1 These proceedings involve an appeal under s 196 of the Industrial Relations Act 1996 ("the IR Act") and s 5AA(1) of the Criminal Appeal Act 1912 against a judgment of Schmidt J given on 24 November 2005 in which her Honour convicted the appellant of offences under s 15(1) and s 16(1) of the Occupational Health & Safety Act 1983 ("the Act") following pleas of guilty entered after the hearing was well advanced. The appellant company was represented at the hearing of the appeal by a director, Mr T R Tisdale.
2 Her Honour imposed penalties totalling $135,000: Inspector Wayne James v T & M Industries Pty Ltd & anor [2005] NSWIRComm 424. The appeal was confined to a challenge to the severity of the sentence and the manner in which her Honour arrived at the fines that were ultimately imposed. Such an appeal is an appeal in the strict sense (see Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304; Newcastle Wallsend Coal Company Pty Ltd & ors v Inspector McMartin [2006] NSWIRComm 339 at [35]. It is therefore necessary for the appellant to establish error in the setting of the penalty imposed by Schmidt J, but even if error is shown the sentence may not be altered or varied unless the appeal bench is satisfied that some other sentence is warranted.
3 The offences arose out of an accident which occurred on 15 July 2000 when Rhys Stevenson, a casual general hand and labourer not in the appellant's employ, was seriously injured when struck by a load of metal products, weighing approximately 1.2 tonnes, that fell from a forklift. The forklift was being operated by another casual general hand and labourer, Leon Gardiner, an employee of the appellant, who was moving the load of metal products, from one location to another at the appellant's Smithfield premises. Mr Stevenson was providing guidance to Mr Gardiner in respect of the movement of the load. Mr Gardiner did not possess the appropriate certification such as would have lawfully permitted him to operate the forklift. Both of the employees, at the time of the incident, were 17 year old high school students. Mr Gardiner had been employed for three to four months prior to the incident. It was Mr Stevenson's first day at work. Importantly, Mr Gardiner was employed by the appellant company, while Mr Stevenson was employed by another company that had a relationship with the appellant company, the details of which were not disclosed in the judgment. It appears that Mr Tisdale was a director of both companies.
4 As a result of the incident, Mr Stevenson sustained a major midline skull fracture, multiple hairline skull fractures, collapsed lung, fractures to the orbit of the right eye, fractured right maxilla, major fracture of the pelvis, fractured coccyx, fractured acromio clavicula joint, fractured nose and broken teeth. He experienced impaired vision to his left eye causing double vision, short term memory loss and inability to concentrate.
5 The appellant had no system in place to control and monitor the use of forklift trucks at its Smithfield premises at the date of the incident. A key, necessary to start the forklift, was either left in the ignition of the vehicle, or in the possession of a storeman. On the date of the incident, the key to the forklift truck was left in the ignition, and accordingly, there was no impediment to Mr Gardiner accessing the key and operating the vehicle.
6 Schmidt J, after reciting the facts, including those referred to above, found the offences were serious, involving dangerous work, and employees who were young, untrained and unsupervised in forklift operations. The accident was the materialisation of the obvious risk inherent in the approach adopted with one of the boys suffering terrible injuries.
7 Her Honour observed it was plainly a matter of good luck that the injuries were not more serious and that forklift operations were notoriously dangerous, as the authorities well demonstrated, even when trained and experienced operators were involved in driving them.
8 Her Honour then observed, referring to the post offence measures which the appellant had implemented, as follows at [35]:
The evidence also well demonstrated the simple steps available which would have precluded the accident, which included ensuring that keys were not left in the forklift ignition and that forklift operations were undertaken by the appropriate trained and supervised member of staff. Such steps were implemented without difficulty after the accident. It follows that all of these matters must lead to a substantial penalty. The offence involved young, untrained boys operating dangerous forklift equipment to carry heavy loads while entirely unsupervised. The risk to which they were exposed included the risk of death. Very serious injury was, in fact, sustained by Mr Stevenson. All of those matters must lead to a substantial penalty.
9 Her Honour recorded that the appellant faced maximum penalties of $550,000 for each offence.
10 Having earlier recorded that the appellant entered pleas of guilty at the close of the hearing of the prosecution's case, resulting in some efficiencies being achieved, given the time and circumstances in which the pleas were entered, her Honour concluded that a discount of 10 per cent should be allowed for these utilitarian benefits. Her Honour also determined that some further discount may properly flow, given the defendant's prior approach to safety and the steps taken after the accident.
11 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 on an appropriate penalty.
12 Her Honour then considered s 6 of the Fines Act 1996, noting that there was evidence that, while solvent, the defendant had a limited ability to meet a fine as at the date of the hearing, but this depended on cash flow and profit, of both the defendant and a related company T & M Engineering Group Pty Ltd. Her Honour stated that she had taken this evidence into account in order to reduce the penalty which otherwise, would have resulted.
13 Her Honour concluded that a proper penalty resulting from the variously nominated considerations was $121,500 in each case resulting in a total fine for the two offences of $243,000. Applying the principle of totality, her Honour reduced this sum to $135,000 for both offences and then divided that penalty equally in relation to the s 15(1) and s 16(1) offences. In doing so, her Honour accepted the appellant's submission that, having regard to the fact that the two offences arose out of the same incident, a global approach should be taken to ascertain the overall criminality of the offence. In adopting this course, there is no doubt that her Honour properly calculated the penalty for each offence, reviewed the aggregate sentence, considered whether the aggregate sentence was just and appropriate, and then significantly reduced the total penalty before dividing that penalty equally between the two offences. After applying the principle of totality her Honour imposed penalties of $67,500 for each offence.
Grounds of Appeal
14 The grounds of the appeal were that the penalty was manifestly unjust and inordinately harsh in that her Honour failed to give any, or adequate consideration to the relevant factors on sentencing. In particular, the appellant emphasised the subjective factors which would mitigate against the excessive penalty including the particular financial means of the defendant.
Consideration
15 On the evidence there can be no doubt that her Honour was correct in her conclusion that the offences were serious. It was significant that there were two young men put at risk in the performance of this work employed by different companies. The appellant company had a duty to ensure that each of them was able to work at the appellant's premises without risk to his safety. Notwithstanding the serious nature of the offences, her Honour, in coming to a global view of the criminality of the offences, considered that an appropriate penalty would be a $121,500 for each offence against a maximum penalty in each case of $550,000, placing those fines in the lowest quartile of the range. Application of the principle of totality substantially reduced that relatively low fine. In making these observations, the Court is not to be taken to endorse a mathematical approach to the fixing of penalties under the Occupational Health and Safety Act 2000 and such an approach to sentencing has long been rejected.
16 There are many considerations that inform the sentencing exercise. As was famously said in the joint judgment of the High Court in Veen v The Queen (No 2) (1987-1988) 164 CLR 465 at 476:
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions .
The complex nature of the sentencing task did not appear to be recognised in the written submissions and oral submissions for the appellant company: the focus was on a purely mathematical approach, comparing the sentence imposed by her Honour with three other cases involving forklifts or tractors in order to make out a case that the penalties imposed in these matters were unjustifiably high.
17 The starting point for considering the appropriate penalty is the objective seriousness of the offence. The task of the Court in sentencing is to assess the relative seriousness of the offence in relation to a case for which the maximum penalty is provided and to impose a penalty, which correlates with the relative seriousness of the offence, on a scale from zero to the maximum: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; Independent Cargo and Wool Services Pty Ltd v Inspector Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, 10 March 1994).
18 The evidence and her Honour's judgment showed that the risk which materialised, was the risk of serious injury or death resulting from young, untrained and unsupervised employees being involved in operating a forklift and handling an awkward and heavy load. It was clear, on the evidence, that Mr Stevenson was fortunate that he did not suffer more serious injuries.
19 The risk which materialised was obviously foreseeable. Two 17 year old boys were required to work, unsupervised, and without training or qualifications in operating a forklift which was carrying a load of 1.2 tonnes. The load comprised two bundles of formed metal products. One bundle consisted of 26 lengths of metal products, themselves ranging in length from 4.95 metres to 6.18 metres, and the other bundle consisted of 30 lengths of metal products, ranging in length from 6.2 metres to 7.14 metres. The forklift was operated in a forward direction so that the mast end of the truck was downhill as it travelled down a slightly graded concrete driveway. Mr Stevenson walked alongside the raised load and provided Mr Gardner with guidance as to the movement of the load. The load was therefore not only heavy but also comprised various lengths of product, raising issues of manoeuvrability and stability.
20 As her Honour found, it was entirely foreseeable in those circumstances, that young men given dangerous work to do for which they were untrained and unsupervised, involved a substantial risk leading to the imposition of a substantial penalty. Simple steps which would have precluded the accident, such as ensuring that the keys were not left in the forklift's ignition and that the forklift operations were undertaken by appropriately trained and supervised members of staff, were demonstrated by the evidence and were taken into account by her Honour. Her Honour made two important findings of particular relevance to the appeal. In paragraph [20], her Honour said:
Prior to and as at the date of the incident involving Stevenson the defendant had no system in place to control and monitor the use of forklift trucks at the Smithfield premises.