WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New

Dinsdale v The Queen (2000) 202 CLR 321 WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Limited (2003) 127 IR 60 R v Doan (2000) 50 NSWLR 115 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 29 CASES CITED : WorkCover Authority of New South Wales (Inspector Farrell) v David Karl Schrader (2002) 112 IR 284 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Crown in Right of the State of New South Wales (Department of Education and Training v Keenan) (2001) 105 IR 181 R v Thompson, R v Houlton (2000) NSWCA 309 Linehan v Australian Public Service Association (1982) 66 FLR 90

HEARING DATES: 08/25/2004 DATE OF JUDGMENT: 09/02/2004

APPELLANT: Mr P Strickland of counsel SOLICITOR: Mr P Thompson Moray & Agnew Solicitors LEGAL REPRESENTATIVES: RESPONDENT: Mr I Latham of counsel SOLICITOR: Ms J Sharah Sharah & Associates

JUDGMENT: - 42 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Walton J, Vice-President Marks J Staunton J DATE: 2 September 2004

IRC Matter No 6841/2003 WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen

Appeal by WorkCover Authority of New South Wales from a decision of the Chief Industrial Magistrate given on 31 October 2003 in CIM Matter No's 20281866/03; 20281882/03; 20281911/03; 20291973/03; 20281858/03; 20218193/03; 20281920/03; 20281954/03; 20281989/03; 20281874/03; 20281903/03; 20281938/03; 20281962/03; 20281997/03; 20282041/03; 20282068/03; 20282076/03; 20282084/03; 20282092/03; 20282050/03; 20282009/03; 20282025/03 and 20282033

IRC Matter No 6842/2003 WorkCover Authority of New South Wales (Inspector Mansell) v Obing Pty Limited trading as Old But New

Appeal by WorkCover Authority of New South Wales from a decision of the Chief Industrial Magistrate given on 31 October 2003 in CIM Matter No's 20260301/03; 20260248/03; 20260272/03; 20260213/03; 20260221/03; 20260205/03; 20260192/03; 20260299/03; 20260176/03; 20260256/03; 20260150/03; 20260230/03; 20260283/03; 20260184/03; 20260264/03; 20281760/03; 20281743/03; 20281703/03; 20281671/03; 20281663/03; 20281647/03; 20281751/03; 20281727/03 and 20281968/03

1 In these proceedings, the WorkCover Authority of New South Wales appeals pursuant to s197 of the Industrial Relations Act 1996 and s56(1)(a) of the Crimes (Local Courts Appeal and Review) Act 2001 from a decision of the Chief Industrial Magistrate given on 31 October 2003 in relation to all of the above matters.

2 The substance of the appeal alleged the manifest inadequacy of the penalty imposed by the Chief Industrial Magistrate having regard to the objective seriousness of the charges and the prior convictions of the defendants on similar charges. The appellants also submitted that his Honour had made provision for the respondents limited capacity to pay a fine despite the limited and inadequate evidence put before the Court on that issue.

3 Before the appeal was listed for hearing, the respondent filed short minutes of order proposing that the appeal be upheld, costs be awarded to the appellant and the matter be remitted for determination by a single judge. The appellant did not oppose the orders sought by the respondents.

4 On behalf of the Full Bench, the issues arising in the orders sought by the respondents was dealt with by Walton J Vice-President on 10 May last. On that day, his Honour, by consent, upheld the appeal, set aside the judgment at first instance and ordered that the respondents pay the appellants costs of the appeal as agreed or assessed. The redetermination of sentence was left to be determined by the Full Bench now constituted.

5 In setting the matter down for rehearing on sentence, his Honour also directed that the respondents and the appellant file and serve any affidavits that are relied upon by 11 August last. The appellants have filed no additional material, relying on the Appeal Books already filed. On behalf of the respondents, an affidavit with annexures sworn by Jian (John) Chen on 10 August last has been filed. We will return to that affidavit and its annexures in due course.

6 On 27 October 2003, the defendants appeared before the Chief Industrial Magistrate to answer to a number of Court Attendance Notices (CANs) issued on the authority of Inspector Paul Mansell as prosecutor on behalf of WorkCover Authority of New South Wales.

7 For ease of understanding at this point, there were twenty five CANs issued with respect to Obing Pty Limited alleging offences arising pursuant to s8(1) of the Occupational Health and Safety Act 2000 (the Act) covering two identified time periods. The first time period covered alleged offences on 14, 17 and 18 January 2002. They were referred to by the Chief Industrial Magistrate as 'the January breaches' and totalled fifteen in all.

8 The second time period covered alleged offences on 19 and 27 August 2002. They were referred to by the Chief Industrial Magistrate as 'the August breaches' and totalled nine in all.

9 As a director of Obing Pty Limited, Mr Chen was charged with respect to the same offences as the corporate defendant, his liability arising pursuant to the deeming provisions of s26(1) of the Occupational Health and Safety Act 2000 (the Act) that he, being a director and a person concerned in the management of Obing Pty Limited which contravened s8(1) of the Act, contravened the same provisions.

10 At the first appearance before the Chief Industrial Magistrate on 27 October 2003, the defendants entered a plea of guilty to all matters. As the transcript discloses, because of the amount of documentation incorporating the significant number of charges concerning both defendants, his Honour adjourned his decision on penalty until 31 October 2003.

11 On that day, his Honour imposed, as he described it, a 'global penalty' on the corporate defendant of $13,500 with respect to the fifteen breaches in the January period. Apportioning that global penalty equally between the fifteen breaches, his Honour determined a penalty of $900 with respect to each offence.

12 In relation to the August period, his Honour imposed a global penalty of $15,000 on the corporate defendant. As there were nine breaches over that period, his Honour determined a penalty of $1666.66 with respect to each offence.

13 In approaching the determination of penalty in relation to the personal defendant Mr Chen, his Honour determined the same global approach to the respective time periods of all of the breaches. In relation to the January period, his Honour determined a global figure of $1500 for the fifteen offences - $1500 representing one tenth of the global penalty determined for the corporate defendant. Given the fifteen breaches, his Honour determined a penalty of $90 with respect to each offence.

14 In adopting the same formulaic approach with respect to the August period, his Honour determined a penalty of $166.66 with respect to each of the nine breaches.

15 For reasons that will become clear, we can only endorse the respondents acquiescence in having the appeal upheld. On the basis of the material before us and having regard to his Honour's approach to the ultimate determination of penalty, we agree that the penalties imposed on both defendants were manifestly inadequate in all the circumstances.

16 We are mindful that this is a Crown appeal. It is well established, in approaching the redetermination of sentence at appellate level, an attitude of restraint must be exercised. The background to 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.

17 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 73 as follows: [47] Generally speaking, an appellate court must identify a clear and demonstrable error at first instance: see Dinsdale v The Queen (2000) 202 CLR 321 at 340 - 341 ( Kirby J) and 330 ( Gummow and Gaudron JJ); Wong v R (2001) 185 ALR 233 at 263, Batty v Graincorp at [4] and Inspector Ian Lancaster v Burnshaw Constructions Pty Ltd [2002] NSWIRComm 319 at [6] [48] There are some differences in emphasis as to the principle of restraint in Crown appeals. See for example the comments of Kirby J in Dinsdale v The Queen at 341 - 342 and in Wong v R at 263 where his Honour refers to the principle of restraint as being well established. This may be compared with the joint judgment of Gleeson CJ and Hayne J in Dinsdale v The Queen at 325[4] where their Honours indicate that the principles in House v The King (1936) 55 CLR 499 apply 'both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness'. We refer also to the summary of principles set out by the New South Wales Court of Criminal Appeal in R v Allpass and considered in Wright J's judgment in WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Limited (1999) 92 IR 392 at 393-394. ... ... [55] 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 .

18 Omitting the formal parts, the agreed statement of facts in relation to the January period encompassing the fifteen breaches disclosed the following: (i) At all material times the first defendant conducted its business of the manufacture of furniture from its premises at 59 Anzac Street, Greenacre in the state of New South Wales ('the premises'). (ii) At all material times the first defendant conducted its business under the registered business name of Old But New. The first defendant retails its product through retail stores trading under the name 'Old But New' throughout the Sydney metropolitan area. (iii) At all material times the defendant was an employer. (iv) At all material times the second defendant, Mr Jian (John) Chen , was a working director of the first defendant with day to day control of the company and was in a position to influence the conduct of the first defendant. (v) At all material times the first defendant employed Guo Shui Zheng ('the worker') as a carpenter. (vi) At all material times the first defendant employed approximately 8 to 12 employees. (vii) The first defendant's premises consisted of a factory which contained a number of woodworking machines which included, inter alia, power saws, panel saws, work benches, spray booth, an office area and a kitchen and amenities area. (viii) At the time of his inspection on 14 January 2002 the Informant made the following observations at the first defendant's premises: (a) There were approximately seven (7) to eight (8) persons, none of whom were operating machinery but were cleaning the factory; (b) There was waste timber and sawdust covering most of the floor space in the factory area; (c) There were three panel saws which included an SCM (SCM), a MSW Magic (MSW) and a Panhans (Panhans); (d) The SCM and MSW were fitted with outrigger/overhead guards. The Panhans was fitted with only an outrigger; (e) The SCM and MSW guards were not adjusted to be used above the blade on either machine; (f) Riving knives were fitted to both the SCM and MSW panel saws. No riving knife was fitted to the Panhans blade area at the time; (g) The spray booth used to apply stain to timber was not in use, however the paper filters were not adjusted across the suction area of the booth. The paper filters were in need of cleaning; (h) Adjacent to the spray booth were seven (7) unopened 60 litre drums of solvent; (i) Staff were using compressed air to clean machines and product; (j) The amenities area, which consisted of a meal room, adjoining change room with hand basin, adjoining toilet with two toilet bowls and a urinal, were in an unsanitary state. One of the toilet bowls was broken and the urinal was boarded off and the drain did not function. (k) The off cut timber on the floor of the premises constituted a trip hazard. (l) The guarding on the panel saws was not adequate to satisfy the requirements of AS 4024.1- 1996 Safe Guarding of Machinery - General Principles. (m) The guarding on the panel saws was not adequately adjusted so as to constitute an effective barrier between the operator and the cutting blade of the saw. (n) The storage of the drums of solvent was contrary to the provisions of AS 1940, 1993 - The Storage and handling of Flammable and Combustible Liquids. (o) The use and condition of the spray booth at the premises did not comply with the requirements of Clause 177 of the Occupational Health and Safety Regulation 2001 (the Regulation). (p) The first defendant failed to identify the hazards posed by the presence of timber off cuts over the floor of the premises as required by Clause 9 of the Regulation. (q) The first defendant failed to ensure that a clean amenities area was provided and maintained as required by Clauses 18 and 19 of the Regulation. (ix) As a consequence of Inspector Mansell's inspection on 14 January 2002, the following Improvement Notice was issued to the First Defendant pursuant to Section 91 of the Occupational Health and Safety Act , 2000 in respect of the use of compressed air to clean machinery:

Improvement Notice No Time and Date of Issue Time for Compliance Reasons for Issue Measures to be taken 244676 17 January 2002, 12.15pm 17 February 2002 The use of compressed air to blow down machines to remove dust has been identified as a health and safety risk. You shall ensure the health and safety of employees by introducing procedures where compressed air is not used to launch dust into breathing zone of employees. You shall ensure compressed air is not used to blow down machines, work places, or employees clothing.

(x) As a consequence of Inspector Mansell's inspection on 14 January 2002, the following Improvement Notice was issued to the First Defendant pursuant to Section 91 of the Occupational Health and Safety Act , 2000 in respect of the storage of flammable and combustible liquids: Reasons Improvement Notice No Time and Date of Issue Time for Compliance for Measures to be taken Issue You shall ensure the health and safety of employees by: 244677 17 January 2002, 12.15pm 17 February 2002 Persons may be exposed to risk of injury due to fire, explosion or spillage of Class 3 Dangerous Goods which do not comply with storage requirements. providing suitable flame proof storage for the 7x60 litre drums (at inspection) of solvents. Reduce quantities stored. Your attention is drawn to AS 1940, 1993 - The Storage and handling of Flammable and Combustible liquids

(xi) As a consequence of Inspector Mansell's inspection on 14 January 2002, the following Improvement Notice was issued to the First Defendant pursuant to Section 91 of the Occupational Health and Safety Act , 2000 in respect of the use of the spray booth: Improvement Notice No Time and Date of Issue Time for Compliance Reasons for Issue Measures to be taken You shall ensure the health and safety of all persons by providing & maintaining a safe system of work while spraying solvents & lacquers. 244647 17 January 2002, 12.15pm 17 February 2002 Persons may be exposed to risk of injury or illness whilst spraying solvents/wood stains in spray booth. Filters observed were clogged with sprayed material causing ineffective extraction of vapours. Your attention is drawn to Clause 177 of the Occupational Health and Safety Regulation 2001. Your attention is drawn to condition of paper filters in booth. Maintain full coverage of filters across suction area of booth.

(xii) As a consequence of Inspector Mansell's inspection on 14 January 2002, the following Improvement Notice was issued to the First Defendant pursuant to Section 91 of the Occupational Health and Safety Act , 2000 in respect of access and egress: Improvement Notice No Time and Date of Issue Time for Compliance Reasons for Issue Measures to be taken 244648 17 January 2002, 12.15pm 17 February 2002 Persons may be exposed to risk of injury due to insufficient means of escape, passageways in & out of factory area restricted by product and materials You shall ensure the safety of persons by providing and maintaining means of access and egress to and from their place of work. Your attention is drawn to Clause 9 of the OHS Regulation 2001.

(xiii) As a consequence of Inspector Mansell's inspection on 14 January 2002, the following Improvement Notice was issued to the First Defendant pursuant to Section 91 of the Occupational Health and Safety Act , 2000 in respect of the amenities area:

Improvement Notice No Time and date of Issue Time for Compliance Reasons for Issue Measures to be Taken You shall ensure the health, safety and welfare of all persons by providing and maintaining suitable and adequate amenities/accommodation. 244649 17 January 2002, 12.15pm 17 February 2002 Persons may be exposed to risks to their health, safety and welfare in relation to amenities/accommodation/ due to them not being maintained. Your attention is drawn to Clauses 18 and 19 of the OHS Regulation 2001. Regular (daily) cleaning of such amenities to be carried out.

(xiv) As a consequence of Inspector Mansell's inspection on 14 January 2002, the following Improvement Notice was issued to the First Defendant pursuant to Section 91 of the Occupational Health and Safety Act , 2000 in respect of housekeeping: Improvement Notice No Time and Date of Issue Time for Compliance Reasons for Issue Measures to be taken 244650 17 January 2002, 12.15pm 17 February 2002 Persons may be exposed to risks to their health, safety and welfare due to lack of adequate housekeeping measures, trip hazards over most of factory floor of timber off cuts. You shall ensure the health, safety and welfare of persons by ensuring the premises are clean of debris. Institute a system whereby continual attention is paid to controlling debris.

(xv) On 17 January 2002 the Informant attended the premises and made the following observations: (a) The operator of the SCM panel saw re-adjusted the guard over blade following a discussion between the operator and Mr Chen. (b) The worker, Guo Shui Zheng, was operating the Panhans panel saw with no guard or riving knife fitted to that saw. (c) Mr Chen gave directions to the operator of the MSW saw and the operator was seen to make adjustments to the overhead guard to ensure that it lined up with the blade of that saw. (xvi) On 18 January 2002 the Informant attended the premises in company with Inspector Tony Pavert and made the following observations: (a) The Panhans panel saw was in the same unguarded condition as on 17 January 2002; (b) Mr Chen was observed to give instructions to employees to adjust the guards over the blades of the MSW and SCM saws; (c) Mr Chen in answer to a question from the Informant concerning the adjustment of the riving knives on all three saws said that it was his belief that they were fixed and could not be adjusted. The Informant then demonstrated to Mr Chen how they could be adjusted and subsequently made the adjustment on the MSW Magic panel saw. (xvii) As a consequence of Inspector Mansell's inspection on 18 January 2002, the following Prohibition Notice was issued to the First Defendant pursuant to Section 93 of the Occupational Health and Safety Act , 2000 in respect of dogging certificates:

Prohibition Notice No Time and Date of Issue Time for Compliance Reasons for Issue Measures to be Taken 138576 18 January 2002, 11.15am Immediate The panel saw with the brand name 'Panhans' is being operated without a guard fitted over the saw blade. There is also no riving knife fitted to this machine. You must ensure the health and safety of persons required to operated this machine by providing & maintaining suitable guard & riving knife to the machine.

(xviii) The First Defendant provided limited cooperation with the WorkCover Authority during this investigation.

19 Following his inspections of the defendant's premises on 14, 17 and 18 January 2002, Inspector Mansell prepared Factual Inspection Reports as follows: (i) INSPECTION 14 January 2002 On 14 January 2002 following the receipt of a complaint, I attended the premises at 59-61 Anzac Street Greenacre 2190. As I approached the building, I observed Mr. John Chen, Director of the company Obing Pty Ltd. He also observed myself, and proceeded me into the factory. Inside the factory, I introduced myself to Mr Chen and asked if he could accompany me on an inspection of the premises. The following were my observations. (1) There were approximately 7-8 persons, none of them were operating machines. All appeared to be cleaning up. (2) There was waste timber over much of the floor space in the factory, being offcuts and sawdust. (3) I observed three panel saws, a SCM, a MSW Magic and a Panhans. (4) The SCM and MSW were fitted with outrigger/overhead guards. The Panhans was fitted with only an outrigger. (5) The SCM and MSW guards were not adjusted to be used above the blade on either machine. (6) Riving knives were fitted to both the SCM and MSW panel saws. No riving knife was fitted to the Panhans blade area at the time. (7) The spray booth used to stain timbers was not in use, however the paper filters were not adjusted across the suction area of the booth. Paper filters in the booth were in need of a clean. (8) Adjacent to the booth area were 7 X 60 litre drums of solvent, which were yet to be opened. (9) Staff cleaning up at this time were using compressed air hoses to blow off machines and product. (10) The amenities being a meal room with adjoining change room and hand basin, adjoining a dual toilet and urinal, which were in a very poor state. One of the two toilet facilities was broken, while the urinal was boarded off, the drain did not work. (ii) INSPECTION 17 January 2002 On 17 January 2002, I attended the premises of Obing Pty Ltd 59-61 Anzac Street, Greenacre 2190. There I also met Christina Yu, receptionist for the company. I attended to issue some Improvement notices to the company following my visit of 14 January 2002. As I was about to do this the following occurred: (1) I was talking with Mr. John Chen adjacent to the SCM panel saw. He had been speaking to the operator of this machine. Following that discussion, the operator pulled the overhead guard over to line up with the saw blade of that saw. (2) As this was happening, I observed a person use the Panhans panel saw to cut some timbers. I was informed that that person was ZHENG Guo Shiu. The machine was not fitted with any guard about this saw blade and did not have a riving knife fitted to the saw blade area. (3) While standing beside the Panhans panel saw, Mr Chen was speaking to an operator of the MSW Magic panel saw. This person made adjustments to the overhead guard on the MSW Magic panel saw. He pulled the overhead guard over to line up with the machine saw blade. (4) I took photographs of this machine at the time. (5) I issued the improvement notices prepared earlier.

(iii) INSPECTION 18 January 2002 On 18 January 2002, also in company with Mr. Inspector Tony Pavert, I attended the premises at 59-61 Anzac Street Greenacre. There I met Mr. John Chen and Christina Yu. The following occurred: (1) I checked the Panhans panel saw was in the same condition as the day before and I issued a prohibition notice and explained again that this machine was not to be used.

(2) As I was issuing the notice to Mr. Chen, Inspector Pavert was taking photographs of the factory. (3) I asked Mr. Chen why it was that the machines, which were fitted with guards, were not being operated with the guards in place. Again, at this visit he was telling operators to adjust the guard over the blade of the saws. (4) I enquired of Mr. Chen why it was that the riving knives on all three (3) saws were not adjusted up against the saw blades. He stated "they can't be moved". I asked him to provide a spanner and I would show him how this was done. I then showed him how to move the riving knife up on the MSW Magic panel saw.

20 In addition, there were twenty five photographs taken over the three days depicting aspects of the defendant's workplace relevant to the breaches identified.

21 Again, omitting the formal parts, and avoiding duplication of undisputed facts already before the Court, the agreed statement of facts relevant to the August period encompassing nine breaches disclosed the following: (i) The first defendant's premises consisted of a factory which contained a number of woodworking machines which included, inter alia, power saws, panel saws, work benches, spray booth, an office area and a kitchen and amenities area. (ii) On 19 August 2002 the Informant attended the first defendant's premises in company with Tony Pavert. (iii) At the time of his inspection on 19 August 2002 the Informant made the following observations at the first defendant's premises: (a) There were approximately eight (8) to nine (9) persons in the factory; (b) There was waste timber and sawdust covering most of the floor space in the factory area; (c) There was a table which had been freshly painted with lacquer which was positioned in a passageway near the spray booth; (d) There was a strong smell of solvent in the air; (e) Staff who had applied the lacquer had worn only dust masks instead of vapour masks; (f) There were three panel saws which included an SCM (SCM), a MSW Magic (MSW) and an Altendorf F45 (Altendorf); (g) The SCM, MSW and Altendorf were fitted with outrigger/overhead guards but these guards were all out of position; (h) During the inspection the Informant observed Mr Chen pull these guards back into position over the saws; (i) There were electric leads lying on the floor amongst timber off-cuts. (j) One electrical lead was damaged and had been taped up with masking tape near the plug; (k) A docking saw had an electrical lead which had been repaired by tape having been applied to it; (l) The first aid box had no first aid supplies within it. (m) The off cut timber on the floor of the premises constituted a trip hazard. (n) The guarding on the panel saws was not adequate to satisfy the requirements of AS 4024.1- 1996 Safe Guarding of Machinery - General Principles. (o) The electrical lead connected to the docking saw had not been adequately inspected, tested or repaired contrary to AS/NZS 3760 - 2001 In-service safety and inspection and testing of electrical equipment (the Standard). (p) The Standard is called up by the Code of Practice for Technical Guidance which came into force on 1 September 2001. (q) The guarding on the panel saws was not adequately adjusted so as to constitute an effective barrier between the operator and the cutting blade of the saw.

(r) The first defendant failed to identify the hazards posed by the presence of timber off cuts over the floor of the premises as required by Clause 9 of the Regulation. (iv) As a consequence of Inspector Mansell's inspection on 19 August 2002, the following Improvement Notice was issued to the First Defendant pursuant to Section 91 of the Occupational Health and Safety Act , 2000 in respect of the off-cut timber and housekeeping:

Improvement Notice No Date of Issue Time for Compliance Reasons for Issue Measures to be taken 244697 20 27 August 2002 Persons may be exposed to risks to their health and safety and welfare due to inadequate housekeeping. The build up of sawn off-cuts and saw dust is considerable. You shall ensure the health and safety and welfare by introducing a system of regular clean outs of waste product in factory. August 2002

(v) As a consequence of Inspector Mansell's inspection on 19 August 2002, the following Improvement Notice was issued to the First Defendant pursuant to Section 91 of the Occupational Health and Safety Act , 2000 in respect of machine guarding: Improvement Notice No Date of Issue Time for Compliance Reasons for Issue Measures to be taken 244696 20 August 2002 27 August 2002 Persons may be exposed to the risk of injury whilst operating either of three (SCM, Magic MSW or Altendorf F45) panel saws while guards are not properly adjusted over the saw blade. You shall ensure the health and safety of employees by maintaining in correct adjustment all guards fitted to company panel saws.

(vi) As a consequence of Inspector Mansell's inspection on 19 August 2002, the following Improvement Notice was issued to the First Defendant pursuant to Section 91 of the Occupational Health and Safety Act , 2000 in respect of the first aid facilities: Improvement Notice No Date of Issue Time for Compliance Reasons for Issue Measures to be taken 244695 20 August 2002 27 August 2002 Persons may be exposed to risks to their health and safety due to lack of first aid facility You must provide and maintain first aid facilities and personnel. Your attention is drawn to Clause 20 of the Occupational Health and Safety Regulation 2001.

(vii) As a consequence of Inspector Mansell's inspection on 19 August 2002, the following Improvement Notice was issued to the First Defendant pursuant to Section 91 of the Occupational Health and Safety Act , 2000 in respect of damaged electrical leads: Improvement Notice No Date of Issue Time for Compliance Reasons for Issue Measures to be taken Persons may be exposed to risks from electrical shock or electrocution from damaged electrical leads. 244694 20 August 2002 27 August 2002 Taped up sections of leads You shall ensure the health and safety of persons by maintaining electrical leads in a safe condition. Taped up plug Your attention is drawn to AS/NZS 3760-1996. Taped up lead on docking saw.

(viii) On 27 August 2002 the Informant attended the first defendant's premises and made the following observations: (a) The electrical leads which had been observed to be damaged on 19 August 2002 had been repaired and there was no taping on the leads; (b) Mr Chen advised the Informant that first aid kits has been ordered with a supply date of 2 September 2002; (c) The guards on each of the SCM, MSW and Altendorf were swung back away from the saw blade area of each saw;

(d) A person was operating the Altendorf F45 with the guard swung back away from the saw blade area. Mr Chen advised that this operator was a 'new starter today';

(e) There was a marginal improvement in housekeeping compared to the inspection on 19 August 2002. (9) The First Defendant provided limited cooperation with the WorkCover Authority during the investigation.

22 The Factual Inspection Reports prepared by Inspector Mansell following his visits to the defendant's premises on 19 and 27 August state as follows:

(i) INSPECTION 19 August 2002 On 19 August 2002, following the receipt of a further complaint, I attended the premises at 59-61 Anzac Street Greenacre 2190. I was in company with Mr. Inspector Tony Pavert. On arrival we observed Mr. John Chen, Director of the company Obing Pty Ltd. He also observed us and gave some instructions to a person who immediately ran into the factory. I observed him yelling out instructions and waiving his arms laterally to indicate, I believe, that all work was to stop. We continued inside the premises and observed the following: [1] There was approximately 8-9 persons inside the factory, where there was furniture of various types in various stages of manufacture.

[2] Freshly sprayed lacquer had been applied to a table positioned in the passageway in the vicinity of the spray booth. The smell of solvent fumes was strong in that area. Staff involved in that process wore only dust masks instead of fume masks. [3] Housekeeping was similar as previous visits and can be seen in photographs attached. [4] The three panel saws were all fitted with a guard for the saw blade, however all three were out of position. During this visit Mr. Chen pulled all three guards back to a position close to the blades. Again photographs attached provide a view of all three, the Altendolf F45, the MAGIC MSW and the SCM panel saws.

[5] There were electric leads around the floor mixed in with timbers. The lead in question was taped up with masking tape. Photographs of this are attached.

[6] A docking saw also had an electric lead with a taped up section close to the plug.

[7] The First Aid box is clearly not used (photograph attached).

[8] During this visit, we spoke to a person who was nominated by M. John Chen Director, as the person who was spraying lacquer. His name was said to be David Chen. I don't believe he is related to the director. [9] Notices were issued to the company to address first aid requirements, maintaining guarding to panel saws, housekeeping, electric leads to be replaced, and docking saw to be attended to. (ii) INSPECTION 27 August 2002 On 27 August 2002, I attended the premises of Obing Pty Ltd at 59-61 Anzac Street Greenacre 2190. The reason for this visit was to follow up notices issued on 20 August 2002. · Notice 244694 was issued to address electric lead problems. I observed the leads to be in satisfactory condition. I did not see taped up plugs or taped leads as of my visit on 19 August 2002. · Notice 244695 was issued to address first aid kit problems. I was informed the order had been placed for two kits, however, they were due to arrive on 2 September 2002. · Notice 244696 was issued to address guarding of the three panel saws in particular. On 19 August 2002 all three panel saws were equipped with guards however, the guards were nowhere near the saw blade of either saw. At my visit on 27 August 2002, I observed a person operating the Altendolf F45 panel saw with the guard for that machine swung back away from the saw blade area of that saw. Mr. Chen stated the person was a new starter and that was the reason for what I saw.

· Notice 244697 was issued to address housekeeping problems where there was sawn off cuts and sawdust all over the place with no apparent order or system in place to keep the work areas particularly clear of refuse. There was a marginal improvement at my visit of 27 August 2002.

23 A further fourteen photos depicting the state of the defendant's premises taken during the workplace inspections again depicts aspects relevant to the breaches identified on those days.

24 On behalf of the defendants, the affidavit of Mr Chen earlier referred to has been tendered before us without objection. It was not before the Chief Industrial Magistrate but we allow it to be tendered at this stage given that we are undertaking a re-sentencing determination and the parties were given the opportunity to file any additional affidavit material. That affidavit purports to go to the defendant's capacity to pay and will be dealt with on that basis as appropriate.

25 We would wish to comment at this point as to the submissions received on behalf of the respondents in the proceedings before us. In summary form, those submissions direct our consideration to s10 of the Crimes (Sentencing Procedure) Act 1999 advocating that we deal with the re-sentencing on appeal by discharging the respondents without conviction and penalty with or without a bond.

26 We consider such submissions to be entirely misconceived. The respondents have conceded the appeal. The substance of the appeal is the manifest inadequacy of the penalty imposed by the Chief Industrial Magistrate. It is a conclusion with which we entirely agree. Further, for reasons which this judgment makes clear, an order under s10 of the Crimes (Sentencing Procedure) Act 1999 would be entirely inappropriate.

27 Of particular relevance in these proceedings are the respective defendants prior convictions. On 16 October 1997, both defendants had convictions recorded following pleas of guilty before the Chief Industrial Magistrate. On that occasion, the corporate defendant entered a plea of guilty to 16 offences arising under s15(1) of the Occupational Health and Safety Act 1983. On the same occasion and with respect to the same factual circumstances, the personal defendant Mr Chen pleaded guilty to 11 breaches of the 1983 Act pursuant to the deeming provisions of s50(1) of that Act. Both defendants had penalties imposed and the prior conviction record of both defendants is before the Court as it was before the Chief Industrial Magistrate.

28 What is clear from a reading of the agreed facts placed before the Court in 1997, when compared against the agreed facts and photographs of the 2002 offences, is that little had changed at the defendant's workplace over that period. That is, the defendant's breaches cover the full gamut of activities and work areas within the defendant's premises. They range from the incorrect adjustment of guards on wood working saws and machines, the hazardous storage of flammable liquids, the unsafe use and condition of spray booths, hazards presented by the build up of timber waste on floors, the unhygienic state of the employees amenities area and the poor general housekeeping of the factory with electrical leads lying on the factory floor. As the Chief Industrial Magistrate commented in sentencing the respective respondents in October 2003: The difficulty I have is despite the convictions in 1997 and the visits of the inspectors in January 2002, there has not been a marked change within the factory in August 2002 when the inspectors returned. Photographs taken in August 2002 indicated little had changed in regard to the defendant's attitude to housekeeping and safety, with guards still not in their correct position, damaged electric leads present and untested leads, certainly not in accordance with the requirements under legislation and housekeeping in a very poor state, an example of a first aid box with no first aid supplies in it. Fortunately there have been no reported compensatable (sic) injuries to workers. However, present on all occasions were real risks to the health, welfare and safety of the workers. Given the history of these breaches and the simple steps required to alleviate the risks, I view these breaches as serious. The Act is aimed at providing a risk free work environment, in other words preventing accidents.

29 The defendant's prior convictions raise two matters relevant to the sentencing process. The first is the maximum penalty for each of the defendants. With respect to the corporate defendant, the maximum penalty is $825,000 for each offence and for the personal defendant the maximum penalty is $82,500 for each offence. That is so notwithstanding the statutory limitation placed on the Chief Industrial Magistrate that limits his penalty jurisdiction to $55,000 for each offence with respect to both the corporate defendant and Mr Chen. That approach is consistent with the view expressed by the Court of Criminal Appeal in R v Doan (2000) 50 NSWLR 115 where the Court stated at 123 as follows:

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. 30 The second matter activated by the defendant's prior convictions that we consider particularly significant to the sentencing process is the element of specific deterrence. We will address that in due course.

31 We turn in the first instance to consider the objective seriousness of the offences before us. That principle was acknowledged by the Chief Industrial Magistrate. It is a principle well settled and its full expression and application is to be found in the Full Bench decision of Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464 particularly at 476. We add only at this point that given the facts and circumstances of the workplace breaches identified in the offences, the workplace was replete with real and foreseeable risks to safety. There can be no doubt that, viewed in totality, the defendant's breaches were objectively serious.

32 The issue of general and specific deterrence also arises for consideration. That much is evident from the decision of the Full Bench of this Court in Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 29 particularly at paras [74] and [77]. In para [74] the Full Court says in relation to general and specific deterrence, that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. 33 Paragraph [74] goes on to state that 'the judge must indicate with some precision' if excluding either of those aspects in his/her consideration. On that point, para [77] states: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act.

34 This is a matter, in our view, where specific deterrence is a live issue. The respective defendants have clearly taken little if any heed of the penalties imposed in their earlier convictions in 1997. As the Chief Industrial Magistrate stated in October 2003: Back in 1997 Mr Halligan, who appeared for the defendant, said as the business grew it was difficult for Mr Chen to keep on top of the business, he had no knowledge of the provisions of the legislation… He had learned from this episode and had spent some $20,000 on improving the premises. I was told in 1997 that they had now been tidied up and put in first class order, the spray booth will shortly be approved and a separate storage area for recyclable timber has been obtained, but quite clearly, when one looks at the photographs and the evidence before the Court, little has changed since 1997.

35 In his affidavit, sworn on 10 August and filed for the purposes of the re-sentencing determination, Mr Chen states as follows: Since the hearing of the matter, Obing Pty Limited trading as 'Old But New' has ceased manufacturing in Australia and moved its manufacturing to China.

36 That may be so but Mr Chen remains a businessman whose primary place of residence and the ultimate place of undertaking his retail business is Australia. He came to Australia from China as an English language student and remained in this country following the amnesty granted by the Australian Government to Chinese students then in Australia following the Tianamen Square massacre. As the Chief Industrial Magistrate states in his ex tempore judgment of 31 October 2003 in relation to Mr Chen: He commenced the business, formerly operating from smaller premises at Ingleburn. As business improved, he took over the present premises, larger premises, and employs eight persons. His wife assists him in the business. He now also conducts retail premises, employing people selling the factory's products at, if I recall, seven various retail premises.

37 While Mr Chen may have moved his factory from Australia to China, it is our understanding, on the basis of the material before us together with the comments of the Chief Industrial Magistrate, that the defendant company still continues to operate in New South Wales via its retail outlets. Further, Mr Chen, as the Chief Industrial Magistrate stated, 'basically is the company and the directing mind of the company'.

38 For those reasons and notwithstanding the purported transfer of the defendant's factory operations to China, the defendant's continuing retail business in New South Wales, with ongoing obligations in relation to workplace health and safety is, in our view, a powerful reason why specific deterrence should operate as a factor in the sentencing process in the matters before us.

39 One of the grounds on which the appellant appealed was that his Worship had erred in finding that the respondent had a limited capacity to pay a fine when there was no or no adequate evidence put before the Court to support such a finding. Having considered the material that was before the Court, we would agree there was no evidence that could constitute substantive evidence of that nature. Certainly there was no evidence upon which the Court could rely or draw any relevant inference. The very brief submission on that issue placed before the Court by the solicitor appearing on behalf of the defendants on 27 October 2003 is contained in the following passage: If I may also highlight that my clients are concerned about the dichotomy between the company as an entity and Mr Chen as an individual and those two different entities doubling if you like the penalty associated with this kind of offence. They are concerned about that. They are also concerned about the costs involved. They have suffered a downturn in business in the last 12 months. If there is a penalty imposed by your Worship, if my clients could have time to pay. Bench: Yes, I don't have a great say over that, I can only under the Fines Act give 28 days, then it's an application to the Registrar of the Court.

40 Incorporated within the appeal documents are a number of bank statements. As reference to the transcript before his Honour reveals, those bank statements are in the name of Alice Shen, who is presumably the wife of the personal defendant. Those bank statements were placed before his Honour by the solicitor appearing on behalf of the defendants as evidence of the efforts made by Mr Chen to advertise and secure a factory hand to help clean up around the worksite. As was said in relation to those documents: If I may also refer to some advertisements which go back a while and which highlight the fact that he has tried to get a cleaner or more than one cleaner to come and clean up the wood and to help generally around the place, clean the toilets and all the rest, part and full-time advertised. Citybank statement showing regular debits to the account for the cost of the advertisements and a copy of the actual advertisement itself seeking an urgent request for a factory hand which featured regularly.

41 In other words, there can be no suggestion that the bank statements that were placed before his Honour were evidence of any financial incapacity or otherwise of the respective defendants to pay any penalty imposed. In short, the only evidence upon which his Honour could come to any view as to the defendant's lack of capacity to pay substantial fines was on the basis of the statement made by the solicitor who appeared on behalf of the defendants before him to the effect that there had been a downturn in business and in relation to any penalty imposed, the defendants sought time to pay. That is a far cry, in our view, from any finding that there was a genuine inability to pay any penalty imposed.

42 We can discern no evidence that was before the Court at first instance that would have given rise to his Honour asserting as a factor in sentencing 'the defendant's lack of capacity to pay substantial fines.' We believe his Honour was in error in so finding and relying upon it in passing sentence.

43 There is now some evidence before the Court going to the financial circumstances of the respective respondents. That is the affidavit of Mr Chen earlier referred to. The affidavit itself is relatively brief and apart from indicating the transfer of his manufacturing business to China, Mr Chen also states: (i) Since 1993, I have been a director of a company called Obing Pty Limited trading as 'Old But New'. This company manufactures and sells recycled timber furniture; (ii) ... ... (iii) Last year Obing Pty Limited lost approximately $206,000. Attached and marked with the letter 'A' is a copy of the Annual Report. (iv) Last year I was forced to sell three properties that I owned to pay for the debts of Obing Pty Limited. In the financial year 2003 I earned some $10,000. Annexed and marked with the letter 'B' is a copy of my tax.

44 Attached to Mr Chen's affidavit is a copy of the financial report of Obing Pty Limited for the year ended 30 June 2003. There is also a copy of a company tax return for Obing Pty Limited for the year ending 30 June 2003 and there is an individual tax return for the year ending 30 June 2003 in relation to Mr Chen. As a general statement, those documents purport to substantiate the assertions made by Mr Chen in his affidavit as to the current financial position of Obing Pty Limited as at 30 June 2003 and his own earnings for the year ending 30 June 2003.

45 Mr Chen was cross examined on that affidavit, particularly as to the inference clearly arising from the assertions it contained. That is, not only was Mr Chen 'forced to sell three properties' last year in order to liquidate assets to offset the losses of the corporate defendant but that the 'three properties' referred to constituted Mr Chen's total asset base. That is simply not the case. As Mr Chen conceded in cross examination, he still retains partnership with his wife in three additional properties. One of the properties at Parramatta Road in Auburn is valued at $2.6 million with a current mortgage of some $1.6 million. The residential home of Mr Chen and his wife is valued at $900,000 and is unencumbered. The third property is an investment unit valued at $300,000 with a mortgage of $200,000.

46 Mr Chen stated that he owed his aunt some $300,000 which he repays by direct debit on a monthly basis.

47 The three properties sold by Mr Chen and referred to in his affidavit realised funds that went towards offsetting the business losses of the corporate respondent in the 2003 tax year.

48 Overall, when all the evidence of the financial circumstance of the respondents are considered, a number of facts emerge. The first is that the information contained in Mr Chen's affidavit as to the financial position of Obing Pty Limited and himself is significantly incomplete and in that sense it is misleading. Secondly, Mr Chen is, for all practical purposes, the alter ego of Obing Pty Limited in that the assets of Obing Pty Limited are in a real sense the assets of Mr Chen and his wife.

49 Finally, it cannot be said that the respondents can properly assert to the Court that, as between them, there is an incapacity to pay any proper penalty imposed. True it is that the trading position of the corporate respondent has suffered a downturn that is being reflected in its end of year loss for 2003. Because of the alter ego relationship as between Obing Pty Limited and Mr Chen, he has in turn been financially adversely affected by Obing Pty Limited's trading losses. We accept that any penalty imposed in the matters before us will add a further impost on the financial resources of the respondents but overall it is one we believe can be accommodated within those resources.

50 Considered in its entirety, the evidence now before the Court in relation to the financial position of the respective respondents is clearly information we are entitled to take into account relevant to the fixing of a penalty in relation to these matters and as s6 of the Fines Act 1996 requires us, in the exercise of our discretion, to consider. It is not our view that the respective defendants before us are persons of such limited means and impecuniosity as contemplated by Walton J Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v David Karl Schrader (2002) 112 IR 284 at para [86]. Rather, we adopt as our approach to sentencing in the matters before us the observation of Wright J President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 where his Honour observed: ... whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... the penalty should reflect the objective seriousness of the offence.

51 To the above conclusion we would only add that 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.

52 In these proceedings, the appellants sought an order under s115(1)(a) of the Act. That application was briefly raised before his Honour at first instance but was never pressed at the time of his Honour's ex tempore judgment. It has now been renewed.

53 Following the conclusion of the appeal proceedings, the appellants filed the following proposed order: The respondent publish in the Inner West Courier within 28 days of the making of this Order: (a) that the respondent has been convicted of offences under section 8(1) of the Occupational Health and Safety Act 2000 ; and (b) the aggregate penalties imposed upon them

54 Section 115 appears in Division 2 Part 7 of the Act as a new provision in the sense that there was no similar provision in the Occupational Health and Safety Act 1983. Division 2 makes overall provision for the Court to make orders in connection with proved offences. Section 115(1) allows the Court to make orders to publicise or notify in relation to a proved offence as follows: 115 Orders to publicise or notify offence (1) The court may do any one or more of the following: (a) order the offender to take specified action to publicise the offence, its consequences, the penalty imposed and any other related matter, (b) order the offender to take specified action to notify specified persons or classes of persons of the offence, its consequences, the penalty imposed and any other related matter (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender's conduct).

55 It is apparent that the legislature intended to make provision for offences and penalties imposed to be publicised or notified in a way that brought to the attention of relevant persons or classes of persons the existence of the offences dealt with by the Court and the nature of the penalties imposed. Undoubtedly, such an order, once effected, would have the impact of drawing attention to the defendant's offending behaviour and act as an ongoing deterrent to influence the offender to address attention to workplace health and safety in an ongoing and proactive manner in order to avoid the adverse consequences that such publicity or notification may bring to the offender's corporate reputation. As well, it may deter potential offenders to be more alert to their health and safety obligations.

56 We see much to commend such an order in the appropriate circumstances. Nevertheless, we do not propose to make the order sought by the appellant in these proceedings. In the first instance, it was mentioned only briefly before his Honour as follows: Your Worship, I'm also instructed to seek a publication order pursuant to s115 of the 2000 Act.

Your Worship, in respect of costs I'd simply say that the prosecutor ...

Thompson: A relevant Chinese language newspaper in the jurisdiction within the defendant's business.

57 Quite apart from the rather cursory and, in our view, inherently discriminatory nature of that application, the matter was never raised again when his Honour delivered his ex tempore judgment four days later. It was certainly a matter his Honour intended to consider when he reserved his decision because he said there were 'a lot of charges here and also too I want to consider the publication order under s115...'

58 As well as not being pressed before his Honour, no mention of the matter was raised in the appeal proceedings filed or in written submissions received from the appellant in these proceedings. While those factors alone do not preclude the appellant from seeking such an order on re-sentencing, they are factors that do not assist the appellant in pressing the issue where the orders are not consented to in the hearing before us.

59 More significantly, is the process whereby the order was sought in the first instance. In our view, any application for such an order, must be properly supported by details of the order sought under s115 of the Act and grounds in support of the same. An order sought under s115 should be precisely formulated in writing both as to the person or classes of persons to whom the order is intended to be published for or notified to. As well, it would be necessary to specify with clarity where such a notice is to be published, the precise terms of the notice as well as any other related matter sought to be included in the publication or notice. That much is necessary, it seems to us, so that an offender is on notice as to the precise terms of the order sought and the steps that it (or he or she) must take in order to comply with the order. The power of the Court to make such an order is discretionary. In the exercise of that discretion, the Court will consider whatever matters the offender may wish to raise as to why such an order should not be made. The offender is unable to do that unless the matters we have identified are clearly and precisely specified by the party seeking the order. No such steps have been taken here and notwithstanding the appellants last minute written proposals, we do not propose to make the order sought in these proceedings.

60 We turn now to the determination of penalty in this matter. His Honour's approach to this task appears in the relatively brief ex tempore judgment in the following terms: I note the early pleas of guilty to the charges and the defendant's limited co-operation with the WorkCover Authority.

I intend to impose a global penalty in regard to the January visits and breaches and also in regard to the August visits and breaches, as I take the view that the CANs all arise out of the one course of conduct. Taking into account all the matters I have mentioned, plus the public expectation and the need for general and specific deterrents, the number of prosecutions in regard to each period and the penalties to be imposed on both company and the director, it is my view in regard to the breaches in January that there should be against the company a global penalty of $13,500. For convenience, in regard to the fifteen CANs there will be a penalty of $900 in regard to each which, if my mathematics is right, should total $13,500.

In regard to Mr Chen, there will be a global penalty of $1350, one-tenth of that imposed upon the company and that would mean a fine in each of the fifteen matters of $90.

In regard to the August breaches, the company is fined a global penalty of $15,000. There are six CANs. For convenience there will be a penalty of $2500 on each.

In regard to Mr Chen, there will be one-tenth of the fine of the company, a fine of $1500 globally. For administrative purposes, that will be $250 on each of the six CANs.

In regard to the matters, I have taken into account the fact that there is an increase in regard to the global penalties but because of the number of matters, when one looks at the particular penalties, there might be a slight discrepancy, that is to meet the global penalties.

61 Reference to 'six CANs' is incorrect. In relation to the August period breaches there are nine CANs. That can be verified by reference to the original Court papers where his Honour clearly made the necessary correction but the transcript was never corrected. It is not an issue between the parties given that the matter numbers appealed against identify nine breaches during the August period. As well, there were fourteen, not fifteen, CANs before his Honour relevant to Mr Chen for breaches during the January period.

62 As can be surmised, his Honour's summation for the purposes of penalty is relatively brief and he approaches his task on the basis of imposing a 'global penalty'. It would be fair, in our view, to say that would be a phrase that could be read as analogous to that of totality. Certainly that was what the prosecutor submitted to him was the correct approach. Indeed, it is appropriate to set out the very brief submissions made on behalf of the prosecutor before his Honour on that point as follows: Your Worship, only very briefly. It's not the intention of the prosecutor to seek a doubling up as it were. Your Worship would be well aware that these matters are envisaged to be brought in this way by the structure of the legislation, directors and individuals and companies can be charged separately. Your Worship, we understand that you will probably have some regard to the totality principle in relation to sentence. I would point out however that the matters which are the subject of these complaints were subject to proceedings brought before yourself in 1997. Similar offences were found and have now been pleaded guilty to in January 2002. Similar circumstances were existing in August 2002. So there does seem to be some difficulty in the defendant coming to terms with ensuring his obligations under this particular piece of legislation. 63 We accept that the principle of totality is relevant and appropriate having regard to the number of matters that are before the Court. Equally however, we are of the view that it was at this point that his Honour's decision fell into further error as to the approach that he should have taken having regard both to the proper application of the totality principle in sentencing and having regard to the impact that the defendant's prior conviction had upon that determination bearing in mind the maximum penalty provisions that were activated by those prior convictions.

64 It is useful at this point, in our view, to restate the proper approach to the totality principle as part of the sentencing process. This was expressed in some detail in the judgment of the Full Bench of the Court in Crown in Right of the State of New South Wales (Department of Education and Training v Keenan) (2001) 105 IR 181 at 192-193. It is appropriate in our view to restate those principles relevant as they are to the matters before us: [21] ... There was a well-established practice in New South Wales that when structuring sentences for multiple offences the trial judge could impose one sentence which represented the totality of the overall criminality involved in the offences. It was not considered necessary to consider each sentence separately to ensure that it appropriately represented the criminality involved in each particular offence: ... [22] In Pearce v The Queen (1998) 194 CLR 610, however, the majority of the High Court rejected this approach. That case concerned an offender charged with two offences - the malicious infliction of grievous bodily harm and the infliction of grievous bodily harm during a break and enter - which both arose out of the same incident. The majority, McHugh , Hayne and Callinan JJ, stated: [45] To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. (emphasis added) [46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process. [47] Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation. [48] Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences. (references omitted, emphasis added) [23] The effect of Pearce is that, in sentencing a defendant for more than one offence, the Court is required to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. It is only after determining an appropriate sentence for each offence that the Court should consider whether the sum of the separate sentences properly reflects the totality of the criminality involved. [24] The approach in Pearce has been applied on a number of occasions by the Court of Criminal Appeal: see, for example, R v Kalache [2000] NSWCCA 2, at [106] to [111]; R v Wheeler [2000] NSWCCA 34 at [34] to [37]; and Giam (No 2) (1999) 109 A Crim R 348 at 351. [25] The approach in Pearce has also been applied by this Court in relation to multiple offences under the Occupational Health and Safety Act : see, for example, WorkCover Authority of New South Wales v State Rail Authority (unreported, Kavanagh J, IRC 97/7032-7036, 13 October 1999); WorkCover Authority of New South Wales (Inspector Donnelly) v Riverina Wool Combing Pty Ltd [2000] NSWIRComm 29; WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284; WorkCover Authority of New South Wales v Company B Ltd [2000] NSWIRComm 119; and WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd t/a Boral Asphalt (No 2) (2000) 101 IR 458 at 470-471.

65 While accepting that the particular exigencies of a busy Court list before his Honour would have had an influence on the somewhat expedient way in which he dealt with the many matters before him concerning the respondents, he nevertheless failed to adopt the approach as expressed by the High Court in Pearce and which has been applied by this Court in relation to multiple offences under the Occupational Health and Safety Act. It is an approach that his Honour should have adopted in undertaking the sentencing task that he did. It is certainly an approach that we intend to adopt in our re-sentencing exercise in these matters. We believe that approach will properly address the need to ensure that the defendants are not punished twice for the commission of offences of which there are common elements.

66 In the matters before us, the specific offences are quite clearly identified both temporally and particularised as to the specific contravention relied upon. Nevertheless, we accept as his Honour did, that all of the discrete breaches arise out of the one course of conduct - that course of conduct being the overall system of work which the respondents had in place at their factory.

67 In expressing that view, we reject the proposition advanced on behalf of the respondents that there are but two offences before us - one covering the January period and one covering the August period offences - both of which offences are 'course of conduct' offences relating to a 'single activity' as discussed in Linehan v Australian Public Service Association (1982) 66 FLR 90.

68 We acknowledge that the pleas were entered at the earliest opportunity. That fact entitles the defendants to a discount having regard to the principles enunciated in R v Thompson; R v Houlton (2000) NSWCA 309. We assess that discount at 25 per cent.

69 We can discern no subjective features that would permit us to assess any further discount on penalty. In saying that, we note his Honour's finding before him that there was limited cooperation by the defendants with the WorkCover Authority of New South Wales in relation to these matters. That much is apparent from the Factual Inspection Reports prepared by Inspector Mansell on his repeat visits to the defendants worksite. As well, in their very brief submissions to his Honour, the prosecution stated the defendants did not appear to be willing to come to terms in ensuring their obligations under the Occupational Health and Safety Act particularly when one has regard to the history of prior offences of the defendants when viewed against the ones currently under consideration. They were, on any view, a repetition of prior offending behaviour.

70 Taking into account what we consider to be the proper approach in the determination of these matters, we determine penalty in these matters as follows, mindful as we are of the principle of restraint in determining sentence on appeal as expressed in Dinsdale and Weathertex earlier referred to: (i) In relation to the corporate defendant, we impose a penalty of $4000 for each of the twenty four offences giving a total penalty of $96,000. In applying the principle of totality and arriving at a penalty that we believe properly reflects the overall criminality of the corporate defendant's conduct in relation to those breaches, we assess a total penalty in respect of the twenty four matters of $50,000. To that figure we allow the discount of 25 per cent as assessed for entry of the early plea of guilty. Accordingly, there is a total penalty with respect to the twenty four offences of $37,500. We consider the most sensible approach is to apportion that figure equally between the twenty four breaches. Accordingly, we impose a penalty of $1562.50 in relation to each of the offences with respect to the corporate defendant. (ii) We turn now to the personal defendant, Mr Chen. We are mindful that his Honour found, at first instance, he was in every respect the controlling mind of the corporate defendant and played a very active role in the conduct of the corporate defendant's business by his presence at the workplace in a direct and hands on way. Having regard to the twenty three offences in relation to the personal defendant, we determine a penalty in respect of each offence of $1000, giving a total penalty of $23,000. In applying the principle of totality to properly reflect the defendant's overall criminality in these proceedings, we determine a final penalty in respect of all offences in relation to the personal defendant of $15,000. In applying the discount as assessed for the early plea of guilty, we determine a total penalty of $11,250. Apportioned equally as between the offences results in a penalty with respect to each offence of $489.13.

71 Accordingly, in these matters we make the following orders: (i) IRC Matter No 6841/2003: WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen

· The defendant is fined $489.13 with respect to each of the twenty three offences appealed against;

· We allocate a moiety to the WorkCover Authority on the usual terms;

· The respondents to pay the appellants costs of the appeal as agreed or as assessed in accordance with the Rules of the Court. (ii) IRC Matter No 6842/2003: WorkCover Authority of New South Wales (Inspector Mansell) v Obing Pty Limited trading as Old But New

· The defendant is fined $1562.50 with respect to each of the twenty four offences appealed against;

· We allocate a moiety to the WorkCover Authority on the usual terms;

· The respondents to pay the appellants costs of the appeal as agreed or as assessed in accordance with the Rules of the Court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.