Industrial Relations Commission of New South Wales in Court Session CITATION: Tieman Industries Pty Limited v Inspector Littley [2005] NSWIRComm 127 Appellant Tieman Industries Pty Limited PARTIES: Respondent Inspector Littley FILE NUMBER(S): 4185 of 2004 CORAM: Walton J Vice-President; Marks J; Backman J CATCHWORDS: Appeal - occupational health and safety - s196 of the Industrial Relations Act 1996 - leave not required - penalty manifestly excessive - no specific error identified in the sentencing remarks - appeal upheld - appellant resentenced - costs Fines Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 1983 Dinsdale v The Queen (2002) 202 CLR 321 Inspector Littley v Tieman Industries Pty Ltd [2004] NSWIRComm 130 CASES CITED: WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd [2004] 136 IR 449 Workcover Authority of New South Wales Inspector Dawson v PlastaChem Pty Ltd and Others (2001) 110 IR 351 HEARING DATES: 04/15/2005 EXTEMPORE JUDGMENT DATE: 04/15/2005 Appellant: Mr C. Barton Solicitors: Freehills LEGAL REPRESENTATIVES: Respondent: Mr P. Skinner of Counsel Solicitors: Phillips Fox JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: Walton J, Vice-President Marks J Backman J 15 April 2005 Matter No IRC 4185 of 2004 Tieman Industries Pty Limited v Inspector Littley Appeal by Tieman Industries Pty Limited against the decision of Kavanagh J of 25 June, 2004 in Matter no IRC 1673 of 2003. EX TEMPORE JUDGMENT OF THE COURT [2005] NSWIRComm 127 1 This is an appeal under s196 of the Industrial Relations Act 1996 (NSW) ("the Act") and s5AA of the Criminal Appeal Act 1912 (NSW) against the decision of Kavanagh J of 25 June, 2004 in which her Honour convicted the appellant of an offence under s15(1) of the Occupational Health and Safety Act 1983 (NSW) ("the 1983 Act") and imposed a fine of $275,000.00: Inspector Littley v Tieman Industries Pty Ltd [2004] NSWIRComm 130. The maximum penalty for the offence at the time it was committed was $550,000.00. 2 Leave to appeal is not required: Workcover Authority of New South Wales Inspector Dawson v PlastaChem Pty Ltd and Others (2001) 110 IR 351 at 359. 3 On 5 April, 2001 employees of the appellant including Andrew Bancroft ("Mr Bancroft") were installing a hydraulic system as part of a dock leveller at premises at 80 Hutley Road, Smeaton Grange ("the premises"). At about 1.30 pm Mr Bancroft was sitting in a formed concrete pit area under the steel deck of the dock leveller manipulating a grub (bleed) screw in order to remove air from the hydraulic system. A safety prop which was meant to support the static load of the steel deck during maintenance operations was not, at this particular time, supporting the raised steel deck. While Mr Bancroft was sitting under the steel deck, without prior warning, the deck dropped rapidly, trapping Mr Bancroft between the steel deck and the concrete floor. According to the Agreed Statement of Facts tendered during the sentencing proceedings the steel deck dropped due to a catastrophic failure of the hydraulic system. 4 As a result of the accident Mr Bancroft suffered severe and permanent spinal damage and is confined to a wheelchair. Consideration 5 The appellant pleaded guilty at first instance. On appeal the appellant alleged errors of various kinds including that the penalty was manifestly excessive. 6 We can perceive no specific error in Kavanagh J's sentencing reasons. The finding that there was an "element of foreseeability" was open to her Honour given the warnings contained in the appellant's Manual. The remark that the appellant had, "learnt from the mistakes of the past", we attribute, from a reading of her Honour's reasons, as made in the context of her findings concerning the post-offence measures implemented by the appellant which demonstrated its commitment to occupational health and safety policies and procedures. The approach taken by her Honour in relation to the appellant's financial position is not clear to us, but her Honour was not provided with sufficient material that might have enabled a proper consideration of s6 of the Fines Act 1996. Nor does it appear to us that her Honour did not take into account the appellant's financial means. In relation to the subjective factors which were taken into account by her Honour, we consider that her Honour gave appropriate recognition to those factors. There is no requirement that her Honour specify the quantum of discount, other than the discount for the plea of guilty. This her Honour did. 7 We have nevertheless reached a firm view after careful consideration that the sentencing decision on its face, demonstrates error by reason that the penalty imposed by her Honour was manifestly excessive. 8 This form of sentencing error, identified for example in Dinsdale v The Queen (2002) 202 CLR 321 at 325, was recently examined by the Full Bench of the Court in WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd [2004] 136 IR 449 at 457 to 460. 9 As the above authorities suggest, a sentence which warrants a conclusion that it is excessive does not depend for this conclusion on the attribution of identified specific error in the sentencing remarks. However, her Honour's judgment does identify a number of factors which would have reduced the objective seriousness of the offence. We consider that these factors such as the relatively low level of foreseeability of the collapse of the hydraulic system (and the absence of any known cause of the collapse) appear not to have been taken sufficiently into account by her Honour in assessing the penalty. 10 We do not discount the seriousness of the overall offence which was before her Honour, nor her Honour's finding in that respect. In resentencing we have had regard to the particular finding of her Honour as to the objective seriousness of the offence (as qualified in the manner we have discussed) and have particularly taken into account the abject failure of the appellant to provide a system of work which would have protected its employees if the decking collapsed. This resulted in a very heavy unit falling on an employee working immediately under it. We have also approached resentencing on the basis of her Honour's findings as to the subjective features (and accept the discount after the plea of guilty given by her Honour). 11 We accordingly make the following orders in the following proceedings:- 1. The appeal is upheld 2. The penalty imposed by Kavanagh J in matter no IRC 1673 of 2003 is quashed 3. The appellant in matter no IRC 1673 of 2003 in fined $130,000.00. 4. The respondent is to receive a moiety of the fine. 5. The appellant shall have its costs of the appeal as agreed, or in default, as assessed by the Court. 12 The stay granted by her Honour Kavanagh J on 28 July 2004 is dissolved. We order that the monies held on account by the respondent's solicitor, including interest, be paid to the WorkCover Authority of New South Wales in partial satisfaction of the penalty we have hereby given on appeal. The balance of the penalty so required shall be paid by the appellant so as to satisfy the full sentence we have given on resentencing today. We make that further order. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.