Industrial Relations Commission of New South Wales in Court Session Inspector Patricia De Leon-Stacey v The Salvation Army (NSW) Property Trust [2005] NSWIRComm 147 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. PROSECUTOR/APPELLANT: Inspector Patricia De Leon-Stacey PARTIES: DEFENDANT/RESPONDENT: The Salvation Army (NSW) Property Trust FILE NUMBER(S): IRC 5181 of 2004 CORAM: Walton J Vice-President; Kavanagh J; Boland J CATCHWORDS: Appeal - Occupational Health and Safety - Concession re leave - Wrong maximum penalty - Resentencing - No costs HEARING DATES: 05/06/2005 EXTEMPORE JUDGMENT DATE: 05/06/2005 APPELLANT/PROSECUTOR: Mr R Reitano of counsel SOLICITOR: Ms J Smith Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANTS/RESPONDENTS: Mr M Shume of counsel SOLICITOR: Mr R Cameron Hicksons Lawyers JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WALTON J, ACTING PRESIDENT KAVANAGH J BOLAND J Friday 6 May, 2005 Matter No IRC 5181 of 2004 INSPECTOR PATRICIA DE LEON-STACEY v THE SALVATION ARMY (NSW) PROPERTY TRUST Application by WorkCover Authority of New South Wales for leave to appeal and appeal against a decision of Magistrate Wahlquist given on 9 August 2004 in matter no CIM03/20288833. JUDGMENT OF THE COURT (EX TEMPORE) [2005] NSWIRComm 147 1 This is an appeal by Inspector Patricia De Leon-Stacey against a decision of Industrial Magistrate Wahlquist delivered on 9 August 2004. 2 At the outset of the proceedings today Mr M Shume of counsel who appeared for the respondent, Salvation Army (NSW) Property Trust, conceded that we should grant leave to appeal and uphold the appeal in the circumstances of this matter. 3 We inferred from his submissions, although he did not put it directly so, that there would be cause in the circumstances of this case to reconsider the penalty given by the Industrial Magistrate, given that he conceded the matter would ultimately now come before us for the purposes of re-sentencing. 4 Those concessions were, in our view, entirely appropriate given the inadequacies of the decision by the Industrial Magistrate which failed in two fundamental respects. 5 Firstly, there was an inadequate attention to the fundamentals of sentencing under the Occupational Health and Safety Act requiring an assessment of the objective seriousness of the offence and a proper evaluation of any discounts that might apply in relation to the subjective features. Secondly, it is apparent on the face of the charges and the circumstances of this matter that the penalty given was manifestly inadequate. 6 As to the question then of re-sentencing, we shall firstly consider the objective seriousness of this matter. We agree with the submission of Mr R Reitano of counsel, who appeared for the appellant, that there was in this case a relatively serious offence because of three factors: first, there was an absence of any effective system for the control of the use of the chemicals; secondly, the risk was reasonably foreseeable in all of the circumstances; and, thirdly, there were relatively simple, remedial measures available (as were demonstrated in the evidence called on behalf of the respondent in relation to measures taken after the incident). 7 We do however, consider the objective seriousness of this matter is counterbalanced to a limited degree by the role of the contractor engaged by the respondent whose duties included the establishment of a system for the supply of chemicals both in terms of the machinery used to inject the chemicals within the laundry system and in terms of the supply of the chemical product. There was a failure by this corporation which contributed to the circumstances of this incident. 8 We note further in relation to the objective seriousness of the matter that, notwithstanding the jurisdictional limit applying to the Industrial Magistrate, the maximum penalty for the particular offence, given the prior offences of the respondent, was $825,000. 9 Against these considerations we accept the submissions of Mr Shume that there are significant subjective features. We consider there was a plea of guilty at an early stage which should attract a discount of twenty five percent. Furthermore, we consider that there are other subjective features of a high order on the evidence which would warrant a further ten percent discount in relation to the subjective matters. 10 We note additionally that the respondent has a prior record but we counterbalance that against the overall performance of the respondent as an industrial citizen as demonstrated by the evidence including the occupational health and safety systems adopted by it. 11 There is only one other matter to be considered for the purpose of sentencing and that is, as Mr Shume correctly pointed out, the principle of double jeopardy. We consider that principle to be applicable in the present case. 12 Having regard to the entirety of those circumstances, we consider the orders made by the Industrial Magistrate should be quashed and that a penalty of $20,000 (after discount for the subjective features) should be substituted for the penalty of $1,000. 13 We further consider that there should be in the circumstances of this case no order as to costs given the background we have described as to how this appeal came before us. 14 In all of those circumstances then we make the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld and the decision of the Industrial Magistrate is quashed, save as to the order as to costs at first instance. 3. We impose a fine of $20,000 with a moiety to the prosecutor. 4. We make no order as to costs. AMENDMENTS HISTORY: 18/05/2005 - Amendment to solicitor's name in cover sheet - Paragraph(s) 0 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.