Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of NSW (Insp Charles) v Kennedy-Taylor (NSW) Pty Ltd [2000] NSWIRComm 37 PROSECUTOR: PARTIES : WorkCover Authority of NSW (Insp Charles) DEFENDANT: Kennedy-Taylor (NSW) Pty Ltd FILE NUMBER: IRC605-607 of 1998 CORAM: Kavanagh J CATCHWORDS : OHS-s15 - penalty - employer's failure to assess worksite - collapse of ceiling - parity principle in sentencing to be applied to ensure equal justice - application of principle of totality to penalty LEGISLATION CITED : Occupational Health and Safety Act 1983 s15 Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Insp Ch'ng) (1999) 90 IR 464 Haynes v James Glass & Aluminium Pty Ltd (unreported, Fisher CJ, CT91/772-775, 20 May 1994) CASES CITED : Warman International Ltd v WorkCover Authority of NSW (1998) 80 IR 326 WorkCover Authority of NSW (Insp Ankucic) v McDonald's Australia Limited & Anor (unreported, Walton J, Vice-President, 4 February 2000, Nos IRC 1104, 1106 of 1998) Postiglione v The Queen (1997) 189 CLR 295 Pearce v The Queen (1998) 72 ALJR 1416 HEARING DATES: 02/23/2000 DATE OF JUDGMENT: 03/29/2000 PROSECUTOR: Mr J.J. Millar of Counsel SOLICITORS: WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT: Mr S. Burke (Solicitor) SOLICITORS: Gadens, Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date: Wed 29 March 2000 IRC605 of 1998 WORKCOVER AUTHORITY OF NSW (INSP CHARLES) v KENNEDY-TAYLOR (NSW) PTY LTD Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 IRC606 of 1998 WORKCOVER AUTHORITY OF NSW (INSP CHARLES) v KENNEDY-TAYLOR (NSW) PTY LTD Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 IRC607 of 1998 WORKCOVER AUTHORITY OF NSW (INSP CHARLES) v KENNEDY-TAYLOR (NSW) PTY LTD Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT AS TO PENALTY 1 In the prior judgment in this matter the court has found three charges proven against the defendant, namely: in summons No IRC605 of 1998, the defendant failed to provide and maintain a means of access and egress from a construction site that was safe; in summons No IRC606 of 1998 the defendant failed to conduct a risk assessment of the structural integrity of the trafficable ceiling and in summons No IRC607 of 1998 the defendant failed to adequately instruct its employees as to safe access. 2 Mr Miller, counsel for the prosecution submits the court, taking on the objective view as to the offence, should determine a significant penalty. the maximum penalty under the Act on the date of the offence was $500,000. The defendant has no prior conviction. 3 Mr Burke, solicitor, represented Kennedy-Taylor and tendered significant evidence to assist the court in its assessment of the objective seriousness of this offence as well as the subjective features of the breach. 4 As to the objective seriousness of the offence, the words in Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Insp Ch'ng) (1999) 90 IR 464) seem apposite: . ., in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH & S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence'. The Full Bench notes that: The proper approach is first to consider the gravity of the offence viewed objectively. and the Full Bench said: It has observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to the consideration of the nature and quality of the offence. The Full Bench gave approval to the passage from the judgment of Fisher CJ in Haynes v James Glass & Aluminium Pty Ltd (unreported, CT91/772-775, 20 May 1994) where his Honour said: . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce. And relevantly in this case where the Court is considering three breaches under s15(1) of the Act, the Full Court held: In the case of an offence under s 15(1) of the OH&S Act, there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at p 9. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant; see Tyler v Sydney Electricity (1993) 47 IR 1 at 5. In Inspector Hannah v Wonar Pty Ltd , the Full Bench indicated (at p 9), properly in our view that 'a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences.' 5 This employer allowed three workers to climb into a work site without an assessment of the integrity of that work site. These employees were directed to the worksite which had never been assessed for site safety. An employer is responsible for ensuring his employees have safe working. The foreman of Kennedy-Taylor was responsible for the two other workers. He was rigorous in ensuring the two workers complied with the standards required by the signage in the ceiling. 6 The responsibility for sending these workers into a ceiling whose integrity was obviously challenged and whose condition I have found was in an appalling state, is that of the employer. This responsibility is absolute. The employer went on a site inspection of the worksite originally but the evidence revealed safety issues were not addressed. When there was a variation of the contract and an associated variation to their employees worksite no safety assessment was made of the new site. Serious consequences ensued. The ceiling on which the employees were standing collapsed injuring the three workers, one seriously. The employees however were well trained. The foreman ensured as best he could they complied with instructions per the signage as to where they could walk. The court views this offence as serious. 7 As to the subjective features of these offences which the court should take into consideration, Mr Burke submits the Kennedy-Taylor group has been operating as an electrical contractor on major projects since 1946 and in New South Wales since 1973. He revealed the defendant during the year 1999 employed an average of 100 persons on 25 contracts and the turnover of the company is in the vicinity of $20 million. The company engages on an average of 30 sites at any given time. The defendant has a System, Safety and Risk Management Manual which applies to all operations. This manual is dated March 1999. 8 The defendant has since the accident engaged the services of an Occupational Health and Safety Consultant to develop Sites Specific Plans for each major contract and to conduct Site Specific induction training for all its employees, which training acknowledges the recognition of hazards, the work of safety committees, induction of individual workers and the supervision of line manager training as well as specifically for this company, electrical safety training. The program is directed to an awareness of overall safety on site and site specific tasks. There is a manual directed to safety systems and management and site specific safety. 9 An example of such Site Specific safety was the Norwest Hotel International Project. This document is particularly relevant as it directs the general management plan to a specific site and allows the court to be assured the risks to safety exposed in this accident have been comprehensibly addressed by management. 10 The court in its prior judgment made comment about the responsibilities of Mr Kane. The court expressed grave concern at Mr Kane's attitude to the safety and it appreciates that Mr Kane presented again to the court at its hearing on penalty. The tender of the revised documents was accepted by the prosecution and Mr Kane was therefore not required to give further evidence. However, the court notes he was so prepared. 11 The defendant has no prior convictions. However, the charges were rigorously defended so no early plea can be given consideration on the issue of penalty. The defendant has however provided the appropriate care and attention to the injured workers and has shown all care and consideration to them. 12 Mr Bourke submits that the court should apply the principle of totality in relation to the three offences. He further raised the question of the court's consideration of parity in sentencing in this matter. He urges the principal of parity as discussed by the High Court in Postiglione v The Queen (1997) 189 CLR 295 which view he submits has application to sentences imposed under the Occupational Health and Safety Act, 1983. In Warman International Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 at 340-341, the Full Bench considered this notion saying: We also accept that the principle of parity in sentencing as discussed by the High Court in Postiglione v R ((1997) 145 ALR 408) has application to sentences imposed under the O H & S Act. In that context it is appropriate to have some regard to the sentences imposed by Hungerford J on Drake Personnel Ltd, the direct employer of two of the injured workers. In Postiglione the High Court was concerned with an appeal against sentence which raised questions of comparison between the sentence imposed on a principal party in a conspiracy compared with that imposed on the appellant, who was subordinate in that conspiracy. Dawson and Gaudron JJ (at 411-412) said: `The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them [ Lowe v R (1984) 154 CLR 606 at 610-11 per Mason J]. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error [ Lowe at 617-18 per Brennan J]. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe -v- R, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to `a justifiable sense of grievance' [ Lowe especially at 610 per Gibbs CJ, 613 per Mason J and 623 per Dawson J]. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.' That principle was referred to by Mason J in Lowe v The Queen ((1984) 154 CLR 606 at 610) as follows; `Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.' While the offences with which we are dealing under the O H & S Act do not involve the notion of co-offenders, the fact is that the same circumstances have given rise to prosecutions for offences under ss15 and 16 of the O H & S Act of the direct employer, . . . which supplied the labour involved, and the defendant here who utilised that labour in relevant circumstances. While those defendants have been found guilty of different offences, nevertheless the factual circumstances giving rise to the charges justify an approach to sentencing which shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe. And in WorkCover Authority of NSW (Insp Ankucic) v McDonald's Australia Limited & Anor (unreported, 4 February 2000, Nos IRC 1104, 1106 of 1998) Walton J, Vice-President said on the issue of parity (at 103): Nevertheless, the principle of parity only operates to the extent of comparing like with like. Differences in sentences arising from different circumstances will not violate the principle. These factors will include, in the case of the defendants, differences in the maximum penalty for the offence: Signato v R (1998) 73 ALJR 162 at 170. 13 The court finds the principle of parity does apply in consideration of penalty arising out of circumstances also examined in the matter of WorkCover Authority (Insp Charles) v Mainbrace. 14 I believe in the circumstances before me as to the prosecutions against Mainbrace and Kennedy-Taylor arising out of the same events the principle of parity should be given some consideration, although once again whilst the same circumstances give rise to the prosecutions, the factual circumstances as to the breaches are different as are the charges Kennedy-Taylor meets under s15 of the Act. Mainbrace is charged with a breach of s16 of the Act. 15 As to the application of the principle of totality in this matter in McDonald, Walton J, Vice President noted: In Warman International Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 (at 339) the court held that the principle of totality must be applied in sentencing and adopted the statement of the principle enunciated in Waugh (at 100) as follows: The principle of totality allows a court when sentencing to avoid a straight forward arithmetical addition of sentences appropriate to each individual offence where the offences are similar, thus avoiding doubling of penalty by enabling the judge to consider a single overall penalty which includes the circumstances of a second or further offence. 16 McHugh J has recently addressed this principle in Postiglione v The Queen (1997) 189 CLR 295 at 307-308: The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. In Kelly v The Queen, O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi : There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect. The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. (See also the judgment of Kirby J at 341). 17 More recently, in Pearce v The Queen (1998) 72 ALJR 1416 at 1424, the High Court discussed the application of the principle of totality, but in the context of an offender facing two charges arising out of a single episode, that is breaking into a victim's home and beating him saying: A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. 18 Woods J, in a recent discussion of this decision in Judicial Officers Bulletin, Volume 11, No 5 (June 1999), describes the operation of the principle thus: When an offender stands for sentence in relation to several offences, it will invariably be necessary to pay regard to the principle of totality. 19 In the circumstances as to the charges before the court against Kennedy Taylor, I find the principle of totality should be applied. 20 I have considered all matters in mitigation as to penalty put before the court. I further consider the principles which I have noted must be applied to penalty in this circumstance. 21 As to summons No. IRC605 of 1998 I find the defendant guilty. I fine the defendant $30,000. As to summons No. IRC606 of 1998 I find the defendant guilty. I fine the defendant 50,000. As to summons No. IRC607 of 1998 I find the defendant guilty. I fine the defendant $30,000. 22 I take into account the principle of parity as between this defendant and Kennedy-Taylor and in the application of the principle of totality I fine the defendant $100,000 with a moiety to the prosecution. ******** 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. 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