Industrial Court of New South Wales CITATION: Inspector Childs v Stimson (No 4) [2006] NSWIRComm 158 PROSECUTOR WorkCover Authority of New South Wales (Inspector Childs) PARTIES: DEFENDANT Barry John Stimson FILE NUMBER(S): IRC 6270 of 2003 CORAM: Staff J Occupational Health & Safety - Plea of not guilty - Offence proven - Costs - Prosecutor sought costs order - Defendant submitted no order for costs or significantly reduced quantum of costs - Purpose of costs - Consideration of defendant's financial position - Statutory provisions and principles re costs orders discussed - Defendant ordered to pay 20 percent of prosecutor's costs CATCHWORDS: Costs - Occupational Health & Safety - Plea of not guilty - Offence proven - prosecutor sought costs order - Defendant submitted no order for costs or significantly reduced quantum of costs - Purpose of costs - Consideration of defendant's financial position - Statutory provisions and principles re costs orders discussed - Defendant ordered to pay 20 percent of prosecutor's costs Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 LEGISLATION CITED: Fines Act 1996 Industrial Relations Act 1996 Occupational Health & Safety Act 2000 Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 287 Inspector Childs v Stimson (No 3) [2005] NSWIRComm 336 Latoudis v Casey (1990) 170 CLR 534 CASES CITED: Maynard v Dabinett [1999] NSWCA 295 R v Northallerton Magistrates' Court; Ex Parte Christopher John Dove [2000] 1 Cr App Rep (S) 136 R v Whalley (1972) 56 CR.App.R. 304 WorkCover Authority of New South Wales (Inspector Childs) v Stimson [2004] NSWIRComm 395 WorkCover Authority (Inspector Yeung) v Wilson (t/as Wilson's Tree Service) (2005) 143 IR 187 HEARING DATES: Written Submissions DATE OF JUDGMENT: 05/09/2006 PROSECUTOR Mr P Skinner of counsel Solicitor: Ms L Barnes WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr G Wendler of counsel Solicitor: Mr R Van Houten Van Houten Solicitors, Barristers & Notary Public JUDGMENT: - 2 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Staff J 9 May 2006 Matter No IRC 6270 of 2003 INSPECTOR BARRY CHILDS v BARRY JOHN STIMSON (NO 4) Prosecution under s 9 of the Occupational Health & Safety Act 2000 JUDGMENT [2006] NSWIRComm 158 1 Barry John Stimson ("the defendant"), was found guilty of an offence under s 9 of the Occupational Health & Safety Act 2000 and fined the sum of $5,000 with a moiety of that fine to the prosecutor: see WorkCover Authority of New South Wales (Inspector Childs) v Stimson [2004] NSWIRComm 395; Inspector Childs v Stimson (No 3) [2005] NSWIRComm 336. 2 During the sentencing hearing, the defendant made an application pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 and submitted that I defer any determination of costs until sentence had been determined. 3 In delivering sentence in this matter, I directed the parties to discuss the question of costs and to file short submissions in respect of the outcome of those discussions and any matters that they may wish to bring to the court's attention in respect of this question. 4 Due to the health of the defendant, a number of extensions were granted to the parties for the filing of written submissions. I propose to determine this issue on the written submissions. 5 Mr P Skinner of counsel, who appeared for the prosecutor, submitted that the usual award to the prosecution of 100% of its costs, should be made. The prosecutor assessed its costs to be $37,100. 6 Mr Skinner acknowledged that a trial judge has a very real discretion to decide what orders to make as to costs and that the reasoning that he or she may apply to justify their order need not be precisely elucidated: Maynard v Dabinett [1999] NSWCA 295, per Stein and Giles JJA, at [16] - [17]. 7 The defendant submitted that there should be no order for costs, or alternatively, a significantly reduced quantum of costs awarded. The defendant submitted that a costs order is tantamount to a further penalty and, in a broad sense a form of double jeopardy. It was submitted that having regard to the special circumstances of this case, in particular, the difficult causation issue, it was not unreasonable for the defendant to have defended the charge. 8 It was submitted that the wilful and disobedient conduct of the deceased contributed to his death. The court found that the deceased did not fall into the trench excavated by the defendant, but voluntarily walked in, after having been warned by the defendant on two occasions to stay away from the worksite. It was submitted that in these circumstances, the defendant's decision to defend the charge was not in bad faith, or for an improper purpose. 9 The defendant noted that the court has an unencumbered discretion concerning costs orders and enabling the court to address the issue of costs in this matter in a flexible and non-mechanical manner: Latoudis v Casey (1990) 170 CLR 534. 10 It was submitted that if a costs order was made, it should be made in accordance with the principles set out by the English Court of Criminal Appeal in R v Whalley (1972) 56 CR.App.R. 304. Those principles provide that regard should be had to the capacity of the defendant to pay costs and the quantum of the fine and moiety. At the very least, it was submitted the fine should be set-off against any costs orders. 11 It was submitted that the defendant is an elderly man in very poor physical condition. He may not have very long to live. He has the added responsibility of caring for his crippled wife. The defendant's wife is confined to a wheelchair and suffers from multiple sclerosis. She has recently been unwell, requiring hospitalisation and is incontinent. The defendant was recently hospitalised on two occasions with respiratory failure, including a lengthy period in intensive care. The defendant is suffering a heart disease and has suffered two heart attacks since the incident the subject of the charge and is under stress due to his wife's poor health. The defendant is the sole carer and assists with the activities of daily living. The defendant attached medical certificates from two doctors, Dr Hisham Hallani and Dr Yusuf Bassa, and from the Respiratory Registrar at Nepean Hospital. 12 The defendant also provided a consolidated trading, profit and loss statement as at 30 June 2005. The operating profit before income tax was $4,755.23. This figure would have been significantly reduced but for the sale of an asset to the value of $58,654.27. Without the sale of this asset, The Operating Profit Before Income Tax would have been minus $52,890.04. The Excess of Liabilities Over Assets is shown as $121,292.89. Without the sale of the Asset referred above, the Excess of Liabilities Over Assets would be $154,498.28. 13 It follows that the defendant had little income in the financial year ending 30 June 2005, particularly if the sale of an Asset is deducted from the income. Statutory Provisions Fines Act 1996 14 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 15 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 16 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 17 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 18 A Full Bench of this court recently considered the above statutory provisions and the principles found in relevant authorities which deal with costs orders. In WorkCover Authority (Inspector Yeung) v Wilson (t/as Wilson's Tree Service) (2005) 143 IR 187, the Full Bench observed at [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. 19 After referring to the judgment of Pearlman J in Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 287 at [8] and a statement by Lord Bingham CJ in R v Northallerton Magistrates' Court; Ex Parte Christopher John Dove [2000] 1 Cr App Rep (S) 136 at [4], the Full Bench stated at [131] - [133]: [131] …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] …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… 20 Both the prosecutor and defendant acknowledged that the trial judge has a very real discretion to decide what order to make as to costs. 21 In this matter, I imposed a fine of $5,000 which was determined after giving proper weight to the appropriate seriousness of the offence. The court is also entitled to take into account the financial situation of the defendant. The defendant achieved a very modest income in 2005. 22 As a result of the accident on 31 October 2001, the defendant suffered a heart attack at the site and was rushed to hospital. His health remains poor, as does that of his wife. The tragedy which occurred on 31 October 2001, was not solely due to the defendant's culpability. 23 I have decided, noting that the purpose of costs is not a punishment, that the defendant will pay 20 percent of the prosecutor's costs, which the prosecutor has assessed at $37,100. The total fine and costs order represents an acceptable total and for the reasons that I have given represents, in my view, a just and reasonable order. ORDERS 24 The court makes the following order: 1. The defendant shall pay 20 percent of the prosecutor's costs of the proceedings, being $7,420. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.