Titan Plant Hire Pty Ltd v Work Health Authority and Madalena v Work Health Authority [2023] NTSC 88

Titan Plant Hire Pty Ltd v Work Health Authority and

Madalena v Work Health Authority [2023] NTSC 88

• [1] This is an appeal under the Local Court (Criminal Procedure) Act 1928 (NT) against a fine of $960,000 imposed on Titan Plant Hire Pty Ltd ("Titan") and a fine of $180,000 imposed on the managing director of Titan, Jason Frank Madalena ("Mr Madalena") by a judge of the Local Court on 15 March 2023 for breaches of s 32 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) ("the Act").

• [2] Titan is a construction and earthmoving equipment hire company which hires out equipment from its four yards in Western Australia and the Northern Territory.
• [3] Mr Madalena is and was the sole director and shareholder of Titan.
• [4] On 29 April 2019, Dwayne Beaumont was fatally injured at one of Titan's yards at McCarthy Close in Wishart, near Darwin. Mr Beaumont was not an employee of Titan.
• [5] The events that gave rise to the charges were set out in the Statement of Material Facts, which were agreed prior to the sentencing hearing.
• [6] Mr Madalena has worked in the mining services and civil construction industry for more than 25 years. He established Titan in 2001 with his wife, as a small start-up enterprise.
• [7] The Wishart Yard, where the incident occurred, is an open-air yard that is easily accessible to customers attending the yard to collect the hired equipment.
• [8] Mr Beaumont was an employee of XO Aviation Pty Ltd. At the time of the incident, he was guiding a Komatsu 2018 PC200LC-8M0 Excavator onto a trailer, when a smaller "trench" bucket attachment that had been stored within the main excavator bucket fell on him.
• [9] At the time of the incident, Titan had six employees based in Darwin (and 13 employees in total nationally). At this time, Mr Madalena would also travel between the Wishart Yard and the company's main yard at Yarrawonga, Darwin several times a day.
• [10] Mr Madalena knew that Kim Murray (another employee of XO Aviation) was going to be coming to the Wishart Yard to collect the Excavator on 29 April 2019.
• [11] Mr Murray was well known to Mr Madalena, the pair having regular involvement over approximately eight years. Mr Madalena knew Mr Murray to be a proper and experienced operator who had hired many different types of machines from Titan in the past.
• [12] When the incident occurred, the Excavator was already on the trailer (having been driven onto the float deck by Mr Murray). It was facing towards the back of the truck (although Mr Murray had slewed the cab around so that the cab and the excavator arm and bucket were facing the rear of the trailer).
• [13] Mr Murray remained inside the cab. There were two tyres against the tracks of the Excavator on the back of the truck. Mr Murray was attempting to rest the excavator batter bucket on the tyres when the smaller trench bucket stored in the bucket (weighing approximately 1 tonne), fell out, striking Mr Beaumont and causing the fatal injuries.

• [14] Titan pleaded guilty to a charge under s 32 of the Act with respect to a breach of its primary duty of care pursuant to s 19(2) of the Act. Mr Madalena pleaded guilty to a charge brought under s 32 of the Act, for his failure to comply with his health and safety duty as an officer pursuant to s 27(1) of the Act.
• [15] Section 32 of the Act provides (relevantly)as follows:

Failure to comply with health and safety duty - Category 2

(a) the person has a health and safety duty; and

(b) the person fails to comply with that duty; and

(c) the failure exposes an individual to a risk of death or serious injury or illness.

• [16] The maximum penalties for an offence under s 32 are $1.5 million for a corporation and $300,000 for an officer of a corporation.
• [17] The Act also establishes Category 1 offences of failure to comply with a health and safety duty in s 31. In addition to the three elements of an offence under s 32, a Category 1 offence under s 31 requires a fourth element, namely "the person is reckless as to the risk to an individual of death or serious injury or illness". The maximum penalties for a Category 1 offence under s 31 are a fine of $3 million for a corporation and a fine of $600,000 for an officer of a corporation.
• [18] Section 33 of the Act establishes Category 3 offences of failure to comply with a health and safety duty. The elements of that offence are simply the existence of a health and safety duty and a failure to comply with it. There is no requirement for the failure to expose an individual to a risk of death or serious injury or illness. The maximum penalties for a breach of a Category 3 health and safety duty is a fine of $500,000 for a corporation and $100,000 for an officer of a corporation.
• [19] It is accepted that pleas of guilty were entered by Titan and Mr Madalena at the first reasonable opportunity.

• [20] Both Titan and Mr Madalena are appealing against the fines imposed in the Local Court on the following grounds:

Ground 1: The learned sentencing judge erred in calculating the fine to be imposed as a proportion of the maximum penalty rather than embarking on a process of instinctive synthesis.

Ground 2: The fine imposed was manifestly excessive having regard to the maximum penalty prescribed for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupied on the scale of seriousness and the circumstances of the appellant.

• [21] The appellants contend that the sentencing judge erred in calculating the fines to be imposed as a proportion of the maximum penalty rather than embarking on a process of instinctive synthesis.
• [22] In Markarian v The Queen[1] the plurality said:

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. [citations omitted]

• [23] In Markarain, the High Court endorsed the instinctive syntheses approach to sentencing. The plurality said,[2] "In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed." Their Honours then quoted from the judgment of Gaudron, Gummow and Hayne JJ in Wong v The Queen:[3]

Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.

It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say 'may be' quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.

• [24] Their Honours placed this caveat on the general principle:[4]

Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of "instinctive synthesis", as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression "instinctive synthesis" may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.

• [25] In a separate judgment agreeing with the plurality in Markarian,[5] McHugh J explained the principles in the following terms:

... The appellant was granted special leave to appeal in this case because he contended that the key question in the case was whether "two-tier sentencing" in contrast to "instinctive synthesis" is the correct approach to sentencing. In this case, the Court of Criminal Appeal applied the "two-tier" approach. It erred in doing so.

By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the "objective circumstances" of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.

• [26] The appellants argue that the sentencing judge in this case applied a mathematical or two tier process. While acknowledging that the sentencing judge did not expressly state that the fines imposed were calculated as a proportion of the maximum penalty under the Act, the appellants contend that it appears that is what his Honour did.
• [27] The appellants contend that this is illustrated by the fact that after the 25% discount on sentencing for the early plea of guilty has been taken into account for both penalties, and discount of approximately $10,000 allowed for the "double punishment" on Mr Madalena's penalty, the penalties imposed in effect reflect approximately 85% of the maximum penalties for the respective offences. The significance of that figure is said to lie in what the sentencing judge said about the seriousness of the offending. Towards the end of the sentencing judge's reasons, after reciting the maximum penalties and stating that he was applying "a slight discount" to Mr Madalena's fine, his Honour said:

The seriousness - I know it's not a mathematical exercise but it is at the upper level. A range of between 80 and 90 percent is what I've found.[6]

• [28] The appellants contend that this demonstrates that the sentencing judge did not apply an instinctive synthesizing approach to determining an appropriate sentence but, having assessed the objective seriousness of the offending at "between 80 and 90 percent" of the most serious offence, mechanically imposed a penalty of 85% of the maximum penalty on both appellants (then making a small reduction on the fine imposed on Mr Madalena on account of "double punishment). The appellants submit that this mechanical application of the percentile at which the judge assessed the objective seriousness of the offending to the maximum penalty also involved the sentencing judge failing to take into account other relevant matters such as the appellants' remorse, good character and co-operation with the authorities and the remedial measures taken to improve safety in Titan's operations after the incident. (There is no independent ground of appeal alleging failure to take into account relevant considerations. The appellants put forward the failure to take these matters into account as an indication that the sentencing judge did not apply the instinctive synthesis approach.)
• [29] The respondent contends, correctly in my view, that the factual premise behind this contention is not made out. The sentencing judge did not apply a mathematical or two tier approach: he applied an instinctive synthesis approach. After reciting the facts, the sentencing judge made findings of fact relevant to an assessment of the objective seriousness of the offending:

I find that Titan Plant Hire and Mr Madalena knew of the risks. The likelihood of the risk of something - a person being injured in the loading of an excavator was significant. The potential consequences of the risk were death or serious injury. Measures were readily available to eliminate or minimize that risk. Those measures were not difficult to implement.

It may be that those measures might include or necessitate an extra employee who could do those inductions and perform training or act as spotter. And it might be that an extra staff member is needed at each of the three sites of the defendant but that is not an unreasonable expense to minimize the risk of injury or death. The defendants drafted a policy but did not follow it.

In the interview, Mr Maralena admitted they did not follow it. It leads me to conclude that the seriousness of this breach is beyond low range. It's beyond mid-range. We are not at the very top of the range of category 2 offence, like that of the Department of Defence which was dealing with live rounds fire and there was a prior conviction. But we are at the higher end of the range.

• [30] The sentencing judge then referred, very briefly, to the relevant subjective factors saying: "I take into account the defendants' good character, that there are no priors and that there is true remorse," then indicated that he would "give a small discount to Mr Madalena's penalty" to account for the potential double penalty to Mr Madalena as the sole shareholder of the corporate defendant, Titan.
• [31] There followed the passage which the appellants contend demonstrates that his Honour adopted an impermissible mathematical approach to the sentencing exercise.

The maximum penalty for the corporation is $1.5 million. The seriousness - I know it's not a mathematical exercise but it is at the upper level. A range of between 80 and 90 percent is what I've found. I've given a discount of 25%.[7]

• [32] The respondent contends that, read properly in context, the sentencing judge was not assessing the objective seriousness of the offending at "between 80 and 90 percent" of the most serious offence, and then mechanically imposing a penalty of 85% of the maximum penalty on both appellants. His Honour assessed the objective seriousness of the offending earlier in the sentencing remarks in the passage quoted above. He assessed it as "at the higher end of the range". That is repeated in slightly different language in the above passage, "it's at the upper level". The phrase "a range between 80 and 90 percent" does not refer to an assessment of the objective seriousness of the offending, but a statement of the percentage of the maximum penalty the judge was intending to impose, given that the objective seriousness was high - "at the upper level". That being the case, it is hardly surprising that the penalties imposed turned out to be around 85% of the maximum penalty.
• [33] The appellant's contention that an inference can be drawn from the above remarks that the sentencing judge did not engage on a process of instinctive synthesis cannot be accepted. As the NT Court of Criminal Appeal commented in Russell v The Queen,[8] no inference of a departure from the process of instinctive synthesis arises from a coincidence with other statements,[9] particularly where (as here and in Russell v The Queen) the remarks on sentence show a careful consideration of the facts and circumstances of the offending and of where the particular offending and offender lay on the scale of objective seriousness.
• [34] In his sentencing remarks, the sentencing judge noted the approximate weight of the trench bucket which fell and fatally injured Mr Beaumont and remarked on the danger that presented. His Honour then briefly summarised the agreed facts emphasising specific failures of Titan's duty and said:

I find that Titan Plant Hire and Mr Madalena knew of the risks. The likelihood of the risk of something - a person being injured in the loading of an excavator was significant. The potential consequences of the risk were death or serious injury. Measures were readily available to eliminate or minimise that risk. Those measures were not expensive or difficult to implement.[10]

• [35] These are all relevant findings to an assessment of the objective seriousness of the offending: the appellant has not submitted otherwise. His Honour continued:

The defendants drafted a policy but did not follow it. ... It leads me to conclude that the seriousness of this breach is beyond low-range. It's beyond mid-range. We are not at the very top of the range of Category 2 offence, like that of the Department of Defence which was dealing with live rounds fire and there was a prior conviction. But we are at the higher end of the range.[11]

• [36] His Honour then considered mitigating factors, saying that he took into account the defendants' good character, that there are no priors and that there is true remorse and indicated that he would be applying a 25% discount.
• [37] The sentencing judge's sentencing remarks were brief but, as this overview demonstrates, his Honour took into account relevant considerations and there is no reason to suppose that his Honour did not arrive at the sentences to be imposed by a process of instinctive synthesis. The sentencing judge specifically stated that the sentencing process was not a mathematical exercise. Further, I consider it likely that the respondent's interpretation of the meaning of the sentencing judge's reference to 80 - 90 % is correct.
• [38] The appellants contend that the following matters ought to have been considered as part of the instinctive synthesis which should have been carried out in the present case:[12]

(a) the appellants' lack of prior convictions;

(b) the appellants' good character as evidenced by references and charitable works;

(c) the appellants' remorse;

(d) the fact that the appellants have provided employment opportunities for many people and have worked on and supported some of Western Australia's largest resources projects and publicly funded infrastructure projects;

(e) the fact that Titan had an occupational health and safety plan in place for mining operations, but not in respect of its business more generally;

(f) although Titan did not induct other people coming on site, Mr Madalena told the Work Health Authority that the company inducted employees;

(g) the fact that since the incident, the appellants have committed to taking the necessary steps to ensure incidents of this kind do not happen again and have implemented some of those steps;

(h) although the offending was serious, it was not pre-meditated, nor carried out for financial gain.

• [39] The sentencing judge explicitly stated that he took into account the appellants' lack of prior convictions, good character, and remorse. Many of the other factors are of peripheral relevance, if that. For example, the sentencing judge mentioned as contributing to the seriousness of the offence that the appellants did not follow their own safety plan. The fact that it had a safety plan for its mining operations is of doubtful relevance to an assessment of the objective seriousness of these offences.
• [40] In any event, the fact that a sentencing principle or a particular circumstance is not explicitly mentioned in sentencing remarks does not necessarily lead to the conclusion that the principle or circumstance had not been taken into consideration, particularly in reasons given ex tempore in a busy lower court.[13]
• [41] This ground of appeal must fail. It is apparent from his Honour's remarks read as a whole that he had due regard to all the relevant circumstances of the appellants' case and weighed them by reference to the various components of the sentencing exercise he was required to undertake.

• [42] Titan contends that the fine of $960,000 is manifestly excessive having regard to the maximum penalty prescribed for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupied on the scale of seriousness and the circumstances of the appellants.
• [43] The relevant principles to be applied on an appeal on the grounds of manifest excess are well known.
• [44] In the absence of specific and identifiable error, it is necessary for the appellants to show that the sentence was clearly and obviously, and not just arguably, excessive.[14]
• [45] An appeal against a sentence is an appeal against the exercise of a discretion by the sentencing judge. That being so, the principles enunciated in House v The King[15] are applicable. In the oft-quoted passage from that decision, the High Court stated:

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.

• [46] In support of this contention the appellants contend that the sentencing judge erred in assessing the objective seriousness of the offending as towards the top of the range of seriousness for Category 2 offences. This contention must be rejected. The assessment of the objective seriousness of the offending was a matter within the discretion of the trial judge. The appellants have not identified any error in principle in the sentencing judge's process of reasoning in making the assessment. Nor is the assessment so unreasonable as to betray the existence of error not apparent on the face of the reasons.
• [47] The parties are agreed that in sentencing for Category 2 offences involving the death of a person the "Madgwick factors" identified in Comcare v Transpacific Industries[16] are instructive in assessing the appropriate penalty for offences. These are as follows:

(a) The penalty must be such as to compel attention to occupational health and safety generally, to ensure that workers whilst at work will not be exposed to risks to their health and safety.

(b) It is a significant aggravating factor that the risk of injury was foreseeable even if the precise cause or circumstances of exposure to the risk were not foreseeable.

(c) The offence may be further aggravated if the risk of injury is not only foreseeable but actually foreseen and an adequate response to that risk is not taken by the employer.

(d) The gravity of the consequences of an incident does not of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may manifest the degree of the seriousness of the relevant detriment to safety.

(e) A systemic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which an employee was exposed because of a combination of inadvertence on the part of an employee and a momentary lapse of supervision.

(f) General deterrence and specific deterrence are particularly relevant factors in light of the objects and terms of the Act.

(g) Employers are required to take all practicable precautions to ensure safety in the workplace. This implies constant vigilance. Employers must adopt an approach to safety which is proactive and not merely reactive. In view of the scope of those obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the employer in the future. This is particularly so where the employer conducts a large enterprise which involves inherent risks to safety.

(h) Regard should be had to the levels of maximum penalty set by the legislature as indicative of the seriousness of the breach under consideration.

(i) The neglect of simple, well-known precautions to deal with an evident and great risk of injury, take a matter towards the worst-case category.

(j) The objective seriousness of the offence, without more may call for the imposition of a very substantial penalty to vindicate the social and industrial policies of the legislation and its regime of penalties.

• [48] Each and every one of those factors points to a high level of objective seriousness in the instant offending. As the sentencing judge found:

(a) Titan Plant Hire and Mr Madalena knew of the risks.

(b) The likelihood of a person being injured in the loading of the excavator was significant.

(c) The potential consequences of the risk were death or serious injury.

(d) Measures were readily available to eliminate or minimise that risk.

(e) Those measures were not expensive or difficult to implement.

(f) The defendants drafted a policy but did not follow it.

• [49] These factors all support the conclusion reached by the sentencing judge that, while not being at the top of the range, the seriousness of the breach was at the higher end of the range of seriousness for a Category 2 offence under s 32 of the Act.
• [50] The appellants also rely on a range of interstate and Territory comparative sentences and contend that the sentence in the instant case is manifestly excessive by comparison. That contention largely depends on acceptance of the submission I have already rejected, namely that the sentencing judge erred in finding that the instant offending was toward the upper end of the range of seriousness.
• [51] As the respondent has correctly pointed out, the suggested disparity falls away when the subject sentence is compared with sentences for offending found to be at the higher end of the upper range of objective seriousness. In cases which have been identified as being in the higher range, comparable sentences have been imposed. The respondent refers to SafeWork NSW v Perry's Roofing Pty Ltd,[17] SafeWork NSW v Buddco Pty Ltd (No 2),[18] Comcare v Commonwealth,[19] Comcare v Transpacific Industries Pty Ltd[20] and Comcare v Commonwealth.[21]
• [52] In any event, the circumstances both objective and subjective of such offences are almost infinitely variable, and little assistance can be gained by examining individual cases and attempting to rank them on a scale of seriousness which takes all of these factors into account.

• [53] The sentences imposed by the sentencing judge, though stern, are within the available range of the sentencing judge's discretion and are not manifestly excessive. Ground 2 must be dismissed.
• [54] ORDERS: The appeals are dismissed.

[1] [2005] HCA 25 at [30]-[31] ("Markarian")

[3] [2001] HCA 64; (2001) 207 CLR 584 ("Wong") at 611-612 [74] to [76] Only part of the quote is included in these reasons.

[6] Local Court Transcript of Proceedings 15 March 2023 at p 5

[7] His Honour explained that the discount was for an early plea, notwithstanding that there had been some delays.

[8] [2022] NTCCA 6 at [22]

[9] In the case of Russell v The Queen, the asserted coincidence was the fact that the sentencing judge adopted a starting point of imprisonment for seven years in coincidence with the statement in The Queen v Roe [2017] NTCCA 7 that the starting point in the second category of case 'is ordinarily a sentence of seven to 10 years' imprisonment'.

[10] Local Court Transcript of Proceedings 15 March 2023 at p 4

[11] Local Court Transcript of Proceedings 15 March 2023 at p 4

[12] What follows is a summary of the matters set out at [100]-[127] of the appellants' written submissions.

[13] Jordan v The King [2023] NTCCA 2

[14] Rigby v Benfell [2020] NTCA 9 at [42]

[15] [1936] HCA 40; (1936) 55CLR 499

[16] [2015] FCA 500 at [116] - [120]

[17] [2022] NSWDC 261

[18] [2023] NSWDC 128

[19] [2009] FCA 700

[20] [2015] FCA 500

[21] [2015] FCA 810