WorkCover Authority of New South Wales (Inspector Franke) v Amer Kanawaty

CATCHWORDS: Application for leave to appeal and appeal - leave to appeal granted - cross appeal against conviction - contended no mention of criminal standard of proof in Chief Industrial Magistrate's judgment - contended conviction to requisite standard not available on the evidence - no necessary requirement for criminal standard of beyond reasonable doubt to be expressly referred to in judgment - magistrate applied criminal standard - no error in determination of offence pleaded at first instance - leave to appeal refused for cross-appeal - appeal cites manifest inadequacy of penalty - sentencing discretion at first instance - principle of restraint inherent in Crown appeals - residual discretion of Court on appeal not to alter sentence even if error is found - appellant's appeal upheld - sentence at first instance affirmed - cross appeal dismissed - order as to costs.

Crimes (Local Courts Appeal and Review) Act 2001 Evidence Act 1995 Fines Act 1996 LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 1983

Dinsdale v The Queen (2000) 202 CLR 321 Drake Personnel Limited t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Genner Constructions Pty Limited v WorkCover Authority of New South Wales (2001) 110 IR 71 Markarian v The Queen [2005] HCA 25 (18 May 2005) Powercoal Pty Ltd and Anor v Industrial Relations Commission of NSW & Anor (2005) NSWCA 345 CASES CITED: R v Doan (2000) 50 NSWLR 115 R v Timu [2002] NSWCCA 421 R v Winner (1995) 79 A Crim R 528 WorkCover Authority of New South Wales v Jian Chen and Obing Pty Limited t/as Old But New [2004] NSWIRComm 247 WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Limited (2003) 127 IR 60

APPELLANT: Mr R Reitano of counsel SOLICITOR: Dibbs Barker Gosling LEGAL REPRESENTATIVES: RESPONDENT: Mr M Sahade of counsel SOLICITOR: Oliveri Attorneys

• 30 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Walton J, Vice-President Staunton J Backman J DATE: 3 November 2005 Matter No IRC 7530 of 2004 WorkCover Authority of New South Wales (Inspector Franke) v Amer Kanawaty Application by prosecutor for leave to appeal and appeal the decision of Chief Industrial Magistrate Miller in Matter No 20160458 of 2004 given on 3 December 2004. Cross-appeal by respondent. JUDGMENT [2005] NSWIRComm 361

1 In these proceedings, the WorkCover Authority of New South Wales appeals pursuant to s197 of the Industrial Relations Act 1996 from the decision of the Chief Industrial Magistrate in Matter No 20160458 given on 3 December 2004. 2 The substance of the appellant's appeal goes to the question as to whether the penalty imposed by the Chief Industrial Magistrate was manifestly inadequate having regard to the objective seriousness of the offence. 3 The respondent has filed a cross-appeal against conviction. The grounds of appeal relied upon are: His Honour erred in law: 1. In finding that Mr Coote had assumed on the system in place at the time that Mr Caroma was not inside the tumbler in circumstances where there was no evidence before his Honour that was capable of supporting such a finding (and the undisputed evidence in the case was to the contrary). 2. By disregarding inappropriately the undisputed and unchallenged documentary evidence of Mr Iannelli and Mr Coote that disclosed a safe system in place prior to the injury of the victim. 3. In failing to appreciate that the required standard of proof in the case was proof beyond reasonable doubt. 4. In finding expressly or implicitly that the evidence was capable of proving the allegation to the required standard when no evidence was adduced at all in respect of: (i) whether only Mr Coote was authorised, entitled and physically capable of starting the potato tumbler, which he did; (ii) whether accordingly there was any need or practical use for training to be extended to workers other than Mr Coote in respect of the safe manner of switching the potato tumbler on and off; (iii) whether Mr Coote intentionally or recklessly injured the victim in the circumstances of this case where the undisputed documentary evidence was that he first instructed the victim to enter the tumbler and then switched the tumbler on, regardless of or countermanding the safe systems that were in place to his knowledge; and/or (iv) whether Mr Coote knew and deliberately failed to adhere to the safe systems in place (which would have avoided the injury) but that such failure or refusal on Mr Coote's part to adhere to the safe systems in place in this instance directly gave rise to the injury; and in circumstances where each of the above inferences were reasonably possible on the undisputed documentary evidence of the case and were required to be addressed by the tribunal of fact in this case and where no evidence was adduced to negate such inferences by the prosecution. 4 The substantive proceedings before the Chief Industrial Magistrate involved two summons prosecutions. The first, Matter No 20292717/03/2, involved an offence charged against Dromore Fresh Produce Pty Limited (Dromore) alleging an offence pursuant to s16(1) of the Occupational Health and Safety Act 1983. The information laid stated that Dromore, being an employer, failed to ensure that persons not in it's employment and in particular Mr Wagner Caroma, were not exposed to risk to their health or safety arising from the conduct of Dromore's undertaking at its place of work, being Dromore Station. 5 The failures particularised with respect to Dromore went to systems of work, instruction, training, supervision and information in relation to the plant in question identified as a vegetable washer machine. 6 The second prosecution was Matter No 20160458/04, the subject of the current appeal proceedings. That matter involved an offence charged against the respondent Mr Amer Kanawaty as a Director of Kanwa Nominees Pty Limited (in liquidation) alleging an offence pursuant to s15(1) and s50 of the Act. The information laid pleaded the alleged offence: At all material times, the Defendant was a Director concerned in the management of Kanwa Nominees Pty Ltd (ACN 080 604 753) ("Kanwa"), a corporation, which did, on 4 June 2001 at Dromore Station, Monaro Highway, Cooma in the State of New South Wales ("Dromore Station"), contravene section 15(1) of the Occupational Health and Safety Act ("Act") in that being an employer, it did fail to ensure the health, safety and welfare at work of its employees, and in particular, Mr Wagner Caroma ("Mr Caroma"). The Defendant, being a Director of Kanwa and concerned in the management of Kanwa is deemed to have contravened section 15(1) of the Act by force of section 50(1) of the Act. 7 The offence was particularised as follows: 1. On the said date, at the said site, the Defendant, being a Director concerned in the management of Kanwa, an employer, failed to ensure the health, safety and welfare at work of its employees and in particular, Mr Caroma, in that: (a) it failed to provide or maintain plant and systems of work which were safe and without risks to health in that: (i) an employee was able to climb into the tumbler of a vegetable washing machine ("the machine") operated by Kanwa employees at the premises of Dromore Station; (ii) the machine operated by employees of Kanwa was able to be turned on whilst an employee was in the tumbler of the machine; (iii) there was no system for detecting if there was an employee inside of the tumbler before it was turned on. (b) it failed to provide such information, instruction, training and supervision as was necessary to ensure the safety of its employees, in particular, Mr Caroma in that: (i) it failed to instruct and train employees as to the safe and proper use of the machine; (ii) it failed to adequately supervise its employees, such that an employee could climb into the tumbler of the machine and the machine be turned on whilst a person was inside the tumbler of the machine. (c) it failed to take such steps as are necessary to make available in connection with the use of any plant at the place of work adequate information about the use for which the plant is designed and about any conditions necessary to ensure that when put to that use the plant will be safe and without risks to health in that: (i) it failed to provide any information to employees to: (a) prevent that machine being turned on whilst there was a person in the tumbler; (b) ensure that persons checked that there was no employee or other person inside the tumbler before turning the machine on. 8 There was no material difference, save as to non-employees with respect to Dromore, between the offences particularised as between the two defendants. That is because, as it often the case, the offences arose out of the same factual matrix. 9 Both defendants entered a plea of not guilty before the Chief Industrial Magistrate and both were represented by the same solicitor in the hearing before his Honour. Both defendants were convicted in relation to their respective offences. Dromore was fined $22,500 and Mr Kanawaty, as a director of Kanwa, was fined $3000. 10 The appeal filed is only in relation to Mr Kanawaty. Likewise, the cross-appeal is so limited. 11 Before turning to the substance of the appeal, it is relevant to detail the factual background of the relationship between Dromore, Kanwa Nominees Pty Limited and Mr Kanawaty. 12 The defendant Dromore operates a vegetable growing business at Dromore Station near Cooma in New South Wales. Dromore contracted with Kanwa Nominees Pty Limited (in liquidation) (Kanwa) to undertake work for it from time to time, which included harvesting and packing its crop. To do that, Kanwa predominantly employed casual itinerant labour. Nominated employees of Kanwa were appointed as supervisors at a particular place of work to oversee the itinerant work force. On 4 June 2001, one such employee was Mr Douglas Audley-Coote, generally known, as we understand, as Mr Coote. 13 Also employed by Kanwa on 4 June 2001 at Dromore Station was Mr Wagner Caroma. His job involved packing and sorting vegetables under the supervision of Mr Coote. 14 As a director of Kanwa, the respondent/cross appellant apparently visited the worksite every day to ensure the work contracted was being carried out. In short, he undertook a general oversight of his supervisors and employees. 15 In June 2001, the vegetable washer machine was being used to wash potatoes. The photographs confirm his Honour's observations. The vegetable washing machine and its operation was described by his Honour as follows: The inspector's report disclosed the vegetable washing machine was approximately 2.5 metres above ground level and access to the work and maintenance platforms was by means of a permanent ladder. The vegetable washing machine consists of a series of belt conveyors, a control panel and a rectangular steel container open at the top, in which a still cylinder was installed. The cylinder was approximately one metre in diameter and approximately 3.8 metres long and was constructed on metal rods spaced apart. The spacing allows water and dirt to pass through it. It rotates continually when the power source is activated.

Mr Iannelli (Manager for Dromore) informed the inspector that when the machine is in operation the potatoes or carrots travel along the conveyor belts to where the workers select and sort the vegetables into the rotating cylinder. Once inside this cylinder water passes through and washes the vegetables, the product then comes out the other end of the cylinder and is taken along another conveyor for sorting and packing.

The opening from the conveyor into the cylinder was 880 millimetres wide and approximately 360 millimetres in height. Access to this opening can only be gained by climbing on to the conveyor belt from the work platform. Access into this cylinder was further restricted by two 100 millimetres water pipes running across the opening.

The control panel operating this machine was approximately 23 metres from the accident location. A mushroom type emergency button was fitted to the control panel and all switches were identified as to their use and function. The power source for this machine was electricity. The normal process of cleaning the tumbler is done once or twice a year. The machine in normal use is self cleaning. To clean the tumbler it is removed from its position by a forklift and is then moved on rollers. It was not normal practice to climb inside the tumbler of the machine to clean it out. ... 16 The accident giving rise to the offence involved Mr Caroma. On 4 June 2001, while working at Dromore Station, Mr Caroma climbed inside the tumbler machine. As his Honour described: ... Whilst Mr Caroma was inside the tumbler, Mr Coote started the potato washing section of the plant, which included the machine and the tumbler inside the machine. Mr Coote turned the machine off immediately and tightened the drive chains, as the machine had previously experienced problems with the drive chains and sliding or jumping cogs. Mr Coote took approximately ten minutes to tighten the drive chains. Mr Coote then restarted the machine. Mr Coote believed that the drive chain was still too loose, so he stopped the machine and again readjusted the drive chain for a period of approximately three minutes. Mr Coote again restarted the machine. Mr Coote walked to the machine to inspect it and the washing plant. Mr Coote then noticed Mr Caroma in the tumbler of the machine. Mr Coote went to machine control panel and stopped the machine and the potato washing section of the plant. Mr Coote then called for help. Mr Caroma sustained bruising and a broken rib. 17 Evidence of representations made by Mr Caroma to Inspector Constable on 6 June 2001, some two days after the accident, disclosed that Mr Caroma was directed to go inside the barrel of the machine by a person he knew as 'John Coops'. It was not disputed that the person Mr Caroma identified was Mr Coote. As his Honour stated: ... Mr Caroma's statement is corroborated to some extent by Mr Coote as he instructed Mr Caroma to clean the rollers and the dirt section at the base of the tumbler. ... 18 It should be noted at this point that his Honour admitted statements from Ishaq Mohammadi, Antonio Iannelli, Wagner Caroma and Douglas Audley-Coote pursuant to s62(2) of the Evidence Act 1995 (NSW) following notice given by the prosecutor as required by s67 of the Evidence Act. The basis of the notice given and the statements admitted was that all four persons were persons the prosecutor stated were unavailable to give evidence on the basis that it had not been possible to locate them in order to serve them with a subpoena. 19 While the respondent's counsel objected to the admissibility of the statements before his Honour, that is not a matter specifically pleaded by the respondent in the cross-appeal. Leave to appeal

20 The prosecutor has sought leave to appeal pursuant to s197 of the Industrial Relations Act 1996 (the Act). After some consideration, we are inclined to grant leave. We do so primarily because there are issues arising in this matter in relation to sentencing on appeal that warrant our consideration, going as they do to the appellant's contention that the sentence imposed was manifestly inadequate and, in turn, to the proper administration of justice. 21 In relation to the cross-appeal, s53(1) of the Crimes (Local Courts Appeal and Review) Act 2001 provides: Any person who has been convicted or sentenced by a Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves: (a) a question of fact, or (b) a question of mixed law and fact, but only by leave of the Supreme Court. 22 Leave is required in relation to the cross-appeal. 23 On that point, we are not persuaded that leave to appeal should be granted to the respondent with respect to the cross-appeal. To the extent that the respondent simply contends that his Honour 'erred in law', we do not agree. Overall, the cross-appeal lacks any real issue of law or principle and no public interest issue properly arises. 24 To start with, the respondent cites as a ground of appeal that his Honour 'failed to appreciate that the required standard of proof in the case was proof beyond reasonable doubt'. Beyond that assertion, the respondent does not identify any relevant legal or factual error made by his Honour relevant to this point. In his judgment, his Honour stated at p6: I am satisfied to the required standard that the particulars as alleged had been made out against both Dromore and Kanwa. 25 As was stated by the majority in Drake Personnel Limited t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 459: The determination of whether an offence is proven according to the correct criminal standard is undoubtedly a fundamental feature of a criminal trial and the application of the wrong standard of proof would constitute a fundamental flaw in the trial: see Thomas v The Queen (1960) 102 CLR 584 at 593. However, it does not follow that a criminal trial is fundamentally flawed because the standard which is applied has not been expressly stated in the reasons for decision. In our view, there can be no doubt in proceedings of this kind what the appropriate standard of proof is, that the Chief Industrial Magistrate applied that standard or that the parties were in any doubt that the correct standard was being applied ... whilst it may be preferable for a judicial officer to state the standard of proof which has been applied, in our opinion there is no error of law in this case in failing to do so. 26 We would concur with the view expressed. Additionally, for further re-affirmation on this point, see R v Winner (1995) 79 A Crim R 528 at 529 - 530: ... It is not self evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. ... 27 In a similar vein, in R v Timu [2002] NSWCCA 421 Sperling J (Buddin J agreeing) dismissed a ground of appeal averring that the sentencing judge had not applied the correct onus and standard of proof in finding the facts upon which the sentence was to be passed. In doing so, his Honour said at [25]: In relation to disputed facts going to aggravation of the offence, the burden of proof was on the prosecution and the standard of proof was proof beyond reasonable doubt : Olbrich (1999) 199 CLR 270. The trial judge did not state those principles. However, it cannot be doubted that a judge of Neild DCJ's experience intended to apply them. It follows that his Honour was satisfied beyond reasonable doubt of the factual matters in dispute. 28 We also refer to the approach recently adopted by the Chief Justice (with whom Mason P and Handley JA agreed) in Powercoal Pty Ltd and Anor v Industrial Relations Commission of NSW & Anor (2005) NSWCA 345 at [71] as follows: That in some parts of its judgment the Full Bench uses language that is not in terms the language of beyond reasonable doubt does not appear to me to be of any particular significance in the context of the judgment as a whole. No doubt there will be cases in which it is appropriate to conclude that the invocation of the beyond reasonable doubt standard was a mere invocation and that the Court did no more than pay lip service to the principle. (See, e.g. Harling v Hall (1997) 94 A Crim R 437 at [8]; Lions v Taylor (1999) WASCA 86 at [10] and [19].) This is not such a case. Considering the judgment as a whole, the Full Bench did, in my opinion, apply the criminal standard of proof. 29 We consider that, when consideration is given to the whole of the judgment of the Chief Industrial Magistrate (and, in particular, to his statement set out in paragraph [24] above), his Honour did apply the criminal standard of proof although he did not specifically define what he meant by 'required standard'. Further, the Chief Industrial Magistrate has many years of experience in dealing with criminal prosecutions, sitting alone. We are confident that, when his Honour asserted in his judgment he was 'satisfied to the required standard', he intended to and did apply the criminal standard of proof. Considerations as to the cross-appeal going to the respondent's conviction 30 We turn to the other grounds of appeal relied upon in the respondent's cross-appeal that have been set out above. They all turn on issues of fact in relation to the evidence adduced and the conclusions able to be properly drawn by his Honour in determining that the offence against Kanwa and thereby the respondent was established. 31 As is evidenced by reference to those grounds of appeal above, the respondent focuses, wrongly in our view, on the circumstances of the accident rather than on the real nub of an offence under s15(1) of the Occupational Health and Safety Act 1983, that is, the risk to the health and safety of the respondent's employees, particularly Mr Caroma. As the agreed facts disclosed, there was no issue before his Honour that: (i) Kanwa was an employer; (ii) Mr Caroma was an employee; (iii) the respondent/cross appellant was a director of Kanwa; and (iv) the accident involving Mr Caroma happened at Kanwa's place of work. 32 Further, there was no dispute before his Honour that Mr Caroma was inside the vegetable washing machine when it was turned on and he was injured as a consequence. Ultimately, the only element of the offence left for his Honour to determine was whether there was a causal link between the failures particularised and the risk to health and safety. 33 The evidence relied upon by the prosecutor to establish that causal nexus were a number of statements/representations made by relevant persons, they being Ishaq Mohammadi, Antonio Iannelli, Wagner Caroma and Douglas Coote. Mr Iannelli was, at the relevant time, the Manager of Dromore. Mr Coote was engaged on behalf of Kanwa in supervising it's employees at Dromore Station on the day and Mr Caroma and Mr Mohammadi were employees of Kanwa. In addition to Mr Caroma and Mr Coote, Mr Mohammadi was present on 4 June 2001 in the vicinity of the vegetable washing machine. He assisted in rescuing Mr Caroma. 34 All four people were interviewed by Inspectors of WorkCover shortly after the accident. Inspector Franke, the prosecutor in these proceedings, interviewed Mr Mohammadi and Mr Iannelli on 20 June 2001 at Dromore Station. Mr Iannelli signed a record of that interview. Mr Mohammadi initialled the handwritten record of his interview written by Inspector Franke in his notebook. 35 Inspector Constable of WorkCover interviewed Mr Caroma at Canberra Hospital on 6 June 2001, two days after the accident. He made notes of that interview in his notebook. Inspector Constable interviewed Mr Coote at Dromore Station on 20 June 2001. Subsequently, none of the four were able to be located in order to subpoena them to give direct evidence based on their prior representations. In accordance with the provisions of s67 of the Evidence Act, notice was given to admit the representations made in accordance with s62(2) of the Evidence Act. 36 We observe no appellable defect in his Honour's reasoning in admitting the statements for the reasons detailed by him. 37 Critically, the oral representations made by Mr Caroma to Inspector Constable shortly after the accident included representations to the following effect: (i) Caroma was directed to go inside the barrel of the machine by a person known to him as 'John Coops'. (ii) Caroma was directed to clean the inside of the barrel of the machine. (iii) Caroma had climbed inside the barrel of the machine and cleaned the barrel in this manner on a number of occasions previously. (iv) Caroma estimated that it takes about 2 minutes to remove the rocks and stalks from the tumbler of the machine. (v) Caroma was inside the barrel of the machine when it was suddenly switched on. (vi) Caroma was not aware of any system to isolate the machine so that it could not be turned on while a person was inside the tumbler of the machine. 38 Inspector Constable was cross-examined as to the representations made by Mr Caroma as recorded in his notebook. He confirmed his conversation with Mr Caroma and he was not shaken in cross-examination. 39 As earlier stated, it is not in issue that reference to 'Mr Coops' by Mr Caroma was reference to Mr Coote. 40 In relevant and significant respects, the oral representations made by Mr Coote to Inspector Constable corroborated the representations made by Mr Caroma. Those representations included: (i) Coote's position was that of foreman. His duties include supervising the pickers, irrigation and harvesting of the crop. (ii) Coote was also employed as a foreman by Kanwa. His duties included supervising the staff. He stated that the property, machinery and building are owned by Dromore and the workers are employed by Kanwa. (iii) Coote has been employed in these positions since 1995. (iv) On 4 June 2001, Coote was setting up the plant and the vegetable washer ('machine') for a run of potatoes. (v) On 4 June 2001, Coote instructed Wagner Caroma ('Caroma') to clean the rollers and the dirt section at the base of the tumbler of the machine. Three other employees, known to Coote as Joe Gun, Charlie Chami and Adnau Chami were working nearby. (vi) Coote then started the potato packing section of the plant. He checked the packing plant to ensure that it was in working order. (vii) Coote then started the potato washing section of the plant ('washing plant'), which included the tumbler of the machine. He stated that he had previously experienced problems with the drive chains. On this occasion, the drive chains were sliding or jumping cogs, so he turned the machine off immediately. (viii) Coote then tightened the drive chains which took approximately 10 minutes. (ix) Coote restarted the washing plant. The drive chain was still too loose so he immediately stopped the machine again to re-adjust the drive chain, which took approximately three minutes. (x) Coote then walked up to inspect the washing plant. He saw Caroma in the tumbler of the machine. 41 In addition, the Notice given under s67 of the Evidence Act with respect to Mr Coote also included the following: In accordance with section 5(b) of the Evidence Regulation 2000 (NSW), the substance of all other relevant representations made by the person who made that previous representation are as follows: 1. Inspector Martin Constable asked 'Was there any instructions that staff were not to climb into the tumbler?' Coote answered 'No, it was only done once or twice a year, it was not normal procedure.' 2. Coote stated that it was not normal practice to climb inside the tumbler of the machine to clean it out. 3. Coote stated that he did not know if there was any reason for Caroma to be inside the tumbler. 42 Inspector Constable was also cross-examined as to the representations made to him by Mr Coote and recorded in his notebook. He adhered to the substance of those representations and his evidence on those matters was not undermined. 43 In all the circumstances, his Honour was entitled to accept the veracity of the representations made to Inspector Constable by Mr Caroma and Mr Coote. Taken together, the representations of Mr Caroma and Mr Coote establish that, as Mr Caroma's supervisor, he directed Mr Caroma to 'clean the rollers and the dirt section at the base of the tumbler of the machine'. While Mr Coote could give no reason why Mr Caroma would be inside the tumbler, he acknowledged there were no instructions to staff not to do so and that 'it was only done once or twice a year, it was not normal procedure'. 44 Further, as Mr Caroma represented, it was 'Mr Coops' (that being Mr Coote) who 'told me to get in and clean it out. I have done it lots of times', 45 Clearly, his Honour accepted that evidence without qualification. He was entitled to do that. Significantly, he did so against the background of the absolute nature of the duty cast by s15(1) on employees and the need only to be satisfied with respect to the one remaining element of the offence, that being the causal nexus between the particularised breach and the risk to safety. 46 His Honour did hear direct evidence from the respondent/cross appellant. Mr Kanawaty confirmed Mr Cootes role to supervise the workers, including Mr Caroma, who were involved in the cleaning and packing of vegetables. Mr Kanawaty also stated that he left the training of the workers to Mr Coote and other supervisors. 47 As reference to the offence details set out above reveals, the particularised breach alleged failures going to the provision of plant and systems of work, particularly as to the operation of the vegetable washer as well as instruction, training and supervision in relation to the safe operation of the vegetable washer. There was also a particularised failure going to a failure to provide adequate information about the safe use of the vegetable washer. 48 Beyond the above considerations, it is apparent his Honour had sufficient evidence to satisfy himself in relation to the other breach failures particularised. It is convenient, we believe, to consider them separately as follows: (i) The defendant failed to provide or maintain plant and systems of work which were safe and without risks to health.

49 On the evidence before his Honour, there was no doubt that the system of work in place at the time of the accident was not sufficiently or properly assessed and maintained to ensure an employee was not able to climb into the tumbler of the vegetable washing machine. As his Honour's description makes clear and the photographs tendered attest, the machine was large and accessible to employees. Access to the cylindrical tumbler was possible. Further, as both Mr Coote and Mr Caroma confirmed, it was necessary to clean the machine. In his statement, Mr Iannelli, on behalf of Dromore, said that the tumbler was self-cleaning as 'water is continually pumped through it'. 50 Even accepting what Mr Iannelli said to be correct, the evidence before his Honour was of a piece of machinery that, in its operation, carried with it risks to safety. Mr Iannelli described the tumbler component of the machine as follows: Its a round barrel approximately 10 to 12 feet long and about 3 feet in diameter and is constructed of steel tubes spaced about 3/8 inch apart. 51 As the supervisor for Kanwa on the day, Mr Coote acknowledged that: (i) he instructed Mr Caroma to clean the rollers; and (ii) there were no instructions to staff not to climb inside the roller and 'it was only done once or twice a year, it was not normal procedure'. 52 Further, as is apparent by what occurred, the system of work in place at the time included no steps or process to ensure the machine was not able to be turned on while an employee was in the tumbler of the machine and there was no system in place to ensure there was no employee inside the tumbler before it was turned on. Clearly, given the nature of the machine and the directions to 'clean the rollers' given to Mr Caroma by Mr Coote, there should have been. Absent such a system, the risk to safety in the operation of the machine, including the cleaning of the tumbler, was apparent. 53 On any view, such a system of work was manifestly inadequate as far as ensuring the operation of the machine was safe and without risk to health. 54 Given all of the above evidence before his Honour and having regard to the absolute nature of the obligation cast on employees under s15(1) of the Act, his Honour was correct in being satisfied that the causal nexus between failure (i) as particularised and the risk to safety was established. (ii) The defendant failed to provide such information, instruction, training and supervision as was necessary to ensure the safety of its employees, in particular, Mr Caroma.

55 In his judgment, his Honour said: Mr Iannelli thought that Kanwa had carried out safety induction training for its persons at the premises, highlighting the hazards of the machine and/or the automated plant. Mr Caroma stated he received no training. Mr Coote states that no instructions were given to staff not to clean inside the tumbler. At the same time he stated it was not normal practice to climb inside the tumbler of the machine to clean it out. Mr Kanawaty said he left the training of the workers to Mr Coote and other supervisors.

It is the absolute obligation under the Act for the employer to eliminate all potential hazards at work. Although an unusual act for an employee to gain access to such a confined dangerous space there were simple steps available to the employers at the site Dromore and Kanwa to eliminate such a risk particularly, through training and supervision of its workforce, most of whom were itinerant workers. (sic) 56 Those findings of his Honour as to training and supervision arise from the representations made by Mr Caroma and Mr Coote to Inspector Constable. Further, the notice given under s67 of the Evidence Act detailed the following oral representations made by Mr Coote to Inspector Constable: (i) Prior to the accident on 4 June 2001, the system used to ensure that all staff were clear of the washing plant before it started was that Coote would ask whether everybody was clear before starting the washing plant. (ii) Normally the sorters, being persons who worked on the washing plant, would be in position before starting the washing plant. On 4 June 2001, due to the problems caused by the drive chains and the cold weather, Coote started the washing plant before the sorters arrived on the bus. (iii) The system after the accident is that Coote ensures that everyone acknowledges that they are clear before starting the washing plant. He then starts and stops the washing plant and calls again to ensure everything is alright. He then restarts the washing plant. (iv) Coote stated that the workers are given on the job training regarding the washing plant and that the same person is in the same place on the plant. He stated that they took great pride in their quality and workmanship. 57 The inadequacy of training, instruction and supervision in relation to the vegetable washing machine was exemplified in the evidence of the respondent before his Honour as follows: Q. What I want to suggest to you is that Mr Coote was responsible for instructing Mr Caroma as to all the work he was required to do during the time that he was working at Dromore? A. Yes. Q. Are you able to assist me in telling me what instructions or what systems you put in place to ensure that people like Mr Caroma were not able to climb into the tumbler of the vegetable washing machine? A. Well all the workers, they're being controlled by the foreman which is Mr Coote and a lot of signs was over there for not to go in machines and stuff like that. Q. Is that all that was done? A. There was a lot of safety there which is not my machine. I'm just a contractor. You know the machine were there 12 years ago. Q. But my question was, can you tell ... A. We told them what to do and we show them how to do the job and we told them not to go where places not supposed to go. We explain to them everything before they call and start the job. Q. Was that all that was done? A. Yes. Q. You weren't present during any training that Mr Caroma may have been given in respect of the ... A. When Mr Caroma got the job, I interviewed him and I gave him a job and I show him everything he had to do then I gave him to Mr Coote for every job, then he, Mr Coote, looked after him. Q. You left all of that to Mr Coote? A. That's right, yeah. Q. And maybe the other foremen or supervisors, I think you said there were three or four others. A. Yes, yep. Q. So you can't tell me what training he was given? A. No training. Q. He wasn't given any training? A. What training? He was shown what to do, he cut broccoli, we show him how to do - cut the broccoli, that's the training we give him. It's just a matter of common sense.

58 Given the representations made by Mr Caroma and Mr Coote as well as the direct evidence of Mr Kanawaty, his Honour was entitled to conclude that the instruction, training and supervision of Mr Caroma was inadequate in relation to the safe operation of the vegetable washing machine. That Mr Caroma was able to climb into the tumbler of the machine and that it was turned on while he was in it is unequivocal evidence of the absence of adequate training and instruction. If training and instruction had been adequate, Mr Caroma would have been instructed in clear terms not to climb into the tumbler for cleaning purposes. It is simply insufficient as far as discharging responsibility to provide a workplace free of risks to safety for Mr Coote to say that it was not 'normal practice' to climb inside the tumbler of the machine to clean it out. There is no evidence to suggest that Mr Caroma was in the tumbler for any other reason except to carry out Mr Coote's direction to clean the rollers and the dirt section at the base of the tumbler. That he chose to do it in the way that he did, unusual as it may be, (as he had done before) is a reflection of the inadequacy of the instruction and training given to him. As was said in Genner Constructions Pty Limited v WorkCover Authority of New South Wales (2001) 110 IR 71 at 57: The extent and standard of training provided by employers to their employees to ensure satisfaction with the requirements of the Act will depend upon the nature of, and circumstances under which, work is performed. It will not, therefore, necessarily require the provision of classroom-based instruction or the provision of substantial work manuals. However, in all cases, adequate training will necessarily involve the provision of such information and instruction as will fully equip employees to safely perform work which they are expected to undertake, including the provision of training as to all contingencies arising out of or relating to the performance of such work. In short, the employer must educate the employee to deal with the full range circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training afforded to them (and re-training employees, where necessary, to ensure the continued sufficiency of such education).

59 Following the instruction to Mr Caroma to clean the rollers and the base of the tumbler, it was, in the circumstances, the responsibility of Mr Coote to properly supervise Mr Caroma to ensure the job was done safely and without risk. Clearly that was not done, otherwise Mr Caroma would not have climbed into the tumbler or, if he had, Mr Coote would have ensured there was a system in place to check on the whereabouts of Mr Caroma to satisfy himself Mr Caroma had exited from the tumbler before he turned it on. That was clearly not done and Mr Caroma was exposed to the risk to safety resulting in the injuries he sustained. 60 It was raised by the cross-appellant that, in considering whether this particular failure had been established beyond reasonable doubt, it was open to the Chief Industrial Magistrate to consider as an alternative hypothesis that Mr Coote deliberately turned the vegetable washer on knowing Mr Caroma was inside it. Such an act, it was said, would 'not manifest a breach of the Act, but criminal liability attaching to the person who did it'. 61 This was an issue raised before his Honour at first instance which he rejected, rightly in our view. As his Honour said in the context in which he considered that issue: Mr Coote added normally the sorters, being persons who worked on the washing plant, would be in their positions before starting the plant. However on this day due to the problems caused by the drive chains and the cold weather Mr Coote started the washing plant before the sorters had arrived. The system put in place after the accident is that Mr Coote ensures that everyone acknowledges that they are clear before he starts the washing plant. He then starts and stops the washing plant and calls again to ensure everything is all right. He then restarts the washing plant. This simple procedure now in use would have prevented the incident on the day. Mr Caroma stated it took two minutes to clean the tumbler. Given the difficulties on this day it would not be a perverse act but rather a situation of Mr Coote assuming on the system in place at the time that Mr Caroma was not inside the tumbler. (emphasis added) 62 We are satisfied such a conclusion was, on the evidence, quite properly open to his Honour. Moreover, it was, in our view, absent any evidence to the contrary, an inescapable conclusion. 63 Given all of the above, we are satisfied there is no appellable error in his Honour's finding that particular (b) had been established beyond reasonable doubt.

(iii) The defendant failed to take such steps as are necessary to make available in connection with the use of any plant at the place of work adequate information about the use for which the plant is designed and about any conditions necessary to ensure that when put to that use the plant will be safe and without risks to health. 64 The same considerations apply as detailed in relation to particular (b) as to those matters upon which his Honour could be satisfied in finding that particular (c) had been established beyond reasonable doubt. The appellant's appeal

65 The appellant's contention as to the manifest inadequacy of the penalty imposed on the respondent commences by a comparison of the fine imposed on Dromore ($22,500) when compared with the fine imposed on Mr Kanawaty ($3000). 66 The basis of the alleged 'manifest inadequacy' of the penalty imposed was due, it was submitted, to 'his Honour giving too much weight to subjective factors'. Further, it was said, the disparity between the fines imposed on Dromore when compared with the respondent 'do not accurately reflect any claimed differences in the level of culpability of the respective defendants'. 67 We have to say, reference to his Honour's judgment sheds no light on what the appellant relies upon when it is asserted his Honour 'gave too much weight to subjective factors'. Equally, there is no indication in his Honour's judgment as to what assessment, if any, was made as to the relative culpability of the two defendants before him. It is instructive, we believe, to set out his Honour's remarks on sentencing including his findings in relation to Kanwa and Mr Kanawaty as a director of Kanwa. His Honour said:

I am satisfied to the required standard that the particulars as alleged had been made out against both Dromore and Kanwa. Consequently, Mr Kanawaty is deemed pursuant to s50 to have contravened s15(1) of the Act. Mr Kanawaty was personally involved in the daily operation of Kanwa at Dromore Station. He engaged itinerant workers and was under a duty to ensure they were fully trained and supervised. This he failed to do. As demonstrated by the simple precaution taken after the incident there were reasonably practical precautions available to prevent this incident. Accordingly the defence provided by s53 of the Act is not made out.

It was agreed if I found the offences proven I should proceed to sentence. Both defendants have no prior record in this jurisdiction. Mr Kanawaty is a man in his early fifties. Steps have been taken to prevent a recurrence of the breach. In such circumstances each defendant will receive a ten percent discount for subjective features. The nature and gravity of the offences fall within the medium range of matters coming before this Court. This case emphasises the importance of proper training, instruction and supervision around machinery with dangerous parts.

The maximum penalty for a breach of s15(1) and/or 16(1) of 1983 by a corporation is $550,000. The maximum penalty for an individual is $55,000. This Court has a jurisdictional limit of $55,000. In all the circumstances applying the principles of sentencing applicable in this jurisdiction Dromore is convicted and fined $22,500. Mr Kanawaty is convicted and fined $3,000. In both cases the defendants are to pay the prosecutor's costs and disbursements as agreed or assessed. The monies are to be paid to the Downing Centre Local Court within 28 days. There was a moiety of the fines to the prosecutor.

68 As his Honour's judgment reads, the reference to 'subjective features' and his assessment of a discount was applied to both defendants equally. That is a matter clearly within his Honour's sentencing discretion and there is nothing to which our attention has been drawn that suggests such an assessment, applied equally to both defendants, was an error on his Honour's part. 69 However, counsel for the appellant also challenges the judgment at first instance based upon an inadequate assessment of the objective seriousness of the offence committed by the respondent. Counsel for the appellant pointed to the active role of Mr Kanawaty, as a director of Kanwa, in the day to day activities of the company. He was, it was contended, the alter ego of Kanwa. He visited the worksite on a daily basis and, by his own account, acknowledged Mr Caroma had received no structured training or instruction and that, generally speaking, it was 'just a matter of common sense'. 70 Based on that evidence, it was said, Mr Kanawaty's culpability was much greater than his Honour had assessed given the penalty imposed and his Honour's assessment that the offences fell 'within the medium range of objective seriousness'. 71 Notwithstanding those matters to which our attention was drawn, there is no analysis undertaken by his Honour of the respondent's role in the overall management of the workplace. 72 The appellant properly conceded that it could not sustain the appeal merely upon the level of the penalty fixed for the respondent when compared with the penalty for Dromore unless it could be demonstrated that the factors referred to in the previous paragraph warranted a different approach to penalty. It is difficult to see how the appellant can challenge his Honour's finding that the nature and gravity of the offences fall within the medium range of matters coming before this Court for one defendant only. If that was an error on his Honour's part, it must follow that such an error would impact on the sentencing outcome for Dromore as much as for the respondent. In the absence of any appeal in relation to Dromore, the correct approach must be that the penalty in relation to Dromore should be treated as being sound, (even if we may have formed a different view ourselves). 73 His Honour was mindful of the significant disparity in the maximum penalty provisions between the two defendants. In the case of Dromore it was $550,000 with a jurisdictional limit of $55,000. In relation to Dromore, the maximum penalty remained at $550,000 notwithstanding his Honour's jurisdictional limit. As was said by the Court of Criminal Appeal in R v Doan (2000) 50 NSWLR 115 at 123: The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. 74 The need for such an approach in relation to Dromore was not applicable to Mr Kanawaty as a director of Kanwa. 75 It should be noted that the financial position of the respondent does not explain the level of penalty set. There is nothing to be gleaned from his Honour's judgment as to the extent, if any, of material placed before the Court as to the respective financial position of the defendants. Certainly, s6 of the Fines Act 1996 requires the Court to consider the financial means of a defendant on the basis of information reasonably and practicably available. 76 There is nothing in his Honour's judgment to suggest the ability to pay was a factor to be specifically considered by his Honour. As was said by the Full Bench in WorkCover Authority of New South Wales v Jian Chen and Obing Pty Limited t/as Old But New [2004] NSWIRComm 247: [51] ... where a defendant desires to plead incapacity to pay as a determinative issue in the imposition of penalty, it behoves the defendant to discharge the onus that such a submission invokes by placing before the Court all of the information it relies upon in support of that submission in order for the Court to give that information proper consideration in the exercise of its sentencing discretion.

77 In our view, his Honour was required to consider the respective culpabilities of the respondent and Dromore in assessing penalties. He failed to do so, particularly in relation to the contribution of the respondent. This raises the difficult question of what should be done as to this issue on appeal. Kanwa, and thereby Mr Kanawaty, may well have a more direct culpability given the role of it's employees in the day to day operations involving the vegetable washing machine. There seems to have been an abject failure in Kanwa to provide safety measures for its employees. On the other hand, it must be said, the workplace was principally controlled by Dromore with Kanwa acting as a labour hire company in the provision of labour to undertake certain tasks. Dromore did have it's own employees on site and, on the day of the accident, Dromore employees worked in the area where the accident occurred. According to Mr Iannelli, the Manager of Dromore, his job was to 'manage the place to the best of my ability'. It would also appear that Mr Coote had dual employment responsibilities as between Dromore and Kanwa. The oral representations made by Mr Coote to Inspector Constable disclosed as follows: Q. Who employs you? A. I am employed by Dromore Fresh Produce Pty Ltd and Kanwa Nominees. Q. What is the arrangement with your employment? A. Fifty per cent of my wage is paid by each company. Q. What is your position with Dromore Fresh Produce? A. Foreman, I supervise the irrigation and harvesting of the crop and the pickers. Q. What is your position with Kanwa Nominees? A. Foreman, I supervise the staff. Dromore own the property, machinery and building, Kanwa Nominees employ the workers.

Certainly Mr Kanawaty confirmed that Kanwa engaged Mr Coote in a supervisory role. 78 Additional to all of the above, it has to be remembered that this is a Crown appeal. It is well established in approaching the re-determination of sentence at an appellate level an attitude of restraint must be exercised and the relevance of double jeopardy in the defendant being sentenced on a second occasion must be recognised and taken into account. That principle was expressed by Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 340 as follows: For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time honoured concepts' of the administration of criminal justice in common law legal systems. For this reason it has sometimes been said that, as a 'matter of principle', such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced. The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences. 79 The above considerations as enunciated by Kirby J were considered by the Full Bench of the Court in WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Limited (2003) 127 IR 60 at [55] as follows: It is well established that an appellate court in re-sentencing, or deciding whether to re-sentence an offender, should have regard to the principle of double jeopardy. The application of the principle of double jeopardy provides for an imposition of a sentence that is somewhat less than the sentence the appellate court considers should have been imposed at first instance ( R v Allpass at 562), or at the lower range of available sentences: Dinsdale v The Queen at 341; Profab Industries Pty Ltd . 80 Reference by Kirby J in Dinsdale above to "the strong resistance that exists against appellate 'tinkering' with sentences" was recently reaffirmed by the High Court in Markarian v The Queen [2005] HCA 25 (18 May 2005) at [27] - [28] as follows: ... As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. The proceedings in the Court of Criminal Appeal being a prosecution appeal, brought pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), it was, of course, necessary for the prosecution to show error in the sentence passed below - either specific error or manifest inadequacy. As the whole Court pointed out in Lowndes v The Queen , a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. 81 We accept that his Honour erred at first instance in the penalty imposed with respect to Mr Kanawaty. Taking into account all that we have considered, including the principles relating to double jeopardy, we are not persuaded that we should intervene to vary the penalty imposed on appeal. While the appellant may be able to demonstrate an error in one respect, the Court has a residual discretion on appeal not to alter the sentence even if error is found. For the reasons we have given, we propose to exercise that residual discretion and not interfere with the penalty imposed with respect to Mr Kanawaty. 82 Accordingly, we order as follows: (1) As to the appeal: (i) Leave to appeal granted; (ii) Appeal upheld; (iii) The penalty given by the Chief Industrial Magistrate in Matter No. 20160458 is not varied; (iv) The respondent is fined the amount of $3,000 with a moiety thereof to the Prosecutor. (2) As to the cross-appeal: (i) Leave to appeal refused; (ii) Appeal dismissed.

(3) Each party to pay their own costs of the appeal and cross-appeal.

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