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

Fines Act 1996 LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 2000

Department of Mineral Resources of NSW (Chief Inspector Terrey) v A M Hoipo & Sons Pty Ltd (2000) 99 IR 137 Dinsdale v The Queen (2000) 202 CLR 321 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Inspector Mason v Wild Geese Building and Maintenance Group Pty Ltd [2006] NSWIRComm 350 Inspector Green v Camilleri Properties Pty Limited (2006) 152 IR 156 Inspector Robert Mayell v DJ Gleeson Pty Ltd [2006] NSWIRComm 217 CASES CITED: Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of NSW (Inspector Glass) (2001) 106 IR 435 Morrison v Eureka Opals Pty Limited (No 3) (2006) 153 IR 191 R v Rivadavia (2004) 61 NSWLR 63 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 WorkCover Authority of NSW v Hitchcock (2005) 139 IR 439 WorkCover Authority (NSW) (Inspector Jones) v Challita (2006) 153 IR 409

Appellant: Mr R Reitano of counsel Solicitors: Legal Group LEGAL REPRESENTATIVES: WorkCover Authority

Respondent: Mr S Grant of counsel Solicitors: Maccallum Lawyers

CORAM: WALTON J, Vice-President STAFF J BACKMAN J

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR ROBERT MAYELL) v D J GLEESON PTY LTD (ACN 001 166 294)

Appeal by WorkCover Authority of New South Wales from a judgment of Justice Kavanagh given on 7 July 2006 in Matter No IRC 809 of 2005

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

5 After setting out the charge, the Agreed Statement of Facts and relevant sentencing principles, her Honour directed her attention to an autopsy report which had been tendered during the sentencing proceedings and which concluded that Mr Bates died from head injuries. The report also proffered the following opinion:

The possible role (of) a cardiac arrest event initiating the fall was difficult to completely exclude. 6 Her Honour made the following comment on these aspects of the report:

This evidence does not go far enough to satisfy, even as a possibility, certainly not a probability, that Mr Bates had a heart attack leading to his fall. I therefore reject the proposition that the risk was aggravated by the fact of a heart attack. I am not satisfied Mr Bates had a heart attack but more importantly the identified detriment to safety was a risk of falling (for whatever reason) without any secondary restraint available for a man working two metres (approximately) above the ground. 7 Her Honour then referred to the "risk of injury" which her Honour characterised as the non-provision of any restraint or of adequate fall prevention. In relation to this risk, her Honour found, "... an element of foreseeability". This finding was based on a number of considerations which were taken into account in the judgment. These included: · the respondent knew of its obligations and had ordered scaffolding; · pending delivery of the scaffolding, the respondent had to provide an alternative safe system; · this was attempted by ensuring that the ladder was attached; · in addition to tying down the ladder, harnessing equipment or alternative platform support should have been provided. 8 After identifying these considerations, her Honour commented:

In submissions a proposition was suggested, namely, that there was no obligation on the defendant to supply such equipment if the height at which Mr Bates was working was under two metres. However, such a proposition does not address the obligation on the defendant to provide safe working. I am satisfied there was available a safe alternative system to perform this work. It follows such a system should have been implemented and then the appropriate training and instruction of the contractors carried out. On a worksite things cannot always go to plan. Here the required scaffolding was not delivered. Site safety required recognition of the failure to deliver scaffolding would (sic) affect the safe work method in place. A safety problem should have been recognised and an adjustment to the system had to be made to ensure safe working. This did not occur on this worksite. 9 Her Honour then acknowledged the sentencing principle formulated by Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 at 5:

The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability.

I am satisfied Mr Bates' death is a reflection of the gravity of the breach. This was a most serious offence. 10 General and specific deterrence were also addressed, and both found to be relevant to the assessment of penalty (at [26] - [27]). 11 A number of subjective features were also taken into account in the respondent's favour including contrition, co-operation, good corporate citizenship and the plea of guilty which her Honour found had been entered at an early stage and for which a discount of 25 per cent, described by her Honour as the "full discount", was awarded as reflecting the utilitarian value of the plea. 12 Her Honour also assessed the respondent's capacity to pay a fine under s 6 of the Fines Act 1996, by reference to the respondent's tax returns. Her Honour's finding in this regard appears in the following passage:

The company's tax returns have been placed before the court which reveal over three years a turnover somewhere between $500,000 to $200,000 to $300,000. Most years the corporation ran a taxable loss. This year the defendant suggests his income is above $260,000. Most years the company runs at a financial loss. The defendant has recently suffered some financial losses due to the aberrant behaviour of a client. He has had to downgrade his lifestyle including his home. I give consideration to his financial means which I accept are now under strain. However, the defendant is not a person of no means. Grounds of the appeal

13 The appellant relies on two grounds of appeal. The first ground is that the sentence imposed by her Honour was manifestly inadequate. The second ground is based on the contention that her Honour was in error in awarding a 25 per cent discount for an early plea of guilty. Consideration

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:

Q33. What work was Geoff Bates carrying out when the accident occurred? A: Preparing for scaffold that was a week and a half late. We demolished the guttering, fascia and eave from the ground. He went up the ladder to push the tiles back from the edge of the rafters. We presume he pushed one back to far, tried to pull it back again, it snagged and tried to reef it. We think he came off backwards with the tile, as there was a broken tile in the next-door neighbours' place. No one saw it: we presume that's what happened.

Q34: What instructions did D J Gleeson Pty Ltd provide to Mr Bates about work he was undertaking at the time of the accident? A: Prepare the side for scaffolding because it was due to arrive."

"Q2: In answer 33 of the interview, you state Mr Bates was "preparing for the scaffold". What do you mean by that? A: We demolished the fascia and gutter, and we would push the tiles back to save a bit of time. When the scaffold arrived, we were straight up and cutting off the rafters. We were really preparing for the new fascia and eave. 19 Reliance on the advice of counsel and early admissions of guilt followed by a plea of not guilty are matters more indicative, in our opinion, of considerations particular to the respondent and are more appropriately taken into account in the sentencing process in an assessment of whether leniency should be extended, for example, for any contrition or remorse shown. This does not mean that the respondent was not entitled to adopt the course it did when deciding to follow the original advice proffered, but only that in the event of a later plea of guilty any entitlement to leniency by reason of contrition may be correspondingly reduced. 20 The application of the utilitarian rationale for pleas of guilty involves different considerations. It focuses on the efficiency and expediency of the criminal justice system and places particular emphasis on the timing of a guilty plea as indicative of the saving of time, money and other resources which are otherwise incurred in running a defended hearing. These matters necessarily take into account whether, for example, an offender who enters a plea of guilty after the prosecution has commenced its trial preparations but before the commencement of the hearing. The earlier the plea of guilty, the greater the likelihood that the costs saved will be considerable, and accordingly, the greater the claim will be to a substantial discount. 21 These issues have been considered in detail by Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at [10], [114] - [135]. At [133] and [135] for example his Honour said:

[133] From the utilitarian perspective alone, an early plea offers distinctive and substantially greater benefits over a plea that occurs at the commencement, let alone during, a trial. By the time of the trial considerable expenditure has been incurred by the prosecution and the defence in preparing the case, witnesses and victims are in attendance, a substantial proportion of the cost of the legal aid system has already been incurred and a jury panel has been required for attendance. Furthermore, although backup trials, either criminal or civil, may be available to employ the court's time made available without notice, that may not always be the case. The frequency with which guilty pleas are made on the day of the trial is a matter which considerably disrupts the efficiency with which courts in New South Wales can plan the use of their resources. The listing of reserve trials can never be precisely accurate. This results on some occasions in adjournments, and consequently waste of resources by the parties, and on other occasions in waste of judicial and court time.

[135] In my opinion, the significant public interests served by encouraging early pleas are such as to justify this Court indicating to the participants in the criminal justice system the extent to which benefits will accrue for an early plea, particularly from the perspective of the utilitarian considerations. 22 Returning to the present circumstances the information before her Honour relevant to the assessment of the timing of the plea was such that the inference was not reasonably available to support the finding that the respondent was entitled to the "full discount". According to the applicant's written submissions on the appeal the hearing date was vacated to enable the respondent to obtain legal advice and the plea was entered about one week later, although it is not at all clear on the scant material before this Court precisely when the plea was entered. In addition, it is not clear from the sentencing remarks that her Honour directed her attention to the information available in the written submissions as to the timing of the plea. Instead it appears that her Honour proceeded, without more, on the incorrect assumption that the appellant had conceded the proposition that the plea was early. It was accepted by both parties to this appeal that no such concession had been made. 23 We therefore conclude that her Honour was in error in awarding a discount of 25 per cent for what her Honour described as an "early plea", and uphold the appeal accordingly.

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]:

[T]here is one other significant factor going to the question of the objective seriousness which will influence the assessment of penalty in this matter: general deterrence. The principles relating to general deterrence set out in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at [69] - [70], referred to recently with approval by the Full Bench in Maddaford v Coleman at [80], emphasise the more severe punishment which attends general deterrence, should it feature in sentencing:

The Court in WorkCover Authority v Schrader held at [69]-[70]:

The purpose of the Act is well known and often referred to in judgments of this Court. In my view, it is important, when considering notions of general deterrence, that the Court be cognisant of the fact that the Act is for the benefit of the public generally and particularly employees at work. The goal is the prevention, deterrence and punishment of breaches of health and safety requirements. The notion of general deterrence is well understood. However, in my view, and in accordance with what was stated by the Full Court in Capral Aluminium (at [72] - [74]), in cases such as this, it should be reiterated that "one of the main purposes of punishment, ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment" (emphasis added): R v Rushby [1977] 1 NSWLR 594 per Street CJ citing R. v Radich [1954] NZLR 86 (adopted by this Court in Capral Aluminium at [72]).

Further, I would note that it has been described as "the fundamental duty of this Court" to ensure that any penalty imposed is severe enough to "compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 adopted in Capral Aluminium (at [74]).

See also the Full Bench decisions in [WorkCover (NSW)] WorkCover Authority (NSW) v Burnshaw Constructions Pty Ltd (2002) 121 IR 119.

(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.

(2) The penalty at first instance is set aside and the respondent is fined $70,000 with a moiety thereof to be paid to the appellant;

(3) The respondent shall pay the appellant's costs of the appeal.

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