Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259 APPELLANT Inspector Christopher Downie PARTIES : RESPONDENT Menzies Property Services Pty Limited FILE NUMBER: IRC 7438 of 2003 CORAM: Walton J Vice-President; Boland J; Backman J CATCHWORDS : Appeal from decision of magistrate - leave to appeal - guilty plea - dismissal of charge under s10 of Crimes (Sentencing Procedure) Act - appeal from discretionary decision - improper exercise of discretion - errors of law and principle - sentence manifestly inadequate - failure to properly consider objective seriousness of offence - instruction to use unsafe system of work - failure to supervise - failure to provide training - excessive weight given to subjective factors - insufficient weight given to consideration of general and specific deterrence - s10 order rare in occupational health and safety prosecutions - review of sentencing decisions - double jeopardy - leave to appeal granted - appeal upheld - respondent re-sentenced - no order as to costs of appeal Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Abdullah Al-Shennag v Bankstown City Council Civic Services Group (2002) 118 IR 138 Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2001) 112 IR 139 Alcatel Australia Limited v WorkCover Authority (NSW) (Inspector Clyant) (1996) 70 IR 99 Barber v Gundegai Shire Council (2002) 118 IR 193 Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Cobiac v Liddy (1969) 119 CR 257 Commissioner of Taxation v Baffsky (2001) 164 FLR 375 Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd & Anor (2001) 105 IR 348 Department of Mineral Resources NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Dowling v Bournelis & Bedrock Constructions (NSW) Pty Ltd [2003] NSWIRComm 88 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Griffiths v The Queen (1977) 137 CLR 293 House v The King (1936) 55 CLR 499 Inspector Carmody v Power [2002] NSWIRComm 286 Inspector Ian Batty v Graincorp Operations Limited [2002] NSWIRComm 49 Inspector Victor Larobina v Mahmoud Khodr Trading as MK Tiling & Anor [2003] NSWIRComm 473 King v State Bank of New South Wales (2002) 126 IR 407 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Mace v Murray (1955) 92 CLR 370 McCarthy v Sell & Parker Pty Ltd [2000] NSWIRComm 273 Mitchforce v Starkey (2002) 117 IR 122 Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 Pearce v The Queen (1988) 194 CLR 610 R v Allpass (1993) 72 A Crim R 561 CASES CITED : R v Ingrassia (1996) 41 NSWLR 447 R v Lord [2001] NSWCCA 533 (4 December 2001) R v Paris [2001] NSWCCA 83 R v Piccin (No 2) [2001] NSWCCA 323 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 Riley v Australian Grader Hire (2001) 103 IR 143 Schultz v Tamworth City Council (1995) 58 IR 221 Thorneloe v Filipowski (2001) 52 NSWLR 60 Van Rooy Machinery Pty Ltd v WorkCover Authority (Insp Wolf) (2000) 97 IR 436 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Limited (2002) 115 IR 59 WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207 WorkCover Authority (NSW) (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312 WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Limited (unreported, Schmidt J, 25 February 1994) WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2002) 123 IR 121 WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] (2000) 100 IR 23 WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Ltd (1999) 90 IR 413 WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 WorkCover v TRW [2001] NSWIRComm 52 WorkCover Authority v Waugh (1995) 59 IR 89 HEARING DATES: 08/26/2004 DATE OF JUDGMENT: 09/09/2004 APPELLANT Mr J Agius, SC Mr D Chin of counsel SOLICITOR Judith Healy Phillips Fox LEGAL REPRESENTATIVES: RESPONDENT Mr B Hodgkinson, SC Mr J Fernan of counsel SOLICITOR Samuel Kennedy Turks Legal JUDGMENT: - 44 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WALTON J, Vice-President BOLAND J BACKMAN J 9 September 2004 Matter No IRC 7438 of 2003 INSPECTOR CHRISTOPHER DOWNIE v MENZIES PROPERTY SERVICES PTY LIMITED Application for leave to appeal and appeal against a decision of Deputy Chief Magistrate Helen Syme given on 4 December 2003 in Plaint Number 20273954/03/2. JUDGMENT OF THE COURT [2004] NSWIRComm 259 1 This matter concerns an application by Inspector Christopher Downie for leave to appeal pursuant to s197 of the Industrial Relations Act 1996, and if granted, to appeal from a sentencing decision of Deputy Chief Magistrate Syme of 4 December 2003. In proceedings before the Deputy Chief Magistrate, Menzies Property Services Pty Limited entered a plea of guilty to a charge under s8(1) of the Occupational Health and Safety Act 2000, following which Deputy Chief Magistrate Syme unconditionally dismissed the charge pursuant to s10 of the Crimes (Sentencing Procedure) Act 1999: Inspector Christopher Downie v Menzies Property Services Pty Limited (unreported, Chief Industrial Magistrate's Court, Plaint No 20273954/03/2, 4 December 2003). 2 The appellant seeks to appeal that decision on four grounds, namely that the Deputy Chief Magistrate erred: (1) in the exercise of her discretion to apply s10 of the Crimes (Sentencing Procedure) Act , and in particular, in allowing "extraneous or irrelevant" matters to guide or affect the exercise of her discretion to apply s10 of the Crimes (Sentencing Procedure) Act ; (2) in failing to give sufficient weight to the general and specific deterrent effect of a conviction and the imposition of a penalty; (3) in failing to give sufficient weight to the objective seriousness of the offence; and (4) in placing too much weight on the subjective factors of the offence. 3 The facts of the matter can be briefly summarised. The respondent is a cleaning company. On 8 October 2001, Ms Valerie Pyart, an employee of the respondent, was performing cleaning services at Barham High School. As part of her duties, Ms Pyart was required to clean a number of high, louvre windows in a computer room. Ms Pyart stood on a desk to clean the windows. She climbed on and off the desk using a plastic chair. As she stepped off the desk, the chair slipped and she fell to the floor, sustaining 3 fractured ribs. Ms Pyart was absent from work for about 7 weeks. Ms Pyart was 60 years of age at the time of the accident. 4 We note that there was no argument regarding the safety of using desks as a work platform when cleaning the windows: the issue was the use of the chair instead of a stepladder to climb on and off the desk. We further note that the Agreed Statement of Facts included a statement that Ms Pyart (and her co-worker) "were not provided with a stepladder to gain access to the louvre windows". The respondent relied on evidence that stepladders were available at the worksite, but were not used by Ms Pyart. That is, the failure was one whereby the supervisor omitted to give the requisite command to ensure that an otherwise safe system was complied with by the employee. However, as we shall discuss later, evidence was also presented that Ms Pyart was instructed by her supervisor to use a plastic chair to alight the desk. 5 In oral submissions before us the respondent conceded that such an instruction was given, but submitted that this issue was not properly raised by the prosecutor before her Honour. This submission has some substance as it is clear that her Honour proceeded upon the basis of a less objectively serious offence in which the respondent simply omitted to ensure its system was applied and the prosecutor did nothing to disabuse her of that mistaken view of the facts. However, for reasons we will later discuss, we do not consider that, in this matter, those considerations would warrant rejecting the appeal or exercising a residual discretion not to impose a monetary sentence in re-sentencing the respondent. 6 The respondent entered a plea of guilty to a charge under s8 of the Occupational Health and Safety Act that, on 8 October 2001, it failed to ensure the health and safety of its employees, and in particular, Ms Pyart. The particulars of the charge, which related solely to the cleaning of louvre windows at heights over 1.2 metres from the floor, were a failure to implement a safe system of work; failure to provide safe access to the windows; failure to properly train employees; failure to properly supervise and instruct employees in the safe work method; failure to provide employees with suitable equipment; and failure to undertake a risk assessment. 7 Two related issues arise for determination on appeal: firstly, whether the Deputy Chief Magistrate erred in the exercise of her discretion under s10 of the Crimes (Sentencing Procedure) Act; and secondly, whether in doing so she imposed a penalty which was manifestly inadequate having regard to the nature and quality of the offence. The decision appealed from 8 Her Honour, in an ex tempore decision, noted the respondent's plea and briefly discussed the particulars of the charge as follows: In relation to this matter Menzies Property Services Limited has pleaded guilty to an offence under the Occupational Health and Safety Act. The allegations set out in usual form [refer to] a series a breaches or failures that are provided for in the particulars. It's alleged that a safe system of work was failed [sic] to be provided with respect to the cleaning of louvre windows. In relation to the cleaning of these louvre windows I note that this is somewhat of an annual event and in relation to that the worker who was injured as far as I can tell may not have participated in that particular work beforehand, thus underlining I think the need for a safe system of work when something unusual has been carried out. Failure to provide safe access for the cleaning of louvre windows, again this is one and the same thing. The facts of the matter show that the injured worker involved was standing on some computer desks in order to clean the louvre windows and that was necessary because of the nature of the louvre windows and the screening and so forth. Her standing on the desks doesn't appear to be a problem, and that wasn't what caused her injury. What caused the injury was her using a chair to get up on the desk in order to clean the windows. It is clear that the plastic chair she stood on in order to get onto the table was not the best method of operating that particular piece of work. An allegation in the particulars also that there was a failure to train its employees in the cleaning of the louvre windows, this is basically restating the same particular that I have already referred to. Failure to properly supervise the employees, again because of the annual nature of this event that's a restatement of the previous particular that the defendant ought have instructed its supervisor to ensure that the worker used the stepladder rather than a chair on the time in question. Failure to provide employees with suitable equipment, I am not quite sure that that's correct. The inspector's statement refers to long-handled cleaning implements and stepladders in order to stand on it in order to clean the louvres. Certainly there was stepladders available, according to the letter I have from Menzies Property Services which has been tendered by consent, indicating that both step and extension ladders were available for the use by cleaning staff. Again I am not entirely sure that an extension ladder would have assisted this quite so much as a small stepladder or platform rather than a chair. Failure to undertake a risk assessment for the cleaning of louvre windows at that particular height, it does not appear that a specific risk assessment was carried out for that specific duty at that specific area. The worker fell off the chair and suffered reasonably serious injuries, having suffered some fractured ribs, and she had, I am told, seven weeks off work as a result of that. There is no other information before the Court concerning her recovery but certainly a fall from the height of a chair is a reasonably serious injury, certainly it is foreseeable within the work system that the worker operated in. 9 In considering the nature and quality of the offence her Honour held that: The duty of the Court when dealing with these matters is to assess the objective seriousness of the offence taking into account the overall work practices of the company, which according to documentation that I have is overall very good the nature of the industry, and the industry is of course a cleaning industry, not, I would have thought, generally an industry that is inherently dangerous, the work practices that are in place [or] were in place prior to the accident occurring and after the accident occurring. I have before me a substantial amount of material in relation to those matters and the company certainly appears to be properly and well equipped with an appropriate occupational health and safety policy that appears to be properly followed up at all appropriate times. Certainly this risk was foreseeable and I have no doubt that had a particular risk assessment been conducted in relation to this particular activity prior to the activity being undertaken, there would have been some assessment of the risk of falling off the chair. However, balanced against that and of course the need to deter employers from indulging in any behaviour that is in any way risky, balanced against that is the record of the company, the steps that they have taken in relation to this particular incident and in relation to their overall health and safety policy and their many years of operation with many employees and I note that no convictions have ever been recorded against them, well I don't have any details of their safety record. 10 Her Honour then made the following findings as to penalty: It is very unusual to consider a s10 application in matters of this nature. Certainly the injury was relatively severe, however the circumstances surrounding the injury were not such that a severe injury could have been foreseen in such a way - well, it could have been foreseen in such a way but perhaps not such a severe injury. The work practice of the company appeared to be exemplary. The record of the company is exemplary. I am always reluctant, in fact I can't remember having given a s10 in a WorkCover matter. But taking into account the facts and circumstances of this matter and the circumstances of the company, I place it outside the usual circumstances of any case and all things considered this is a rare and appropriate matter where s10 should be granted not recording a conviction against the company. I don't propose to use the services of a s10 bond as it does not seem to me that the company needs any persuasion to continue to do the right thing. They will, however, pay the professional costs which I note are $1,800, plus $391.74 disbursements. leave to appeal 11 The appellant was represented in these proceedings by Mr J Agius, Senior Counsel with Mr D Chin of counsel. Mr B Hodgkinson, Senior Counsel appeared for the respondent with Mr J Fernan of counsel. 12 The appellant submitted that leave to appeal should be granted because the matter raises important questions as to the construction and application of s10 of the Crimes (Sentencing Procedure) Act, and raises for consideration the appropriate principles to be adopted in relation to the exercise of discretion under that section, particularly in occupational health and safety prosecutions. 13 The appellant contended that the Deputy Chief Magistrate did not apply the correct legal principles; gave no indication that she had specific regard to the provisions of s10(3) of the Crimes (Sentencing Procedure) Act; erred in exercising her discretion having regard to the fact that no finding was made that the offence was "trivial"; and exercised her discretion in a manner inconsistent with authority. The appellant submitted that there is a substantial public interest in ensuring the proper exercise of discretion under s10 of the Crimes (Sentencing Procedure) Act. 14 The respondent submitted that it is well established that leave to appeal is required in matters such as this: Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 465). The respondent further submitted that leave should not be granted in the present matter. It was the respondent's contention that the appeal does not raise any question of law or matters of general principle, nor does it raise any issues of public interest: the principles relevant to the application of s10 of the Crimes (Sentencing Procedure) Act are well settled and were correctly applied by the Deputy Chief Magistrate. The respondent expressly submitted to her Honour that she exercise her discretion pursuant to s10 of the Crimes (Sentencing Procedure) Act, leaving the appellant in no doubt that there was a real possibility that she would do so. 15 The respondent further relied on the decision in R v Allpass (1993) 72 A Crim R 561 in which the Court of Criminal Appeal identified a number of principles relevant to the exercise of their jurisdiction to review sentencing decisions. The respondent highlighted two of those principles in support of its submission that leave should not be granted: firstly, an appellate court will only interfere in a sentencing decision if it is demonstrated that the sentencing judge fell into material error of law or fact, and will not intervene simply on the basis that the members of the appellate court would have exercised their discretion differently to the sentencing judge; and secondly, crown appeals against sentence should be a rarity, particularly to guard against double jeopardy. 16 The principles applicable to the granting of leave to appeal were established in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381-382, and have formed the cornerstone of decisions relating to the granting of leave to appeal ever since. See, for example, Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 at 164; Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2001) 112 IR 139 at 139; WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2002) 123 IR 121; Mitchforce v Starkey (2002) 117 IR 122 at 132; Abdullah Al-Shennag v Bankstown City Council Civic Services Group (2002) 118 IR 138 at 139; King v State Bank of New South Wales (2002) 126 IR 407 at [52] - [55]. 17 It is well settled that leave will not lightly or automatically be granted, and that the following considerations are relevant to whether leave should be granted: is the matter of sufficient importance that it is in the public interest that leave to appeal be granted?; is the case on appeal substantially different to that at first instance?; does the appeal raise important issues of law or principle, or have wider implications for the jurisprudence of the Commission?; are there substantial issues as to the proper administration of justice? 18 We agree with the respondent that leave to appeal is required in relation to appeals under s197 of the Industrial Relations Act (although we note that we have not been required to consider the impact of the Crimes (Local Courts Appeal and Review) Act 2001). 19 We further agree with the respondent's submission that the law and principles regarding the exercise of discretion under s10 of the Crimes (Sentencing Procedure) Act are well settled. Nevertheless, we are satisfied that leave to appeal should be granted in the present matter. We consider that the exercise of discretion in this matter was erroneous and demonstrated significant errors of law and principle. Appellate intervention is necessary, in our view, to correct the misapplication of those principles. The appeal, therefore, raises important questions regarding the proper approach to sentencing in occupational health and safety matters, and more particularly, the extent to which the exercise of discretion under s10 of the Crimes (Sentencing Procedure) Act is limited in such matters. Whilst each matter turns purely on its own facts, it is necessary, in our view, to consider in this matter the boundaries in which a court under the Occupational Health and Safety Act may exercise the discretion under s10 of the Crimes (Sentencing Procedure) Act. Further, we consider the matter raises significant questions as to the proper administration of justice under the Occupational Health and Safety Act 2000. 20 We note that the appellant's submissions to the Deputy Chief Magistrate did not address a number of factors going directly to the objective seriousness of the offence; factors which were essential to a proper assessment of the nature and quality of the offence. In particular, the appellant did not make clear that the failure relied upon was not simply a failure by the respondent to insist on the use of a stepladder, but was the giving of a direct instruction by the respondent's supervisor that the plastic chair be used instead of a stepladder, a system of work which was inherently unsafe. 21 As earlier mentioned, we agree with the submission put by Mr Hodgkinson that this failure in ordinary circumstances may have adverse implications for an application for leave to appeal. However, we do not consider that such an approach should be adopted in this matter. This is so because we consider that even upon the case considered by the Deputy Chief Magistrate, there was no proper basis for an order under s10 of the Crimes (Sentencing Procedure) Act. As earlier stated, her Honour's decision contains significant errors of law and principle which have implications for the jurisprudence of the Commission and which therefore require correction. Further, given our intention to re-sentence the respondent, it is necessary that we consider the true objective seriousness of the offence, which is substantially increased having regard to the improper instruction given to Ms Pyart by her supervisor to use an unsafe system. We note, in that regard, that both parties accepted that, if the appeal is granted, then we should re-sentence the respondent rather than remitting the matter. 22 The appellant's failure to raise significant factors going to the nature and quality of the offence at first instance will, however, be significant in relation to the issues of double jeopardy and costs. We will return to those issues later in our judgment. Nature of the appeal 23 The appellant contended that the relevant principles to be applied are those set out in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64, citing also Alcatel Australia Limited v WorkCover Authority (NSW) (Inspector Clyant) (1996) 70 IR 99; Nesmat Pty Ltd v WorkCover Authority (NSW) (1998) 87 IR 312; R v Allpass at 562; and Griffiths v The Queen (1977) 137 CLR 293 at 310. 24 The respondent submitted that, being an appeal from a discretionary decision, this matter should be dealt with according to the well established principles set out in cases such as House v The King (1936) 55 CLR 499 and Mace v Murray (1955) 92 CLR 370. In that regard, the respondent referred to the majority decision in Drake Personnel at 446: Having considered the submissions put by both parties, we have come to the conclusion that an appellant is required to obtain leave to appeal pursuant to s188 of the Act in the case of an appeal brought under s197 of the Act and s47(4) of the OH&S Act. Further, we are of the opinion that such an appeal is not to be heard by the Full Bench as a hearing de novo , but must be governed by the principles applicable to appeals generally brought under Part 7 of Chapter 4 of the Act. Before setting out our reasons for this conclusion, we emphasise that the principles to be applied to the hearing of an appeal will vary according to the nature of the decision appealed against. An appeal against a discretionary decision will be dealt with according to the principles applicable to the review of those decisions, while appeals on questions of fact or law will proceed on the basis of an appeal in the strict sense. The relevant principles have been considered in detail in previous decisions of this Commission and its predecessors in cases such as Re Government Cleaning Service (Privatisation) Award (No 3) ( 1995) 59 IR 348; Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149; Re Solicitors (State) Award (No 3) (1996) 72 IR 225; Stone Microsystems (Aust) Pty Ltd v Kwong (1997) 42 NSWLR 160. In appeals in criminal proceedings, a number of possibilities may arise. An appeal against sentence is an appeal against a discretionary decision and the relevant principles are those relating to the review of discretionary decisions (see, for example House v The King (1936) 55 CLR 499 at 505). An appeal against conviction, on the other hand, may involve an appeal against determinations of fact and/or law. In an appeal in the strict sense, a conviction will be upset only if the court below has fallen into an error of law or made a relevant error in fact finding. 25 The principles to be applied in an appeal from a sentencing decision were considered recently by the Full Bench in WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60. The Full Bench in that matter discussed the High Court decision in Dinsdale v The Queen (2000) 202 CLR 321, noting the observations of Gleeson CJ and Hayne J that an appeal may arise either due to the imposition of a penalty which is manifestly inadequate (or manifestly excessive), or due to error on the face of the judgment or decision. We shall turn to consider that distinction in more detail shortly, however it is suffice to say that in evaluating error in a discretionary decision on appeal, such as a sentencing decision, the principles in House v The King apply. 26 So much is clear from the decision in Drake Personnel, extracted earlier, where the Full Bench held that an appeal under s197 of the Industrial Relations Act is governed by the principles applicable to appeals generally brought under Part 7 of Chapter 4 of the Act, which relevantly includes s191. The same principles apply to appeals under s197A of the Industrial Relations Act. Section 191(3) stipulates that the Full Bench hearing an appeal (such as that under s197A) must follow the principles applying to appeals from discretionary decisions. 27 The principles relevant to appeals from discretionary decisions are laid down in House v The King as follows: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 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. 28 The Full Bench in Profab Industries gave a useful summary of the principles relevant to prosecution appeals from sentencing decisions (at [13]-[14]): A Full Bench of the Commission in Court Session has recently considered the question of the nature of prosecution appeals in WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Limited (1999) 92 IR 392. Although the Court was divided in its decision in that matter it is unnecessary to explore or resolve the different approaches for the disposition of this appeal. All members of the Court held that the relevant principles for such appeals are those referred to by Barwick CJ in Griffiths v The Queen at 310: On my view of the proper meaning of s 5D in the context of the Criminal Appeal Act , an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. Also pertinent for the present appeal is the Court of Criminal Appeal judgment in R v Allpass (where the Court was comprised of Gleeson CJ, Hunt CJ at CL and McInerney J). The principles set out in R v Allpass at 562 - 563 are in these terms: 1. A Court of Criminal Appeal which is dealing with an appeal against sentence does not simply embark upon the task of sentencing afresh, substituting its own opinion for that of the sentencing judge, and increasing the sentence if it considers it to be inadequate, or decreasing the sentence if it considers it to be excessive. An appellate court will only interfere if it is demonstrated that the sentencing judge fell into material error of law or fact. Such error may appear in the reasons given by the sentencing judge, or the sentence itself may be manifestly excessive or inadequate, and thus disclose error. However, the facts and circumstances of individual cases are often such that sentencing judges have a substantial discretion, and the appellate court does not intervene simply upon the basis that the members of that court would have exercised their discretion differently from the judge at first instance. 2. Crown appeals against sentence are relatively infrequent. The High Court has said that such appeals "should be a rarity": Griffiths v The Queen (1977) 137 CLR 293 at 310; Malvaso v The Queen (1989) 168 CLR 227 at 234; 43 A Crim R 451 at 456. One reason for this is the element of double jeopardy that is involved in such appeals. Rules designed to safeguard against double jeopardy are deeply embedded in our system of criminal justice: eg R v Dodd (1991) 56 A Crim R 451; Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502. Thus, for example, there is usually no right of Crown appeal against an acquittal at a trial. 3. If a Crown appeal against sentence is successful, and the appellate court re-sentences the respondent, it does so in the light of all the facts and circumstances as at the time of re-sentencing. Events which have occurred after the original sentencing may be relevant. 4. When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance. 5. An appellate court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection the conduct of the Crown at the original sentencing proceedings may be a matter of significance. 29 As earlier indicated, a Full Bench in WorkCover (Inspector Buggy) v Weathertex determined an appeal under s196 of the Act against the inadequacy of a sentence imposed at first instance. In considering the principles to apply on appeal, the Full Bench discussed the difference, identified in Dinsdale v The Queen by Gleeson CJ and Hayne J, between an error in the exercise of a discretion per se (that is, an error in the sentencing judge's reasoning) and an error on the face of the sentencing decision demonstrated, for instance, by a manifestly inadequate sentence (that is, an error in the sentencing judge's conclusion). The Full Bench held (at [50]-[53]): The meaning of manifest inadequacy of sentence was discussed in the joint judgment of Gleeson CJ and Hayne J in Dinsdale v The Queen at 325 as follows: Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. It is apparent from their Honours' discussion that there is a distinction between specified material error in the sentencing judge's approach or reasoning ( House v The King errors) and error on the face of the judgment demonstrated by the sentencing judge's conclusion, such as a manifestly inadequate or excessive sentence. The identification of either type of error is sufficient to enable intervention by an appellate court. The appellate court is not required, in our view, to find an additional element of novelty, as suggested by Hungerford and Peterson JJ in Mayo-Ramsay v Allen Taylor. Clearly, however, an appellate court in a Crown appeal has an obligation to act with caution or restraint, given the principle of double jeopardy and the Court's overriding discretion not to intervene: see Kirby J's observations in Dinsdale v The Queen (2000) 202 CLR 321 at 341 - 342 and in Wong v R (2001) 185 ALR 233 at 263; see also R v Allpass at 562 - 563, the joint judgment of Brennan , Deane , Dawson and Gaudron JJ in Everett v The Queen (1994) 181 CLR 295 at 299 and Batty v Graincorp . 30 We note that, notwithstanding the distinction identified by Gleeson CJ and Hayne J, their ultimate conclusion, and the conclusion of both the joint judgment of Gaudron and Gummow JJ and the judgment of Kirby J, is unmistakably that the principles in House v The King apply with respect to appeals against sentence. See also WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Limited (2002) 115 IR 59. submissions Appellant's submissions 31 The appellant identified four areas in which, it submitted, the Deputy Chief Magistrate's decision demonstrated error: the improper exercise of her discretion under s10 of the Crimes (Sentencing Procedure) Act; failure to give proper weight to objective elements of the offence (and consequently excessive weight was given to subjective considerations); emphasis on the foreseeability of injury rather than the foreseeability of risk; and failure to properly consider and determine the separate and distinct particulars of the charge. We note that the latter submission does not appear to be made in support of any particular ground of appeal, other than the all-purpose "any other grounds the Commission considers appropriate". We shall consider the appellant's submissions with respect to each area of alleged error in turn. 32 Firstly, the appellant submitted that there are very limited circumstances in which the discretion conferred by s10 of the Crimes (Sentencing Procedure) Act may be exercised: WorkCover Authority v Waugh (1995) 59 IR 89 at 101; Van Rooy Machinery Pty Ltd v WorkCover Authority (Insp Wolf) (2000) 97 IR 436; Profab Industries at 66-69. The appellant contended that the Deputy Chief Magistrate failed to treat the exercise of her discretion under s10 of the Crimes (Sentencing Procedure) Act in a manner consistent with these earlier authorities. 33 In particular, the appellant referred to McCarthy v Sell & Parker Pty Ltd [2000] NSWIRComm 273 where a Full Bench determined, referring to the decision in Profab Industries, that (at [9]): It was concluded that the exercise of the discretion under s 556A must be considered as extraordinary and highly exceptional. Although that observation was made in relation to proceedings before this Court it should be also considered generally the approach appropriate in proceedings before an Industrial Magistrate pursuant to s 47 of the Occupational Health and Safety Act . The replacement of s 556A by s 10 of the Crimes (Sentencing Procedure) Act has not altered the approach in principle, although by its very nature the discretion must be exercised in the light of all the relevant individual circumstances before the Court in the particular matter. 34 The appellant further submitted that the rare or exceptional circumstances in which the discretion under s10 of the Crimes (Sentencing Procedure) Act should be exercised would generally not include offences which involved "the presence of long-standing adverse work practices" (Schultz v Tamworth City Council (1995) 58 IR 221 at 229); offences where the risk of injury was not difficult to foresee and was preventable (WorkCover Authority v Waugh at 101); or offences which were not trivial in nature. 35 In relation to the availability of an order under s10 where an offence is not trivial, the appellant relied on the decision of James J (with whom Giles JA agreed) in the Court of Criminal Appeal decision in R v Piccin (No 2) [2001] NSWCCA 323, in which his Honour concluded that once it is determined that an offence is not trivial in nature, the discretion created by s10 of the Crimes (Sentencing Procedure) Act should not be exercised. Whilst acknowledging the contrary decision of the majority of the Court of Criminal Appeal in R v Paris [2001] NSWCCA 83, the appellant submitted that "having regard to the settled jurisprudence concerning the application of s10 in offences under the OHS Act it is submitted that, notwithstanding any relevant extenuating circumstances or subjective features of a defendant, s10 would not ordinarily be applied in respect of offences that are not trivial in nature". 36 Secondly, it was contended by the appellant that the Deputy Chief Magistrate gave excessive weight to subjective factors (namely the respondent's good safety record) and failed to take proper account of the factors relevant to the objective seriousness of the offence. Any suggestion by the respondent that the Deputy Chief Magistrate gave primary significance to the objective serious of the offence cannot be sustained by reference to the reasoning in her Honour's decision. The factors which should have been given more weight, according to the appellant, were as follows: (1) Section 8 of the Act casts a duty on employers to be proactive to ensure the health, safety and welfare of employees (see Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209-210). The respondent was under an obligation to "be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare" which may have arisen in the provision of cleaning services to the Department of Education and Training (see WorkCover Authority (NSW) (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85). Further, the appellant submitted that that duty was owed not only to the careful and observant employee, but also to the hasty, careless, inadvertent, inattentive, unreasonable, foolish or disobedient employee (see WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257 and WorkCover v TRW [2001] NSWIRComm 52 at [13]). In that context, the respondent's failure to ensure the health and safety of Ms Pyart was a serious offence; a seriousness which was not reflected in the penalty imposed by the sentencing magistrate. (2) The maximum penalty for the offence was $55,000. In determining penalty, the magistrate was required to assess the relative seriousness of the respondent's particular offence in relation to the worst case for the which the maximum penalty is provided, and to apply a penalty which correlates with the seriousness of the offence (see Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 689). (3) The imposition of a penalty is important for both specific and general deterrence. The appellant submitted that the magistrate only marginally distinguished between specific and general deterrence and that the failure to impose a penalty was manifestly inadequate to deter other employers in the cleaning industry from ignoring their health and safety obligations or to deter the respondent from future failures (whether inadvertent or otherwise). Mr Agius submitted that, whilst the respondent acknowledged that Mr Counsell instructed Ms Pyart to adopt an unsafe system of work, it has not demonstrated remorse or a meaningful acceptance of responsibility for its actions. Further, there is no evidence that there was a system of work in place for the cleaning of high louvre windows. Accordingly, the matter calls for a consideration of specific deterrence. (4) The occurrence of a serious injury indicated the gravity of the risk to safety, and whilst not determinative of penalty, was relevant as a measure of the gravity of the breach and the respondent's culpability (see Lawrenson Diecasting at 476). In the present matter, the magistrate found that Ms Pyart suffered "reasonably serious injuries". (5) The risk to Ms Pyart's health and safety was foreseeable (see Department of Mineral Resources NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8), and appropriate measures were not taken to eliminate that risk even though such measures were available and feasible (see Lawrenson Diecasting at 476). The availability of simple and straightforward steps to remedy defects in the workplace is relevant to determining the objective seriousness of the offence (see WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Limited (unreported, Schmidt J, 25 February 1994). In the present matter, the simple measures available to the respondent included establishing a set of rules regarding the use of stepladders to gain access to high windows and the provision of adequate training and supervision. 37 Thirdly, the appellant submitted that the Deputy Chief Magistrate wrongly focussed on the foreseeability of the actual injuries sustained by Ms Pyart rather than the foreseeability of a risk to her safety. 38 Finally, it was the appellant's submission that Deputy Chief Magistrate failed to properly consider and determine the separate and distinct particulars of the charge, instead subsuming the allegations concerning the failure to train and the failure to supervise within the other particulars of the charge. Respondent's submissions 39 It was the respondent's submission that, if leave to appeal is granted, the Full Bench should exercise its "overriding discretion" and decline to intervene, even if the Full Bench concluded that the sentencing decision demonstrated error. The respondent referred to the decision in R v Allpass where the Court of Criminal Appeal held (at 562): 5. An Appellant Court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection the conduct of the Crown at the original sentencing proceedings may be a matter of significance. 40 Unlike the decisions in McCarthy v Sell & Parker, Barber v Gundegai Shire Council (2002) 118 IR 193 and Riley v Australian Grader Hire (2001) 103 IR 143), this was not a matter where the issue of an order under s10 of the Crimes (Sentencing Procedure) Act was raised by the Court without application from or notice to the parties. The respondent submitted that: her Honour was provided with all relevant material to enable her to analyse the nature, quality and objective seriousness of the offence; her Honour gave primary significance to the objective seriousness of the offence charged, and gave due weight and consideration to the objective facts presented to her; the appellant did not cross-examine the respondent's witness, and his evidence was introduced without objection; the appellant did not seek to challenge the description of the facts summarised by her Honour; her Honour properly considered the subjective features which might mitigate the objective seriousness of the offence; the appellant was given the opportunity to make submissions on the question of penalty, including the application of s10 of the Crimes (Sentencing Procedure) Act; Deputy Chief Magistrate Syme gave primary significance to the objective seriousness of the offence and applied s10 as a true measure of penalty after considering the nature and quality of the offence; her Honour acknowledged that it was very unusual for s10 of the Crimes (Sentencing Procedure) Act to be considered in occupational health and safety matters; and her Honour provided adequate reasons in relation to the exercise of her discretion under s10. 41 The respondent made two further submissions in the event that, contrary to its submissions, the Full Bench were to determine that the Deputy Chief Magistrate fell into material error warranting appellate intervention. Firstly, the respondent contended that we should have regard to the issue of double jeopardy in sentencing the respondent (see Profab Industries, R v Allpass at 566). Secondly, a discount should be applied to any penalty we impose, having regard to the relevant subjective features, namely the respondent's early plea of guilty; its co-operation with the investigation; the measures taken to improve safety; its good safety record; and its pro-active approach to safety (see Profab Industries, Riley v Australian Grader Hire). consideration 42 As earlier stated, the questions that arise for determination are firstly whether the Deputy Chief Magistrate erred in the exercise of her discretion under s10 of the Crimes (Sentencing Procedure) Act; and secondly, whether the making of an order under that section represented a manifestly inadequate penalty in the circumstances. 43 In our view, both questions must be answered in the affirmative. Whilst her Honour acknowledged that an order under s10 is rare in occupational health and safety matters, it is not obvious from the face of her decision as to why the present matter falls within the class of rare or exceptional cases which warrant such an order. In our view, when the totality of the matter is considered and the objective and subjective elements of the offence are weighed, the dismissal of the charge under s10 of the Crimes (Sentencing Procedure) Act represents a manifestly inadequate penalty and the misapplication of established principles. In that respect, we consider that the Deputy Chief Magistrate has misdirected herself in relation to the exercise of her discretion under that section. Further, her Honour's failure to give proper weight to the objective features of the offence, and her improper emphasis on the subjective features, constituted an error of the type exemplified by House v The King. 44 Section 10 of the Crimes (Sentencing Procedure) Act is in the following terms: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996; (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 45 There is abundant, clear authority for the proposition that s10 of the Crimes (Sentencing Procedure) Act, like its predecessor s556A of the Crimes Act, will be available only in rare, limited circumstances in proceedings under the Occupational Health and Safety Act (see, for instance, Riley v Australian Grader Hire and McCarthy v Sell & Parker.) 46 The principles relevant to the application of s10 of the Crimes (Sentencing Procedure) Act were considered in Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd & Anor (2001) 105 IR 348 (at [169]-[177]): The application of the former equivalent of s10 of the Crimes (Sentencing Procedure) Act 1999, that is, s556A of the Crimes Act 1900, was recently and comprehensively considered in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700. In that decision, the Full Bench of the Commission in Court Session pointed out the clear and long standing authority which established the rarity of situations in which such an ameliorative provision was available to a defendant under the Act. The Full Bench stated (at 26): Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s 556A (cf s 10 of the Crimes (Sentencing Procedure) Act 1999) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission. The obligation is increased rather then diminished in a situation, such as the present, where the exercise of the discretion is not sought by the defendant but raised by the Court. It should be noted that the Full Bench in Profab followed the judgment of the former Industrial Court in WorkCover Authority of NSW v Waugh (1995) 59 IR 89 at 101 wherein it was stated that the discretion available under s556A would be rarely available in significant offences against the legislation. Further, in a recent discussion of s10 of the Crimes (Sentencing Procedure) Act 1999, the Full Bench of the Commission in Court Session reiterated that the exercise of such a discretion is saved for extraordinary and highly exceptional circumstances (see Australian Grader Hire ). I shall apply the principles stated in Profab and Australian Grader Hire in this matter. In Waugh, the former Industrial Court had noted that the company and the personal defendant had a prior good character. However, this seemed to be due to good fortune rather than good conduct. The Court approached the question of s556A in quashing the decision at first instance as follows (at 101): We consider that in serious cases where, as found by her Honour, the risk of injury from an accident was not one difficult to foresee, where the breach could and did result in serious consequences to the health of the injured man, where the risk of injury was preventable and where a safety fence with an isolation device was installed without difficulty after a second inspection, the operation of s556A of the Crimes Act to such proceedings would seldom be appropriate. If such an application is pressed but opposed it should normally be supported by evidence subject to cross-examination rather than the untested assertions made from the bar table. This approach was applied by Hungerford J in WorkCover Authority of New South Wales v Neaves [1996] NSWIRComm 58. His Honour rejected an application under s556A of the Crimes Act 1900 because the detriment to safety there occasioned by the employee had been foreseeable and the work practice involved was known to be dangerous and resulted in serious injury. His Honour found that the risk could have been prevented. In applying the foregoing authorities to an application for the exercise of the Court's discretion under s10 of the Crimes (Sentencing Procedure) Act , it is important, however, to bear in mind that each matter requiring consideration under s10 of that Act needs to be considered in the light of its own particular circumstances: WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Ltd (1999) 90 IR 413 at 430. 47 We consider the statements of principle in Profab Industries, summarised in Department of Mineral Resources v Berrima Coal and affirmed in Riley v Australian Grader Hire, as to the application of s10 of the Crimes (Sentencing Procedure) Act are correct and we apply those principles in the present matter. 48 We note that Marks J in Inspector Carmody v Power [2002] NSWIRComm 286 considered in some detail a number of decisions which give guidance concerning the application of s10 of the Crimes (Sentencing Procedure) Act. We point to two of those observations: (1) whilst the section is intended to have general application and creates a wide discretion, the discretion is "a judicial discretion, to be exercised consistently with the scheme and the purpose of the section as a whole" (see Gleeson CJ (as his Honour then was) in the Court of Criminal Appeal in R v Ingrassia (1996) 41 NSWLR 447 at 449); and (2) the factors listed in s10(3) as relevant to the exercise of discretion to make an order under s10(1) should be considered disjunctive and non-exhaustive, and that whilst none of those factors is conclusive, all are to be taken into account (see Spigelman CJ in the NSW Court of Criminal Appeal (with whom Simpson J and Einfeld A-J agreed) in Commissioner of Taxation v Baffsky (2001) 164 FLR 375; and R v Paris [2001] NSWCCA 83 (14 March 2001)). A similar conclusion was reached in the earlier decision of Cobiac v Liddy (1969) 119 CR 257 where Windeyer J held, in relation to the exercise of a comparable discretion in South Australian legislation, that "the magistrate must be of the opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several of them together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits ... They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence". 49 We consider these observations to be both relevant and useful to our discussion regarding the application of s10 of the Crimes (Sentencing Procedure) Act. 50 We also note that Marks J concluded that s10 may be applied even though the offence may not be trivial, but that overall application of s10 must "reflect the objective seriousness of the offence" and must "maintain a reasonable proportionality between the sentence and the circumstances of the offence" (referrring to Hulme J in R v Piccin (No 2); Stein J (with whom Hidden and Howie JJ agreed) in the New South Wales Court of Criminal Appeal in R v Lord [2001] NSWCCA 533 (4 December 2001)). However, the authorities earlier referred to make it clear that it would be rare for an order under s10 to be made in favour of a defendant where the offence is objectively serious. 51 Mr Hodgkinson submitted that the decision in Profab Industries "can properly be seen as a guide or as providing guidance in the consideration of the application of [the discretion under s10 of the Crimes (Sentencing Procedure) Act]", but that it is not appropriate to elevate that decision as in some way directing the exercise of discretion. 52 Mr Hodgkinson also referred to the decision in Thorneloe v Filipowski (2001) 52 NSWLR 60 in which Spigelman CJ held, in the context of a breach of the Marine Pollution Act 1987, (at [178]): It is, in my opinion, relevant to the exercise of the discretion under s10 of the Sentencing Act , in the context of a strict liability offence, to consider what the applicant for the benefit of s10 could have done to avert the event that has occurred. While questions of weight are always for the sentencing judge, it is unlikely that this consideration will be given determinative weight in the case of a serious offence or a repeat offender. Where, as here, there was a comparatively minor pollution by a first offender, this consideration is entitled to weight. 53 It was the respondent's contention that the Full Bench decisions since Profab Industries (such as WorkCover (Inspector Buggy) v Weathertex; Riley v Australian Grader Hire; McCarthy v Sell & Parker; and Barber v Gundegai Shire Council), as well as the above decision in Thorneloe v Filipowski, support the proposition that "one does not fetter by a determination such as Profab the otherwise legislative discretion but it might provide some guidance in its exercise". 54 We have considered in the context of this submission the view expressed by Marks J in Inspector Carmody v Power that "in this Court, an approach has been taken at Full Bench level to the application of s10 and the former s556A to occupational heath and safety offences, which has created an additional qualification on the discretion conferred by these provisions", a view which Peterson J accepted as correct in Inspector Victor Larobina v Mahmoud Khodr Trading as MK Tiling & Anor [2003] NSWIRComm 473. We note that in forming this view, Marks J referred to the decision in Profab Industries at [23]-[24]. 55 However, we agree with the respondent's submission that the decision of the Full Bench in Profab Industries does not impose a qualification or limitation on the exercise of discretion under s10 of the Crimes (Sentencing Procedure) Act per se. What it does do is to ensure that the discretion under s10 is exercised consistently with the scheme and purpose of the Occupational Health and Safety Act. As was described in Profab Industries, a significant purpose of the Occupational Health and Safety Act is "to prevent, deter and punish breaches of health and safety requirements". The Full Bench in that case referred to the purpose of the Act as being for the benefit of the public generally. Further, the "strongly defined duty of care, clear public policy considerations in the [Occupational Health and Safety Act] and major penalties provided" were identified in Shultz v Tamworth City at 229 and WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Ltd (1999) 90 IR 413 at 430. When seen in the light of these considerations, an offence which is objectively serious will, therefore, rarely attract the exercise of a sentencing discretion under s10 in favour of a defendant. This approach also flows from the nature of the prosecutions which are typically brought before this Court (although we note the present matter is before us on appeal). 56 In our view, although not citing chapter and verse, the Deputy Chief Magistrate acknowledged the authorities which establish that an order under s10 of the Crimes (Sentencing Procedure) Act is unusual in occupational health and safety matters. However, whilst her Honour's decision was generally well reasoned in terms of fact finding (particularly having regard to the fact that it was delivered ex tempore) there is a distinct lack of reasoning to demonstrate why an objectively serious matter presented exceptional circumstances which warranted the making of a s10 order. The Deputy Chief Magistrate stated only this: But taking into account the facts and circumstances of this matter and the circumstances of the company, I place it outside the usual circumstances of any case and all things considered this is a rare and appropriate matter where s10 should be granted not recording a conviction against the company. 57 We acknowledge that the demands of the Local Court often preclude lengthy deliberation prior to the making of a decision. Nevertheless, it is critical when determining a sentence to clearly distinguish those factors which are special considerations in sentencing, and in particular those which warrant the application of s10 of the Crimes (Sentencing Procedure) Act. In our view, the utterance of the above words alone is insufficient, in our view, to justify the making of an order under s10 of the Crimes (Sentencing Procedure) Act. Given the existence of a clear line of authority establishing that such orders are available only in limited circumstances, any decision to make such an order must necessarily include an examination of the relevant circumstances and an explanation as to why those circumstances fall within the limited class of circumstances contemplated by the established authorities. The Full Bench in Profab Industries expressly stated (at [26]) that "...when a defendant seeks [the exercise of the discretion under s10] cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission." 58 We agree with the decision of Wright J, President in WorkCover Authority (NSW) v Ecolab Pty Limited at 430 that there is little value in considering the particular approach taken in other decisions or judgments to the exercise of discretion under s10 of the Crimes (Sentencing Procedure) Act, as each matter turns on its own facts. However, we note that in Department of Mineral Resources v Berrima Coal, the Court gave explicit details of the "extraordinary and highly exceptional circumstances" which existed in that case which warranted the exercise of the Court's discretion under s10 of the Crimes (Sentencing Procedure) Act. Whilst we would not wish to suggest that there are particular or defined criteria which will inevitably lead to the exercise of that discretion (as it is a wide discretion), it is pertinent to highlight the decision in Department of Mineral Resources v Berrima Coal as being one in which extensive reasoning was given to support the proper exercise of discretion under s10 of the Crimes (Sentencing Procedure) Act, in stark contrast to the matter presently before us where there is a total absence of such reasoning. 59 We consider that this failure to give close attention to the circumstances warranting the exercise of discretion distracted her Honour from the proper exercise of discretion, resulting in the manifestly inadequate sentence given. In turn, we agree with the appellant that the decision of the Deputy Chief Magistrate demonstrated a number of errors of law and principle which resulted in the improper exercise of her discretion under s10 of the Crimes (Sentencing Procedure) Act. 60 The Full Bench decision in Lawrenson Diecasting established that the objective seriousness of an offence is the primary factor to be considered when determining the appropriate sentence to impose, and that subjective factors which may mitigate the seriousness of the offence must be secondary to a consideration of the nature and quality of the offence. See also, for example, Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; Ridge Consolidated v WorkCover (Inspector Mauger); WorkCover Authority (Inspector Patton) v Fletcher Constructions. 61 We agree with the appellant that the Deputy Chief Magistrate failed to give sufficient weight to the objective seriousness of the offence and placed too much weight on the subjective factors of the offence, and in doing so fell into appealable error of the type contemplated in House v The King. Underrating of objective seriousness of the offence 62 As to the factors which demonstrated the objective seriousness of the offence, we consider that the Deputy Chief Magistrate failed to properly appreciate, or to give sufficient weight to, the following six elements. 63 First, her Honour failed to comprehend the deficiencies in the system of work that was in place with respect to the cleaning of high, louvre windows. 64 Her Honour referred to the respondent's overall "good work practices", stating that "the company certainly appears to be properly and well equipped with an appropriate occupational health and safety policy that appears to be properly followed up at all appropriate times". The appellant submitted that "what the magistrate had before her in this case was a paper system which she determined was on paper an adequate system, a good system, and a supervisor who did not follow the paper system or what might have been a good system, but with no explanation as to why he was not supervised, or what was done beyond having a paper system to ensure it was implemented". 65 Mr Agius submitted that there was no evidence that there was in place a system for the cleaning of high, louvre windows, particularly one which required the use of a step ladder. We agree. The "Safety Rules Policy", relied on by the respondent, stated: Whenever possible, use a ladder for a high reaching job, never use a substitute such as a chair, box or table. Never stand on the edge of a sink hand basin. 66 We do not consider that such a policy was clear, or applicable in the circumstances of the present matter. Firstly, the words "whenever possible" have little meaning. Secondly, whilst the louvre windows were high, there was no evidence that it was a "high reaching" job. Thirdly, notwithstanding the stated policy not to substitute a ladder with a table, there was no dispute that the use of the desks as a work platform in the present case was unsafe. 67 The following discussion of paper systems in WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] (2000) 100 IR 23 at [35] is pertinent: The existence of a system on paper alone is clearly not sufficient to comply with the obligations imposed by the Act. The employer is required to ensure that its ''paper systems'' are implemented and maintained in its daily operations: see Sydney City Council v Coulson (1987) 21 IR 477 at 480; WorkCover Authority (NSW) (Inspector Tyler) v Abigroup Contractors Pty Ltd (2000) 99 IR 196 at 214 par 26. The Court must have regard not merely to the system as it exists in theory, but as it is implemented in practice. In Inspector Davies v Supercoat Feeds Pty Limited (unreported, CT96/1020, 22 April 1997, at p4), for example, Fisher P said: The relevant system of work, however, is the customary method of carrying out the operation in which the employer is engaged — the system of work is that actually utilised and operated at the place of work.' Paper' systems whose prescriptions are not followed do not represent the actual system of work utilised and are irrelevant. See also WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207 at [155]-[156]. 68 In our view, whilst there may have been evidence that the respondent maintained a paper system, the content of that system was inadequate having regard to the nature of the duties actually performed by workers. Further, not only did the respondent fail to actively promulgate the system (such as it was) in the workplace, by the actions of Mr Counsell, the respondent ultimately promulgated an inherently unsafe system of work. Mr Hodgkinson submitted that "it is not a paper system in that the employer derives the system which he expects to be implemented. It became an unused system because Mr Counsell adopted a system which didn't employ the use of the ladder". We do not consider that that submission conflicts with our findings. 69 Dr Denis Boulais, National OHS & Workers Compensation manager for the respondent, gave the following evidence: I have confirmed that ladders were available for use by the cleaners at this school, but in this instance, Valerie Pyart had chosen to use a chair instead. Unfortunately, this decision to use the chair appears to have been condoned (if not supported) by the site supervisor, Brian Counsell. 70 However, Dr Boulais also referred in his affidavit to the report dated 31 October 2003 which was prepared by him for the purpose of these proceedings. That report included the following passage: According to the statements provided, Brian Counsell had indicated he instructed the two cleaners to alight the bench using a chair and he even did this himself and assisted them in their cleaning process. Both the cleaners' statements concur with Brian's statement. The true OHS issue is the contract manager's complacent instructions to his cleaners despite the employer providing him extensive training in safety. 71 The Deputy Chief Magistrate referred in her decision to a letter tendered by the respondent, with the appellant's consent, which indicated that step ladders were available to cleaning staff at the workplace "from the late 1980's". The appellant questioned the veracity of that evidence, given that the author of the letter was not part of the respondent's business between 1994 and 2001. In any event, the appellant submitted before the Deputy Chief Magistrate that the mere presence of ladders at the workplace did not satisfy the respondent's obligation to "provide" or "make available" that equipment, although that submission was not ultimately pressed at that time. However, the submission was raised again in the present proceedings. The appellant contended that "the mere availability or existence of a stepladder at the relevant premises manifestly does not equate to the provision of such equipment to Ms Pyart; nor does such availability of itself diminish the respondent's culpability in the face of the express instruction given to Ms Pyart that she should alight the computer desk by the use of the plastic chair". 72 In our view, the discussion before the Deputy Chief Magistrate regarding the availability of stepladders at the workplace was fundamentally in error. Regardless of whether stepladders were present, available or provided at the relevant workplace, the absence of a safe system of work, the respondent's concession that an instruction was given to Ms Pyart to use a plastic chair instead of a stepladder, and its further concession that therein lay a safety issue, is conclusive of the serious nature of the offence. 73 Secondly, the Deputy Chief Magistrate underrated the significance of the respondent's failure to provide adequate supervision. Dr Boulais' uncontroverted evidence was that "Mr Counsel was not at the premises when Ms Pyart ... [was] undertaking tasks of cleaning the louvre windows on 8 October 2001". The absence of supervision is, in itself, a serious failure. However, the severity of that offence is increased by virtue of the express instruction given by Ms Pyart's supervisor to adopt the inherently unsafe practice of using a plastic chair rather than a stepladder to climb onto the desks. Once that instruction had been given to Ms Pyart, there immediately ceased to be a safe system of work for the cleaning of high, louvre windows, if indeed a safe system existed in the first place. 74 Thirdly, the Deputy Chief Magistrate had insufficient regard to the respondent's failure to provide adequate training. We agree with Mr Agius that the Employee Handbook provided to Ms Pyart, and the acknowledgement signed by her regarding her acceptance and understanding of the respondent's safety policies were of limited value. There was no evidence that Ms Pyart had "read and fully understood" the relevant "Safety Rules Policy" extracted earlier regarding the use of ladders, as that policy was contained in the Menzies Employee Handbook, a document not directly referred to on the form signed by Ms Pyart. Further, there was no evidence that Ms Pyart had been given any additional training since she commenced employment in 1999. In any event, any training that may have been given to Ms Pyart with regard to the cleaning of high, louvre windows was overridden by Mr Counsell's instruction to use an unsafe system of work. 75 As to the training provided to Mr Counsell, the essence of the respondent's submission was that the respondent did not fail to adequately train to Mr Counsell, but that Mr Counsell failed in the performance of his duties, in particular, his duty to properly instruct and supervise Ms Pyart. The appellant highlighted the fact that the training relied upon by the respondent consisted of a WorkCover Accredited Supervisors' and Line Managers' Course, undertaken by Mr Counsell more than a month after Ms Pyart's accident, and other unidentified training conducted four years prior to the accident. Whatever training Mr Counsell had undertaken did not appear to have been effective. 76 It is not to the point, in our view, that the cleaning of windows was an annual event at that particular location in the workplace: the duty to ensure the health and safety of employees exists with respect to all workplace activities, not only the regular or day-to-day activities. The very fact that the cleaning duties were seldom performed suggests that greater emphasis should have been given to instruction, training and supervision. 77 Fourthly, her Honour incorrectly collapsed her consideration of the charge relating to failure to supervise and failure to provide training within her overall consideration of the respondent's failure to provide a safe system of work. We do not consider that approach to be appropriate. The failure to provide training and supervision were indicative of the objective seriousness of the offence, and warranted separate and distinct findings to that effect. In our view, separate consideration of those particulars of the charge further highlight the extent of the respondent's failure to provide a safe system of work. 78 Fifthly, her Honour placed insufficient weight on the foreseeability of the risk to Ms Pyart. The Deputy Chief Magistrate made clear findings that the risk of falling when using a plastic chair to climb onto a desk was foreseeable. She held: ...certainly [a fall from a chair] is foreseeable within the work system that the worker operated in. and later Certainly this risk was foreseeable and I have no doubt that had a particular risk assessment been conducted in relation to this particular activity prior to the activity being undertaken, there would have been some assessment of the risk of falling off the chair. 79 We are satisfied that the Deputy Chief Magistrate found, correctly in our view, that the risk was foreseeable. However, as was concisely stated in the decision of the Full Bench in Capral Aluminium (at 646), "the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature". Despite her clear findings as to foreseeability, the Deputy Chief Magistrate ignored the inescapable conclusion that such foreseeability renders the offence more serious and raised questions about the proper exercise of discretion under s10. Further, given the evidence of Dr Boulais that the mean age of cleaners employed by the respondent was 65, that Ms Pyart herself was age 60 at the time of the accident, and that Ms Pyart was said to be overweight, the foreseeability of the risk was self-evident. 80 Her Honour also made the following additional observation regarding the foreseeability of Ms Pyart's injuries: Certainly the injury was relatively severe, however the circumstances surrounding the injury were not such that a severe injury could have been foreseen in such a way - well, it could have been foreseen in such a way but perhaps not such a severe injury. 81 We consider this approach to be erroneous. The Deputy Chief Magistrate focussed on the foreseeability of the injuries sustained by Ms Pyart rather than the foreseeability of a risk to her safety in arriving at her decision to dismiss the charge under s10 of the Crimes (Sentencing Procedure) Act. 82 The Deputy Chief Magistrate observed that the cleaning industry was not an industry which she would consider to be "inherently dangerous". That may well be the case, however the matter before her Honour involved a plainly foreseeable risk; a risk which presumably exists on a daily basis for many cleaners in New South Wales who are regularly required to clean room fittings or furniture which may be awkward or difficult to access. Add to that the fact the cleaner in question was 60 years of age, and the seriousness of the offence, and the obvious need for deterrence, is evident. In our view, the fact that the respondent allowed a 60 year old employee to use a plastic chair to climb onto a desk, rather than instructing her to use a stepladder and then ensuring that she did so, represented a patent breach of the respondent's duties under the Occupational Health and Safety Act. 83 Finally, her Honour failed to give sufficient weight to the general and specific deterrent effect of a conviction and the imposition of a penalty. As to the issue of general deterrence, the court in WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312 at 326 emphasised that: It is "the fundamental duty of this Court" to ensure that any penalty imposed is severe enough to "compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 adopted in Capral Aluminium (at par 74). 84 In the present matter, the Deputy Chief Magistrate did little more than note the relevance of imposing an appropriate sentence to deter other employers from engaging in "risky behaviour". There was no explanation in her decision as to why general deterrence did not loom large in the present matter. 85 As to specific deterrence, we consider that no effective finding was made. Her Honour held "I don't propose to use the services of a s10 bond as it does not seem to me that the company needs any persuasion to continue to do the right thing". The Deputy Chief Magistrate's failure to have regard to specific deterrence is contrary to well established principle that specific deterrence is a matter "which should normally be given weight of some substance in the sentencing process": Capral Aluminium at [74]. Given the age of many of the respondent's employees (and in the case of Ms Pyart, her weight), we consider that the need for specific deterrence does, in fact, loom large. 86 Two additional matters warrant comment. Although recognising the seriousness of the injuries sustained by Ms Pyart, the Deputy Chief Magistrate failed to have regard to the proper relationship between the seriousness of injuries suffered and the gravity of the offence. Whilst not determinative of the seriousness of an offence or the level of penalty, an offence which results in serious injury (or has the potential to result in serious injury) manifests the degree of seriousness of the relevant detriment to safety. (See Capral Aluminium, WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383; Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39. 87 Further, we agree with the appellant that there was no discussion in her Honour's decision as to the existence of simple and straightforward steps which could have been taken to eliminate the risk to safety. There were simple measures available which would have eliminated, or minimised, the risk of falling from a chair, some of which have been implemented since the accident. Those measures included express instruction regarding the use of stepladders, training in relation to difficult or unfamiliar tasks, and closer supervision. Again, an offence will be considered more serious where there is an obvious and foreseeable risk to safety, against which appropriate measures were not taken even though simple measures were available and feasible: Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal and Coke. Overrating of subjective factors 88 That the Deputy Chief Magistrate wrongly appreciated the objective seriousness of the offence is sufficient to warrant granting the appeal. That question is put beyond doubt, in our view, by the fact that, in addition to under-rating the objective elements of the offence, it would appear her Honour placed excessive weight on subjective factors. The Deputy Chief Magistrate's decision to exercise her discretion under s10 of the Crimes (Sentencing Procedure) Act was made "taking into account the facts and circumstances of [the] matter and the circumstances of the company". The circumstances which her Honour described in her decision were those going to the respondent's work practices and health and safety record, that is, the subjective elements of the matter. 89 We agree with the Deputy Chief Magistrate that, on the face of the evidence before us, the respondent does indeed appear to have a good health and safety record. The unchallenged evidence of Dr Denis Boulais demonstrated that: (1) during his employment with the respondent, Mr Brian Counsell, the site supervisor, had attended a variety of training courses relating to health and safety in the workplace; (2) The respondent has a health and safety policy which is reviewed on a regular basis; (3) Ms Pyart acknowledged on her Employee Application Form that she had "read and fully understood" the respondent's Occupational Health, Safety and Welfare Policy, which expressly stated that "whenever possible, use a ladder for a high reaching job, never use a substitute such as a chair, box or table". (4) The respondent employs over 5000 employees, and performs cleaning work at more than 900 government school sites, all of which have been assessed for risks to health and safety. Until the present matter, the respondent has had no prior prosecutions for health or safety breaches; and (5) since the accident, employees have been specifically instructed to use the ladders available to them for the purpose of getting on and off any work platform, and for otherwise reaching high areas that require cleaning. 90 Those matters are relevant subjective considerations which, subject to our comments above, operate to mitigate the objective seriousness of the offence. However, we agree with the appellant that it is clear from the ultimate conclusions reached that the Deputy Chief Magistrate gave excessive weight to those considerations. If primacy is given to the objective seriousness of the offence, then notwithstanding the subjective elements, the matter could not be considered to be so rare or exceptional that an order under s10 of the Crimes (Sentencing Procedure) Act would be warranted. 91 These considerations warrant the appeal being upheld and the order made by the Deputy Chief Magistrate pursuant to s10 of the Crimes (Sentencing Procedure) Act being set aside. We do not consider the present matter to be one where we should exercise our overriding discretion to not intervene, particularly having regard to the objective seriousness of the offence (see R v Allpass at 566). Further, given our findings that the Deputy Chief Magistrate made errors of law, it is not appropriate that those errors remain on the record. Her Honour did not apply the principles laid down in Profab Industries and WorkCover (Inspector Buggy) v Weathertex. 92 We propose, therefore, to re-sentence the respondent. In doing so, we note the respondent's submission that we should have regard to the respondent's early plea of guilty; its co-operation with the investigation; its good safety record; its proactive approach to safety; and the measures taken to improve safety since the accident involving Ms Pyart. We have given primary emphasis to the objective features which we have earlier discussed in this judgment. 93 As to penalty, Mr Agius contended that the offence should be considered a mid-range offence, and that it is an appropriate case for the imposition of a monetary penalty. In support of that contention Mr Agius highlighted the following facts: the unsafe system of work used by Ms Pyart was actually propounded by her supervisor; Ms Pyart was exposed to risk as a result of that unsafe system of work, not only at the time of the accident, but for a period of 3 days whilst the cleaning work was being performed; there was prior knowledge (at least on the part of the supervisor) that an unsafe system of work was being utilised; and given that prior knowledge and the length of time that the cleaning work was being undertaken, the respondent had ample opportunity to take steps to eliminate the risk, but did not do so. We agree with these submissions. When those factors are considered in the light of our earlier analysis of the objective features of the offence (and taking into account our discussion of the subjective factors), it is appropriate that we impose a monetary penalty in re-sentencing on appeal. 94 We are conscious of the potential for double jeopardy. In Dowling v Bournelis & Bedrock Constructions (NSW) Pty Ltd [2003] NSWIRComm 88, a Full Bench discussed the nature of the issue of double jeopardy, citing Pearce v The Queen (1988) 194 CLR 610, before considering the impact of that issue in appeals from sentencing decisions in this jurisdiction: Wright J, President referred to the principle of double jeopardy in the context of Crown appeals against sentence in WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor (1999) 92 IR 392. Although his Honour was in dissent as to the ultimate outcome, there was no issue as to his Honour's observations concerning the principle of double jeopardy. His Honour adopted the approach of the Court of Criminal Appeal in R v Allpass (1993) 72 A Crim R 561 where the Court specifically referred to the over-riding discretion of an appellate court "which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process …". His Honour specifically referred to the significance of the circumstance of double jeopardy generated by a Crown appeal against sentence and the exercise of discretion which thus arose. This approach was also taken by the other members of the Court, Hungerford and Peterson JJ. 95 Having regard to the potential double jeopardy, it is appropriate that we adopt a conservative approach to the review of the penalty imposed on the respondent. In that regard, we note the findings of the Full Bench in WorkCover (Inspector Buggy) v Weathertex (at [53]): Clearly, however, an appellate court in a Crown appeal has an obligation to act with caution or restraint, given the principle of double jeopardy and the Court's overriding discretion not to intervene: see Kirby J's observations in Dinsdale v The Queen (2000) 202 CLR 321 at 341 - 342 and in Wong v R (2001) 185 ALR 233 at 263; see also R v Allpass at 562 - 563, the joint judgment of Brennan , Deane , Dawson and Gaudron JJ in Everett v The Queen (1994) 181 CLR 295 at 299 and Batty v Graincorp . 96 We note further the existing authority which dictates that, in a prosecution appeal from a sentencing decision, any re-examination of penalty must be approached with caution: See Inspector Ian Batty v Graincorp Operations Limited [2002] NSWIRComm 49 at [4]; WorkCover (Inspector Buggy) v Weathertex at [46]. (See also WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 at [16] and [17]). 97 Mr Agius submitted that the issue of double jeopardy should be given little weight in the present matter because the respondent was a large corporation with a large number of employees, which faced the prospect of the imposition of a fine for breaches of the Occupational Health and Safety Act rather than a term of imprisonment. The appellant contended that all of the criminal cases dealing with double jeopardy are against the background where the available penalty was a term of imprisonment. In those circumstances, according to the appellant, considerations of double jeopardy should be limited. We reject that submission upon the basis of the authorities earlier referred to by us. 98 Mr Agius further submitted that the respondent invited the Deputy Chief Magistrate into error by making an application for an order under s10 of the Crimes (Sentencing Procedure) Act, and should therefore bear the risks associated with an appeal, including the risks of double jeopardy and costs. This issue may be appropriate for consideration in another appeal brought by a prosecutor. However, in this matter, the appellant contributed, in our view, to leading the Deputy Chief Magistrate into error by failing to place sufficient emphasis upon critical factors going to the objective seriousness of the offence. 99 The maximum penalty for the offence prescribed by s12 of the Occupational Health and Safety Act was $550,000, which was limited by the statutory cap on penalty to $55,000 by virtue of the prosecution being brought before a Magistrate (WorkCover Authority (Inspector Mansell) v Chen at [29]). We have taken into account the maximum penalty for the offence, the objective seriousness of the offence, the need for deterrence (both general and specific), the element of double jeopardy raised by this appeal, and the matters raised as subjective considerations. We consider that the appropriate penalty that should be imposed on the respondent is $8,000. 100 As to costs, we adopt the same approach as that taken by the Full Bench in Profab Industries (at [47]). Having regard to the considerations raised in paragraph [99] above, we consider that the appropriate order as to costs is to leave the costs order made by her Honour at first instance in place and to make no order as to the costs of the appeal. orders 101 We make the following orders: (1) Leave to appeal is granted; (2) The appeal is upheld; (3) The orders made by Deputy Chief Magistrate Syme of 4 December 2003 in Plaint No 20273954/03/2 (other than the order as to costs) are set aside; (4) In lieu thereof, a penalty of $8,000 is imposed on the respondent; and (5) Each party is to pay its own costs of the appeal. 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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