WorkCover Authority of New South Wales (Inspector Robert Mayell) v D J Gleeson Pty Ltd

WorkCover Authority of New South Wales (Inspector Robert Mayell) v D J Gleeson Pty Ltd - [2006] NSWIRComm 363 - NSWIRComm 2006 case summary — Zoe

[12]

1 Before the Court is an appeal under s 196 of the Industrial Relations Act 1996 against the inadequacy of a sentence imposed by Kavanagh J on 7 July 2006 in relation to a prosecution of DJ Gleeson Pty Ltd under s 8(2) of the Occupational Health and Safety Act 2000: Inspector Robert Mayell v DJ Gleeson Pty Ltd [2006] NSWIRComm 217. 2 Following a plea of guilty to the charge, her Honour imposed a fine of $30,000. The maximum penalty available for the offence was $550,000. 3 The circumstances giving rise to the charge are described in an Agreed Statement of Facts tendered by the prosecutor during the sentence proceedings. According to that document, on 18 February 2003 (the day of the offence), the respondent was under contract to extend and refurbish a single storey cottage at Mosman. Geoffrey Bates, a carpenter, was sub-contracted by the respondent to undertake work at the premises. On or about 17 February 2003, he was instructed to take down fascia, and eaves and guttering, from the roof of the cottage, using a rod hook and working at ground level. This work continued the following day. After completing the task, Mr Bates set up a ladder and commenced to push tiles back from the roof edge. He was found about 2pm by John Hawkes, a plumber working at the premises, lying on the ground, having apparently fallen from the ladder. Mr Bates was taken to Royal North Shore Hospital by ambulance for treatment, but died on 5 March 2003. 4 The premises were attended by Inspector Mayell on 6 March 2003. He ascertained that the ladder which was owned by the respondent was defective in that safety clips attached to the locking mechanism were not operational and the spring tension had failed. Other workers at the premises recalled that at the time when Mr Bates was working on the ladder, it was tied off at the rafter and that Mr Bates was working at a height of about two metres above ground. A director of the respondent, Dennis James Gleeson, informed the Inspector that scaffolding was to be erected at the premises, but had not arrived at the time of the accident. Judgment at first instance

[21]

14 We propose to deal first with the second ground. 15 No evidence was led during the sentence proceedings in relation to the timing of the plea or any other relevant circumstances. Nor was the issue addressed in oral submissions, according to the transcript of those proceedings, which forms part of the Appeal Book. Nevertheless, both parties addressed the issue at first instance in their written submissions. 16 The prosecutor's contention was that the respondent was not entitled to the benefit of a discount for having pleaded guilty because it had originally elected to defend the charge and sought to vacate the hearing date two days before in order to obtain legal advice. By the time the respondent changed its plea, the prosecution was well-advanced in preparations for a defended hearing. 17 The respondent contended that it had entered an early plea of guilty which entitled it to an appropriate discount. The basis of this contention was that it had initially received advice from senior counsel that it had, "... a proper defence". It was upon receipt of this advice that the plea of not guilty was entered. Later, after counsel became ill and new counsel was retained, different advice was received, as a result of which a plea of guilty was entered forthwith. According to the respondent, these considerations are relevant to the timing of the plea and enable the sentencing court to discount the penalty by reason of an early plea. It was also relevant, according to the respondent, that it had made a number of admissions at the earliest opportunity in two recorded interviews conducted on 23 April 2003 and 17 July 2003. 18 The extracts from those interviews, upon which the respondent placed reliance, appear in the written submissions. It is a little difficult to glean from the extracts exactly what admissions the respondent is making apart from the admission that the scaffolding was, "a week and a half late". In order to illustrate this, the extracts, as they appear in the written submissions, are set out in full below:

[27]

24 It remains to consider the first ground. In our view the penalty of $30,000 against a maximum penalty of $550,000 was so below what was appropriate in the circumstances and so manifestly inadequate that the inference must be drawn that there has been a failure to properly exercise the sentencing discretion at first instance: see Dinsdale v The Queen (2000) 202 CLR 321 at 329 (per Gaudron and Gummow JJ); R v Rivadavia (2004) 61 NSWLR 63 at [63]; WorkCover Authority (NSW) (Inspector Jones) v Challita (2006) 153 IR 409 at [27]. While it is not strictly necessary to amplify this conclusion, given the manifest inadequacy of the penalty in the circumstances of this matter (Dinsdale at 325 per Gleeson CJ and Hayne J), we do observe that our conclusion is made particularly in the light of the objective seriousness of the offence as described below in the course of resentencing the respondent. 25 The respondent argued that the principle to be applied in determining this appeal was that Crown appeals should be treated as exceptional, particularly where the contention advanced by the Crown on appeal was that the sentence at first instance was manifestly inadequate. The need for caution in Crown appeals was discussed in Challita at [27]. We agree with the observation of the Full Bench in that matter. Whether such cases should be treated as exceptional or rare may be further considered by the Court after having the benefit of full argument. It is sufficient to note for present purposes that if such a principle were applied this is a proper case for appellate intervention. Furthermore, we have identified a specific error in the sentencing reasons in relation to her Honour's approach to the plea of guilty. The existence of this error and the manifest inadequacy of the penalty justify in our view the exercise of our discretion to intervene and resentence the respondent: WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60. 26 We accept her Honour's finding that the offence was "most serious". We also recognise that the risk to safety was foreseeable, the death of Mr Bates a reflection of the seriousness of the breach, and, that general and specific deterrence are both relevant to, and significant factors in, the assessment of penalty. 27 The circumstances pertaining to general deterrence, in our view, warrant particular mention. In WorkCover Authority of NSW v Hitchcock (2005) 139 IR 439, Walton J, Vice President in referring to general deterrence stated at [28]:

[33]

(Cited with approval in Morrison v Eureka Opals Pty Limited (No 3) (2006) 153 IR 191 at [8]). 28 The importance of general deterrence in the present circumstances is demonstrated by a number of factors. Mr Bates was working at a height of approximately two metres without scaffolding, harnessing equipment or alternative platform support. The only safety measure which had been implemented and which was clearly inadequate was that the ladder had been tied down. These matters highlight yet again the dangers of working at heights and the importance of implementing appropriate safety measures for the protection of workers. The issue has been recently discussed in a number of Full Bench decisions of this jurisdiction: see for example Inspector Green v Camilleri Properties Pty Limited (2006) 152 IR 156; Inspector Mason v Wild Geese Building and Maintenance Group Pty Ltd [2006] NSWIRComm 350, at [43]. 29 The risks could have been avoided by the taking of simple remedial measures well known in the industry in which the respondent was engaged. This is also a factor which is relevant to the objective seriousness of the offence (and one not considered by the sentencing judge). 30 We also take into account a number of subjective factors which her Honour did at first instance in the defendant's favour, including the contrition, cooperation with WorkCover, and the respondent's significantly good corporate citizenship. We also take into account the absence of prior convictions. We consider that an appropriate discount for the utilitarian value of the plea of guilty, as a separate consideration from the contrition otherwise available for the plea of guilty, should be 15 per cent. 31 A submission was made on behalf of the respondent on the appeal that it had ceased to trade after the director, Mr Gleeson, had suffered a heart attack. We understand the submission to be directed towards the question of whether specific deterrence should be applied in the event we decide to resentence the respondent. In support of the submission a report of Dr Stewart Mitchell (a cardiologist) dated 3 November 2006, and an affidavit of Dr Peter Edwards, sworn on 1 November 2006 were tendered. The appellant did not oppose the tender of the documents, subject only to their relevance being established. The documents both confirm that Mr Gleeson suffered a heart attack on 15 September 2006. Dr Mitchell's report advises that Mr Gleeson should not stop work and could continue to do "routine carpentry" but should avoid returning to his "pre-heart attack duties", particularly because of his medication. Both documents are silent as to whether the respondent has ceased to trade. 32 We make the preliminary observation that the respondent should have made a formal application that the documents be received as fresh evidence on the appeal prior to the actual hearing of the matter. In any event, we do not see the relevance of the documents in themselves to the issue of specific deterrence. The respondent's submission that it has ceased to trade is made without the benefit of any supporting evidence. Indeed Dr Mitchell's report is suggestive of a contrary position by virtue of the advice in the report that Mr Gleeson remains not only capable of continuing to work in the industry in which the respondent operates (although on a reduced workload), but, should so continue. Neither is the respondent's position assisted by Kavanagh J's finding at first instance that the respondent, "continues to be registered to operate in the construction industry. Mr Gleeson continues to work as a carpenter but now he is a sub-contractor using the company identity in the building industry" (at [27]). 33 The respondent also sought to tender the documents in support of a submission which invoked s 6 of the Fines Act. This submission was advanced on the basis that Kavanagh J had taken s 6 into account and discounted the penalty. It is not clear to us, however, that Kavanagh J did consider the respondent's financial capacity to pay a fine and discount the penalty accordingly, except perhaps by reference to the level of penalty actually imposed. Her Honour had before her three of the respondent's income tax returns spanning the financial years ending 30 June 2003 until 30 June 2005. This material, on any view was insufficient to enable a proper assessment of the respondent's capacity to pay a fine. Without some additional material, which we do not have, we are unable to proceed to resentence the respondent taking into account s 6 of the Fines Act. The documentation tendered by the respondent as fresh evidence on the appeal does little if anything in our view to advance the argument. Nor, as earlier observed, is there any evidence to support the respondent's oral submission that it has ceased to trade. 34 In the circumstances, we have decided to refuse leave to bring the further evidence sought to be adduced by the appellant. 35 The relevant principles in relation to the application of s 6 of the Fines Act have been collected in a number of decisions in this jurisdiction. We adopt those principles in this judgment: Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209; Department of Mineral Resources of NSW (Chief Inspector Terrey) v A M Hoipo & sons Pty Ltd (2000) 99 IR 137 at [48] - [51]; Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of NSW (Inspector Glass) (2001) 106 IR 435 at [56] - [57], [67], [81] - [83]; Inspector Green v Camilleri Properties Pty Limited at [21]. Applying these principles, we do not consider that there is any proper basis for the application of s 6 of the Fines Act in this case. 36 In addition to the factors outlined above we are mindful of the principle of double jeopardy which requires an appellate Court in resentencing in relation to Crown appeals to impose a penalty at the lower end of the scale. We are satisfied nevertheless that a substantial penalty is warranted given, in particular, the significance of general deterrence in relation to prosecutions such as the present involving persons working at heights without appropriate safeguards or fall-protection equipment, and who are, as a result, often placed in life threatening situations. We consider therefore an appropriate penalty reflecting all of the above considerations should be $70,000.

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