Nelmac Pty Ltd v Inspector Franke [2006] NSWIRComm 100 (30 March 2006)

Last Updated: 30 March 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Nelmac Pty Ltd v Inspector Franke [2006] NSWIRComm 100

FILE NUMBER(S): IRC 1466

HEARING DATE(S): 24/10/2005

DECISION DATE: 24/03/2006

PARTIES:

Appellant:

Nelmac Pty Ltd

Respondent:

Inspector Dieter Franke

JUDGMENT OF: Wright J President Kavanagh J Backman J

LEGAL REPRESENTATIVES

Appellant:

Mr T. Saunders, of counsel

Solicitors:

Allens Arthur Robinson

Respondent:

Mr M. Cahill, of counsel

Solicitors:

Phillips Fox

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

Ferguson v Nelmac Pty Limited (1999) 92 IR 188

Inspector Franke v Nelmac Pty Ltd [2005] NSWIRComm 44

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

Regina v Brett Raymond Walker [2005] NSWCCA 109

R v Campillo Vaquere [2004] NSWCCA 271

R v Morgan (1993) 70 A Crim R 368

R v Trevenna [2004] NSWCCA 43

Veen v The Queen (No 2) (1988) 164 CLR 465

Weininger v The Queen (2003) 196 ALR 451

WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Ltd (2004) 136 IR 449

LEGISLATION CITED: Industrial Relations Act 1996

Occupational Health and Safety Act 1983

JUDGMENT:

- 18 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

FULL BENCH

CORAM: Wright J, President

Kavanagh J

Backman J

Friday, 24 March 2006

Matter No IRC 1466 of 2005

Nelmac Pty Ltd v Inspector Dieter Franke

Appeal by Nelmac Pty Ltd against the decision of Justice Haylen given on 21 February 2005 in Matter No IRC 1109 of 2004

JUDGMENT OF THE COURT

[2006] NSWIRComm 100

1 These proceedings involve an appeal under s 196 of the Industrial Relations Act 1996 against the judgment of Haylen J of 21 February 2005 in which his Honour convicted the appellant of an offence under s 8(1) of the Occupational and Health Safety Act 2000 following a plea of guilty and imposed a fine of $156,000: Inspector Franke v Nelmac Pty Ltd [2005] NSWIRComm 44.

2 The offence arose in circumstances where on 18 March 2002 Albert John Giffin a labourer in the appellant's employ was working on a partially constructed concrete road bridge at the appellant's Trunketabella bridge construction site on the Princes Highway. Several other employees of the appellant were also working on the bridge including Michael Smith, a labourer; Paul Glasson, a steel fixer; and, Craig Fairman, a concreter. Work commenced at about 7.00am. At about 7.30am Mr Giffin took a piece of conduit onto a formwork deck in order to check its length. He stepped onto a piece of plywood that was being used to cover an opening in the deck but which had not been nailed down or otherwise secured, and there were not any markings in the vicinity to indicate that the plywood had not been secured. The plywood gave way under Mr Giffin causing him to fall through a penetration in the deck. One of Mr Giffin's legs went through the penetration. As a result of the incident Mr Giffin sustained injuries to his back. The formwork deck was approximately 1.5 metres from the water below which was approximately 1 metre in depth with a soft muddy bottom.

3 At the time of the incident it appears that the bridge was in its second and final stage of construction. The first stage had commenced sometime in July 2001. The appellant had been subcontracted by the Roads and Traffic Authority to construct the bridge. A project specific safe work method statement and a safety plan had been formulated beforehand in consultation with the appellant's management and employees. The safe work method statement specifically required that penetrations must be covered and that formwork must be securely fixed. Mr Smith had been charged two days earlier on 16 March with the task of fitting and securing the plywood flooring over the penetration. He left the site on that day however without securing the plywood and without advising Mr Giffin of that fact. The safety plan provided that the project manager, or in his absence the site supervisor, was responsible for the planning and safe execution of work on the site. Brian James McIntosh was the project manager. He was not however on the site on 16 March or on the morning of 18 March. There was some arrangement between Mr McIntosh and Mr Smith that the latter would act as site supervisor on 16 March but this arrangement was never communicated to the other employees.

4 During the time the appellant had been working on the construction of the bridge the RTA had carried out inspections approximately 2 to 3 times a week to ensure that the appellant was following quality control procedures and implementing and managing occupational, health, safety and environmental systems as well as ensuring that traffic management plans were in place. The appellant's employees working on the bridge on 18 March all had previous experience in bridge construction work. All had been inducted prior to working at the site and part of the induction had specifically addressed the requirement that all penetrations be covered and securely fixed. The induction also included a direction that access to and egress from the bridge was by designated walkway scaffold platforms.

Judgment at first instance

5 After reciting the facts his Honour directed his attention to a previous judgment of Wright J, President in which the appellant had been convicted of an offence under the Occupational Health and Safety Act 1983 involving an incident in 1996 when an employee of the appellant fell to his death through an opening in a bridge under construction which was 16 to 18 metres above ground level: Ferguson v Nelmac Pty Limited (1999) 92 IR 188. His Honour formed the view that the breach in relation to the 1996 incident was quite different from the current incident in that the 1996 incident arose in circumstances where the height at which the worker was at risk of falling was much greater, the incident occurred on a walkway where the deceased employee could not adequately see while carrying material and no harness was used or safety nets constructed. In addition there was no direction or instruction.

6 In contrast, the present incident occurred in an area not used as a general walkway and the width of the formwork was "relatively narrow" (on the evidence it was 200 millimetres), and, the employees had a "thorough going work method". They had also been inducted as well as being audited by an external body. His Honour found that the particular feature of the present offence "... was the unknown reason for Mr Smith failing to secure the formwork and the course taken by Mr Giffin to step down onto this formwork rather than go by another route". Nevertheless his Honour found that the two incidents overlapped to the extent that both concerned a requirement to secure formwork over penetration so that it would not move. In relation to this overlap his Honour observed:

That system, although it had been altered, and apparently substantially altered between 1996 and 2002 still did not have the effect of ensuring that the penetration was covered by a secured piece of formwork.

7 His Honour also dealt with another judgment by Marks J in which the appellant had been convicted and fined in relation to two offences committed some time in 2000. The subject matter of those two offences his Honour found was substantially different and he commented that the quantum of penalty ($40,000 for each offence) was a reflection of a substantial degree of contribution by other parties.

8 His Honour then turned to a consideration of the maximum penalty in the present matter ($825,000) and the proper approach to adopt in relation to an offender with prior convictions. After referring to Veen v The Queen (No 2) (1988) 164 CLR 465 and Weininger v The Queen (2003) 196 ALR 451 both dealing with this issue, his Honour said:

As I have indicated, the maximum penalty here is $825,000. I am not able to say that the 1996 incident nor the other incident which was dealt with by the Court in 2000, is an indication here of some disregard for occupational health and safety legislation; nor is it an indication of a propensity or determination to re-offend.

There are significant differences between those cases and the present case, sufficient in my view, to confine the consideration of the defendant’s previous convictions to an association with the industry and the risks that it has been faced with in the past, the way in which it had responded to those risks and the particular circumstances surrounding the risk that was exposed by this particular accident.

9 His Honour then expressed the view that he was impressed by the evidence of Mr McIntosh given in the sentencing proceedings as to the steps taken by the appellant to ensure a safe work system at the time of the present offence. His Honour found that the risk to safety was foreseeable in the circumstances where the formwork was not secured to ensure that a person could not fall through it. In relation to the system of work which was in place on the day of the subject incident his Honour said:

Day in day out, this Court sees comprehensive systems of work laid down by employers, only to find in the ultimate, those systems fail. It has been stated on a number of occasions by this Court that the system of work has to take into account not only the diligent worker but even the worker who is either careless or in fact negligent. It is not possible on the evidence here to make any determination about what precisely led this piece of formwork not to be secured, nor, for that matter, Mr Giffin to walk upon it. But an employer under this legislation cannot ignore the fact that those types of actions are likely to occur at their worksite, and they have to take steps to ensure that it does not put at risk people who are working on their sites.

10 The offence his Honour found was a serious one although not at the worst end of the scale. There were several failures relied upon by the prosecutor which were the failure to secure the formwork, the failure to mark it, the failure to erect barriers or warning signs along the work, to commence work when there was a hidden trap on site, and, the absence of any proper supervision. These matters his Honour expressly took into account in setting what he considered an appropriate penalty in the context of what was a serious offence.

11 The principles of general and specific deterrence were also taken into account by his Honour. In relation to general deterrence his Honour determined that it had a role notwithstanding the fact that prior to the incident there appeared to be a comprehensive system of safe work in place and that there were additional steps implemented after the incident. In relation to specific deterrence his Honour considered that it also featured significantly in setting the penalty.

12 Finally his Honour turned to a consideration of the subjective features. He expressly took into account the appellant's industrial record which his Honour considered as "not a bad record". Cooperation and contrition were also taken into account, the latter being evidenced not only by the plea of guilty but also the appellant's involvement in Mr Giffin's rehabilitation. Also taken into account were the steps taken to address the subject risk by the appellant following the incident and its prior record. A discount of 25 percent was allowed for the plea of guilty. His Honour also allowed a further discount for the subjective features.

Grounds of the appeal

13 The appellant's grounds of appeal list some seven grounds. In written submissions the appellant informed the Full Bench that it now proposed to rely on only two of those grounds, namely:

(a) the penalty imposed was manifestly excessive;

(b) the penalty was inconsistent with comparable decisions, in the sense that the penalty is not within the range appropriate to the objective seriousness of the particular offence.

Second ground of appeal: penalty not within range

14 It is convenient to deal with the second ground first. Findings that may be made in relation to that second ground may impact to some extent on findings that may be made in relation to the first ground.

15 The second ground was advanced by the appellant on two bases. First that Haylen J made a number of errors in his reasons for sentence in assessing the objective seriousness of the offence. Secondly, that an analysis of other cases in this jurisdiction supports the conclusion that the penalty imposed was not within the appropriate range.

16 In relation to the first basis the appellant relies on two findings made by his Honour in the judgment. Those findings were:

(a) It is not possible on the evidence here to make any determination about what precisely led this piece of formwork not to be secured ... and,

(b) The prosecutor rightly points to a number of matters as significant: the failure to secure the formwork, the failure to mark it, the failure to erect barriers or warning signs along the work, the commencement of work when there was a hidden trap on site, and the absence of any proper supervision.

17 The appellant contends in relation to the first finding that it implies the possibility that the system of work intended that the plywood board be left unsecured and that this therefore increased its culpability and the objective seriousness of the offence. According to the appellant the evidence was to the contrary: namely, that the board was supposed to be nailed by Mr Smith who understood this but he failed to do so through oversight.

18 An examination of his Honour's reasons in relation to the circumstances that gave rise to the board not being secured leads us to conclude that the appellant's contention on this point is not borne out. His Honour when contrasting the circumstances in relation to the 1996 incident and what he termed "the current incident", noted that the particular feature of the current incident, "... was the unknown reason for Mr Smith failing to secure the formwork". This finding acknowledges that the evidence before his Honour simply did not disclose the reason why Mr Smith did not secure the formwork. This finding moreover is entirely consistent with the finding that it was not possible on the evidence to determine why the formwork was not secured. It is also entirely consistent with evidence that the board was meant to be secured by Mr Smith who understood that this was what he was supposed to do. Before leaving this point we would observe that what the appellant identified as evidence to the contrary in the sentencing proceedings was in fact submissions that were made at first instance by the appellant to his Honour.

19 In relation to the second finding of his Honour that was challenged, the appellant sought to advance its submission that there was error in the reasons on sentence by contending that its culpability rather arose from its failure to ensure that Mr Smith secured the board as intended. His Honour's finding however does no more than acknowledge as significant the failures which the prosecutor had particularised in the application for order and to which the appellant had pleaded guilty. The agreed statement of facts moreover contains a specific acceptance by the appellant (at paragraph 10) of the particulars contained in the application for order.

20 The further basis upon which the appellant advanced its second ground of appeal relies on a table of cases attached as a schedule to its written submissions. The scheduled cases are in two parts. The first part sets out cases which the appellant submits involve levels of objective seriousness and which are comparable to the present matter. The second part lists cases which the appellant submits involve levels of culpability which are greater than the present matter but in which penalties have been imposed which are close to or equal to the penalty imposed by his Honour.

21 An examination of the two parts reveals that the first part contains a summary of seven cases and the second part contains a summary of ten cases.

22 By reference to the scheduled summaries of the cases contained in both parts it is immediately apparent that there are substantial differences between the various cases. Some for example proceed on the basis that the defendant had prior convictions while others do not. This means that in relation to those cases with prior convictions the statutory maximum was higher than those cases which had no prior convictions. In relation to those cases where there were prior convictions some had one prior conviction, others had several, and one had twenty two prior convictions. Some of the cases take into account specific deterrence while others do not. Others take into account victim impact statements. Some make reference to good safety records or procedures in place prior to the offence or offences while others are silent on this factor.

23 In Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 the Full Bench declined to consider a schedule of judgments and penalties imposed which was handed up by the respondent for use as comparative material. The Full Bench saw significant difficulties in using such material to support a party's submission that the case summaries in the schedule confirmed that the subject sentence involved a significant disparity with other sentences passed under the same section. The first difficulty identified was that such material purporting to be representative of general sentencing trends was less likely to be useful where the circumstances of the individual offences varied greatly or when the sample size was small. A further difficulty was that the Full Bench did not consider that in 1998 when the matter was considered there had not yet been established a general sentencing pattern in relation to occupational health and safety offences since the penalties were increased in 1996. Finally in relation to the statutory maximum with which the Full Bench was dealing, which was $750,000, it was observed that no sentencing pattern had been established in relation to serious offences involving the same maximum penalty.

24 There has been some judicial criticism directed to the practice of placing reliance on comparative sentencing material in the sentencing process. The Full Bench in Capral Aluminium for example referred to a passage in R v Morgan (1993) 70 A Crim R 368 at 371 where Hunt CJ at CL said:

It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe (1984) 154 CLR 606 at 612; 12 A Crim R 408 at 411:

"The reference to an appropriate sentence is apt to be misunderstood Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty."

25 In R v Trevenna [2004] NSWCCA 43 Barr J made the comment (at [99] and [100]):

Another difficulty concerns the use by way of argument of the facts and resulting sentences in cases unrelated to the case under appeal. It is sometimes put that the facts of the case under appeal and those of the case cited for comparison are so alike that the sentences, too, should have been alike. Since they were not, error must have occurred. Hunt CJ at CL warned against such an approach in R v Morgan (1997) 70 A Crim R 368 ...

When speaking of ranges of culpability and sentence counsel seem to have assumed that there must be a precise correlation between the two. While no doubt offences of high culpability ought to attract high sentences and those of low culpability low sentences there need be no precise correlation between sentences in unrelated cases where the facts are similar. Sentencing is an art. Sentencing judges have to evaluate a mass of evidence and different judges evaluate differently. Even if it were possible to say that the culpability in two unrelated cases was the same it would not be correct to say, if the sentences were different, that for that reason alone one of them must be wrong. To say so would deny the existence of judicial discretion.

26 In R v Campillo Vaquere [2004] NSWCCA 271 Hulme J commented in a similar vein (at [77]):

This Court has said on many occasions that it is not a proper approach to sentencing to seek to compare a sentence under challenge directly with that imposed on another offender (who is not a co-offender) simply because the 2 offenders may have similar characteristics and may have committed similar crimes – see e.g. Morgan (1993) 70 A Crim R 368 at 371; R v Lawson (1997) 142 FLR 323 at 324, per Hunt CJ at CL; R v Speechley [2002] NSWCCA 300 at [39]; R v Merritt [2004] NSWCCA 19 at [62]; R v Trevenna [2004] NSWCCA 43 at [50, 89 and 99]. It is equally, or more, inappropriate to seek to compare fact findings or characterisations under challenge with those made in one or a few of the thousands of past cases and, upon the basis that there are similarities between the cases, urge that the same findings of fact or characterisation are required. Invariably of course, differences between the case where the sentence is being challenged and the one or few in the past are ignored.

27 In addition to the reservations expressed in the foregoing authorities about the utility in the sentencing process of comparing the sentence under challenge to other sentences imposed on other offenders who are not co-offenders, we perceive a further difficulty with the appellant's submission on this ground of appeal. The cases upon which reliance has been placed are not in our view of a number significant enough to establish a pattern of sentencing. During the hearing of the appeal counsel were granted leave to file further submissions in relation to two cases which the Full Bench was informed had not been included in the schedule to the applicant's outline of written submissions. Additional submissions were later filed which revealed that only one case had not been included in the schedule. The addition of one case does not advance the appellant's contention that there is now an emergent pattern of sentencing which might facilitate a meaningful comparison for the purpose of assessing an appropriate sentence in the present case. Accordingly, this ground of appeal fails.

First ground of appeal: penalty was excessive

28 It remains to consider the appellant's first ground of appeal, that is, that the penalty imposed by his Honour, Justice Haylen was excessive. Five factors were advanced by the appellant in oral and written submissions in support of this ground of appeal. These may be described as:

(i) the gravity of the offence;

(ii) the existence of a safe system of work;

(iii) the contribution of others to the risk of safety;

(iv) the foreseeability of the risk to safety;

(v) prior convictions.

29 We propose to address each of these factors in turn.

The gravity of the offence

30 In relation to the gravity of the offence and the likely or actual consequences suffered as a result of a breach of the Act, his Honour in his sentencing remarks made the following finding:

[T]his is a serious offence. It is not however one at the worst end of the scale: had this opening been wider, had there been a real potential for Mr Giffin to fall through, the seriousness of the offence would have been grave. Even though the measurement of the penetration was modest, it is not unknown that in building work people fall in such a way that they lose consciousness. There was water below. If it was that type of accident it would indeed, especially in the light of the history of this defendant, have been a very serious offence, but I am not able to come to that conclusion, although I conclude that it is a serious offence.

31 The appellant contended on appeal that the evidence on sentence disclosed that there was no prospect that an employee could have fallen into the water either through the bridge or over the edge of the bridge. It was therefore unlikely that Mr Giffin could have been rendered unconscious as a result of the accident. It was also said to be irrelevant to make reference to there being water below, as his Honour did, when assessing the consequences of the accident. Nevertheless the appellant conceded in oral submissions on the appeal that the offence was serious and that his Honour was correct in so finding.

32 As the authorities on this point have observed, the fact of serious injuries does not, of itself, demonstrate the objective seriousness of a breach of the Act, although the occurrence of serious injuries may manifest the degree of seriousness of the risk to safety: see for example Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] [18] and [23].

33 The passage in the sentencing remarks which we have reproduced, in our view, does no more than reflect his Honour's consideration of the seriousness of the risk and, based on this finding at first instance, his Honour concluded that the offence before him was serious but not "very serious". The reference in the passage to there being water below did not affect this conclusion. We agree that the circumstances in the context of the gravity of the offence were such as to warrant the finding that the offence was serious. We also note the appellant's concession in the regard that the offence was serious.

The existence of a safe system of work

34 the appellant also relied on a series of findings by his Honour which it said wrongly identified its system of work in force at the time of the offence. The particular passage in the sentencing remarks said to illustrate this appeared as follows:

The prosecutor rightly points to a number of matters as significant: the failure to secure the formwork, the failure to mark it, the failure to erect barriers or warning signs along the work, to commence work when there was a hidden trap on site, and the absence of any proper supervision.

35 According to the appellant the measures outlined in the passage assume that there was some scope in its system of work for pieces of plywood to be left unsecured but the prevailing system of work was that all pieces of plywood had to be secured at all times. We do not agree. The passage in our view merely acknowledged the particulars of the offence to which the appellant pleaded guilty. Confirmation of the plea which encompassed these particulars is apparent from the Agreed Statement of Facts which was tendered into evidence on sentence.

36 The appellant also contended that his Honour had accepted that it had a comprehensive system of work in force at the time of the offence and that the existence and recognition of this system by his Honour mitigated the objective seriousness of the offence.

37 In the sentencing remarks his Honour acknowledged that the appellant had a thorough going work method as well as inductions and audits by external bodies. His Honour however ultimately found that the system which included a requirement to secure formwork and which had been in place since 1996, that is some six years, still did not have the effect of ensuring that in the present circumstances the penetration was covered by a piece of formwork.

Contribution of others to the risk to safety

38 The third factor upon which the appellant placed reliance to make good this ground of appeal concerned the conduct of Mr Smith who failed to nail down the piece of plywood. The appellant's system required the securing of all penetrations at all times and Mr Smith, the appellant's employee, although aware of the system, had failed to comply with it. His Honour found that a particular feature of the incident was the unknown reason for Mr Smith failing to secure the formwork as well as the route taken by Mr Giffin to step down onto the formwork rather than go by another route. According to the appellant this finding implied the possibility that its system of work intended that the plywood be left unsecured, and that this therefore, justifiably, increased the culpability of the appellant.

39 We have earlier dealt with this point. His Honour expressly found that the prevailing system at the time of the offence was that all formwork had to be secured but that the system failed although the reasons for that failure were unknown. In making that finding his Honour relied on the well-established principle that notwithstanding the existence of a system, all employers must be pro-active and on the alert to ensure that systems so not fail so that persons are not put at risk to their safety.

The foreseeability of the risk to safety

40 The appellant conceded in its submissions on appeal that the risk to safety was not only foreseeable but was foreseen. It submitted however that the foreseeability of the risk to safety must be assessed by comparing the earlier incident in 1996. There were a number of points of distinction between the two incidents according to the appellant. First, the 1996 incident involved a piece of plywood in excess of thirteen times larger than the piece of plywood onto which Mr Giffin stepped. Secondly, the height of the bridge above water in the earlier incident was 16 to 18 metres whereas in the present incident it was 1.15 metres. Thirdly, the penetration the subject of the 1996 incident was located on a walkway where employees were bound to walk whereas in the present incident the penetration was located on formwork where there was only the possibility that employees would use it as a walkway. These factors the appellant said made the risk to safety less obvious than the risk which existed in relation to the 1996 incident, and placed the gravity or seriousness of the present offence on a different scale.

41 The submission in our view suffers from a number of defects. First it concentrates on the incident the subject of the offence as opposed to the foreseeability of the risk to safety: see for example WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Ltd (2004) 136 IR 449 at [81]. Secondly, insofar as it seeks to establish that the present offence is rendered objectively less serious by means of a comparison with the 1996 incident, it ignores the fact that the 1996 offence involved a statutory maximum of $550,000 as opposed to $825,000, the statutory maximum applicable to the present offence and also that the sentencing in 1999, in respect of that offence, occurred when this Court was at an early stage of re-evaluating the sentencing regime under the Occupational Health & Safety Act 1983. Thirdly, an analysis of the reasons at first instance reveal that his Honour was influenced by what he referred to as the overlap between the two cases, that is, in 1996 there was a requirement to secure formwork over penetration. This requirement subsisted up to the present but nevertheless it still, as his Honour found, did not have the effect of ensuring that the penetration was secured thereby exposing employees to a risk to their safety. This in our view renders the overall objective seriousness of the present offence more serious.

Prior convictions

42 The appellant also contended that its prior convictions did not materially increase the objective seriousness of the present offence. In support of this contention the appellant directed our attention to a New South Wales Court of Criminal Appeal judgment of Regina v Brett Raymond Walker [2005] NSWCCA 109. That judgment concerned an appeal against sentences imposed by a District Court judge. The applicant had a criminal history to which the sentencing judge made only passing reference. Although Johnson J (with whom Giles JA and Hoeben J agreed) found that no error had been demonstrated in the appeal in relation to the sentencing judge's use of the applicant's criminal history, his Honour commented on that use in the context of the sentencing process (at [32]):

It should be observed, however, that a passing reference to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, without reference to the precise manner in which the sentencing judge takes that factor into account on sentence, is unsatisfactory. A failure to explain the manner in which the factor is taken into account does not enlighten the sentencing process, in a manner which s.21A appears to have been designed to achieve. Nor does it inform the offender, the Crown and the community of the use which the sentencing judge has made of this factor. In a case where the offender’s criminal history is not capable of attracting the principles in Veen (No. 2), error may be demonstrated which affects the sentencing process. It is important that sentencing judges keep firmly in mind the limited purpose for which an offender’s criminal record may be taken into account, in a manner adverse to the offender, in the exercise of sentencing discretion.

43 According to the appellant Haylen J found that the appellant's circumstances did not attract the principles in Veen's case, and, therefore, there was no scope for his Honour to have placed any emphasis on the appellant's criminal history.

44 We do not consider this to be an accurate reflection of the law. The use which may be made of criminal history in the sentencing process is not confined to whether a person's particular circumstances fall within the principles outlined in Veen's case. Nor did his Honour so confine his treatment of the appellant's criminal history. His Honour considered two statements of principle expressed respectively in Veen's case and in Weininger v The Queen, and concluded:

It might be thought that in some respects those two authorities are not necessarily in unison but I think they reflect the variety of considerations that a sentencing court has to take into account, and I propose to be guided in this task by those two statements.

45 After considering the cases that had specifically dealt with the appellant's prior history (including the 1996 incident) his Honour explained in his sentencing remarks the use that he intended to make of that prior history:

There are significant differences between those cases and the present case, sufficient in my view, to confine the consideration of the defendant’s previous convictions to an association with the industry and the risks that it has been faced with in the past, the way in which it had responded to those risks and the particular circumstances surrounding the risk that was exposed by this particular accident.

46 This ground of appeal also fails.

Orders

47 The Court makes the following orders:

1. The appeal is dismissed.

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

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LAST UPDATED: 24/03/2006