient strength. I have already noted that the respondent accepted that to some extent there was an unclear allocation of responsibility. With the benefit of hindsight, it can be seen that the presence of a high wind could create a sudden risk and a risk of a kind that could only be assessed by a supervisor at the scene of the work.

79 Further, the hazard likely to flow from the movement of a tarpaulin in a high wind was unpredictable and the employer could not necessarily presume that an employee would take appropriate evasive action if some mishap occurred. The hazard in respect of which safety precautions were required was of a somewhat insidious kind, as illustrated by the tragedy that occurred in the present case. To my mind, this placed a particular responsibility upon the employer to exercise great care and be prepared for various eventualities. I am conscious also that the task being performed by the deceased was not an unusual event, but was a task undertaken as a part of a practice thought to be central to the respondent's statewide operations. Furthermore, the respondent was well-aware of the risk.

80 To my mind, when the matter is viewed in this light, it was incumbent upon the learned Magistrate to devote greater attention than he seems to have done to the issue of deterrence as a means of underlining the importance of the statutory provisions. He took account of an extraneous consideration when he attached some weight to the fact that the respondent was the only organisation performing the work in question, for it was open to him to characterise the hazard in general terms, and in a way which would be relevant to activities in other industries. Other employers would then understand that in a situation of "inherent danger" (to use the learned Magistrate's words), where the risk was insidious, a significant penalty would be imposed if the appropriate precautions were not taken.

81 I have already noted that the range of penalties in some of the previously decided cases, and especially the Industrial Galvanisers Corporation case (supra) in which a penalty of $20,000 was held to be appropriate, suggests that the fine imposed in the present case was not sufficient to have a general deterrent effect. In my view, in this case, being a case of unpredictable and inherent danger, where the nature of the risk was insidious, and there was a degree of culpability on the employer's part of the kind mentioned earlier, the appropriate starting-point was a fine of $16,000. This is consistent with the reasoning and award in Haysdale Nominees Pty Ltd v Shepherd (supra), in which Owen J gave weight to the fact that the employer had provided instruction to its employees and had endeavoured to comply with its responsibilities under the Act. In the present case, however, unlike the situation in Haysdale, I am obliged to take account of the fact that the work practice in question was a regular feature of the respondent's operations.

82 Having given proper weight to the seriousness of the offence, it would then be appropriate to bring to account the various mitigating factors evaluated by the learned Magistrate, including the early plea of guilty, the absence of any prior record, the concern for safety previously demonstrated, and the respondent's determination to prevent any repetition of such an incident. With these thoughts in mind, I consider that a fine of $12,000 should have been imposed. Put shortly, I consider that this ground of appeal has been made out and that the error had led to a miscarriage of justice which must be remedied.

83 The fourth ground of appeal was that the learned Magistrate erred in fact and law in imposing a sentence that was, in all the circumstances, manifestly inadequate.

84 In regard to this ground, counsel for the appellant referred to the seriousness of the breach, amounting to a failure to take reasonable steps to protect employees from a foreseeable and foreseen risk of death or serious injury, and to the maximum penalty of $100,000 for a contravention that was not proven to have caused death or serious injury. Reference was also made to the significant economic scale of the respondent's operations, including the number of receiving depots operated by the respondent. Counsel for the appellant submitted that the fine of $7,500 imposed was manifestly inadequate and supported the submission in that regard by reference to the reasoning in Superfine Homes (supra) and Industrial Galvanisers Corporation (supra). There was no reason why a serious breach of the Act, even by a first offender, should, in general, be visited with a penalty of less than only 10 per cent of the maximum available fine.

85 I consider that the observations I have made in regard to the preceding ground of appeal concerning the seriousness of the offence and the weight to be given to the mitigatory factors are relevant to this ground also. The decided cases concerning the exercise of a sentencing discretion indicate that if the sentence imposed is unreasonable, the appellate court can infer there has been a failure properly to exercise the discretion. In my view, for the reasons previously given, the appropriate fine was $12,000, not $7,500: House v The King (supra). Accordingly, I am satisfied that this ground of appeal should be allowed.

86 I must now turn my attention to the question of what is the appropriate form of relief in the circumstances of the present case. In the present case, where the matter has been fully argued on two occasions, I cannot see any merit in remitting the matter to the Court of Petty Sessions. It follows that I will allow the appeal and order that a fine of $12,000 be substituted for the fine previously imposed.