Inspector Lancaster v Wollongong City Council [2005] NSWIRComm 79 (11 March 2005)

Last Updated: 14 March 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Lancaster v Wollongong City Council [2005] NSWIRComm 79

FILE NUMBER(S): IRC 1494 and 1495

HEARING DATE(S): 09/02/2005

DECISION DATE: 11/03/2005

PARTIES:

PROSECUTOR

Inspector Ian Lancaster

DEFENDANT

Wollongong City Council

JUDGMENT OF: Staff J

LEGAL REPRESENTATIVES

PROSECUTOR

Ms P Lowson of counsel

Solicitor: Mr N Correy

Moray & Agnew

DEFENDANT

Mr S Rothman SC

Solicitor: Mr C Wood

McCabe Terrill

CASES CITED: Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270

Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; (2000) 99 IR 29

Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432

Fisher v Samaras Industries Pty Limited (1996) 82 IR 384

Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66

Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317

Inspector Ian Lancaster v Burnshaw Constructions Pty Ltd [2002] NSWIRComm 319

Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474

Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337

Mill v The Queen (1998) 166 CLR 59

Pearce v The Queen (1998) 194 CLR 610

R v Carter [2001] NSWCCA 245

R v Ellis (1986) 6 NSWLR 603

R v Thomson; R v Houlton (2000) 115 A Crim R 104

Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78

Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 143

Tyler v Sydney Electricity (1993) 47 IR 1

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

WorkCover Authority (NSW) (Inspector Farrell) v Schrader (2002) 112 IR 284

WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397

WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323

WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81

WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited & Anor (No 2) (2000) 99 IR 163

WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248

WorkCover Authority (NSW) v Parkes Council (unreported, 10 April 1996)

LEGISLATION CITED: Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Occupational Health & Safety Act 1983

Occupational Health & Safety Act 2000

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

Coram: Staff J

11 March 2005

Matter No IRC 1494 of 2004

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR LANCASTER) v WOLLONGONG CITY COUNCIL

Prosecution under s 8(2) of the Occupational Health & Safety Act 2000

Matter No IRC 1495 of 2004

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR LANCASTER) v WOLLONGONG CITY COUNCIL

Prosecution under s 8(1) of the Occupational Health & Safety Act 2000

JUDGMENT

[2005] NSWIRComm 79

1 The defendant, Wollongong City Council, has pleaded guilty to two charges brought by Ian Lancaster, an inspector of the WorkCover Authority of New South Wales, under s 8(1) and s 8(2) of the Occupational Health & Safety Act 2000 ("the Act").

2 Mr Lancaster (the prosecutor) is authorised by s 106(1)(c) of the Act to institute these proceedings. The defendant is a statutory body corporate having its registered office at 41 Burelli Street, Wollongong in the state of New South Wales, and at all relevant times was responsible for road maintenance in its locality both in its own right and pursuant to an agreement with the Roads and Traffic Authority ("the RTA") in respect of such roads or highways as would otherwise be the responsibility of the RTA. The maintenance work included responsibility for the mowing of the median strip at Masters Road, Mount Saint Thomas where it is alleged that the offences and the accident which gave rise to the offences, occurred.

3 The charge in the application for order in the first matter, IRC 1494 of 2004 alleged that the defendant:

DID FAIL:

To ensure that persons not in its employment and including Jason Williams, were not exposed to risks to their health and safety arising from the conduct of its undertaking, namely the mowing of the median strip at the said place, while they were at its place of work in that the said non-employee sustained serious injury while driving in a westerly direction on the said road in vehicle registration number WKK 118 at approximately 60 to 70 kilometres per hour when same came into contact with the defendant's John Deere tractor, registration number VWE 549 with mower deck attached, which was being operated by the defendant's employee, Giovanni Raso, in carrying out the said undertaking and was also proceeding in a westerly direction in the outside lane at less than 10 kilometres an hour and the conduct of such undertaking in such manner by the defendant was unsafe by reason that:

1. It had not conducted any proper risk assessment with respect to the performance of the work involved in its undertaking;

2. It failed to develop and implement an appropriate safe work method statement for the performance of the work involved in the undertaking;

3. It did not have in place any appropriate traffic control plan for the performance of the work being undertaken;

4. The work pursuant to its undertaking was conducted without the provision of advance warning signs for traffic proceeding in the same direction as the tractor;

5. It failed to carry out the work in accordance with the requirements of AS1742.3 1996 Part 3 Traffic Control Devices for Works on Roads;

6. It failed to provide such information, supervision and instruction to the operator of the tractor to ensure that the work pursuant to its undertaking, was conducted safely by such operator.

4 The charge in the application for order in the second matter, IRC 1495 of 2004 alleged that the defendant:

DID FAIL:

To ensure the health, safety and welfare at work of its employees including Giovanni Raso ("the worker") in that the worker, whilst operating a John Deere tractor, registration number VWE 549, with a mowing deck attached, was engaged in mowing the edge of the median strip ("the work") and was proceeding in a westerly direction in the outside lane at less than 10 kilometres an hour when a blue Toyota Celica, registration number WKK 118, proceeding in the same direction at a speed of approximately 60 to 70 kilometres per hour, collided with the rear of the tractor driven by the worker, who sustained shock and emotional trauma consequent upon the collision, by reason that:

1. The defendant failed to provide and maintain a system that was safe and without risk to health in relation to the conduct of the work in that:

(a) it had not conducted any risk assessment with respect to the performance of the work;

(b) it did not have in place an appropriate traffic control plan for the performance of the work;

(c) the work was conducted without the provision of advance warning signs for traffic proceeding in the same direction as the tractor;

(d) it failed to carry out the work in accordance with the requirements of AS1742.3 1996 Part 3 Traffic Control Devices for Works on Roads;

(e) it failed to develop and implement an appropriate safe work method statement for the performance of the work.

2. The defendant failed to provide such information, supervision and instruction in relation to the work that may have been necessary to ensure the health and safety of its employees at work.

5 The particulars of the charge in each matter, excepting that one relates to the non-employee and the second, an employee, with one exception were identical. In the first matter, the final particular was:

At all material times on 29 April 2002 Williams sustained serious injuries consequent upon a motor vehicle collision between the vehicle driven by him and the said tractor of the defendant.

6 In the second matter, the final particular was:

On 29 April 2002 the worker sustained shock and emotional trauma when the plant which he was operating was struck by the aforesaid motor vehicle.

7 The other matters particularised in the respective summonses are set out to the extent relevant in the agreed statement of facts.

8 The prosecutor was represented at the hearing of the proceedings by Ms P Lowson of counsel. The defendant was represented by Mr S Rothman SC. The defendant entered a plea of guilty in respect of the charges.

9 An agreed statement of facts in the following terms (formal parts omitted) was tendered by the prosecutor, with the defendant's consent:

3. At all material times the defendant was an employer.

4. At all material times the defendant employed Giovanni Raso (date of birth 8 January 1938) as a plant operator ("the worker").

5. At all material times the defendant was a local council and was responsible for road maintenance in its locality both in its own right and pursuant to an agreement with the RTA in respect of such roads or highways as would otherwise be the responsibility of the RTA.

6. At all material times the maintenance work required to be undertaken by the defendant pursuant to its obligations included responsibility for the mowing of the median strip at Masters Road, Mount Saint Thomas in the state of New South Wales ("the site").

7. Masters Road, Mount Saint Thomas, is a six-lane road. It has three lanes that travel west towards Figtree and to allow both north and south access to the F6 freeway. It also has three lanes that travel east to allow access to Wollongong and the suburbs in the north and Port Kembla and suburbs in the south;

8. The six lanes, three for either direction, are separated along their entire length by a grass median strip approximately 1.3 metres wide. The road is approximately 800 metres in length from east to west intersections.

9. On and prior to 29 April 2002, for a considerable number of years it was part of the worker's usual responsibilities to conduct the task of edge mowing in respect of the median strip in Masters Road, Mount Saint Thomas. The worker would perform this task on a cyclical basis as part of the general maintenance work he was required to undertake for the defendant. On average the worker would perform this work at this site twelve times per year. The work would normally take approximately 10 minutes to perform, 5 minutes on each side of the road.

10. There were other locations for which the defendant had maintenance responsibilities where the worker performed mowing work in a similar way to the work on Masters Road.

11. On 29 April 2002 the worker was carrying out work in the course of his employment for the defendant and was operating a John Deere tractor registration number VWE 549 with a mower deck attached ("the tractor"). He was travelling in a westerly direction in the tractor on Masters Road in the outside lane conducting the work of mowing the edge of the median strip. The tractor occupied the whole of the outside lane, with the hydraulic edger extended over the median strip.

12. At all material times the tractor was proceeding at a speed less than 10 kilometres per hour, at between 5 and 8 kilometres per hour.

13. On 29 April 2002 Jason Williams (date of birth 9 April 1970) was the driver of a Toyota Celica, registration number WKK 118, which was also proceeding in a westerly direction in Masters Road, Mount Saint Thomas, at a speed of approximately 60 to 70 kilometres per hour, having joined Masters Road from the Springhill Road intersection.

14. The speed limit on Masters Road was 80 kilometres per hour.

15. Mr Williams was proceeding in the middle lane of Master (sic) Road and was following immediately behind a Pantechnicon-like truck. At no time while Mr Williams was in the middle lane did he observe the tractor, or any warning signs, lights or other indication that the tractor was present in the outside lane.

16. At approximately 10.00 a.m. on 29 April 2002, Mr Williams changed lanes to overtake the truck, accelerating to between 70 and 80 kmh as he did so. Upon drawing into the right hand lane Mr Williams for the first time saw the tractor, which was then approximately 15 to 20 metres in front of Mr Williams. Mr Williams' Celica came into collision with the rear of the tractor in the outside lane, approximately 500 metres from the Springhill Rd intersection.

17. Prior to the collision the driver of the Celica, Williams, had no warning of the tractor, it being obscured by the truck proceeding immediately in front.

18. The tractor being driven by the worker had hazard lights operating together with a flashing light attached to the front left hand corner of the roof of the tractor cabin. It also had road advisory signs attached to the mower deck at the rear of the tractor indicating as follows: "Grass Cutting - Road Plant Ahead". The signs attached to the mower deck were yellow with black writing.

19. There were no advance warning signs of the kind placed on the roadway at a distance from the work area to indicate the presence of road plant on the carriageway, nor was there advance warning signs recommending drivers to slow down because of the presence of road plant on the carriageway. No trailing patrol vehicles followed the tractor.

20. As a result of the collision between the Celica and the tractor, the worker sustained shock and emotional trauma which caused him to be off work for about four days and to work restricted hours for the following week. The cutting deck of the tractor had to be replaced and the hydraulic rams repaired. The driver of the Celica, Williams, sustained soft tissue injuries in the form of whiplash and his vehicle was written-off.

21. The worker was not supervised in the performance of this work. The maintenance work program was reviewed on a six monthly basis by the worker's supervisor, Charlie Formosa, however these reviews did not include any risk assessment or management, nor was any Traffic Control Plan developed for the performance of mowing of grass areas on RTA or Council roads, including Masters Road. No Job Safety Analysis or Safe Work Method Statement had been developed for the work.

22. Although some employees of the defendant were aware of Australia Standard AS1742.3 1996 Part 3 Traffic Control Devices for Works on Roads,

(i) neither the worker or his supervisor were aware of the Standard

(ii) the Standard had not been referred to or used as the basis of any risk assessment or job control plan for the work in question.

23. Shortly after the collision the defendant ceased performing mowing on all median strips and RTA owned land pending investigation, and subsequently ceased performing work on RTA owned land.

24. Prohibition Notice 137878 and Improvement Notice 236379 were issued on the defendant on 30 May 2002. The defendant subsequently developed a traffic control plan ("TCP") including a trailing patrol vehicle highlighting the presence of the tractor ahead, as well as road signage placed so as to warn drivers of the presence of the tractor ahead. The defendant admits that this TCP should have been developed prior to 29 April 2002, and that it (sic) had it been developed it would have significantly diminished the risk of the collision occurring.

...

10 In addition, the prosecutor relied upon four colour photographs taken on 29 April 2002 at the accident scene; the coloured extract from the UBD Wollongong Street Directory identifying the location of the accident; a traffic control plan subsequently prepared for median mowing, and the Improvement and Prohibition Notices served on the defendant.

11 The prosecutor also tendered the Australian Standard Manual of Uniform Traffic Control Devices, Part 3, Traffic control devices for works on roads. A certificate of prior convictions was also provided to the Court which discloses three prior convictions, two of which arise out of an incident in 2002 where the defendant was fined $7,500 for a breach of s 15(1) and a further $7,500 for a breach of 16(1) of the Occupational Health & Safety Act 1983. The offences did not relate to traffic matters.

12 The defendant tendered a statement of Mr Lawrence Boyle, the Occupational Health & Safety Co-ordinator of Wollongong City Council, who was appointed by the defendant on 7 May 2001. Mr Boyle was required for cross examination. Attached to Mr Boyle's statement were 17 annexures which included the defendant's OHS and Injury Management Policy; Traffic Management Policy Version 2, Safe working method statements for traffic control; work section induction program documentation and various training courses that were provided by the defendant in respect of occupational health and safety, risk management and injury management.

13 Mr Boyle gave evidence as to the geographical area of the council which comprises an area of 715 square kilometres and 1,040 kilometres of road. The defendant provides an extensive list of community services including libraries; community transport buses; gymnasium centres; parklands and patrolled swimming beaches. Mr Boyle said the Council employed 1,387 full time staff plus part time, casual and contract staff as at 30 April 2004.

14 The defendant claims responsibility for roads, rates and rubbish throughout the City of Wollongong. The RTA assists the defendant with the provision of funding for maintenance of more important highways and arterial roads where high traffic demand or unique traffic characteristics prevail. Mr Boyle stated that the bulk of Council's revenue comes from rates which are levied on each land parcel and stated that the Council's Risk Management Policy had resulted in the following achievements:

(a) In 1996 and 1997 the defendant was awarded the Statewide Mutual Liability Scheme Risk Management Excellence Award;

(b) In 1996 the Australian Public Risk Insurance Manager's Associate (APRIMA) awarded to Council its Risk Management Excellence Award;

(c) In 1998 Council's Co-ordinator Risk Management was awarded the Australian Risk Insurance Manager's Association (ARIMA) Public Sector Manager of the Year Award;

(d) Following development of the FigCAPS risk analysis system with Council, Figtree Systems have successfully negotiated the sale of the system and more recently introduced the system to the 143 member councils of the Statewide Mutual Liability Scheme in New South Wales;

(e) Other risk management milestones have included the development and implementation of a Crisis Management and Disaster Recovery Plan.

15 Mr Boyle said that since his appointment as the Occupational Health and Safety Co-ordinator, he has overseen the development and implementation of the defendant's occupational health and safety management system. This system is in line with WorkCover's Self Insurer's model 2001. In May 2003, approval was given for the creation of the position of OHS Project Officer. Mr Boyle has implemented safe work method statements which have been created across the whole organisation and include, in particular, high risk areas which are the Works Division, Engineering Division and Recreation and Natural Resources Division. A daily plant inspection system for all operators to check plant and equipment has been implemented. At the present time, Mr Boyle is reviewing and updating divisional site safety management plans which include occupational health and safety responsibilities, the identification of hazards and risks associated with those responsibilities, emergency procedures and the application of the site safety rules induction training and site specification training.

16 Following the accident on 29 April 2002, the mowing of median strips was immediately discontinued pending a review of Council's Traffic Management procedures. As a result of the review, a Council policy on traffic management was developed and implemented. This policy includes procedures for the development and implementation of traffic control plans.

17 Since the accident, a document entitled Recreation and Natural Resources Division South Depot Site Safety Management Plan for Tractor Mowing, a Safety Management Plan for Central Parks Tractor Mowers and OHS&IM Traffic Management Policy (Roads and Worksites) Version 2 were implemented. These plans, in summary, sought to implement a traffic management system that complied with Australian Standard 1742.3 (2002) and/or the RTA Traffic Control at Worksites Manual (2003).

18 Additional documents annexed to Mr Boyle's affidavit included Competency Assessment Guidelines; Occupational Health & Safety Course Modules 1 and 2; Injury Management for Supervisors Module 3, and Risk Management OH&S for Supervisors Module 4.

19 In addition, the defendant has a range of Operational Induction Check Lists for Staff; Safe Work Method Statement for Slasher - Tractor Mounted; a Safety Work Form for City Parks; a Hazard ID and Risk Assessment Analysis for Generic Park Mowing; a Machinery Operational Induction Checklist for Staff; a Safe Operating Procedures-Tractor Mowers; Traffic Management at Worksites and various Traffic Control Plans for roads that require grass cutting along median strips or road side.

20 During cross examination, Mr Boyle acknowledged that the majority of the documents tendered to the Court reflected actions that have been taken by the defendant since the time of the accident. The median strip where work is undertaken now has a traffic control plan for each location. All existing employees including the employee involved in the accident and new employees have been inducted into these traffic control plans.

21 Mr Boyle acknowledged that since the accident, key areas have been developing the traffic control process. In addition, site management plans have also been developed to improve the total OH&S system in operation. Employees have also been trained to identify hazards. Mr Boyle further acknowledged that it had taken some time to introduce the various traffic plans that were now in operation and some of them had been required to be updated.

22 In re-examination, Mr Boyle said that all draft policies relating to work and safety are circulated to site safety committee representatives. There are eight committees in the organisation. Each site safety committee has discussions and consultation including Union involvement on the consultation process.

Submissions of the Parties

23 Counsel for the prosecutor, Ms P Lowson, submitted that the Court should approach the assessment of penalty on the basis that the offences were serious offences. It was submitted that there were a number of objective features present that suggested the imposition of a significant penalty. These included:

(a) The defendant's failure to carry out a risk assessment or take any steps to control the risk.

(b) The defendant's failure to apply the Australian Standard AS1742.3 Traffic Control Devices for Works on Roads.

(c) The defendant's failure to ensure that the operator was instructed or supervised so as to perform the work safely.

(d) The nature of the offence in that steps were available to avoid unsafe work methods.

(e) There were obvious and foreseeable risks to safety which had not been identified and accordingly against which appropriate measures were not taken.

(f) The risk to safety affected both an employee and members of the public.

(g) The steps necessary to obviate the risk were not onerous and should form part of the usual work operations of the defendant.

(h) The need for general deterrence and specific deterrence.

(i) The maximum penalty for corporations for the offence was $825,000.

24 It was also submitted that the gravity or otherwise of the potential risk to safety flowing from a breach of the Act is relevant as a measure of the gravity of the breach and the culpability of a defendant: Tyler v Sydney Electricity (1993) 47 IR 1 at 5 and Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 79 - 80.

25 Counsel observed that Mr Williams suffered soft tissue injuries but was at risk of significantly more serious injuries given the (lawful) speed at which he was travelling when he collided with the defendant's tractor. Further, it was submitted, the Court is entitled to take into account that other road users were potentially put at risk. In addition, the worker operating the tractor, Mr Raso, sustained injury in the collision and was at risk of sustaining more serious injuries.

26 The relevant circumstances were such that an identifiable risk of injury was foreseeable. To the extent that there was any reliance placed by the defendant on the actions of the driver of the car in contributing to the collision, counsel submitted that the observations of the majority in WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 that a duty is owed "not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee" equally applies to persons not in the defendant's employ where health and safety is put at risk by the employer's breach of the Act.

27 Ms Lowson quite properly conceded that the principles of totality should be applied to the defendant and that the Court should have regard to various subjective factors put forward by the defendant in its favour. However, Ms Lowson observed that the plea had been entered in circumstances where the prosecution case in relation to the offence was strong and that the extent of leniency to be afforded by way of discount on sentence may have much less weight, relying on R v Ellis (1986) 6 NSWLR 603 at 604; R v Carter [2001] NSWCCA 245 at [13].

28 Mr Rothman took the Court to the various documents referred to in the evidence of Mr Boyle submitting that such documentation emphasised the attention that had been paid by the defendant, over a period of time, to the issues of occupational health and safety and the purposes of the Act. Senior counsel submitted that the defendant is a very large employer, with over 1,500 employees providing Local Government services to Wollongong.

29 Senior counsel submitted that it is in the context of the size of the council and its range of operations that the Court should take into account the two incidents for which Wollongong City Council has been convicted, noting it has been in operation since 1983.

30 It was acknowledged by the defendant that the Australian Standard had not been complied with but observed that the tractor did have hazard lights operating together with a flashing light attached to the front of the tractor. There was also a road advisory sign attached to the mower at the rear of the tractor. It was submitted that, but for the obstruction of the truck, those warning signs and the flashing lights would have been seen from some distance by oncoming vehicles. It was submitted that this goes to the issue of the defendant's culpability.

31 It was further submitted that the nature and quality of the offence was at the very low end of criminality and that any penalty should be at the very low end of the range.

32 Mr Rothman contended that it was appropriate to take into account that the defendant is a local council that depends on public funds and that there are public responsibilities in the budget and it is not operated for profit. It has an extremely good record in terms of occupational health and safety.

33 Further, in respect of culpability, Mr Rothman submitted that the Court should take into account that the driver of the vehicle was charged with negligent driving and that a situation exists here where the primary culpability, when one is fixing sentence, rests with the person who has been negligent in their driving and in one sense faces only the traffic penalty.

34 In respect of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, it was submitted that the only aggravating factors were the previous offences.

35 There were a number of mitigating factors pursuant to s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, that it was submitted should be taken into account, as follows:

(a) The nature of the injuries. Section 21A(3)(a). There being no physical injury to the employee or the driver. Although the employee suffered trauma and stress, it was contended that this injury did not directly result from the incident but rather was the reaction to the incident.

(b) In respect of s 21A(3)(f), it was submitted that two prior offences is not a significant record in the context of this employer and that the Council is otherwise of good character.

(c) In respect of paragraph s 21A(3)(g), it is unlikely otherwise than in the mandatory sense that the defendant would re-offend and certainly in view of the steps taken does not need a special or specific or additional penalty associated with deterrence of a specific kind.

(d) In respect of s 21A(3)(h) rehabilitation of the employee was relied upon and in respect of s 21A(3)(i) the early guilty plea and significant co-operation with the authorities was advanced as being proper matters to be taken into account for the purpose of showing remorse.

36 In respect of the seriousness of the offence, it was submitted that without a significant degree of recklessness on the part of the driver of the motor vehicle, the accident would not have occurred.

37 Mr Rothman did not disagree that the risk was foreseeable but submitted that the negligence of the non-employee was required for any risk to be realised.

38 Mr Rothman took issue with the prosecutor's submission that this was a strong case and that the benefit of any plea should be diminished. It was submitted that the plea was an acknowledgment of the responsibilities by the defendant under the OH&S Act and of the defendant's contrition and remorse. It was further submitted that the defendant had co-operated with the authorities.

39 Finally, Mr Rothman submitted that the principles of totality should apply and that general deterrence should not be a factor that would add to the penalty that the Court would otherwise think appropriate.

Consideration

40 The primary consideration in sentencing is the gravity of the offence viewed objectively: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474; Fletcher Construction Australia Limited at 77 - 81. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalties set by the legislature from zero to the maximum: WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited & Anor (No 2) (2000) 99 IR 163. The maximum penalty in this case is $825,000.

41 Matters that are relevant to a consideration of the objective seriousness of the offence are the nature and quality of the offence and whether it involved obvious or foreseeable risks, whether there were simple and straightforward steps available to remedy any failures on the part of the defendant and, the practical and potential consequences flowing from the commission of the offence, including whether injuries sustained by an employee or person manifested the degree of seriousness of the relevant detriment to safety. The Court is also required, in fixing any penalty, to consider the need for both general and specific deterrence: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; (2000) 99 IR 29 at [71]-[80].

42 A secondary consideration is the subjective features of the offence, that is, the facts concerning the offender. This will assist the Court in determining whether any penalty justified by the objective circumstances of the offence should be modified. See also: Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388; Capral Aluminium.

43 In considering the nature and quality of the offence, the Full Bench in Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 339 stated:

... The penalty must reflect the nature and quality of the particular offence; the level of penalty must, on the one hand, compel attention to occupational health and safety risks in order to ensure that persons are not exposed to such risks at their workplaces but, on the other hand, must not be oppressively high.

44 In this matter, in my view, the risk arose from the employer's failure to ensure that ordinary road users were adequately warned of the presence of a slow moving tractor in the overtaking lane of a three lane highway and the failure to warn road users who are otherwise using the highway with a speed limit of 80 klms an hour, to modify their driving, to take into account a hazard to those road users.

45 The dangers associated with work performed in the vicinity of roadways or highways are obvious. The median strip was 1.3 metres wide which would have resulted in a part of the tractor always being on the highway and in the path of oncoming traffic and presenting a risk to both an employee and non-employees, particularly without any advance warning signs. In this case, the defendant had not turned its mind to any risk assessment or project management in respect of a commonly performed work, namely, mowing the median strip of Masters Road.

46 This is a matter about which specific guidance was available. Australian Standard 1742.3 Manual of Uniform Traffic Control Devices is specifically directed to this type of work, namely, where works "... cause interference or obstruction to the normal use of a road by any road user." The employer had not referred to or required this Standard to be implemented. Neither Mr Raso or his supervisor were aware of the Standard. Examples of matters referred to in the Standard that are directly relevant to the performance of the road maintenance operation include:

(i) Careful consideration should be given to the signing of the work site, no matter how brief the occupation of the site may be, and the need for planning for any road works protection or traffic guidance scheme.

(ii) The different options available for management of traffic in the vicinity of road maintenance operations, including detours around the work area.

(iii) The use of signs and devices to give advanced warning of road maintenance operations.

(iv) The use of signs specifically for short term operations and for lane closure on multi lane highways.

(v) The steps to be taken where works "entail vehicles moving along the roadway continually".

47 The key issues to be considered in matters such as the present were succinctly stated by Hill J in Tyler at 5 when his Honour said:

The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability.

48 This principle was recently restated by the Full Bench in Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]:

[17] The relevance to the gravity of an offence of injuries suffered as a result of a breach of the Occupational Health and Safety Act and the relevance of potential serious consequences or serious injuries of that breach, are well settled: see, for example, Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) at paras [94] and [95] where it was held:

[94] We consider that the limited injuries suffered by Mr Stafford must be seen in the context of that evidence and also in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries suffered, or which may have been suffered, and the gravity of the offence. We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9; Watson v Southern Asphalters Pty Limited (1996) 83 IR 446 at 456; Wong v Melinda Group Pty Limited (1998) 82 IR 118 at 131; WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409; Lawrenson Diecasting Pty Limited at 476; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald’s Australia Limited at 90 – 91; and Page v Walco Hoist Rentals Pty Limited (No. 2) at 22.

[95] It must however be recognised that the principle does not lead to the proposition which, at least implicitly, was relied upon by the appellant. That is, relatively minor injuries of themselves demonstrate that the offence was not a serious one. We do not consider that is or represents a correct statement of principle or correctly portrays the situation here. We consider the relevant risk was not exemplified by the limited nature of the injuries suffered, and thus those injuries do not give an accurate insight into the seriousness of the breach of the Act. Rather, we consider that the breach of the Act, although limited to the failure to provide adequate protective clothing, was a very serious one indeed.

[18] We do not consider that the proper application of the relevant principles requires the sentencing judge to expressly specify the type of injury that could have been suffered as a result of the particular breach of the legislation, although it is appropriate in most cases for there to be an indication of the kind of consequence that could have resulted from the breach. The second ground of appeal should therefore be rejected.

49 The risks to safety are obvious and foreseeable in circumstances where a tractor is travelling at very low speed in the right hand lane of a three lane highway, being the lane most likely to be used for overtaking. Mr Rothman argued that but for the obstruction of a truck, warning signs on the tractor and flashing lights would have been seen for some distance. The submission fails to recognise that the truck was located in such a position that gave rise to a risk that should have been anticipated by the defendant and was foreseeable. The safety of road users is a major priority every year for the New South Wales Government. Employers must recognise their obligation under the Act. They must ensure safe systems of work and a safe environment where their undertaking involves utilising New South Wales roads. In this case the system of work and the environment was clearly unsafe and not without risk to the health of the defendant's employees. It could have resulted in a fatality.

50 Notwithstanding the carefully argued submissions of the defendant, I accept the submissions of the prosecution that the nature and quality of the offence is to be considered, in all the circumstances, as serious. There was clear foreseeability of the risk; and the potential risk was self evidently grave. The analytical approach contained in the prosecution's submissions usefully demonstrates the gravity of the offence, how the system was inherently unsafe, that the risk was obvious, and these conclusions are confirmed by the measures taken by the defendant in the wake of the accident. The breach of the act is serious, despite the minor injuries sustained by Mr Raso.

51 The defendant raised the culpability of an absent party in sentencing, submitting that when another person is charged with negligent driving and essentially runs into the back of a vehicle, whilst accepting it was foreseeable, this ought to be dealt with appropriately. Mr Rothman submitted that this gives rise, nevertheless, to a situation where the primary culpability, when one is fixing a sentence, rests with the person who has been negligent in their driving, and in one sense faces only the traffic penalty imposed in those circumstances.

52 This contention has been the subject of consideration by a Full Bench of this Court in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78. In this matter, the prosecution (pursuant to s 16(1) of the 1983 Act) arose out of fatal injuries suffered by a sub-contractor whilst performing work associated with the widening of the M4 Motorway, near Church Street Parramatta.

53 The road works were being performed behind large concrete barriers. However, there were a number of gaps in the barrier to permit access to the site for trucks carrying materials. The deceased had been instructed on the day of the accident to perform some concrete patching work near one of the gaps in the concrete barrier. The deceased was struck and killed by a motor vehicle which veered across two lanes of traffic and through the gap in the barrier adjacent to where he was working. The vehicle was being driven by a person under the influence of alcohol and drugs. He was subsequently charged and convicted of the offence of "Dangerous Driving Occasioning Death" pursuant to s 52A of the Crimes Act 1900. Kavanagh J found the offence proven and imposed a fine of $110,000.

54 An appeal on the severity and extent of the penalty imposed was considered by the Full Bench. The appeal was partially upheld and a penalty of $91,500 imposed.

55 The Full Bench stated at [24] - [25]:

[24] There are two limbs to the appellant’s attack on the severity and extent of the penalty imposed at first instance. The first is that the penalty is excessive having regard to the objective circumstances of the offence. The essential element or ingredient of that limb is that the driver of the vehicle involved in the accident was affected greatly by alcohol and drugs and, therefore, the occurrence of the incident was totally unpredictable and unpredicted.

[25] That submission should not be accepted. It confuses the particular circumstances of an accident with those which gave rise to the breach of the Act. That the precise circumstances surrounding the accident from which the prosecution arose may be considered unforeseeable (although we do not concur with this characterisation in the circumstances of the present matter) may be, to a certain extent, irrelevant.

56 In rejecting the appellant's contention, the Full Bench reiterated with approval what was stated by the Full Court in Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 452:

"The concept of 'reasonable foreseeability' is not, in our view, apt to be applied in relation to the duties owed under the OH&S Act. The duties imposed by the Act are not merely duties to act as a reasonable or prudent person would in the same circumstances: see Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 469. Under s15(1) the obligation of the employer is "to ensure" the health, safety and welfare of employees at work. There is no warrant for limiting the detriments to safety contemplated by that provision, to those which are reasonably foreseeable. Whilst employers are not liable for risks to safety which are merely speculative or unduly remote (see Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 50), the terms of s15(1) specify that the obligation under that section is a strict or absolute liability to ensure that employees are not exposed to risks to health or safety. It is inappropriate to seek to substitute a different test for that specified in s15( 1).

Secondly, the arguments advanced on behalf of the appellant in this respect erroneously concentrate upon the foreseeability of the particular circumstances of the accident in question. The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work.

57 Their Honours also referred, with approval, to the judgment of Walton J Vice-President in WorkCover Authority (NSW) (Inspector Farrell) v Schrader (2002) 112 IR 284. Their Honours said at [33]:

... His Honour considered, at pars 56 - 61, some of the authorities which attempted to reinforce "in the strongest possible language" the duties cast by the Occupational Health and Safety Act on employers and those in self-employment in the context of a prosecution which arose from the death of a three year old child on a residential construction site on the North Coast. His Honour dealt with the matter in that way to "reiterate the extent of the duty cast by the Act upon employers and those who are self-employed to ensure that their undertaking does not create a risk". A submission had been made that the defendant in those proceedings should be afforded some leniency due to the fact that more than one person contributed to the relevant risk. His Honour held:

"[61] In the present circumstances, the defendant's submission is untenable. The duty to be proactive falls equally upon each and every employer or self-employed person on a particular site, subject, of course, to a consideration of whether the risk emanated from the relevant 'undertaking' and 'place of work'. However, when determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd (2001) 105 IR 348; WorkCover Authority (NSW) (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 437 and WorkCover Authority (NSW) (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2001) 99 IR 163 at par 31; Nesmat Pty Ltd v WorkCover Authority (NSW) (1998) 87 IR 312 and Alcatel Australia Ltd v WorkCover Authority (NSW) (1996) 70 IR 99."

58 It is therefore no answer for the defendant to identify Mr Williams as being the cause of the accident. The point is that the defendant had to make provisions ensuring the safety of persons not being employees who were affected by the work being performed, that included people such as Mr Williams who might have been negligent in looking after his own safety. These are matters that had to be considered by the defendant and I am satisfied that they did not consider them.

59 In further assessing the defendant's submission in this regard, I am guided by the statement of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257:

The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.

60 This statement was cited with approval by the Full Bench, Wright J President, Walton J Vice-President, Kavanagh J, in Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 143 at [15] where, in relation to s 15, it was said:

... Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing.

61 To my mind, the above statements equally apply to persons not in the defendant's employ, whose health and safety is put at risk by an employer's breach of the Act.

62 The existence of a reasonably foreseeable risk which is likely to result in serious injury or death will result in the offence being made more serious in nature: Capral Aluminium Ltd at [81] - [82].

63 In assessing penalty, it is necessary that the Court have regard to the need for general deterrence: Capral at [75]. In relation to specific deterrence, as the Full Bench observed in Capral at [77], in view of the scope of the obligations on employers under the Occupational Health & Safety Act in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. The Court noted:

"This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety".

64 General deterrence must be taken into account because, as identified by Hungerford J in Fisher v Samaras at 388, the offence is against a statute of public interest and public concern and it is important to compel attention to occupational health and safety issues.

65 The Full Bench recently referred to the principles relating to general deterrence in Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 at [80]:

[80] Firstly, the Chief Industrial Magistrate underrated the importance of general deterrence in determining the level of penalty. The Court in WorkCover Authority v Schrader held at [69]-[70]:

The purpose of the Act is well known and often referred to in judgments of this Court. In my view, it is important, when considering notions of general deterrence, that the Court be cognisant of the fact that the Act is for the benefit of the public generally and particularly employees at work. The goal is the prevention, deterrence and punishment of breaches of health and safety requirements. The notion of general deterrence is well understood. However, in my view, and in accordance with what was stated by the Full Court in Capral Aluminium (at [72] - [74]), in cases such as this, it should be reiterated that "one of the main purposes of punishment, ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment" (emphasis added): R v Rushby [1977] 1 NSWLR 594 at 597 per Street CJ citing R v Radich [1954] NZLR 86 at 87 (adopted by this Court in Capral Aluminium at [72]).

Further, I would note that it has been described as "the fundamental duty of this Court" to ensure that any penalty imposed is severe enough to "compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 adopted in Capral Aluminium (at [74]).

See also the Full Bench decision in Inspector Ian Lancaster v Burnshaw Constructions Pty Ltd [2002] NSWIRComm 319.

66 In my view general deterrence should therefore be a primary consideration in the penalty that is imposed by the Court.

67 In respect of the question of specific deterrence, the defendant is a large employer, employing approximately 1,500 full time employees. Mr Rothman submitted that it was appropriate to take into account that the defendant is a local council that depends upon public funds and that it has public responsibilities in respect of its budget and is not operated for profit. Although the Court was not taken to WorkCover Authority (NSW) v Parkes Council (unreported, 10 April 1996), I note that Cahill Deputy CJ observed in that matter that it was clear from the authorities that the public interest has a part to play in the determination of the quantum of penalty in matters such as this and the public interest is affected by the nature of the defendant which itself represents a large community within New South Wales. Accordingly, these are considerations that the Court would have regard to in determining the appropriate penalty.

68 It was submitted that it is in the context of the size of the defendant and it's obvious range of operations that the Court should take into account the two incidents for which the defendant has been convicted which resulted in a fine of $2,000 by a Magistrate and two fines of $7,500 each, which it was submitted, were minor offences. This was the only aggravating factor relevant for the purposes of s 21A(2) of the Crimes (Sentencing Procedure) Act.

69 Notwithstanding the clear breach of its obligations in respect of the above convictions, I am disposed to the view that the defendant has a fine industrial record for an organisation operating with a large number of employees over a long period of time.

70 Furthermore, regarding the question of specific deterrence, the defendant has taken steps to avoid a future re-occurrence of this incident. I take into account the defendant's strong commitment to occupational health and safety, the introduction of extensive occupational health and safety programs; road management plans and training for its employees. I propose to include a small factor for specific deterrence in fixing penalty.

71 Turning to the subjective factors, I take into account the defendant's commendable commitment to occupational health and safety and the steps taken to improve its safety systems following the accident.

72 The defendant further submits in mitigation as to penalty, that it entered an early plea of guilty to this charge and it is appropriate to apply the judgments in R v Thomson; R v Houlton (2000) 115 A Crim R 104 at 138. The prosecutor submitted that, where a plea is entered in circumstances where the prosecution case in relation to the offence is strong, the extent of leniency to be afforded by way of discount on sentence may have less weight: R v Ellis (1986) 6 NSWLR 603 at 604; R v Carter [2001] NSWCCA 245 at [13].

73 Mr Rothman submitted that the Court should accept that the defendant had pleaded guilty because of their acceptance of a responsibility for occupational health and safety and because of their contrition and remorse. This is of even greater significance in what was described as an absolute or strict liability jurisdiction where the strength of the case, it was suggested, was almost irrelevant. Senior counsel contended that this was a high range discount plea and ought to be accepted as such, particularly in light of the mitigating factors to be taken into account, which I will turn to shortly.

74 In addition, although senior counsel did not contend that there had been any breach of the prosecutorial discretion, Mr Rothman observed that this was a class of case that could have been brought before a Magistrate with a maximum penalty of $50,000. I do not consider that, in the particular circumstances of this case, any consideration of significance arises from the fact that the prosecution commenced proceedings before this Court rather than before the Chief Industrial Magistrate. Except in the case of a minor offence, in which case there may be considerations as to whether there has been an abuse of prosecutorial discretion, I consider that it is a matter for the prosecution as to the forum in which it proceeds. I do not consider that there is any basis to hold in this matter that the offence was not of relevant seriousness, notwithstanding the good character of the defendant. It is, of course, relevant although not decisive on this aspect, that at the time that the proceedings were commenced, it may not have been clear to the prosecution that there would not only be a plea of guilty, but an early plea of guilty.

75 I am obliged to consider any other subjective factors that may mitigate the seriousness of the offences committed by the defendant. Section 21A(3)(a) and (b) of the Crimes (Sentencing Procedure) Act provide:

(3) Mitigating factors

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b) the offence was not part of a planned or organised criminal activity,

76 There was no evidence of any serious physical injury to the driver. He suffered only soft tissue injuries. Mr Rothman contended that there was no physical injury to the employee, submitting that although he suffered trauma and stress, this did not directly result from the incident, but rather was the reaction to the incident. In my view, such a distinction is artificial. However, I find that the injury, emotional harm, loss or damage was, fortunately, not substantial. I accept Mr Rothman's submissions that the defendant was not engaged in an activity contemplated by s 21A(3)(b). As Senior Counsel observed, with the exception of reckless disregard for the Act, it is difficult to see how s 21A(3)(b) could be relevant to a prosecution under the Act.

77 Section 21A(3)(e) and (f) of the Crimes (Sentencing Procedure) Act provide:

(3) Mitigating factors

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

...

(e) the offender does not have any record (or any significant record) of previous convictions,

(f) the offender was a person of good character.

78 The defendant has been operating since 1983 and I have found that it has a fine industrial record.

79 It also has a good record when considered in the context of the size and nature of the organisation.

80 Section 21A(3)(h) of the Crimes (Sentencing Procedure Act) provides:

(3) Mitigating factors

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

...

(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

81 The offender is a local council. However, I consider that rehabilitation is a relevant issue. I have already referred to the steps taken by the defendant following the offences and I regard them as appropriate in seeking to improve the occupational health and safety systems of the defendant and avoid the prospects of risks associated with mowing of median strips. I accept that the defendant has demonstrated a strong commitment to workplace safety and that is a factor to be taken into account in its favour.

82 Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act provides:

(3) Mitigating factors

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

...

(i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner,

...

83 The defendant has accepted responsibility for the accident and the injuries suffered by its employee and expressed remorse. This is a factor to be taken into account in its favour.

84 Section 21A(3)(k) and (m) provide:

(3) Mitigating factors

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(k) a plea of guilty by the offender (as provided by section 22),

...

(m) assistance by the offender to law enforcement authorities (as provided by section 23).

85 The defendant entered an early plea of guilty and it is acknowledged by the prosecutor that the defendant cooperated with the WorkCover Authority in respect of improvement and prohibition notices issued to it. I take these factors into account in the defendant's favour.

86 I also consider that I should have regard to the financial circumstances of the defendant, although that consideration does not, of itself, mean that a substantial penalty should not be imposed. It is also appropriate to have regard to the nature of the defendant council and its operations: Parkes Council; WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397 at 407.

87 It is important to give appropriate weight to the objective seriousness of the offence, bearing in mind the inherently unsafe system of work that was in place, that the risk was obvious and that the risk was entirely foreseeable.

88 It is also necessary to apply the principle of the totality. The principle was recently considered by Full Benches of this Court in Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 and WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323. These decisions, which are binding upon me, considered the statement of the totality principle by the High Court of Australia in Pearce v The Queen (1998) 194 CLR 610 at [45] - [46] where the Court stated:

"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: Mill v The Queen (1998) 166 CLR 59.

Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision: cf House v The King (1936) 55 CLR 499. It is, then, all the more important that proper principle be applied throughout the process."

89 I consider the charges as equally serious. Having due regard to the various mitigating factors referred to and the utilitarian benefit of the early plea, the fine should be discounted by 35%. The maximum penalty in each matter is $825,000. Section 51A is activated as a result of the defendant's prior convictions.

90 The appropriate penalty in relation to the charge in matter IRC 1494 of 2004 after applying a discount of 35% is $120,000. The penalty in relation to the charge numbered IRC 1495 of 2004 after applying a discount of 35% is $120,000.

91 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 the process ensures that there is no "double counting of the culpability of the defendant from the respective offences."

92 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 $240,000. Having regard to the separate assessments of the culpability of the defendant in relation to the two offences fines of $70,000 should be imposed in each matter.

ORDERS

The Court accordingly makes the following orders:

1. The offences are proven and verdicts of guilty are entered in each matter.

2. The defendant is convicted of the offence alleged under s 8(1) and the offence alleged under s 8(2) of the Occupational Health & Safety Act 2000.

3. In Matter No IRC 1494 of 2004, the defendant is fined the sum of $70,000 with a moiety of that fine to the prosecutor.

4. In Matter No IRC 1495 of 2004, the defendant is fined the sum of $70,000 with a moiety of that fine to the prosecutor.

5. The defendant shall pay the prosecutor's costs of these proceedings in a sum as agreed, or in default of agreement, as assessed.

LAST UPDATED: 11/03/2005