WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef

Industrial Relations Commission (NSW)|1999-10-13|Before: Wright J, Walton J, Staunton J, Kavanagh J, Mr P, Curtis AJ

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323 APPELLANT: WorkCover Authority of NSW (Inspector Mansell) PARTIES : RESPONDENT: Robert Josef FILE NUMBER: IRC 7331 of 2003 CORAM: Wright J President; Walton J Vice-President; Staunton J CATCHWORDS : Appeal by Crown - sentence imposed erroneously determined and manifestly inadequate - relationship between ss15 and 16 of the OHSA as separate and distinct offences - application of the principle of totality in the re-determination of penalty - common elements as between the offences reflected in penalty determination - principle of restraint exercised in the determination of Crown appeal - appeal upheld - penalties re-determined - no order as to costs. Industrial Relations Act 1996 LEGISLATION CITED : Criminal Appeal Act 1912 Occupational Health and Safety Act 1983 WorkCover Authority of NSW v Concrete Constructions Group Ltd (1999) 98 IR 362 Crown in Right of the State of NSW (Department of Education and Training) v Keenan (2001) 105 IR 181 Pearce v The Queen (1998) 194 CLR 610 WorkCover Authority of New South Wales v State Rail Authority (unreported, Kavanagh J, IRC 97/7032-7036, 13 October 1999) WorkCover Authority of New South Wales (Inspector Donnelly) v Riverina Wool Combing Pty Ltd [2000] NSWIRComm 29 CASES CITED : WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284 WorkCover Authority of New South Wales v Company B Ltd [2000] NSWIRComm 119 WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd t/a Boral Asphalt (No 2) (2000) 101 IR 458 WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 Dinsdale v The Queen (2000) 202 CLR 321 WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Limited (2003) 127 IR 60 HEARING DATES: 08/11/2004 EXTEMPORE JUDGMENT DATE : 11/05/2004

APPELLANT: Mr M Joseph SC Mr P Skinner of counsel SOLICITORS: LEGAL REPRESENTATIVES: Moray & Agnew

RESPONDENT: No appearance

JUDGMENT: - 18 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM : Wright J, President Walton J, Vice President Staunton J

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MANSELL) v ROBERT JOSEF

Appeal from the decision of Curtis AJ given on 21 November 2003 in Matter Nos IRC 5486 to 5489 of 1999

JUDGMENT OF THE COURT [2004] NSWIRComm 323

1 The appeal before us is made pursuant to the provisions of s196 of the Industrial Relations Act 1996 and s5D of the Criminal Appeal Act 1912. It is an appeal by the prosecutor against the sentences imposed on the grounds that his Honour erred in the sentencing process and that the sentences imposed were manifestly inadequate.

2 At first instance, the charges arising against the defendant arose as a result of a gas explosion in the vicinity of the Kogarah Railway Station on 4 December 1995. That explosion occurred because on that day an employee of Josef & Sons Contracting Pty Limited, operating a mechanical excavator on a demolition site, snagged a length of charged gas pipe and pulled it free from its seat. Escaping gas under pressure was then ignited causing a violent explosion. Two people were killed and a number of persons injured.

3 At the time of the explosion, Mr Josef was a director of Josef & Sons Contracting Pty Limited as well as the company Josef & Sons Pty Limited. The former company had been awarded a contract by Abigroup Contractors Pty Limited (Abigroup) to demolish a number of shops and remove paving blocks from the footpath in front of the shops. That work was part of the overall work to be undertaken as part of the head contract between Abigroup and the State Rail Authority to undertake upgrading of the Kogarah Railway Station and surrounds.

4 As a director of Josef & Sons Contracting Pty Limited, Mr Robert Josef performed management and supervisory roles at the Kogarah site. It is that capacity, that is, as a director of, and person concerned in, the management of the company, which rendered Mr Josef liable for the offences charged pursuant to the provisions of ss15 and 16 of the Occupational Health and Safety Act 1983 (the Act) together with the deeming provisions of s50 of the Act.

5 On 6 August last, some five days before the appeal had been listed for hearing, the Court was notified by Mr Josef's then solicitors of a Notice of Ceasing to Act to be filed by them prior to the appeal hearing. At a directions hearing before Wright J, President on 9 August, leave was given for Mr Josef's solicitors to withdraw from the appeal proceedings. At that time, it was indicated on behalf of Mr Josef that he did not wish the hearing of the matter to be vacated nor did he intend to file any submissions in relation to the appeal. Mr Josef desired the matter to be finalised and submitted to the Court's determination on the appeal. Mr Josef was present in Court on that day and indicated his intention to be present at the appeal proceedings on 11 August.

6 The appeal proceeded as listed on 11 August. There was no appearance by or on behalf of Mr Josef and the hearing proceeded in his absence.

7 The factual background giving rise to the offences has been briefly outlined. It is necessary, in our view, to flesh out certain aspects of the offences in order to place the grounds of the appeal into context. For the purposes of this judgment, the offences have been identified by reference to the time period in which they occurred, that being the November-December period, charges for the offences that occurred between 10 November and 4 December 1995 and the 4 December charges relating to the offences that occurred on that day.

8 Matter No IRC 5486 of 1999 was a charge arising pursuant to the combined provisions of s15(1) and s50(1) of the Act citing a breach that occurred between 10 November 1995 and 4 December 1995 in relation to named employees.

9 Matter No IRC 5487 of 1999 was a charge arising pursuant to the combined provisions of s16(1) and s50(1) of the Act citing a breach that occurred between 10 November 1995 and 4 December 1995 with respect to persons not in the defendant's employ.

10 The failures particularised in both charges were in identical terms with the obvious distinction that the defendant's failure to ensure health and safety applied to employees and non-employees, as the respective sections provide.

11 In considering the objective seriousness of the offences, his Honour concluded that they were 'of the most extreme order'. No issue was taken by the appellant with that conclusion and given the facts and circumstances of the offences, we would concur.

12 The maximum penalty for each of the offences is $50,000. In imposing a penalty in relation to the s15(1) offence involving Mr Josef as Director (Matter No IRC 5486 of 1999), his Honour stated at para [38] of his judgment: Given the terrible and foreseeable nature of the risk and the ease with which that risk could have been obviated, I believe the offence is in the order of 70 per cent of a most extreme case and a fine of $35,000 is warranted. 13 When his Honour turned his attention to the question of penalty for the s16(1) offence covering the same timeframe and particularised failures, he said relevantly as follows: [42] In relation to the offences of 20 to 23 November, Mr Josef also stands convicted pursuant to s16 of the Act. It is agreed that I should fix a penalty, and in that regard the penalty pursuant to s16 is $35,000. I then must apply the principle of totality pursuant to Pearce v The Queen (1998) 194 CLR 610 so as to ensure that the defendant is not punished twice for the same acts or omissions. [43] In the course of this trial, it became apparent that precisely the same acts and omissions which gave rise to the conviction upon the s15 offence in relation to the events of 21 to 23 November 1995 were the acts and omissions which constitute the s16 offence. It would be necessary, in order that there be any additional penalty imposed, that the precise areas in which the offences do not overlap be identified so as to justify the imposition of a penalty for acts or omissions which discretely relate to the s16 offence. That was the approach of the Full Court in Crown in Right of the State of New South Wales (Department of Education and Training) v Inspector Keenan (2001) 105 IR 181. [44] In this case no additional penalty should be imposed because there is no separate or additional culpable act or omission. The consequence of the danger in relation to its effect upon a particular person or persons is relevant in order that the gravity of the risk may be assessed, but the consequence is not an ingredient of the offence. Upon the present facts the risk was precisely the same to both employees and non-employees although only one class of persons suffered, non-employees. ... ...

[48] In the result, it is appropriate that I express the opinion that a fine of $35,000 in relation to the s16 offence of 20 to 23 November is proper but pursuant to the principle of totality, impose no additional monetary penalty.

14 Matter No IRC 5488 of 1999 was a charge arising pursuant to the combined provisions of s15(1) and s50(1) of the Act citing a breach that occurred on 4 December 1995 in relation to named employees.

15 Matter No IRC 5489 of 1999 was a charge arising pursuant to the combined provisions of s16(1) and s50(1) of the Act citing a breach that occurred on 4 December 1995 with respect to persons not in its employ.

16 As in the earlier matters, the failures particularised were in identical terms with the same distinction in relation to employees and non-employees in the creation of a risk to safety. Again, the maximum penalty for each of the offences is $50,000.

17 In considering penalty in Matter No IRC 5488 of 1999, his Honour relevantly said: [39] ... This charge relates to the operation of the earthmover by Mr Robert Campbell on 4 December, which operation resulted in the actual fire and consequent deaths and maiming. ...

[40] ... I regard the culpability of the failure on 4 December as even greater than the earlier culpability, serious though that was.

[41] ... Because of the greater immediacy and foreseeability of the danger, I regard the offence as 80 per cent of a most extreme case and consider that a fine of $40,000 is warranted.

18 In considering the question of penalty in Matter No IRC 5489 of 1999, his Honour adopted the reasoning expressed in relation to Matter No IRC 5487 of 1999, that being as set out earlier in our judgment.

19 In considering the final penalty to be imposed, his Honour said: [50] Upon hearing further from Mr Joseph SC for the prosecutor I agree that it is appropriate that the monetary penalty be imposed in the convictions pursuant to s16 because although employees were endangered, no employee lost his life or suffered injury.

[51] The principle of totality now requires that I adjust the two penalties pursuant to s16 to also accord with the principle of totality. There is much in common. The fundamental failures concerning the failure to close the gas at a place remote from the site, and the failure to mark the course of the gas line upon the ground are the significant failures which gave rise to the risk. The actions of Mr Begg, on the first occasion, and Mr Campbell on the second, gave rise to risks which were inevitable in light of the primary failures.

[52] So far as the offence of 4 December 1995 is concerned, although much stands in common with the earlier charge, in the context of an evolving situation and a developing danger, the culpability of Mr Robert Josef is graver than it was on the earlier occasion.

[53] That being said, I regard the substance of that which is alleged against him to have been the failure to organise the site and adequately mark the pipe. Seventy five per cent of culpability of the offences which occurred on 4 December was occasioned because of the prior failings, so that, rather than $40,000, the appropriate penalty is $10,000.

20 After further considerations that go to the heart of the appeal, his Honour then imposed the following final sentences with respect to the offences in the two charge periods: [54] In relation to Charge Number 5487, the s16 offence occurring between 20 and 23 November 1995, the defendant is fined $35,000. In relation to Charge Number 5486, the s15 offence on that date, the defendant is convicted, but no further penalty is imposed.

[55] In relation to Charge Number 5489, the s16 offence occurring on 4 December 1995, the defendant is fined $10,000. In relation to Charge Number 5488, the s15 offence on that date, the defendant is convicted but no further penalty is imposed. There is a total fine of $45,000. I direct that a moiety of the fine be remitted to WorkCover.

21 The ultimate outcome giving rise to the total fine of $45,000 can be diagrammatically laid out as follows: November-December period charges Charge No Date of offence OH&S Act Sentence 5486/99 10.11.954.12.95 s 15 Nil 5487/99 10.11.954.12.95 s 16 $35,000

4 December charges Charge No Date of offence OH&S Act Sentence 5488/99 4.12.95 s 15 Nil 5489/99 4.12.95 s 16 $10,000

22 As is self evident, his Honour ultimately reversed the penalty initially imposed with respect to the two s15(1) offences and determined that no penalty be imposed in Matter Nos IRC 5486 of 1999 and IRC 5488 of 1999. The basis for his Honour's decision would appear to be twofold. First, his Honour took the view that the ss15(1) and 16(1) offences for the same period consisted of the same acts and omissions and to impose two penalties would be double punishment. On that point, his Honour determined, having regard particularly to the provisions of s16(3) of the Act, 'the legislature regarded ss15 and 16 as alternative rather than cumulative provisions'. On that point, his Honour was in error.

23 Sections 15 and 16 of the Act both place an absolute obligation on employers to ensure health and safety at the workplace. As is well known, s15 imposes that obligation in relation to the employer's employees whereas s16 imposes the same obligation with respect to persons who are not the employer's employees while they are at the place of work. They are separate and distinct offences and are required to be considered as such. That the factual circumstances giving rise to acts and omissions constituting the offences under ss15 and 16 often arise from the same factual matrix, does not alter the fundamental proposition that they are not alternative offences in the sense that one may stand in the place of the other. As well, there is an essential element that distinguishes them that cannot be overcome in any direct alternative sense. That is the obligation arising with respect to employees in s15(1) as distinct from non-employees in s16(1).

24 The relationship between ss15 and 16 of the Act was considered by Wright J, President in WorkCover Authority of NSW v Concrete Constructions Group Ltd (1999) 98 IR 362. His Honour's considerations in that matter were referred to with approval by the Full Bench in Crown in Right of the State of NSW (Department of Education and Training) v Keenan (2001) 105 IR 181 at 198 particularly with reference to his Honour's observations in relation to Concrete Constructions where he stated: What is relevant is that both s15 and s16 impose statutory obligations which conceptually overlap, although the identity of the persons the object of the obligations specified is different.

25 Section 16(3) of the Act provides: If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 15, the court may convict the person of an offence against that section.

26 In our view, the way in which s16(3) is sensibly to be construed is that the Court may substitute an offence charged under s16(1) with an offence under s15(1) if the Court is satisfied that the act or omission concerned constituted a contravention of s15(1) but not of s16. That could only occur if all of the elements of an offence applicable to s15(1) were present, including the requirement that the employer's employees were exposed to a risk to their health and safety at their place of work.

27 In the circumstances of the offences before us, there were clearly two categories of persons exposed to risks to safety - the respondent's own employees and persons who were not employees of the respondent at the worksite at the relevant time. Accordingly, his Honour was required to consider them as separate and distinct offences and deal with them in accordance with the principles laid out in Pearce v The Queen (1998) 194 CLR 610 and as followed in first instance and appellate decisions of this Court. See for example, WorkCover Authority of New South Wales v State Rail Authority (unreported, Kavanagh J, IRC 97/7032-7036, 13 October 1999); WorkCover Authority of New South Wales (Inspector Donnelly) v Riverina Wool Combing Pty Ltd [2000] NSWIRComm 29; WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284; WorkCover Authority of New South Wales v Company B Ltd [2000] NSWIRComm 119; WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd t/a Boral Asphalt (No 2) (2000) 101 IR 458 at 470-471 and WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247.

28 Applying the principle of totality is the second area in which, we believe, his Honour fell into error in the determination of penalty. That is, between the two offences committed on 4 December 1995 and the two offences in the November-December period, his Honour concluded that the 4 December offences were founded on the same failures as the November-December period offences. Accordingly, in addition to ultimately determining no penalty for the s15 offence in the 4 December period for the reasons earlier referred to, his Honour discounted the initial sentence of $40,000 by 75 per cent, bringing the final sentence to $10,000 for the s16 offence in the 4 December charges. In doing so, we are of the view that his Honour overstated the common facts as between the two groups of offences and failed to have sufficient regard to the failures with respect to the inherent culpability of the defendant relevant to the 4 December offences.

29 The failures identified in relation to the ss15 and 16 offences of both charge periods were identified in the same terms. They were that the defendant: (i) Failed to take adequate steps to ensure the cutting off of a capped gas supply line, which was charged, was affected in a position which was safe and without risks to health;

(ii) Failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed;

(iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area; (iv) Failed to provide and maintain a system for performing work that was safe and without risks to health in an area where a charged gas supply line was situated;

(v) Failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area where a charged gas supply line was located;

(vi) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace: (a) within one metre of a building to be demolished; (b) that was not adequately protected or identified; (c) where earthmoving machines were operated.

(vii) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the: (a) location of the charged gas supply line; (b) risks associated with work adjacent to the charged gas supply line; (c) type of work that might be carried out adjacent to the charged gas supply line.

30 While the failures are common between the offences in the two charge periods, it has to be remembered that those failures occurred in relation to different persons working in and around the gas line. Those different persons, employees and non-employees, at different periods, were required to be properly instructed that a live gas line was on the worksite and to be so instructed relevant to the work being performed at the different time periods and in different ways. As well, differences as between the November-December period failures and the 4 December failures that ultimately went to the defendant's culpability were acknowledged by his Honour in dealing with the s15 offence of the 4 December charges (Matter No IRC 5488 of 1999) as follows: [40] ... I regard the culpability of the failure on 4 December as even greater than the earlier culpability, serious though that was.

[41] ... Because of the greater immediacy and foreseeability of the danger, I regard the offence as 80 per cent of a most extreme case and consider that a fine of $40,000 is warranted.

31 Overall, we are of the view that his Honour overstated the degree of commonality going to the defendant's culpability between the two charge periods that caused him to erroneously discount the initial penalty determined. Accordingly, we are of the view that the ultimate penalty imposed by his Honour with respect to the offences on 4 December were erroneously determined and inadequate having regard to his Honour's findings that, objectively, the offences were 'of the most extreme order'.

32 Before proceeding to re-determine penalty, there is one matter that is relevant to our considerations on that issue.

33 We are mindful that this is a Crown appeal. It is well established, in approaching the re-determination of sentence at appellate level, an attitude of restraint must be exercised and the relevance of the double jeopardy in the defendant being sentenced on a second occasion must be recognised and taken into account. The background to that principle was expressed by Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 340 as follows: For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time honoured concepts' of the administration of criminal justice in common law legal systems. For this reason it has sometimes been said that, as a 'matter of principle', such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced. The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences.

34 The above considerations as enunciated by Kirby J were considered by the Full Bench of the Court in WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Limited (2003) 127 IR 60 at 73 as follows: [47] Generally speaking, an appellate court must identify a clear and demonstrable error at first instance: see Dinsdale v The Queen (2000) 202 CLR 321 at 340 - 341 ( Kirby J) and 330 ( Gummow and Gaudron JJ); Wong v R (2001) 185 ALR 233 at 263, Batty v Graincorp at [4] and Inspector Ian Lancaster v Burnshaw Constructions Pty Ltd [2002] NSWIRComm 319 at [6]

[48] There are some differences in emphasis as to the principle of restraint in Crown appeals. See for example the comments of Kirby J in Dinsdale v The Queen at 341 - 342 and in Wong v R at 263 where his Honour refers to the principle of restraint as being well established. This may be compared with the joint judgment of Gleeson CJ and Hayne J in Dinsdale v The Queen at 325[4] where their Honours indicate that the principles in House v The King (1936) 55 CLR 499 apply 'both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness'. We refer also to the summary of principles set out by the New South Wales Court of Criminal Appeal in R v Allpass and considered in Wright J's judgment in WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Limited (1999) 92 IR 392 at 393-394.

[55] It is well established that an appellate court in re-sentencing, or deciding whether to re-sentence an offender, should have regard to the principle of double jeopardy. The application of the principle of double jeopardy provides for an imposition of a sentence that is somewhat less than the sentence the appellate court considers should have been imposed at first instance ( R v Allpass at 562), or at the lower range of available sentences: Dinsdale v The Queen at 341; Profab Industries Pty Ltd .

35 It is useful at this point, in our view, to restate the proper approach to the totality principle as part of the sentencing process. This was expressed in some detail in the judgment of the Full Bench of the Court in Crown in Right of the State of New South Wales (Department of Education and Training v Keenan) (2001) 105 IR 181 at 192 - 193. We restate those principles relevant as they are to the matters before us: [21] ... There was a well-established practice in New South Wales that when structuring sentences for multiple offences the trial judge could impose one sentence which represented the totality of the overall criminality involved in the offences. It was not considered necessary to consider each sentence separately to ensure that it appropriately represented the criminality involved in each particular offence: ...

[22] In Pearce v The Queen (1998) 194 CLR 610, however, the majority of the High Court rejected this approach. That case concerned an offender charged with two offences - the malicious infliction of grievous bodily harm and the infliction of grievous bodily harm during a break and enter - which both arose out of the same incident. The majority, McHugh , Hayne and Callinan JJ, stated: [45] To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. (emphasis added)

[46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.

[47] Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation. [48] Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences. (references omitted, emphasis added)

[23] The effect of Pearce is that, in sentencing a defendant for more than one offence, the Court is required to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. It is only after determining an appropriate sentence for each offence that the Court should consider whether the sum of the separate sentences properly reflects the totality of the criminality involved.

[24] The approach in Pearce has been applied on a number of occasions by the Court of Criminal Appeal: see, for example, R v Kalache [2000] NSWCCA 2, at [106] to [111]; R v Wheeler [2000] NSWCCA 34 at [34] to [37]; and Giam (No 2) (1999) 109 A Crim R 348 at 351.

[25] The approach in Pearce has also been applied by this Court in relation to multiple offences under the Occupational Health and Safety Act : see, for example, WorkCover Authority of New South Wales v State Rail Authority (unreported, Kavanagh J, IRC 97/7032-7036, 13 October 1999); WorkCover Authority of New South Wales (Inspector Donnelly) v Riverina Wool Combing Pty Ltd [2000] NSWIRComm 29; WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284; WorkCover Authority of New South Wales v Company B Ltd [2000] NSWIRComm 119; and WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd t/a Boral Asphalt (No 2) (2000) 101 IR 458 at 470-471.

36 Taking into account the proper approach, so stated, in the determination of these matters, we propose to re-determine penalty in these matters, mindful as we are of the principle of restraint in determining sentence on appeal as expressed in Dinsdale and Weathertex earlier referred to and the relevance of double jeopardy.

37 As well, it is noted that the Crown took no issue with his Honour's findings at first instance as to the gravity of the offences, the issue of subjective features and his Honour's considerations and rejection of Mr Josef as a witness of truth. Further, the Crown did not dispute his Honour's conclusions as to the defendant's culpability for the 4 December offences. As counsel for the appellant stated: Thus we do not dispute the fines in respect of what ultimately became s16 for the offences of the two periods.

38 Having regard to all of the above, we believe that the starting point for re-determination of penalty is to return to the point his Honour reached in the first instance. That is: November-December period charges Charge No Date of offence OH&S Act Head sentence 5486/99 10.11.954.12.95 s 15 $35,000 5487/99 10.11.954.12.95 s 16 $35,000

4 December charges Charge No Date of offence OH&S Act Head sentence 5488/99 4.12.95 s 15 $40,000 5489/99 4.12.95 s 16 $40,000

39 As earlier stated, the maximum penalty for each offence is $50,000. We believe that his Honour's initial determination of $35,000 for each of the ss15 and 16 offences arising in the November-December period charges to be correct. That gives a total penalty of $70,000 for the two offences against a total penalty backdrop of $100,000. We are of the view that on a totality approach and consistent with the principle of restraint, an appropriate total penalty with respect to the two offences is $40,000. We believe the defendant's culpability is equal as between the two offences. Accordingly, we impose a penalty of $20,000 with respect to each of the two offences in this period.

40 In relation to the 4 December charges, we again reaffirm his Honour's initial penalty of $40,000 with respect to each of the two offences. That gives a total penalty of $80,000 against a total penalty backdrop of $100,000. We believe the defendant's culpability is equal as between the two offences.

41 We accept that there is an element of commonality as between the failures of the defendant in the November-December period charges and the 4 December charges that should be reflected in the penalty we impose for those latter offences. Nevertheless, we concur with his Honour's findings that the defendant's culpability for the 4 December offences was greater than that for the November-December period offences because of the greater immediacy and foreseeability of the risk to safety present on that day. That finding is relevant to the ultimate penalty we propose in relation to those offences. On a totality approach and consistent with the principle of restraint, we determine a total penalty with respect to the two offences of $30,000. Accordingly, we impose a penalty of $15,000 with respect to each of the two offences in this period.

42 Accordingly, we make the following orders: Matter No IRC 5486 of 1999 · The appeal is upheld; · The penalty imposed by Curtis AJ is set aside; · The defendant is fined $20,000 and we allocate a moiety to the prosecution on the usual terms. Matter No IRC 5487 of 1999 · The appeal is upheld; · The penalty imposed by Curtis AJ is set aside; · The defendant is fined a penalty of $20,000 and we allocate a moiety to the prosecution on the usual terms. Matter No IRC 5488 of 1999 · The appeal is upheld; · The penalty imposed by Curtis AJ is set aside; · The defendant is fined $15,000 and we allocate a moiety to the prosecution on the usual terms. Matter No IRC 5489 of 1999 · The appeal is upheld; · The penalty imposed by Curtis AJ is set aside; · The defendant is fined $15,000 and we allocate a moiety to the prosecution on the usual terms. 43 In relation to the appeal generally, we consider that there should be no order as to costs.

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