Industrial Relations Commission of New South Wales in Court Session CITATION: Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service [2005] NSWIRComm 158 Appellant: Inspector Yeung PARTIES: Respondent: Donald Edwin Wilson t/as Wilson's Tree Service FILE NUMBER(S): IRC 7088 of 2004 CORAM: Wright J President; Walton J Vice-President; Kavanagh J CATCHWORDS: Appeal - Occupational health and safety - Prosecution's appeal against sentence and costs order - Personal defendant - Effect of financial hardship on penalty - Prosecutor's costs - Effect of financial hardship on costs order - Variation of usual order - Penalty manifestly inadequate - Increased penalty imposed - Costs. Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Procedure Act 1986 LEGISLATION CITED: Fines Act 1996 Industrial Relations Act 1996 Legal Profession Act 1987 Occupational Health and Safety Act 2000 Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 Anderson v Glen Ewin & Staff Pty Ltd (1985) 41 SASR 42 Association of Architects of Australia, Ex parte Municipal Officers Association of Australia & Ors, re (1989) 27 IR 278 Caltex Refining Co Pty Ltd v MSB (1995) 36 NSWLR 552 Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Coombs v Patrick Stevedores Holdings Pty Ltd [2005] NSWIRComm 56 Dinsdale v The Queen (2000) 202 CLR 321 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 Emanuele v Dau (1996) 87 A Crim R 417 Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 156 Fernandes Constructions Pty Ltd v WorkCover Authority of NSW (2002) 124 IR 148 F Howe & Sons (Engineers) Ltd [1999] 2 Cr.App.R.(S.) 37 Flatow v Mullins (unreported, Supreme Court of Western Australia, Smith J, Supreme Court Library No 5207, 1 February 1984) Friends of Hinchinbrook Society Inc v Minister for the Environment & Ors (No 3) (1997) 77 FCR 153 House v The King (1936) 55 CLR 499 Inspector Barry Childs v Kirk Group Holdings Pty Limited & Anor [2005] NSWIRComm 1 Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259 Inspector Hannah v Wonar Pty Limited (unreported, per Fisher CJ, Glynn and Cullen JJ Inspector Gregory Maddaford v Graham Gerard Coleman and Anor [2004] NSWIRComm 317 Inspector Yeung v Donald Wilson trading as Wilson's Tree Service [2004] NSWIRComm 346 Koenig v Fraser [2000] WASCA 262 Latoudis v Casey (1990) 170 CLR 534 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353 McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 Metwally v University of Wollongong (1985) 60 ALR 68 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Morgan v Biddle (unreported, Supreme Court of Western Australia, Wallace J, Supreme Court Library No 2845) Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96 Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61 NSW Crime Commission v Fleming and Heal (1991) 24 NSWLR 116 CASES CITED: Norbis v Norbis (1986) 161 CLR 513 O'Sullivan v Crown in Right of the State of New South Wales (Dept of Education and Training) (2003) 128 IR 15 Pearce v The Queen (1998) 194 CLR 610 R v Allpass (1993) 72 A Crim R 561 R v Geddes (1936) 36 SR (NSW) 554 R v George [2004] NSWCCA 247 R v Giam (No 2) [1999] NSWCCA 378, (1999) 109 A Crim R 348 R v Kalache [2000] NSWCCA 2, (2000) 111 A Crim R 152 R v Morgan (1993) 70 A Crim R 368 R v Northallerton Magistrates' Court, Ex Parte Christopher John Dove [2000] 1 CR App R (S) 136 R v Rahme (1989) 43 A Crim R 81 R v Rollco Screw and Rivet Co Ltd & Others [1999] 2 Cr.App.R.(S.) 436 R v Rose (unreported, NSW Court of Criminal Appeal, 23 May 1996) Regina v T (unreported, Court of Criminal Appeal, 15 March 1990) R v Thomson, R v Houlton (2000) 49 NSWLR 383 R v Wall [2002] NSWCCA 42 R v Way (2004) 60 NSWLR 168 Ridge Consolidated Pty Ltd v Workcover Authority of New South Wales (Inspector Maugher) (2002) 115 IR 78 Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 State Crime Commission v Heal & Fleming (unreported, 21 December 1992) Thomas v Schwager (unreported, Supreme Court of Western Australia, Parker J, Supreme Court Library No 970719) WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors (2001) 110 IR 351 WorkCover Authority of New South Wales (Inspector Dowling) v Bournelis and Another (2003) 124 IR 447 Workcover Authority of New South Wales (Inspector Farrell) v David Carl Shrader (2002) 112 IR 284 WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Waugh & Thora Saw Milling Pty (1995) 59 IR 89 WorkCover Authority of New South Wales (Inspector Gordon) v Shortland Electricity, (unreported, Marks J, 5 May 1995) WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 277 WorkCover Authority of NSW (Insp Keenan) v Lucon (Australia) Pty Ltd (No. 2) (2003) 124 IR 459 WorkCover Authority of New South Wales (Inspector Mansell) v Chen (2004) 137 IR 33 WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323 HEARING DATES: 03/07/2005; 04/12/2005 DATE OF JUDGMENT: 06/24/2005 Appellant: Mr P M Skinner of counsel Solicitors: Ms H A Cameron WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Respondent: Mr B G Docking of counsel Solicitors: Mr A Howell Jones Staff & Co, Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WRIGHT J, President WALTON J, Vice-President KAVANAGH J Friday 24 June 2005 Matter No IRC 7088 of 2004 INSPECTOR YEUNG v DONALD WILSON TRADING AS WILSON'S TREE SERVICE Application by WorkCover Authority to appeal against a judgment of Justice Boland given on 15 November 2004 in Matter No IRC 1043 of 2004 JUDGMENT OF THE COURT [2005] NSWIRComm 158 1 This is an appeal from the judgment of Boland J delivered on 15 November 2004 in Inspector Yeung v Donald Wilson trading as Wilson's Tree Service [2004] NSWIRComm 346. The respondent had pleaded guilty to a breach of s 8(2) of the Occupational Health and Safety Act 2000. The appeal is brought pursuant to s 196 of the Industrial Relations Act 1996 and s 5D of the Criminal Appeal Act 1912. Factual Background 2 On 3 July 2002, Donald Edwin Wilson (the respondent) who traded as Wilson's Tree Service and Wilson's Garden Management, was removing trees and then undertaking an on site wood chipping process on a construction site at 12 Yatala Road, Mt Ku-ring-gai. The respondent's employee, Michael John Colnan and a contractor, Geoffrey William Jardine, were assisting him in the wood chipping operations. 3 Between about 10am and 12.30pm, the contractor, Mr Jardine was preparing a sling around trees in order to assist Brian Paul Munroe who was operating an excavator to remove the trees and deliver them to the respondent. The respondent and Mr Colnan would then process the tree wood through a wood chipping machine. At about 12.30pm Mr Munroe discovered Mr Jardine lying on the ground about six metres from the excavator. He was deceased. Mr Jardine had multiple injuries consistent with having been run over by a heavy vehicle such as an excavator. Grounds of Appeal 4 The appellant appealed upon the following four grounds: 1. The sentence imposed by his Honour is manifestly inadequate. 2. His Honour erred in his treatment of the facts surrounding the death of the worker and his consideration of those facts in the course of analysis of the nature of the risks caused by the defendant's failures. 3. His Honour erred in his consideration of the culpability of others, and his application of the principles in respect of same to the facts before him 4. His Honour erred in not awarding to the prosecutor his costs of the sentencing proceedings, in accordance with accepted principles and practice. Proceedings and judgment at first instance 5 At first instance, it was alleged the respondent failed to ensure Mr Jardine, a person not in his employment, was not exposed to risks to his health and safety under s 8(2) of the Occupational Health and Safety Act arising from the conduct of his undertaking at his place of work. The particulars of the charge relied upon were: a) At all material times the defendant was an employer. b) At all material times the defendant employed Michael John Colnan ("Colnan") to assist in woodchipping operations at 12 Yatala Road, Mt Kuring-gai ("the construction site"). c) At all material times Jardine, a sub-contractor, Colnan and the defendant were working at the construction site in the vicinity of a 22-tonne SK220 Kobelco hydraulic excavator ("the excavator") operated by Brian Paul Munroe ("Munroe"). d) At all material times the defendant's undertaking was the processing of trees removed by the excavator at the construction site. e) The defendant failed to provide supervision and instruction as may be necessary to ensure the safety of Jardine. f) As a result of the said failure Jardine was placed at risk of injury and suffered fatal injuries. The Agreed Facts before Boland J 6 Relevantly, the agreed facts before Boland J provided: 4. Sometime between about 10.00am and about 12.30pm on 3 July 2002 Jardine was preparing a sling around trees in order to assist the excavator which was operating nearby to remove the trees and deliver them to the defendant and Colnan who would then process them through a wood chipping machine, at the construction site. At about 12.30pm Jardine's dead body was discovered by Munroe about 6 metres from the excavator, lying on the ground on his left side. The body was lying beside a large rock and facing north. Jardine had multiple injuries consistent with having been run over by a heavy vehicle such as the excavator. 5. On 3 July 2002 Inspector Max Luland attended the site and undertook a factual investigation. A copy of the Factual Investigation Report dated 8 August 2002 and a sketch of the scene is attached and marked "A". On the same date Inspector Yeung took 9 photographs at the site. Copies of these photographs are attached and marked "B". 6. On 5 December 2001 Development Application 2779/01 ("DA2779/01") was lodged with Hornsby Shire Council by Mark Barlow of Barlow Developments Pty Ltd ("Barlow") on behalf of G&T Moit. The application was for a factory development of 16 x 2-storey strata title units (warehouses) at 12 Yatala Road, Mt Kuring-gai. 7. On 28 February 2002, a letter ("fee proposal") was sent from Howie Herring & Forsyth Pty Ltd ("HHF") to Barlow regarding the development of the construction site. The letter nominated Jeffery Clarke from HHF as Senior Project Manager and Skelton as Project Manager responsible for client liaison co-ordination and administration of all aspects of the development. According to the letter both Clarke and Skelton were to perform their respective roles while, "... supported as necessary by other project staff in our Crows Nest office". 8. On 17 April 2002, Skelton, for HHF, applied under DA 2779/01 for a construction certificate (road construction only), a compliance certificate and the appointment of Hornsby Shire Council as Principal Certifying Authority for the construction site. 9. On 9 May 2002 DA 855/02 was sent to Hornsby Shire Council by Barlow for the development of an additional 5 units at the construction site. 10. Sometime in May 2002 a subsequent fee proposal was sent by HHF to Barlow. This was followed by an acceptance and a signed approval commitment authorisation from Barlow. 11. Work at the construction site commenced on about 10 June 2002. At the time of the accident the work involved road construction. Skelton was the only HHF employee on the site on 3 July 2002. 12. As Project Manager, Skelton, on behalf of Barlow, engaged the services of various contractors at the site. As part of this process HHF had a Safety Management Plan Document Register ("SMP") consisting of some 13 pages with an issue date of 31 October 2000. The intention was it (sic) was to be provided by HHF to each contractor with the tender and contract documents, and to every person on site as part of a site-specific induction. In addition to the SMP, HHF maintained a "Hazard Control" policy. (sic) policy was to be provided by HHF to all contractors with tender and contract documents and to every supervisor on site at site induction, where applicable. 13. The SMP required all personnel planning to work on site be inducted before having access to the work area. This was to be a general site induction which covered the rules and requirements of the site, emergency procedures, reporting procedures and site amenities. In accordance with the SMP, a record of each person's induction and qualifications was to be completed at the end of each induction. A Safety Management Plan Site Register ("Site Register") was filled in and signed by those contractors who had undergone a site induction at the construction site. Skelton co-signed as the HHF representative. 14. In addition, under the SMP, contractors were required to hold weekly toolbox meetings. The SMP also provided: " Wherever a potentially hazardous situation could occur, including working at heights or in confined spaces, bringing fuel or hazardous material to site, explosive power tools, carnage, oxy cutting and welding, special processes the HHF representative or the Contractor shall initiate a formal Hazard Control procedure to identify the hazards, suitable work method statements, risk analysis, permits to work as outlined in procedure HHF OHS 02 HAZARD CONTROL". 15. The Hazard Control policy provided "at least seven days prior to work" commencement on site, the following safety system will be implemented". The system then identified four matters were to be addressed: a "Hazard Identification Sheet", the provision of a "Work Method Statement", the provision of a "Risk Analysis Sheet" and a "Work Safety Permit". The Hazard Identification Sheet was to be "used to identify all possible hazards pertaining to the project task" and "initially this will be completed by the HHF representative, who will sign each hazard box which has a potential hazard relating to project task". The Hazard Identification Sheet was then to be "reviewed by HHF representatives and contractor's supervisor to agree on critical hazards". The Hazard Control policy required contractors, in the event of potentially hazardous situations, to submit a work method statement ("WMS") and a Risk Analysis Sheet. 16. Skelton also kept a Daily Site Diary which purported to record, among other items, toolbox talks held, safety walks taken and any inductions completed. 17. On or about 17 June 2002, Brian Paul Munroe ("Munroe") an employee of Mystold Pty Ltd ("Mystold") commenced work at the construction site. Munroe says he received a site induction either on day or on 24 June 2002 from Skelton. There is no record of a site induction for Munroe for either day in the Site Register. The Daily Site Diary for 17 June 2002 records a toolbox talk given to excavator drivers and ground workers. 18. Munroe's duties involved the operation of the excavator for the removal of trees and rocks in preparation for road construction. He operated under the direct supervision of Skelton receiving all his instructions from him. 19. Between about 25 and 28 June 2002, Skelton on behalf of Barlow engaged the services of Metro Tree Lopping Services Pty Ltd ("Metro") to remove and grind tree stumps and remove rocks at the construction site. On the first day of work Skelton directed Metro workers to their designated area of work at the construction site. Metro's director at the site, Dennis Warren Cockayne ("Cockayne"), appointed a spotter to watch out for the excavators operating at the site. On subsequent days, Metro workers operated inside an area bounded by a 2.4 metre high fence, with two access gates. The excavators were on the other side of the boundary fence. According to Cockayne, Skelton instructed Metro workers to stay within their designated work area away from the excavators. 20. Prior to attending on the construction site on 3 July 2002, the defendant and Skelton reached an oral agreement for the defendant to process trees on the construction site. It was agreed the trees would be knocked down by an excavator and the defendant was being engaged to process the trees. The defendant was to be paid $120.00 per hour plus GST. 21. At no time prior to the accident on 3 July 2002 was the defendant provided with a copy of the SMP, nor was he informed of the existence of the SMP. At no time prior to the accident on 3 July 2002 was the defendant asked to provide a WMS. The defendant did not prepare and produce a WMS prior to the accident. At no time prior to the accident on 3 July 2002 was the defendant or Colnan provided with a site induction. The defendant was not aware persons working on construction sites were required to undergo occupational health and safety induction training before they could start work on a construction site. At no time prior to the accident on 3 July 2002 did Skelton check the qualifications of the defendant, Colnan or Jardine for doing the work. At no time prior to the accident did Skelton check whether training was required for the defendant, Colnan or Jardine. 22. On the day of the accident, Wednesday July 3 2002, the defendant arrived at the construction site with Colnan and Jardine at about 7.15am. The defendant brought equipment with him to the construction site, namely one yellow Verneer wood chipper and one white IZUZU medium truck, registration number XJR 985. The wood chipper was attached to the truck. The defendant, Colnan and Jardine commenced work at about 7.30am. The job had an estimated duration of about 4 hours. The defendant had provided Colnan with personal protective equipment including gloves, eye protection and earmuffs. Jardine provided his own ear protection, eye protection and boots. 23. Upon arriving at the site Skelton showed the defendant the area to be cleared morning. After pointing out the area to be cleared, Skelton left the area in which the work was to be performed and gave the defendant no further supervision. Prior to commencing work the defendant had a toolbox talk with Colnan and Jardine and instructed them on the work to be performed. Neither the defendant nor Skelton arranged for a spotter to be present during the performance of the work. The work was carried out in the vicinity of Munroe's excavator with no boundary between the workers and the excavator. The defendant and Colnan had both previously worked around moving plant. Jardine had worked on construction sites for a number of years and had been involved with heavy machinery all of his working life. 24. After having spoken briefly to the defendant, Skelton directed Munroe to utilize the excavator to remove approximately 23 trees and the trees so removed would be processed through the defendant's chipper. Munroe noticed the excavator would be operating on a 1 in 4 slope. He consulted with the defendant, Colnan and Jardine about the work. The system of work being utilized at the time of the accident was as follows: a) Munroe would use the excavator to push down the trees, a few at a time; b) Throughout this time the truck and chipper were 12 to 15 metres from the area where the excavator was being operated. c) Munroe told the defendant, Colnan and Jardine to stay behind the excavator when the trees were pushed over. The trees were being pushed over away from where Colnan and Jardine were standing and onto the remaining wood. d) Once the trees were pushed over, Munroe would swing the excavator around and indicate to the tree loppers to come in to sling the trees. Jardine would place a sling on the trees indicated by Munroe and then place the sling over the bucket teeth of the excavator. e) While the trees were being slung, Munroe would wait with the excavator bucket down. f) Once the tree loppers were clear of the excavator, Munroe would then use the excavator to move the slung trees to within a metre or so of the chipper. g) Colnan would then utilize a chainsaw to dissemble the tree. Colnan and Jardine would then feed the tree through the chipper. h) The defendant had a leg injury and was not able to participate in the work. The defendant spent the majority of the time next to the discharge chute of the chipper, directing the flow of woodchips into the truck. i) As the excavator moved down the slope removing trees, the workers reversed the truck with the wood chipper attached, behind the excavator. 25. When operating the excavator Munroe's vision did not extend to the rear of the excavator but according to him the workers were about 10 metres behind the excavator. 26. Just before the accident Jardine, working with the excavator, delivered a tree to the chipper. Colnan processed the tree into the wood chipper. The chipper was so noisy none of the workers could be heard. In addition, the workers were wearing ear protection. Jardine motioned to Colnan who in turn passed Jardine the sling. Jardine walked off towards an area on the far side of the excavator where further trees were to be removed. Colnan continued to cut branches and feed them into the wood chipper. Both the defendant and Colnan were facing towards the truck with their backs to the excavator. 27. A couple of minutes later, Munroe enquired as to Jardine's whereabouts. Neither the defendant nor Colnan knew where he was and the work paused for a minute or so whilst they looked around. They failed to locate him and resumed work. A minute or so later, Munroe informed them he had found Jardine. The defendant and Colnan went to investigate and found Jardine lying on the far side of the excavator beside a large rock partially covered with small branches and foliage. 28. The sling which had been used by Jardine over the course of the day was found approximately 15 metres up a slope north of Jardine's body attached to a tree. 29. According to the autopsy report dated 14 September 2002, Jardine died of multiple injuries consistent with being run over by a heavy vehicle such as an excavator. The autopsy report dated 14 September 2002 also showed the deceased suffered "severe coronary artery disease" and in one of the deceased's coronary arteries there was evidence of a fresh haemorrhage into a plaque deposited on the wall of the artery, indicating the deceased may have suffered a myocardial infarction or "heart attack". Dr Langlois undertook the post mortem examination and expressed the opinion it was "extremely difficult" to determine whether the haemorrhage into the plaque happened prior to or following the deceased suffering various injuries. Dr Langlois expressed the opinion: "Such an event [the heart attack] could have caused Mr Jardine to collapse where upon he was then run over by the excavator. However there was severe trauma to the chest and there was a tear of the heart. Therefore, it is possible the haemorrhage into the plaque occurred as a result of the chest trauma. From a purely pathological view it is extremely difficult to separate these two possibilities. An investigation into the circumstances of the incident may assist in clarifying this matter". 30. Senior Constable Paul Anthony Green of the Berowra Police Station attended on the construction site shortly after the accident and observed "there was very little blood as a result of the large head injury the deceased had suffered, which was unusual with such a head injury, in my experience". In the statement made to the Police on 30 July 2002 Skelton also observed "I did not see any blood" when giving evidence about viewing Jardine's body shortly after it was discovered. In his statement given to police on 1 August 2002, Thomas Patrick Forde observed: "I then looked at his head and his body, his head was badly damaged with a large opening in the back of his head on the top right hand side…I noticed there was no blood around his head where the wound was. I thought this was strange there was no blood. I thought he might have been dead before this happened". 31. As such, it is not possible to determine whether Jardine died before or after the accident. 32. The defendant has no previous convictions for an offence under the Occupational Health and Safety Act 2000 or its predecessors. Judgment of Boland J 7 From the agreed facts, his Honour determined: [27] There was clearly a failure to provide a proper level of supervision and instruction and the defendant has acknowledged this by pleading guilty to the charge. Mr Howell contended this was an offence of lesser seriousness than the "much broader failure to provide a safe system of work". That may be so but it will depend on the extent of the failure to supervise and instruct and the seriousness of the risk arising from that failure. [28] In the present case there was a degree of supervision and instruction evident from the work method adopted and Mr Wilson's instruction to stay away from the moving excavator. The initial method of work involved Mr Jardine and Mr Colnan standing behind the excavator in the vicinity of the chipper, approximately 15 to 20 metres away from the excavator, whilst the trees were pushed over onto remaining bushland and then picked up in the excavator bucket. [29] This system was then changed so that once the trees were pushed over Mr Munroe would swing the excavator around and indicate to Mr Jardine and Mr Colnan to come in to sling the trees. They would place a sling on the trees indicated by Mr Munroe and then place the sling over the bucket teeth of the excavator. While the trees were being slung, Mr Munroe would wait with the excavator bucket on the ground. Once Mr Jardine and Mr Colnan were clear of the excavator Mr Munroe would then use the excavator to move the slung trees to within a metre or so of the chipper and Mr Colnan and Mr Jardine would process it through the chipper. [30] It must be accepted that on the instructions given by the defendant as to the system of work to be observed, there was no requirement for Mr Jardine to work in close proximity to the excavator whilst it was in motion and it also must be accepted that the method of work chosen by the defendant on the day of the accident was designed to avoid obvious risks to health and safety. 8 His Honour dealt with the objective seriousness of the offence, in this way: [31] I accept that this offence was not in the serious class of cases such that it should attract a heavy fine and, indeed, Mr P Skinner of counsel for the prosecutor conceded this was the case. Nevertheless, I have some difficulty in accepting that this offence is at the lowest end of the range of seriousness. An offence under s 8(2) of the Act will be regarded as more serious than it otherwise might have been if the risk to safety was obvious or reasonably foreseeable and reasonably practicable steps were available to avoid the risks, but these steps were not taken. The defendant conceded that the risk to safety posed by working in close proximity to plant was reasonably foreseeable but submitted the seriousness of the offence was significantly mitigated by the system of work adopted by the defendant. I consider, however, the level of supervision and instruction fell well short of what was required. [32] The work environment was bushland. It was noisy ("The chipper was so noisy that none of the workers could be heard"), the ground was rough and sloping and men were working in proximity to a 22 tonne excavating machine cutting up trees with chain saws and slinging the load onto the excavator's bucket. The excavator driver could not see to the rear of the machine and whilst the wood chipping was taking place Mr Wilson had his back to the excavator and surrounding area. Properly supervised the site should have involved the well-established practice of a "spotter" who, at all times, could account for the position of each worker on the site and if any person was not visible, would immediately signal a cessation of the work. Alternatively, the excavator operator should have been instructed that unless he could see Messrs Jardine and Colnan he was not to operate the machine and that Mr Watson would stay with the wood chipping machine and not approach the excavator. [33] It was reasonably foreseeable in the work environment obtaining at the site that a risk to the health and safety of workers could arise unless particular care and appropriate steps were taken to ensure that at all times no one came near to the machine whilst it was in operation. The level of supervision that the defendant employed at the site was clearly inadequate to achieve that necessary guarantee of safety. It consisted of indicating the system of work to Messrs Colnan and Jardine but in an environment that required supervision in the form of constant observation of the work as it progressed, that did not occur. Mr Wilson said he did observe the workmen "whilst material wasn't being fed into the chipper, however, once something was fed into the chipper I had my back to the area where the excavator was working". At the time of the accident Mr Wilson had his back to the area where the excavator was working. [34] There was some level of instruction but again it was inadequate in the circumstances. Mr Wilson said in his evidence: I discussed the method of work to be used with Jardine and Colnan and cautioned them to stay well clear of the excavator whilst it was working. My comment in this regard was a general observation about staying away from the machine rather than a specific direction about how far to stay away or anything of that kind. I said words to the effect of "make sure you stay clear of the machine". [35] The steps I have described that were available to avoid the risk were reasonably practicable. 9 His Honour's determination as to the issue of contribution was: [40] As the defendant submitted, the Court is required to assess the extent to which the various parties have contributed to the risk and their conduct generally, to identify which party ought bear the greatest level of responsibility: see Workcover Authority of New South Wales (Inspector Farrell) v David Carl Shrader (2002) 112 IR 284 at [61] referred to with approval by the Full Bench in Ridge Consolidated Pty Ltd v Workcover Authority of New South Wales (Inspector Maugher) (2002) 115 IR 78 at [33] and Fernandes Constructions Pty Ltd v Workcover Authority of New South Wales (Inspector Steven Jones) (2002) 124 IR 148 at [48]. ... [43] On the evidence in this case it would appear that the defendant should not bear the whole blame for the failure to adequately supervise and instruct and that a substantial part of that responsibility lies with other parties. I have taken this consideration into account in fixing the penalty. 10 As to the subjective features of the offence, his Honour concluded: [46] There are a number of relevant subjective factors to be taken into account. Firstly, that the defendant cooperated with WorkCover in its investigation of the matter. Secondly, the defendant expressed genuine remorse for the offence and it is apparent from his evidence he was deeply affected by Mr Jardine's death. Thirdly, the defendant sought to assist the widow of the deceased following the accident. Fourthly, an early plea of guilty was entered. Fifthly, the defendant has no prior record of convictions. Mr Wilson is of good character and I do not consider he will re-offend. Accordingly, I propose to discount the penalty by 25 per cent for the utilitarian value of the early plea and by a further 10 per cent for the other factors. 11 His Honour's reasoning as to the fixing of the relevant penalty included the following: [47] Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. The defendant provided extensive evidence as to the state of his means. I am satisfied, having regard to that evidence that the defendant is, as he puts it, "relatively impecunious". The evidence was that the defendant's outstanding debts exceed his outstanding assets and that in his belief any significant penalty will give rise to a need to sell the family home. I propose to reduce the fine that otherwise would have been ordered to be paid by the defendant given the defendant's limited means and impecuniosity. ... [50] It is clear that s 10 will only be invoked in "extraordinary and highly exceptional circumstances". The offence in this case was not trivial in nature and there are no extenuating circumstances that would warrant the application of s 10. The offence does not fall into the category of "extraordinary and highly exceptional". There was a clear failure on the part of the defendant to provide adequate levels of supervision and instruction. 12 His Honour then dealt with the issue of costs. He did that in the following way: [51] The prosecutor sought costs and a moiety of the fine. The defendant accepted that the usual order as to costs was that the defendant be required to pay the prosecutor's costs in an amount as agreed or assessed. However, it was submitted, costs were ultimately in the Court's discretion and the Court must exercise its discretion as to costs in accordance with what is just and reasonable. [52] The defendant contended that this was an appropriate case in which to make an order that the parties bear their own costs for the following reasons: (a) The defendant has, from the date of the accident, throughout the investigative process and throughout the course of proceedings done his level best to assist the prosecutor. (b) An order as to costs is intended to be compensatory in nature rather than punitive. (c) The defendant is relatively impecunious. Any penalty imposed is likely to have a significant impact on the financial capacity of the defendant. Any order as to costs is likely to result in further financial hardship for the defendant and his family, rendering it more likely that he will be required to sell his family home. (d) In all the circumstances, it is a more just outcome for the prosecutor to bear the entirety or a substantial portion of its costs in the proceedings to date. [53] Having weighed up the objective seriousness of the offence and the relevant subjective factors including, in particular, the defendant's relative impecuniosity, and noting that the purpose of costs is not punishment, I have decided the defendant will pay 20 per cent of the prosecutor's costs. As a consequence of the events of 3 July 2002, which was not all of his own making, the defendant and his young family face a period of quite severe emotional and financial hardship. I can see no point in adding to their difficulties by simply adopting the usual rule that costs follow the event. I do not consider in this case that to do so would be just and reasonable. [54] I have decided an appropriate penalty in this case is $4,000. This amount is to be reduced by 35 per cent, resulting in a fine of $2,600. SUBMISSIONS Appellant's Submissions Grounds 1,2 & 3 13 As to Boland J's considerations of the objective seriousness of the offence, the contribution of other parties to the risk and the inadequacy of the penalty imposed, Mr P M Skinner of counsel, for the appellant, submitted that there must be an established error before the Full Bench intervenes, and even then in the use of the court's discretion it may determine not to intervene: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337. 14 The appellant adopted the findings of his Honour that: (a) the offence was not at the 'lowest end of the range of seriousness'; (b) it was reasonably foreseeable the failures would lead to the risk to safety; and (c) there were reasonably practicable steps available to the respondent to avoid the risk. 15 The appellant submitted the penalty imposed by his Honour of $2,600 was manifestly inadequate and further, Boland J fell into error when he allowed a discount to reduce penalty because of the impecuniosity of the respondent. While his Honour took into account the impecuniosity of the respondent, the appellant submitted the respondent was not as financially impecunious as accepted by his Honour. The appellant submitted his Honour should have given greater weight to the fact the respondent was still in business and had expanded his business with the purchase of further plant and equipment after the incident. 16 The appellant submitted Boland J erred in his assessment of the gravity of the offence when he considered the evidence as to Mr Jardine's possible heart attack, and the conclusion agreed between the parties that "it was not possible to determine whether Mr Jardine died before or after the accident." 17 The appellant conceded although the death of Mr Jardine could not be proved beyond reasonable doubt to have been caused directly by the failures of the respondent, the risk to Mr Jardine's health and safety posed by his working in proximity to the excavator was caused by the failures of the respondent. The appellant contended the failures in the respondent's system of work ensured none of the three other workers at site knew where Mr Jardine was when he was first noticed as missing. The work of the excavator continued after it was noted Mr Jardine was missing. The excavator in operation directly injured Mr Jardine's body. 18 The appellant submitted the evidence established there was a risk to the health and safety of any persons in proximity to the excavator and the respondent's failure to provide adequate supervision and instruction caused the risk, notwithstanding there may have been other interventions such as the heart attack. 19 The appellant submitted his Honour confused causation of the accident with causation of the risk when he said at [37]: In light of the prosecutor's agreement it is not possible to determine whether Mr Jardine was run over by the excavator before or after he had died, perhaps from a heart attack, it cannot be established beyond reasonable doubt a causal connection exists between the defendant's failure to provide adequate supervision and instruction and the risk to health and safety posed by working in proximity to the excavator: See Capral Aluminium Ltd v Workcover Authority of New South Wales (Insp Mayo-Ramsay) (2000) 99 IR 29 at [60]. 20 Further, the appellant submitted his Honour erred in reducing the penalty imposed on the respondent because of his acceptance that Mr Wilson played a significantly lesser role in creating the risk than other co-offenders did in the creation of the risk. 21 The appellant submitted his Honour's reasoning gives rise to an implication there is required to be some exercise in apportionment of a single quantum of penalty applicable to the "whole blame for the failure to adequately supervise and instruct", rather than the correct approach which is that co-offenders can be independently responsible for the creation of a risk: Fernandes Constructions Pty Ltd v WorkCover Authority of NSW (2002) 124 IR 148 at [48]. 22 The appellant further submitted his Honour erred in finding others bore greater responsibility than the respondent for the failure to adequately supervise and instruct. Such a finding was based upon a factual error as Mr Jardine was directly under the supervision of the respondent, not the other co-offenders. Respondent's Submissions Appeal Grounds 1,2 & 3 23 As to Boland J's considerations of the objective seriousness of the offence, the contribution of other parties to the risk and the inadequacy of the penalty imposed, Mr B G Docking of counsel, for the respondent, submitted the appeal is neither a rare case that satisfies the principles on Crown appeals against sentence nor an exceptional case justifying intervention. Reliance is placed on the appellant's own submission to the primary judge: [T]here is an unusual factor in this case, that there are possible intervening circumstances of him (the deceased a 61 year old man) possibly having had a heart attack …", "this is an unusual case" and "the subjective circumstances are – one has to have sympathy for Mr Wilson ... 24 Reliance is placed by the respondent on the principles concerning Crown appeals against sentence as enunciated in R v Wall [2002] NSWCCA 42 per Wood CJ at CL (with whom Meagher JA and Bell J agreed) at [70] and in House v The King (1936) 55 CLR 499 at 504 where it was noted there must be an error by the primary judge in exercising discretion. The respondent also relies upon the view espoused as to use of a court's discretion in Norbis v Norbis (1986) 161 CLR 513 at 518 - 519 per Mason and Deane JJ. 25 The principles enunciated in House v The King, the respondent submitted, were fashioned with a close eye on the characteristics of a discretionary order. The respondent submitted if the questions involved lent themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow the Full Bench to set aside a judgment at first instance merely because there exists just such a difference of opinion between the Judges on Appeal and the Judge at first instance. 26 In conformity with the dictates of principled decision-making, the respondent submitted it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the Judge at first instance, in the absence of error on his part. Therefore, the respondent submitted the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition to a successful appeal. 27 The respondent submitted the penalty imposed reveals no manifest inadequacy. The respondent submitted Boland J was sentencing a personal respondent with no prior convictions and the maximum available penalty was $55,000. As Boland J determined discounts of 25 percent for the utilitarian value of the early plea and a further 10 percent for the other factors and there was no patent error as to these assessments (see the guideline judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383) Boland J made no error in these discounts allowed. 28 In his reasoning, Boland J rejected an application under s 10 of the Crimes (Sentencing Procedure) Act 1999 ("CSP Act") concluding at [50]): There was a clear failure on the part of the defendant to provide adequate levels of supervision and instruction. Under s 6 of the Fines Act 1996, his Honour determined to reduce the penalty given the respondent's limited means and impecuniosity. The respondent submitted the statutory injunction in s 6 has long been recognised as an appropriate part of the sentencing consideration. Boland J then determined that an appropriate penalty in this case was $4,000. 29 In the exercise of his discretion, Boland J applied a reduction under s 6 of the Fines Act and struck a figure of $4,000 and then reduced it by the 35 percent discount he had allowed resulting in a fine of $2,600. The respondent submitted there is no latent error revealed in his Honour's reasoning which could justify interference on appeal. In the context of a Crown appeal against a sentencing discretion "the only golden rule is that there is no golden rule" (R v Geddes (1936) 36 SR (NSW) 554 at 555 per Jordan CJ). Further, in Pearce v The Queen (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ at 624 [46] stated: Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. 30 The sentence imposed by Boland J was within the appropriate range. The respondent submitted there have been relatively few instances where personal respondents have come before the court and there is therefore no long standing sentencing practice for such defendants in the court. No range of appropriate penalty exists the respondent submitted unlike, for example, those which exist to assist a judge who would be sentencing drug offenders as a courier, or warehouseman, or middle man, or principal. 31 The appellant before the primary judge characterised the case as "unusual" but such is not an appropriate vehicle to establish matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons" the respondent submitted. It would be quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) to consider if it is outside the appropriate range for the case in hand. Reliance is placed by the appellant on the authority of R v Morgan (1993) 70 A Crim R 368 per Hunt CJ at CL (at 371) and R v George [2004] NSWCCA 247 at [48] - [49]. 32 The appellant submitted at first instance, in reply to the respondent's sentencing submissions that the offence was at the lowest end of the range of seriousness saying to the primary judge: The submission my friend makes is that this is at the very lowest end of seriousness. I do not necessarily oppose it, if that is the view that Your Honour comes to". The appellant further submitted, "Your Honour could treat it, in my view, as more serious than at the very lowest end, I would submit that your Honour could treat it as the medium range – that is, not the highest. That being so, it is a matter where the Court ought not to contemplate a section 10 order on the basis of the objective seriousness. It was in consideration of these submissions that Boland J decided at [31]: I have some difficulty in accepting that this offence is at the lowest end of the range of seriousness. 33 The respondent submitted there is no latent error arising from Boland J rejecting the respondent's submission that the offence was at the lowest end of the spectrum, that is, as an offence having none of the aggravating circumstances and all of the mitigating circumstances. 34 The respondent further submitted the sentence does not satisfy the test as applied in House v The King at [505]: [I]f upon the facts it is unreasonable or plainly unjust. Rather, Boland J imposed a sentence, which was just and appropriate ( R v Way (2004) 60 NSWLR 168). 35 The respondent submitted the appellant could not demonstrate specific error of principle or fact. The reasoning of Boland J must be considered fairly and read as a whole (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291, as applied in Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 per Wright J, President and Walton J, Vice President at 458). 36 Boland J at [38] stated: … In this case the extent of the defendant's failure to provide adequate supervision and instruction and the likelihood of that failure resulting in serious injury or death is a matter to be taken into account in determining an appropriate sentence. and in so saying, the respondent submitted, found beyond reasonable doubt that there was a causal nexus between the respondent's failure and the general class of risk, namely, "serious injury or death" from the excavator. Consistently, with Mulgoa (at [18] and [23]) his Honour determined there was an indication of the kind of consequence that could have resulted from the breach. His Honour assessed the risk and its potential to cause or result in serious injury. 37 The respondent submitted no appealable error exists and Boland J did not confuse causation of the accident with causation of the risk. 38 The respondent submitted Boland J expressly applied correct principle as enunciated by the Full Bench in Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 at [32] as Boland J found at [36]: In this case there was a death but as the defendant submitted, Mr Jardine's death cannot properly be regarded as a manifestation of the risk and cannot be taken into account as an aggravating feature of the offence 39 The respondent submitted Boland J made no error in finding the specific risk comprising the actual occurrence of death did not manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected. 40 In determining an appropriate penalty in circumstances where more than one individual or legal entity contributed to the relevant risk, the respondent submitted Boland J correctly viewed the nature and seriousness of the defendant's offence by reference to the defendant's contribution to the relevant risk. His Honour concluded at [43] correctly, the respondent submitted, when he said: On the evidence in this case it would appear that the defendant should not bear the whole blame for the failure to adequately supervise and instruct and that a substantial part of that responsibility lies with other parties. I have taken this consideration into account in fixing the penalty. 41 As Boland J applied accepted statements of principle in Workcover Authority of New South Wales (Inspector Farrell) v David Carl Shrader (2002) 112 IR 284 at [61] referred to with approval in Ridge Consolidated Pty Ltd v Workcover Authority of New South Wales (Inspector Maugher) (2002) 115 IR 78 per Full Bench at [33] and Fernandes at [48] ([40]). No appealable error exists in Boland J's application of principle. This is confirmed by Inspector Barry Childs v Kirk Group Holdings Pty Limited & Anor [2005] NSWIRComm 1 per Walton J, Vice-President at [60] - [61]. 42 As no latent or patent error exists, the respondents' primary submission was the sentence appeal should be dismissed with costs to the respondent. 43 The respondent submitted if the appellant however does establish error, this Court should exercise its overriding discretion and refuse to intervene and the appeal should not be allowed (WorkCover Authority of New South Wales (Inspector Dowling) v Bournelis and Another (2003) 124 IR 447 per Wright J, President, Walton J, Vice President and Marks J at [18]; see also WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 at [53]). 44 If successful on appeal, the respondent submitted the Court must recognise the element of double jeopardy involved in the respondent twice standing for sentence by imposing a sentence which is less than the sentence it considers should have been imposed at first instance. This has been described as "the least sentence which could properly have been imposed …at first instance": (R v Rose (unreported, NSW Court of Criminal Appeal, 23 May 1996), as "one which is at the bottom of the range"; R v Giam (No 2) [1999] NSWCCA 378; (1999) 109 A Crim R 348 at [28] and one "towards the lower end of the range of available sentences"; Dinsdale v The Queen (2000) 202 CLR 321 at [62] per Kirby J; or the "minimum sentence which should have been imposed at first instance"; and R v Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152 at 204 [206] per Hulme J). Appellant's Submissions Ground 4 - costs 45 The fourth ground of the appeal relates to the costs order given. After various issues were raised by the Full Bench as to this matter, a number of further submissions were filed by both parties. 46 The appellant submitted his Honour erred by exercising his discretion to award to the prosecution partial costs based upon considerations concerning the respondent's financial position. 47 Boland J ordered the respondent to pay 20 percent of the prosecutor's costs at first instance. The appellant submitted the prosecutor is a public official invoking socially beneficial legislation and his Honour erred in departing from the usual practice of awarding costs to the successful prosecutor. 48 The appellant submitted the trial judge, in determining an appropriate fine and appropriate costs, double counted the relevant subjective factors, including, in particular the respondent's relative impecuniosity. 49 The appellant submitted the principles in respect of the award of costs to successful defendants are equally applicable to the award of costs to successful prosecutors. Reliance is placed upon the principles enunciated in WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors (2001) 110 IR 351 at [59]. 50 The appellant submitted the prosecutor has a responsibility to conduct a full investigation of matters and to institute such charges as might appropriately be brought. 51 The appellant submitted the respondent through submissions sought to constrain the appellant from pressing his appeal on the order as to costs given the way the appellant conducted its case before the primary judge. The appellant submitted it sought costs in the usual way and as the issue was clearly joined, it is entitled to appeal and was under no obligation to respond to the respondent's submissions further, which submissions would have been in reply. 52 The appellant submitted costs should have been awarded in accordance with the settled principles namely, given a plea was entered and penalty was imposed, costs be awarded to the prosecution. Settled principles include consideration of any statutory basis for the award of costs. This basis was considered in Plastachem as being s 14 of the Supreme Court (Summary Jurisdiction) Act 1967, which has since been replaced by s 253 of the Criminal Procedure Act 1986. Subsection 253(2), the appellant submitted, provides for the preliminary steps of agreement or assessment in accordance with the rules of the court before any quantum of costs ordered payable. 53 The appellant relied on the High Court judgment in Latoudis v Casey (1990) 170 CLR 534 where there was placed emphasis on the need, when there was an unqualified discretion conferred by statute, such as that as to award costs, to be exercised in the "ordinary" case in accordance with the principles laid down by appellate courts (Dawson J at 558, McHugh J at 569). The appellant submitted there was nothing in the matter before Boland J so as to take it out of the "ordinary" costs order (McHugh J in Latoudis at 566 - 567). 54 Further, the appellant submitted, it was open to a respondent to seek any fine imposed be paid by instalments, upon an application to the Registrar of the court and hardship ameliorating procedures available under the Fines Act 1996 were also available. Therefore, the appellant submitted his Honour erred as to the costs order given. Respondent's submissions ground 4 - Costs 55 The respondent submitted the appellant before the primary judge did not oppose in written or oral submissions the proposition of the respondent that in all the circumstances it was open for Boland J to exercise the statutory costs discretion to allow a just outcome and order the prosecution to bear the entire or a substantial portion of its costs. 56 It was submitted that the appellant is bound by the conduct of his case. The respondent submitted Boland J's order for costs is not an order where it is appropriate for an appellate court to interfere with the exercise of discretion by a judge. 57 The appellant called no evidence on costs before the primary judge except to make the application for the usual order. However, the respondent going the respondent's impecuniosity adduced extensive affidavit and documentary evidence. The appellant cross examined the respondent as to his financials. The respondent made written and oral submissions as to costs. 58 The respondent submitted the primary judge exercised his discretion and ordered the appellant bear a substantial proportion of the costs. This was an order based on the evidence placed before the court. 59 The respondent submitted there could be no appealable error as the primary judge had before him the merits of the application for such a costs order: Caltex Refining Co Pty Ltd v MSB (1995) 36 NSWLR 552 at 565 per Sully J, with whom Grove and Studdert JJ agreed. 60 The respondent submitted an appeal is not an appropriate forum for the appellant to attempt to remedy the deficiencies in the case that was mounted before a primary judge (Metwally v University of Wollongong (1985) 60 ALR 68 at 71 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ). 61 The obligation on the primary judge was, the respondent submitted, in exercising his power to award costs, to make an order which is just, reasonable and fair in all the circumstances of the case (see Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 156, Pearlman J). The "usual rule" is not an order, the making of which is dictated by the application of a fixed rule to the facts on which its operation depends (Norbis). The court does not simply apply an inflexible rule (Latoudis per Toohey J at 565). Boland J had a discretion and justly used it as his reasoning revealed. 62 The respondent submitted that, under common law principles, an inquiry as to the means of the respondent is a necessity when an order for costs is made. The respondent submitted under the provisions of s 6 of the Fines Act, Boland J had a discretion to fix the amount of any fine. Relevantly, a "fine" is defined to include any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer. The second statutory criteria of s 6 of the Fines Act, such other matters as, in the opinion of the court, are relevant to the fixing of costs (Friends of Hinchinbrook Society Inc v Minister for the Environment & Ors (No 3) (1997) 77 FCR 153 at 188). 63 Double counting was permitted and required by legislative requirement and intent for orders as to costs. "Means to pay" is also an existing common law factor as well as a statutory factor properly taken into account in determining a sentence the respondent submitted. In R v Rahme (1989) 43 A Crim R 81 at 86 it was stated a court generally should not impose a fine which the offender does not have the means to pay. If the sentencing court is satisfied that the offender would be unable to pay the amount of fine determined it might reduce it to take account of the offender's means and impecuniosity. In Rahme, means to pay was used to discount both types of punishment, namely, imprisonment by way of periodic detention instead of full time custody and the fine imposed. 64 Further the respondent submitted under s 6(a) of the Fines Act 1996 the court is required to consider such information regarding the means of the accused, the Full Bench in Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61 at [13] referred with approval to the application of ss 3A, 21A, 22, 22A and 23 of the Crimes (Sentencing Procedure) Act in relation to sentencing practice established by this Court under the Occupational Health and Safety Act. 65 It was contended that the statute directed regard be had to an indeterminate category of such other matters as the decision-maker deems relevant. Section 6 of the Fines Act leaves open to the court what weight or influence each of the particular matters is to have in the decision to be made. 66 As to costs sought in summary proceedings, it had to be expected a broad axe be wielded. As the appellant elected to adduce no evidence as to the costs which were sought he is bound by how he conducted his case before the primary judge (Anderson v Glen Ewin & Staff Pty Ltd (1985) 41 SASR 42). The Court should be mindful that only in rare cases will it be appropriate for an appellate court to interfere with the exercise by a judge of a discretion in respect of costs (Grant James Woodbridge v Comcare No. NG577 of 1994 FED No. 98/95 per Wilcox, Einfeld and Lee JJ at [12]). No factor(s) identified by the appellant take this present appeal outside that principle. 67 Whilst the present case includes "unusual" circumstances, it was submitted it does not mean the costs order of Boland J was unusual. Rather, Boland J exercised a discretion conveyed by statute in conformity with accepted costs principles and practice and therefore conducted an inquiry in the usual manner in which a primary judge acts. It is not enough to overturn the order simply because the appellate court considers that if it had been in the position of the primary judge, the appellate court would have taken a different course (House v The King). 68 In relation to means to pay it was submitted that the appellant erroneously attempted to erect an exceptional circumstances test in order for a sentencing judge to vary the usual rule that costs follow the event. This would require the application of a fixed rule. That would not equate to the exercise of a judicial discretion (Norbis at 518 - 519). Such a test is not found in either the express terms or legislative purposes of the relevant provisions in the Crimes (Sentencing Procedure) Act or the Fines Act. Nor is it consistent with the rule of law found in settled principle (McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353 at [23] - [25] distilled principles on the application of s 6 in the Fines Act). 69 The authorities referred to by the appellant as supporting "the usual practice" do not illuminate the path where there is a means to pay argument available under both existing common law factors and under s 6(a) of the Fines Act to properly determine both the fine and costs the respondent submitted. Such a means to pay argument is a stand-alone consideration and is different to considering circumstances "connected with the charge or the conduct of the proceeding." Further, no suggestion is made that those authorities considered what constituted other matters under s 6(b) of the Fines Act. Moreover, the plea of guilty entered at the earliest available opportunity was in any event a matter connected with "the conduct of the proceeding", more so when there are two co-defendants and the failure to provide a breakdown of costs prevented discerning if there were common costs that should be apportioned. 70 The respondent submitted in light of the way this case was conducted before the primary judge by the appellant, it is untenable for the appellant to argue a sentencing judge should arrive initially at a combined total of costs and fine and, if it is disproportionate, the court may then discount the total. 71 Further, the respondent submitted it is not open for the appellant to argue the prosecution was not given a proper opportunity to be heard. 72 The appellant submitted that costs "were assessed by the prosecution in the appeal hearing in the sum of $10,000". Whilst the figure was initially provided in answer to a question from the Full Bench, it was submitted the real import of the answer is that there was no reason before the primary judge that the requisite breakdown was not made available by the appellant. This was particularly the case after clear notice of the means to pay evidence was given to the prosecutor by the defendant three days before the hearing commenced, as was the defendant's submissions before the costs submissions were heard by Boland J. 73 The principle is that for a cost application made after criminal summary hearings, there must be provided an adequate summary and broad costing of a solicitor's work done and counsel's fees actually incurred (Anderson). This was a course followed by the respondent but not by the appellant. 74 The respondent submitted it does not seek to characterise its argument as there must be one total figure ordered as the fine and costs. Again, this would involve the application of a fixed rule and not equate to the exercise of a judicial discretion. In the proper exercise of the costs discretion, a sentencing judge might elect to take such an approach. On the other hand, the approach to totality in Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 at [72] - [78] might be applied, in that the sentencing judge should determine separately an appropriate penalty for the offence and separately an appropriate amount of fine, before applying the principle of totality in determining whether to reduce those amounts further. 75 Procedural fairness requires a party be given a reasonable opportunity to present its case and not that the Tribunal ensure a party take the best advantage of the opportunity to which it is entitled. It is always relevant to inquire whether the party or his legal representative should reasonably have apprehended the issue was or might become a live issue (re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia & Ors (1989) 27 IR 278 at 289 per Gaudron J). 76 The respondent submitted there has been no application to adduce new evidence on appeal and any such application is opposed. It is now too late to provide on appeal a break up that was never provided before the primary judge. 77 The judge dealing fairly with the application for an order, is both entitled and bound to receive any relevant evidence presented in admissible form by any party wishing to be heard as to the terms of a final costs order (Caltex Refining Co Pty Ltd v MSB (1995) 36 NSWLR 552 per Sully J, with whom Grove and Studdert JJ agreed at 564.2). 78 Reliance is also placed on NSW Crime Commission v Fleming and Heal (1991) 24 NSWLR 116, the question being what constituted "reasonable legal expenses" within the meaning of s 10(5)(b) of the Drug Trafficking (Civil Proceedings) Act 1990 (NSW) and Emanuele v Dau (1996) 87 A Crim R 417 at 423 - 424. 79 The respondent submitted the Full Bench is not entitled to proceed "... in the light of collective experience of the Bench as to the quantum of costs for similar matters …". 80 The appellant provided no authority where this Court has made such determinations. It is properly a matter of evidence given "orally with documents, invoices and receipts or by affidavit" (Dau). The respondent submitted costs in the appeal should be ordered in favour of the respondent in conformity with the costs orders made in Powercoal (No. 3) at [170]. Appellant's submissions in reply 81 The appellant rejected the submission by the respondent asserting that in the exercise of the Court's discretion, a court is entitled to take account of the fact, at first instance, the Crown acquiesced in the course which was taken by the sentencing judge (R v Allpass (1993) 72 A Crim R 561 at 565). Further, the appellant submitted it did not acquiesce in any "course which was taken by the sentencing judge" such as to prevent this ground being argued. 82 Even though simultaneous prosecutions have been launched against other alleged co-defendants, no convictions and hence no sentences have been entered. Parity therefore cannot be an issue. 83 The appellant submitted those principles included the statutory basis for the award of such costs which was made clear in WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors (2001) 110 IR 351 as being s 14 of the Supreme Court (Summary Jurisdiction) Act 1967, which has since been replaced by s 253 of the Criminal Procedure Act 1986. Subsection 253(2) provides for the preliminary steps of agreement or assessment in accordance with the rules before any quantum of costs is ordered payable. 84 The appellant submitted although the High Court was divided in Latoudis, all the judges emphasised the need for an unqualified discretion conferred by statute, such as to award costs, to be exercised in the ordinary case in accordance with the principles laid down by appellate courts (per Dawson J at 558, and McHugh J at 569). 85 The appellant relies upon the findings of McHugh J in Latoudis (at 566 - 567, 566 and 569) and submitted this observation applies equally to successful prosecutors as to successful respondents. Respondent's supplementary submissions re sentencing appeal (especially ground 2) and costs 86 The respondent filed further submissions on penalty and not submissions only on costs as directed by the Full Bench. The respondent submitted the principles applicable to a consideration in cases involving death and serious injury are well settled by the following authorities: Powercoal at [31] - [33]; Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259 at [8] and [86] - [87]; Maddaford at [17] - [19] and [23]; and Coombs v Patrick Stevedores Holdings Pty Ltd [2005] NSWIRComm 56 at [81]. 87 The respondent distinguished the reasoning in Patrick, thus: (1) The actual serious injury or the potential to result in serious injury, is not a consideration in which it was considered in Patrick sentence. The relevant principle is the gravity of the consequences of the incident. The damage or injury, does not, of itself, dictate the seriousness of the offence or the level of penalty ( Capral at [94] as approved of in Maddaford at [17]). (2) The Patrick sentence purports to introduce a consideration such as "… the loss of limbs or vital organs and almost no evidence of full or partial permanent incapacity." ( Robert Darcy Coombs v Patrick Stevedores Holdings Pty Ltd [2004] NSWIRComm 77 ( " Patrick liability" ) at [76], [80] - [100], [129] – [141], [154], [156], [368]- [370] and Patrick sentence at [17] – [19], [48)). The risk of the loss of life as referred to in Patrick sentence is the consideration consistent with the above four Full Bench authorities (see for example Powercoal at [32]). 88 The respondent submitted, the respondent's omissions did not involve premeditation and planning as "There was a known and perceived danger, unchecked, and left in place" (cf WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Waugh & Thora Saw Milling Pty (1995) 59 IR 89 at 97 per the Full Industrial Court cited, with approval, what was said in Inspector Hannah v Wonar Pty Limited (unreported, per Fisher CJ, Glynn and Cullen JJ, at pp 8 - 9). Putting it another way, the respondent did not appreciate fully the rightness or wrongness of the particular act before the charge date commenced (Way at [86]). 89 The respondent submitted there is not in existence the aggravating feature of a failure to heed warnings (R v Rollco Screw and Rivet Co Ltd & Others [1999] 2 Cr.App.R.(S.) 436 at 440, citing with approval F Howe & Sons (Engineers) Ltd [1999] 2 Cr.App.R.(S.) 37) and this is not a case of blatant, wilful or reckless disregard of obligations under the Act (WorkCover Authority of New South Wales (Inspector Gordon) v Shortland Electricity, (unreported, Marks J, 5 May 1995, at p 12)). Further, there is no evidence of a seriously aggravating feature that the respondent has deliberately profited financially from a failure to take steps or specifically run a risk to save money (Rollco Screw at 439 - 440, citing with approval Howe). 90 The respondent submitted the appellant's contention the issue before his Honour was not quantum is wrong due to either or both of the following contentions: (a) The respondent put the appellant on notice that he relied upon his lack of means to pay. The respondent submitted as to the first contention, the respondent relies upon the common law principles as adumbrated in Latoudis McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353; the WA authorities and the UK authorities; as well as s 6 of the Fines Act 1996; Rahme (1989) 43 A Crim R 81; and Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317; and (b) The correct construction and application of ss 3(1), 4 and 253 of the Criminal Procedure Act 1986 (" CP Act "), s 202 of the Legal Profession Act 1987 (" LP Act ") and the rules of this Commission. As to s202 the respondent relies upon: (i) Collison v Williams (1998) 84 IR 101 per Marks J at 108.4 and Campbell J in Leamey v Heath & Anor [2001] NSWSC 1095 (22 November 2001) at [12] and (ii) the expressed reservations about an appropriate order which will enable the quantum of costs to be fixed stated by Marks J in WorkCover Authority Of New South Wales (Inspector Fielding) v Capral Aluminium Limited [1999] NSWIRComm 48 (23 February 1999). Appellant's Further Submissions in reply - costs 91 The appellant reiterated the usual order in this jurisdiction in prosecutions under the Occupation Health and Safety Act is that costs follow the event and orders are made for the successful party, prosecutor or respondent, to recover 100 percent of costs on a party/party basis. Such orders, it submitted, are made without argument. Recent authority where the court heard submissions requesting a variation to the normal costs order and which the appellant now relies upon are as follows: (a) Patrick sentence , at [113]. His Honour in awarding costs to the successful prosecutor, stated: '… ordinarily, in this criminal jurisdiction of the Court, costs will follow the event. In the circumstances of this case, I do not see any reason to depart from that approach'; (b) Powercoal (No. 3) , at [162], The Full Bench stated: '… we do not intend to exercise our statutory discretion to vary the general position that an award for costs should follow the event; and (c) WorkCover Authority of NSW (Insp Keenan) v Lucon (Australia) Pty Ltd (No. 2) (2003) 124 IR 459, at [24]. The Full Bench stated: 'There is no basis for departure from the usual approach to costs'. 92 The appellant submitted where this usual practice has been departed from and costs have been apportioned in some way because of the conduct of the hearing and there was only partial success of the respondent (see WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 277; McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 and O'Sullivan v Crown in Right of the State of New South Wales (Dept of Education and Training) (2003) 128 IR 15). 93 The appellant further submitted as to the authorities relied upon by the respondent as follows: (a) Morgan v Biddle (unreported, Supreme Court of Western Australia, Wallace J, Supreme Court Library No 2845 at p 2) was a case where the appellate court agreed with the magistrate's assessment of the offences as being trivial in nature and committed in extenuating circumstances; (b) Flatow v Mullins (unreported, Supreme Court of Western Australia, Smith J, Supreme Court Library No 5207, 1 February 1984) at [3] supports the appellant's case; (c) in Thomas v Schwager (unreported, Supreme Court of Western Australia, Parker J, Supreme Court Library No 970719) at [495], Parker J followed the dicta of Smith J in Flatow v Mullins that the total amount of the fine and full costs would be "totally out of proportion to the offence"; and (d) in Koenig v Fraser [2000] WASCA 262 at [12] it was said by Scott J that either the fine or the costs should be scaled down in an appropriate case. 94 The appellant resisted the submissions of the respondent that an order under s 253(2)(b) of the Criminal Procedure Act is unenforceable. The appellant submitted this issue should be determined by this Court if it determines to award costs to the appellant for the appeal. Only then must it consider the effect of s 253(2)(b). If the Court decides to award costs to the appellant only for the proceedings before Boland J, they were assessed by the prosecution in the appeal hearing in the sum of $10,000. The Court can proceed upon the basis of such an assessment given the collective experience of the Bench as to costs for similar matters brought in the Commission in Court Session. 95 If the Court considered it necessary to consider the effect of s 253 of the Criminal Procedure Act, the appellant submitted s 253(2)(b) is triggered when there is no agreement between the prosecutor and the respondent. It requires costs to be determined in accordance with the Industrial Relations Commission Rules 1996. Subsection 253(3) states the court may adopt all or any specified provisions of Division 6 of Part 11 of the Legal Profession Act 1987. No rule within the Industrial Relations Commission Rules has been made for the purposes of s 253. However, it is submitted by virtue of s 253(2)(b), Rule 204 applies. However, the Legal Profession Regulation 2002 contains detailed provisions for the assessment of costs in Part 10. It is submitted these would apply, if the process has to go that far. Section 202 of the Legal Profession Act is therefore irrelevant and s 202(3) does not apply. No application or direction under s 202 of the Legal Profession Act is sought. An order is sought under s 253 of the Criminal Procedure Act. 96 The appellant summarised its submissions thus: (i) The usual course entitled to be relied upon by parties in litigation of occupational health and safety charges in this Court is that costs will follow the event, i.e. by an award to the successful party of 100% of its costs assessed on a party/party basis; (ii) It would only be in exceptional circumstances that that would not apply; (iii) Generally, the full amount of costs will be awarded to the successful party, unless there is a reason to discount them by some proportion based on something connected with the charge or the conduct of the proceedings; and (iv) If in sentencing a convicted defendant the combined total of the costs and the fine arrived at initially by the judge upon a judicial exercise of his or her discretion appears disproportionate to the objective circumstances of the offence and the subjective circumstances of the offender, which should only occur in exceptional circumstances, the court may upon appropriate judicial reasoning fully exposed in the judgment, and, after giving the prosecution a proper opportunity to be heard, discount that total. 97 The appellant submitted his Honour erred in awarding costs without hearing the prosecution and twice taking into account the same subjective features. Respondents reply to Appellant's Further Submissions in reply 98 The respondent relies upon the legislation and stated authorities to support its submission double counting was permitted: s 21A of the Crimes (Sentencing Procedure) Act 1999; s 21A; and s 6 of the Fines Act; R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [103]; Regina v T (unreported, Court of Criminal Appeal, 15 March 1990); R v Rahme (1989) 43 A Crim R 81 at 86; Hinchinbrook per Hill J at 188; and Powercoal (No 3) at [13]. 99 As to the way in which costs should be quantified, the respondent relied upon Emanuele v Dau (1996) 87 A Crim R 417 at 423 - 424; NSW Crime Commission v Fleming and Heal (1991) 24 NSWLR 116, and State Crime Commission v Heal &Fleming, unreported, 21 December 1992. Principles 100 The approach to be taken on prosecution appeals against sentence was recently considered by a Full Bench in Weathertex at [45] - [55]. The Full Bench in that case observed: [45] The appeal is brought pursuant to s 196 of the Industrial Relations Act and s 5D of the Criminal Appeal Act. Section 5D of the Criminal Appeal Act provides, as modified by s196(3) of the Industrial Relations Act 1996, the Full Bench of the Court "may, in its discretion vary the sentence and impose such sentence as to the said court may seem proper." Further, the prosecutor has a right to appeal and is not required to seek leave. [46] Thus, although under s 5D, leave to appeal is not required, any re-examination of penalty must be approached with caution: Inspector Ian Batty v Graincorp Operations Limited [2002] NSWIRComm 49 at [4]. [47] Generally speaking, an appellate court must identify a clear and demonstrable error at first instance: see Dinsdale v The Queen (2000) 202 CLR 321 at 340 - 341 ( Kirby J) and 330 ( Gummow and Gaudron JJ); Wong v R (2001) 185 ALR 233 at 263, Batty v Graincorp at [4] and Inspector Ian Lancaster v Burnshaw Constructions Pty Ltd [2002] NSWIRComm 319 at [6] [48] There are some differences in emphasis as to the principle of restraint in Crown appeals. See for example the comments of Kirby J in Dinsdale v The Queen at 341 - 342 and in Wong v R at 263 where His Honour refers to the principle of restraint as being well established. This may be compared with the joint judgment of Gleeson CJ and Hayne J in Dinsdale v The Queen at 325[4] where their Honours indicate that the principles in House v The King (1936) 55 CLR 499 apply "both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness". We refer also to the summary of principles set out by the New South Wales Court of Criminal Appeal in R v Allpass and considered in Wright J's judgment in WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Limited (1999) 92 IR 392 at 393-394. [49] In Mayo-Ramsay v Allen Taylor , the Court was divided on the nature of error that would warrant appellate intervention in prosecution appeals. Hungerford and Peterson JJ at 402 held that the relevant test was whether the error of principle amounted to a "circumstance which is sufficiently rare and exceptional as to warrant intervention in the limited circumstances available on appeal". Wright J, dissented, holding that the majority view was too restrictive, and that the relevant consideration was whether "there is an error of principle ... manifested in either error on the face of the judgment on sentence or which can be inferred from the manifest inadequacy of the sentence imposed" whilst emphasising the appeal court's "overriding discretion not to increase the sentence [and] giving appropriate weight to the significance of the circumstance of double jeopardy generated by a Crown appeal" (at 393, 395). [50] In WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 706, the Full Bench noted the division of opinion in Mayo-Ramsay v Allen Taylor but found it unnecessary to resolve the different approaches for the disposition of the appeal. However, the Full Bench referred to the principles stated by Barwick CJ in Griffiths v The Queen at 310 (which include that such appeals should be a rarity) and the principles as to Crown appeals set out in R v Allpass at 562 - 563. [51] 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. [52] 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. [53] 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 . [54] The importance of the principle of double jeopardy particularly in re-sentencing has been acknowledged and applied by this Court on numerous occasions. See, for example, Batty v Graincorp at [5], where the Full Bench dealt with a Crown appeal against inadequacy of sentence. Patton v Fletcher Construction Australia Limited (No 2) [2003] NSWIRComm 94 at [3], [8]; Bultitude v Grice (No. 2) [2002] NSWIRComm 234 at [7]; Legge v Coffey (No 3) [2002] NSWIRComm 30 at [7]; Vierow v Ridge Consolidated Pty Ltd (No 3) [2002] NSWIRComm 345 [5]; Profab [41] - [45], Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at [17] are examples of cases of Crown appeals against acquittal where the principle has been applied. [55] It is well established that an appellate court in re-sentencing, or deciding whether to re-sentence an offender, should have regard to the principle of double jeopardy. The application of the principle of double jeopardy provides for an imposition of a sentence that is somewhat less than the sentence the appellate court considers should have been imposed at first instance ( R v Allpass at 562), or at the lower range of available sentences: Dinsdale v The Queen at 341; Profab Industries Pty Ltd. 101 We respectfully adopt this approach (see also Powercoal; Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259; Inspector Gregory Maddaford v Graham Gerard Coleman and Anor [2004] NSWIRComm 317; WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323; and WorkCover Authority of New South Wales (Inspector Mansell) v Chen (2004) 137 IR 33). Consideration 102 The appellant re-focused the appeal relying essentially upon two grounds: that the penalty was manifestly inadequate and the costs order was against accepted principles. In our consideration of both the penalty and costs orders of Boland J, a number of statutory provisions become relevant and it is appropriate to recite them. The Fines Act 1996 103 The relevant provisions of the Fines Act provide: 3 Definitions (1) In this Act: "fine" —see section 4. "function" includes a power, authority or duty. "law enforcement officer" means a person exercising law enforcement functions in the official capacity of any of the following: (d) a public servant, (e) an officer or employee of a statutory body representing the Crown, 4 Meaning of "fine" (1) For the purposes of this Act, a "fine" is: (c) any court fees or charges payable by a person under an order made by a court in proceedings for an offence or ... (e) any witnesses' expenses payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer, or (f) any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer, or … (3) In this section, "proceedings for an offence" includes: (b) proceedings on appeal in respect of proceedings for an offence. ... 6 Consideration of accused means to pay (cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A) In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. Criminal Procedure Act 1986 104 The relevant provisions of the Criminal Procedure Act provide: 253 Court may order payment of costs (2) The costs payable by a prosecutor or accused person in accordance with a direction under this section are to be determined: (a) by agreement between the prosecutor and accused person, and (b) if no such agreement can be reached, in accordance with the rules. Crimes (Sentencing Procedure) Act 1999 105 The relevant provisions of the Crimes (Sentencing Procedure) Act provide: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: ... (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. Industrial Relations Act 1996 106 The relevant provisions of the Industrial Relations Act 1996 provide: 181 Costs (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. (2) ... (3) The Commission in Court Session may not award costs in proceedings for a contravention of a dispute order or in proceedings under Division 2 of Part 4 of Chapter 5 (Rules of industrial organisations). (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal. Consideration - penalty 107 Boland J fixed a penalty of $2600. His reasoning revealed a consideration of the objective seriousness of the offence and subjective features and he included in both considerations the financial hardship of the respondent. The maximum penalty for the offence was $55,000. 108 The principles applicable to the application of s 6 of the Fines Act when consideration is given to fixing a penalty for a conviction of a criminal offence were discussed in McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353 at [24]. It was relevantly held: A defendant who wishes to rely on the provisions of s 6 to temper the amount of any monetary penalty bears the onus of putting such evidence in support as is appropriate before the court and bears the onus on the basis of the balance of probabilities of satisfying the court as to the truth of such evidence and its relevance to the fixing of penalty A defendant in a criminal case therefore need only prove mitigating circumstances on the probabilities to satisfy the court as to the truth of such evidence and its relevance to the fixing of penalty. 109 The evidence before Boland J on this issue was very detailed. The respondent mounted an exceptional and well documented case before his Honour on the issue of his financial circumstances. Hardship to the family was a factor properly taken into account by Boland J in determining the sentence. The evidence was that a significant penalty was likely to lead to the respondent having to sell the family home. The respondent had a wife and two young children to support. We accept these circumstances could be held to be an exceptional hardship and note what was said by Hill J in Hinchinbrook (at 188) : There is always a difficulty when a statute provides that a decision-maker shall "have regard to" a particular matter or series of matters. While it is clear that what is meant is that the decision-maker must apply his mind to the matter or matters stipulated, and "take them into account and give weight to them" : cf R v Hunt; Ex parte Lean Investments Pty Ltd (1979) 25 ALR 497 at 504 per Mason J, it leaves it open what weight or influence each of the particular matters is to have in the decision to be made: cf Windeyer J in Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365 at 384. Sometimes the statute will, as was the case in Giris , direct regard be had to an indeterminate category of such other matters as the decision-maker may regard as relevant. 110 Boland J had a discretion in relation to penalty and it was proper he had regard to the evidence placed before him as to the financial situation of the respondent. However, the penalty fixed must ultimately reflect the objective seriousness of the offence and must not be inconsistent with the criminality of the offence. His Honour made a finding the offence was not in the "serious class" but rejected that it was at the "lowest end of the range of seriousness". 111 In our view the penalty imposed was manifestly inadequate notwithstanding our acceptance of the approach taken by his Honour to the issue of the respondent's means. The appeal should be upheld (Dinsdale v The Queen (2000) 202 CLR 321, Wall (per Wood CJ at CL with whom Meagher JA and Bell J agreed). 112 In coming to this conclusion we have taken into account concessions made by the appellant at first instance and on appeal and we accept in broad terms the criticisms advanced by Mr Docking as to the application of concepts of "sentencing ranges" in the context of this matter. 113 Having reached the conclusion we have, it is not necessary to identify specific error. We find his Honour's judgment generally applies the orthodox principles of sentencing and that his Honour's findings were open to him. Nevertheless, it is appropriate to identify that his Honour fell into error in two respects: (i) We do not consider his Honour should have reduced the consideration as to specific deterrence to a negligible level. The evidence revealed the business conducted by the respondent to the appeal was ongoing and as a matter of principle an element of specific deterrence should feature therefore in the sentencing ( Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610); and (ii) The level of penalty applied by his Honour reflected a significant discount as a result of the operation of s 6 of the Fines Act 1996. Notwithstanding the very thorough case put before the primary judge on means and the respondent's financial circumstances, is our view his Honour gave insufficient weight to the objective seriousness of the offence which was itself discounted too greatly by his Honour. 114 We have therefore concluded the penalty applied was manifestly inadequate having particular regard to the objective seriousness of the offence. 115 In re-sentencing the respondent, the court must have regard to the principles of double jeopardy as discussed by the Full Bench of the Court in Weathertex at [45] - [55]. This would involve the question whether we should exercise our residual discretion not to vary the sentence on appeal although we find it is not appropriate to take such a course in this case. 116 We consider the penalty in this matter should be increased but accept and apply the same discount given by his Honour for subjective matters in the order of 35 percent given the maximum penalty were $55,500. We have also had regard to the issue of the double jeopardy as discussed earlier. The respondent should pay a fine of $9,750. Consideration - costs 117 Boland J ordered that the defendant shall pay 20 percent of the prosecutor's costs of the proceedings in an amount as agreed or, if agreement could not be reached, leave is granted to either party. 118 His Honour came to this conclusion through the following reasoning (at [53]): Having weighed up the objective seriousness of the offence and the relevant subjective factors including, in particular, the defendant's relative impecuniosity, and noting that the purpose of costs is not punishment, I have decided the defendant will pay 20 per cent of the prosecutor's costs. As a consequence of the events of 3 July 2002, which was not all of his own making, the defendant and his young family face a period of quite severe emotional and financial hardship. I can see no point in adding to their difficulties by simply adopting the usual rule that costs follow the event. I do not consider in this case that to do so would be just and reasonable. 119 We should note at this point that we do not accept the respondent's submission that it was not open to the appellant to raise this issue on appeal. 120 The parties have raised the effect of various statutory provisions as they relate to the Commission sitting in Court Session and its power to award costs. The relevant statutory provisions addressed are contained in the Fines Act 1996, the Criminal Procedure Act, the Legal Professional Act and the Industrial Relations Act 1996 as recited above. 121 The appellant puts into contention the correct construction and application of ss 3(1), 4 and s 253 of the Criminal Procedure Act read in conjunction with s 202 of the Legal Professional Act and the associated rules of this Commission or, in the alternative, of the Supreme Court. The respondent to the appeal, in arguing that Boland J made no error in his costs order, relies upon the common law principles as adumbrated in a line of authorities best recited in Latoudis. 122 Relevantly, a "fine" in the Fines Act is defined to include any costs order (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer. 123 The issue before us relates to a costs order for the prosecution. In WorkCover Authority of NSW (Insp Dawson) v Plastachem Pty Ltd & Ors (2001) 110 IR 351, costs were considered in proceedings before the Court Session for breaches of the occupational health and safety legislation. That prosecution was dismissed The court made clear at [48]: In summary criminal proceedings in this Court, it will ordinarily be appropriate to award costs to a defendant against whom a prosecution has failed. Once the legislature abolished the traditional common law rule that the Crown and those who institute summary proceedings neither pay nor receive costs, as it has done by enacting s14 of the Supreme Court (Summary Jurisdiction) Act , the Court must exercise its discretion as to costs in accordance with what is just and reasonable. Where a defendant has secured the dismissal of a criminal charge, it will not generally be just and reasonable to deprive the defendant of an order for costs. 124 In Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96 the Full Bench said at [72]: [Section] 181 of the Industrial Relations Act grants virtually plenary powers to the Commission in Court Session as to costs both at first instance and on appeal (see, as to appeals, s 181(4)) although the power of the Commission, when not sitting in Court Session is significantly limited in dealing with and awarding costs: s 181(2). 125 The appellant contended Boland J in determining an appropriate fine and appropriate costs, double counted relevant subjective factors, including in particular, the respondent's relative impecuniosity. 126 However, it is not in dispute the primary judge holds a very broad discretion to determine any order as to costs. Boland J exercised his discretion but did not follow the usual practice of awarding 100 percent of costs to the prosecution; rather he ordered a payment of 20 percent of the costs. The appellant does not challenge that within its discretion the court can depart from the "usual practice". The "usual approach", the "general position" or "ordinary" approach is that costs will follow the event. 127 We accept the principle to award costs to a successful respondent is equally applicable to the award of costs to successful prosecutors. The Full Bench in Plastachem at [61] held: The appellant [prosecutor] doubtless had a responsibility to conduct a full investigation of the matter and to institute such charges as might appropriately be brought. 128 There has also been judicial consideration of the effect of a legislative provision on cost orders which orders need to be determined by a Court. In Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 156, Pearlman J held at [8]: Despite the excision of the words "just and reasonable" from the amended s52, the Court should, in exercising the power to award costs, make an order which is just, reasonable and fair in all the circumstances of the case. The governing principles for the exercise of the type of discretion which a provision such as s52 confers upon a court is to be found in the leading authority of Latoudis. Those principles are as follows: (1) The discretion is broad and unfettered (at 541); (2) The purpose of a costs order is not to punish the unsuccessful party, but to compensate the successful party (at 567); (3) The discretion must be exercised judicially, that is, for reasons directly connected with the charge or the conduct of the proceedings (at 557, 566, 568). 129 In Latoudis where the High Court considered the power of courts of summary jurisdiction to award costs in favour of a successful respondent the majority held, where a respondent had been successful, it would not generally be just and reasonable to deprive it of an order for costs (per Mason CJ at 542). 130 Addressing the issue raised by the appellant that the respondent gains a double deduction for his plea of impecuniosity if the court takes impecuniosity into account in the setting of costs as well as a penalty for a criminal conviction in the form of a fine, Lord Bingham CJ in R v Northallerton Magistrates' Court; Ex Parte Christopher John Dove [2000] 1 CR App R (S) 136 at [4] held: While there is no requirement that any sum ordered by justices to be paid to a prosecutor by way of costs should stand in any arithmetical relationship to any fine imposed, the costs ordered to be paid should not in the ordinary way be grossly disproportionate to the fine. Justices should ordinarily begin by deciding on the appropriate fine to reflect the criminality of the defendant's offence, always bearing in mind his means and his ability to pay, and then consider what, if any, costs he should be ordered to pay to the prosecutor. If, when the costs sought by the prosecutor are added to the proposed fine, the total exceeds the sum which in the light of the defendant's means and all other relevant circumstances the defendant can reasonably be ordered to pay, it is preferable to achieve an acceptable total by reducing the sum of costs which the defendant is ordered to pay rather than by reducing the fine. A number of Supreme Court authorities have followed this reasoning (see Morgan v Biddle ; Thomas v Schwager and Koenig v Fraser ). 131 In the Supreme Court of Western Australia, Smith J in Flatow v Mullins stated at [3]: But it is equally clear on the authorities that a sentencer should always have regard to the totality of the financial burden suffered by the offender as the result of the offence: see Thomas Principles of Sentencing 2nd Edition at p340. Where the combined total of an appropriate fine and an order to make payment towards the costs of the prosecution constitutes a penalty which is totally out of proportion to the offence it is appropriate to scale down either the fine or the amount of the order to pay prosecution costs. We consider the approach of Lord Bingham preferable to this approach. 132 Section 6 of the Fines Act allows consideration of the financial situation of the respondent in the court's consideration as to the appropriate costs order. Pearlman J reasoned a costs order must be "just and reasonable". Lord Bingham CJ defined the test as an "acceptable total". While the power exists to consider the financial circumstances of a respondent in both penalty and costs the overall result must comply with the test of "just and reasonable". 133 His Honour, in our view, did not fall into error on the issue of costs. In accordance with established principle, the court must make its determination in accordance with s 6 of the Fines Act. The court must also set the appropriate penalty for the offence giving proper weight to the objective seriousness of the offence. The court must then determine the appropriate costs order. Such a consideration, in our view, may also take into account the financial situation of the defendant. In so ordering the court must then determine that the total fine and costs order be an "acceptable total" or as otherwise said "just and reasonable". If the total penalty and costs order is viewed by the court to be excessive the court must make an appropriate adjustment to the costs order. The total must not be disproportionate to the offence. Boland J took into consideration this latter step in his determination as to costs when he stated at [51]: The prosecutor sought costs and a moiety of the fine. The defendant accepted that the usual order as to costs was that the defendant be required to pay the prosecutor's costs in an amount as agreed or assessed. However, it was submitted, costs were ultimately in the Court's discretion and the Court must exercise its discretion as to costs in accordance with what is just and reasonable. 134 In this matter, his Honour's reasoning reveals he was aware of the unusual order he made and also the discretion the court held as to cost orders when he determined there were such exceptional circumstances. In the application of the appropriate principles and in consideration of the new penalty imposed by the Full Bench we find any order as to costs we would award would mirror the order given by Boland J. We will however return to the practical aspects of this issue when we deal with the costs of the appeal. The costs of the appeal 135 The question of the costs of the appeal are not without difficulty. The appellant has succeeded on one ground of appeal but failed on the other. On one view of the circumstances, the appellant should have one half of his costs; on another view there should be no order as to the costs of the appeal. There have been a number of appeal decisions in successful prosecution appeals where no costs order was made. 136 The issue of costs of the appeal is further complicated by the fact that we have found that Boland J did not err in principle or approach when he approached the issue of costs at first instance in the way he did because his Honour in substance had regard to the approach of Lord Bingham in R v Northallerton Magistrates' Court which we have held was appropriate in this case. The effect on appeal of increasing the fine to be imposed is to substantially increase the amount to be paid by the respondent if the costs order of Boland J is left undisturbed. Further, the Full Bench is not aware of the precise effect in monetary terms of the costs order made by Boland J. 137 The difficulty in identifying a fair means of resolving this issue is complicated by the fact that some matters requiring consideration were not raised with the parties because they were not aware of the approach the Full Bench would take on the sentencing part of the appeal. What we are about to say will necessarily be subject to the parties being given the opportunity of being heard on the following approach. 138 We do not consider that in this case the public interest would be served if the total amount to be paid by the respondent was increased beyond the practical effect of the orders made at first instance. The error we have discerned at first instance will be sufficiently dealt with and corrected by the significant increase in the fine imposed. It seems that the practical effect of the appropriate approach in this matter within the constraints of the appeal process might be achieved by the imposition of the increased fine, the setting aside of the costs order at first instance coupled with a direction to the parties that they shall bring in short minutes of costs orders for both the appeal and the proceedings at first instance in such an amount which will result in the respondent being liable (for both the fine and costs) for either $9,750 or for the total sum of penalty and costs awarded at first instance, whichever is the greater amount. We are mindful that in addition to that amount, the respondent will be liable for his own costs of the appeal. 139 The parties should therefore within 21 days file short submissions on the issue of costs having regard to what we have said in para [138] above or file short minutes of order of the costs of the appeal and of the proceedings at first instance in accordance with these reasons. ORDERS 140 We therefore make the following orders in the appeal: 1. The penalty imposed by Boland J ordered on 15 November 2004 is set aside. 2. The respondent to pay a penalty in the sum of $9,750 with a moiety thereof to the appellant. 3. That parties shall, within 21 days, file short submissions on the issue of costs having regard to what is said in para [138] of the reasons in this matter or file short minutes of order of the costs of the appeal and of the proceedings at first instance in accordance with these reasons. 4. The order of Boland J of 15 November 2004 as to costs is stayed pending the operation of order 3. ___________ 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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