WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison - [2002] NSWIRComm 27 - NSWIRComm 2002 case summary — Zoe

NSWNSWIRComm

WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison

[2002] NSWIRComm 27

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

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Industrial Relations Commission (NSW)

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2002-07-01

Before

Walton J

Catchwords

07/10/2001
07/11/2001
07/12/2001
02/05/2002 DATE OF JUDGMENT: 03/22/2002

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Original judgment source is linked above.

Catchwords

07/10/200107/11/200107/12/200102/05/2002 DATE OF JUDGMENT: 03/22/2002

Judgment (92 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison (No.2) [2002] NSWIRComm 27 PROSECUTOR: WorkCover Authority of NSW (Inspector Farrell) PARTIES : DEFENDANT: Ross Colin Morrison FILE NUMBER: IRC 1666 of 2000 CORAM: Walton J Vice-President CATCHWORDS : Occupational health and safety - Alleged failure to ensure the persons not in the defendant's employment not exposed to risks to health and safety - Child drowned in partially constructed swimming pool at domestic construction site - Defendant self-employed pool builder - Pool had been substantially completed and partly filled with water - Defendant had installed mesh to cover the pool - Mesh later removed by builders working on the house - Defendant visited site and observed that mesh had been removed - No steps taken to replace the mesh or ensure that fencing was installed - Obvious risk to safety as a result of pool not being covered - Risk arose from the defendant's undertaking - Defendant not entitled to rely on builders to cover the pool - Elements of the offence made out - Consideration of application of s10 of Crimes (Sentencing Procedure) Act 1999 - Risk clearly foreseeable - Risk common on building sites where numerous contractors engaged in various capacities - General deterrence - s10 applied only in highly exceptional circumstances - Not appropriate to be applied in present circumstances - Subjective features - Contrition and remorse - Financial means of defendant - Principle of parity considered - Penalty imposed - Costs sought by prosecutor - Costs reserved Crimes (Sentencing Procedures) Act 1999 s10 LEGISLATION CITED : Occupational Health and Safety Act 1983 s16(2) Swimming Pools Act 1992 Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99 . Capral Aluminium Ltd v Workcover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 Corinthinian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46 Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Anor (2001) 105 IR 348 Department of Mineral Resources (Chief Inspector Terrey) v A M Hoipo & Sons Pty Ltd (1999) 99 IR 137 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Griffiths v The Queen (1997) 194 CLR 293 Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158 Inspector Richard Clarke v W. L. Meinhardt and Partners Pty Ltd (unreported, Matter Nos. 1212 & 1213 of 1990, 30 June 1992) Inspector William Hopkins v Michael Wherritt trading as MJ Wherritt Concrete Pumping Services [2002] NSWIRComm 16 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Mainbrace Constructions Pty Ltd v Workcover Authority of New South Wales (Inspector Charles) (2000) 92 IR 84 CASES CITED : Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) 106 IR 435 Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 Postiglione v The Queen (1997) 189 CLR 295 R v Rushby [1977] 1 NSWLR 594 R v Radich [1954] NZLR 86 Riley v Australian Grader Hire (2000) 103 IR 143 WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors [2001] NSWIRComm 244 Workcover Authority of New South Wales (Inspector Farrell) v David Carl Schrader (2002) NSWIRComm 25 Workcover Authority of New South Wales (Inspector Farrell) v Ross Colin Morrison (No.1) [2001] NSWIRComm 325 Workcover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (unreported, CT94/1037, 13 April 1995) Workcover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No.2) (2001) 99 IR 163 WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (1999) 95 IR 383 WorkCover Authority of NSW (Inspector Ankucic) v. Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 HEARING DATES: 07/09/2001; 07/10/2001; 07/11/2001; 07/12/2001; 02/05/2002 DATE OF JUDGMENT: 03/22/2002

[70]

27 One of the matters which loomed large in the defence brought by the pool contractor in Morrison (No.1) was his reliance upon Mr Schrader to ensure the pool was covered as he had 'control' of both the site and the workmen on it on an ongoing basis. It was submitted that it would not have been practicable for the defendant to have remained on site to 'police' the covering of the pool and that he was entitled to rely upon the builders to do so. 28 In Morrison (No.1) the Court accepted that it was not practicable for the defendant to remain on the site and police the covering of the pool. The Court considered that the defendant had left the brief earlier discussion with Mr Myers with the understanding that the builders would re-cover the pool. 29 The Court found that the pool site continued to be a 'place of work' for the defendant, as required by the Act, in that he had not completed his contract with the owners (there remained work to be done by him prior to the 'handing over' of the completed pool). Further, the defendant was not able to make out a defence under s53 of the Act. The consideration of the s53 defence mounted in Morrison (No.1) appeared in the judgment in the following terms (at [64] - [67]): As has been discussed, a significant submission advanced by the defendant was that the builders, Mr Schrader and Mr Myers, had assumed responsibility for the safety of the pool. That submission was advanced on two bases. Firstly, that the builders had assumed responsibility for the pool because they had removed the mesh in the first place. Secondly, that following the discussion with Mr Myers on 22 April 1998, the defendant was given at least an implicit assurance that the builders would take steps to ensure that the pool was safe. The defendant submitted that he was entitled to rely upon the builders. Further, the defendant submitted that it was not practicable for the defendant to make provision against the removal of the mesh. The defendant, it was contended, did not have control of the site or control of persons working at the site. It was also contended by the defendant that, given the nature of the site, it would not have been practical for him to have "policed" the site to ensure that the mesh was not removed.

[75]

Submissions Submissions of the Prosecutor 31 Mr Skinner of counsel, who appeared for the prosecutor, submitted that it was appropriate to approach the sentencing hearing in this matter in the light of the facts as found by the Court in Morrison (No.1). 32 He submitted the principles for sentencing under the Act are well established; they firstly require the Court to determine penalty on the basis of an objective assessment of the nature, seriousness and gravity of the breach charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464. 33 Mr Skinner submitted that the risk posed by the uncovered pool was not limited to children, who may be on the site, falling into the pool and drowning. There was also a danger that persons working on the site may fall and injure themselves, albeit that the danger of drowning may have been less severe. This risk was heightened by the fact that persons, children or otherwise, could gain access to the site from the street via the sides of the house and from the canal. This risk was the direct result of the failure of the defendant to ensure that the pool, when filled with water, remained covered or fenced off. It was submitted that this risk was readily foreseeable and that, as such, the offence was to be considered more serious. 34 It was submitted that, in the circumstances of this matter, it would be appropriate for the Court to consider the sentencing of the defendant as though there had been an application made pursuant to s10 of the Crimes (Sentencing Procedures) Act 1999. However, the prosecutor resisted such a course. Mr Skinner, in his submissions, emphasised the role that general deterrence ought play in the determination of sentence in these proceedings. It was submitted that modern building practices involving contractors and sub-contractors in varying capacities were a common feature on construction sites in this State and that it was common on sites, such as this, for responsibilities under the Act to remain unattended to or ill-defined. He submitted, the sentence imposed in these proceedings ought be of value so as to reinforce to people in this very common situation their responsibilities under the Act. 35 Mr Skinner submitted that the application of s10 of the Crimes (Sentencing Procedure) Act ought be limited in proceedings brought under the Act to "extraordinary and highly exceptional" situations: WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64. Despite the limited means of the defendant, this was not an appropriate case for the application of that section. 36 The prosecutor did not seek to be heard in relation to parity. It was submitted that, in its view, the respective culpabilities of the defendants flowed not so much from the manner in which the pool initially became uncovered, but rather from the responsibility to remove the risk created once they had become aware of it. It was submitted that both defendants had various roles to play in relation to the work carried out on the premises. However, the fact remained that both defendants were aware the pool was uncovered for some length of time prior to the accident and took no steps to render the pool safe. 37 Mr Skinner acknowledged that Mr Schrader, having been responsible for removing the mesh covering the pool in the first place, was aware that the pool was uncovered some time earlier than the defendant, however, he submitted that such a distinction, on the facts of this case, ought not weigh heavily in the assessment of culpability for each of the defendant's. 38 Mr Skinner sought costs of the proceedings and a moiety of the fine to the prosecutor. Submissions of the Defendant 39 The defendant emphasised his expressions of remorse and contrition for the accident. 40 He submitted he had been involved in the pool building industry for some 20 years without incident. Further, throughout his career he submitted that he had always tried to conduct his business in accordance with the relevant legislative requirements. He submitted that "with hindsight" and the increased knowledge of the Act he had obtained since the institution of these proceedings, there were a number of features of his business that he would have altered so as to comply with the Act. Protective measures would have become a significantly greater priority, both in terms of ensuring they were put in place and in ensuring that those mechanisms were maintained. 41 The defendant submitted that he now had a significantly greater understanding of the requirements placed on employers and those in self-employ by the Act and what constitutes a persons 'place of work' for the purposes of the Act. He continued: Whilst this has been a harrowing experience, I have welcomed the opportunity to have learnt and benefited from this experience and fully believe that there is a real need and should be an increased awareness of the legislation in my industry and, in particular, in relation to self employed persons. 42 The defendant submitted that the tragic events which led to the institution of these proceedings have had a profound effect on many lives, including his own. He submitted that both he and his partner have suffered in both their professional and personal lives. As to his personal circumstances, the defendant submitted that the stresses that have been occasioned to both him and his family have resulted in the condition of his son, who suffers from schizophrenia, worsening and had resulted in the breakdown in the relationship and eventual separation from his partner; a relationship of some nine years. They now live apart. 43 As to his professional life, the defendant submitted that whilst his business as a pool construction contractor continued for a short while following the accident, at the time of hearing he had not installed a pool for some two years. Any income that had been received in that period from the business was limited to the service and maintenance of existing pools. At the time of the hearing, the defendant, by and large, did not work. He was the main carer for his mentally ill son. 44 The defendant submitted that his financial position was somewhat "precarious" and that he had an extremely limited capacity to pay any monetary order against him. Consideration 45 At the outset I should note that there was no application made by the defendant for the Court to invoke s10 of the Crimes (Sentencing Procedure) Act 1999. However, the prosecutor, noting the defendant's unrepresented status, properly, in my view, conceded that it would be appropriate for the Court to approach the determination of penalty on the basis that such an application had been made; although the prosecutor opposed such an application. I shall return to this feature of the matter after having considered the objective elements of the offence. 46 It is well settled that the primary determinant of penalty in proceedings under the Act is an objective assessment of the nature and seriousness of the offence: Lawrenson Diecasting Pty Ltd. I note the maximum penalty for the offence is $55,000. However, the starting point for such considerations must be to reiterate the observation that I made in Morrison (No.1): that is, that an uncovered and partly filled pool presented an inherent risk to persons on the site. The risk was amply demonstrated by the tragic accident that resulted in the death of a three year old child. The risk was not limited to the risk that children, who may be on the site, could fall into the pool and drown. There was also a danger presented to persons working at the site that they may fall and injure themselves, albeit that the danger of drowning may have been less severe. There was also the possibility of persons gaining access to the site from the street via the sides of the house and from the canal.

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51 In WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25, delivered concurrently with this judgment, I considered the authorities that have attempted to reinforce, in the strongest possible language, the nature of the duty cast on employers and those in self employment. Those observations apply with equal force to the present matter and I adopt that discussion for the purposes of this judgment. 52 This duty to be proactive falls equally upon each and every employer or self-employed person on a particular site, subject, of course, to a consideration of whether the risk emanated from the relevant 'undertaking' and 'place of work'. 53 I reviewed the authorities relating to the issue of an employers undertaking and place of work in Morrison (No.1) (at [47] - [61]), concluding that the pool remained a 'place of work' for the defendant at the time of the accident and that the risk arose from the defendant's undertaking. It is not necessary to again traverse that issue. However, when determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Anor (2001) 105 IR 348; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 (at 433 - 437) and WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No.2) (2000) 99 IR 163 at [31]. 54 In this matter, as noted in Morrison (No.1), I consider that the building contractor had the more direct control over the workmen on the site, the work performed on the site and that he had such control on a continual basis up to and including the time of the accident. The defendant had taken steps to ensure that the pool was initially rendered safe by the covering of it with the steel reinforcing mesh. I accept his submission that it would have been impracticable for him to have remained on the premises to police the covering of the pool. However, the defendant knew the pool was uncovered at a time well before the incident and took no steps to remedy that situation. 55 In my view, a further aggravating feature extant in the case of the building contractor, and not present in the case of the defendant, is that it was he who actually removed the mesh covering. In so doing, it was his actions that directly gave rise to the relevant risk. That risk remained for some time before any notice was given to the defendant (even accepting the building contractor's statement that he passed on a communication as to the covering of the pool from a council inspector). However, balancing against that consideration must be the fact that the defendant was contractually responsible for the pool and it was his undertaking that was subject to the condition of the development consent to render the pool safe. Further, regardless of the actual terms of the conversation had with Mr Myers, it was the defendant who removed the steel reinforcing mesh from the site. 56 An additional feature particular to the defendant is his concession that the risk to safety was not merely reasonably foreseeable but was actually foreseen. Such a circumstance would normally result in a significant increase in the assessment of the seriousness of the offence. However, in the circumstances of the present matter, I consider that the level of foreseeability is so great as to warrant very little to be made of the fact that the risk was actually foreseen in this matter. 57 As in the prosecution against the building contractor, the prosecutor submitted that this was a case in which the notions of deterrence and particularly general deterrence ought loom large in the assessment of penalty. The principles associated with elements of deterrence were most recently discussed by a Full bench of this Court in Capral Aluminium (at [71] - [80]). I adopt that discussion for the purposes of determining sentence in this case. 58 The purpose of the Act is well known and often referred to in judgments of this Court; that is, the prevention, deterrence and punishment of breaches of health and safety requirements. I should once again reiterate my view, in accordance with what was stated by the Full Court in Capral Aluminium (at [72] - [74]), in cases such as this "one of the main purposes of punishment, ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment" (emphasis added): R v Rushby [1977] 1 NSWLR 594 at 597 per Street CJ citing R v Radich [1954] NZLR 86 at 87, adopted by this Court in Capral Aluminium (at [72]). 59 It is "the fundamental duty of this Court" is to ensure that any penalty imposed is severe enough to "compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 adopted in Capral Aluminium (at [74]). 60 The defendant is guilty of the offence charged as it was unreasonable for him to have not taken any steps whatsoever to ensure that the relevant risk was removed from his place of work in circumstances where it would have been not only reasonably practicable but, in my view, would have required very simple steps to have been taken. I consider, having regard to this factor and the foregoing discussion of the comparative culpabilities of the defendant and the building contractor, that the defendant's culpability for the offence should be considered as being equal to that of the building contractor. 61 As to specific deterrence, the defendant initially indicated that he continued to work in the industry. However, this submission was withdrawn. I am satisfied that the evidence demonstrates that the defendant has effectively left the industry. Noting what was stated by the Full Court in Capral Aluminium (at [77]), in the light of these circumstances, I am satisfied that this is an 'exceptional circumstance' where there would be little utility in any penalty being imposed on the defendant for the purposes of specific deterrence. However, I do not consider that the circumstances are so exceptional as to warrant the notion of specific deterrence being entirely disregarded by the Court. 62 It is well established that any consideration of subjective features of a particular defendant must be subordinate to the nature and seriousness of the offence. However, as with the proceedings against the building contractor, there are, in my view, powerful subjective considerations that ought be taken into account in mitigation of the penalty that would otherwise be imposed for an offence of this nature. The defendant accepts that it was his responsibility to ensure the pool was rendered safe and consequently it was his failure, in part, which gave rise to the relevant risk. 63 The defendant submitted that the prosecution in these proceedings was important and that it would hopefully assist those involved in the industry of domestic construction in recognising the extent of their responsibility to ensure that their place of work was safe for both employees and those not in the employ of the relevant entities. I observed the defendant carefully in the making of this submission and I am satisfied that this concession was earnest and not merely some attempt to curry the Court's favour. It is a submission with which I most definitely concur. 64 The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources (Chief Inspector Terrey) v A M Hoipo & Sons Pty Ltd (1999) 99 IR 137 (at [50]): 50 It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200 - 201.

[82]

When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. ... 66 I would reiterate what I stated in WorkCover Authority of NSW (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 (at 476): Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see Rahme (1989) 43 A Crim R 81 at 86 (See also Inspector William Hopkins v Michael Wherritt trading as MJ Wherritt Concrete Pumping Services [2002] NSWIRComm 16 at [51] and [60]). I consider that the financial circumstances of the defendant should result in a substantial reduction of the fine which would otherwise have been imposed by the Court. 67 As noted earlier, there are powerful subjective features in this case which, in my view, warrant a significant reduction in the penalty which would otherwise have been imposed. I have given serious consideration to the application of s10 of the Crimes (Sentencing Procedure) Act to the present circumstances. However, I decline to do so. I do not consider that this matter exhibits the extraordinary and highly exceptional circumstances as would warrant the exercise of the Court's discretion in this regard in favour of the defendant: Profab, Australian Grader Hire and Berrima Coal (at [166] - [202]. In particular, I consider that the objective features of this matter do not warrant the exercise of the Court's discretion in favour of the defendant under s10 of the Crimes (Sentencing Procedure Act). Further, I would reiterate what was stated above as being the fundamental duty of this Court. I consider the observations of Street CJ in R v Rushby [1977] 1 NSWLR 594 are apposite in the present circumstances (at 597):

[83]

If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment. 68 Contrition, repentance and remorse after an offence are mitigating factors which may lead to a reduction in the sentence otherwise to be imposed: A M Hoipo & Sons Pty Ltd (at [64]); Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46 (at [17]). I consider that the defendant is contrite and has demonstrated a high level of remorse. I have also had regard to the significantly adverse changed personal, business and professional circumstances of the defendant which arose as an aftermath of the incident: see Berrima at [201]. It is appropriate to take account of the defendant having assisted the prosecutor with its investigations. Further, I consider, on the evidence of the defendant, noting that there was no demur on behalf of the prosecutor, the defendant has otherwise operated as a good industrial citizen for a period of some 20 years without prosecution having been brought against him. 69 In addition to the above discussion as to the relative contribution of an offender to the risk giving rise to prosecution, and noting the defendants unrepresented status in these proceedings, I consider it necessary to consider notions of parity between any sentence imposed on the building contractor and the present defendant. Ensuring disparity in sentencing through considerations of parity is important to the administration of justice: Griffiths v The Queen (1997) 194 CLR 293 at 326 - 327; McDonalds at 434. 70 Justice Kirby in Postiglione v The Queen (1997) 189 CLR 295 described the principle of parity and the distinction between the concept of parity and totality in the context of the overall sentencing process, as follows (at 341): The sentencing judge must first reach a conclusion as to what seems to be the appropriate sentence having regard to the maximum fixed by Parliament for the worst case and the norm that is appropriate to the objective criminality of the case. The judge must then adjust that sentence, where appropriate, for the factors personal or special to the offender, discounted by any relevant considerations (for example co-operation with authorities or absence of remissions). But it still remains for the judge to look back at the product of these calculations and discounts. It is then that the sentencing judge must consider whether the resulting sentence needs further adjustment. It may do so because it is out of step with the parity principle requiring that normally like cases should be treated alike. Or it may offend the totality principle because, looking at the prisoner's criminality as a whole, the outcome is, in its totality, not "just and appropriate". The last-mentioned conclusion will the more readily be reached where the judge comes to the conclusion that the outcome would be "crushing" and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform. (See also McHugh J at 306 and 313) 71 The principle of parity was succinctly stated in the joint judgment of Dawson and Gaudron JJ in Postiglione (at 301 - 302) as follows: The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in their being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison

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