McCracken v Johnsen [2003] ACTSC 74 (12 September 2003)

Last Updated: 14 October 2003

RODNEY DOUGLAS MCCRACKEN v MARK RAYMOND JOHNSEN

[2003] ACTSC 74 (12 September 2003)

OCCUPATIONAL HEALTH AND SAFETY - in control of a workplace - all reasonably practicable steps to ensure that the workplace was safe - responsibility for third parties outside workplace - choice of explosives and methods - expulsion of debris from explosion site - exclusion zone.

OCCUPATIONAL HEALTH AND SAFETY - penalties - whether manifestly excessive - gravity of offence - death of third party - all reasonable precautions.

Magistrates Court Act 1930 (ACT), s 216(1)

Occupational Health and Safety Act 1989 (ACT), ss 3, 27, 28, 29, 30, 31

Statute Law Revision (Penalties) Act 1994 (ACT)

The Interpretation Act 1967 (ACT), ss 33A, 33AA

Law Reform (Miscellaneous Provisions) Act 1999 (ACT), s 6

Crimes Act 1900 (ACT), ss 15, 20, 25, 28(2)(b)

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

Pearce v R [1998] HCA 57; (1998) 194 CLR 610; 103 A Crim R 372

Boral Building Services Pty Ltd v Denis James Gazley [1997] ACTSC 68 (12 September 1997)

Wong v R [2001] HCA 64; (2001) 207 CLR 584

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 61 of 2001

Judge: Higgins CJ

Supreme Court of the ACT

Date: 12 September 2003

IN THE SUPREME COURT OF THE )

) No. SCA 61 of 2001

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: RODNEY DOUGLAS MCCRACKEN

Appellant

AND: MARK RAYMOND JOHNSEN

Respondent

ORDER

Judge: Higgins CJ

Date: 12 September 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This is an appeal from a decision of Magistrate Doogan made on 6 July 2001. Her Worship accepted a plea of guilty tendered by the appellant to an offence alleged in an information laid 19 October 2000 and expressed as follows -

... that between 20 April 1997 and 14 July 1997 at Canberra ...[the appellant] contravened section 29 of the Occupational Health and Safety Act 1989 in that being in (sic) an extent in control of a workplace, namely the Royal Canberra Hospital, Acton Peninsula, he did not take all reasonably practicable steps to ensure that the workplace was safe and without risk to health.

2. Her Worship convicted the appellant and imposed a fine of $15,000.

3. A Notice of Appeal was filed in this Court on 27 July 2001. This had the effect, firstly, of staying the enforcement or execution of the penalty (s 216(1) Magistrates Court Act 1930 (ACT)). Secondly, it engaged the power of this Court, in its appellate jurisdiction, to "affirm, reverse or vary" the decision in question.

4. The grounds of appeal were -

1. The penalty imposed was determined on matters which were not in evidence.

2. There were errors of law made by the Magistrate in determining the penalty.

5. The first of those grounds was not really addressed. The real objection, it became apparent, amounted to an assertion that the penalty imposed was manifestly excessive.

6. The second ground, as explained, came dangerously close to a denial that the offence had occurred. That explanation included an assertion to the effect that, for the purpose of penalty, consequences that might justify an allegation that a more serious offence had occurred should be regarded as irrelevant - see R v De Simoni [1981] HCA 31; (1981) 147 CLR 383. It was submitted that her Worship had fallen into error in that she had incorrectly applied that principle.

THE FACTUAL BACKGROUND

7. The matter had proceeded by way of a disputed statement of facts. Thus, though a plea of guilty had been tendered, it was necessary for her Worship to make findings of fact relevant to penalty and, also, to satisfy herself that the plea of guilty was supportable.

8. As her Worship observed -

The statement of facts was presented on 18 May [2001]. It noted the consequences of the implosion of the hospital on 13 July 1997, the death of Katie Bender, the injury to Neil Murray, the background to the defendant's employment on the site and his preliminary preparatory work on the two buildings, being the main tower and Sylvia Curley House.

Notably, the statement of facts contains information which alleges that the methods used by the defendant to implode the buildings was (sic) defective, that insufficient and ineffective protective measures were used, and that the defendant did not calculate an appropriate exclusion zone for spectators.

The defendant disputed many of the allegations regarding the defective methodology, all of the allegations regarding his failure to provide effective protection, and denied that he had miscalculated the exclusions (sic) zone. Consequently, the case proceeded to hearing for 3 days on the disputed facts.

9. It was the prosecution's contention that the appellant had erred in using bulk explosives without extensive testing to anticipate and guard against the expulsion of debris from the explosion site.

10. The appellant's evidence was that he had been unaware of the potential difficulties with the steel columns supporting the tower block when he tendered for the job. After he became aware of the nature of the structure he formed the intention of using "linear cutting charges" to effect the implosion, but felt obliged to change his plans upon finding that they could not be made available in sufficient time to meet the "deadline".

11. The "deadline" arose because, before the implosion, the then ACT Government had announced that the implosion would be a public spectacle and fixed a date and time for it. In response to that announcement and subsequent media promotions, about 100,000 persons gathered around the hospital, mostly on the shores of Lake Burley Griffin opposite Acton Peninsula. There were numbers of persons on small boats on the lake itself outside an "exclusion zone", tragically insufficient as it transpired, of 400 metres. Pieces of debris, often weighing more than one kilogram and in numerous chunks, were projected into the lake amongst the craft upon it, and across the lake to the opposite shores and amongst the gathered crowds. The awful consequence was that one spectator, 12 year old Katie Bender, was horrifically and fatally injured when a piece of metal shattered her head.

12. Debris was projected over one kilometre from the explosion site. It was extraordinary, given the number and size of the projectiles expelled from the explosion site, that whilst some other injuries were inflicted and some vehicles were damaged, no-one else was killed.

13. Notwithstanding his inability to obtain the preferred explosives which, presumably, would have lessened the risk of projectiles being expelled from the site, the appellant decided to "cut the steel in half moon cuts, use Riogel explosives and steel backing plates which were placed between the charges and the webs [of the steel columns]. He decided, her Worship found -

At one stage he was going to use the linear cutting charges, but use it only in relation to the bracing columns. He said that he'd never used Riogel before, had never used backing plates before. He said that he'd done a test shot on a column in the stairwell using 1 kilo of explosives. He said the column fractured, and a portion of the plates and web were projected some 6 to 8 metres.

14. He considered the problem to have been "something wrong with the steel" rather than too much explosive. He agreed that it had been his decision to use the quantity of explosive he did and the method of operation he employed. He denied that the method adopted was undesirable, even though he had been given a document from Workcover estimating that 1.5 kilos of explosive per column was recommended. He used 5 kilos on some columns and 8 kilos on others.

15. As her Worship observed -

The defendant also agreed that he increased the explosive, or the amount of the explosive to be used against the backing plates by 25% when he decided not to use the linear charges, but did this without any consultation, without any tests being performed. He agreed that a higher bund wall would have prevented more fly material, and that sandbags could have contained some of this material also. The defendant said that he was not "comfortable" that at the time he had done everything which he needed to do.

16. Her Worship concluded, in assessing the appellant's culpability -

The defendant was the expert on explosives. He was the person who selected the method to be used and the amount of explosives to be used. It is of serious concern that he chose a method which he had not used before, that he performed no tests, or no adequate tests, of that method; that he decided upon it at a very late stage in the timetable; that he proceeded without any, or any adequate, consultation; that he was unaware, at the end, of how much explosives he had used; that he had some early concerns about the steel beams, but did nothing to allay those concerns, and chose the method which, on all accounts, was inappropriate for implosion of buildings containing steel structures.

If he did not know how the steel would behave, he should have. If he did not know what method to use or type of explosives or quantity, then he should have. The defendant puts himself forward as an expert in his field. He is, to all intents, a professional. Now, that professionalism demanded that he use every skill he possesses, every ounce of his expertise and every means at his disposal to investigate, evaluate and determine what was the right and proper procedure to adopt for the task at hand, and to ensure the safety of all those concerned.

I find that the defendant did not do that. It is not enough to, say blame it on the steel. If he was not ready or felt pressured, then he could have asked for a delay. He admitted this. This was within his control.

17. Her Worship acknowledged that the defendant had pleaded guilty at an early stage and had no prior convictions. He had "a solid reputation in his field". He cooperated with police and would continue to do so, if required. He was genuinely remorseful. But, her Worship stated -

... the gravity of his failings is high. There can be no more reprehensible a breach of occupational health and safety standards and practices than one which results in the loss of human life. The potential risk of serious injury or death was foreseeable. The defendant on his own evidence was using between 400 and 500 kilos of explosives to implode a building which contained brittle steel. He had never imploded a building before this, and he had never used the method, being the backing plates, before.

He could not be secure in the knowledge that the implosion would go according to his plan, because he had no yardstick. Consequently, he could not have been satisfied and should not have been satisfied about the exclusion zone or the protective measures which he employed. Clearly, at one stage he thought that it may be prudent to use wire mesh to deflect any fly material, but cancelled this some days before the blast because it was too expensive.

The maximum penalty for this office is $25,000. In considering the appropriate penalty, I take and have taken into account, all of the matters to which I have been referred. All of those matters which are contained in the submissions and that have been put to me on the defendant's behalf. I have also had regard to the information that has been put to me about the defendant's personal circumstances, and I am of the view that a fine in the amount of $15,000 is an appropriate penalty.

SUBMISSIONS OF COUNSEL

18. Mr Goldberg, solicitor for the appellant, raised a number of issues in support of the grounds of Appeal. A legal issue was whether the risk posed to persons outside the workplace was relevant. Some factual concerns were raised as to her Worship's findings. It is convenient first to deal with the legal issues.

Interpretation of the Legislation

19. The charge to which the plea of guilty was tendered on 19 May 2001 was laid pursuant to s 29 of the Occupational Health and Safety Act 1989 (ACT) (OHS Act). The blast that was intended to effect the implosion was set off on 13 July 1997. As noted, it was in proximity to a large crowd and was triggered by a lay person selected as a result of a competition sponsored by a local radio station. Any necessary steps to protect the health and safety of relevant persons were those mandated by the OHS Act as it stood on that date and not subsequently.

20. Section 3 of the 1989 Act set out the objectives of the OHS Act. Those were -

(a) to secure the health, safety and welfare of employees at work;

(b) to protect persons at or near workplaces from risks to health or safety arising out of the activities of employees at work;

(c) to promote an occupational environment for employees that is adapted to their health and safety needs; and

(d) to foster a cooperative consultative relationship between employers and employees on the health, safety and welfare of employees at work.

21. That remains the expressed objective of the OHS Act. Section 29 first came into effect on 9 April 1990 (see Gaz 1990 No. S6). It was in the following form -

A person who has, to any extent, control of -

(a) a workplace; or

(b) a means of access to, or egress from, a workplace; or

(c) plant or a substance at a workplace;

shall take all reasonably practicable steps to ensure that it is safe and without risk to health.

Penalty:

(a) if the offender is a natural person - $20,000; or

(b) if the offender is a body corporate - $100,000.

22. That was amended by Statute Law Revision (Penalties) Act 1994 (ACT) with effect from 29 November 1994. The penalties were increased to "250 penalty units" and "1,250 penalty units" instead of "$20,000" and "$100,000 respectively.

23. The Interpretation Act 1967 (ACT) (Interpretation Act) was amended on the same date so as to insert a new s 33AA -

Where the penalty for an offence is expressed in an Act as a number of penalty units, the reference to the number of penalty units shall be read as a reference to an amount of money equal to the amount obtained by multiplying $100 by that number.

24. That provision was itself repealed and substituted by 1999 No. 66 s 6 sch 3 (Law Reform (Miscellaneous Provisions) Act 1999 (ACT)). It now reads -

In an Act, if a penalty for an offence is expressed as a number (whether whole or fractional) of penalty units -

(a) the penalty is a fine of that number of penalty units; and

(b) the value of the penalty of the penalty unit for the offence is -

(i) if the person charged is an individual - $100; or

(ii) if the person charged is a corporation - $500.

25. The latter provision effected no substantive alteration to the penalty applicable to a breach of s 29 OHS Act but, if it had increased the penalty, as the 1994 amendment did, it would only apply to offences committed after the alteration took effect (s 33A(1) Interpretation Act). Conversely, a reduction in penalties is presumed to have retrospective effect on all pending and future proceedings (s 33A(2)).

26. Mr Goldberg's submission was that s 29 of the OHS Act, in context, is a provision for the safety of employees at or near the workplace and not third parties, such as the implosion spectators. Thus injury or risk of injury to such persons should have been regarded by her Worship as irrelevant.

27. He pointed to ss 27 and 28. Section 27 prescribes the duties of employers in relation to employees. The duty is, in essence, to take all reasonable steps to ensure the health and safety of all employees in or near any workplace under the employer's control.

28. Section 28 deals with the health and safety of third parties. It provides -

An employer shall take all reasonably practicable steps to ensure that persons at or near a workplace under the employer's control, who are not the employer's employees, are not exposed to risk to their health or safety arising from the conduct of the employer's undertaking.

Penalty: ....[as for s 29]

29. In my opinion, Mr Goldberg's submission is misconceived.

30. Mr Refshauge submitted that ss 27 and 28 are concerned with the duties of employers towards their employees on the one hand and non-employees on the other, to ensure their safety in relation to any workplace.

31. Section 28 in particular imposes duties on employers to ensure that non-employees "at or near a workplace under the employer's control" are protected from risk arising from the employer's activities in respect of that workplace.

32. In contrast, s 29 of the OHS Act imposes duties on any person who has control of a workplace (whether or not that person is an employer), to take all reasonably practicable steps to ensure the safety of persons on or near that workplace

33. Mr Refshauge further noted that s 30 dealt with duties of employees to avoid risk to others and that s 31 dealt with the duty of self-employed persons to ensure that their activities do not endanger the health or safety of others.

34. The sections all have the same maximum penalty for contravention.

35. I accept that there will be potential overlap between these sections, all of which envisage that persons subject to the relevant duty will take reasonable steps to avoid risk to the health and safety to others, whether the class of persons so protected is limited to employees or not. However, that is not to the point.

36. The issue is whether the appellant has breached s 29. If he has, and the same act or omission (or series thereof) offend, say, against s 28 or s 31, then whilst several charges might be preferred, the offender, even if convicted of each such charge, and that may involve double jeopardy, could not be punished twice for the same acts or omission in respect of the same person or class of persons - see Pearce v R [1998] HCA 57; (1998) 194 CLR 610; 103 A Crim R 372.

37. It was, in my opinion, unnecessary to attempt to separate the scope of ss 27, 28 and 29 of the OHS Act by according to them a meaning, not readily apparent from their wording, which would eliminate overlap.

38. It follows that her Worship did not err, if it is suggested that she did, in accepting the plea tendered nor in regarding the risk to persons outside the workplace as irrelevant. If Mr Goldberg's submission had been correct, then the offence could not have been committed. There was no risk to persons at the workplace. The only risk was to persons not within the workplace but within the area of the reach of blast debris.

THE PROPER PENALTY

39. Her Worship noted the plea of guilty. The lack of any prior convictions, the proved good character of the appellant and his remorse were all taken into account. It was noted that he cooperated with police and remained willing to cooperate further. There was, however, no evidence of the utilitarian value of that cooperation.

40. It was noted also by her Worship -

I accept that he is remorseful, but I am inclined to the same view as submitted to me by Mr Hastings [for the informant], that the [appellant] does not accept fault for his actions. However, this factor does not outweigh any findings that he is genuinely remorseful.

41. Her Worship then went on to consider the objective gravity of the admitted offence. In my opinion, her Worship's assessment of the gravity of the appellant's failure to take all reasonably practicable steps to ensure, inter alia, public safety was quite accurate.

42. Apart from a better assessment of the size of the explosive charges, other precautions not adopted included a higher and more extensive bund wall and the use of wire mesh to catch and deflect flying material. That such precautions were possible and effective was demonstrated by the fact that the nearby hospice building was not damaged by the blast or material from the blast site.

43. Those additional measures were not taken, because the appellant did not consider the expense or the delay warranted. It was not doubted that he acted in good faith and that he was a well qualified explosives expert, but this was, at least for him, an unprecedented project. It was reasonable for her Worship to find, in those circumstances, that he proceeded without the due care necessary to ensure that he was satisfied with the protective measures taken and the appropriateness of the exclusion zone. He could have delayed the implosion until he was so satisfied.

44. It reflected no credit on the appellant that some of the protective measures, in retrospect seen to be desirable, were not proceeded with on the ground of expense.

45. There is, perhaps, some excuse for the appellant in terms of his desire to avoid delay. The then Government and the media had combined to raise public excitement and expectation of a public spectacle. To cancel the implosion would have been a courageous call, but it was the defendant's duty, if safety concerns remained unresolved, to make that call.

46. Indeed, the penalty would have to reflect a strong deterrent element for that reason alone. That is, to strengthen the resolve of others in a like situation to firmly put the health and safety of employees and others to the forefront.

47. It must be emphasised that the nature of the offence is such that it does not involve, or necessarily involve, any moral turpitude such as might warrant more serious charges, such as manslaughter (s 15 Crimes Act 1900 (ACT)) (Crimes Act) or reckless inflicting of bodily harm (for example, s 20 Crimes Act). Nor such a degree of carelessness as would constitute "an unlawful or negligent act or omission" (s 25 Crimes Act). Nor are the alleged failures of the appellant to be taken to be sufficiently egregious as to offend s 28 2(b) of the Crimes Act (endangering "intentionally and unlawfully" by explosion, the health, safety or physical well-being of another).

48. The essence of the offence is the failure to take all reasonable precautions to avoid risk to the health or lives of those who might be affected. That serious consequences did follow is not to be considered so as to punish the appellant for those consequences. They are relevant, however, to illustrate the nature and extent of the risks to be avoided and, consequently, the gravity of the responsibility upon (inter alia) the appellant to take precautions.

49. Mr Goldberg, albeit accepting those principles, submitted that the culpability of the appellant was ameliorated and should have been regarded by her Worship as less culpable than she assessed it to be, by reason that -

1. She incorrectly assessed Mr Murray's evidence. (Mr Murray was an explosives expert and a Director of Applied Explosives Technology Pty Ltd).

Mr Murray had assessed the tests done by the appellant before the implosion as neither "a success or a failure". Her Worship, it is suggested, did not appreciate that. However, her Worship (AB6) does not suggest anything to the contrary. I cannot find any comment by her Worship suggesting that she made any adverse finding based on Mr Murray's evidence.

2. She failed to appreciate that the brittle fracture of the piece of flange was occasioned in the test referred to on 27 June 1997 by Mr Murray's use of larger charges.

It is conceded that the appellant used a lesser charge than Mr Murray had used on the occasion in question. However, the appellant also agreed that, having determined to use another method, he had without further testing increased the explosive to be used beyond that advised by Workcover, though he was entitled to consider that he had greater expertise.

Mr Refshauge concedes that the use of a lesser charge than Mr Murray had used (that experiment having produced fly material), was in the appellant's favour.

However, even allowing for that, it does not seem to me to render inappropriate her Worship's assessment of the level of the appellant's culpability.

3. She failed to pay due heed to the evidence of lack of experience of Mr Murray in the field of demolition.

On the contrary, I can find nothing in her Worship's sentencing remarks which places any reliance, adverse to the appellant, on Mr Murray's expertise. He was merely relied on as reporting the results of tests in which he had participated.

4. She failed to give (sic) proper regard to the evidence of Dr Jeffrey Douglas Gates in his assessment of the brittleness of the hospital steel columns.

Dr Gates was an expert on the behaviour of steel. The effect of his evidence was that the steel proposed to be severed by the explosion was "very brittle". That was added to by the coldness of the Canberra winter. Her Worship noted that Dr Gates' conclusion that the standard "Brunell test" would not have predicted the brittle behaviour of the steel in the subject columns. Insofar as her Worship concluded anything from this evidence, she accepted, it seems to me, that the behaviour of the steel when subjected to an explosive charge was not able to be predicted by standard testing of the steel.

She did comment, so far as the appellant's culpability was concerned, that "If he did not know how the steel would behave, he should have".

In the appellant's favour, he did not expect that the steel fragments would fly out as they did. However, it was fair comment to suggest, as her Worship did, that complete testing of the method finally decided upon was called for.

I can find no error in her Worship's assessment or use of Dr Gates' evidence.

5. She failed to have regard to the evidence of Mr Denis Appel as to inter alia the use of explosives.

Mr Appel was a former NSW Workcover employee with expertise in the proper use of explosives. He considered that the use of backing plates, as the appellant did, was appropriate and had not increased the risk of fly material. Her Worship did not reject that evidence, but qualified the effect of that statement by reference to the principle that adequate prior testing should always to be done and it had not been done in this instance.

The evidence of Mr Appel was not inconsistent with her Worship's findings. I can find no error in her assessment or use of it.

6. She failed to give proper regard to the evidence of Mr Caaran Christopher MacCarron with regard to the issue of bund walls.

Mr MacCarron was a special investigator with Work Safe Western Australia. His evidence was that bund walls are primarily used to deflect a blast wave, not to catch flying debris.

He also offered the opinion that the use of linear cutting charges would not have caused metal fragments to fly. However, the use of bulk explosives might well do so. He highlighted the need for "very stringent" testing.

However, her Worship's criticism of the appellant's preparation for the implosion did not suggest that the use of a more complete and higher bund wall would have averted the risk of flying debris. It was his failure to carry out "very stringent" testing of his proposed method and then taking whatever further measures were necessary.

I do not find any substance in this suggested criticism of her Worship's reasons.

7. She erred in giving weight to matters outside the ambit of s 29 of the OHS Act.

This related to the relevance of risk to persons outside the workplace. I have already dealt with that and concluded that her Worship's approach was not in error.

MANIFEST EXCESSIVENESS

50. The only remaining submission challenged her Worship's assessment of the level of the penalty.

51. The maximum penalty is $25,000. Despite Mr Goldberg's submission that the failures of the appellant to take more adequate precautions were minor, he conceded that, even having regard to the matters in favour of the appellant, a penalty of up to $12,000 would not have been manifestly excessive. In reply, the DPP accepted that a fine of $12,000 would be appropriate. He pointed out that the essence of the appellant's fault was the lack of prior testing. The appellant was not solely to blame for the decision to proceed without delay. He had recommended an exclusion zone of 700 metres. Others decided on 400 metres. Neither level of exclusion would, with hindsight, have been adequate. It does, however, indicate that the appellant did advert to and attempt to avoid the risk of projected material injuring or damaging persons or property. In the circumstances, the risk was a grave one, as her Worship found. It affected a large number of persons.

52. Reference was made to Boral Building Services Pty Ltd v Denis James Gazley [1997] ACTSC 68 (12 September 1997). I dismissed an appeal from a decision of Magistrate Madden to impose a penalty of $20,000 on the appellant in that case in respect of breaches of the OHS Act relating to a failure to provide safe and sufficient scaffolding for employees. The failures were certainly egregious. There had been created a "trap" into which a hapless worker had fallen, causing injury. More severe injury, even fatality, though the latter was unlikely, could have followed. The maximum penalty for each breach was $125,000.

53. I accept that a higher proportionate penalty was demanded in this case. The use of large quantities of powerful explosives in the vicinity of a vast crowd of onlookers demanded the highest possible standard of safety reasonably attainable. The appellant was the shot-firer. Had he chosen to cancel the proposed firing, he could have done so. He had not adequately tested the risks inherent in the enterprise he was undertaking.

54. A substantial fine was called for and her Worship imposed a substantial fine. The objective circumstances tragically illustrated the terrible risks involved in the exercise. I do not consider that her Worship was in error in noting the tragic consequences that followed. It is no breach of the De Simoni principle to assess the need for adequate precautions by reference to the consequences, both actual and potential, of the failure to take them. It may ultimately have had to be accepted that no exclusion zone less than, say 1.5 kilometres, was safe. It may, had all proper tests been done, have been concluded that implosion was impracticable without significant risk to the persons or property of persons who could not be excluded from the area of risk.

55. Despite the apparent concession by the DPP that a $12,000 fine would be an adequate penalty and Mr Goldberg's suggestion that the maximum called for would be $12,000, I have to ask myself whether the penalty imposed, even if towards the higher end of the available range, was manifestly excessive.

56. I note and acknowledge the guidance offered by the High Court of Australia in Wong v R [2001] HCA 64; (2001) 207 CLR 584. In particular, the joint judgment of Gaudron, Gummow and Hayne JJ criticised "a mathematical approach to sentencing". Such an approach -

[75] ... departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. ...the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all.

57. It follows that there is no mathematical formula which will rate the seriousness of the offence at, say, 48% of the maximum prescribed by law, or at 60% thereof. To decide that, in the case of time, a penalty of 15 months rather than 12 months would be excessive when the maximum is two years would run the risk, in my view, of "tinkering" with a sentence rather then forming a view that it was erroneous.

58. I might, had I been sentencing the appellant at first instance, have agreed that the appropriate penalty was that upon which the DPP and Mr Goldberg appear to have agreed. It should be noted that the DPP did not thereby concede that the penalty imposed by her Worship was erroneously excessive.

59. The task before me is to say whether her Worship erred in fixing the sentence she did. I do not believe that she did. It was a very serious case of failure to take all reasonably available precautions. There was, even disregarding the actual consequences, a serious potential for disaster on a very large scale.

60. I do not feel persuaded that the penalty imposed was manifestly excessive, even if it may be said to be towards the higher end of the range.

61. The appeal is dismissed.

62. I will hear the parties as to costs.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 12 September 2003

Counsel for the Appellant: Mr C Goldberg

Solicitor for the Appellant: Charles Goldberg & Co

Counsel for the Respondent: Mr R Refshauge SC

Solicitor for the Respondent: Director of Public Prosecutions for the ACT

Date of hearing: 13 June 2003

Date of judgment: 12 September 2003