Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan [2001] NSWIRComm 106 (25 May 2001)

Last Updated: 12 June 2001

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan [2001] NSWIRComm 106

FILE NUMBER(S): IRC 7002

HEARING DATE(S): 25/07/2000

DECISION DATE: 25/05/2001

PARTIES:

APPELLANT:

The Crown in Right of the State of New South Wales (Dept of Education and Training)

RESPONDENT:

Inspector William Kevin Keenan

JUDGMENT OF: Wright J President Walton J Vice-President Hungerford J

LEGAL REPRESENTATIVES

APPELLANT:

Mr P Menzies QC and Mr M P Cahill of counsel

Department of Education and Training

(Mr John Murn)

RESPONDENT:

Ms A F Backman of counsel

WorkCover Authority of New South Wales

(Mr Bruce Whitehead)

CASES CITED: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, (2000) 99 IR 29

Close (1993) 65 A Crim R 55

Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16

Corbett v. Borg (unreported, Hungerford J, CT95/1281 and CT95/1282, 15 May 1996)

Ferguson v Nelmac Pty Limited (1999) 92 IR 188

Giam (No 2) (1999) 109 A Crim R 348

Gordon (1994) 71 A Crim R 459

Mill v The Queen (1988) 166 CLR 59

Moore v E W Cox Pty Ltd (1990) 37 IR 147

Pearce v The Queen (1998) 194 CLR 610

R v Hayes (1984) 11 A Crim R 187

R v Kalache [2000] NSWCCA 2

R v Thomson; R v Houlton (2000) 49 NSWLR 383

R v Wheeler [2000] NSWCCA 34

State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218

Warman International Limited v. WorkCover Authority of New South Wales (1998) 80 IR 326

WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80

WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd t/a Boral Asphalt (No 2) (2000) 101 IR 458

WorkCover Authority of NSW v Commonwealth Steel Co Ltd (1999) 90 IR 297

WorkCover Authority of NSW v Company B Ltd [2000] NSWIRComm 119

WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited (1999) 98 IR 362

WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383

WorkCover Authority of NSW (Insp Donnelly) v Riverina Wool Combing Pty Ltd [2000] NSWIRComm 29

WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales [2000] NSWIRComm 179

WorkCover Authority of New South Wales v State Rail Authority (unreported, Kavanagh J, IRC 97/7032-7036, 13 October 1999)

WorkCover Authority of NSW v Waugh (1995) 59 IR 89

WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284

LEGISLATION CITED: Criminal Appeal Act 1912 s 5AA

Factories Shops and Industries Act 1962 s 27

Industrial Relations Act 1996 s 196

Occupational Health and Safety Act 1983 s 15 s 16 s 51A

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

FULL BENCH

CORAM: WRIGHT J, President

WALTON J, Vice-President

HUNGERFORD J

Friday, 25 May 2001

Matter No IRC 7002 of 1999

THE CROWN IN RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING) v INSPECTOR WILLIAM KEVIN KEENAN

Appeal against a decision of Justice Schmidt given on 6 December 1999 in Matters Nos IRC 598 and 601 of 1998

JUDGMENT OF THE COURT

[2001] NSWIRComm 106

1    This is an appeal by the Crown in right of the State of New South Wales (Department of Education and Training) against the severity of the penalty imposed on it by Schmidt J in a judgment delivered on 6 December 1999. The appellant pleaded guilty to one charge under s 15(1) of the Occupational Health and Safety Act 1983 and to one charge under s 16(1), arising out of an incident at Ballina High School on 13 February 1996. Her Honour concluded that the appropriate penalty for each offence was $180,000 and, after applying the principle of totality, imposed a total penalty of $300,000. The sole ground of the appeal is that the penalty imposed was manifestly excessive.

2    The appellant is responsible for the operation and management of public schools in New South Wales, including the Ballina High School. Mr Cyril Jones was undertaking a Job Train Landscape Course at the Ballina Campus of the Technical and Further Education Commission (TAFE). As part of this course, Mr Jones was sent to the Ballina High School for one week of work experience, performing outdoor maintenance tasks under the supervision of the school's general assistant, Mr Cecil David Piggott. Mr Jones' attendance at the school was arranged by one of his teachers at TAFE and the principal of the school.

3    On 13 February 1996 Mr Jones was operating a tractor with a slasher attachment in order to mow a playing field at the school. While performing this task, Mr Jones lost control of the tractor. Mr Piggott attempted to climb onto the machine while it was in motion to assist Mr Jones to bring it to a halt. In the process, Mr Piggot lost his balance and fell. The wheel of the tractor ran over his chest and the slasher attachment made contact with his foot and ankle. Mr Piggott suffered a fractured rib, soft tissue injuries to his chest, crushed vertebrae and severe lacerations to his left foot.

4    Section 15(1) of the Occupational Health and Safety Act requires that every employer "shall ensure the health, safety and welfare at work of all the employer's employees". The summons and particulars of the charge against the appellant under s 15(1) were:

Matter No IRC 598 of 1998

On the 13 February 1996 at Ballina High School, Burnet Street, Ballina, New South Wales the defendant, being an employer DID FAIL to ensure the health safety and welfare at work of all its employees and in particular Cecil David Piggott, contrary to Section 15(1) of the Occupational Health and Safety Act, 1983, in such case made and provided.

The Particulars of the charge are:

a. At all material times the defendant was responsible for the operation and management of the Ballina High School, Burnet Street, Ballina, New South Wales ("the said school").

b. At all material times, Cecil David Piggott was employed by the defendant as a general assistant, performing groundsman duties at the said school. These duties included operating and supervising others in the operation of an 885 David Brown CASE Tractor and Howard Rollamowa Slasher owned and utilised by the defendant at the said school.

c. On 13 February 1996 ("the said date"), in the course of his employment, Piggott was supervising a work experience trainee then present at the said school who was operating the tractor and slasher to mow a playing field at the school. As this work proceeded, the power takeoff shaft between the tractor and slasher was not securely guarded to prevent access to the rotating shaft while the slasher was being operated.

d. On the said date the defendant failed to provide or maintain plant that was safe and without risks to health in that it:

i. Failed to provide or maintain adequate guarding over the power takeoff shaft linking the tractor to the slasher to prevent risk of injury or contact with the rotating shaft while the slasher was in operation.

e. On the said date the defendant failed to provide or maintain systems of work that were safe and without risks to health in that it:

i. Failed to provide or maintain a system of work for the operation of its tractor and slasher equipment at the said school that ensured that such equipment was only operated by persons who had been adequately instructed in the safe operation of such equipment and assessed by it as competent in such operation.

f. On the said date the defendant failed to provide such training as may be necessary to ensure the health and safety at work of its employees, in that it:

i. Failed to adequately train Cyril John Jones in the safe operation of its tractor and slasher equipment, before permitting him to operate such equipment.

g. As a result of the defendant's said failures on the said date, Piggott was placed at risk of injury.

5    Section 16(1) of the Occupational Health and Safety Act requires that every employer "shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work". The summons and particulars of the charge under this section were:

Matter No IRC 601 of 1998

On the 13 February 1996 at the Ballina High School, Burnet Street, Ballina, New South Wales the defendant, being an employer, DID FAIL to ensure that persons not in its employment, and in particular, Cyril John Jones, were not exposed to risks to their health or safety arising from the conducts of its undertaking, while they were at its place of work, contrary to Section 16(1) of the Occupational Health and Safety Act, 1983, in such case made and provided.

The Particulars of the charge are:

a. At all material times, the defendant was responsible for the operation and management of the Ballina High School, Burnet Street, Ballina, New South Wales ("the said school").

b. At all material times, Cyril John Jones, an unemployed TAFE student, was present at the said school performing groundsman duties for the defendant as part of a work experience programme under the supervision and control of the defendant.

c. On 13 February 1996 ("the said date"), Jones was operating an 885 David Brown CASE tractor and Rollamowa Slasher owned by the defendant to mow a playing field at the said school. While performing this task, he lost control of the machine.

d. On the said date the defendant failed to ensure that persons not in its employment, and in particular Cyril John Jones, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work in that it:

i. Failed to provide or maintain plant, to wit, a (sic) 885 David Brown Tractor with attached Rollamowa Slasher that was safe, without risks to health and adequately fenced about its power takeoff shaft.

ii. Failed to provide or maintain a system of work for the operation of its tractor and slasher that ensured that such equipment was only operated by persons who had been adequately instructed and assessed by it as competent in the safe operation of such equipment.

iii. Failed to adequately train work experience trainees performing works at the school subject to its direction and control in the safe operation of its tractor and slasher equipment.

iv. Failed to carry out any or any adequate risk assessment of the task performed and equipment operated by work experience trainees at the school to enable it to design and enforce a safe operational procedure for the provision of work experience training to such persons at the school

e. As a result of the defendant's said failure on the said date, Jones was placed at risk of injury.'

6    The appellant pleaded guilty to both charges and a statement of agreed facts was admitted into evidence. That statement relevantly provided:

5. At all material times the TAFE Commission operated a Technical College known as the North Coast Institute of Technical and Further Education with a campus at Ballina, in the said State.

6. At all material times, Cecil David Piggott, 57, was employed by the defendant as a general assistant, performing groundsman duties at the said school.

7. At all material times Cyril John Jones, 46, was unemployed. He was a student in a Job Train Landscape Course at the Ballina Campus of the North Coast TAFE. He was present at the said school undertaking a one week work experience rotation as part of this course. He commenced at the said school on 12 February 1996.

8. Prior to 12 February 1996, Jones' attendance at the said school for work experience was arranged by Gregory Rober McPhee, one of his teachers at Ballina TAFE and an employee of the TAFE Commission, with David Hubert Milton Walshe, an employee of the defendant and Principal of the school. McPhee asked Walshe if the school could help out in Jones' case because a proposed arrangement with Ballina Shire Council for outdoor work experience had fallen through. It was arranged that Jones would attend the school for one week assisting the general assistant in grounds maintenance tasks and that he would perform this work under supervision from the defendant. At the time of arranging the work experience McPhee did not advise Walshe as to what specific items of ground keeping and maintenance equipment Jones had been trained to operate as part of the TAFE course, nor did Walshe enquire as to same. Walshe made McPhee generally aware of the kinds of task that might be involved in the work and that the work involved a range of implements regularly used in the school. Walshe did not specifically advise McPhee that Jones may be required to operate the tractor nor did McPhee ask what specific equipment was available at the school for Cyril Jones to be trained on. According to McPhee, Jones had a learning difficulty, McPhee did not advise Walshe of this.

9. On 13 February 1996 ("the said date"), at approximately 2.30pm Jones was operating a tractor with a slasher attachment to mow a playing field at the said school under Piggott's supervision. Jones got into difficulties and lost control of the machine. Piggott attempted to climb up on to the machine while it was in motion in order to depress the clutch pedal, and assist Jones to bring it to a halt. Due to the motion of the tractor, Piggott lost his balance and fell, and the rear wheel of the machine ran over his chest. Further, the slasher attachment being towed behind the machine ran over his left ankle and foot. As a result Piggott was injured, suffering a fractured rib on the right side, soft tissue injuries to the chest and right shoulder, a crushed T12 vertebrae and severe lacerations to the left foot involving tendon, nerve and bone damage. He required an extended period of absence from his employment, by reason of his injuries.

10. On the said date an Inspector of the WorkCover Authority attended the said school and, commenced an investigation into the circumstances of the accident and took photographs (attached hereto). Inspection at that time revealed:

(a) The said tractor was an 885 David Brown CASE fitted with a four post rollover frame. It carried registration plates no. KIZ 923.

(b) Connected to the three point linkage at the rear of the tractor was a Howard brand rollamowa slasher. Drive to the slasher was supplied by a power takeoff shaft connected to the tractor. A plastic guard was fitted over the power take off shaft, but this was damaged, exposing the rotating shaft at both the tractor and slasher attachment points. No injury was caused by the exposed power take-off shaft.

(c) The overall length of the tractor and slasher was approximately 3.84m, with the slasher being approximately 1.95m long and 1.25m wide. The outer edge of the slasher extended approximately 180mm beyond the width of the rear wheels of the tractor.

(d) The rear tyres of the tractor were approximately 1.2m diameter x 300mm wide. The distance from the tyre where it met the ground to the front roller of the slasher was approximately 600mm.

(e) The distance from ground level to the mounting step on the left hand side of the tractor where the clutch pedal was located was approximately 560mm. Foot brakes and foot accelerator were located on the right hand side of the tractor facing forward from the drivers position.

Attached hereto are two sketches of the accident scene.

11. According to Jones, he was inexperienced in the operation of tractors not having driven them or any other from of motor vehicle, apart from ride on mowers, before.

12. Prior to the said date as part of his TAFE Job Training Course, Jones had been trained in the usage of small motor equipment, including chain saws, whipper snippers and ride on mowers, but had not been trained in tractor operation.

13. Piggott ascertained from Jones that he had experience in operating small outdoor equipment, including chains saws, whipper snippers and ride on mowers and that he had no experience in driving a tractor. No detailed assessment of Jones' skills was carried out.

14. Prior to the said date the defendant maintained a comprehensive written work experience handbook and regional policy statement relating to the placement of school students in work experience programs as part of their studies. That handbook, inter alia, provided:

Restricted Activities:

Although not specifically prohibited, Principals would need to exercise extreme care in the placement of students in work situations where a high degree of risk can be anticipated, eg. Deep sea fishing, use of farm/gardening equipment, horseridiing, commercial shipping, long distance transport, aircraft maintenance.

The defendant's North Coast Region Policy Statement on Work Experience provided, inter alia:

Employer Orientation:

11.1 The value of work experience for the individual student depends to a large extent on the adequate preparation of prospective employers.

11.2 The careers adviser should, wherever possible, visit the workplace prior to the placement of students. This is to ensure that safety and welfare requirements are met. Employers must meet statutory requirements relating to licensing (where appropriate), health and safety.

15. The defendant maintained no written handbook or policy statement with respect to the management of work experience trainees placed with it because its schools rarely provided work experience to external students. When questioned as to the frequency of persons attending Ballina High School for the purpose of gaining work experience, Walshe indicated that they would probably average one per year, and that Jones had been the first groundsman placement.

16. As at the said date the defendant owned and operated approximately 437 tractors throughout the State of New South Wales. In this school, there was no formal system in place of regular safety audits of the tractor and associated equipment. The school was expected to ensure that such machinery was adequately maintained in a safe condition. A bulletin dated 21 August 1991 appearing in the Education Gazette (attached herein) brought the relevant safety regulations to the attention of schools. The said tractor had been utilised at the school since approximately 1989. The inadequate power takeoff shaft guard noted at the time of inspection had been in that condition throughout this time.

17. Prior to the said date the TAFE Commission maintained a written work experience policy in respect of the placement of its students. That policy provided, inter alia:

Role of course Coordinator/Teacher

3.4.1 The Course Coordinator/Teacher will co-ordinate the placement of students.

3.4.3 It is desirable for the course Coordinator/Teacher to inspect new work experience organisations to ensure their suitability.

3.4.4 Course Coordinators/Teachers must ensure that host employers are award of their responsibility to provide students with occupational health and safety information relating specifically to their enterprise and the work process in which the student is involved.

Role of the Host Employer

4.1 It is the responsibility of the supervisor of the host employer to provide occupational health and safety guidelines.

4.2 The supervisor should ensure adequate supervision of the student in the workplace.

18. Piggott had had some 19 years experience in driving tractors at the said school, but had not undertaken any formal tractor driving training or supervisor training courses. Prior to Jones, Piggott had trained about five or six persons to drive a tractor.

19. Prior to his commencement on work experience at the school, Jones attended an interview with Walshe and Piggott. Walshe asked Piggot (sic) to give Jones a broad range of experiences in order to assist him gaining permanent employment after he had finished his TAFE course. The range of tasks included such things as garden maintenance, weeding, pruning, mowing and minor repair work. Walshe asked Piggott to give Jones experience in using the range of implements available for this work., including such items as pruning equipment, mowers, whipper snippers and the tractor/slasher. Jones was present at these discussion. He seemed to Walshe to be enthusiastic about the range of possibilities involved and was keen to get as much experience as possible to provide him with better employment prospects. He indicated to Walshe his strong wish to get an outdoor job such as a gardener, landscaper, or in ground maintenance. Walshe particularly asked Piggott to exercise due care in the use of the school's various implements, including the tractor.

20. On the day of the accident, 13 February 1996, when Piggott arrived at work at 8.00 am Jones was there. Piggott instructed him to finish off hand mowing that he had started the day before. He did this until morning tea. After morning tea Piggott told Jones he would show him how to use the tractor and slasher. Piggott gave Jones a few visual lessons on what different parts of the tractor were for. Piggott then mowed strips on three sides of the hockey field. After this he told Jones to get on the tractor and gave him instructions on what the different parts of the tractor were for and how to use them, the lever to raise and lower the slasher, the power take off gear lever, where the brake and accelerator clutch were, how to start and stop, and operation of the hand accelerator. Piggott gave Jones a couple of dry runs on how to start and stop the tractor, how to raise and lower the slasher, and putting the power take off into gear which he thought Jones seemed confident to do.

21. Piggott then gave Jones a number of instructions about raising and lowering the slasher when mowing the hockey field. He then started the tractor and told Jones to put it into low range second gear, put the power take off into gear and move off slowly, which Jones did. Piggott walked beside the tractor to keep an eye on what Jones was doing for the first two cuts. He continued walking alongside and observing Jones. Jones did as instructed with no problems for approximately three quarters of an hour. Jones then stopped the tractor using the clutch and brakes, put it into neutral, pulled up the bell switch and turned off the ignition, then went to lunch at approximately 12.40pm.

After lunch, Jones got back on the tractor again and Piggott gave him a quick refresher on what had been done before Lunch. Piggott then suggested that Jones go up to the next gear on the tractor so as to mow a bit quicker than Jones had the previous session.

Jones started the tractor again, put it into gear and moved off. Piggott felt that this speed was too fast for Jones, put his hand up for Jones to stop and indicated to him to push the clutch in and put the gear lever into neutral. Jones' foot slipped off the clutch and the tractor jumped. As Jones tried to push the clutch in and change gears he started to panic. Piggott grabbed the front and rear roll bars, jumped on to the tractor and depressed the clutch. As he did Jones' foot came off the foot brake and went on to the foot accelerator. Piggott then overbalanced, fell between the front and rear wheel and was injured. Jones eventually brought the tractor to a stop.

23. The defendant has taken the following action subsequent to the accident at Ballina High School with a view to substantially reducing the possibility of a similar accident; developing policy in the area of accepting and supervising work experience placement at schools and generally continuing to improve Occupational Health & Safety in NSW government schools:

a) The defendant has promulgated two memoranda regarding school machinery safety (attached herein). A copy of WorkCover's booklet guide to the safe use tractors (attached herein) was issued with the memorandum dated 3 April 1997.

In addition the defendant's district staff welfare officers have been provided with copies of the relevant legislation to assist them in their role of providing advice to schools regarding the statutory responsibilities with respect to school machinery safety.

b) The defendant has comprehensively policy and procedures in place regarding the placement its school students in work experience and vocational education programs as part of their studies. However the acceptance for placement in schools of work experience persons from other institutions is not part of the usual operations of schools. Whilst the number of students placed in work experience by schools is very large, the number of students or unemployed that are placed in schools for work experience from other institutions is comparatively very small.

The defendant has recently developed policy and guidelines regarding acceptance for placement of work experience persons entitled "Supervising Unpaid Workplace Learning Placements" which will soon be issued to all schools, and DET offices (attached herein). This new policy stipulates, inter alia, that before a student or trainee begins a placement in school or DET office the principal, district superintendent or director must:

- identify, if relevant, with the education or training provider, the student's or trainee's level of experience, and competence in handling vehicles, machinery and livestock.

- request written details of the work to be undertaken and any special requirements such as assessment of competence or attendance.

- ensure that the relevant staff in the school or DET office understand the purpose and role of the placement being provided.

c) With a view to generally achieving improved outcomes for OH&S across the Department of Education and Training.

i) A committee including representatives of the Primary School Principals' Association and Secondary School Principals' Council and relevant areas of State Office of the defendant has been established.

ii) A departmental task force has been established to coordinate the development and implementation of a number of policies, strategies and support materials regarding occupational health, safety and rehabilitation, workers compensation issues and the implementation of WorkCover requirements.

Memorandum to Principals 98/3C13 - "Occupational Health Safety, Rehabilitation and Workers Compensation" dated 21 October 1998 is attached herein.

24. The defendant is currently reviewing strategies in relation to improvements with respect to tractor safety and occupational health and safety and will adduce further evidence of same.

7    The Crown had five prior convictions under the Occupational Health and Safety Act:

Date	Section	Court	Penalty $	Court File No
21/04/1995	15(1)	Industrial Court	25,000	CT93/1178
21/08/1996	15(1)	Chief Ind. Magistrate	1500	96/585
30/10/1996	15(1)	Chief Ind. Magistrate	5000	96/1087
12/12/1996	16(1)	Chief Ind. Magistrate	1500	95/434
07/09/1999	15(1)	Industrial Relations Commission	95,000	97/7324

The judgment at first instance

8    Schmidt J considered that, as a result of the appellant's prior convictions, s 51A had the effect of increasing the maximum penalty available by $250,000, resulting in a maximum penalty for each offence of $750,000. Her Honour doubted that s 51A allowed for the exercise of a discretion not to impose the additional penalty, but held that, if it did, it would not be appropriate to exercise such a discretion in the appellant's favour.

9    Her Honour noted that the appellant had no established policies relating to work experience students and that the arrangements put in place on this occasion were "seriously deficient". Her Honour emphasised that the obligations imposed by the statute required a pro-active approach to safety and that employees needed to be protected from their own actions whether they were foolish, negligent or even heroic: see WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. The appellant paid little attention to the training or experience of the student before he was given the opportunity to drive the tractor.

10    In considering the nature and quality of the offences, her Honour took into account the fact that the injuries suffered by the employee, Mr Piggott, were serious. Her Honour held that:

Here the nature and quality of the offences to which there has been a plea were serious ones, as the defendant accepted in its submissions. The resulting risks to safety were both obvious and foreseeable and arose in circumstances where the defendant had not taken easily available steps which might have prevented the accident. These include steps such as informing itself as to whether the student suffered from any relevant learning difficulties; providing employees with relevant policies and procedures for instructing work experience students and ensuring that if, during a work experience programme, a student was to be instructed in driving a tractor, that such training would be provided by an employee who also had appropriate training and experience in such instruction.

11    Schmidt J took certain factors into account in mitigation, namely the guilty plea, relevant existing safety policies, and steps taken by the appellant after the accident. Her Honour also considered the appellant's record and the fact that in respect of the Department of Education and Training it had not previously been convicted of an offence under the Occupational Health and Safety Act. (Her Honour had rejected the appellant's submission that offences committed by other government departments could not be considered.) Her Honour considered that all these matters "must lead to a substantial reduction in the penalty otherwise imposed".

12    Her Honour expressed her conclusions in the following way:

Having considered all of these matters, I have concluded that it is appropriate that a penalty must be imposed for each offence to which the defendant has pleaded guilty. The principle of totality must also be applied. Kavanagh J in WorkCover Authority of NSW (Insp Milligan) v State Rail Authority of New South Wales (Unreported, 13 October 1999), recently considered the proper approach to that principle, having regard to authorities such as Warman and WorkCover Authority of NSW v Waugh and Another (1995) 59 IR 89 at 100 and King v Pearce (sic) [1998] HCA 57, where it was said that:

The principle of totality allows a Court in sentencing to avoid a straightforward arithmetical addition of sentences appropriate to each individual offence where the offences are similar, thus avoiding doubling of the penalty by enabling the judge to consider a single overall penalty which includes the circumstances of a second or further offence.

This is an approach similar to that adopted by the Full Court in Warman and by Hungerford J in Corbett v Borg (Unreported, 15 May 1996), and one which I also propose to follow.

The detriment to safety which the accident highlighted was a serious one. I have concluded that midrange penalties at the lower end are appropriate. In all of the circumstances I have concluded that the penalty which should be fixed for each offence is $180,000, but that applying the principle of totality, the total penalty should be $300,000.

The appellant's submissions

13    The appellant accepted that significant punishment was appropriate and that the penalty of $180,000 identified by her Honour was appropriate for the charge under s 15. The appellant's central submission, however, was that the total penalty of $300,000 was manifestly excessive because both offences "arose out of what were essentially the same failures". Since "the criminality in each case was the same", the penalty of $180,000 ought to have been imposed for both offences. Her Honour's approach of imposing a penalty of $180,000 for each offence effectively doubled the appropriate penalty.

14    In its written submissions, the appellant described the essence of both offences as "a failure to fence and a failure to ensure that the operator of the machine was adequately trained". Mr P Menzies QC, who appeared with Mr M P Cahill of counsel for the appellant, in oral submissions, argued that:

... there was still really only one essential defect, and that is the failure to have an appropriate system of training and guidance of people who came into the premises to work as work experience students.

15    The appellant submitted that there were two approaches to sentencing which could be applied in circumstances where the two charges related to essentially the same failures. Its principal submission was that, in such a case, "the conventional and appropriate method is to impose a single penalty for both offences". The appellant cited the case of Moore v E W Cox Pty Limited (1990) 37 IR 145 at 149 in support of this submission. It contended that it was not appropriate to apply the totality principle, as it is "more aptly applied in circumstances where there are a number of offences each involving separate acts of criminality".

16    The appellant's alternative submission was that the proper application of the principle of totality would also lead to the conclusion that an appropriate total fine for both offences was $180,000. Totality requires consideration of the "whole of the criminality" and, in circumstances where there was a "common substratum of facts" and where the "gravamen of each offence" was "in effect, identical", the appropriate fine for both offences was $180,000. This result could be achieved either by imposing no penalty on the second conviction, or by applying the same penalty to each offence, adding them together and then halving that figure.

17    The appellant did not challenge her Honour's conclusion that the maximum penalty for each offence was $750,000. It also accepted that her Honour was correct in considering it was appropriate to take into account prior convictions by other arms of the State, but submitted (as her Honour accepted) that it was relevant that the State had not previously been convicted through the Department of Education and Training.

The respondent's submissions

18    Counsel for the respondent, Ms A F Backman, accepted that the offences related to "a number of successive failures" by the appellant which were "common to both offences". Counsel conceded that the two offences related to essentially the same failures. The respondent stressed, however, that the "distinguishing feature which appropriately called for the application of the totality principle" was that the failures resulted in the risk of injury to Mr Jones and in actual serious injury to Mr Piggott. Counsel for the respondent stated that s 15 and s 16 of the Occupational Health and Safety Act establish "completely different offences" designed to protect different classes of people (employees and non-employees respectively).

19    The respondent argued that the principle of totality applied to the imposition of fines and that the principle had been appropriately applied by her Honour.

The nature of the appeal

20    This appeal is brought pursuant to s 196 of the Industrial Relations Act 1996, which applies s 5AA of the Criminal Appeal Act 1912. The nature of an appeal under these provisions was authoritatively reviewed by a Full Bench of the Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 621-623; (2000) 99 IR 29 at 37-39. The appeal principles were also summarised usefully by a Full Bench of the Court in an appeal against the severity of a sentence under s 15 of the Occupational Health and Safety Act in State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218. In that judgment this Court held (at 219):

[T]he appeal shall be by way of rehearing on the evidence given at first instance: s 5AA(3); the issue on appeal is not whether the trial judge fell into error but rather whether the appellate court is independently of the same opinion: NSW Sugar Milling Co-operative Ltd v Environment Protection Authority (1992) 59 A Crim R 6 at p 11 per Enderby J, with whom Hunt CJ at CL and Allen J agreed; the appeal is not a hearing de novo and new evidence may be adduced only with leave of the court: s 5AA(3A); the appeal court must consider afresh the ultimate issue to be determined: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at p 692; nevertheless, that does not mean the appeal bench will of necessity come to a conclusion in relation to penalty different from the sentencing judge but only that it must exercise the sentencing discretion: Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 at p 338; and, in independently determining an appropriate sentence, the appeal court nevertheless has regard to the way in which the matter was approached at first instance as a useful analytic device: Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at p 81.

We approach this appeal in accordance with these principles.

Totality principle

21    The determination of this appeal may usefully commence with a consideration of the principle of totality. 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: see R v Hayes (1984) 11 A Crim R 187 at 189 and Gordon (1994) 71 A Crim R 459 at 466. A similar approach had been adopted in relation to offences under the Occupational Health and Safety Act: see, for example, Moore v E W Cox Pty Ltd, and the authorities reviewed by Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383 at 456-458.

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.

[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.

26    In Pearce (at 624), the majority of the High Court referred to the earlier judgment in Mill v The Queen (1988) 166 CLR 59. In that case, the High Court (at 62-63) cited with approval the following passage from Thomas, Principles of Sentencing (2nd Edition, 1979, p56-57) as to the application of the totality principle:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.

27    There are a number of judgments of this Court and its predecessors which have applied the principle of totality to multiple offences under the Act. In WorkCover Authority of NSW v Waugh (1995) 59 IR 89 at 100, the Full Bench stated:

[W]e express the view that her Honour was not in error in her finding that the principle of totality was an available consideration on the question of sentencing. The principle of totality allows a Court in sentencing to avoid a straightforward arithmetical addition of sentences appropriate to each individual offence where the offences are similar, thus avoiding doubling of the penalty by enabling the judge to consider a single overall penalty which includes the circumstances of a second or further offence.

See also Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 339; Corbett v Borg (unreported, Hungerford J, CT95/1281 and CT95/1282, 15 May 1996); WorkCover Authority of NSW v Commonwealth Steel Co Ltd (1999) 90 IR 297 at 303; Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 211.

28    In view of these authorities and the judgment in Pearce itself, we do not accept the appellant's submission that, in accordance with the decision in Moore v E W Cox Pty Limited, her Honour should have imposed a single penalty covering both offences. To the extent that previous decisions such as Moore fail to consider separately the appropriate penalty for each offence before applying the principle of totality, they adopt an approach which is no longer available subsequent to the judgment in Pearce.

29    In an appropriate case, however, it may still be appropriate to impose a single penalty for multiple offences under the Act, but only as the result of the operation of the principle of totality after separate penalties have been assessed for each offence. However, we consider that the preferable course is that separate penalties should be imposed after the principle of totality is applied.

Common elements of multiple offences

30    The principle underlying the appellant's submissions was that a defendant should not be punished more than once for the same failures which may be the subject of multiple offences. This issue was considered by the High Court in Pearce at 623. In that case, McHugh, Hayne and Callinan JJ stated the principle in the following way:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. (emphasis added)

31    This statement of principle was applied in WorkCover Authority of NSW v Company B Ltd. In that case, the defendant was charged with one offence under s 15(1) and another under s 16(1) of the Occupational Health and Safety Act, arising out of the collapse of a temporary seating stand at a theatre performance. The collapse injured employees of the defendant and also members of the public. Boland J noted, at [71], that the defendant was "charged with two offences arising from the same set of facts and the gravamen of the offences is substantially similar".

32    His Honour observed, at [72], that the majority in Pearce "held that to the extent to which two offences of which a person is convicted contain common elements it would be wrong to punish the offender twice for the commission of elements which are common". His Honour therefore held that it was appropriate to apply the principle of totality. His Honour considered that an appropriate penalty for each offence, considered separately, would be $30,000, but that a total fine of $60,000 would be excessive. Applying the principle of totality, His Honour considered that the appropriate aggregate fine should be $40,000, comprising a fine of $20,000 for each offence.

33    A similar approach was adopted Wright J, President, in WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council at 298, in considering two charges under s 15(1) arising out of the one incident. His Honour's approach is set out in the following paragraph of the decision:

[37] Taking all those matters into account, the assessment of each of the offences is to be approached in the terms set out in Pearce v The Queen. It is therefore necessary to assess the appropriate penalty in relation to each charge and then apply the principle of totality. Although at one stage I considered that the second charge was the more serious, I have now concluded that each of them is to be regarded as equally serious. Each charge is circumscribed to an extent and each is specific and limited to a particular feature of an overall system or method of work, although the first charge relates to a failure to provide appropriate equipment. Having due regard to the various mitigating features referred to, and the particular circumstances of the defendant, the appropriate penalty in relation to the charge in matter number IRC99/1609 is $65,000 and the penalty in relation to the charge numbered IRC99/1610 should also be $65,000. The principle of totality, as discussed in Pearce v The Queen, then requires consideration of the overall culpability or criminality attributable to the defendant from both convictions, and in that process ensuring that there is no "double counting" of the culpability of the defendant from the respective offences. Approaching the matter in that way, I consider that the overall culpability of the defendant, (bearing in mind the significant practical overlap between the two offences, and the aggregate culpability arising from the effect of both breaches occurring at the same time and being evidenced by a single incident) would result in a total fine of $90,000. Having regard to the separate assessments of the culpability of the defendant in relation to the two offences, fines of $45,000 should be imposed in each matter. (emphasis added)

See also the judgment of Hungerford J in WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd t/a Boral Asphalt (No 2) at 470-471.

34    In Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 (a case decided before Pearce), a Full Bench of this Court treated the fact that different offences have strong connecting features as supporting the application of the totality principle. In that case, the Full Bench considered the appropriate penalties for a defendant convicted of five offences under the Occupational Health and Safety Act (under both sections 15(1) and 16(1)), and one offence under s 27(1) of the Factories Shops and Industries Act 1962. Those offences arose out of four accidents and one inspection at the defendant's premises. The Full Bench stated (at 339) that:

There were in our view clear features connecting a number of these events to each other. The first prosecution concerned a sheet metal rolling machine, which would appear to stand alone. The second and third prosecutions both related to the use and fencing of a fast loop moulding machine. The fourth prosecution related to a table mounted circular saw of some age which was sought to be replaced after the relevant accident by a new saw which itself, although freely available on the market, had two identified safety weaknesses which led to the fifth and sixth prosecutions. This inter-relationship seems to us to satisfy with considerable ease the proposition involved in the principle of totality that there be some similarity in the offences.

35    Subject to one consideration, that judgment reflects an appropriate application of the principle of totality, reflecting the need to avoid excessive punishment and to avoid "double punishment" for common elements of multiple offences. The last sentence of the passage cited, however, which seems to limit the circumstances in which the principle of totality is to be applied, appears to state the principle too narrowly and may well require reconsideration in subsequent Full Bench proceedings. See, for example, the judgment of the Court of Criminal Appeal in Close (1993) 65 A Crim R 55 at 59-60 where Hunt CJ at CL stated:

Whenever sentences are accumulated, careful consideration must always be given to the principle of totality - as to whether the simple addition of two or more sentences which may individually be appropriate has nevertheless produced a total figure which is excessive having regard to the totality of the criminality involved: Glenister [1980] 2 NSWLR 597 at 612; Holder and Johnston [1983] 3 NSWLR 245 at 260-261; (1983) 13 A Crim R 375 at 389-390. That principle is not restricted to sentences imposed for offences committed as part of a connected and roughly contemporaneous series of offences: L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 at 168; Bakhos (1989) 39 A Crim R 174 at 176, 177-178; Harrison (1990) 48 A Crim R 197 at 198-199. It was clearly relevant in this case. In such circumstances, all of the sentences which are accumulated should usually be adjusted downwards in order to produce an acceptable total sentence.

A similar approach was taken by Sheller JA at 56-57 and by Sully J at 70. However, this appeal does not require for its determination the resolution of that issue.

36    This review of the authorities establishes that in determining penalties for multiple offences under the Occupational Health and Safety Act the Court is required to determine separately an appropriate penalty for each offence. Having done so, the Court should then consider what the appropriate penalty should be by applying the principle of totality. Where the multiple offences contain common elements, the principle of totality must, for that reason alone, be applied to ensure that the defendant is not punished more than once for the common elements of the offences and to avoid the double jeopardy that would follow if that occurred. The principle must also be applied for the reasons stated in Pearce and Mill.

37    We should emphasise that the principle that a defendant is not to be punished more than once for the common elements of the offences does not require that a single penalty only should be imposed for the multiple offences. The Court is required to determine a separate penalty for each offence before applying the principle of totality. It will then usually be appropriate to fix separate penalties for each offence. It is in applying the principle of totality - which requires the consideration of the overall criminality involved in the offences - that regard should be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate.

38    In accordance with Pearce, we must first consider the appropriate penalty for each offence, assessed separately.

The appropriate penalty for each offence

39    We have considered the reasons of Schmidt J in assessing the penalty for each offence as $180,000, which have been summarised earlier in this judgment. We have also noted the appellant's concession that a penalty of $180,000 was appropriate for the s 15(1) offence.

40    Leaving aside for the present the question of totality, we consider that the approach adopted by her Honour was appropriate. We agree, in particular, that the offences were of essentially equal seriousness. In those circumstances, we would therefore consider appropriate the approach and reasons of her Honour.

41    We note, however, that her Honour indicated she allowed a "substantial reduction and discount" for mitigating factors, which included the appellant's guilty plea. Her Honour's judgment was delivered before the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383 delivered its guideline judgment as to pleas of guilty. The guidelines established in that judgment have been applied on a number of occasions in this Court: see, for example, the judgment of the President in WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales [2000] NSWIRComm 179 at [37] to [40], and [50], and that of the Full Bench in State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) at 236-237.

42    In this case, the appellant entered a plea at an early stage and co-operated fully with the WorkCover Authority. In accordance with the guideline judgment, and in expressing agreement with the penalty fixed by her Honour, we do so on the basis of quantifying the overall discount on the penalty for each offence at 25 percent for the guilty plea and associated considerations - see the guideline judgment at [160(ii)] and [162].

43    We now turn to consider the application of the principle of totality, in view of the appellant's submission that the two offences were essentially identical.

The relationship between sections 15 and 16 of the Occupational Health and Safety Act

44    The appellant was charged with an offence under both sections 15 and 16 of the Occupational Health and Safety Act. The relationship between these provisions was considered by Wright J, President, in WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited (1999) 98 IR 362. (Leave to appeal from this decision was refused: Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16.) His Honour considered an objection that a summons under s 16(1) used the language of s 15(2) to describe a charge under s 16(1) and was thereby invalid. His Honour said (at 372-373):

However, on their proper construction, s15 and s16(1) are to be seen as in part parallel provisions. Both impose liability on employers. Section 15 imposes liability to "ensure health, safety and welfare at work of all of the employer's employees"; whereas s16(1) imposes an obligation to ensure that persons who are not employees of the employer are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking whilst at the employer's place of work. Both provisions contain a subsection which provides that, if in proceedings against a person for an offence under the section, the court is not satisfied that the person contravened the section, but is satisfied that the act or omission concerned constituted a contravention of the other section, the court may convict the person of an offence against that section: (sub-sections 15(4) and 16(3)). Some confirmation of the interrelationship of these sections is provided in the useful discussion by Bauer J in his Honour's judgment in Workcover Authority of New South Wales (Inspector Reid) v CSR Limited t/as CSR Wood Panels (unreported, matter number CT 1176/94, 10 August 1995) at pages 24-25. See also his Honour's discussion of the elements of the offence created by s16(1) at page 12 of that judgment.

Without seeking to be exhaustive, there are various circumstances in which an employer may have a duty under s16 to a "non-employee". For example, a person could be present at the employer's place of work as an independent contractor, or pursuant to another kind of contract or as an invitee. At least in some of the relevant circumstances the "non-employee" would be there to carry out work; and thus potentially subject to the system or systems of work, or lack of them, that might occur at the employer's premises. Of course, s16(1) is not limited to circumstances where a "non-employee" is at the employer's premises carrying out work. While the criterion upon which the provision operates is that such persons not be exposed to risk to their health or safety arising from the conduct of the employer's undertaking, without being categorical, that duty would often arise when a non-employee is present and performing work.

Thus, when the practical circumstances envisaged by the form of s16(1) are considered, and the evident purpose of the provision is identified, it does not follow, as the defendant contends, that the use of language derived in whole or part from words in s15(2) is inappropriate to describe offences said to arise under section 16(1), or a summons using such words is thereby invalid. Whilst it is to be accepted that the language of parts of s15 derives from the common law (see for example, the discussion by Fisher CJ in Boral Gas (1995) 37 NSWLR 150 at 153) the fact that important features of s16 (namely "its terms, its essential elements, its field of operation and its common law jurisprudential background" - as referred to in the defendant's submissions) may not be applicable to s15 is, for present purposes, irrelevant. 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. [emphasis added]

The common elements of the offences

45    It is appropriate to refer to the submissions of counsel for the respondent, at the hearing of this appeal. Ms Backman submitted that:

The submission made by my learned friend in relation to the respondent's submission is correct in that I submitted in this regard that even though the two separate offences under sections 15 and 16 do deal essentially with the same failure, the important distinguishing feature here of course was that there were different victims. Having said they deal substantially with the same failure, I do note as an aside that the particulars in each of those summonses are different. There is, for example, an additional particular in relation to the summons under section 16 subsection (1) concerning the non-employee. There is the additional particular (d) which relates to a failure to make an adequate assessment. So there is that difference, which I say is not of any real significance in terms of the failures nevertheless being essentially the same for both offences.

46    The respondent therefore conceded that the failures identified in the two offences were essentially the same. It was emphasised, however, that the persons exposed to danger were different (in that one was an employee and one a non-employee), and that the particulars of the two offences were not identical.

47    We accept that, in this case, the obligations owed to the employee under s 15 and to the work-experience student under s 16 (and the classes of persons represented by them) were clearly distinct. The particulars of the two charges were not identical. Specifically, the summons in Matter No. IRC 601 of 1998 - the s 16(1) charge - alleged a failure to carry out an adequate risk assessment of the task performed and equipment operated by work experience trainees at the school. There is no equivalent in the summons in Matter No IRC 598 of 1998.

48    Analysis of the respective summonses, however, demonstrates that there was a considerable overlap between the failures charged in the two offences. Both summonses alleged failures to:

· Provide or maintain plant that was safe, particularly the failure to adequately guard the power take-off shaft;

· Provide or maintain a system of work that ensured that the tractor and slasher were only operated by persons who were adequately trained, etc;

· Adequately train Mr Jones (or other work experience trainees) in the safe operation of the tractor and slasher equipment.

49    The two offences plainly contained very substantial common elements.

Conclusions

50    Her Honour considered that the appropriate penalty for each offence, considered separately, was $180,000. As we have indicated, the applicant has accepted that penalty as appropriate and we agree with her Honour's assessment. Her Honour applied the principle of totality and imposed a total penalty, for both offences, of $300,000. Her Honour therefore reduced the overall penalty by $60,000 as a result of the application of the totality principle.

51    In view of our conclusion that the two offences contained very substantial common elements, it could not be considered that the deduction made by her Honour was appropriate and sufficient. In a case such as this, the totality principle must be applied to ensure that the defendant is not punished more than once for the common elements of the offences and that the resultant penalty is appropriate to the overall criminality of the offences for which the defendant is being sentenced.

52    To impose an overall fine of $300,000 for two separate offences for which the separate penalty for each was $180,000 and where there was a substantial overlap or intersection of the criminality or culpability of the defendant is to fail to apply properly the principle of totality. The judgment at first instance involves error and must be set aside.

53    Taking into account the separate penalties of $180,000 assessed for each offence, and the very substantial common elements in the two offences by applying the totality principle, the total fine should be $210,000. That penalty reflects the overall criminality of the appellant and also the discount we have determined by applying the guideline judgment. As we have held that each offence was equally serious, a penalty of $105,000 should be imposed on the appellant for each offence.

54    The Court therefore makes the following orders:

1. Appeal against the judgment of Schmidt J in relation to penalty upheld.

2. The fine imposed by Schmidt J quashed.

3. In lieu of the fine imposed by Schmidt J, the following fines are imposed on the appellant, with a moiety in each case to the prosecutor:

a) As to Matter No IRC 598 of 1998, a fine of $105,000;

b) As to Matter No IRC 601 of 1998, a fine of $105,000.

4. The respondent to pay the appellant's costs as agreed or, in default of agreement, as assessed.

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LAST UPDATED: 28/05/2001