Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of NSW (Inspector Mansell) v Robert Josef [2003] NSWIRComm 421 PARTIES : WorkCover Authority of NSW (Inspector Mansell) Robert Josef FILE NUMBER: IRC 5486 IRC 5487 IRC 5488 IRC 5489 of 1999 CORAM: Curtis AJ Occupational Health and Safety Act 1983 WorkCover Legislation Amendment Act 1995 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Interpretation Act 1987 Crimes Legislation Amendment (Sentencing) Act 1999 WorkCover Authority of NSW (Inspector Mansell) v Robert Josef [2003] NSWIRComm 375 R v Kidman (1915) 20 CLR 425 CASES CITED : Siganto v The Queen (1998) 194 CLR 656 R v Pora [2001] 2 NZLR 37 Pearce v The Queen (1998) 194 CLR 610 HEARING DATES: 11/21/2003 EXTEMPORE JUDGMENT DATE : 11/21/2003 PROSECUTOR: Mr M J Joseph SC SOLICITORS: Moray and Agnew LEGAL REPRESENTATIVES: DEFENDANT: MR J R Young of counsel SOLICITORS: James Legal JUDGMENT: - 12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: CURTIS AJ 21 NOVEMBER 2003 MATTER NOS IRC 5486-5489 of 1999 Prosecutions pursuant to sections 50, 15(1) and 16(1) of the Occupational Health and Safety Act 1983 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v ROBERT JOSEF JUDGMENT ON SENTENCE Charge Number 5486 of 1999 1 Mr Robert Josef has been found guilty of contraventions of s15(1) of the Occupational Health and Safety Act 1983. 2 I have canvassed the facts in my reasons for judgment in matter number IRC 5488 of 1999, WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2003] NSWIRComm 375 (29 October 2003). 3 The offence the subject of the present charge is that which occurred between 21 and 24 November 1995, when Mr Begg, under the direction of Josef & Sons Contracting Pty Ltd, applied a pick and excavating bucket from an excavating machine to demolish the walls and foundations of the fish shop within close proximity to a charged gas line. MAXIMUM PENALTY 4 At the time of these offences, s15 of the Occupational Health and Safety Act 1983 provided that the maximum penalty was 250 penalty units, that is, $25,000. Section 4 and clause 2 of Schedule 2 to the WorkCover Legislation Amendment Act 1995 (no 89), which Act commenced on 1 February 1996, increased this penalty to 500 penalty units; that is, $50,000. 5 Clause 10 of Pt 3 to Schedule 8 of that Act provided relevantly as follows: : 10. Alternative convictions (section 15 and section 16). (1) The amendments made to ss 15 and 16 by the amending Act do not apply in respect of proceedings against a person for an offence against sections 15 or 16 that were commenced in a court before the commencement of those amendments. (2) In respect of any proceedings against a person that are commenced in a court on or after the commencement of those amendments, the amendments apply whether the offence is alleged to have been committed before or after the commencement of those amendments. 6 These provisions were considered by Marks J in WorkCover Authority of New South Wales (Inspector May) v Swift Placements Pty Ltd [1999] NSWIRComm 407 on 9 September 1999. His Honour there held that the amendments operated retrospectively so that, on the face of it, Mr Josef is subject to the greater penalty; that is, $50,000. 7 On 3 April 2000 the Crimes (Sentencing Procedure) Act 1999 (no 92) commenced. This Act provided relevantly as follows: Section 19 Effect of alterations in penalties. (1) if an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty. (2)... (3)... 8 A similar provision formerly appeared as s55 in Pt 9 of the Interpretation Act 1987. That part was repealed by clause 4.33.2 of Schedule 4 to the Crimes Legislation Amendment (Sentencing) Act 1999 (no 94), which Act commenced on 3 April 2000. 9 Section 5 of the Interpretation Act 1987 provides relevantly as follows: (1) this Act applies to all Acts and instruments (including this Act) whether enacted or made before or after the commencement of this Act. (2) this Act applies to an Act or instrument except as so far as the contrary intention appears in this Act or in the Act or instrument concerned. 10 No such provision appears in the Crimes (Sentencing Procedure) Act 1999, which contains s19. 11 The defendant argues that, in consequence of these legislative changes, any contrary intention manifest in the WorkCover Legislation Amendment Act 1995, pursuant to which the increased penalty was given retrospective operation, is negated by the implacable terms of s19. 12 This submission is shortly answered by again calling in aid the presumption against retrospective operation of statutes. It is within the power of the legislature to retrospectively punish conduct permissible at the time of the activity (R v Kidman (1915) 20 CLR 425). Given sufficient clarity of intention, the legislature may increase the penalty for past offences before trial (Siganto v The Queen (1998) 194 CLR 656). 13 The retrospective operation of s4 of the WorkCover Legislation Amendment Act 1995 was within statutory power and the maximum penalty was fixed by that legislation before the enactment of s19 of the Crimes (Sentencing Procedure) Act 1999. 14 Section 19 does not purport to apply where an Act or statutory rule has increased a penalty prior to the commencement date of that Act. The Act does not purport to have retrospective operation upon the law as it stood as at the date of its commencement. 15 Section 19, in any event, must yield to the statutory language of earlier or later Acts. It remains within the power of the legislature to provide in clear express terms that a penalty for a particular crime has retrospectively been increased. Nothing has been changed by the deletion of the provision from the Interpretation Act and its inclusion in the Crimes (Sentencing Procedure) Act 16 This prosecution was brought on 12 October 1999 before the Crimes (Sentencing Procedure) Act 1999 came into force on 3 April 2000. The penalty to which the defendant is subject, pursuant to the clear expressed intention of parliament, is $50,000. 17 Mr Young for the defendants has submitted that the statutory provisions lack sufficient clarity, and an alternative construction consistent with the international obligations should be preferred. He refers specifically to article 15(1) of the International Covenant on Civil and Political Rights 1966 which provides that "nor shall a heavier penalty be imposed than the one that was applicable at the time when the offence was committed" and relies upon the New Zealand authority of R v Pora [2001] 2 NZLR 37. I can see no ambiguity or lack of clarity. The language of the 1995 Act is plain. 18 An alternative submission is made by Mr Young. He says the offence of which Mr Josef stands convicted is an offence constituted by s50 of the Occupational Health and Safety Act 1983 and that that offence was not subject to any retrospective alteration in penalty. 19 I record this submission but can do no more than state that the offence of which Mr Robert Josef stands convicted is an offence against s15 of the Act. He is deemed by s50 to have contravened s15, and s15 contains its own penalty. It is that penalty to which he is subject. 20 I conclude that the maximum penalty applicable is $50,000. OBJECTIVE FEATURES OF THE OFFENCE 21 The objective quality of any offence is to be measured by the gravity of the risk to the health and safety of employees, and the culpability of the defendant. Culpability is measured by the extent to which the risk was foreseeable and the ease with which the defendant may have obviated that risk had he so chosen, that is, the extent to which he departed from the standards of a reasonable person. It cannot be doubted that, as a consequence of this offence, and foreseeably so, two persons have suffered an awful death from burns. At least one other person has been maimed. No consequences could be graver. 22 The culpability of the defendant Mr Robert Josef upon the facts before me is equally grave. The danger inherent in the use of heavy excavating machines in and around a charged gas line is blindingly obvious. The measures by which the danger could have been obviated were tragically simple. It only required that the gas line be identified as to its route, which was no more than a foot or two below the surface, and traced to a point remote from the excavation site where it could simply have been cut at no great expense. 23 I conclude that, objectively, the gravity of this offence is of the most extreme order. GENERAL DETERRENCE 24 The call upon a general deterrent is striking. This is an industry in which the gravity and frequency of injuries are reflected in the highest workers' compensation premiums charged. It is necessary that the strongest message be sent to this industry as a whole that such conduct as has been apparent in the acts and omissions leading to these tragic events will not be countenanced. SPECIFIC DETERRENCE 25 Mr Robert Josef has failed to convince me of his appreciation of the gravity of his conduct. He continues to carry out activities in excavation and demolition. He must be deterred from further offending. PARITY 26 I dismiss any suggestion that his penalty should be lower because there is a parity in relation to the convictions of Abigroup. To my mind the culpability of Robert Josef was far greater than any employee of Abigroup because he himself bore, through his company, personal responsibility to discharge the contract pursuant to which the risks were created. SUBJECTIVE FEATURES 27 Notwithstanding his obligations pursuant to his contract and the relevant standards, Mr Josef took no steps to identify the position or course of the gas line upon the demolition site before work commenced. Although engaged in a dangerous industry, he conducted no risk assessment. No evidence is led as to any formal training in safety of the employees of his company. 28 It is true that neither he nor his company have been the subject of previous convictions. Given the approach demonstrated by the site conditions at Kogarah, I can only assume that this has been a matter of luck. The burden of demonstrating contrition or remorse in order that the objective consequence of the crime may be mitigated falls upon the defence. 29 Mr Josef, in an affidavit tendered before me, says: "The injured have weighed and still weigh heavily on my conscience". In that same affidavit Mr Josef asserts that he warned Robert Campbell not to work in the area of the gas line. That statement is contrary to my findings. I do not believe it to be true. 30 Mr Josef also states in his affidavit, at paragraph 25, this: As a result of the Kogarah Gas Explosion I lost my company, Josef & Sons Contracting Pty Ltd, as we lost contracts from that business. Our customers lost confidence in us after that happened and eventually the Company had to go into liquidation. 31 In paragraph 24 of his affidavit Mr Josef said: I have lost confidence in my capacity to manage large demolition projects and am now only doing consultancy work. 32 When cross-examined, it was immediately apparent that, when he swore his affidavit, Mr Josef knew that the former company, Josef & Sons Contracting Pty Ltd, in the three years prior to 4 December 1995, had accumulated losses in excess of $1 million and that in the six months before 31 December 1996, that is, shortly after these events, the company had lost $265,000. 33 The statements in the affidavit are patently misleading. Immediately upon the winding up of Josef & Sons Contracting Pty Limited, Mr Josef formed a new company, Josef & Sons Demolition Contractors Pty Ltd. 34 Annexed to the affidavit is a curriculum vitae of Robert Josef, in which he is said to be currently a director of CMG/Josef & Sons Demolition Contractors Pty Ltd. This CV is said by Mr Josef to be current. The document asserts that Mr Josef has 31 years experience in ownership/management of the Sydney NSW demolition and earthmoving industry. It further asserts that he has personally built the company to its present position as one of the leading companies of its type in New South Wales and that it has an unblemished reputation. 35 Mr Josef in evidence said that he had not done any demolition work in eight years. In fact his company Josef & Sons Demolition Contractors Pty Ltd has carried out such work. 36 I did not regard Mr Josef as a witness of truth. It was apparent in his evidence before me today that, while he takes formal responsibility as a director, he still does not believe that he is personally at fault. Mr Josef suggested that, in hindsight, that is, the day of the accident, he knew he had failed in some respects because he did not personally attend upon the site but relied upon employees. Such a state of mind is incompatible with his recognition of personal failure. 37 When Mr Josef was asked whether, in retrospect, he could have done anything to direct AGL to cut the gas supply at a place remote from the site, his answer was not "Of course and I'm ashamed and embarrassed I did not do so" but rather, "They are a law unto themselves". 38 I can find from the evidence of Mr Josef no basis upon which any subjective matter would entitle him to any reduction in the penalty. Given the terrible and foreseeable nature of the risk and the ease with which that risk could have been obviated, I believe the offence is in the order of 70 per cent of a most extreme case and a fine of $35,000 is warranted. Charge Number 5488 of 1999 39 The facts of this matter are also canvassed sufficiently in my earlier judgments. This charge relates to the operation of the earthmover by Mr Robert Campbell on 4 December, which operation resulted in the actual fire and consequent deaths and maiming. Although Mr Josef continues to maintain that Mr Campbell acted contrary to his instructions, he is to be sentenced upon the fact that he failed to give such instructions to Mr Campbell. 40 There is, in relation to this offence, much in common with the earlier offences. However, the striking feature is this: before Mr Begg unearthed the gas line, the failings of Mr Josef to supervise the site were in relation to a latent danger. Once the pipe became exposed and was marked, the danger was quite apparent. Armed with this further information, Mr Josef still failed to take appropriate steps to guard the health and welfare of his employees. I regard the culpability of the failure on 4 December as even greater than the earlier culpability, serious though that was. 41 The remarks apropos of gravity, of general deterrence, specific deterrence and subjective features, including contrition and remorse, expressed in my earlier reasons, apply in relation to this matter. Because of the greater immediacy and foreseeability of the danger, I regard the offence as 80 per cent of a most extreme case and consider that a fine of $40,000 is warranted. Charge Number 5487 of 1999 42 In relation to the offences of 20 to 23 November, Mr Josef also stands convicted pursuant to s16 of the Act. It is agreed that I should fix a penalty, and in that regard the penalty pursuant to s16 is $35,000. I then must apply the principle of totality pursuant to Pearce v The Queen (1998) 194 CLR 610 so as to ensure that the defendant is not punished twice for the same acts or omissions. 43 In the course of this trial, it became apparent that precisely the same acts and omissions which gave rise to the conviction upon the s15 offence in relation to the events of 21 to 23 November 1995 were the acts and omissions which constitute the s16 offence. It would be necessary, in order that there be any additional penalty imposed, that the precise areas in which the offences do not overlap be identified so as to justify the imposition of a penalty for acts or omissions which discretely relate to the s16 offence. That was the approach of the Full Court in Crown in Right of the State of New South Wales (Department of Education and Training) v Inspector Keenan (2001) 105 IR 181. 44 In this case no additional penalty should be imposed because there is no separate or additional culpable act or omission. The consequence of the danger in relation to its effect upon a particular person or persons is relevant in order that the gravity of the risk may be assessed, but the consequence is not an ingredient of the offence. Upon the present facts the risk was precisely the same to both employees and non-employees although only one class of persons suffered, non-employees. 45 Subsection (3) to s16 was inserted by the WorkCover Legislation Amendment Act 1995 (No 89). It provides as follows: (3) If in proceedings against a person for an offence against this section the court is not satisfied that a person contravened this section but is satisfied that the act or omission concerned constituted a contravention of s15, the court may convict the person of an offence against that section. 46 A corresponding amendment was the insertion of subsection (4) in s15 which permitted conviction of an offence against s16 in proceedings against a person for an offence against s15. 47 The provisions of cl 10 to Pt 3 of Schedule 8 to the amending legislation by which the increased penalties were made retrospective appear under the heading Alternative Convictions (sections 15-16). By force of s35 of the Interpretation Act, I may have recourse to headings in construing the legislation. In the light of the language used in those amendments I am of the view that the legislature regarded ss15 and 16 as alternative rather than cumulative provisions. 48 In the result, it is appropriate that I express the opinion that a fine of $35,000 in relation to the s16 offence of 20 to 23 November is proper but pursuant to the principle of totality, impose no additional monetary penalty. Charge Number 5489 49 I repeat the reasons expressed in considering Charge Number 5487. Total Penalty 50 Upon hearing further from Mr Joseph SC for the prosecutor I agree that it is appropriate that the monetary penalty be imposed in the convictions pursuant to s16 because although employees were endangered, no employee lost his life or suffered injury. 51 The principle of totality now requires that I adjust the two penalties pursuant to s16 to also accord with the principle of totality. There is much in common. The fundamental failures concerning the failure to close the gas at a place remote from the site, and the failure to mark the course of the gas line upon the ground are the significant failures which gave rise to the risk. The actions of Mr Begg, on the first occasion, and Mr Campbell on the second, gave rise to risks which were inevitable in light of the primary failures. 52 So far as the offence of 4 December 1995 is concerned, although much stands in common with the earlier charge, in the context of an evolving situation and a developing danger, the culpability of Mr Robert Josef is graver than it was on the earlier occasion. 53 That being said, I regard the substance of that which is alleged against him to have been the failure to organise the site and adequately mark the pipe. Seventy five per cent of culpability of the offences which occurred on 4 December was occasioned because of the prior failings, so that, rather than $40,000, the appropriate penalty is $10,000. CONCLUSION 54 In relation to Charge Number 5487, the s16 offence occurring between 20 and 23 November 1995, the defendant is fined $35,000. In relation to Charge Number 5486, the s15 offence on that date, the defendant is convicted, but no further penalty is imposed. 55 In relation to Charge Number 5489, the s16 offence occurring on 4 December 1995, the defendant is fined $10,000. In relation to Charge Number 5488, the s15 offence on that date, the defendant is convicted but no further penalty is imposed. There is a total fine of $45,000. I direct that a moiety of the fine be remitted to WorkCover. 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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