Industrial Court of New South Wales CITATION: Masters Civil Pty Limited v Inspector Dubois [2006] NSWIRComm 332 APPELLANT: Masters Civil Pty Limited PARTIES: RESPONDENT: Inspector Rodney Dubois FILE NUMBER(S): IRC 2545 and 2546 of 2006 CORAM: Wright J President; Walton J Vice-President; Kavanagh J CATCHWORDS: Appeal - Occupational health and safety - Sentencing - Appeal alleged manifestly excessive penalty imposed - Error also alleged in application of sentencing principles - Relevance of strength of prosecution case - Utilitarian value of plea of guilt - Remorse and contrition - No error found - Appeal dismissed. LEGISLATION CITED: Occupational Health and Safety Act 2000 s 8, s 86 Dinsdale v The Queen (2000) 202 CLR 321 Inspector Dubois v Masters Civil Pty Ltd and another [2006] NSWIRComm 180 Regina v Carter [2001] NSWCCA 245 CASES CITED: R v Sutton [2004] NSWCCA 225 R v Teterycz [2005] NSWCCA 197) R v Thomson; R v Houlton (2000) 49 NSWLR 383 WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 HEARING DATES: 24/10/2006 EXTEMPORE JUDGMENT DATE: 10/24/2006 APPELLANT: Mr S Stanton of counsel Solicitors Cadmus Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Ms P Lowson of counsel Solicitors: Phillips Fox JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President KAVANAGH J Tuesday 24 October 2006 Matter No IRC 2545 of 2006 MASTERS CIVIL PTY LIMITED v INSPECTOR RODNEY DUBOIS Appeal by Masters Civil Pty Limited against the judgment of Justice Backman given on 25 May 2006 in Matter No IRC 1115 of 2005 Matter No IRC 2546 of 2006 MASTERS CIVIL PTY LIMITED v INSPECTOR RODNEY DUBOIS Appeal by Masters Civil Pty Limited against the judgment of Justice Backman given on 25 May 2006 in Matter No IRC 1116 of 2005 JUDGMENT OF THE COURT [2006] NSWIRComm 332 (Extempore) 1 These appeals are from the judgment of the Honourable Justice Backman delivered on 25 May this year in which, in respect of pleas of guilty by the appellant, her Honour imposed penalties in the sums of $118,000 and $8,000 respectively in respect of charges laid against the appellant under s 8 and s 86(1)(b) of the Occupational Health and Safety Act 2000: see Inspector Dubois v Masters Civil Pty Ltd and another [2006] NSWIRComm 180. 2 The factual background to the appellant's pleas of guilty is adequately set out in her Honour's judgment - see especially paragraphs [2] to [10], [13], [20], [22], [35] and [36] thereof, and it is, therefore, unnecessary to repeat those matters. 3 In sentencing the appellant her Honour said at paragraphs [23] to [33] and [37] to [41] of her reasons for decision: [23] I take into account on sentence the fact that neither defendant has any prior convictions. This entitles them to leniency normally extended to an offender who is not otherwise adversely recorded. [24] Both defendants have also entered pleas of guilty to the charges under s 8(1) and ss 8(1) and 26(1) of the 2000 Act. I do not understand the prosecutor to dispute that the pleas were entered at an early stage. Both defendants are therefore entitled to a discount of their sentences in accordance with the principles outlined in R v Thomson; R v Houlton (2000) 49 NSWLR 383; 115 ACrimR 104. [25] I consider an appropriate discount for the utilitarian value of the pleas is 25 per cent. [26] The prosecutor does contend in relation to the pleas of guilty that they were entered in circumstances where the prosecution case was strong. This means that the extent of leniency otherwise available in recognition of contrition shown by the defendants by pleading guilty may have less weight and the discount on sentence may be correspondingly reduced. The defendants concede through their counsel in written submissions that findings of guilt "would have been most likely". I take this as a concession that the prosecution cases were strong. It follows that the prosecutor's contention is made good and the discount on sentence will be reduced accordingly. [27] I also take into account in the defendants' favour the impressive number of procedures and instructions which the first defendant has developed and implemented following the commission of the offences. Since the date of the offences, for example, all the first defendant's workers have completed their first aid certificates. The first defendant also has a first aid officer, Mr Succar who holds appropriate certification. In addition, all appropriate personnel now have Demolition Supervisor 1 Certificates. As confirmation of the first defendant's resolve to improve on matters of safety the second defendant's affidavit attaches copies of various work method statements for the demolition works at the worksite the subject of the offences as well as a Project Specific Safety and Injury Management Plan for another company under which the first defendant operated as the principal contractor. The first defendant also now utilises safety harnesses for workers working on erected scaffolds. [28] The defendants have also expressed sincere regret for the incident. The second defendant in particular relies on his inexperience in matters of management and in matters of safety specifically. Both defendants also cooperated fully with WorkCover in relation to all investigations and inquiries undertaken in relation to the offences. These personal factors will be taken into account in the defendants' favour in the assessment of penalty. Section 86(1)(b) offences [29] In relation to the s 86(1)(b) offences the defendants acknowledge them by virtue of their pleas of guilty and are resolved that the section will not be breached in the future. Although the defendants submit that the breaches were not wilful nor the result of "utter disregard" they nevertheless frankly concede that they have failed to abide by those provisions in the 2000 Act and acknowledge the importance of s 86(1)(b) in terms of the investigation of matters of industrial safety. [30] Section 86(1)(b), which requires an occupier of a place of work to notify WorkCover of an incident in accordance with Regulation 341 of the Occupational Health and Safety Regulation 2001, provides for a maximum penalty for a corporate offender with no prior convictions of $55,000, and a maximum penalty for an individual offender with no prior convictions of $27,500. Regulation 341(a) requires all injuries to persons which result in an incapacity for work for a period of at least seven days, to be notified to WorkCover. [31] Section 86(1)(b) also fulfils an important purpose in facilitating the ability of WorkCover to properly and promptly investigate workplace accidents. In Gotico Industries Pty Ltd v Benbow (2001) 103 IR 78 (at [6]) a Full Court commented on the function and importance of s 27 of the 1983 Act, a predecessor section to s 86(1)(b) which was expressed in similar terms: We wish to emphasise the significance of s 27 of the Occupational Health and Safety Act 1983 (NSW). The provision does not merely impose formal requirements for the notification of accidents in the nature of the registration of an incident, but rather requires a notification of accidents so that the WorkCover Authority of New South Wales may carry out necessary investigations to identify and remedy hazards to safety: See WorkCover Authority (NSW) (Inspector McMartin) v Broken Hill Proprietary Co Ltd (1999) 90 IR 277 at 290 and 295. The section is an important provision ensuring the proper investigation of breaches of the Occupational Health and Safety Act and the adoption of appropriate remedial measures to prevent further such occurrences. (See also Inspector Guillarte v Trustees of De La Salle Brothers [2004] NSWIRComm 49 at [29]). [32] Both defendants entered pleas of guilty to the s 86(1)(b) offences at the same time as they entered pleas of guilty to the s 8(1) offences. The defendants are therefore entitled to a reduction of the amounts of the fines imposed for the commission of the s 86(1)(b) offences in accordance with the principles set out in R v Thomson; R v Houlton. A discount which will adequately reflect the entering of the pleas in my view is 25 per cent. [33] The maximum penalty for an offence under s 86(1)(b) committed by the first defendant, a corporation, is $55,000. The maximum penalty for the second defendant, an individual, is $27,500. ... Penalty [37] In determining penalties against both defendants I have taken into account the objective seriousness of the offences, the personal factors described above and the absence of prior convictions. All of these factors have been considered by reference to the Crimes (Sentencing Procedure) Act 1999 in particular s 21A. I have also taken into account the respective culpabilities of both defendants. Totality [38] In relation to the first defendant I consider that a fine in the sum of $120,000 should be imposed for the offence under s 8(1) and that a fine in the sum of $12,000 should be imposed for the offence under s 86(1). In relation to the second defendant I consider that a fine in the sum of $10,000 should be imposed for the offence under s 8(1) by operation of s 26(1) and that a fine of $5,000 should be imposed for the offence under s 86(1) by operation of s 26(1). [39] Although the parties did not make submissions on the relevance if any of the principle of totality in the sentencing process, I consider it is relevant on the basis that the offences under s 8(1) and s 86(1) although not sharing common elements nevertheless rely on the same factual background, relate directly to the same incident the subject of the offences and occurred, necessarily, closely in time: See for example the discussion of the principle by Badgery-Parker J in Robert William Larsen (1989) 44 ACrimR 121 at 125-127. [40] In order to properly reflect the criminality therefore of the first defendant, taking into account the principle of totality, I consider the total fine for the two offences under s 8(1) and s 86(1)(b) should be $126,000. [41] In order to properly reflect the criminality of the second defendant taking into account the principle of totality I consider the total fine for the two offences under s 8(1) by operation of s 26(1) and under s 86(1)(b) by operation of s 26(1) should be $12,500." 4 Her Honour, at paragraphs [34] to [36], respectively, of her reasons had also dealt with the issues of general deterrence (especially as to the s 86(1)(b) offence) specific deterrence and the commitment of the appellant to the future observance of its obligations under s 86(1)(b) of the statute. Her Honour determined the fines that were to be imposed on the appellant in this way: [42] In Matter No IRC 1115 of 2005 I make the following orders: 1. The defendant Masters Civil Pty Ltd (ACN 101 601 897) is convicted of the offence. 2. The defendant Masters Civil Pty Ltd (ACN 101 601 897) is fined $118,000 with a moiety to the prosecutor. 3. The defendant Masters Civil Pty Ltd (ACN 101 601 897) is to pay the costs of the prosecutor as agreed or, in the absence of agreement as assessed. [43] In Matter No IRC 1116 of 2005 I make the following orders: 1. The defendant Masters Civil Pty Ltd (ACN 101 601 897) is convicted of the offence. 2. The defendant Masters Civil Pty Ltd (ACN 101 601 897) is fined $8,000 with a moiety to the prosecutor. 3. The defendant Masters Civil Pty Ltd (ACN 101 601 897) is to pay the costs of the prosecutor as agreed or, in the absence of agreement as assessed. 5 The appeal was originally concerned with three matters succinctly set out in the various documents filed on behalf of the appellant as follows: 1. Her Honour erred in failing to reduce the discount for the plea of guilty in response to the submission that as the case was strong the discount on sentence would be reduced. 2. Her Honour erred in failing to accord natural justice as to the application of totality principle to be applied to both charges. 3. The penalties imposed by her Honour were manifestly excessive and too severe. However, during the course of argument the appellant abandoned the second of these challenges. We propose to deal with the remaining matters in the order set out. 6 The first challenge focused on that part of her Honour's judgment at paragraphs [24] and following, and, it was submitted that her Honour erred in principle in reducing the 25 per cent discount provided for the appellant's plea of guilty, the error of principle being illustrated by the judgment of the Court of Criminal Appeal in Regina v Carter [2001] NSWCCA 245 at paragraphs [13] to [15] where Howie J, speaking for the Court, said: [13] Unfortunately, it is apparent from two appeals before the Court today arising from sentences imposed by different judges, that there is a misunderstanding by some members of the District Court of the decision in R v Thomson and Houlton (2000) 49 NSWLR 383 and the basis upon which the discount for the utilitarian benefit of a plea of guilty is assessed. There is a view held by some judges that in determining the quantum of such a discount a relevant consideration is the strength of the Crown case. It is not. That is a factor that is relevant to a consideration of whether the plea of guilty shows contrition and whether any discount over and above that for the utilitarian benefit of the plea should be allowed. [14] It is perfectly clear from the reasons of the Chief Justice in the guideline judgment, with whom all other members of the Court agree, that, although the evaluation of the discount is a matter for the discretion of the sentencing judge, that are two circumstances that will generally affect the appropriate level of the discount in a particular case. They are, firstly, the time when the plea is entered, so that the earlier the plea the larger the discount and, secondly, the complexity of the evidence to be gathered and adduced to prove the charge, so that the greater the difficulty in collecting evidence or the greater the length and complexity of the trial, the greater the utilitarian value of the plea and, therefore, the greater the discount. In a particularly difficult and complex matter the early plea may, according to the Chief Justice, exceed the normal upper range of 25 per cent. [15] Further, it was also made perfectly clear that the strength of the Crown case is not a relevant factor in assessing the purely utilitarian value of the plea. The Chief Justice stated at 137: "Separation of the elements of contrition and utilitarian value in the plea of guilty requires a consideration of whether or not the element of strength of the Crown case, to which reference is frequently made as limiting the value of a plea, should be attributed to both of the elements. The Attorney General submitted that the strength of the Crown case should not have any bearing upon the weight to be attributed to that aspect of the discount which is attributed to purely utilitarian considerations. The authorities support this submission. (See R v Slater supra at 525-526; R v Bond supra at 7; R v Winchester supra at 350; R v Bishop (New South Wales Court of Criminal Appeal, 23 September 1996, unreported); R v Bulger [1990] 2 Qd R 559 at 564. In Winchester v The Queen , Hunt CJ at CL related the strength of the Crown case only to the contrition element of the leniency in sentencing which a plea of guilty affords an accused: cf R v Beavan (at 12). As his Honour put it (at 350): "… The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable." In my opinion his Honour was correct to link the question of the strength of the Crown case only to the issue of contrition or remorse. A "recognition of the inevitable" may qualify the extent of genuine contrition. It does not qualify the utilitarian value of a plea." 7 Although we are able to see how the appellant reads the final words in paragraph [26] of her Honour's judgment as qualifying what her Honour had determined in paragraph [25], we, however, do not agree with that analysis. Rather, we consider that her Honour was, in paragraph [26] of her reasons, proceeding to provide the balance of her analysis on the subjective features of the offence (that is, subjective features other than the utilitarian value of the plea of guilty) and was not, in any way, qualifying the conclusion on that issue, which her Honour expressed in a final way in paragraph [25]. We note, in this respect, that her Honour provided a discount at the higher end of the scale contemplated in the guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383; see particularly the conclusions set out in the judgment of the Chief Justice at page 419. When it is accepted, as the appellant's Counsel properly does, that her Honour was entitled to have regard to the strength of the prosecution case in assessing whether the plea of guilty showed contrition and whether any discount, and if so what discount, should be allowed over that allowed for the utilitarian value of the plea, then it is comfortably clear her Honour had regard to the matter set out in paragraph [26] precisely as to those matters. This was entirely consistent with authorities such as Carter at paragraphs [13] and following (see also, for example, R v Sutton [2004] NSWCCA 225 and R v Teterycz [2005] NSWCCA 197). 8 Turning then to the issue of the alleged manifestly excessive penalties imposed, we have considered the totality of the circumstances of the offences and agree with her Honour's assessment of their seriousness, noting that, in respect of the individual defendant, who did not appeal, her Honour carried out a careful analysis of the role of the personal defendant and provided a consequent reduction in the penalty imposed on him. Having regard to the principle in Dinsdale v The Queen (2000) 202 CLR 321 and WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60, we do not consider that there is any basis to intervene on this ground. The appeal must, therefore, be dismissed. ORDERS 9 We make the following orders: 1. The appeal is dismissed. 2. The appellant is to pay the respondent's costs of the appeal in a sum as agreed or, in default of agreement, as assessed. 3. The Full Bench of the Court notes that the stay granted on 28 June 2006 by Staunton J lapsed in light of the terms of the stay and the failure of the appellant to comply with the terms of the stay. [Note: Orders 2 and 3 were made after the Full Bench had heard from counsel as to the issue of costs and as to the stay granted by Staunton J]. ___________ 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.