Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Ian Lancaster v Burnshaw Constructions Pty Ltd [2002] NSWIRComm 319 APPELLANT Inspector Ian Lancaster PARTIES : RESPONDENT Burnshaw Constructions Pty Ltd FILE NUMBER: IRC8590 of 2001 CORAM: Wright J President; Walton J Vice-President; Haylen J CATCHWORDS : Appeal - Appeal re adequacy of sentence - reasonable foreseeability - failure to adequately assess general deterrence - application of wrong principle - remedial steps after accident - penalty manifestly inadequate - penalty imposed - costs reserved. Industrial Relations Act 1996 LEGISLATION CITED : Criminal Appeal Act 1912 Occupational Health and Safety Act 1983 Inspector Lancaster v Burnshaw Constructions Pty Ltd [2001] NSWIRComm 306 CASES CITED : Inspector Batty v Graincorp Operations Ltd [2002] NSWIRComm 49 Department of Mineral Resources of NSW (Insp. McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 WorkCover Authority of NSW (Insp. Bernard) v Rail Infrastructure Corporation (2001) 109 IR 209 HEARING DATES: 08/28/2002 DATE OF JUDGMENT: 11/29/2002 APPELLANT Mr P Skinner of counsel Solicitors: Moray & Agnew (Mr N Correy) LEGAL REPRESENTATIVES: RESPONDENT Mr J Phillips of counsel Solicitors: DGB Lawyers (Mr P Holmes) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, PRESIDENT WALTON J, VICE-PRESIDENT HAYLEN J 29 NOVEMBER 2002 MATTER NO. IRC 8590 OF 2001 INSPECTOR IAN LANCASTER V BURNSHAW CONSTRUCTIONS PTY LTD APPLICATION TO APPEAL AGAINST A DECISION OF JUSTICE GLYNN GIVEN ON 30.11.01 IN MATTER NO. 4078 OF 2001 JUDGMENT OF THE FULL BENCH [2002] NSWIRComm 319 1 This is a judgment of the Court in an appeal against sentence under s196 of the Industrial Relations Act 1996 and s5D of the Criminal Appeal Act 1912. The appeal is brought against the decision of Glynn J of 30 November 2001, imposing a fine of $13,000 for a breach of s15(1) of the Occupational Health and Safety Act 1983 ("the Act") upon the respondent in circumstances where the maximum penalty for the offence charged was $550,000. 2 The essential facts underpinning the prosecution are adequately set out in the judgment of Justice Glynn: see Inspector Ian Lancaster v Burnshaw Constructions Pty Ltd [2001] NSWIRComm 306. We do not repeat them here except to note that an employee of the respondent was injured whilst using a powerful radial docking saw which, in the mode of operation was used at the time of the accident, was unguarded and without a retraction mechanism to return the blade to its resting position. 3 The attack upon the judgment at first instance was confined to three broad areas: 1. The trial Judge erred in the application of the principles of general deterrence; 2. The trial Judge erred in her findings in relation to the issue of reasonable foreseeability 3. The sentence imposed by the trial judge was manifestly inadequate. 4 Having regard to the findings made by her Honour, we do not consider that any error has been demonstrated with respect to the second ground although we would observe that the mere absence of knowledge by a defendant of a risk to safety in relation to a piece of machinery does not exonerate the defendant. The obligations imposed by the Act require the adoption of a proactive approach to safety issues. The real question which arises then is whether the defendant should have known of the risk to safety. The question of reasonable foreseeability should be considered in that light. 5 We do, however, consider that her Honour has erred in her consideration of the issue of general deterrence and thereby the assessment of an appropriate penalty. Her Honour's judgment includes the following passage: 51 On the aspect of deterrence, I find that, in the light of the evidence set out herein, the factor of specific deterrence is one that needs to be given very little weight in the penalty to be imposed on this defendant. 52 As to general deterrence, I strongly commend the course adopted by WorkCover, through Inspector Lancaster, after this accident. 53 As a consequence of this accident, Inspector Lancaster thought it appropriate to investigate other truss-building factories, and, in doing so, found problems with saws. He said that it was not that the saws were not guarded, but that they could have been better guarded. A consultation process involving the manufacturer, the owner of the machine, the employer and WorkCover evolved. 6 In coming to this conclusion we have approached the question of any re-examination of penalty with caution and with a particular view to examining whether there exists a clear and demonstrable error at first instance: Inspector Batty v Graincorp Operations Ltd [2002] NSWIRComm 49 at [4]. 7 In our view, her Honour gave very little weight to general deterrence in this matter. It would appear that her Honour adopted this approach because of the impressive remedial steps taken by the defendant after the accident. However, we consider that this approach was wrong in principle. The steps taken by the defendant after the accident are irrelevant to the question of general deterrence. The taking of such steps does not detract from the need to deter the use of machinery in industry which is not appropriately guarded. This is so much more the case where bench saws are the subject of the prosecution. Unless exceptional circumstances are demonstrated, general deterrence should feature in the sentencing of an offender under the Act. We note, however, that remedial steps taken by a defendant after an accident may be relevant in considering the objective seriousness of an offence in sentencing proceedings by demonstrating a flaw in the system of work operated by the defendant before the accident: see Department of Mineral Resources of NSW (Insp. McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27 and WorkCover Authority of NSW (Insp. Bernard) v Rail Infrastructure Corporation (2001) 109 IR 209 at [93]. 8 In light of these considerations, and having regard to the penalty imposed by her Honour, we consider that the penalty was manifestly inadequate. 9 We have, therefore, determined to set aside the penalty at first instance and to assess the appropriate sentence to be imposed in this matter. We do not consider that the circumstances of this case are such that we should exercise our residual discretion not to re-sentence the respondent. We shall impose a penalty which is, however, at the lower range of the available penalties, having regard to the nature of this appeal and the principle of double jeopardy: Batty v Graincorp Operations at [7]. 10 In imposing a sentence in this matter we have adopted her Honour's assessment of the subjective considerations. We consider that the appropriate penalty should be $40,000 after a discount in the order of one third. 11 We accordingly order: 1. Appeal upheld. 2. Penalty at first instance is set aside. 3. The respondent is fined the sum of $26,000 with a moiety of the penalty to be paid to the appellant. 4. The question of costs is reserved although this may be a matter in which the appellant, having regard to our findings on the appeal, would not press for costs. 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