FEDERAL COURT OF AUSTRALIA Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 Citation: Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 Appeal from: Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040 Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and ROBERT MATES v CHRIS CAHILL File number: VID 723 of 2009 Judges: MOORE, MIDDLETON AND GORDON JJ Date of judgment: 18 May 2010 Corrigendum: 2 June 2010 Catchwords: INDUSTRIAL LAW – sentencing appeal – union organiser made statements to procure a stoppage of work on a building site – union organiser took action to procure a stoppage of work on a building site – whether a single course of conduct PECUNIARY PENALTIES – sentencing appeal – whether a single course of conduct - whether manifestly excessive – determination of appropriate penalties Legislation: Building and Construction Industry Improvement Act 2005 (Cth) Crimes Act 1958 (Vic) Trade Practices Act 1974 (Cth) Cases cited: AB v The Queen (1999) 198 CLR 111 Attorney-General v Tichy (1982) 30 SASR 84 Baumer v The Queen (1988) 166 CLR 51 Beckwith v The Queen (1976) 135 CLR 569 Cahill v Construction, Forestry, Mining and Energy Union (No 3) [2009] FCA 52 Carroll v The Queen (2009) 254 ALR 379 Challis v R (2008) 188 A Crim R 154 Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417 Dinsdale v The Queen (2000) 202 CLR 321 Everett v The Queen (1994) 181 CLR 295 Griffiths v The Queen (1977) 137 CLR 293 House v The King (1936) 55 CLR 499 Johnson v The Queen (2004) 205 ALR 346 Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 Malvaso v The Queen (1989) 168 CLR 227 Markarian v The Queen (2005) 228 CLR 357 Lowndes v The Queen (1999) 195 CLR 665 R v Abbott (2007) 170 A Crim R 306 R v Adams (1935) 53 CLR 563 R v Allpass (1993) 72 A Crim R 561 R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235 R v Boaza [1999] VSCA 126 R v Dodd (1991) 57 A Crim R 349 R v Ludeke (1985) 159 CLR 636 R v Sweeney (1981) 147 CLR 259 Re Australian Building Construction Employees' and Builders Labourers' Federation (1986) 301 CAR 23 Royer v Western Australia [2009] WASCA 139 Veen v R (No 2) (1988) 164 CLR 465 Whittaker v The King (1928) 41 CLR 230 Wiseman v Professional Radio and Electronic Institute of Australasia and Others (1978) 20 ALR 545 Date of hearing: 19 February 2010 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 58 Counsel for the Appellants: H Borenstein SC and CW Dowling Solicitor for the Appellants: Emma Walters Counsel for the Respondent: JL Bourke and M Felman Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 723 of 2009 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Appellant ROBERT MATES Second Appellant AND: CHRIS CAHILL Respondent JUDGES: MOORE, MIDDLETON & GORDON JJ DATE OF corrigendum: 2 june 2010 CORRIGENDUM 1 In paragraph 41, line 1 of the Reasons for Judgment, the number "[15]" should read "[39]". 2 In paragraph 46, line 7 of the Reasons for Judgment, the number "[6(4)]" should read "[30(4)]". 3 In paragraph 50, line 1 of the Reasons for Judgment, the number "[6(1)]" should read "[30(1)]". 4 In paragraph 52, line 2 of the Reasons for Judgment, the numbers "[8]-[10]" should read "[32]-[34]". 5 In paragraph 54, line 2 of the Reasons for Judgment, the number "[2]" should read "[26]". I certify that the preceding five (5) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justices Middleton and Gordon. Associate: Dated: 2 June 2010 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 723 of 2009 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Appellant ROBERT MATES Second Appellant AND: CHRIS CAHILL Respondent JUDGES: MOORE, MIDDLETON & GORDON JJ DATE OF ORDER: 18 MAY 2010 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellants pay the respondent's costs of and incidental to the appeal. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 723 of 2009 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Appellant ROBERT MATES Second Appellant AND: CHRIS CAHILL Respondent JUDGES: MOORE, MIDDLETON & GORDON Jj DATE: 18 MAY 2010 PLACE: MELBOURNE REASONS FOR JUDGMENT MOORE J 1 I have had the benefit of reading the reasons for judgment of Middleton and Gordon JJ in a draft form. I gratefully adopt and do not repeat their Honours' account of the background and I also gratefully adopt their summary of the general principles to be applied in sentencing appeals. However, I take a different approach to one of the issues raised in this appeal. It concerns whether the primary judge erred in her consideration of whether there had been the one course of conduct in relation to the events in February 2006 described by Middleton and Gordon JJ at [31] to [33]. 2 I accept, as Middleton and Gordon JJ noted at [40] and [41], a sentencing judge is not obliged to engage in the process of determining whether several acts constituting individual offences should be viewed as a course of conduct. However, the primary judge did so in this matter. Accordingly the starting point is not whether it was necessary for the primary judge to engage in the process of analysing the facts deploying this analytical tool but rather it is whether, having done so, any error is manifest in the way the primary judge went about it. 3 It is convenient to repeat the primary judge's findings about what occurred on 15 and 17 February 2006. As to 15 February 2006, her Honour said in the liability judgment ([2009] FCA 52 at [33]): Having regard to the evidence and s 140 of the Evidence Act 1995 (Cth), I find that, at the meeting of 15 February 2006, Mr Mates made demands on Mr Goss that Mr Deans, Mr O'Donnell and Ms Singleton be re-employed at the Mount Street site, and that Mr Deans and Mr O'Donnell be appointed as shop stewards and Ms Singleton be appointed as OH&S officer. All three individuals had previously been employed at the Mount Street site. Further, I find that Mr Mates threatened trouble at the site and that the project was "not going to happen" if his demands were not met. These threats constituted threatening to take action with intent to coerce Hardcorp to employ these three persons on the project at Mount Street and, amongst other things, to allocate to Ms Singleton the responsibilities or duties of OH&S officer on the project as it recommenced. 4 In the same judgment the primary judge made the following findings about what occurred on 17 February 2006 (at [56]): Accordingly, having regard to the evidence of Mr Goss, Mr Malbourne and Mr Palmer and s 140 of the Evidence Act, I find that, at the meeting of 17 February 2006, Mr Mates made demands on Mr Goss that the former shop stewards and the former OH&S officer (Mr Deans, Mr O'Donnell and Ms Singleton) be re-employed at the Mount Street site, and be appointed as shop stewards and as OH&S officer. Further, I find that Mr Mates threatened that the project would never recommence if his demands were not met. The Union and Mr Mates maintained that this was an unlikely threat given that the project had commenced. It must, however, be borne in mind that the recommencement was in its infancy. The purport of Mr Mates' threat was clear: the project would not get going again in any real sense unless Hardcorp met his demands. These threats on Mr Mates' part constituted threatening to take action with intent to coerce Hardcorp to employ Mr Deans, Mr O'Donnell and Ms Singleton on the project at Mount Street and, amongst other things, to allocate to Ms Singleton the responsibilities or duties of OH&S officer on the recommencing project. 5 In the penalty judgment ([2009] FCA 1040 at [74]), her Honour dealt with the appellants' submission that the events of February 2006 should be seen as one multifaceted course of conduct in the following passage: The contraventions on 15, 17 and 21 February 2006 had the same purpose, namely, to coerce Hardcorp to re-employ Messrs Deans and O'Donnell and Ms Singleton at the Mount Street site and, amongst other things, to have Ms Singleton appointed as OH&S officer on the Mount Street site. This was the common thread running through the offending conduct of 15, 17 and 21 February 2006. To this extent, the comparison with Hamberger v Construction, Forestry, Mining and Energy Union [2002] FCA 585 is justified. Further, the fact of this common thread should be taken into account in fixing penalties, but, in my view, the contravening conduct is not, for this reason, properly seen as one course of conduct. This is because the conduct comprising each of the contraventions was separate and distinct in time and place, and in the coercion that the Union exerted. The conduct on 15 February 2006 involved demands and threats to cause trouble at the Mount Street site if the demands were not met. The conduct on 17 February 2006 involved similar demands and threats but on a different day and place, and in a different context with different participants in the occasion of the contravention. The conduct on 21 February 2006 involved Mr Mates coming on to the site and shutting down the crane. Therefore, these are three separate and distinct contraventions: compare Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at 396-399 [41]-[55]; [2008] FCAFC 70 at [41]-[55] per Stone and Buchanan JJ. (Emphasis added) 6 During argument in the appeal, there was discussion about whether her Honour meant, in the highlighted passage, that the contravening conduct was not, for the identified reason alone, properly seen as one course of conduct. For my part I have endeavoured to focus on the substance of what her Honour has said rather than the niceties of particular language and I am content to accept that her Honour meant that the existence of the common thread did not, by itself, dictate a conclusion that there was one course of conduct particularly having regard to the matters discussed in the remainder of the paragraph. 7 However even reading her Honour's reasons in this way, I am satisfied that her Honour did not approach the question of whether there had been one course of conduct with a view to ascertaining whether the conduct was sufficiently similar to be able to say that notwithstanding that there were three events each constituting an offence, they should be viewed together or in some lesser combination, as a manifestation of singular criminality. It would be apparent from the judgment of the Full Court in Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417 at [25] the enquiry about whether a person has engaged in a course of conduct is directed to a more fundamental question, namely what was the criminality associated with the acts of the accused or defendant. So much is also apparent from the judgment of Owen JA in Royer v Western Australia [2009] WASCA 139 at [30] quoted in Williams. Assessing whether a person has, for the purposes of sentencing, engaged in a course of conduct should not be divorced from this more fundamental question. In my respectful opinion the primary judge in this case appears not to have approached the question in this way. This, at base, is the error of principle in her Honour's approach as I perceive it. It is not a question answered by reciting differences and similarities in the acts said to constitute the course of conduct. Rather, it is a question answered by evaluating the differences and similarities in the acts to determine whether, ultimately, they are or are not a manifestation of singular criminality. 8 I focus, for the moment, on the events of 15 and 17 February 2006. The first point to note is that her Honour described the conduct on 17 February 2006 as involving similar demands to those made on 15 February 2006. While, by itself, it is probably of no great import, the facts as found establish that the demands were not similar. They were precisely the same. It is true that the language used was slightly different (15 February 2006 - "the project was "not going to happen"" and 17 February 2006 - "the project would not get going again") but the substance of the threat made on each of those two days was that the project would not recommence unless the demand to employ the three individuals was met. Accordingly the starting point is that on each of these two days precisely the same threat was made for precisely the same purpose. The first point of distinction noted by her Honour was that each of the contraventions was separate and distinct in time and place. However almost always, when applying this tool of analysis, the contraventions will be distinct in time in the sense that they took place at different times. This tool of analysis is ordinarily deployed because there are events constituting contraventions occurring over a period of time. It is, with respect, of no real moment to note this point of difference. Similarly, it appears to me, the fact that the contraventions occurred at different places is of no moment unless that fact is of itself significant in determining the criminality of the conduct. 9 In the present case the fact that the contravention occurred at Mr Goss's offices on 15 February 2006 and at the CFMEU's offices on 17 February 2006 does not appear to me to have any bearing on the criminality of Mr Mates' conduct. It was suggested by counsel for the respondent in the appeal that the two locations constituted different environments impacting on the way the threats would have been understood and the gravity of them. There was, it was submitted, an additional element of gravitas attending the making of the threat at the CFMEU's offices. However this is mere speculation. Our attention was not drawn to any evidence which would support a finding that Mr Goss, to whom the threats were directed, felt any different about the threat or reacted any differently to it on each of the two days it was made because of where it was made. More importantly, no finding of fact was made to this effect. 10 The other two factors identified by her Honour were that the threats were made in a different context with different participants. It is not entirely clear what her Honour meant when she spoke of context. It was suggested by counsel for the respondent that this referred to the fact that the conversation on 15 February 2006 was a private conversation between Mr Goss and Mr Mates and the conversation on 17 February 2006 involved other participants. If so, it is, in substance, the same factor that followed immediately, namely there were different participants. Counsel for the respondent suggested in the appeal that the presence of the other two members of Mr Goss's management team together with another organiser from the CFMEU again added gravitas to the threat made on 17 February 2006. However again this is mere speculation. No evidence was given by any one that the threat made on that day was understood or perceived to be any more seriously advanced than the threat made on 15 February 2006 or that there was an apprehension on Mr Goss's part, because of the different location and additional participants, that the repetition of the threat on that latter day somehow rendered it more coercive in its effect. Nor do I think it can reasonably be inferred that Mr Mates intended that the repetition of the threat on 17 February 2006 in these different circumstances would create a coercive force of a greater magnitude than that created when the threat was made on 15 February 2006. In any event, no finding to this effect was made. At worst for the case against him and the CFMEU, it could be inferred the repetition of the threat was to ensure it was not forgotten by Mr Goss. However that does not, in my opinion, taint the repetition with a greater measure of criminality. 11 The making of the threat on 15 February 2006 and its repetition on 17 February 2006 was a manifestation of the same criminality. The provision Mr Mates contravened on each day, s 43 of the Building and Construction Industry Improvement Act 2005 (Cth), is intended to prevent particular conduct as part of a broader statutory purpose of promoting norms of conduct in the building industry which Parliament has concluded are appropriate. The factors identified by the primary judge do not, in my opinion, sustain the conclusion that the conduct on 17 February 2006 involved an additional measure of criminality. Mr Mates simply performed the same unlawful act twice. 12 However the primary judge's approach to events of 21 February 2006 was, in my respectful opinion, unexceptionable. The conduct on that day was different in character to that of 15 and 17 February 2006. It involved the implementation of the threat by, as her Honour noted, Mr Mates coming onto the site and shutting down the crane. That there are different degrees of criminality associated with making a threat, on the one hand, and making it and then implementing it, on the other, is, it appears to me, obvious. 13 It is appropriate, as it was in Williams, that this Full Court consider what penalty should be imposed for the offences committed on 15 and 17 February 2006. No party in this appeal submitted that in the event that error was established, the matter should be remitted to the primary judge for resentencing. The error has a significant effect on what is the maximum penalty and this is not a case where this Full Court should exercise the discretion not to intervene notwithstanding demonstrated error: R v Allpass (1993) 72 A Crim R 561 at [5]. 14 Before addressing what is the appropriate penalty for the offences committed on 15 and 17 February 2006, it is appropriate to mention one matter of relevance though peripherally. Section 43 creates an offence of organising or taking action or threatening to organise or take action in order to coerce a company to employ a person as an employee or contractor or allocate them particular responsibilities. It is clear from s 43(2) that the offence is one that can only be committed by an organisation or company. However Mr Mates was found to have contravened the section. The learned primary judge did not address how, notwithstanding the limiting effect of s 43(2), an individual could be prosecuted for breaching that section though I immediately acknowledge that it appears not to have been an issue at the final hearing and was an issue raised only in passing earlier in the proceedings and in the context of s 38. If there is an answer, it would appear to lie in s 48(2), which treats a person who has been a party to a contravention of a civil penalty provision as having contravened the provision. Whether this provision of general application was intended to render nugatory the limiting effect of the express provision in s 43(2) appears not, as just noted, to have been an issue before the primary judge and was not before us. Also, this issue may have been resolved by an authority of which I am not aware. However it appears to me to be a somewhat surprising result. For present purposes in relation to sentencing, the significance of s 43(2) is that the section is one intended, in its primary focus, to capture the conduct of bodies corporate and not individuals. 15 One starting point in considering what is the appropriate penalty is the seriousness of the offence viewed objectively: Veen v R (No 2) (1988) 164 CLR 465 per Mason CJ, Brennan, Dawson and Toohey JJ and R v Dodd (1991) 57 A Crim R 349 involving, not in any definitive way, a comparison between the case under consideration and the worst possible case. Relevant to this task is the maximum penalty which can be treated as the penalty appropriate for the worst possible case: Markarian v The Queen (2005) 228 CLR 357 at [31]. The maximum penalty is $110,000. Section 43 applies to a range of conduct. In so far as it draws a distinction between organising or taking action, on the one hand, or threatening to do so, on the other, it probably can be said that the more serious type of case comprehended by the section is when action is taken rather than simply threatened. The aphorism "actions speak louder than words" provides, in a summary way, why that can be said. The section would also comprehend conduct of a most serious kind where the company which is the victim of the conduct was the subject of a demand to do something that was utterly antithetical to it and where, if the demand was met, the consequences would be greatly damaging most probably, though not exclusively, in an economic sense. For example a union might demand that a builder employ a large number of employees and that those employees be members of that union. That might occur in circumstances where employing that number would be immediately financially ruinous and in circumstances where the employer would, in any event, be resolutely opposed to employing a unionised workforce. 16 Another example might involve a building contractor. The section appears to be sufficiently widely drafted to comprehend the conduct of a corporation which was the head contractor on a building project. This is signalled by the "first person" being identified in s 43(2) as including a constitutional corporation for the purposes of s 43(1). The head contractor might, for illegitimate commercial reasons, insist upon a principal sub-contractor (tendering for work) employing nominated businesses or individuals as sub-contractors as a condition for securing the tendered work. The relevant action would be rejecting the tender. Securing the tender may be vital to the continuation of the principal sub-contractor's business by providing profits and cash flow during a downturn in the industry. Secret commissions may be involved. Acceding to the demand may deny the principal sub-contractor profits of great commercial importance. 17 Also relevant in considering what might be the worst possible case, would be the form of the coercive conduct (or threatened conduct). Again for example, historically, in the Australian building industry, building employees stopping concrete pours midway through the pour (with the enormous damage done to both equipment in which the partly poured concrete hardens as well as the building under construction - sometimes requiring the partly poured set concrete to be jackhammered and removed) was an egregious form of industrial action: see the commentary of the Australian Conciliation and Arbitration Commission in Re Australian Building Construction Employees' and Builders Labourers' Federation (1986) 301 CAR 23. 18 I now focus on the facts of this case. I am, at this point, considering only the threat made by Mr Mates. It is difficult to identify, with any particularity, what was the action which was threatened. That is because the threat was not a threat to take particular action but rather a threat to take such action as might be necessary to stop the building project recommencing. This, it seems to me, points in opposite directions in assessing the seriousness of the offence. On the one hand, the consequences of the threatened action were obviously serious, namely that the project would not recommence in circumstances where it had encountered great financial difficulties. On the other hand Mr Goss was not being threatened with particular action which would obviously have the threatened consequence. In other words the threat was generalised and vague. 19 While no express findings were made by the primary judge about the consequences of the demand being acceded to, several observations can be made. The first is that the three individuals Mr Mates was insisting be employed had already been employed by Mr Goss on the project. I speak in terms of being employed by Mr Goss conscious of the fact that three employees had, in fact, been employed by a company controlled by Mr Goss and the fresh employment would have been with another company controlled by Mr Goss. However, the fact is they had been employed. Secondly there was evidence given by Ms McDonald (whose evidence the primary judge generally accepted) that at the meeting of 15 February 2006 Mr Goss was rejecting the demand on the footing that former employees would not be required at that time on the project because it was just starting up again and there was no need for a full crew. Specifically Mr Goss saw no need for a shop steward because there were only a few men on site at that stage but he was not adverse to the appointment of a shop steward as work progressed. Mr Goss also said there was no need to employ the person Mr Mates was nominating as the OH&S officer because there was already one on site. As to the evidence of the conversation on 17 February 2006, it appeared to be to the effect that Mr Goss had told Mr Mates that he could not afford to re-employ the three people though the evidence of Mr Palmer concerning the discussion suggests that Mr Goss did not discount the possibility of employing one of them (Mr O'Donnell). What this suggests is that the consequences of Mr Goss acceding to the demands of Mr Mates were not dire and, putting aside the unlawful use of threats, the demands were not completely unreasonable. 20 Another particular aspect of the contravening conduct in this case was that after the threat was first made on 15 February 2006, Mr Goss was prepared to meet again with Mr Mates on 17 February 2006. In other words Mr Goss was prepared to continue to discuss matters with Mr Mates notwithstanding the threat he had earlier made. The demands associated with the threat were not so unreasonable as to foreclose any further discussion about them. 21 In my opinion, the making of the threat by Mr Mates was, while serious, not particularly serious having regard to the subject matter of the demand to which the threat was directed and the vague nature of the action threatened notwithstanding the clear and serious objective of the threatened action. Obviously the making of the threat was not trivial and clearly involved unlawful conduct the BCII Act is intended to eliminate. Other factors noted by the primary judge in the penalty judgment are also relevant and I am content to adopt her Honour's analysis and conclusions concerning them with one qualification. At [39], her Honour observed that similar unlawful conduct in the past is relevant and may justify a heavier penalty than otherwise might be imposed. If her Honour meant that the CFMEU, because of prior contraventions, could not gain the benefit (in the form of a lesser penalty) of being a first or infrequent offender, then what her Honour said was unexceptionable. If, however, her Honour was suggesting the penalty should be increased beyond what was appropriate having regard to the seriousness of the offence then I doubt this is correct. This issue was addressed by the High Court in Baumer v The Queen (1988) 166 CLR 51 at 57-58. It is wrong, in principle, to increase a sentence beyond what is considered to be appropriate having regard to the seriousness of the offence because of prior convictions. However I acknowledge that this area of the law on sentencing is not free from subtlety as evidenced by, for example, the discussion in Challis v R (2008) 188 A Crim R 154 per Hoeben J at [30]-[38]. 22 Having regard to the earlier discussion in this judgment about the seriousness of the offence and the matters discussed by the primary judge an appropriate penalty to be imposed on the CFMEU for the contravention of s 43 arising from the threat made by Mr Mates is, in my opinion, $15,000. 23 I now consider the issues raised in the appeal concerning the contravention on 21 February 2006. I have already rejected the submission by the appellants that this conduct ought be viewed as part of the same course of conduct as the threat made on 15 and 17 February 2006 for the purposes of imposing a penalty. The only other attack made by the appellants on the penalty is that it was manifestly excessive. The penalty imposed on the CFMEU was $38,500. It is not, to my mind, plainly apparent that this penalty is excessive: Dinsdale v The Queen (2000) 202 CLR 321 at 325. Also I am satisfied that the penalties of $15,000 and $38,500 are, in aggregate, just and appropriate. 24 The orders I would make would be to allow the appeal in part, set aside orders 1 and 2 of 16 September 2009, order in lieu that a penalty of $15,000 be imposed on the CFMEU in respect of the contraventions of s 43 on 15 and 17 February 2006 and make consequential orders to order 7 but otherwise dismiss the appeal. I would make no order as to costs in the appeal. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 18 May 2010 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 723 of 2009 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: CONSTRUCTION, FORESTRY, MINING & ENERGY UNION First Appellant BOB MATES Second Appellant AND: CHRIS CAHILL Respondent JUDGES: MOORE, MIDDLETON & GORDON JJ DATE: 18 May 2010 PLACE: MELBOURNE REASONS FOR JUDGMENT MIddleton and GORDON jJ INTRODUCTION 25 The respondent, an Australian Building and Construction Inspector appointed under s 57 of the Building and Construction Industry Improvement Act 2005 (Cth) (the Act), brought proceedings in the Federal Court and, against each appellant, was successful in obtaining declarations of three contraventions of s 43 of the Act: Cahill v Construction, Forestry, Mining and Energy Union (No 3) [2009] FCA 52 (the liability judgment). 26 This is an appeal against subsequent orders imposing a penalty on each appellant in respect of each contravention: Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040 (the penalty judgment). The penalties imposed by the trial judge were: [1] A penalty of $18,500 be imposed on [the first appellant] the Construction, Forestry, Mining and Energy Union in respect of the contravention of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) at Mount Street, Heidelberg on 15 February 2006. [2] A penalty of $18,500 be imposed on the Construction, Forestry, Mining and Energy Union in respect of the contravention of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) at Mount Street, Heidelbergon 17 February 2006. [3] A penalty of $38,500 be imposed on the Construction, Forestry, Mining and Energy Union in respect of the contravention of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) at Mount Street, Heidelbergon 21 February 2006. [4] A penalty of $2,500 be imposed on [the second appellant] Bob Mates in respect of the contravention of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) at Mount Street, Heidelbergon 15 February 2006. [5] A penalty of $2,500 be imposed on Bob Mates in respect of the contravention of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) at Mount Street, Heidelbergon 17 February 2006. [6] A penalty of $5,000 be imposed on Bob Mates in respect of the contravention of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) at Mount Street, Heidelbergon 21 February 2006. The maximum penalty for each contravention was $110,000 for the Construction, Forestry, Mining and Energy Union (the CFMEU) and $22,000 for Mr Bob Mates, an employee and officer of the CFMEU. 27 The appellants contend that the trial judge's sentencing discretion miscarried when her Honour did not approach the imposition of the penalties on the basis that the appellants' conduct was a "single course of conduct" and, further, that the penalties imposed were manifestly excessive. The respondent contends that the sentencing discretion did not miscarry and, further, that the penalties cannot be described as manifestly excessive. NATURE OF A SENTENCING APPEAL 28 Before turning to consider the penalty judgment, it is necessary to say something about the nature of the appeal and the approach to be adopted by an appellate Court. 29 This is a sentencing appeal: see Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417 at [8]. The principles to be applied in a sentencing appeal are described in House v The King (1936) 55 CLR 499 at 505. That this is so was most recently restated by the High Court in Carroll v The Queen (2009) 254 ALR 379 at [7] – [8] citing Dinsdale v The Queen (2000) 202 CLR 321. 30 A number of principles are worth restating: 1. inadequacy of sentence (or in this case, manifest excess of sentence) is not demonstrated by a mere disagreement by the appellate Court with the sentence actually imposed: Whittaker v The King (1928) 41 CLR 230 at 248-249; Griffiths v The Queen (1977) 137 CLR 293 at 310; Malvaso v The Queen (1989) 168 CLR 227 at 234; Everett v The Queen (1994) 181 CLR 295 at 299-300, 306; Dinsdale v The Queen 202 CLR 321 at [6]; Carroll 254 ALR 379 at [7]. Error must first be identified by the appellate Court: Carroll254 ALR 379 at [7] citing Dinsdale 202 CLR 321 at 325-326 [6]-[9], 330 [24], 339-340 [57]-[61]. 2. an appeal against sentence is an appeal against an exercise of discretion – the sentencing discretion – and is governed by established principles or categories of cases: Carroll254 ALR 379 at [7] citing House 55 CLR 499 at 505; see also Dinsdale 202 CLR 321 at 324-325 [3]-[4]; 3. the categories reflect particular kinds of error – that the primary judge (1) had acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him / her, (2) had mistaken the facts or (3) had not taken into account some material consideration. If a case of specific error of any of those kinds is made, it is necessary to identify the asserted error in the grounds of appeal. The last category of case (category (4)) is where no case of specific error is alleged except that the sentence was manifestly inadequate or manifestly excessive. That category arises where (House 55 CLR 499 at 505 cited in Carroll254 ALR 379 at [8]): It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 4. a sentencing appeal is not a rehearing. Contentions that a trial judge did not give "sufficient weight" to a particular matter in the exercise of the sentencing discretion is not the "kind of error" an appeal Court can be or should be concerned with in a sentencing appeal: House 55 CLR 499 at 504-5; see also Markarian v The Queen (2005) 228 CLR 357 at [25] and Lowndes v The Queen (1999) 195 CLR 665 at [15]. FACTS 31 The following summary of facts is extracted from the factual findings by the trial judge in the liability judgment. 32 Hardcorp Pty Ltd (ACN 117 918 064) (Hardcorp), a construction company, was one of a number of companies operating a building site at 90-100 Mount Street, Heidelberg, Victoria (the Site). On 15 February 2006, Mr Mates met with Mr Anthony Goss, the sole director of Hardcorp, at the offices of Emerald Glen Holdings Pty Ltd (Emerald Glen), one of Mr Goss' companies. Mr Mates demanded Mr Goss re-employ Mr Jason Deans (the former shop steward), Mr Aengus O'Donnell (the former Federated Engine Drivers and Firemen's Association shop steward) and Ms Roslyn Singleton (the former occupational health and safety [OH&S] officer) in the roles they had previously held at the Site. Mr Mates threatened trouble at the Site, telling Mr Goss that the project was "not going to happen" if these demands were not met. Ms Angela McDonald, Emerald Glen's office manager, overheard the conversation and found parts of the conversation "intimidating or threatening" (at [27]). Her Honour found at [33] that "[t]hese threats constituted threatening to take action with intent to coerce Hardcorp to employ these three persons". Her Honour found at [37] that Mr Mates in his own right, and the CFMEU through the conduct of Mr Mates, breached s 43 of the Act. This was the first contravention. 33 At the meeting on 15 February, Mr Mates and Mr Goss arranged a "follow on" from that meeting. That meeting was held on 17 February 2006, this time at the CFMEU's Melbourne offices. The meeting was attended by Mr Mates, Mr Goss, Mr Alex Tadic (a CFMEU organiser), Mr Bryan Palmer (a site manager at the Site) and a Mr Michael Malbourne (a person associated with Mr Goss). Mr Mates made the same demands and threatened that the project would never recommence if his demands were not met. Her Honour found at [56] that "[t]hese threats on Mr Mates' part constituted threatening to take action with intent to coerce Hardcorp to employ Mr Deans, Mr O'Donnell and Ms Singleton". Her Honour again found at [58] that liability for this breach of s 43 of the Act lay with both appellants. This was the second contravention. 34 On 21 February 2006, Mr Mates attended the Site and caused a crane crew operating at the Site to cease work. Mr Mates said he had shut down the crane because there was no OH&S representative or shop steward on the Site. When told by a site manager that Mr Robert Van Senten was the shop steward and OH&S representative, Mr Mates responded that he did not care and was shutting the crane down. Mr Goss was not on the Site. Her Honour found that Mr Mates' conduct on 21 February 2006 was carrying out his threats of 15 and 17 February 2006. Her Honour again found at [86] that liability for this breach of s 43 of the Act lay with both appellants. This was the third contravention. APPEAL GROUNDS 1 TO 4 – A SINGLE COURSE OF CONDUCT? 35 The appellants submitted that the sentencing discretion miscarried because her Honour failed to consider a relevant matter (whether the three contraventions ought properly be seen as arising out of the one course of conduct) or because her Honour misdirected herself in the application of the "one course of conduct" or the "one transaction" principle. These grounds of appeal should be dismissed. 36 The appellants' contention that her Honour failed to consider a relevant matter (whether the three contraventions ought properly be seen as arising out of the one course of conduct) is rejected on two bases. First, her Honour did consider whether the three contraventions ought properly be as arising out of the one course of conduct in the penalty judgment at [74] when her Honour stated: The contraventions on 15, 17 and 21 February 2006 had the same purpose, namely, to coerce Hardcorp to re-employ Messrs Deans and O'Donnell and Ms Singleton at the Mount Street site and, amongst other things, to have Ms Singleton appointed as OH&S officer on the Mount Street site. This was the common thread running through the offending conduct of 15, 17 and 21 February 2006. To this extent, the comparison with Hamberger v Construction, Forestry, Mining and Energy Union [2002] FCA 585 is justified. Further, the fact of this common thread should be taken into account in fixing penalties, but, in my view, the contravening conduct is not, for this reason, properly seen as one course of conduct. This is because the conduct comprising each of the contraventions was separate and distinct in time and place, and in the coercion that the Union exerted. The conduct on 15 February 2006 involved demands and threats to cause trouble at the Mount Street site if the demands were not met. The conduct on 17 February 2006 involved similar demands and threats but on a different day and place, and in a different context with different participants in the occasion of the contravention. The conduct on 21 February 2006 involved Mr Mates coming on to the site and shutting down the crane. Therefore, these are three separate and distinct contraventions: compare Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at 396-399 [41]-[55]; [2008] FCAFC 70 at [41]-[55] per Stone and Buchanan JJ. 37 As that passage reveals, her Honour determined that the contraventions on 15, 17 and 21 February 2006 had the same purpose – to coerce Hardcorp to re-employ Messrs Deans and O'Donnell and Ms Singleton at the Site and, among other things, to have Ms Singleton appointed as OH&S officer on the Site. As her Honour said, "this was the common thread running through the offending conduct on 15, 17 and 21 February 2006". Notwithstanding that common thread, her Honour formed the view that the contravening conduct was not properly seen as one course of conduct because the conduct comprising each contravention was separate and distinct in time and place and in the coercion that the CFMEU exerted. That finding was based on the following factual findings: * The conduct on 15 February 2006 occurred at an office of Emerald Glen (not the Site) at a private meeting between Mr Mates and Mr Goss and involved demands and threats by Mr Mates to cause trouble at the Site if his demands were not met. The meeting was witnessed by an office worker, Ms McDonald. * The conduct on 17 February 2006 involved similar demands and threats but on a different day and at the offices of the CFMEU with different participants – being Mr Goss and two senior persons from Hardcorp and Mr Mates and another CFMEU organiser. As her Honour said, the context was different. * The conduct on 21 February 2006 was on a different day, at a different site and involved Mr Mates coming on to Site and shutting down the crane. 38 Secondly, and more fundamentally, the appellants' submission should be rejected as it proceeds on a misconception about the single course of conduct principle and the role it plays, or the place it occupies, in the exercise of the sentencing discretion: see most recently in the industrial context the discussion of the principle in Williams 262 ALR 417 at [14] – [26]. 39 As the passages in Williams 262 ALR 417 explain, a "course of conduct" or the "one transaction principle" is not a concept peculiar to the industrial context. It is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is "the same criminality" and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions. 40 Williams 262 ALR 417 did not suggest otherwise. In Williams 262 ALR 417, the issue was not whether the trial judge had in fact considered whether the offences were to be characterised as arising from a single course of conduct, but whether the trial judge erred in his approach to that question. The trial judge concluded that the conduct should not be viewed as a single course of conduct because although Mr Mates (who was also a party in that case) "in a sense" had engaged in a single course of conduct, his Honour found that the conduct had two elements which s 43 of the Act recognised as separate and which were qualitatively distinct in the impact his Honour presumed they had on the third party. The appellants submitted in Williams 262 ALR 417, and the Full Court accepted, that the trial judge erred in his approach to the question of the single course of conduct. In particular, the Full Court concluded that the trial judge should not have treated the fact that the conduct had two elements which s 43 of the Act recognised as separate as a disentitling factor in deciding if the two offences were properly to be characterised as arising from the one transaction or a single course of conduct. 41 As noted above (see [15]), the principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, the Court must ensure that the offender is not punished twice for the same conduct. In other words, where two offences arise as a result of the same or related conduct that is not a disentitling factor to the application of the single course of conduct principle but a reason why a Court may have regard to that principle, as one of the applicable sentencing principles, to guide it in the exercise of the sentencing discretion: Johnson v The Queen (2004) 205 ALR 346 at [3] – [4] and [34] and Attorney-General v Tichy (1982) 30 SASR 84 at 92 – 93. It is a tool of analysis (Tichy 30 SASR 84 at 93) which a Court is not compelled to utilise: Royer v Western Australia [2009] WASCA 139at [21]-[34] and [153]-[156]. 42 A Court is not compelled to utilise the principle because, as Owen JA said in Royer [2009] WASCA 139 at [28],"[d]iscretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks". The exercise of the sentencing discretion does not fall to be exercised in a vacuum. It is a matter of judgment to be exercised according to the facts of each case and having regard to conflicting sentencing objectives: see McHugh J in AB v The Queen (1999) 198 CLR 111 at [14]. For the same reasons, and contrary to the appellants' submissions, even if offences are properly characterised as arising from the one transaction or a single course of conduct, a judge is not obliged to apply concurrent terms if the resulting effective term fails to reflect the degree of criminality involved. Or, in the case of fines, a judge is not obliged to start from the premise that if there is a single course of conduct, the maximum fine is, in the present case, $110,000 for the CFMEU and $22,000 in the case of Mr Mates. 43 That leads to the second way in which the appellants submitted that the trial judge had misdirected herself in law by deciding that the contravening conduct of Mr Mates was not a single course of conduct – by treating the factors that the conduct occurred on different dates, with different participants and in different contexts as determinative. Instead, so the appellants submitted, the trial judge should have decided the issue by answering the question of whether Mr Mates was truly engaged upon a multi-faceted course of criminal conduct or whether Mr Mates' conduct was, in truth, a continuum of acts intended to achieve the same purpose. 44 We reject the appellants' submission that her Honour rejected the single course of conduct submission by treating the factors that the conduct occurred on different dates, with different participants and in different contexts as determinative. Her Honour did not. Her Honour's analysis reveals a detailed examination of the circumstances of the case and a finding that the contravening conduct was not properly seen as a single course of conduct. 45 However, her Honour's analysis did not stop there. Her Honour stated (at [74]) that the "common thread" should be taken into account in fixing penalties. Moreover, her Honour stated at [75] and again at [104] when dealing with the related totality principle, that "[w]here penalties are being imposed for a number of related contraventions, it is necessary to ensure that the penalties in aggregate are just and appropriate to the circumstances of the case". As those passages in the penalty judgment reveal, the trial judge not only addressed the single course of conduct principle and the related totality principle but did so consistently with that principle that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. The legal and factual elements of offences will vary from case to case. A fortiori, the considerations taken into account will vary from case to case. There is no right or wrong way to exercise that sentencing discretion. 46 As the appellants' Counsel stated during oral argument, appeal grounds 1 to 4 were a complaint by the appellants that in considering the contravening conduct, the trial judge had given insufficient weight to some facts (the common purpose) and given too much weight to other facts (the conduct occurred on different dates, with different participants and in different contexts). Complaints about too much weight or insufficient weight given to particular matters in the exercise of the sentencing discretion do not fall within any of the kinds of errors identified in House 55 CLR 499: see [6(4)] above. They are not the kinds of errors that an appellate Court is or should be concerned with in a sentencing appeal. A sentencing appeal is not a rehearing. 47 Finally, we reject the appellants' submission that the trial judge should have decided the issue by answering the question of whether Mr Mates was truly engaged upon a multi-faceted course of criminal conduct or whether Mr Mates' conduct was in truth a continuum of acts intended to achieve the same purpose. Acceptance of that submission would be to adopt an approach Owen JA in Royer [2009] WASCA 139 at [28] warned against – the formulation of adjustable rules or benchmarks. An appellate Court should not (and cannot) formulate adjustable rules or benchmarks in sentencing. What the single course of conduct principle recognises is that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That is a sentencing objective. How a sentencing judge achieves that sentencing objective (as one amongst many conflicting objectives) is not cast in stone. Sentencing is a matter of judgment to be exercised according to the facts of each case. That is what the trial judge did in this case. 48 No error was established. Appeal grounds 1 to 4 should be dismissed. APPEAL GROUND 5 – PENALTIES IMPOSED ON CFMEU MANIFESTLY EXCESSIVE? 49 The CFMEU contends that the penalties imposed on it were manifestly excessive. Mr Mates makes no such complaint. 50 As noted (see [6(1)] above), excess of sentence is not satisfied by a mere disagreement by the appellate Court with the sentence actually imposed. The CFMEU, having failed in relation to appeal grounds 1 to 4, must demonstrate that the sentence falls within the last category in House 55 CLR 499, namely that upon the facts, the sentence is unreasonable or plainly unjust: see House 55 CLR 499 at 505. 51 As Maxwell P said in R v Abbott (2007) 170 A Crim R 306 at [13], the ground of manifest excess is not an occasion on which to re-argue the plea. The ground of manifest excess will only succeed where it can be shown that the sentence was "wholly outside the range of sentencing options available" to the sentencing judge: see Dinsdale 202 CLR 321 at [6] and [59]; Carroll 254 ALR 379 at [7]; Abbott 170 A Crim R 306 at [13]; R v Boaza [1999] VSCA 126 at [42]. 52 There were three contraventions by the CFMEU – on 15, 17 and 21 February 2006: see [8]-[10] above. There was an interrelationship between the legaland factual elements of those contraventions. None of the contraventions involved any personal harm or injury or damage to property. However, the contravening conduct was serious. As her Honour found, the conduct on 15 and 17 February 2006 was patently unlawful, done in deliberate disregard of applicable legislation and went to the very existence of the project at a time when the project had barely recommenced. However, the conduct on 15 and 17 February was distinct in time, place and participants. The conduct on 21 February 2006 was more serious. It was unilateral action taken to prevent work continuing on the Site as planned even though the Site representatives had told Mr Mates there was an OH&S representative and shop steward on Site. The unlawful action taken by Mr Mates in wilful disregard of the Act was to bring about the appointment of particular persons to those positions. The result of the conduct was the sending away of a crane and crew in circumstances where the main construction program on Site could not continue without a crane. 53 The CFMEU had a number of previous contraventions involving similar conduct. As her Honour found, having regard to the history of contraventions and the contravening conduct in issue, there was a need for specific deterrence. There was also a need for general deterrence. 54 It is necessary to say something about the position of Mr Mates. He was an employee and officer of the CFMEU: see para [2]. 55 The amended notice of appeal did not allege that it was not open to the trial judge to convict him for contravention of s 43 of the Act. His appeal was confined to questions of penalty. On the face of the matter, his conviction presents no question about the construction of s 43 of the Act. No party submitted that it did. It may well be that s 43 takes the form that it does to make it apparent that it is a law of the Parliament with respect to corporations under s 51(xx) of the Constitution and a law of the Parliament with respect to a federally registered organisation created under a law under s 51(xxxv), being a law with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State": see R v Ludeke (1985) 159 CLR 636 at 647; R v Sweeney (1981) 147 CLR 259 at 265, 267-268, 276 and 277 and Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 353, 358-359; (see also Wiseman v Professional Radio and Electronic Institute of Australasia and Others (1978) 20 ALR 545 at 559). 56 Whether or not that is so, s 48 of the Act takes a form commonly employed in Commonwealth statutes (see, by way of example, s 79 of the Trade Practices Act 1974 (Cth)) and also other criminal statutes (see, by way of example, s 323 of the Crimes Act 1958 (Vic)). Such a provision in a Commonwealth statute (which imposes liability on persons, as opposed to corporations) is a valid exercise of Commonwealth legislative power: see R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235. 57 The offence of which Mr Mates was convicted was an offence against s 43 of the Act in its operation as extended by s 48 of the Act, in the case of natural persons, who inter alia aid, abet, counsel or procure a contravention of s 43 (ss 48(2)(a)) or who induce a contravention of s 43 by threats or promises (ss 48(2)(b)): cf R v Adams (1935) 53 CLR 563 at 567-568 and Beckwith v The Queen (1976) 135 CLR 569 at 576. 58 In our view, the penalties imposed in relation to the contravening conduct were not outside the range available to a trial judge in the proper exercise of the sentencing discretion. Appeal Ground 5 should be dismissed. * I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Middleton & Gordon. Associate: Dated: 18 May 2010