11 It will be seen that, by reason of subsection 2 of s 197 the provisions of the Crimes (Local Courts and Appeal Review) Act 2001 as referred to are said to apply to any appeal brought under s 197(1). This raises for consideration whether or not the amendment made to s 197 displaces the judgment of the Full Bench of this Court in Drake Personnel Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 as contained within the joint judgment of the President, Wright J, and Vice-President, Walton J. It also raises questions as to whether the appeal is one as of right brought under s 23 of the Crimes (Local Courts Appeal and Review) Act 2001, or is an appeal as of right under s 56 of that Act. If Drake Personnel still applies then leave is required and the nature of the appeal is as described in the joint judgment referred to.
12 For reasons which we shall shortly state, we are of the opinion that the penalty fixed by the learned magistrate was manifestly inadequate and that the magistrate's discretion miscarried in the sense that his Honour failed to consider and to apply appropriate principles of sentencing. On whatever view one may take of the nature of the appeal and as to whether it is one which requires leave or is one as of right, it is clear that if leave be required it ought be granted; and, whether the appeal be by way of rehearing or whether it be an appeal stricto senso, confined only to a ground that involves a question of law alone, the appeal should be upheld. We have in mind also that in order to determine in an authoritative and appropriate manner the controversy raised by the parties we would require, by way of submissions, a great deal more assistance than has thus far been provided by counsel by way of written and supplementary oral submissions. We do not make this comment in any critical sense because, sometimes, it is not until issues are ventilated during the course of proceedings that the nature and extent of the controversy is revealed and that all of the matters which need to be considered in determining that controversy are identified. Furthermore, we are conscious of the fact that the appellant is a company carrying on business in Wagga Wagga and that the costs associated with the preparation and making of submissions in connection with the necessary legal argument will add to the costs already incurred by the respondent, in addition to the increased penalty which it will be required to pay. Accordingly, we propose to dispose of the proceedings in the manner indicated.
13 As we have said, the learned magistrate delivered an ex tempore decision. The transcript of the proceedings indicates that his Honour received little assistance from Mr Gordon appearing for the WorkCover Authority of New South Wales; nor, indeed, from the solicitor appearing for the respondent, concerning the appropriate sentencing principles to be applied and the proper approach to the fixing of an appropriate penalty. In our opinion, all judicial officers are entitled to receive appropriate assistance from legal practitioners.
14 The appropriate principles to be adopted in fixing penalties under the Occupational Health and Safety Act have been stated by Full Benches of this Court on many occasions. We instance Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464; Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158; Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78. In summary terms the starting point is the objective seriousness of the offence. This is the pivotal point from which a penalty must be assessed by reference to the maximum applicable penalty fixed by the legislature. In fixing that amount, the court is also required to take into account the question of deterrence. It is only when that assessment is made that the court is entitled to take into account mitigating factors such as a plea of guilty, contrition, the defendant's general commitment to occupational health and safety matters, steps taken by the defendant after the incident by way of enhancement of the commitment to occupational health and safety matters, cooperation with the investigating authority and the like. There may also be an application of the provisions of the Fines Act, in an applicable case.
15 During the course of his decision, the learned magistrate rejected a submission made on behalf of the respondent that penalty should be fixed "at the bottom of the range". Mr Gordon stated that he would "concede it is not one of the more serious breaches, but we don't think it is in the very low range either your Honour". Mr Skinner of counsel, who appeared for the appellant on the appeal before us, said that his client would be bound by this assessment.
16 Whilst Mr Gordon informed his Honour that the maximum penalty was $550,000 and that the jurisdictional limit which could be imposed by a local court was $55,000, he was not informed of the line of authority typified by a decision of the Full Bench of this Court in U-RECT-IT Pty Ltd v WorkCover Authority of New South Wales (Inspector de Silva) [2004] NSWIRComm 266, which was delivered after the hearing before the magistrate in these proceedings. However, that judgment reflects a well-known line of authority such as may be found in the judgment of the New South Wales Court of Criminal Appeal in R v Doan (2000) 50 NSWLR 115. These authorities establish that, for the purpose of these proceedings, the objective seriousness of the offence and the deterrent factors would result in an appropriate penalty being fixed by reference to a maximum penalty of $550,000. The jurisdictional limit only operates in relation to the penalty finally assessed on this basis. In this case, and assuming, as the prosecutor submitted, that the learned magistrate had applied the maximum permissible discount, being 25 per cent for an early plea of guilty and 10 percent for all other factors, this would result in the objective seriousness of the offence and deterrent factors reflecting penalty for these factors of approximately $5,400. We are unable to comprehend how such a penalty could be characterised as anything other than manifestly inadequate in the circumstances of this case.
17 We should add that the learned magistrate made no reference to any deterrent factor other than in dealing with a submission made on behalf of the respondent that the provisions of s 10 of the Fines Act should be applied in favour of the respondent.
18 In summary, we are of the opinion that the reasons for decision of the learned magistrate do not reveal, either explicitly or by implication, that his Honour applied the relevant sentencing principles. This is an error of law. Further, the penalty was manifestly inadequate.