Industrial Relations Commission of New South Wales in Court Session CITATION : Legge v Coffey Engineering Pty Ltd (No 3) [2002] NSWIRComm 30 APPELLANT Inspector Patrick Legge PARTIES : RESPONDENT Coffey Engineering Pty Limited FILE NUMBER: IRC 5379 of 2000 CORAM: Walton J Vice-President; Glynn J; Hungerford J Occupational Health and Safety - Appeal by prosecutor against dismissal of charge - Appeal upheld - Offence found proven - Appropriate sentence to be imposed - Offence found to be serious - Dangers occasioned to employees of labour hire companies - Significant subjective features in mitigation of penalty - Considerations of double jeopardy in the sentencing process - Penalty imposed - Moiety of fine and costs in favour of appellant - Certificate to respondent employer under Suitors' Fund Act 1951. CATCHWORDS : Appeal - Against acquittal for breach of occupational health and safety legislation - Appeal upheld and offence found proven - Appropriate sentence - Considerations of double jeopardy in the sentencing process - Penalty imposed with a discount for subjective features, including double jeopardy - Moiety of fine and costs in favour of appellant - Certificate to respondent under Suitors' Fund Act 1951. LEGISLATION CITED : Occupational Health and Safety Act 1983 s15(1) Suitors' Fund Act 1951 s 6(1A) CASES CITED : Legge v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 HEARING DATES: 01/31/2002 EXTEMPORE JUDGMENT DATE : 01/31/2002 APPELLANT Mr G Phillips, Solicitor Solicitors: Carroll & O'Dea LEGAL REPRESENTATIVES: RESPONDENT Mr E Cox of counsel Solicitors: Mr M Atkinson Bateman Battersby JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WALTON J, Vice-President GLYNN J HUNGERFORD J Thursday, 31 January 2002 Matter No IRC 5379 of 2000 INSPECTOR PATRICK LEGGE v COFFEY ENGINEERING PTY LIMITED Application for leave to appeal and appeal against a decision of an industrial magistrate, Ms P O'Shane, given on 10 October 2000 in Matter No CIM 1742 of 1999. JUDGMENT OF THE COURT (extempore) [2002] NSWIRComm 30 1 On 7 December 2001, we upheld an appeal from a decision of Ms P O'Shane, sitting as an industrial magistrate, given on 10 October 2000 in which her Worship dismissed a charge under s 15(1) of the Occupational Health and Safety Act 1983 brought against the respondent, Coffey Engineering Pty Limited: see Legge v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319. We also found the offence charged against the respondent proven and set the matter down to deal with the issue of sentence. We now deliver our judgment on sentence. 2 It is unnecessary to recite the facts and circumstances relevant to this prosecution. They are set out in our earlier judgment. It is sufficient to note that the matter concerned an injury sustained by a 21 year old trades assistant while engaged in a placement on behalf of the respondent with Crane Enfield Metals Pty Limited. His left index finger was lacerated when it came into contact with the rotating blade of a circular saw. 3 We consider this offence is a serious one. The respondent, acting as a labour hire company, placed a relatively young and inexperienced employee to perform unfamiliar work on a circular saw without adequate risk assessment or training. There was no adequate provision for the supervision of the employee. The injury was, in the circumstances, foreseeable and simple steps could have been taken (in the nature of the steps which were taken by the respondent after the accident) to prevent the occurrence. 4 We consider this matter puts in sharp focus the dangers occasioned to employees under labour hire arrangements where those arrangements distract from the statutory requirements of providing for the occupational health and safety of employees. It is a case requiring both general and specific deterrence. 5 We consider there are some significant subjective features in this matter favouring a discount to sentence. They are as follows: (i) the implementation by the respondent after the accident of a new system of work which directly addressed and identified detriments to safety in this case; (ii) the respondent has no prior record; and, (iii), and perhaps more significantly, the respondent has maintained that record, notwithstanding a long period of operation over 30 years in an industry in which substantial detriments to safety often arise. We note that the appellant in fact acknowledged the significance of the subjective features in this matter. 6 The respondent placed considerable reliance upon considerations of double jeopardy in contending for a lenient sentence and, indeed, the respondent went so far as to submit that such considerations would require no penalty being imposed. 7 Neither the appellant nor the respondent raised any issue as to whether the principles relating to double jeopardy should be applied in the case of a corporate defendant. The prosecutor submitted that double jeopardy was a consideration to be taken into account in sentencing in this matter. We do not propose to state authoritatively the principles which should be applied in relation to Crown appeals from acquittal in this matter. We do not consider this case is an appropriate vehicle for such consideration. However, we have imposed a more lenient sentence in this matter, having regard to considerations of double jeopardy. In doing so we think it appropriate to cite what was said by a Full Bench of this Court in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 as to the principles relating to double jeopardy (at pars [41] - [45]) and where the Court concluded (at par [45]) : We consider that it would be appropriate in the circumstances of this case to give appropriate weight to the double jeopardy faced by the respondent to this appeal. In doing so, we do not intend at present to lay down any ruling as to that issue and specifically state that it is an issue which will, in an appropriate case, need to be considered in principle by a Full Bench of this Court in appeal proceedings under the Occupational Health and Safety Act . We have taken the view we have in this case, not only because of its own special circumstances and the particular subjective circumstances of the respondent, but because the Full Bench of this Court in WorkCover Authority (NSW) (Inspector Mayo-Ramsay) v Allen Taylor & Co Ltd accepted that double jeopardy was a relevant consideration in prosecution appeals under the present legislation in a case involving a corporation. 8 Notwithstanding the application of this approach, we have determined this is a matter where a penalty should be imposed. Our assessment of the objective features of the offence concerned bring it near the middle of the range of penalties by reference to an amount of $55,000 for the worst case. We have allowed for a discount for the subjective features of the matter, including the consideration of double jeopardy. 9 In the result, we impose a penalty on the respondent of $15,000. We have determined to award costs to the appellant, both at first instance and on appeal, but allowing, as agreed, costs in favour of the respondent for the proceedings concerning the extension of time to appeal. On the basis of the money amounts made available by the appellant, we assess costs in the amount of $20,000 to be paid by the respondent to the appellant. We grant a moiety of the fine to the appellant. 10 We grant the respondent a certificate under s 6(1A) of the Suitors' Fund Act 1951 with respect to the costs of the appeal. 11 We order accordingly. ________________ 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.