Industrial Court of New South Wales CITATION: Inspector Stuart Larkin v South Pacific Seeds Pty Ltd [2006] NSWIRComm 247 INSPECTOR STUART LARKIN Appellant PARTIES: SOUTH PACIFIC SEEDS PTY LIMITED (ACN 002 887 256] Respondent FILE NUMBER(S): IRC 4825 of 2005 CORAM: Walton J Vice-President; Schmidt J; Staff J CATCHWORDS: Appeal - application for leave to appeal and appeal from a decision of magistrate - prosecution - guilty plea - whether penalty imposed by Local Court was adequate - leave to appeal granted - penalty manifestly inadequate - appeal upheld - penalty imposed at first instance set aside - respondent re-sentenced - costs whether or not appellant has a right of appeal pursuant to the Crimes (Local Courts Appeal and Review) Act 2001 - whether appeal was subject to the grant of leave to appeal, as provided by s 188 of the Industrial Relations Act 1996 - unnecessary to determine construction questions Crimes (Local and Appeal and Review Act) 2001 LEGISLATION CITED: Crimes (Sentencing and Procedure) Act 1999 Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Corinthian (Sydney) Pty Ltd v WorkCover Authority of NSW (Inspector Wilson) (2000) 99 IR 159 Downie v Menzies Property Services Pty Ltd [2004] NSWIRComm 259 Inspector Bestre v T & Y Pty Ltd [2005] NSWIRComm 392 Inspector Jones v Challita and Anor [2006] NSWIRComm 207 R v Doan (2000) 50 NSWLR 115 CASES CITED: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Maddaford v CSR Ltd v Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Inspector Maddaford v Gerard Coleman and Anor [2004] NSWIRComm 259 Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 R v Hallocoglu (1992) 29 NSWLR 67 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 HEARING DATES: 28/07/2006 DATE OF JUDGMENT: 08/15/2006 APPELLANT: Ms K Nomchong of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES: RESPONDENT: Mr C Magee of counsel SOLICITORS: Noyce, Salmon & D'Aquino JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Walton J, Vice-President Schmidt J Staff J Tuesday 15 August 2006 Matter No IRC 4825 of 2005 INSPECTOR STUART LARKIN v SOUTH PACIFIC SEEDS PTY LTD Application by WorkCover Authority of New South Wales for leave to appeal and appeal against a decision of Magistrate Hogg given on 25.8.2005 in matter no. 20182489/05. JUDGMENT [2006] NSWIRComm 247 1 This is an application for leave to appeal and appeal from a decision of his Honour Magistrate Hogg, given on 25 August 2006 in a prosecution brought under s 8 of the Occupational Health and Safety Act 2000. The appeal goes to the adequacy of the penalty of $1,750 imposed on the respondent, having regard to the objective seriousness of the offence in question. 2 Also at issue between the parties was the question of whether or not the appellant had a right of appeal pursuant to the Crimes (Local Courts Appeal and Review) Act 2001, or whether the appeal was subject to the grant of leave to appeal, as provided by s 188 of the Industrial Relations Act 1996. Leave was also sought to review the procedures applying to appeals of this nature, having regard to the decision in Inspector Maddaford v Coleman (2004) 138 IR 21 and the provisions of the new subsection 197(2) of the Industrial Relations Act. Ultimately, it was not necessary for the Court to decide these issues, given the Court's decision that, should leave be required, it would be granted in any event. The proceedings at first instance 3 The respondent entered a plea of guilty when the matter was first mentioned in Sydney and it was transferred for hearing in the Local Court in Griffith. The charge to which the plea was entered provided: Description of offence: Breach of s.8(1) of the Occupational Health & Safety Act, 2000. The defendant being and employer failed to ensure the health, safety and welfare at work of its employees. Time and date of offence: About 2.30pm on 26 September 2004 Place of offence: In a paddock of the defendant's rural farm property known as Curlew Park at Goolgowi in the State of New South Wales Short Particulars: On the said date at the said place the defendant being an employer failed to ensure the health, safety and welfare at work of its employees including Davinder Samra ('worker') in that the worker whilst standing on a platform on the back of the a tape layer machine ('the machine') her clothes became entangled in the machine's rotating shaft dragging her into and jamming her up against the shaft and causing serious injuries to her by reason that: 1. The defendant failed to ensure that plant to wit the machine provided for use by the defendant's employees at work, was safe and without risk to health when properly used in that: a. The mechanically driven rotating shaft of the machine was not properly and effectively guarded at all times whilst the worker was carrying out her work in close proximity to it. b. There was no emergency stop switch in close proximity to the worker to enable the rotating shaft of the machine to be stopped if its rotating movement entrapped the worker or her clothing. 2. The defendant failed to provide and maintain a system of work that was safe and without risk to health in that: a. There was no documented safe work procedure in place for the conduct of the work involving the use of the machine. b. The conduct of the work of tape laying using the machine assisted by mechanical power rather than free wheeling of the machine was unsafe in that the worker was not alerted to the specific risks associated with this process. c. The conduct of the work of monitoring the tape feed from the machine by the worker standing on the machine platform whilst the machine was moving with the worker in close proximity to the rotating shaft of the tape layer was unsafe. d. The use of the rotating shaft of the machine by the worker as a hand hold for stability during the tape laying process was unsafe. 3. The defendant failed to provide such information, instruction, training and supervision in relation to the operation of the machine in conducting the work of laying irrigation tape such as was necessary to ensure the health, safety and welfare of its employees including the worker while she was carrying out such work. 4 At the hearing various documents were tendered, including an agreed statement of facts and an affidavit sworn by Mr Hancock, the respondent's managing director, who was not required for cross-examination. The statement of facts provided: 1. At all material times the informant was an inspector duly appointed pursuant to clause 11 schedule 3 of the Occupational Health & Safety Act, 2000 under division 1 of Pt 5, and is empowered by s106 of the said Act to institute proceedings in the within matter. 2. At all material times the defendant, South Pacific Seeds Pty Ltd ACN 002 887 256 was a company duly incorporated with its registered office at 48-50 Willandra Street, Griffith in the State of New South Wales. 3. At all material times the defendant was an employer. 4. At all material times the defendant employed Davinder Samra as a casual farm hand. 5. At all material times the defendant carried on business as a wholesale supplier of vegetable seeds as well as the agricultural pursuit of propagation of plants for seed purposes. 6. At all material times the defendant conducted its operations at various locations around Australia including operations at a property known as 'Curlew Park' at Goolgowi in New South Wales. 7. At all material times the worker's duties included a number of farm labouring activities including assisting with the laying of irrigation tape. 8. The irrigation tape consisted of non-rigid polyurethane tape which was capable of being rolled. This tape was used in the irrigation process and had to be placed in the ground and this process was conducted with the use of a machine known as a tape layer ("the machine"). 9. The machine was an item of plant which had to be dragged behind a tractor to which it was connected from which plant the tape was usually fed from rolls into the paddock which was being worked. 10. A re-assembled version of the machine as it existed as at 26 September 2003 was inspected by Workcover Inspector Steven Jones on 22 April 2004 at the defendant's property. At this time, Inspector Steven Jones observed the following: § A steel shaft and spindles were assembled on a metal frame. The steel shaft measured 3.9m in length and was 33mm in diameters. Starting at approximately 140mm from the end of the shaft were three spindles spaced 990mm apart. § Access to the metal frame was provided via steps located directly between each spindle. Each step measured approximately 300mm from ground level and was 1.18m in length and 340mm deep and was constructed from non-slip steel mesh plate. § The steel shaft connecting the spindles was designed to attach to the hydraulic linkage system of the tractor with hydraulic hoses. § The shaft was designed to rotate the spindles as required and the rotation of the shaft was controlled from the tractor instrument panel. § At the time of observations there was no guard surrounding the rotating drive shaft. 11. The machine was designed and manufactured by the defendant. 12. At all material times the machine had a number of different ways for performing its functions which were as follows: § It could be used to lay new tape from rolls installed on the shaft that ran across the machine. In this operation the rolls were not usually fixed to the shaft and the shaft was not powered when rotating and the rolls simply 'free wheeled' as the tape fed down into the ground behind the tractor. § The machine could be used also to lay tape which had been used previously. In this process the tractor would drive the machine over the tape which lay out in the paddock which tape was fed from under the tractor up over the rolls on the machine and down through the tines of the machine and into the ground. In this application the rolls on the shaft acted more as a guide for rather than as a receptacle for the tape. § Another function of the machine was to roll up the previously used tape prior to re-laying it and in this application the rolls or spindles on the shaft were pinned to it to fix them in position, and in this application the hydraulic power was used to rotate the shaft to wind the tape on to the rolls. 13. On 26 September 2003 the worker had been allocated to the task along with a number of other employees of operating the machine. She had commenced work on that day at between 6 a.m and 7 a.m. 14. On the 26th September, 2003 the worker and the other crew operated the machine in the process of laying irrigation tape. The worker's duties involved monitoring the tape as it was fed off/over the spindles and through the tines into the ground in order to ensure that it was feeding freely with no kinks or breakages in it. 15. At all material times on 26 September 2003 the machine was operating in accordance with the description provided in the second dot point of paragraph 12 above. However while operating in this manner some difficulty was experienced with the tape stretching in places as it was dragged over the spindles. It was then decided to power the shaft of the machine and to turn the spindles in order to obtain a more even feed of the tape. 16. Some time after the lunch break on 26 September 2003, in the early afternoon the worker was performing the task of monitoring the irrigation tape while standing on the platform of the machine as it proceeded over the ground. At the time she was holding on to the shaft of the machine which was rotating in her hand when he clothing became caught and began wrapping around the rotating shaft. The worker's clothes continued to wrap until the worker herself was jammed tightly onto the rotating shaft causing her to be pinned to it. The worker's cries for help were heard and the tractor driver's attention was alerted to the incident and he stopped the machine. 17. As a result of the incident the worker sustained bruising injuries to her shoulder and neck and was unable to attend to her normal work for a period of in excess of seven days immediately following the incident. 18. At the time of the incident the rotating shaft was not guarded in any way. 19. On and prior to 26 September 2003 the worker had not been given any specific training relative to the risks associated with the rotating shaft. 20. At all material times there was no documented work procedure for operating the machine and no warnings provided in relation to the risks associated with working in close proximity to the rotating shaft particularly when it was operating under power. 21. Following the accident involving injury to the worker the machine was decommissioned and a new process for tape laying was subsequently implemented. 5 The appellant also provided written submissions below. It was common ground that the respondent did not finally press an application that it be given a bond of two years pursuant to section 10 of the Crimes (Sentencing and Procedure) Act 1999. 6 Magistrate Hogg's decision was given ex tempore, immediately upon the conclusion of the parties' submissions. His Honour noted that the unguarded machine was a 'homemade machine constructed by an engineer', and that it was 'constructed on the basis that there was no commercially available machine to do the job that this company required to have done so the employer basically showed some initiative in relation to getting the machine built which would do the job.' His Honour found that the machine did not ensure the health, safety and welfare of the respondent's employees. 7 Noting that the applicable sentencing principles required regard to be paid to the nature and quality of the offence, his Honour took the view that, 'the machine not having a guard, an offence which would perhaps sit comfortably into the realm of a usual breach' had been committed. 8 His Honour also observed: Maximum penalty available, of course, is significant. I do note that a vast majority of fines in this jurisdiction for prosecutions under this section exceed $5000 so it is of note that these matters are taken with some degree of seriousness by the court. 9 His Honour paid regard to the entry of a plea at the earliest opportunity, giving rise to 'an appropriate discount', as well as subjective and mitigating factors, which he described as: ... being appropriately outlined by Mr Eades. They are matters where the employer believed that all appropriate avenues had been considered in relation to safe operation of this machine. There are no prior convictions. 10 His Honour also took account of the fact that there was no guard on this machine and that 'there is a risk and it is a foreseeable risk'. 11 These observations led his Honour to the conclusion that 'this is an offence at the relatively bottom end of the scale.' A fine of $1,750 was imposed and an order for costs made. The costs order is not challenged. The parties' respective cases 12 It was the appellant's case that this was the first occasion upon which the Court was called upon to consider the proper operation of the Crimes (Local Courts Appeal and Review) Act in appeals such as this. The proper construction of s 56(1)(a) of that Act and of s 197 of the Industrial Relations Act, was that the appellant was not required to seek leave to appeal in this case. 13 In the alternative, it was submitted that if such leave were required, it should be granted in the circumstances of this case. The public interest required that leave be granted, because the appeal raised important questions as to the application of sentencing principles by the Local Court. The judgment appealed from was insufficiently reasoned. It was also argued that the appeal raised important questions as to the Local Court sitting in the occupational health and safety jurisdiction, setting out more fully the reasons for the assessment of the quantum of any fine imposed. 14 Even if that submission were not accepted, it was argued that the level of penalty imposed in this case, was a significant factor in determining whether leave to appeal should be granted. This had been the subject of repeated comment by the Court in recent appeal decisions, reflecting the need to ensure that the penalties imposed by a court reflect the important social purpose of the Occupational Health and Safety Act. 15 As to the nature of the appeal, it was submitted that having regard to the provisions of s 197(2) of the Industrial Relations Act and the provisions of the Crimes (Local Courts Appeal and Review) Act, the proper course was for appeals such as this to proceed by way of rehearing, upon the evidence before the first instance magistrate. The result was that, on appeal, the Court engaged in a fresh sentencing discretion. This approach would pay appropriate regard to the current legislative framework, the legislative history and the fact that sentencing decisions given by magistrates were often given without full reasoning. This meant that appeals in the nature of those prescribed by the Crimes (Local Courts Appeal and Review) Act, from the Local Court to the Supreme Court, (which are restricted to appeals on questions of law under s 56), would generally be inappropriate in appeals from a magistrate to this Court. 16 In any event, in this case, it was contended that the sentence imposed was manifestly inadequate. It was submitted to be well settled that a finding of manifest inadequacy founds an appeal stricto senso, requiring the Court to re-sentence. (See Downie v Menzies Property Services Pty Ltd (2004) 136 IR 449 at [25] and Maddaford v CSR Ltd v Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [22]). 17 The evidence below showed that the risk in question arose when a worker was exposed to the rotating shaft of an unguarded machine, as she was holding onto the shaft with her hand, while the shaft was rotating under power. The risk that her clothing would be caught by the machine materialised, leading to various injuries, particularly to her neck. This type of clothing entanglement was submitted to be 'almost the classic raison d'etre for the development of factory safety legislation in 19th century England.' While this was partially recognised by Magistrate Hogg in his sentencing remarks, it was submitted that his Honour failed to have regard to the principle of aggravation discussed in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 476. 18 It was also submitted to be well settled that an offence will be a serious one where there is an obvious or foreseeable risk to safety, against which appropriate measures were not taken, even though available and feasible. It was further argued that his Honour had also failed to have regard to the absence of any evidence as to any information, instruction, training or supervision of the injured worker, or any evidence by way of explanation or mitigation of these failures. 19 Given the evidence and the applicable principles, the finding that the offence was 'objectively' at the relatively bottom end of the scale, was not available. As to subjective considerations Mr Hancock's evidence did not address the method of use of the machine on the day. He merely blamed the foreman for what had occurred. Nor was there any evidence led as to an inability to pay an appropriate fine. It followed that there was no basis upon which any discounting of the fine imposed to $1,750 existed. 20 It was contended that, despite the double jeopardy principle, the Court was obliged to intervene and resentence the respondent to an increased fine, as discussed in WorkCover Authority (NSW) v T & Y Pty Ltd (2005) 146 IR 458. 21 It was the respondent's case that no error had been demonstrated and that the Court should not interfere with the sentencing discretion exercised at first instance in this case. 22 The respondent did not accept the submission as to the proper construction of the Crimes (Local Courts Appeal and Review) Act and argued that leave to appeal was required in an appeal such as this. Legislative changes since 1996 did not give rise to any public interest in the Court ruling upon the question of whether leave was necessary. Nor did the appeal raise important questions as to the application of sentencing principles by the Local Court. 23 The appeal did not involve a re-hearing, but was an appeal stricto senso. Even if any of the procedures of the Crimes (Local Courts Appeal and Review) Act were to be adopted, it should be those of appeals from Magistrates to the Supreme Court. 24 It was submitted to be well settled that it is not always necessary for a Magistrate to give detailed reasons for a sentence imposed. (See Corinthian (Sydney) Pty Ltd v WorkCover Authority of NSW (Inspector Wilson) (2000) 99 IR 159 at [15].) The level of a penalty was not itself a basis upon which leave to appeal would be granted. In this case, the penalty imposed fell within the permissible range, even if it fell at the lower end of that range. It was unusual for leave to be granted merely on the question of severity. 25 It was also argued that the appellant did not point to any specific error as the foundation for the assertion that the penalty imposed was manifestly inadequate. The respondent merely invited re-sentencing. Such appeals must be approached with caution (see Inspector Jones v Chalita and Anor [2006] NSWIRComm 207 at [27] to [29] ). 26 It was submitted that the learned Magistrate had access to detailed written submissions of the appellant and that the decision showed that he had regard to the relevant factors when determining sentence. The Magistrate properly had regard to the prosecutor's submissions that the offence fell in the 'low to moderate range of matters before the court'. 27 The Magistrate had also had proper regard to a range of factors in determining objective seriousness and did not fail to have regard to the principle of aggravation. The obvious foreseeability of the risk was taken into account, as were the training and instructions given to employees. The Magistrate also had regard to the fact that the machine was being operated contrary to instructions, but that factor did not outweigh the inherent risk arising from the lack of guarding. There was also evidence as to information, instruction, training and supervision taken into account. It was open, on that evidence, to find that the objective seriousness of the offence was low. It followed that there was no compelling case to warrant appellate intervention. 28 Subjective factors were also argued to have been properly taken into account, including the respondent's commitment to safety and the steps taken after the events in question. There was also evidence as to the type and size of the company, relevant to be considered in relation to the fine to be imposed. Nothing suggested that too much weight had been placed on these factors, including by way of discount. 29 The maximum penalty available had also been put before the Magistrate, which he observed was 'significant'. It was argued that it followed that no inference could be drawn that insufficient weight was give to the maximum penalty available. 30 Appellate intervention in sentencing was rare and the Court was obliged to act with caution and restraint (see Chalita at [36] to [37].) The sentence imposed was not manifestly inadequate and no errors, latent or patent existed. 31 In reply, it was argued for the appellant that there was a paramount public interest in ensuring that penalties imposed for offences such as this reflected identifiable objectives of retribution, accountability and deterrence. Scant reference had been made by his Honour to the applicable sentencing principles and scant reasons were given for the conclusions reached. The nature and obligation to give adequate reasons had been the subject of repeated discussion in the authorities. Here, the reasons suggested that all of the relevant sentencing principles had not been taken into account. 32 The sentence imposed also suggested that his Honour had misapprehended that the assessment of the nature and quality of the offence was concerned with the seriousness of the risk in question, not of the outcome of its materialisation. The appellant had submitted that the risk was serious, albeit falling into the low to medium range. 33 That a penalty of $1,750 was manifestly inadequate in this statutory scheme, having regard to the nature and seriousness of this offence was manifest. That quantum of penalty could only have been appropriate in a trivial or minimal offence, not an offence such as this one. Consideration 34 This Court has repeatedly made observations about the demands placed on the Local Court, which 'often preclude lengthy deliberation prior to the making of a decision' (see Menzies Property Services Pty Limited at [57]) and that it will not be 'necessary to give detailed reasons to all factors and circumstances relating to a particular conclusion' (Corinthian Industries at [15]). Such demands cannot, however, diminish the necessity that the Local Court observes applicable sentencing principles and ensures the imposition of a penalty, properly reflecting the true nature and seriousness of the particular offence in question, when prosecutions brought under the Occupational Health and Safety Act come before it. There is also an obligation to give reasons which adequately disclose what was taken into account in the conclusions reached, even if the reasons given are not detailed. 35 As the appellant submitted below, relevant to a consideration of the penalty imposed at first instance was that the maximum penalty for this first offence was $550,000, with the Local Court having a jurisdictional limit of $55,000. (See R v Doan (2000) 50 NSWLR 115 at 123 and Menzies Property Services Pty Limited at [99].) 36 The risk here in question was that an unguarded machine exposed a worker to the rotating shaft of the machine, so as to permit her clothing to become caught in the shaft. The machine had no emergency stop mechanism. It was the worker's cries for help which alerted the driver to her plight. The worker suffered bruising injuries to her shoulder and neck as result of the manifestation of the risk to which she was exposed. The risk of even more serious injury resulting, was plainly present. As Magistrate Hogg expressly found, the risk in question was entirely foreseeable. 37 The appellant had submitted to his Honour that 'the nature and quality of this matter was a serious risk which falls within the low to moderate range of offences brought before the court', for two identified reasons - the risk of entanglement in the unguarded drive shaft of the machine was reasonably foreseeable and because there were simple remedial steps available to avoid the risk, by the use of guarding. We agree with the appellant that these two factors reinforce the objective seriousness of the offence. 38 On the evidence Magistrate Hogg concluded that: So, looking at all of those matters in the appropriate context, I do accept that this is an offence at the relatively bottom end of the scale. I intend to deal with it by way of a fine. I do not think that the matter is made out with the degree of triviality that would be determined to warrant the operation of s 10. THE FINE THAT I INTEND TO IMPOSE IS $1750. 39 This penalty was not just a low one, as the respondent submitted on appeal, but in truth, merely a nominal penalty - some 0.32% of the maximum penalty available for the offence. Given his Honour's earlier observation that the vast majority of fines imposed by the court exceeded $5,000 and that his Honour viewed this as a 'usual breach', the insignificance of the penalty imposed, is thereby manifest. What a 'usual breach' might be was unclear. Where the statistic referred to by his Honour, was taken from was unknown. It was not the subject of submission by the parties, nor raised with them by his Honour. Perhaps it is not a surprising observation, given that $5,000 represents 0.90% of the maximum penalty for a corporation's first offence under the Occupational Health and Safety Act and 0.60% of the maximum penalty provided for a corporation's second or further offence. It would be entirely unremarkable that the majority of fines imposed by the Local Court exceeded such a small sum, given this statutory regime. 40 Nevertheless, having made that observation, it follows that the view that his Honour plainly took of the nature and seriousness of this offence, was that despite it being a 'usual breach', the penalty to be imposed fell into the lowest possible range. The result was a trivial penalty, given the scheme of penalties imposed by this legislation. In our view, there was no proper basis for his Honour imposing such a penalty, having regard to the objective seriousness of the offence. His Honour failed to give appropriate weight to the objective factors, including the foreseeability of the risk; the availability of simple preventative measures; and need for general and specific deterrence. 41 His Honour accepted that there was a long line of authority as to the necessity to guard machines, so as to ensure that people are not exposed to the risk of entanglement in the machine's moving parts, if the obligations which are imposed upon employers by the Occupational Health and Safety Act are to be met. The absence of such guarding on the machine here in question, made the risk of injury entirely foreseeable, as was found, particularly given that the injured worker was standing on the machine, actually holding the rotating shaft, as it was being dragged along by a tractor. Simple remedial steps to remove that risk were available, namely by ensuring that the machine was properly guarded. The absence of the necessary guarding exposed the operators of this machine to serious risk of injury, which in fact manifested. That more serious injury did not result was merely a matter of luck, on the evidence. That evidence plainly suggested that the offence was quite a serious one, even though, thankfully, more serious injuries than bruising did not eventuate. 42 In our view, this is a case where the sentence imposed at first instance was attended by such legal error and is so manifestly inadequate as to warrant the grant of leave to appeal. That conclusion is unavoidable, given his Honour's failure to apply the relevant sentencing principles concerning objective seriousness and the need by the Court to ensure proper adherence to such principles in the Local Court. It follows from this conclusion that it is unnecessary for us to resolve the question raised as to whether leave to appeal is required, as it would be granted in any event. We will, however, make some observations about the legal issues argued by Counsel at the end of the judgment. 43 We reiterate what was observed in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) at 474-5: The proper approach involves initially considering the gravity of the offence viewed objectively with the court ensuring that the allowance for subjective factors does not produce a sentence which fails to take into account the objective gravity of the offence. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety. 44 We have already discussed two factors which enlarge the objective seriousness of the offence in this case: the reasonable foreseeability of the risk and the easy availability of simple, preventative measures. We discuss his Honour's failure to consider both general and specific deterrence below. It is also well settled that an offence which results in serious injury, or which has the potential to result in serious injury, manifests the degree of seriousness of the relevant detriment to safety. (See Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383; WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163.) 45 On the evidence there is no doubt that such a risk existed here. Other evidence also pointed to the seriousness of the offence. The matters dealt with in the agreed statement of facts, included that the hydraulically driven rotating shaft of this machine was unguarded; that the machine had no emergency stop mechanism; that the injured worker had not been given any specific training in the risks associated with the rotating shaft; that there was no documented work procedure for operating the machine and not even any warnings given in relation to the risk of working in close proximity to the rotating shaft when operated under power; that the unguarded machine had been manufactured by the respondent and immediately after this accident, its use was discontinued and it was replaced by two guarded machines. 46 In that context, it is difficult to see the basis upon which the appellant submitted below, that this was an offence which fell in the lower to mid-range. We accept, however, the prosecutor's concession that it was bound by that submission. 47 Finally, in addition to the legal errors described above, we consider (as foreshadowed) that the sentence was manifestly inadequate. This, of itself, can form the basis for an appeal in the absence of specific legal errors, although see Chalita at [26]-[27] concerning the caution which must be exercised in those circumstances. 48 Given our conclusions, it also follows that the appeal must be upheld and the appeal Bench must re-sentence the respondent. 49 Relevant to that exercise are the matters which we have already mentioned, as well as other evidence going to the nature and seriousness of the offence. 50 The evidence given by Mr Hancock, as to how he had instructed the supervisor in the use of the machine, so as to ensure that when it was operating, no person would be closer than 3 metres from the machine, and that the supervisor was then left to ensure that the machine was operated in accordance with those instructions, was undoubtedly a factor to be taken into account by his Honour. That this accident occurred on 26 September, so shortly after Mr Hancock gave those instructions in mid-September, however, puts into question the adequacy of the instructions given. Those instructions must also be contrasted with the agreed facts in relation to the instructions given to the injured worker, which we earlier mentioned. 51 The evidence, we are satisfied, does not leave open the conclusion that this was an offence which fell at such a low range, as to result in the entirely trivial penalty imposed. We accept however, that we should exercise restraint in imposing a greater penalty, given the submissions advanced as to the penalty range at first instance and having regard to the principle of double jeopardy. 52 We adopt the approach taken by the Full Bench in WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 at [54] - [55], which applied the authorities dealing with the obligation falling on an appellate court such as this, to act with caution or restraint in a Crown appeal, given the principle of double jeopardy. 53 There were various subjective features of the offence here dealt with in the evidence, also proper to be taken into account in determining penalty. They included that this was the respondent's first offence and that this was an employer which paid some attention to safety, (for example, it had an operational safety committee and various paper safety systems in place). The plea was entered at the earliest opportunity and there was evidence as to steps taken after the accident to remove the risk, namely the machine was not further used and was replaced by two guarded machines (although this step does further illustrate the extent of the risk), as well as the introduction of a range of new safety measures. Mr Hancock's evidence was that the respondent's business is the growth of crops for seed. It is a company held by private shareholding, with the majority of shares held by employees. There was no evidence of any inability to pay any fine imposed. Those matters must also be taken into consideration. 54 The appellant also accepted that the respondent was entitled to a significant discount on the penalty imposed, having regard to the utilitarian savings flowing from the entry of the early plea. We assess that discount at 25%, and are satisfied that the other subjective factors present must increase that discount. They include the evidence as to the steps taken after the accident and the respondent's undoubted remorse for its failures. We have adopted that approach in fixing the penalty imposed. 55 As the respondent conceded, the submissions below did not address the question of deterrence, nor did Magistrate Hogg refer to deterrence in his sentencing comments. Nevertheless, deterrence was a matter which his Honour was bound to take into account in fixing penalty. (See s 3A(b) of the Crimes (Sentencing Procedure) Act 1999 and Capral Aluminium at [74] - [76]) Before us the respondent submitted that specific deterrence should have no role to play in this case, given the evidence that the respondent immediately ceased using this machine and replaced it with two guarded machines. This submission does bear on the role of specific deterrence in this case, but it does not significantly reduce the need for specific deterrence given the respondent's continued engagement in the enterprise in which this offence occurred. The evidence showed that the defendant, a company largely owned by its employees, continues to operate this business. 56 Further, given that this is yet another prosecution brought in circumstances where an employer has exposed its employees to risk of injury from an unguarded machine, we are also satisfied that general deterrence must feature in the sentence imposed. 57 Even applying the general principles of restraint (and bearing in mind the particular requirements for restraint arising from the appellant's submissions at first instance), we consider that a significant increase in penalty must be imposed having regard to the objective seriousness, and the principles relating to deterrence. We have concluded that the appropriate penalty to be imposed in this case, on appeal, is $9,000. We emphasise that, but for the requirement to exercise restraint, a significantly higher penalty would have been imposed. Leave to Appeal 58 As mentioned earlier, it is not necessary for us to decide whether leave to appeal is required in a case such as this. However, we intend to make some general observations on the matter, based on the submissions of Counsel. The question of whether or not the appellant must seek and be granted leave to appeal in a case such as this is a question of statutory construction, which requires consideration of the relevant provisions of the Occupational Health and Safety Act, the Industrial Relations Act and the Crimes (Local Courts Appeal and Review) Act . It has been considered recently by the Full Bench in Scevola v WorkCover Authority (NSW) (Inspector Sealey) (2005) 142 IR 233 at [2]-[13]. As in that case, and given our general conclusions as to leave, we do not intend to grant leave to re-argue Drake Personnel Ltd (t/as Drake Industrial) v WorkCover Authority (NSW) (1999) 90 IR 432 or the principles laid down in that case, which have been followed on numerous occasions since. However, there are some issues worth raising at a preliminary level which may require consideration in the future. 59 Section 105 of the Occupational Health and Safety Act provides a prosecutorial discretion as to whether an offence is to be dealt with by the Local Court, or by this Court. It also provides for an appeal to this Court, from the Local Court: 105 Summary procedure for offences (1) Proceedings for an offence against this Act or the regulations are to be dealt with summarily: (a) before a Local Court constituted by a Magistrate sitting alone, or (b) before the Industrial Relations Commission in Court Session. (2) The maximum monetary penalty that may be imposed in those proceedings by a Local Court is 500 penalty units, despite any higher maximum monetary penalty provided in respect of the offence. (3) The provisions of the Industrial Relations Act 1996, and of the regulations under that Act, relating to appeals from a Local Court to the Industrial Relations Commission in Court Session in connection with offences against that Act apply to proceedings before a Local Court for offences against this Act or the regulations. Note. Section 197 of the Industrial Relations Act 1996 deals with appeals against convictions or penalties in connection with offences against that Act. Section 197A of the Industrial Relations Act 1996 provides a right of appeal to the Full Bench of the Industrial Relations Commission in Court Session against a decision of a member of the Commission or a Local Court to acquit a person of an offence against this Act or the regulations. 60 Part 7 Appeals, of Division 4 of the Industrial Relations Act deals with appeals. Appeals in Occupational Health and Safety Act prosecutions are not there mentioned, other than in s 197A. Section 188 provides that an appeal to a Full Bench may only be made with leave. On its face, the section does not exclude appeals in Occupational Health and Safety Act prosecutions. Section 197 deals with various other appeals from the Local Court and provides that the provisions of the Crimes (Local Courts Appeal and Review) Act that apply to appeals from the Local Court to the District and Supreme Courts, are to apply to appeals to this Court. Section 197A provides expressly for a prosecutorial appeal against acquittal, in Occupational Health and Safety Act prosecutions. It is only that section which makes reference to s 191, a reference not made in s 197. Those sections provide: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister 197 Appeals from Local Court (1) An appeal lies to a Full Bench of the Commission in Court Session against: (a) any order made under this Act by a Local Court for the payment of money or the dismissal by the Local Court of an application for such an order (including a dismissal on the ground that it does not have jurisdiction to deal with the application), or (b) any conviction or penalty imposed by the Local Court for an offence against this Act or the regulations, or (c) a civil penalty imposed under this Act by a Local Court for a contravention of an industrial instrument or the dismissal by the Local Court of proceedings for such a civil penalty. (2) The provisions of the Crimes (Local Courts Appeal and Review) Act 2001 that relate to: (a) appeals from a Local Court to the District Court or Supreme Court, and (b) the decisions of the District Court or Supreme Court on any such appeal, and (c) the carrying out or enforcement of any such decision, (including those provisions as applied by section 64 of the Local Courts Act 1982) apply, subject to the regulations under this Act, to any appeal referred to in subsection (1). (3) (Repealed) (4) The Full Bench of the Commission in Court Session may refer a matter the subject of an appeal back to the Local Court with such directions or recommendations as it considers appropriate. (5) Section 179 (Finality of decisions): (a) applies to a decision or purported decision of a Local Court in proceedings to which this section applies in the same way as it applies to a decision or purported decision of the Commission, and (b) without limiting that section, applies to a decision or purported decision of the Commission in respect of proceedings to which this section applies. Note. The provisions of this section are extended to similar proceedings under other industrial relations legislation eg section 14 of the Annual Holidays Act 1944; section 14 of the Long Service Leave Act 1955. 197A Appeals against acquittals in proceedings for offences against occupational health and safety legislation (1) This section applies to the decision of a member of the Commission or of a Local Court constituted by an Industrial or other Magistrate to acquit a person of an offence against the occupational health and safety legislation. (2) This section applies to such a decision only if proceedings for the offence were instituted by an inspector appointed under that legislation or with the consent of the Minister or other officer authorised by that legislation to give such a consent. (3) An appeal lies to the Full Bench of the Commission in Court Session against a decision to which this section applies. The appeal is not limited to a question of law. (4) The appeal may be made by the Attorney General, the Minister, the Director of Public Prosecutions or the prosecutor in the proceedings in which the decision appealed against was made. (5) An appeal may be made within 21 days after the date of the decision appealed against or within such further time (not exceeding 3 months after that date) as the Full Bench or the Commission constituted by a Presidential Member allows. Further time may be allowed, either before or after the end of that 21-day period. (6) Section 191 applies to an appeal under this section. (7) On an appeal under this section, the Full Bench may: (a) dismiss the appeal, or (b) set aside the decision appealed against and make a decision in the matter in accordance with law (including the conviction and sentence of the defendant for the offence charged). (8) If the Full Bench on appeal convicts the defendant of the offence, the maximum penalty that the Full Bench may impose for the offence is the maximum penalty that the court that acquitted the defendant could have imposed for the offence. (9) This section has effect despite anything to the contrary in section 196 or 197. (10) In this section, occupational health and safety legislation means: (a) the Occupational Health and Safety Act 1983 and the regulations made under that Act, and (b) the Occupational Health and Safety Act 2000 and the regulations made under that Act, and (c) the Coal Mines Regulation Act 1982 and the regulations made under that Act, and (d) the Coal Mine Health and Safety Act 2002 and the regulations made under that Act, and (e) the associated occupational health and safety legislation, within the meaning of the Occupational Health and Safety Act 2000. (11) This section does not apply to a decision made before the commencement of this section. 191 Nature of appeal (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received. Note. The above section generally follows the decision of the Full Industrial Relations Commission in Big W Discount Stores v Donato (1995) 58 IR 239 as to the nature of an appeal. The appeals in respect of which the section applies include appeals in connection with awards, unfair dismissals, approvals of enterprise agreements, unfair contracts or contraventions of dispute orders. 61 Section 23, appearing in Part 3 Appeals from Local Court to District Court of the Crimes (Local Courts Appeal and Review) Act, provides for appeals to the District Court, in various circumstances, including appeals against sentence in proceedings for summary offences prosecuted by or on behalf of the Director of Public Prosecutions. Section 26 provides that such appeals against sentence are by way of rehearing. Section 197(1)(b) of the Industrial Relations Act, provides for an appeal on penalty. What rights, if any, s 23 of the Crimes (Local Courts Appeal and Review) Act grants prosecutors such as the appellant in this case (an Inspector of the WorkCover Authority) is a question which appears to arise, particularly given the definition of 'prosecutor' appearing in s 3 of that Act. The intended interaction between the various provisions of the Crimes (Local Court Appeal and Review) Act and the Industrial Relations Act, are somewhat unclear. 62 Sections 23 and 26 of the Crimes (Local Court Appeal and Review) Act provide: 23 Appeals as of right (1) The Director of Public Prosecutions may appeal to the District Court against a sentence imposed on a person by a Local Court in any of the following proceedings: (a) proceedings for any indictable offence that has been dealt with summarily, (b) proceedings for any prescribed summary offence (within the meaning of the Director of Public Prosecutions Act 1986), (c) proceedings for any summary offence that has been prosecuted by or on behalf of the Director of Public Prosecutions. (2) The prosecutor may appeal to the District Court against: (a) any order for costs made by a Magistrate against the prosecutor in respect of committal proceedings taken by the prosecutor, or (b) any order for costs made by a Local Court against the prosecutor in respect of summary proceedings taken by the prosecutor. (3) An appeal must be made within 28 days after the relevant sentence is imposed. (4) Despite subsection (3), an appeal may be lodged more than 28 days after the relevant sentence is imposed if: (a) the sentence has been reduced on the defendant's undertaking to assist law enforcement authorities (as referred to in section 23 of the Crimes (Sentencing Procedure) Act 1999), and (b) the defendant has failed, whether wholly or partly, to fulfil the undertaking. 26 Appeals against sentence to be by way of rehearing of evidence (1) An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings, but only by leave of the District Court. (2) Leave to give fresh evidence may be granted to the Director of Public Prosecutions only in exceptional circumstances. prosecutor , in relation to proceedings from which an appeal or application for leave to appeal is made, means the person responsible for the conduct of the prosecution in those proceedings. 63 Section 56, appearing in Part 5 Appeals from Local Court to Supreme Court of the Crimes (Local Courts Appeal and Review) Act, provides for appeals as of right by prosecutors to the Supreme Court in summary proceedings on a ground that involves a question of law alone. Section 57 provides, amongst other things, for an appeal to the Supreme Court against an interlocutory decision in a summary matter, with leave. Given the definition of 'prosecutor' in s 3 of the Act, these appeal rights appear to apply to all prosecutors. Sections 56 and 57 provide: 56 Appeals as of right (1) The prosecutor may appeal to the Supreme Court against: (a) a sentence imposed by a Local Court in any summary proceedings, or (b) an order made by a Local Court that stays any summary proceedings for the prosecution of an offence, or (c) an order made by a Local Court dismissing a matter the subject of any summary proceedings, or (d) an order for costs made by a Magistrate against the prosecutor in any committal proceedings, or (e) an order for costs made by a Local Court against the prosecutor in any summary proceedings, other than an order or sentence with respect to an environmental offence, but only on a ground that involves a question of law alone. (2) An appeal must be made within such period after the date of the sentence or order as may be prescribed by rules of court. 57 Appeals requiring leave (1) The prosecutor may appeal to the Supreme Court against: (a) a sentence imposed by a Local Court with respect to an environmental offence, or (b) an order that has been made by a Magistrate in relation to a person in any committal proceedings, or (c) an interlocutory order that has been made by a Local Court in relation to a person in summary proceedings, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (2) An application for leave to appeal must be made within such period after the date of the sentence or order as may be prescribed by rules of court. 64 It is clear from the various statutory schemes, that the question of the prosecution of offences under the Occupational Health and Safety Act is dealt with in that legislation. Section 105 of that Act provides for the prosecutions to be brought either before the Local Court, or the Industrial Court. Section 105(3) provides that the provisions of the Industrial Relations Act in relation to appeals from a Local Court, are to apply to appeals brought in prosecutions of offences under the Occupational Health and Safety Act. 65 It is in this way that the provisions of s 197 of the Industrial Relations Act are made relevant to appeals such as this. The section itself does not refer to such appeals, as s197A does. Section 197 imports the provisions of the Crimes (Local Courts Appeal and Review) Act, which govern appeals from the Local Court to the District and Supreme Courts. Those provisions deal with the question of whether or not leave to appeal is required, in various ways different to the provisions made in s 188 of the Industrial Relations Act. 66 Section 56 of the Crimes (Local Courts Appeal and Review) Act creates appeals as of right to the Supreme Court on questions of law, in relation to, relevantly, sentence, amongst other matters (s 56(1)(a)). The appellant here argues that it follows that similarly, a prosecutor in an appeal such as this, has such a right of appeal to this Court, from the sentence imposed by the Local Court. Section 57 deals with the types of prosecutorial appeals to the Supreme Court in which leave is required. 67 Other prosecutorial appeals from the Local Court to the District Court are granted as of right, by s 23 of the Crimes (Local Courts Appeal and Review) Act, including in relation to sentence in cases prosecuted by on or behalf of the Director of Public Prosecutions. Section 26 provides that appeals against sentence are by way of rehearing, but that leave is required to adduce fresh evidence. Again the appellant argues that it has such a right of appeal here. Such a right of appeal is again, quite different to that contemplated by s 191 of the Industrial Relations Act, which is not referred to in s 197, but is expressly referred to in s 197A. 68 The question of whether leave is required, therefore, depends upon the interaction between ss 197 and 188 of the Industrial Relations Act and the provisions of the Crimes (Local Courts Appeal and Review) Act, having regard to the provision made in s 105 of the Occupational Health and Safety Act. 69 The submissions of Counsel clearly raised for consideration the effect of s 188. Section 188 of the Industrial Relations Act on its face only permits appeals to the Full Bench of this Court with its leave. That provision appears in Part 7 of the Act, which also includes ss 197 and 197A. The provisions made in s 197, by way of incorporation of ss 23 and 56 of the Crimes (Local Courts Appeal and Review) Act, on one view, directly contradict s 188. Section 188 requires leave to be granted. Sections 23 and 56 give certain rights of appeal, as of right. It was the appellant's case that there appears to be an ambiguity on the face of Part 7 Appeals, of Division 4 of the Industrial Relations Act, properly to be resolved on the basis that s 188 of the Industrial Relations Act has no application to appeals such as this, given the later enactment of the Crimes (Local Courts Appeal and Review) Act and s 197(2) of the Industrial Relations Act . 70 If the appellant's construction of the legislation were correct, it would appear to have the curious result that, on appeal from the Local Court, a Full Bench of this Court would be rehearing a prosecution which the prosecutor had elected to bring before the Local Court, thereby significantly limiting the penalty available to be imposed, having regard to that Court's jurisdictional limits imposed by s 105 of the Occupational Health and Safety Act. Various ramifications not addressed by the parties would seem to follow. They include procedural questions, such as, for example, the question of whether fresh evidence on appeal could only be led when 'special grounds exist or if the evidence concerns matters occurring after the decision appealed against.' (s 191 of Industrial Relations Act), or 'in exceptional circumstances' (s 26 of Crimes (Local Courts Appeal and Review) Act. 71 The time fixed for filing an appeal would require consideration. Section 189 of the Industrial Relations Act requires appeals to be brought within 21 days, or within such further time as to Court allows. Section 23 of the Crimes (Local Courts Appeal and Review) Act permits appeals to be brought to the District Court within 28 days. Section 56 permits appeals to the Supreme Court within the time prescribed by the Rules of the Court. 72 The question of what penalty would apply to a rehearing before this Court would also possibly arise, given the provision made in s 105 of the Occupational Health ands Safety Act, that limits the penalty imposed by the Local Court, rather than the penalty available in a prosecution before this Court. 73 These and other questions of construction and their consequences were not substantively addressed by the parties at the hearing; indeed, neither Drake Personnel nor Scevola were discussed. Despite its approach to the construction proposed by the appellant, the respondent did not seek to address these questions of construction in any detailed way and argued that they ultimately did not require consideration in this case. For its part, in oral submissions, the appellant accepted that those questions did not require determination in this case. Such questions may, however, have important ramifications for the hearing of other cases brought on appeal from the Local Court by a prosecutor, particularly given that it is not only Inspectors of the WorkCover Authority, who might prosecute cases such as this. 74 Given the view we have reached, as earlier noted, on the errors of law and inadequacy of the penalty imposed at first instance, we have concluded that it is unnecessary that we deal with the proper construction of these complex statutory provisions in this case. Nevertheless, given the difficulty and importance of the questions raised, we anticipate that they will require careful consideration and evaluation when the appropriate case arises (unless the issues are resolved by parliamentary amendment). Costs 75 We finally note the respondent's submissions that, if the appeal was upheld, no order as to costs should be made against it, given that the appeal had resulted from no failure on its part at first instance, where it had entered a plea at the first available opportunity and had merely exercised its right to resist the appeal brought by the appellant, in relation to alleged manifest sentencing error. 76 We are satisfied that this submission cannot be accepted. While the respondent was, of course, entitled to resist the appeal brought, it cannot be overlooked that the respondent elected to defend the appeal on all grounds, notwithstanding the seriousness of the offence to which it entered a plea and the manifest inadequacy of the penalty imposed, given the evidence as to the nature and quality of this offence. The appellant had other options available to it, on appeal, which it elected not to pursue. 77 We are well satisfied that in the circumstances of this appeal, as a matter of justice, the usual order as to costs must flow in favour of the appellant. Orders 78 For the reasons given, we grant leave to appeal and uphold the appeal; set aside the penalty imposed at first instance and order the respondent to pay a penalty of $9,000, with a moiety to the prosecutor. The respondent is also ordered to pay the appellant's costs of the appeal, as agreed or assessed by the Court. We note that the parties agreed that earlier arrangements for payment should continue in relation to any new penalty arising from the appeal. _______________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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