WorkCover Authority of New South Wales (Inspector Belley) v Steven Carl Akerman

WorkCover Authority of New South Wales (Inspector Belley) v Steven Carl Akerman - [2007] NSWIRComm 55 - NSWIRComm 2007 case summary — Zoe

[9]

1 In an earlier judgment concerning this defendant, I determined that the offence charged pursuant to s 10(2) of the Occupational Health and Safety Act 2000 by virtue of the deeming provisions s 26(1) of the Occupational Health and Safety Act 2000 had been proved beyond reasonable doubt: See my judgment in WorkCover Authority of New South Wales (Inspector Belley) v Steven Carl Akerman [2006] NSWIRComm 353 handed down on 24 November 2006. 2 The delay in proceeding to determine penalty has arisen predominantly because Mr Akerman resides in the United States of America. It was considered necessary he be advised of my decision as to liability and given the opportunity to be heard in relation to penalty if he desired to enter an appearance at this stage of proceedings. 3 The defendant is one of three directors of Akerman-Apache Joint Venture Pty Limited (Akerman-Apache). The other two directors are Mr Jonathan Herbert and Mr John Walker. 4 In 2005, Akerman-Apache and all three directors were charged with offences arising under the Occupational Health and Safety Act 2000. The offences arose from an accident that occurred on 3 November 2003 at Otford, New South Wales resulting in the death of Mr Ross Boyer. 5 Akerman-Apache was charged with an offence arising under s 10(2) of the Occupational Health and Safety Act 2000 (the Act). All three directors were charged with the same offence under s 10(2) by virtue of the deeming provisions of s 26(1) of the Act. 6 The corporate defendant together with Mr Herbert and Mr Walker all entered pleas of guilty to their respective offences and have been dealt with by me in relation to penalty: See my judgment in WorkCover Authority of New South Wales (Inspector Belley) v Akerman Apache (Joint Venture) Pty Limited, Jonathan Dwyer Herbert and John Lindsay Walker [2006] NSWIRComm 370 handed down on 24 November 2006. 7 As the above two judgments make clear, the defendant now before me for sentencing, Mr Steven Akerman, has never appeared before the Court. He currently resides in the United States and, despite having been personally served, has entered no appearance. To date, all proceedings in relation to his offence have been dealt with on an ex parte basis. Today's proceedings are no exception. 8 The factual matters relevant to the offence before me have already been fully canvassed in the earlier judgments to which I have already referred. I do not propose to repeat them except by reference as necessary. 9 I also reaffirm the relevant principles applicable to sentencing proceedings as referred to in WorkCover Authority of New South Wales (Inspector Belley) v Akerman Apache (Joint Venture) Pty Limited and ors paras [10] to [20] inclusive as being applicable to these proceedings concerning Mr Akerman.

[14]

We strongly suggest that you seek legal advice in respect of this matter. 12 Having regard to the above, I am satisfied the defendant has been served with information that has alerted him to the outcome of legal proceedings to date in matters affecting himself and Akerman-Apache, of which he is a director. Further, the conveying of that information has been served on Mr Akerman with sufficient notice to allow him to enter an appearance in these sentencing proceedings should he wish to do so. 13 No appearance has been entered and, accordingly, I am satisfied I can proceed to impose penalty on an ex parte basis. 14 As a defendant with no prior convictions, the maximum penalty I can impose on Mr Akerman is $55,000. 15 By reference to the facts and my considerations in WorkCover Authority of New South Wales (Inspector Belley) v Akerman Apache (Joint Venture) Pty Limited and ors the offence which I am considering in relation to the defendant was a serious one and I propose to approach the determination of penalty on that basis. 16 In doing so, having regard to the respective roles of the three directors of the company in the factual circumstances underpinning the offence of the corporate defendant, the principle of parity is a relevant consideration. On that issue, I refer to my judgment on penalty in WorkCover Authority of New South Wales (Inspector Belley) v Akerman Apache (Joint Venture) Pty Limited and ors relating to the relative culpability of the three personal defendants as follows: [59] In determining penalty in relation to each of the defendants as co-offenders, the principle of parity is relevant. The principle demands consistency in sentencing outcomes as between co-offenders determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability: see Lowe v R (1984) 154 CLR 606 and Postiglione v R (1997) 189 CLR 295. However, 'if there are relevant differences, due allowance should be made for them': Postiglione v R at 301.

[24]

[42] In all the circumstances, there is no evidence the defendant is able to rely on, of any actions on his part such as to establish a defence under s 26(1)(b) of the Act. 18 While I accept the principle of general deterrence is relevant in my considerations, I am not persuaded specific deterrence is as significant a factor. If I accept the evidence of Mr Walker and Mr Lindsay in their proceedings, which I do, Mr Akerman has no intention of returning to operate a business in New South Wales. Again, I refer to my judgment on penalty in WorkCover Authority of New South Wales (Inspector Belley) v Akerman Apache (Joint Venture) Pty Limited and ors at [67] where I said: [67] I consider general deterrence to be relevant to all three defendants. Specific deterrence brings with it somewhat different considerations. The joint venture company is no longer operating. According to both Mr Walker and Mr Herbert, Mr Akerman advised, in or about mid 2005, that he no longer wished to operate in Australia. The fact that Mr Akerman has made no appearance in his own proceedings and is currently residing in America would support that assertion. Counsel for the prosecutor contended that specific deterrence was a relevant consideration in relation to the corporate defendant in that, while currently dormant, it was still registered and could commence to operate again in the construction industry. 19 There is no evidence to suggest Mr Akerman intends to ever return to New South Wales to operate any business. If anything, the evidence points to the contrary. While it cannot be said he will never do so, I consider, in all the circumstances, it is highly unlikely. Overall, while it cannot be dismissed, I consider specific deterrence to be of limited weight in my ultimate considerations. 20 Given the non-appearance of Mr Akerman I have little, if any, evidence going to subjective factors that may be relevant in mitigation to my considerations on penalty except to note that as Project Manager for the site, he did cooperate with Mr Barker on behalf of PSPAT in relation to workplace safety. That much is identified in my earlier judgment in relation to Akerman-Apache and ors and the extract that appears in para [16] above. 21 Likewise, in relation to Mr Akerman's financial circumstances. 22 In proceeding to impose penalty, the prosecution have sought an order as to conviction and costs. In order to do so, having regard to the provisions of s 253 of the Criminal Procedure Act 1986 (now repealed) but which is applicable to these proceedings, it is necessary for costs to be assessed. On that point, I refer to my judgment in Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 as follows:

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