WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd

CATCHWORDS : Appeal - Occupational Health and Safety - Appeal from decision where defendant dealt with pursuant to s 556A of the Crimes Act 1900 - Principles applicable to prosecution appeal - Limited role for s 556A in occupational health and safety prosecutions - Objective circumstances of offence - Strict liability - Double jeopardy - Subjective circumstances of defendant - Appeal upheld - Fine imposed - Costs.

Crimes Act 1900 s 556A Crimes Act 1914 (Cth) s 19B Crimes (Sentencing Procedue) Act 1999 s 10 LEGISLATION CITED : Criminal Appeal Act 1912 s 2 s 5D Industrial Relations Act 1996 s 167(1) s 196 Occupational Health and Safety Act 1983 s 15 s 47

Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Comptroller-General of Customs v D'Aquino Bros Pty Ltd (1996) 135 ALR 649 Craven v The King (1936) 55 CLR 509 Davies v Prospect Electricity (unreported, Fisher CJ, 9 November 1992, Matter No 91/747) Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Griffiths v The Queen (1977) 137 CLR 293 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 McMartin v The Broken Hill Proprietary Co Ltd (unreported, Grove J, Supreme Court, 9 March 1988) Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 CASES CITED : R v Allpass (1993) 72 A Crim R 561 R v On Clinic Australia Pty Ltd (unreported, NSW CCA, 6 November 1996) R v Seung Ho Bang (unreported, NSW CCA, 1 September 1992) R v Slattery (1996) 90 A Crim R 519 Shultz v Tamworth City Council (1995) 58 IR 221 Wong v Melinda Group Pty Ltd (1998) 82 IR 118 WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Ltd (1999) 92 IR 392 WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales v Ecolab Pty Ltd (1999) 90 IR 413 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (unreported, Walton J, Vice-President, 19 October 1999, Matter Nos IRC97/4332-4333) WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting (unreported, Bauer J, 13 April 1995, Matter No CT94/1037) WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 HEARING DATES: 11/26/1999; 12/23/1999 DATE OF JUDGMENT: 08/08/2000

APPELLANT Mr S Crawshaw SC with Mr B G Docking of Counsel Solicitor: Mr G McCann WorkCover Authority of New South Wales RESPONDENT Mr B D Hodgkinson of Counsel LEGAL REPRESENTATIVES: Solicitor: Mr J J Catanzariti Clayiton Utz INTERVENOR The Hon. Mr J W Shaw QC and Mr D J Brezniak of Counsel Solicitor: Mr I V Knight, Crown Solicitor (Messrs I Hill and G Demetriou)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President HUNGERFORD J Tuesday, 8 August 2000

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR HOPKINS) v PROFAB INDUSTRIES PTY LIMITED.

Appeal from a decision of Mr Justice Peterson given on 24 June 1999 in Matter No IRC 3000 of 1998. JUDGMENT OF THE COURT

1 This is a prosecution appeal pursuant to s 196 of the Industrial Relations Act 1996 and s 5D of the Criminal Appeal Act 1912 by Profab Industries Pty Limited against the judgment of Peterson J delivered on 24 June 1999 in sentencing proceedings involving the respondent. The proceedings before his Honour were instituted by William Hopkins, an inspector of the WorkCover Authority of New South Wales, and alleged an offence under s 15(1) of the Occupational Health and Safety Act 1983 in respect of the alleged failure of the respondent to ensure the health, safety and welfare at work of all its employees and, in particular, its failure to maintain a system of work that was safe. The respondent entered a plea of guilty and Peterson J held that the circumstances were appropriate for the application of s 556A(1)(b) of the Crimes Act 1900 by dismissing the charge without entering a conviction. 2 The question raised by the appeal is whether Peterson J erred in applying s 556A(1)(b) of the Crimes Act 1900. Mr S Crawshaw SC and Mr B G Docking of counsel appeared for the appellant and Mr B D Hodgkinson of counsel appeared for the respondent. The Honourable J W Shaw QC, Attorney General and Minister for Industrial Relations, also appeared pursuant to s 167(1) of the Industrial Relations Act, and Mr D J Brezniak of counsel appeared with him. The decision appealed against 3 The original charge alleged a failure to ensure the health, safety and welfare at work of all of its employees, in particular Jae-Wan Chang, in failing to provide and maintain systems of work, to wit, systems in welding steel fabrications that were safe and without risk to health, contrary to s 15(1) of the Occupational Health and Safety Act. The charge was originally particularised as a failure to "provide and maintain" and was amended to: The defendant failed to maintain systems of securing steel truss fabrications whilst undertaking welding work on the said date upon the steel truss. 4 Peterson J summarised the factual circumstances of the matter in this way: On 14 July 1996 an employee of the defendant was engaged in the welding of a steel truss beam of approximately 12 metres length and 2 metres height made up of two horizontal steel beams, one 200 universal column and one 150 universal column connected by rectangled steel pipework which had been welded together on a temporary basis. The employee concerned was engaged in the final welding of the truss beam, it standing on the workshop floor, resting on the 150 universal column, with the heavier column at the top, thereby being "top heavy". While attempting to attach a chain to the top of the beam, after completing the welding, so that the truss could be lifted away by crane, the truss toppled causing the employee, who was standing on a bed of steel supports, to fall, striking his head on a support and suffering injuries which were fatal. 5 In relation to the provision of a safe system of work his Honour said: Here the system of work adopted by the company was safe. It involved either welding the trusses while lying, on the flat, upon a bed of steel supports (referred to earlier by me as a fixture upon which the deceased employee was standing) or in the vertical. The choice was the employee's. When vertical the truss was to be either supported by remaining chained to the crane or by having steel supports welded to it. 6 The deceased worker had been employed by the defendant for eight years and had been employed in a team which had done between 35 and 40 of the particular truss types involved in the incident. A senior production supervisor was aware on the day of the incident that the deceased was welding while the truss was in the upright position as he had seen the truss so positioned. However, as recorded in the agreed statement of facts, he did not see whether or not it was braced or supported by the crane because he was not in the area of the job that morning. Also on the day of the incident, two fellow employees had spoken to the deceased about the dangers of standing the truss up without support. 7 In considering the nature of the offence his Honour held that: ... the nature and quality of this offence is at the lower end. The employee concerned had been the subject of a serious approach to the institution of safe working practices both by design and instruction. He was a tradesman/welder with the capacity to utilise the 5 tonne overhead crane to which he was attempting to attach the truss when it fell. He had been warned by two neighbouring employees also working upon beams of this type that his approach was unsafe and should be altered. With this he agreed, yet he did nothing and thus for a period of between 20 and 30 minutes he created a risk which ultimately exposed him to serious danger. The defendant's culpability in that context, is very low indeed, given that it is confined to a short timeframe in relation to an employee of some eight years' employment with the company who was obviously aware of his own failure in not employing the defendant's system of work. In practical terms the failure of the defendant may be seen as one of supervision. However, there are also practical limits to the ability to supervise experienced tradesmen in their work. This case is an illustration of that difficulty. 8 Peterson J then considered the subjective features of the offence, as follows: The defendant's history of no prior convictions, its generally meticulous approach to safety, for a reasonably small employer in a relatively dangerous industry, its co-operation with authorities, its care and concern for employees who were emotionally affected by the accident, its grant of time off for those employees together with counselling, all militate in the defendant's favour.

and concluded: It is true that the employee was not under supervision but as I have observed, constant supervision of a properly qualified employee, who has adequate training in the context of a system which is designed to be and is accepted to be, if properly applied, a safe system, cannot be constant. There is, in my view, no subjective element in this case which would warrant the imposition of a penalty. The only objective feature which requires consideration is the notion of the imposition of a penalty to act as a general deterrent. While that is an obvious feature of assessment of penalty in cases generally, there seems to be little justification for applying that consideration alone to the defendant in this case. The defendant's performance has in general been an exemplar of the sort of the approach which employers, particularly in the building industry, should take to employee safety . As Mr Hodgkinson submitted, the defendant might have argued that the defence provided by s 53(b) of the OHS Act was available in the circumstances, but it had not chosen to do that, rather accepting that it should bear responsibility for the breach. I commend that approach; however, I do not consider that by so choosing the imposition of a penalty is, or should be, a fait accompli. I am not able to ascertain any good reason why the defendant should be penalised in this matter. I find the offence proved but proceed to discharge the defendant without conviction pursuant to s 556A of the Crimes Act 1900. The defendant shall pay the prosecutor's costs of the proceedings as agreed or as assessed. (emphasis added) Prosecution appeals under the Occupational Health and Safety Act 9 The appellant's submissions rely upon the following cases as providing the principles relating to the approach of an appellate court to an appeal against a sentence: Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99; Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312; R v Allpass (1993) 72 A Crim R 561 at 562 and Griffiths v The Queen (1977) 137 CLR 293 at 310. 10 The respondent also relies on R v Allpass and Griffiths v The Queen as to the nature of the appeal. The respondent emphasises that the Court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that an error has been shown in the original sentencing process: Allpass at 562 and Craven v The King (1936) 55 CLR 509 at 519. 11 The statutory basis for the present appeal is s 196 of the Industrial Relations Act and s 5D of the Criminal Appeal Act which respectively and relevantly provide: 196 Appeals from and references by members of Commission in criminal proceedings (1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission. (2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912: (a) to the Court of Criminal Appeal - is taken to be a reference to a Full Bench of the Commission in Court Session, and (b) to the Supreme Court - is taken to be a reference to the Commission in Court Session, and (c) to rules - is taken to be a reference to rules of the Commission, and (d) to the Attorney General - is taken to include a reference to the Minister, and (e) to the Director of Public Prosecutions - is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and (f) to the registrar - is taken to be a reference to the Industrial Registrar. (4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs. Appeal by Crown against sentence 5D (1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper. (1A) …

(2) In this section, a reference to proceedings to which the Crown was a party includes a reference to proceedings instituted by or on behalf of: (a) the Crown; or (b) an authority within the meaning of the Public Finance and Audit Act 1983,

or by an officer or employee of such an authority acting in the course of his or her employment.

(3) This section does not apply to an appeal referred to in section 5DA. 12 The word "sentence" is defined in s 2(1) of the Criminal Appeal Act, and s 2(2) provides that "… for the purposes only of this Act, unless the context or subject-matter otherwise requires or indicates … an order made under section 556A(1) of the Crimes Act 1900 with respect to a person tried for an offence … shall be deemed to be a sentence passed or pronounced upon the conviction of that person for the offence for which that person was tried and that person shall be deemed to have been convicted of that offence." 13 A Full Bench of the Commission in Court Session has recently considered the question of the nature of prosecution appeals in WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Limited (1999) 92 IR 392. Although the Court was divided in its decision in that matter it is unnecessary to explore or resolve the different approaches for the disposition of this appeal. All members of the Court held that the relevant principles for such appeals are those referred to by Barwick CJ in Griffiths v The Queen at 310: On my view of the proper meaning of s 5D in the context of the Criminal Appeal Act , an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. 14 Also pertinent for the present appeal is the Court of Criminal Appeal judgment in R v Allpass (where the Court was comprised of Gleeson CJ, Hunt CJ at CL and McInerney J). The principles set out in R v Allpass at 562 - 563 are in these terms:

1. A Court of Criminal Appeal which is dealing with an appeal against sentence does not simply embark upon the task of sentencing afresh, substituting its own opinion for that of the sentencing judge, and increasing the sentence if it considers it to be inadequate, or decreasing the sentence if it considers it to be excessive. An appellate court will only interfere if it is demonstrated that the sentencing judge fell into material error of law or fact. Such error may appear in the reasons given by the sentencing judge, or the sentence itself may be manifestly excessive or inadequate, and thus disclose error. However, the facts and circumstances of individual cases are often such that sentencing judges have a substantial discretion, and the appellate court does not intervene simply upon the basis that the members of that court would have exercised their discretion differently from the judge at first instance.
2. Crown appeals against sentence are relatively infrequent. The High Court has said that such appeals "should be a rarity": Griffiths v The Queen (1977) 137 CLR 293 at 310; Malvaso v The Queen (1989) 168 CLR 227 at 234; 43 A Crim R 451 at 456. One reason for this is the element of double jeopardy that is involved in such appeals. Rules designed to safeguard against double jeopardy are deeply embedded in our system of criminal justice: eg R v Dodd (1991) 56 A Crim R 451; Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502. Thus, for example, there is usually no right of Crown appeal against an acquittal at a trial.
3. If a Crown appeal against sentence is successful, and the appellate court resentences the respondent, it does so in the light of all the facts and circumstances as at the time of resentencing. Events which have occurred after the original sentencing may be relevant.
4. When, in response to a Crown appeal, the court decides to resentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.
5. An appellate court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection the conduct of the Crown at the original sentencing proceedings may be a matter of significance. Section 556A of the Crimes Act 1900 15 The appellant and the Minister both submit that this was not an appropriate case for the application of s 556A (1) of the Crimes Act 1900. That section relevantly provides: 556A. (1) Where any person is charged before any court with an offence punishable by such court, and the court thinks that the charge is proved, but is of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, or to any other matter which the court thinks it proper to consider, it is inexpedient to inflict any punishment, or any other than a nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to conviction, make an order either: (a) dismissing the charge; or (b) discharging the offender conditionally on his entering into a recognizance, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as may be specified in the order. 16 The Minister's submissions as to what was said to be the inappropriate exercise of discretion under that provision included: 2. The power of the courts to punish employers in respect of accidents or incidents that have actually occurred has particular consequences for legislation of this kind because the legislation is not limited to providing punishment in those kind of situations only. The legislation requires an employer to look ahead and to seek out and foresee dangers even when those dangers have not crystallised to an incident or accident. See for example the words of Hill J in Workcover Authority of New South Wales v Atco Controls Pty Limited (1998) 82 IR 80 at 85.

3. The imposition of penalty, by the court, permits the legislation to have effect in deterring others from failing to have regard to the risks, failing to provide careful protection to the safety of employees at work and failing to allocate sufficient resources to avoid failures leading, too often, to avoidable lifelong injuries, incapacity and sometimes fatalities.

4. The Court in having regard to the objective seriousness of the offence must, it is submitted, take into account (a) the obviousness, the foreseeability of the risk involved, (b) the consequences of the default, omission, offence ie an injury, a serious injury, a death, and/or the great risk of these. (c) steps or precautions which could be taken or could have been taken to avoid the accident or incident. Sometimes elementary foresight will avoid a terrible consequence.

5. It is hard to foresee a circumstance of foreseeable incident leading to death which might properly be characterised as an offence of a "trivial nature" (see s.556A, Crimes Act ) or as one involving "extenuating circumstances" (see s.556A Crimes Act ) or as one involving a decision that it is "inexpedient to inflict other than nominal punishment" (see s.556A Crimes Act ). 17 The Minister also relied upon the fact that the maximum penalty for an offence under s 15 of the Occupational Health and Safety Act 1983 was increased in 1996 to an amount of $500,000, the increase in maximum penalty being legislated in order that the community concern at the seriousness of particular offences could be reflected by a penalty reflecting that seriousness. 18 In support of this latter submission, reliance was placed on the judgments in Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209, and R v Slattery (1996) 90 A Crim R 519 at 524 where the following principle was laid down: The action of the legislature in almost tripling the maximum sentence for a particular type of offence must be taken by the courts as reflecting community standards in relation to the seriousness of that offence and the courts are required to give effect to the obvious intention of the legislature that the existing sentencing patterns are to move in a sharply upward manner: see Hartikainen (unreported, Court of Criminal Appeal, 8 June 1993) at 2. 19 There is now clear and long-standing authority that in proceedings before the Commission in Court Session (or its predecessors) the ameliorative provisions of s 556A will be available in only very limited circumstances. As Fisher CJ observed in Schultz v Tamworth City Council (1995) 58 IR 221 at 229: The use of s 556A of the Crimes Act , which in the light of the strongly defined duty of care, clear public policy considerations in the Act and major penalties provided, ought to be rare indeed and is not appropriate in the presence of long-standing adverse work practices. 20 Wright J, President, recently considered the application of s 556A to a prosecution under s 15(1) in WorkCover Authority of New South Wales v Ecolab Pty Limited (1999) 90 IR 413 at 430. In declining to apply the section his Honour noted the limited utility of comparing cases which have applied s 556A: I do not intend to discuss the decisions of the Chief Industrial Magistrate which have been relied upon by the defendant. In my view, those matters turn purely upon their own facts and by virtue of the nature of the power that is being exercised when consideration is being given to the application of the ameliorative effects of s 556A, each matter has to be considered in relation to its own particular circumstances and an analysis of earlier decisions and their particular approach to the discretion arising under the section are of limited value. (In any event, as observed by the prosecutor's counsel, a number of those matters involved significant contributory negligence by the injured worker. That is not the case here.) However, I consider that the judgment of the Chief Judge of the then Industrial Court, discussing the appropriateness or otherwise of resort to s 556A is in a different situation. In Shultz v Tamworth City Council (1995) 58 IR 221 at 229, Fisher CJ stated: The use of s 556A of the Crimes Act 1900, which in the light of the strongly defined duty of care, clear public policy considerations in the Act and major penalties provided, ought to be rare indeed and is not appropriate in the presence of long-standing adverse work practices.

Although I accept that the benefit of the section is available in proceedings under the Act, nevertheless I also consider that the policy approach discussed in his Honour's judgment is pertinent and appropriate. 21 The judgment of the Full Court (Fisher CJ, Bauer and Cullen JJ) of the former Industrial Court in WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at 101, is clear authority for the propositions that the discretion under s 556A would rarely be available in significant offences against the legislation and any application for the benefit of the provision should be rigorously tested. 22 The most recent case in this jurisdiction where a matter was dealt with pursuant to s 556A is that heard by Hungerford J in Wong v Melinda Group Pty Limited (1998) 82 IR 118 at 133. The unusual circumstances of the case and the reservation expressed by his Honour demonstrate both the limited nature of cases where s 556A will be appropriate and the reluctance in this jurisdiction to invoke it: I wavered during the hearing, as debated with Mr. Goot , whether this case was appropriate for the application of s.556A. However, on balance, and after reviewing the evidence, I am comfortably satisfied it is. In all the circumstances, I cannot conceive it to be just for the defendant to suffer a criminal record for what occurred.

The defendant has no prior convictions and it pleaded guilty to the present charge in a timely way. Its attention to safety considerations in respect of the King Street building over very many years was well established and, in particular, its actions in arranging an appropriate and safe system for the external cleaning of the building's windows, including the approval of the WorkCover Authority, is clear. The real and effective culpability for the tragic accident which occurred to Mr. Child was that of a tenant, Mr. Timmins, and of Mr. Child's employer, Towabug Pty. Limited. The defendant was simply unaware of the arrangements for the work to be performed by Mr. Child and, in view of its policy on window cleaning and the steps for a safe system, could not reasonably have foreseen the accident which occurred. Indeed, the defendant engaged a consultant, Alan Keevers Enterprises Pty Limited, to provide building services, necessarily including safety arrangements, for the King Street property and that corporation must bear a degree of responsibility for the incident. The defendant, in my view, has been subjected to extenuating circumstances over which it had no direct control. It follows, in my view, that it is inexpedient to inflict any punishment on the defendant. I propose to apply the provisions of s.556A of the Crimes Act by dismissing the charge. 23 The judgment in Wong v Melinda Group Pty Limited is also important for another reason. It exemplifies the rare cases in this Court where s 556A might be applied in occupational health and safety prosecutions. Although the exercise of prosecutorial discretion determines the jurisdiction in which proceedings are commenced: see s 47 of the Occupational Health and Safety Act, experience indicates that the most serious prosecutions are usually commenced in this Court. 24 Accordingly, when an application is made to a judge of this Court in sentencing proceedings under the Occupational Health and Safety Act for the exercise of the discretion under s 556A, that will invariably occur in relation to a serious breach of the Act. The purpose of the statute, which is well known and often referred to in judgments of this Court, may be referred to as one for the benefit of the public generally and particularly employees at work to prevent, deter and punish breaches of health and safety requirements. Although the discretion under s 556A is wide, it is not unfettered; rather, it is limited initially to a series of defined circumstances and then extended to "any other matter which the court considers it proper to consider". 25 The extent of reasons for decision that a judge is required to give varies. For example as observed in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 478: The extent of the reasons required will vary in light of the nature of the proceedings and the nature of the matter being decided (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271 - 273 per Mahoney JA and at 280 - 281 per McHugh JA and Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182 - 183 per Handley JA). In sentencing, the purpose of reasons is to make clear why the particular offence warrants the sentence imposed and it is not necessary to give detailed reasons as to all of the factors and circumstances which led to a particular conclusion: see J Robins Pty Ltd v WorkCover Authority of New South Wales (1998) 83 IR 338 at 340. 26 Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s 556A (cf s 10 of the Crimes (Sentencing Procedure) Act 1999) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission. The obligation is increased rather then diminished in a situation, such as the present, where the exercise of the discretion is not sought by the defendant but raised by the Court. 27 In deference to counsel who appeared for the defendant at first instance and the respondent on appeal, we set out the following extract from the record at first instance: HODGKINSON: … This was not a series of little risks adding up to a big risk. We would also ask your Honour to note the significance of bringing to the court a charge of maintenance only. In this case we submit that was a very appropriate course for the prosecution to adopt. It involved the prosecutor making no concession beyond that it was clearly established in the investigation and that is there was a system. So it was not a question of provision, but here your Honour has the prosecutor properly determining it was just a maintenance matter. In the scheme of matters coming to this court that puts it in a small category. Where charges under s 15 are brought in this court the most usual in terms of system is a combination, a failure to provide or maintain, not just a failure to maintain and in that sense it puts this case in a particular category which is right down in the lowest end of seriousness, the lowest end of categories of cases your Honour would see.

When one looks at that case and one sees those particular, it is no wonder that his Honour in that case took the ultimate approach which he did to penalty. It is a completely different matter to the one before your Honour. All of those additional particulars are compounding factors that are very relevant factors to the considerations of the nature and quality of the offence that Marks J was [in WorkCover Authority of New South Wales (Inspector Cameron) v Linatex Australia Pty Ltd (unreported, Marks J, Matter No. CT94/1252, 27 April 1995)] dealing with, and they draw the very significant difference between that matter and this matter because none of those are here in this matter.

HIS HONOUR: The range available to his Honour is the same as here, I think?

HODGKINSON: No, it was a different matter. That is a 1993 instance so it was $250,000 maximum. In this case, as it is a post-February 1996 accident or incident, it is a $500,000 maximum. In this case, as I have said, we ask your Honour to consider the issue of culpability because we think it is very important in this matter and it really puts in context the breach of the defendant itself and then we ask your Honour to take into account the very many mitigating factors which have been addressed by Mr Shume and introduced in the evidence.

HIS HONOUR: I do recall in some other matter some years ago you made use of the phrase "The very lowest end of the scale", as it were, later to find or particularised in s 556A, is that the sense you are putting it today?

HODGKINSON: I cannot tell your Honour the name of the matter but I recall vividly that proposition. I think I answered it in the same way - s 556A is a discretionary matter available in any sentencing matter.

HIS HONOUR: I understand that but as I recall, that matter was in another court room and the issue arose where you in some way had adverted to that as a possibility and you relied on your expression of "very lowest" or "the lowest end of the scale". Is that the sense in which you are putting it today?

HODGKINSON: We put it in the sense of not excluding it. Your Honour has it available in this matter. We are not impertinent enough to impose upon your Honour a particular view because to come to a view that s 556A is appropriate one has to consider the judgments of this court and its predecessors. Such an approach would be used only in a very exceptional or unusual circumstances, or in circumstances very infrequently, but we accepted that and we do so knowing there are many factors here to be taken into consideration which your Honour has to take into account. We say ultimately, whether your Honour comes to that conclusion, what your Honour won't come to is that the penalty ought be imposed as for this matter when all of those factors have been considered as it is at the very lowest end of the scale. If your Honour imposes a monetary penalty it would not be in a very substantial sum, it would be in a small sum. We identify by using those words a range and we do it because we do not suggest that every factor points your Honour in a particular way. What your Honour in this case has to do is to weigh up all the factors and when you do we say the range, the real range for this particular case is a very small range from 556A up to a small monetary fine.

HIS HONOUR: I would assume your submission on range included that possibility. I propose to consider my judgment. 28 Having carefully considered that part of the record we conclude that no submission was made, nor would such a submission have been made, seeking the exercise of the discretion under s 556A but for the intervention of the Court. The submissions of counsel for the defendant were entirely appropriate, accepting as they did that the discretion would unlikely be available in the present case. That circumstance alone may not attract appellate intervention. However, that circumstance coupled with the failure to provide adequate reasons for the exercise of the discretion requires appellate intervention. 29 We have, in paragraph 8, earlier referred to that part of the judgment at first instance where the basis for decision is set out. None of the matters referred to, in our respectful view, provide a basis for the exercise of the discretion nor reasons for that exercise. None of the particular criteria set out in the section are referred to. There are also some propositions or formulations which reveal error. These include reference to "no subjective element in this case which would warrant the imposition of a penalty" and the treating as of little significance the consideration of general deterrence in occupational health and safety offences. His Honour's reference to the "only objective feature which requires consideration is the notion of the imposition of penalty to act as a general deterrent" significantly overlooks the objective feature of the very large maximum penalty for the offence and the significance of the maximum penalty for sentencing purposes as referred to in, for example, Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 689. Finally, the reference "I am not able to ascertain any good reason why the defendant should be penalised in this matter" gives little or no weight to the strict nature of the liability under s 15(1) of the Occupational Health and Safety Act and the authorities as to the effect of that strict liability on culpability: WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. Objective seriousness of the offence 30 The appellant submits that the sentence imposed by Peterson J does not reflect the objective seriousness of the offence and as a result is manifestly inadequate. The core of the appellant's claim is that Peterson J held: The only objective feature which requires consideration is the notion of the imposition of a penalty to act as a general deterrent. 31 The appropriate principles to be applied when approaching sentencing in cases of this nature were recently considered by a Full Bench of this Court in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474 - 475 in these terms: However, in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence": see Independent Cargo & Wool Services Pty Limited v Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, CT92/1041, 10 March 1994) at p4; Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992) at p9; Inspector Mauger v P Ward Civil Engineering Pty Limited (unreported, Fisher CJ, CT94/1212, 21 December 1995) at p8 - 9. It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence. In WorkCover Authority of NSW v Waugh (1995) 59 IR 89 at 96, the Full Bench of the then Industrial Court cited with approval a passage from the judgment of Fisher CJ in Haynes v James Glass and Aluminium Pty Limited (unreported, CT91/772-775, 20 May 1994) where his Honour said: "I consider that the primary factors to be looked at in relation to penalty in matters such as this are the nature and quality of complaint made out. These need not necessarily reflect death or injury actually occurring as a result of the failures, though all too commonly those circumstances are met with. It is plain from the history of this legislation that Parliament has reflected its increasing concern at the lack of safety in some aspects of industrial operation by markedly restating the duty of care and the penalties that were provided for breaches of the industrial Occupational Health and Safety Act , 1983. Again in 1991 by amendment penalties in relation to a corporation were raised from $100,000 to $250,000 and in the case of individuals, from $10,000 to $25,000. While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce."

These comments were applied by Wright J, President, in WorkCover Authority of NSW v Albury City Council (unreported, IRC97/6538, 28 April 1999) at p26 - 29. His Honour considered the decision of the Full Bench in Waugh in light of subsequent authority, particularly the comment by Hungerford J in Fisher v Samaras Industrial Pty Limited (1996) 82 IR 384 at 388-389 that a penalty should not be "oppressively high" and the reference in Warman ((1998) 80 IR 326 at 340) to a "substantial reduction in the sentence" flowing from an early plea of guilty and/or co-operation with the authorities. His Honour concluded that he did not consider these comments were intended to qualify the approach to balancing objective and subjective factors expressed in Waugh .

This approach was also taken by Hungerford J in Dowling v Overtop Pty Limited (1998) 86 IR 319 where his Honour said (at 333): "In addressing the approach to penalty under the Occupational Health and Safety Act, a Full Bench ( Fisher P., Peterson and Schmidt JJ.) of the Court succinctly put it in the following way in Warman International Limited v. WorkCover Authority of New South Wales [(1998) 80 IR 326 at 339]: 'The approach to the determination of penalty in cases such as these is now well settled. The penalty must reflect the nature and quality of the particular offence; the level of penalty must, on the one hand, compel attention to occupational health and safety risks in order to ensure that persons are not exposed to such risks at their workplaces but, on the other, must not be oppressively high.' Given, as I have found, the serious nature of this offence, I accept the submission by Mr. Docking that the subjective considerations going to mitigation are necessarily subsidiary to the objective factors of the nature and quality of the offence."

In Ferguson v Nelmac Pty Limited (unreported, Wright J, President, IRC97/3421-3423, 24 May 1999) at 43, his Honour observed in relation to the sentence to be imposed: "When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence."

As we have observed, the primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. While the court must keep in mind not only facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender (see Camilleri's Stock Feeds Pty Limited v Environmental Protection Authority (1993) 32 NSWLR 683 at 698 per Kirby P), the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence. Appellant's submissions on gravity of the offence 32 In light of our conclusion in this matter it is useful to refer in some detail to the submissions of both parties as to the gravity of the offence. The appellant's detailed submissions as to this issue were in the following terms: (25) An objective consideration calling for a serious penalty was the nature of the offence in that it involved obvious risks: WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Waugh & Thora Saw Milling Pty Ltd (1995) 59 IR 89 at 97 (Fisher CJ, Bauer and Cullen JJ) citing with approval the Full Industrial Court in Inspector Hannah v Wonar Pty Limited, unreported, 30 June 1992, (Fisher CJ, Glynn and Cullen JJ), at 8 - 9. (26) The degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the respondent: Department of Mineral Resources of New South Wales v Kembla Coal and Coke Pty Ltd, unreported, 16 August 1999, Walton VP, at 37.7. This is tested objectively by asking whether or not the ordinary jury person or reasonable observer would have foreseen the risk: at 38.1. (27) In the present case, the ordinary jury person or reasonable observer would have foreseen the risk and there were obvious risks arising from welding the truss involved in the upright position. As seen above, the truss on which welding had been performed was estimated to weigh 2.6 tonnes, was 12.487 metres long and when upright 2.322 metres high. It was located in an upright position as opposed to a flat position. The deceased needed to stand on supports at a height of 755 mm to work on the truss and to later secure the chain. The welder was exposed to foreseeable and obvious risks of being hit by the large, heavy and unstable object, and also being knocked to the ground of the factory. (28) His Honour found the respondent's culpability to be very low indeed because the deceased was warned by two fellow workers that his approach was unsafe and should be altered, and also he was aware of his own failure in not employing the defendant's system of work ... (29) But the very purpose of the OHS Act was to introduce (and it is interpolated maintain) safe working practices so that accidents are prevented and it was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks: Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting, unreported, 13 April 1995, at 17 - 18.

Appropriate measures were not taken (30) It will be a serious offence where there is an obvious risk or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: Lawrenson Diecasting Pty Limited at 26.6. See also as going to the objective seriousness of the offence the availability of simple and straightforward steps to remedy the defects in the system in WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Limited, unreported, Schmidt J, 25 February 1994, at 12.2. (31) In the present case, the appropriate measures, which were not taken, even though such measures were available and feasible, included: (a) Maintaining the respondent's system or normal practice of this type of truss being welded whilst laying flat on the support beams or stands. (b) The supervisor preventing the deceased from welding this particular truss in the upright position when he had seen before the incident that this was the position of the particular truss. Additionally, as seen below, the respondent's supervisor should have been proactive in response to what was observed on the day of the incident. Thus, the employer should have been on the offensive to search for, detect and eliminate both the truss being upright in contravention of the respondent's system of work and also the lack of support for the truss in the upright position. (c) Keeping the crane attached to the truss at all times or having the braces welded to the support beams during welding. (d) Introducing the documented procedure for welding the trusses to ensure it was done in a safe manner. In the Agreed Statement of Facts this was recognised as one of the "contributing factors". According to the statement of Mr Conacher dated 16 March 1999, after the accident, "A written work procedure was prepared and staff were again inducted on the safe handling of large fabrications on July 16 1996" … (32) His Honour found that: In practical terms the failure of the defendant may be seen as one of supervision. However, there are also practical limits to the ability to supervise experienced tradesman in their work. This case is an illustration of that difficulty …

And later on It is true that the employee was not under supervision but as I have observed constant supervision of a properly qualified employee, who has adequate training in the context of a system which is designed to be and is accepted to be, if properly applied, a safe system, cannot be constant … (33) It is submitted that these statements by his Honour have wrongly assessed features of the evidence as follows: (a) Mr Conacher's explanation for why there was no written welding procedures included "Both the foreman (or supervisor), Brett Thompson and the Manager, Rick Samphier, spend a large amount of time on the workshop floor communicating with them explaining to them the proper way to perform the tasks" … (b) Mr Conacher's explanation as to the way the respondent operated for occupational health and safety was " … it's everbody's responsibility. I know it sounds a bit like a motherhood thing but everybody from the office down to the youngest apprentice has a responsibility and we encourage them to look for potential problems and that can be a cut electrical lead, it can be a broken guard on a cropper, it can be anything" … (c) Mr Thompson actually saw the truss in the upright position on the shopfront floor before the incident. (d) The respondent employer, through its supervisor Mr Thompson, failed to investigate why the truss was in the upright position and to ensure the employer's system was maintained in circumstances where the Agreed Statement of Facts included: (i) Mr Conacher: (1) "A system was in place that a truss was to be welded whilst laying it flat on the support beam." See also "the others had been welded down" … (2) The welding was done on the flat as it did not constitute a risk in the flat position. (ii) Mr Samphier had never seen the type of truss being welded by the deceased in the vertical (or upright) position. There had been an instruction to assemble the trusses on the support beams and weld them in the flat position. (iii) Mr Thompson: (1) It was not normal to weld the type of truss that the deceased was working on at the time of the incident in the upright position. (2) On a few occasions smaller trusses at the start of the job were welded upright, but they were braced during welding. (34) Thus, the only reasonable finding of fact is that in a 20 to 30 minute period there was an actual failure by the respondent's supervisor to maintain the system of welding the type of truss flat where this employer system was aimed at having no risks. The employer's supervisor was well aware of the risk presented by the truss being in the upright position and must have known this was work being performed contrary to the employer's system and instructions of having this type of truss flat. Additionally, or on the alternative, the supervisor should have checked how this particular truss was actually secured in the upright position in which he observed it to be positioned. A consideration of the factual circumstances demonstrates the system of work maintained at the time was inherently unsafe.

An employer should be proactive and not re-active (35) The terms of s 15 imposes an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or where experience indicates that a risk of safety has arisen and requires remedy. S 15 limits considerably the ability to rely upon previous experience as to either liability or culpability: Nelmac Pty Ltd at 42. The ss 15 and 16 obligations mean it essential that an employer should be proactive and not re-active; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare: Nelmac Pty Ltd at 42 - 43 where reference was made to Hill J in WorkCover Authority of NSW v ATCO Controls Pty Ltd (1998) 82 IR 80 at 85. The Act requires a pro-active approach on the part of an employer to safety particularly in an industry which is very dangerous or perhaps even inherently unsafe: 42.8. Respondent's submissions in relation to gravity of the offence 33 In response to those submissions, the respondent put forward the following arguments: Nature of the Offence

1. As I earlier pointed out there are a number of factors that are important in determining the nature of this particular offence. In undertaking that determination it is necessary to recall that this matter is based upon a failure to maintain a safe system of work. It is also important to recognise that the system for the carrying out of the work introduced by the Respondent was considered by all concerned including the Prosecution to be a safe one.
2. The experience and training of Mr Chang were relevant to the performance of the tasks in which he was involved.
3. His Honour has dealt with the question of supervision, … There was never a suggestion in the Prosecutor's case below that there was required additional supervision (and the charge does not reflect such a requirement) nor was there a suggestion that other persons were required in order to perform the tasks expected of Mr Chang given his training and experience. The degree of forseeability then must be seen in the time frame of 20 to 30 minutes during which time Mr Chang departed from the recognised safe system of work. Also during that time Mr Chang was advised to adopt measures that would have rendered the task which he was performing safe.
4. The question of the degree of forseeability is to be considered objectively in the hands of the Respondent. In the circumstances of this case as found by His Honour the supervision of a qualified and trained tradesman "cannot be constant", ...
5. The very short time frame in which this circumstance arose not as a consequence of any action on the part of the Respondent but as a consequence of the actions of Mr Chang is an important matter in determining the gravity of the offence viewed objectively.
6. The purpose of the OH&SA is served by recognising that as in this case employers who do adopt processes and systems that are designed to ensure safety at work are in fact addressing appropriately the Act's requirements. In this case, His Honour found that the Respondent's performance "has in general been an exemplar as the sort of approach" to be taken by employers, … (Note: this finding by His Honour has not been challenged factually by the Prosecutor).
7. The Prosecutor has relied heavily upon the proposition that there was a failure to supervise (during the relevant period of 20-30 min). As has earlier been pointed out His Honour did deal with the question of supervision. The question of supervision however did not formulate any part of the charge or the particulars provided to it. It is to be noted that s.15(2) of the OH&SA distinguishes between the maintenance of systems of work, s.15(2)(a) and such supervision as may be necessary to ensure the health and safety at work of an employer's employees s.15(2)(c).
8. The findings made by His Honour regarding supervision are available on the evidence. Further, His Honour's observations are consistent with the judgments in McMartin v. The Broken Hill Pty Co Ltd unreported decision of the Supreme Court, Grove J of 9th of March 1988 at p.11, and the decision in Inspector Davies v. Prospect Electricity, unreported (Fisher CJ) 9 November 1992 at 9).

Employer Pro-Active 9. The evidence in this case demonstrates that the Respondent was a pro-active employer in that it did design and provide safe systems for the carrying out of its work. Further that the Respondent's systems of work were specifically designed for particular tasks or sites.

Gravity or Otherwise of the Potential Risk for Safety 10. The OH&SA is directed toward "risk" to the health and safety at work of relevant persons. It is not focussed on, nor constrained by the consequences of that risk. It is therefore possible to have a breach of the OH&SA without there being any actual injury as even an incident. The impact of injury has been dealt with in a number of decisions. In the decision of Watson v. Southern Ashphelters Pty Limited (1996) 83 IR 446 at 456, His Honour Mr Justice Hungerford said: "Of course, the fact serious or fatal injuries may result from an industrial action, as frequently occurs, does not mean the Court should impose a heavier penalty than otherwise would according to the nature and quality of the offence objectively viewed. This judgment is consistent with the decision of Mr Justice Hill in Tyler v. Sydney Electricity (1993) 47 IR 1 at 5." 11. A reference to cases dealing with motor vehicle accidents is not of any assistance in respect of this aspect of the sentencing process relevant to OH&SA matters. Legislation dealing with motor vehicles and the crimes associated therewith are graduated in that there are different crimes prescribed for various activities all of which are conducted relevant to a motor vehicle. This is a different legislative approach from that adopted in the OH&SA which prescribes one breach with a wide range of penalty. 12. The legislative approach established in relation to motor vehicles is now a long standing one and pre-dates the introduction of the OH&SA in 1983. It follows in my submissions that the Legislator has specifically adopted a different approach in relation to the OH&SA more consistent with the stated object of preventing risks of injury at work than that adopted in the motor vehicle legislation. 13. The references to the motor vehicle legislation by the Prosecutor are of no assistance given the different legislative schemes that have been adopted in the regulation of both areas. 14. The Prosecutor has referred the Court to the decision in Jursic (1998) 101 A Crim R 259 and in particular to part of the judgment of Spigelman CJ at 269 to 271. The matter before the Court in that case involved s.52A of the Crimes Act (NSW) 1900 which is concerned with dangerous driving occasioning death or grievance bodily harm. His Honour referred to the developments in England in relation to similar legislation and in particular to a decision of the High Court of Justice in Guilfoyle (1973) 57 Cr App R549 where the Court was concerned with the offence of causing death by dangerous driving and said at 552: "Cases of this kind fall into two broad categories; first, those in which the accident has arisen through momentary in attention or misjudgment, and, secondly, those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or of his passengers, or with a degree of recklessness." It was in the context of dealing with that kind of legislation and the particularly legislative developments that had accompanied it that the observations referred to by the Prosecutor were made. The legislative development of s.15 of the OH&SA does not in any way mirror the legislative development in relation to a section such as s.52A of the Crimes Act (NSW) 1900.

If reference to this decision does have any utility it is to highlight that this matter falls into the first of the categories identified in Guilfoyle. 15. The reliance by the Prosecutor upon the reference in Jursic to the nature of injuries being an aggravating factor at 277.5 in the judgment, is itself not relevant to the present matter. To rely on that factor in circumstances of a prosecution under s.15 of the OH&SA is to deny the utility of earlier judgments regarding the impact of injury to which reference has already been made. Further the particular kind of criminal activity been considered in Jursic was one where injury was identified in the terms of the particular sections of the Crimes Act themselves thereby identifying it as a substantive aggravating factor and indeed providing different and higher penalty regimes depending upon the degree of injury caused. Conclusions as to the gravity of the offence 34 The difficulty in accepting the respondent's submissions as to the gravity of the offence is that many of the matters relied upon are irrelevant to that question, but rather relevant only to subjective considerations. In addition, they do not appear to recognise sufficiently the fact that the respondent entered a plea of guilty. This circumstance can be recognised in two respects. First, there is limited explicit recognition of factors relevant to the assessment of the gravity of the offence. Second, the reliance upon the judgments, respectively of Grove J of the Supreme Court in McMartin v The Broken Hill Propriety Co Ltd and Fisher CJ in Inspector Davies v Prospect Electricity involves reliance upon cases where a defendant was acquitted. Nevertheless, the submissions are useful in a number of respects, particularly because of the emphasis which the respondent places, correctly in our view, upon the fact that the charge related to a failure to maintain systems of work (as opposed to failure to provide and maintain such a system) and also the emphasis upon the fact that the respondent was not charged with a failure to supervise as such. 35 Subject to those considerations, we conclude that there is a great deal of substance in the submissions of the appellant in relation to the gravity of the offence which have been set out in paragraph 32 above. Nevertheless, for the purposes of this appeal, we are prepared to approach this matter by taking a view of the evidence which is most favourable to the respondent and this may conveniently occur by referring to paragraphs 7 to 11 of the agreed statement of facts before the sentencing judge. That extract is in the following terms: 7. The investigation revealed that prior to the accident Mr Chang had been performing a welding operation on the truss, which measured 12487 millimetres long x 2322 millimetres wide (inspection report). The truss which was identified as Section 2 was estimated to weigh 2.68 tonne. For welding, the truss had been positioned in the upright position by Mr Chang, with the 200 Universal Column (200 UC) at the top and the 150 Universal Column (150 UC) at the bottom. Whilst Mr Chang was performing the welding operation the chains from the overhead travelling crane were not connected to the truss. 8. Following the completion of the welding operation (which is estimated to have taken approximately 20 minutes) Mr Chang was in the process of attaching a chain from the overhead travelling crane around the 200 UC for the purpose of lowering the truss onto the support beams in the flat position. The support beams had been used to support the truss during fabrication. In order for him to be able to reach the top of the truss and put the chain from the overhead travelling crane around the 200 UC Mr Chang climbed onto one of the support beams. The beam Mr Chang was standing on measured approximately 2.5 metres long x 755 millimetres high, the flange (the part he was standing on) was 265 millimetres wide. 9. It was revealed that whilst Mr Chang was placing the chain, from the overhead travelling crane around the 200 UC, the truss became unstable and started falling towards him. This caused him to fall and strike his head against the metal beam on which he was standing. 10. The three men who were present at the time, state that when the truss was being welded by Mr Chang, prior to this accident, it was free standing. That is to say it was not braced or supported in any way. 11. During the course of the investigation the following contributing factors became apparent:- (a) The truss was unsupported; (b) Prior to the accident there was no documented procedure to ensure that all persons concerned with the welding of the trusses did so in the same safe manner. 36 We also note the following important matters set out in the statement of facts: (a) The statement of the Managing Director of the respondent, Mr G J Conacher that "A system was in place that a truss was to be welded whilst laying it flat on the support beam" and "The reason that the welding was done in this way [on the flat] is that welding in this position did not constitute a risk" (paragraph 12). (b) The statement by the respondent's Manager, Mr R S Samphier, that he had never seen the type of truss being welded by the deceased in the vertical or upright position before; that there had been an instruction to assemble the trusses on the support beams and weld them in the flat position; and he did not know why the deceased stood the truss up as the relevant employees had been following the usual system on the past 40 trusses that they had completed (paragraph 13). (c) The statement of the respondent's Senior Production Supervisor, Mr B S Thompson, that the normal procedure for welding the type of truss that the deceased was welding prior to his accident was that they were laid down flat, although on a few occasions at the start of the job there were about half a dozen small trusses that were stood up for welding (paragraph 14). 37 Those factors are to be considered in light of the obvious risks and dangers in the welding of the truss in an upright and unsecured position. Also, seen in terms of the requirements of the Act as discussed by Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd, these factors demonstrate clearly that the offence committed was of real gravity. See also the judgment of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting (unreported, 13 April 1995, Matter No CT94/1037, at 17 - 18) where his Honour said: … the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as foreseeable technical risks in industry.

and the judgment of Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (unreported, IRC97/4332 - 4333, 19 October 1999) at 35 - 36. 38 It follows that during a period of at least 20 to 30 minutes there was a failure by the respondent to maintain the system of welding the truss in circumstances where that failure to maintain involved serious consequences to employee health and safety. There were circumstances present at that time which were observed by management and which should have alerted them to the risks present. What occurred at the time was sufficiently different to the way in which such trusses usually were welded so as to have raised concerns as to whether the employer's system was being maintained. 39 We consider that significant appellable error occurred in the proceedings at first instance not only because of the matters earlier considered as to the application of s 556A of the Crimes Act but also by the failure of his Honour to assess appropriately the gravity of the offence. Properly considered, the factual matters before his Honour were not reasonably open to the conclusion that there was no objective feature of the offence which could have led to a penalty of any significance being imposed upon the respondent. In addition, we do not consider that the decision at first instance appropriately took into account considerations of general deterrence and the obligations on a sentencing judge arising from the significant increases in the maximum penalty for the offence. 40 Although an appeal court considering a prosecution appeal against sentence has an overriding discretion not to increase the sentence for appropriate reasons: see, for example, R v Allpass at 562 - 563 and WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Ltd at 395, we do not consider it would be appropriate to exercise that discretion in the present circumstances. This is not a situation where there was any relevant prosecutorial conduct or acquiescence in the course adopted by the trial judge (cf R v Allpass at 565). We therefore proceed to sentence the defendant in the light of our decision to uphold the appeal. We do so subject to the issue of double jeopardy raised by the appellant in terms of whether the normal approach to that issue applied here, notwithstanding that this was a prosecution appeal where the respondent was a corporation. The appellant made detailed submissions in this regard essentially relying upon the judgment of the Court of Criminal Appeal in Comptroller-General of Customs v D'Aquino Bros Pty Ltd (1996) 135 ALR 649. Particular reliance was placed upon a statement by Hunt CJ at CL to which we shall later refer. 41 The fourth principle extracted in paragraph 14 above from the judgment of the Court of Criminal Appeal in R v Allpass stated the general proposition that when the appeal court decides to re-sentence an offender it ordinarily gives recognition to the element of double jeopardy involved in the respondent who is in effect standing for sentence twice. This recognition is provided by imposing a sentence somewhat less than the sentence the court considers should have been imposed at first instance. The issue raised by the appellant is whether that principle applies equally to a corporation which stands for re-sentence after a successful prosecution appeal. The appellant relies upon Comptroller-General of Customs v D'Aquino Bros Pty Ltd at 669 and 675 where Hunt CJ at CL said: It has become accepted that the distress occasioned to a respondent to a Crown sentence appeal by twice being put in jeopardy of his freedom (or of his vested interest in the sentence of the primary tribunal) usually requires a discount to be applied by the appellate court. Indeed, so important is this consideration in Crown sentence appeals that the appellate court will not infrequently exercise its discretion to dismiss the appeal because of the unfairness or injustice which would otherwise be occasioned to the respondent by reason of his double jeopardy ( Regina v Holder and Johnston [1983] 3 NSWLR 245 at 255 - 256). There is no tariff for the discount for the double jeopardy involved. In some cases, the fresh sentence imposed will not be less (or not greatly less) than that which ought to have been imposed at first instance; in other cases, the discount may be substantial. The extent of the discount must vary according to the individual circumstances of the particular case; in most cases, the relevant circumstances are those subjective to the respondent himself ( R v Seung Ho Bang (unreported, CCA (NSW), 1 September 1992) per Hunt CJ at CL at 2).

What is in issue here is what the judge went on to say: "As against this [that is, that the defendant's position would not be much affected whether a conviction was recorded or not], the company and its directors and shareholders have now faced for some considerable amount of time the very worrying prospect at least of very considerable expense in vindicating their continuing claims to hold a licence, and a potential worsening of their position by the recording of a conviction."

A corporation, however, is an abstraction; it has no mind of its own any more than it has a body of its own (Lennards Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 at 713 - 714; Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 170 - 171; Shedlezki v Bronte Bakery Pty Ltd (1970) 72 SR (NSW) 378 at 385). It has no "soul to be damned" (Attributed to Edward (Baron) Thurlow), and it is "without body to be kicked" (Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 at 334). A corporation cannot worry about the prospect of expense and what may happen if a conviction is recorded. Where persons decide to do their business through the medium of a corporation, it seems to me that the feelings of the directors as to the prospect of such consequences is irrelevant.

Where the offender is a natural person, and where there has been a lengthy delay in the matter being dealt with through no fault of the offender, the courts will take into account the effect upon him of the uncertainty as to what was to happen by way of punishment for that crime ( R v Todd [1982] 2 NSWLR 517 at 519 - 520; Mill v R (1988) 166 CLR 59 at 64 - 66; 83 ALR 1). That would be irrelevant, however, if the delay in sentencing was the fault of the offender - such as by pleading guilty only at the last moment instead of when first charged (cf R v Winchester (1992) 58 A Crim R 345 at 350). That, of course, is what happened here so far as the defendant company was concerned.

In my opinion, the worries of the directors of the defendant company about the prospect of expense and what may happen if a conviction were to be recorded were irrelevant. I propose that Question 5 be answered "Yes". (emphasis added) 42 However, as Hunt CJ at CL said on the issue of double jeopardy, in an earlier judgment referred to in the above extract, there is no tariff for the discount for the double jeopardy involved. The extent of the discount must vary according to the individual circumstances of the particular case. In most cases, the relevant circumstances are those subjective to the respondents. See R v Seung Ho Bang (unreported, NSW CCA, 1 September 1992) where his Honour held: It is this element of double jeopardy involved in successful Crown appeals which results in the fresh sentence imposed by this Court usually being less than that which ought to have been imposed at first instance: Regina v Holder and Johnston [1983] 3 NSWLR 245 at 256, 269 - 270; Regina v Stephen Michael Anthony Baxter (CCA, 7 May 1991, unreported) at 4. It was accepted in the first of those two cases, and in many others, that the distress occasioned to a respondent to a Crown appeal by twice being put in jeopardy usually requires a discount to be applied by this Court. Indeed, so important is this consideration in Crown appeals that this Court will not infrequently exercise its discretion to dismiss the appeal because of the unfairness or injustice which would otherwise be occasioned to the respondent by reason of his double jeopardy: Regina v Holder and Johnston (at 255 - 256).

There is no tariff for the discount for the double jeopardy involved. In some cases, the fresh sentence imposed by this Court will not be less (or not greatly less) than that which ought to have been imposed at first instance; Regina v Holder and Johnston (at 256) was a case in which such considerations did not lead to any discounting. In other cases, the discount may be substantial; see, for example, Regina v Unto Kullervo Peuna (CCA, 15 July 1992, unreported) at 14. The extent of the discount must obviously enough vary according to the individual circumstances of the particular case. In most cases, the relevant circumstances are those subjective to the respondent himself. 43 His Honour's conclusions in this regard are relevant to the present proceedings. The question of double jeopardy, and the extent to which it will be relevant in the assessment of penalty when the defendant comes to be re-sentenced on appeal, is essentially a discretionary matter and it is a matter for the court in considering all of the relevant circumstances. The circumstances are those subjective to the respondent himself. 44 It does not appear that the part of the judgment in Comptroller-General of Customs v D'Aquino Bros Pty Ltd relied upon by the appellant has been applied in terms by other appellate courts. We also observe that in R v On Clinic Australia Pty Ltd (unreported, Court of Criminal Appeal, 6 November 1996), Smart J (with whom McInerney J agreed) held, in dismissing the Crown appeal in the exercise of the court's discretion and deciding not to disturb the sentencing judge's discharge of the company pursuant to s 19B of the Crimes Act 1914 (Cth) (a provision somewhat similar to s 556A), that the matter of double jeopardy, while of less significance in the case of a company, was still a factor of some weight. 45 We consider that it would be appropriate in the circumstances of this case to give appropriate weight to the double jeopardy faced by the respondent to this appeal. In doing so, we do not intend at present to lay down any ruling as to that issue and specifically state that it is an issue which will, in an appropriate case, need to be considered in principle by a Full Bench of this Court in appeal proceedings under the Occupational Health and Safety Act. We have taken the view we have in this case, not only because of its own special circumstances and the particular subjective circumstances of the respondent, but because the Full Bench of this Court in WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Limited accepted that double jeopardy was a relevant consideration in prosecution appeals under the present legislation in a case involving a corporation. 46 We consider a penalty should be imposed in this matter and have given due weight to all the subjective considerations upon which the respondent is entitled to rely, as referred to in his Honour's judgment and the respondent's submissions on appeal. In particular, regard has been had to the nature of the respondent and of the industry in which it operates, its good record of industrial citizenship and safety and its pro-active approach to safety in an industry which is not always known for its safety consciousness. Appropriate weight should be given to the respondent's early plea of guilt, and the consideration of double jeopardy. Also, as earlier indicated, we have approached this matter in terms of the objective seriousness of the offence on a view of the facts most favourable to the respondent. In all those circumstances, we consider the fine that should be imposed upon the respondent is $50,000. 47 Although we accept that this was an appropriate case for a prosecution appeal, nevertheless, in all the circumstances of the matter, it is perhaps not surprising that the respondent, having received the benefit of s 556A at first instance, did not consider that it was in a position to do other than resist the prosecution appeal. In light of the special circumstances of the matter, including the way in which it was approached at first instance, we consider that the appropriate order as to costs is to leave the costs order made by his Honour at first instance in place and to make no order as to the costs of the appeal. Orders 48 We therefore make the following orders in disposition of the appeal:

1. Appeal against the decision of Peterson J given on 24 June 1999 in Matter No IRC 3000 of 1998 upheld, and the orders made by his Honour (other than the order as to costs) are set aside.
2. In lieu of the orders made by his Honour which have been set aside, the respondent is: (a) convicted of the offence charged in Matter No IRC 3000 of 1998; and (b) fined the sum of $50,000, with a moiety of such penalty to the appellant.
3. There will be no order as to the costs of the appeal.

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