WorkCover Authority of New South Wales (Inspector Farrell) v MIM Transport Pty Limited - [2002] NSWIRComm 58 - NSWIRComm 2002 case summary — Zoe

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WorkCover Authority of New South Wales (Inspector Farrell) v MIM Transport Pty Limited

[2002] NSWIRComm 58

Industrial Relations Commission (NSW)|2002-07-01|Before: Walton J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2002-07-01

Before

Walton J

Source

Original judgment source is linked above.

Judgment (179 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of New South Wales (Inspector Farrell) v MIM Transport Pty Limited [2002] NSWIRComm 58 PROSECUTOR: WorkCover Authority of New South Wales (Inspector Farrell) PARTIES : DEFENDANT: MIM Transport Pty Limited FILE NUMBER: IRC 4156 of 1999 CORAM: Walton J Vice-President CATCHWORDS : Occupational health and safety - Alleged failure to ensure that persons not in employer's employment not exposed to risks to health and safety - Person killed when he was run over by a forklift - Failure to secure forklift - Failure to remove keys from ignition of forklift when not in use - Defendant's policy and procedures referred to relevant Australian Standard but did not expressly set out terms of Standard - Practice at defendant's site not in accordance with Standard - Failure in form of policy and promulgation of defendant's intention to secure forklifts - Failure to adequately enforce policy and supervise workplace - Special circumstances of the defendant on day of accident - Defendant winding up its operations from the premises on which the accident occurred - Accident occurred on last day of occupation of premises - Trading had ceased from premises prior to date of accident - Defendant contends aberrant nature of operations on day of incident ought result in lower penalty and reduction in the foreseeability of the risk - Unusual nature of operations on day relevant to assessment of objective seriousness of offence - Practice in relation to use of forklift was not however an aberration - Relevant deficits in policies and practices pre-existing winding up operations -Some limited reduction in sentence for unusual circumstances - Simple measures to avoid - Risk reasonably foreseeable - Defendant contends various entities contributed to risk - Contribution of various entities to risk and relevance to determination of appropriate penalty - Offence significant - General and specific deterrence - Subjective features of defendant taken into account in mitigation - Discount for plea of guilty - Relevance of timing of plea to assessment of discount - Plea of guilty entered at first reasonable opportunity - Penalty imposed Crimes (Sentencing Procedure) Act 1999 s22 LEGISLATION CITED : Evidence Act 1995 s191 Occupational Health and Safety Act 1983 s16 Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99 Cameron v The Queen [2002] HCA 6 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd (2001) 105 IR 348 Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Harrison's Joinery Pty Ltd v WorkCover Authority of New South Wales (Inspector Richey) (1997) 88 IR 120 Inspector William Hopkins v Michael Wherritt t/as MJ Wherritt Concrete Pumping Service [2002] NSWIRComm 16 James Moore v Vibro-Pile (Aust) Limited [1997] NSWIRComm 69 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 R v Cartwright (1989) 17 NSWLR 243 R v Dodd (1991) 57 A Crim R 349 R v Gallagher (1991) 21 NSWLR 220 CASES CITED : R v Olbrich (1999) 199 CLR 270 R v Thomson, R v Houlton (2000) 49 NSWLR 383 R v Winchester (1992) A Crim R 345 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 Warman International Limited v WorkCover Authority of NSW (1998) 80 IR 326 Wong v The Queen, Leung v The Queen (2001) 76 ALJR 79 WorkCover Authority (NSW) (Inspector Lyons) v Warman International Pty Ltd (2000) 105 IR 236 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Ian Tyler) v Sydney Electricity (Industrial Court (NSW), unreported, 23 March 1993, Hill J) WorkCover Authority of New South Wales (Inspector Riley) v Australian Grader Hire Pty Ltd (2001) 103 IR 143 WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail Authority of New South Wales [2000] NSWIRComm 179

[39]

The defendant maintained only one forklift truck on the premises. At the time of the accident, the defendant had a document known as "Forklift Operations - Policy" ([the] "said policy"). Annexed and marked Annexure "A" is a copy of the said policy. Relevantly, the said policy stated: · Training & Licensing of Forklift Operations: 1.1 No unlicensed person shall operate a forklift to carry out operational duties. … · Operations: 3.1 The operations of forklifts are to be conducted in a manner as prescribed in Australian Standard AS2359.2 "SAA Industrial Truck Code, Part 2 - Operations" and will always exceed the requirements of all relevant State and/or Federal legislation. · Safe Operating Distances: 4.1 When forklifts are loading or unloading freight all personnel are to move to a safe location/position well clear of the operating area and any potentially dangerous situations. 4.2 Forklift operators are to immediately stop work if any person is in a potentially dangerous situation/location and instruct the person to move to a safe location. 4.3 Supervisors should be consulted if doubts exist as to what is "potentially dangerous" or unsafe. · Security of Forklifts: 16.1 During "out of Hours" periods forklifts are to be locked inside the freight shed, if possible, and the keys left in the ignition. 16.2 If the forklifts cannot be secured in the freight shed, they are to be parked inside the depot and the keys removed; the keys are to be secured in a safe location. 25. Relevantly, Australian Standard 2359.2 - 1985 (which is not called up by any Act or Regulation) states: 3.1 UNATTENDED INDUSTRIAL TRUCKS Before leaving an industrial truck unattended, the operator shall observe the following precautions, (g) Turn off the power and remove the key. 26. Although he had been provided with a copy of the defendant's said policy, Harrison (the defendant's Operations Manager at the said site) states he had not received any training or instruction on how to implement and maintain the systems outlined regarding the use of forklifts in the said policy.

[146]

101 The prosecutor submitted that the leaving of the keys in an industrial truck, such as the forklift in these proceedings, whilst the vehicle was parked and unattended "gave rise to an easily identifiable risk of injury which, as in the circumstances of the present case, has resulted in significant injury to Mr Sabal". In that regard, the prosecutor relied upon the judgment of Hungerford J in James Moore v Vibro Pile. 102 In James Moore v Vibro Pile, the prosecution concerned an unauthorised person attempting to move a mobile crane which had been left unattended with keys in its ignition on the busy World Square Building construction site on Goulbourn Street in Sydney. 103 In dealing with the question of the foreseeability of the risk to safety in that matter, his Honour concluded as follows: I have concluded that the risk to safety on a building site in permitting a machine, as potentially dangerous as a crane, to be operated by other than the authorised person was reasonably foreseeable. True it is that a large and visible sign, stating "Authorised Operators Only", was in the cabin of the crane, but, it seems to me, obviously insufficient to prevent its wrongful use. It certainly was no protection against, as Mr. Harris stated, the instinctive action in moving the crane to enable him to use the blocked ramp. Even so, there is nothing in the circumstances which would suggest to me that the defendant's unsafe practice was the product of any wilful disregard for safety, but rather was only consistent with industry practice on building sites. That an accident thereby occurred in this instance, fortunately with no more extensive injuries to persons on the site other than those suffered by Mr. Harris, must be seen as compelling an urgent review of the industry practice. The penalty to be fixed in this case should, in my view, sufficiently reflect that need and act as a deterrent to others not presently minded to properly safeguard equipment against unauthorised use. 104 His Honour's observations are applicable in this matter. I accept the submission of the prosecutor that it was reasonably foreseeable that the leaving of keys required for the operation of an industrial truck, (such as the forklift) in the vehicle's ignition, whilst it was left parked and unattended during the course of or in association with the loading or unloading of trucks (prior to transport and freight of goods or equipment), may result in unauthorised persons using the vehicle with the likelihood of injury to persons, be they employees of the defendant or otherwise. In such circumstances, a truck driver or the person waiting for loading or unloading of materials before further transport may inappropriately attempt to expedite or complete loading or unloading operations by use of the forklift. That risk existed regardless of whether the defendant's business was being wound up at the time of the incident. Such a finding of foreseeability necessarily results in an increase in the seriousness of the offence: Capral Aluminium at [81] and Kembla Coal and Coke at 27. 105 As earlier mentioned, the risk to safety that gave rise to the prosecution was the failure to ensure that the key to an industrial truck was removed from the truck's ignition switch whilst the truck was parked and unattended. That risk was, in my view, an obvious one. It could have been avoided by relatively simple steps, namely, a more effective promulgation of a policy and an active enforcement and supervision of the defendant's policies (whether in the existing form or as amended to make more specific reference to the securing of forklift keys).

[168]

125 Kirby J considered the foundation of the provision of a discount for a plea of guilty as follows ([65] - [66]): This Court has recognised that a plea of guilty is ordinarily a consideration to be taken into account in mitigation of punishment and reduction of the sentence that would otherwise have been imposed on a prisoner. By reference to established authority, it is possible to elaborate this principle so that it may be understood in context and more easily applied to varying circumstances: (1) In all States and Territories, and in respect of federal offences, legislation addresses in various ways the approach to be adopted, and procedures to be followed, where a person is to be sentenced who has pleaded guilty to a criminal charge. It is the first obligation of the sentencing judge to conform to such legislation. No rule of the common law, nor any judicial practice, may contradict valid legislative prescriptions. (2) To the extent that common law sentencing principles elaborate statutory provisions, they operate within a context that recognises the need for appellate courts to respect the discretion belonging to a sentencing judge. Sentencing is not a mathematical exercise, apt to be reduced to fixed formulas and equations. Unless specifically authorised by legislation, no principle or guideline could be adopted that obliged the application of a rigid approach or an unchanging discount for a plea of guilty. In each case, it is necessary for the sentencing judge to take such a plea into account but having regard to all the circumstances. It is not the law that a sentencing judge must exercise a discretion to provide a given reduction in sentence for a plea of guilty. If a reduction is properly available, the sentencing judge may provide for it in the course of performing the complex task of imposing criminal punishment. (3) The provision of a discount for a plea of guilty must not be, or appear to be, a judicial discouragement to an accused person against exercising rights to silence conferred by law or the right to put the prosecution to the proof of criminal accusations. An accused who insists upon such rights must not be penalised. An accused must not have the sentence increased to mark the sentencing judge's conclusion that the prisoner has wasted the court's time or the public's resources by insisting on a trial. Yet, necessarily, reliance on such rights will deprive the accused of any mitigation that might otherwise have resulted from a plea of guilty. Judges have acknowledged "a certain illogicality" in these distinctions. Nevertheless, such distinctions have been endorsed by this Court. Although they have been said to border on the "metaphysical", they reflect a difference between permissible and impermissible judicial approaches. They discourage inappropriate judicial involvement in plea bargaining that could dissuade a prisoner from exercising his or her legal rights. They alert judges to the susceptibility of prisoners generally (and some categories, such as Aboriginal prisoners, in particular) to pressure to induce them, even if innocent, to plead guilty. And they restrict excessive discounts for a plea of guilty that could indeed undermine the accusatorial feature of our criminal justice system. (4) The discount for a plea of guilty to the charge brought against the accused is to be distinguished from a discount for a spontaneous and immediate expression of remorse conducive to reform and for immediate cooperation with investigating police. The latter has always been treated as deserving of such recognition in the sentencing of an accused. In many cases such feelings of repentance will continue and manifest themselves in an early plea of guilty that is adhered to at the trial. Obviously, the timing of any plea of guilty has a large bearing on the credit that should be given to the prisoner. A plea of guilty at the last moment (as on the day set down for the trial) will ordinarily attract a smaller discount in sentence than one that is entered at the first reasonable opportunity. But even a belated plea will normally attract a discount.

[169]

(5) In some of the older judicial authorities, the chief or the only basis advanced for a discount for a plea of guilty was that it evidenced contrition, repentance and remorse on the part of the prisoner. The basis for affording a discount in a sentence on this footing was the oft stated belief that such a response indicated the intention of the prisoner to reform and not to re-offend. To that extent, remorse could vindicate one of the basic purposes of the system of criminal justice. Cases do exist where, upon apprehension, a prisoner expresses genuine and believable regret. However, judges have lately expressed doubt as to the extent to which pleas of guilty really proceed from such motives. In a prisoner who has been caught red-handed, the plea of guilty may indicate regret at being caught and charged, rather than regret for involvement in the crime. In the present case, Pidgeon J correctly observed that it was difficult for the appellant to be treated as truly remorseful when a considered decision had been made by him to bring such a large quantity of drugs into Western Australia. No doubt some suppliers of prohibited drugs view themselves (as suppliers of non-prohibited but regulated drugs and formerly prohibited goods and services now do) as simply serving a market that is rendered illegal by outmoded laws. At least in this context, much of judicial writing about remorse is somewhat unrealistic. The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount. Nevertheless, where genuine remorse is established to the satisfaction of the sentencing judge, it may be in the public interest to mitigate punishment further as a reinforcement for the prisoner's resolve to avoid repetition of such conduct in the future and as an example to others. However, "remorse" is not, as such, a precondition for the provision of a discount for a plea of guilty. There are other features of the public interest that need to be given weight. The consideration of the public interest The main features of the public interest, relevant to the discount for a plea of guilty, are "purely utilitarian". They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service. Even a plea at a late stage, indeed even one offered on the day of trial or during a trial, may, to some extent, involve savings of all these kinds.

[170]

126 Justices Gaudron, Gummow and Callinan also considered the appropriate criteria and circumstances against which to assess the extent of any discount for a plea of guilty having regard to how early the plea was entered. Their Honours stated ([16] - [23]): So far as sentencing is concerned, the practice with respect to a "fast-track" plea has developed in Western Australia, consistently with the Sentencing Act 1995 (WA) ("the Sentencing Act "), in parallel with the statutorily sanctioned procedure whereby, on a plea of guilty to an indictable offence, a person may be committed to a superior court for sentence without the presentation of evidence or the filing of statements. The Sentencing Act , which sets out sentencing principles applicable to all persons convicted of an offence, specifies, in s (8) mitigating factors to be taken into account on sentence. One such factor is that the offender pleaded guilty. By s (8)(2) it is provided that "the earlier in proceedings that [the guilty plea] is made, or indication is given that it will be made, the greater the mitigation." Provision is also made in s (7) with respect to aggravating factors. The fact that the offender pleaded not guilty is expressly excluded from those aggravating factors by s (2)(a) of the Sentencing Act . It was suggested for the respondent in this Court that the full reduction for a "fast-track" plea of guilty is only available where the person concerned has pleaded guilty in circumstances relieving the prosecuting authorities of the necessity to present evidence or file statements. There would be force in that suggestion if s 8(2) of the Sentencing Act were to be read in isolation from s 7(2)(a) which gives effect to the common law rule that a person should not be penalised for exercising the right to trial. So, too, there would be force in the suggestion if the rationale for allowing a plea to be taken into account in mitigation were, to any extent, based on the objective consideration that the plea has resulted in the saving of court and prosecution time. Once it is appreciated that s 8(2) of the Sentencing Act is to be reconciled with s 7(2)(a), which gives effect to the common law requirement that an offender not be penalised for pleading not guilty, s 8(2) must be read as allowing that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice. That being so, the relevant question is not simply when the plea was entered but, as was accepted by the Court of Criminal Appeal in this matter, whether it was possible to enter a plea at an earlier time. The question whether it was possible for a person to plead at an earlier time is not one that is answered simply by looking at the charge sheet. As was acknowledged in Atholwood by Ipp J, in the Court of Criminal Appeal of Western Australia, the question is when it would first have been reasonable for a plea to be entered. In Atholwood , the person concerned had been charged with several counts. After a process of negotiation, the prosecution withdrew a number of the charges and the offender pleaded guilty to one of the remaining charges. Ipp J said this: "It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted. Regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him. During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt on other counts ... to persist in a not guilty plea to all counts. In such circumstances it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity." The remarks of Ipp J in Atholwood reflect what has earlier been said in relation to the rationale for the rule that a plea may be taken into account in mitigation, namely, that, leaving aside remorse and acceptance of responsibility, the operative consideration is willingness to facilitate the course of justice. And once that rationale is accepted, the respondent's suggestion that the extent to which a plea of guilty may be taken into account in mitigation may vary according to whether it was or was not a "fast-track" plea must be rejected. Rather, the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity. First reasonable opportunity Although the original charge specified the elements of the offence charged, it was not reasonable to expect the appellant to plead to an offence which wrongly particularised the substance to which the charge related. And that is so even if the identity of the substance would not have affected sentence. In this regard, it should not be assumed that the appellant knew that the sentence would be the same regardless of the nature of the substance.

WorkCover Authority of New South Wales (Inspector Farrell) v MIM Transport Pty Limited

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