Industrial Relations Commission of New South Wales in Court Session CITATION : Green v Barclay Mowlem Construction Pty Ltd [2004] NSWIRComm 69 APPELLANT Inspector Ritchie Green PARTIES : RESPONDENT Barclay Mowlem Construction Pty Ltd FILE NUMBER: IRC 3833 of 2003 CORAM: Wright J President; Walton J Vice-President; Haylen J CATCHWORDS : Appeal - Occupational Health and Safety - Prosecution appeal - Sentencing - No error found - Approach to be adopted in Crown appeals - Appeal dismissed LEGISLATION CITED : Occupational Health and Safety Act 1983 s51A CASES CITED : Inspector Ritchie Green v Barclay Mowlem Construction Pty Ltd [2003] NSWIRComm 197 Inspector Buggy v Weathertex Pty Ltd [2003] NSWIRComm 273 HEARING DATES: 03/19/2004 EXTEMPORE JUDGMENT DATE : 03/19/2004 APPELLANT Mr M P Cahill of counsel Solicitors: Moray & Agnew (Mr P Thompson) LEGAL REPRESENTATIVES: RESPONDENT Mr R Reitano of counsel Solicitors: Corrs Chambers Westgarth (Mr A Korbel) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President HAYLEN J Friday 19 March 2004 Matter No IRC 3833 of 2003 INSPECTOR RITCHIE GREEN v BARCLAY MOWLEM CONSTRUCTION PTY LTD Application by Inspector Ritchie Green for leave to appeal and appeal against a decision of Justice Boland given on 26 June 2003 in Matter No IRC 996 of 2002 JUDGMENT OF THE COURT Extempore [2004] NSWIRComm 69 1 PRESIDENT: The Court invites Justice Haylen to give judgment on behalf of the Full Bench in this matter. 2 HAYLEN J: This appeal from the judgment of Boland J in Inspector Ritchie Green v Barclay Mowlem Construction Pty Ltd [2003] NSWIRComm 197 is said to raise questions of consistency and parity of sentencing in relation to defendants charged out of the same incident under different sections of the Occupational Health and Safety Act 1983. 3 The appellant invited the Court to issue a clarifying statement as to the manner in which a sentencing judge should deal with the higher penalty imposed by s 51A of the Occupational Health and Safety Act 1983 when dealing with the same incident involving defendants with a record and defendants without a record. 4 We do not regard the present case as an appropriate occasion to do so. 5 We consider an examination of the decision of the sentencing judge and the reasons for the penalty imposed does not reveal that the sentence imposed was manifestly inadequate. No different conclusion arises when regard is had to the penalty imposed on the defendant in the related proceedings. 6 Further, the principles in relation to Crown appeals make plain that the appellate court must exercise appropriate restraint. Its role is not to impose its own view of the penalty to be imposed. In any event, there is a discretion even where error is demonstrated (and we do not find error in this case) to dismiss the appeal. We draw attention to the discussion in Inspector Buggy v Weathetex Pty Limited [2003] NSWIRComm 273, judgment of the Full Court delivered 12 September 2003, from paragraph [45] and following. 7 It therefore follows that the appeal should be dismissed. [Counsel addressed on costs] 8 PRESIDENT: The Full Bench makes the following orders in disposition of the appeal: 1. The appeal is dismissed; 2. The appellant is ordered to pay the respondent's costs of the appeal in a sum as agreed or, in default of agreement, in an amount as assessed. ___________________________________ 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.