WorkCover Authority of New South Wales (Inspector Belley) v Hughston & Sons Pty Limited - [2002] NSWIRComm 340 - NSWIRComm 1992 case summary — Zoe

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WorkCover Authority of New South Wales (Inspector Belley) v Hughston & Sons Pty Limited

[2002] NSWIRComm 340

Industrial Relations Commission (NSW)|1992-06-30|Before: Walton J, Fisher CJ, Cullen JJ, Mr P

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1992-06-30

Before

Walton J, Fisher CJ, Cullen JJ, Mr P

Catchwords

10/21/2002 DATE OF JUDGMENT: 12/19/2002

Source

Original judgment source is linked above.

Catchwords

10/21/2002 DATE OF JUDGMENT: 12/19/2002

Judgment (177 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of New South Wales (Inspector Belley) v Hughston & Sons Pty Limited [2002] NSWIRComm 340 PROSECUTOR: WorkCover Authority of New South Wales (Inspector Belley) PARTIES : DEFENDANT: Hughston & Sons Pty Limited FILE NUMBER: IRC3954, 3955, 3956 & 3957 of 2000 CORAM: Walton J Vice-President CATCHWORDS : Occupational health and safety - Plea of guilty - Small, remote, rural enterprise - No accident or injury - Charges for failure to store safely and failure to guard machinery - Breach proven if failure of employer causally connected with risk - Accident not relevant issue - Whether risk of serious consequences - Mitigating factors - Proactive approach required - General deterrence - Need for proper storage dangerous substances - Rural communities not immune - Specific deterrence - Subjective factors - Whether pleas of guilty at earliest opporunity - Financial means of defendant - Principle of totality - Whether need common elements - Overall criminality - Verdict entered - Penalty - Costs agreed LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s10 Occupational Health and Safety Act 1983 s15 s16 Alcatel Australia Ltd v WorkCover Authority of NSW (Inspector Clyant) (1996) 70 IR 99 Cameron v The Queen (2002) 76 ALJR 382 Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Drake Personnel Limited t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Inspector Brett Martin v True Perspective Pty Limited [2002] NSWIRComm 197 Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992) Inspector John Patton v Brambles Australia Limited t/as Gardner Perrott [2002] NSWIRComm 178 Inspector Mayo-Ramsay v Rail Infrastructure Corporation [2002] NSWIRComm 217 Inspector William Hopkins v Michael Wherritt t/as M J Wherritt Concrete Pumping Services [2002] NSWIRComm 16 Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 Postiglione v The Queen (1997) 189 CLR 295 CASES CITED : R v Cousins and Anor [2002] NSWCCA 340 R v Sharma (2002) 54 NSWLR 300 R v Thomson, R v Houlton (2000) 49 NSWLR 383 Ridge Consolidated Pty Limited v Mauger [2002] NSWIRComm 108 Tyler v Sydney Electricity (1993) 47 IR 1 Warman International Limited v WorkCover Authority of NSW (Inspector Ankucic) (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Limited t/as Transfield Maintenance (No. 2) (2001) 110 IR 160 WorkCover Authority of NSW (Inspector Ankucic) v McDonalds Australia Limited and Anor (1999) 95 IR 383 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited (2001) 109 IR 316 WorkCover Authority of NSW (Inspector Farrell) v Schrader [2002] 112 IR 284 WorkCover Authority of NSW (Inspector Lyons) v Warman International Limited (2001) 105 IR 236 WorkCover Authority of NSW (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284 WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Limited and Another (No 2) (2000) 99 IR 163 WorkCover Authority of NSW (Inspector Robins) v CT Plumbing Pty Limited [1991] NSWIRC 28 (16 December 1991) WorkCover Authority of NSW (Inspector Thomas Clark) v Ledonne Constructions Pty Limited [2001] NSWIRComm 272 HEARING DATES: 03/07/2002; 10/21/2002 DATE OF JUDGMENT: 12/19/2002

[166]

There were in our view clear features connecting a number of these events to each other. The first prosecution concerned a sheet metal rolling machine, which would appear to stand alone. The second and third prosecutions both related to the use and fencing of a fast loop moulding machine. The fourth prosecution related to a table mounted circular saw of some age which was sought to be replaced after the relevant accident by a new saw which itself, although freely available on the market, had two identified safety weaknesses which led to the fifth and sixth prosecutions. This inter-relationship seems to us to satisfy with considerable ease the proposition involved in the principle of totality that there be some similarity in the offences. 35. Subject to one consideration, that judgment reflects an appropriate application of the principle of totality, reflecting the need to avoid excessive punishment and to avoid "double punishment" for common elements of multiple offences. The last sentence of the passage cited, however, which seems to limit the circumstances in which the principle of totality is to be applied, appears to state the principle too narrowly and may well require reconsideration in subsequent Full Bench proceedings. See, for example, the judgment of the Court of Criminal Appeal in Close (1993) 65 A Crim R 55 at 59-60 where Hunt CJ at CL stated: Whenever sentences are accumulated, careful consideration must always be given to the principle of totality - as to whether the simple addition of two or more sentences which may individually be appropriate has nevertheless produced a total figure which is excessive having regard to the totality of the criminality involved: Glenister [1980] 2 NSWLR 597 at 612; Holder and Johnston [1983] 3 NSWLR 245 at 260-261; (1983) 13 A Crim R 375 at 389-390. That principle is not restricted to sentences imposed for offences committed as part of a connected and roughly contemporaneous series of offences: L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 at 168; Bakhos (1989) 39 A Crim R 174 at 176, 177-178; Harrison (1990) 48 A Crim R 197 at 198-199. It was clearly relevant in this case. In such circumstances, all of the sentences which are accumulated should usually be adjusted downwards in order to produce an acceptable total sentence. A similar approach was taken by Sheller JA at 56-57 and by Sully J at 70. However, this appeal does not require for its determination the resolution of that issue.

[170]

86 The decision in Crown (Department of Education and Training) v Keenan has been applied in a number of decisions of this Court where common elements have been found between offences: WorkCover Authority of NSW v Transfield at [42]; WorkCover Authority of NSW (Inspector Thomas Clark) v Ledonne Constructions Pty Limited [2001] NSWIRComm 272 at [32]; Inspector Mayo-Ramsay v Rail Infrastructure Corporation [2002] NSWIRComm 217 at [69] and Inspector Brett Martin v True Perspective Pty Limited [2002] NSWIRComm 197. However, in Inspector John Patton v Brambles Australia Limited t/as Gardner Perrott [2002] NSWIRComm 178, Kavanagh J expressed a view that Keenan was not authority for the proposition that it was a necessary precondition for the application of the principle of totality for there to be similarity in the offences or common elements in the offences. In that matter her Honour found that the charges did not contain common elements "in the nature of the breaches as pleaded" but nonetheless had regard to the "overall criminality of the defendant in setting final penalty". 87 88 Having regard to submissions of the defendant in this matter (and the prosecutor by its failure to adopt any contrary position), it may not be necessary to explicitly deal with the question as to whether the principle of totality may be confined to circumstances where there are common elements of multiple offences. It is certainly beyond doubt that where multiple offences contain common elements, the principle of totality must, for that reason alone, be applied to ensure that the defendant is not punished more than once for those offences and to avoid double jeopardy. The 'storage' offences in this matter, whilst arising respectively under ss15 and 16 of the Act, nonetheless contain common elements which properly require the operation of the principle of totality in the assessment of the penalty for those offences. As to the broader question raised in Brambles, it is sufficient, for present purposes, to note that the Full Bench in Crown (Department of Education and Training) v Keenan left open the question, in my view, as to whether the principle of totality might be applied in circumstances where a defendant was convicted of multiple offences which did not have 'common elements'. In any event, I have also had regard to the circumstances of the offences and the offender in assessing the overall criminality of the defendant in this matter.

WorkCover Authority of New South Wales (Inspector Belley) v Hughston & Sons Pty Limited

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Judgment (177 paragraphs)

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Cases Cited (35)

Cited By (3)