Industrial Court of New South Wales CITATION: T & M Industries Pty Ltd v Inspector James [2007] NSWIRComm 85 APPELLANT T & M Industries Pty Ltd PARTIES: RESPONDENT Inspector Wayne James (WorkCover Authority of New South Wales) FILE NUMBER(S): IRC 6603 of 2005 CORAM: Haylen J; Staff J; Backman J CATCHWORDS: Appeal - Occupational health and safety - Appeal from fines imposed at first instance - Fine alleged to be manifestly unjust and inordinately harsh - Seriousness of offence - Serious injuries suffered - Foreseeability of risk - Work performed by 17 year old boys unsupervised, without training or qualifications operating a forklift - Difficulties in comparing penalties under the Occupational Health & Safety Act 2000 - Application of Fines Act - Principle of totality - Failure to demonstrate error warranting appellant intervention - Appeal dismissed. Criminal Appeal Act 1912 Fines Act 1996 LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health & Safety Act 1983 Occupational Health and Safety Act 2000 Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Department of Mineral Resources (NSW) v A M Hoipo & Sons (2000) 99 IR 137 Haynes v CI & D Manufacturing & anor (No 2) (1995) 60 IR 455 Independent Cargo and Wool Services Pty Ltd v Inspector Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, 10 March 1994) Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 156 CASES CITED: Inspector Mason v Wild Geese Building and Maintenance Group Pty Ltd (2006) 157 IR 313 Inspector Wayne James v T & M Industries Pty Ltd & anor [2005] NSWIRComm 424 Manpac Industries Pty Ltd v WorkCover Authority (Inspector Glass) (2001) 106 IR 435 Markarian v R (2005) 79 ALJR 1048 Newcastle Wallsend Coal Company Pty Ltd & ors v Inspector McMartin [2006] NSWIRComm 339 Veen v The Queen (No 2) (1987-1988) 165 CLR 465 WorkCover Authority of New South Wales (Inspector Dell) v Baradine Sawmilling Company Pty Ltd and another (2002) 120 IR 102 WorkCover Authority of New South Wales (Inspector Farrell) v MIM Transport Pty Ltd (2002) 112 IR 81 WorkCover Authority (NSW) (Inspector Green) v Big River Timbers Pty Ltd and anor (2006) 156 IR 341 HEARING DATES: 12 March 2007 DATE OF JUDGMENT: 12 April 2007 APPELLANT Mr T R Tisdale (Director of Company) LEGAL REPRESENTATIVES: RESPONDENT Mr R Reitano of counsel Solicitor: Ms F Miller WorkCover Authority of NSW JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: HAYLEN J STAFF J BACKMAN J 12 April 2007 Matter No IRC 6603 of 2005 T & M INDUSTRIES PTY LTD v INSPECTOR WAYNE JAMES (WORKCOVER AUTHORITY OF NEW SOUTH WALES) Appeal by T & M Industries Pty Ltd against a judgment of Justice Schmidt given on 24 November 2005 in matter Nos IRC 3080 and 3082 of 2002 JUDGMENT OF THE COURT [2007] NSWIRComm 85 1 These proceedings involve an appeal under s 196 of the Industrial Relations Act 1996 ("the IR Act") and s 5AA(1) of the Criminal Appeal Act 1912 against a judgment of Schmidt J given on 24 November 2005 in which her Honour convicted the appellant of offences under s 15(1) and s 16(1) of the Occupational Health & Safety Act 1983 ("the Act") following pleas of guilty entered after the hearing was well advanced. The appellant company was represented at the hearing of the appeal by a director, Mr T R Tisdale. 2 Her Honour imposed penalties totalling $135,000: Inspector Wayne James v T & M Industries Pty Ltd & anor [2005] NSWIRComm 424. The appeal was confined to a challenge to the severity of the sentence and the manner in which her Honour arrived at the fines that were ultimately imposed. Such an appeal is an appeal in the strict sense (see Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304; Newcastle Wallsend Coal Company Pty Ltd & ors v Inspector McMartin [2006] NSWIRComm 339 at [35]. It is therefore necessary for the appellant to establish error in the setting of the penalty imposed by Schmidt J, but even if error is shown the sentence may not be altered or varied unless the appeal bench is satisfied that some other sentence is warranted. 3 The offences arose out of an accident which occurred on 15 July 2000 when Rhys Stevenson, a casual general hand and labourer not in the appellant's employ, was seriously injured when struck by a load of metal products, weighing approximately 1.2 tonnes, that fell from a forklift. The forklift was being operated by another casual general hand and labourer, Leon Gardiner, an employee of the appellant, who was moving the load of metal products, from one location to another at the appellant's Smithfield premises. Mr Stevenson was providing guidance to Mr Gardiner in respect of the movement of the load. Mr Gardiner did not possess the appropriate certification such as would have lawfully permitted him to operate the forklift. Both of the employees, at the time of the incident, were 17 year old high school students. Mr Gardiner had been employed for three to four months prior to the incident. It was Mr Stevenson's first day at work. Importantly, Mr Gardiner was employed by the appellant company, while Mr Stevenson was employed by another company that had a relationship with the appellant company, the details of which were not disclosed in the judgment. It appears that Mr Tisdale was a director of both companies. 4 As a result of the incident, Mr Stevenson sustained a major midline skull fracture, multiple hairline skull fractures, collapsed lung, fractures to the orbit of the right eye, fractured right maxilla, major fracture of the pelvis, fractured coccyx, fractured acromio clavicula joint, fractured nose and broken teeth. He experienced impaired vision to his left eye causing double vision, short term memory loss and inability to concentrate. 5 The appellant had no system in place to control and monitor the use of forklift trucks at its Smithfield premises at the date of the incident. A key, necessary to start the forklift, was either left in the ignition of the vehicle, or in the possession of a storeman. On the date of the incident, the key to the forklift truck was left in the ignition, and accordingly, there was no impediment to Mr Gardiner accessing the key and operating the vehicle. 6 Schmidt J, after reciting the facts, including those referred to above, found the offences were serious, involving dangerous work, and employees who were young, untrained and unsupervised in forklift operations. The accident was the materialisation of the obvious risk inherent in the approach adopted with one of the boys suffering terrible injuries. 7 Her Honour observed it was plainly a matter of good luck that the injuries were not more serious and that forklift operations were notoriously dangerous, as the authorities well demonstrated, even when trained and experienced operators were involved in driving them. 8 Her Honour then observed, referring to the post offence measures which the appellant had implemented, as follows at [35]: The evidence also well demonstrated the simple steps available which would have precluded the accident, which included ensuring that keys were not left in the forklift ignition and that forklift operations were undertaken by the appropriate trained and supervised member of staff. Such steps were implemented without difficulty after the accident. It follows that all of these matters must lead to a substantial penalty. The offence involved young, untrained boys operating dangerous forklift equipment to carry heavy loads while entirely unsupervised. The risk to which they were exposed included the risk of death. Very serious injury was, in fact, sustained by Mr Stevenson. All of those matters must lead to a substantial penalty. 9 Her Honour recorded that the appellant faced maximum penalties of $550,000 for each offence. 10 Having earlier recorded that the appellant entered pleas of guilty at the close of the hearing of the prosecution's case, resulting in some efficiencies being achieved, given the time and circumstances in which the pleas were entered, her Honour concluded that a discount of 10 per cent should be allowed for these utilitarian benefits. Her Honour also determined that some further discount may properly flow, given the defendant's prior approach to safety and the steps taken after the accident. 11 The principles of general and specific deterrence were then referred to by her Honour, who considered that appropriate weight should be given to both factors in setting on an appropriate penalty. 12 Her Honour then considered s 6 of the Fines Act 1996, noting that there was evidence that, while solvent, the defendant had a limited ability to meet a fine as at the date of the hearing, but this depended on cash flow and profit, of both the defendant and a related company T & M Engineering Group Pty Ltd. Her Honour stated that she had taken this evidence into account in order to reduce the penalty which otherwise, would have resulted. 13 Her Honour concluded that a proper penalty resulting from the variously nominated considerations was $121,500 in each case resulting in a total fine for the two offences of $243,000. Applying the principle of totality, her Honour reduced this sum to $135,000 for both offences and then divided that penalty equally in relation to the s 15(1) and s 16(1) offences. In doing so, her Honour accepted the appellant's submission that, having regard to the fact that the two offences arose out of the same incident, a global approach should be taken to ascertain the overall criminality of the offence. In adopting this course, there is no doubt that her Honour properly calculated the penalty for each offence, reviewed the aggregate sentence, considered whether the aggregate sentence was just and appropriate, and then significantly reduced the total penalty before dividing that penalty equally between the two offences. After applying the principle of totality her Honour imposed penalties of $67,500 for each offence. Grounds of Appeal 14 The grounds of the appeal were that the penalty was manifestly unjust and inordinately harsh in that her Honour failed to give any, or adequate consideration to the relevant factors on sentencing. In particular, the appellant emphasised the subjective factors which would mitigate against the excessive penalty including the particular financial means of the defendant. Consideration 15 On the evidence there can be no doubt that her Honour was correct in her conclusion that the offences were serious. It was significant that there were two young men put at risk in the performance of this work employed by different companies. The appellant company had a duty to ensure that each of them was able to work at the appellant's premises without risk to his safety. Notwithstanding the serious nature of the offences, her Honour, in coming to a global view of the criminality of the offences, considered that an appropriate penalty would be a $121,500 for each offence against a maximum penalty in each case of $550,000, placing those fines in the lowest quartile of the range. Application of the principle of totality substantially reduced that relatively low fine. In making these observations, the Court is not to be taken to endorse a mathematical approach to the fixing of penalties under the Occupational Health and Safety Act 2000 and such an approach to sentencing has long been rejected. 16 There are many considerations that inform the sentencing exercise. As was famously said in the joint judgment of the High Court in Veen v The Queen (No 2) (1987-1988) 164 CLR 465 at 476: The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions . The complex nature of the sentencing task did not appear to be recognised in the written submissions and oral submissions for the appellant company: the focus was on a purely mathematical approach, comparing the sentence imposed by her Honour with three other cases involving forklifts or tractors in order to make out a case that the penalties imposed in these matters were unjustifiably high. 17 The starting point for considering the appropriate penalty is the objective seriousness of the offence. The task of the Court in sentencing is to assess the relative seriousness of the offence in relation to a case for which the maximum penalty is provided and to impose a penalty, which correlates with the relative seriousness of the offence, on a scale from zero to the maximum: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; Independent Cargo and Wool Services Pty Ltd v Inspector Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, 10 March 1994). 18 The evidence and her Honour's judgment showed that the risk which materialised, was the risk of serious injury or death resulting from young, untrained and unsupervised employees being involved in operating a forklift and handling an awkward and heavy load. It was clear, on the evidence, that Mr Stevenson was fortunate that he did not suffer more serious injuries. 19 The risk which materialised was obviously foreseeable. Two 17 year old boys were required to work, unsupervised, and without training or qualifications in operating a forklift which was carrying a load of 1.2 tonnes. The load comprised two bundles of formed metal products. One bundle consisted of 26 lengths of metal products, themselves ranging in length from 4.95 metres to 6.18 metres, and the other bundle consisted of 30 lengths of metal products, ranging in length from 6.2 metres to 7.14 metres. The forklift was operated in a forward direction so that the mast end of the truck was downhill as it travelled down a slightly graded concrete driveway. Mr Stevenson walked alongside the raised load and provided Mr Gardner with guidance as to the movement of the load. The load was therefore not only heavy but also comprised various lengths of product, raising issues of manoeuvrability and stability. 20 As her Honour found, it was entirely foreseeable in those circumstances, that young men given dangerous work to do for which they were untrained and unsupervised, involved a substantial risk leading to the imposition of a substantial penalty. Simple steps which would have precluded the accident, such as ensuring that the keys were not left in the forklift's ignition and that the forklift operations were undertaken by appropriately trained and supervised members of staff, were demonstrated by the evidence and were taken into account by her Honour. Her Honour made two important findings of particular relevance to the appeal. In paragraph [20], her Honour said: Prior to and as at the date of the incident involving Stevenson the defendant had no system in place to control and monitor the use of forklift trucks at the Smithfield premises. At paragraph [33], her Honour stated: It was an agreed fact that neither Mr Gardner nor Mr Stevenson were trained in forklift operations. Given the dimensions and weight of the steel in question, there can be no doubt that it was intended that the work would be done by use of the forklift. This was also consistent with the undoubted fact that Mr Gardner had used the forklift before. It follows that even an arrangement under which Mr Cheng was to supervise the forklift work to be undertaken by the two boys, could not have ensured that the defendant met its obligations under the Act. 21 The appellant referred to three judgments of this Court in an attempt to demonstrate that lesser fines have been imposed in other cases. In our view, such an approach fails to recognise the true nature of the sentencing process, as outlined by the High Court in Markarian v R (2005) 79 ALJR 1048, particularly the observations of McHugh J at [65], namely, that discretionary sentencing is not capable of mathematical precision or approximation: at best, experienced judges would agree on a range of sentences that reasonably fit all the circumstances of the case and there was no magic number for any particular crime when a discretionary sentence was to be imposed. 22 Recently, a Full Bench in dealing with a similar submission comparing cases and penalties, in Inspector Mason v Wild Geese Building and Maintenance Group Pty Ltd (2006) 157 IR 313 observed at [38]: ... We consider that there are real difficulties in comparing penalties imposed under the Occupational Health & Safety Act, even in cases where there is an essential common feature, such as a falling incident, crashing incident, etc. because of the myriad of differing surrounding factual circumstances in the cases. ... 23 During submissions the appellant handed up the three judgments upon which it relied to illustrate the severity of the penalty imposed by Schmidt J. At the same time the appellant handed up a table purporting to compare the sentence presently under appeal with the sentences imposed in judgments within this jurisdiction. 24 The first of the judgments is WorkCover Authority of New South Wales (Inspector Farrell) v MIM Transport Pty Ltd (2002) 112 IR 81 a decision of Walton J, Vice President. The judgment concerned an offence under s 16 of the Act to which a plea of guilty had been entered by the defendant. The offence arose in circumstances where on in August 1997 a worker, Wasyl Sabal, aged 74 years suffered fatal injuries at the defendant's place of work when he became trapped under the rear wheels of a forklift truck. At the time the forklift was being driven by another worker who had not been given permission to operate the forklift truck and who did not hold a certificate of competency to lawfully operate it. A contributing factor to the circumstances of the offence was that shortly before the accident the keys had been left in the ignition of the forklift. Walton J imposed a penalty of $70,000. In doing so his Honour took into account the maximum penalty which was $500,000 as well as a number of features his Honour found mitigated the otherwise objective seriousness of the offence. These included the fact that the defendant had in place a policy which required the removal of the keys from the ignition of the forklift truck when left parked and unattended. This finding was qualified, however, by his Honour's further finding that the defendant had nevertheless failed to prevent a practice which had developed of leaving the keys in the ignition of the forklift truck. Other findings which were found to mitigate the objective seriousness of the offence were that the worker who had left the keys in the ignition of the forklift truck was a senior employee who should have secured the forklift truck before leaving the premises and the fact that the worker who drove the forklift truck had acted in an unauthorised manner. In addition specific deterrence was accorded little weight. His Honour also found that strong subjective factors operated in favour of the defendant including a plea of guilty at the first reasonable opportunity for which a discount of twenty five per cent was awarded as well as contrition and good industrial citizenship. 25 The second judgment was a decision of Kavanagh J in Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 in which her Honour imposed a penalty of $65,000 following a plea of guilty to one offence under s 15(1) of the Act. The offence the subject of that judgment again involved a forklift which was being operated by an employee who rolled the truck trapping another employee beneath the mast area and causing severe spinal injuries. At the time of the accident none of the defendant's employees were qualified to operate the forklift truck. Her Honour found that the offence was a "serious breach" of the Act and fell "...into the category of a worst case". Her Honour also considered that the subjective features mitigated the otherwise objective seriousness of the offence, especially the serious economic circumstances of the defendant. 26 The third judgment was a decision of Haylen J in WorkCover Authority of New South Wales (Inspector Dell) v Baradine Sawmilling Company Pty Ltd and another (2002) 120 IR 102. In that judgment both defendants entered pleas of guilty which the prosecutor conceded were "early pleas" to breaches of s 15(1) and s 17(1)(b) respectively of the Act. The offences involved an accident in which a casual worker suffered injuries while driving a tractor on a stock pile of wood chips. While the worker attempted to change gears, the tractor ran down a slope and rolled over, trapping the worker underneath. At the time of the accident the worker was not authorised to drive the tractor. His Honour found that the offences were serious, the injured worker was 16 years old at the time of the accident and had been employed for only five days. Nevertheless the facts disclosed, and his Honour found, that the accident was an aberration, a conclusion accepted by both parties and available in the context of the evidence tendered on sentence which revealed long histories of safe working by both defendants. His Honour also considered that strong subjective features operated in the defendants' favour including the early pleas of guilty for which discounts of twenty five per cent were found to be justified. A penalty of $39,000 after taking into account totality was awarded against each defendant against a statutory maximum of $550,000 for each offence. 27 It will be immediately apparent from the brief summaries of the three judgments referred to above that there are a number of significant differentiating features between each of those judgments and the judgment the subject of this appeal. In MIM Transport for example the accident victim was 74 years of age, the maximum penalty was $500,000 and the trial judge found a number of features which operated to reduce the defendant's culpability. In Baradine Sawmilling the finding was made that the circumstances of the offences which occurred in the context of a long history of safe working practices in respect of both defendants, constituted an aberration. The penalty of $65,000 in Planada Holdings may perhaps be characterised as a reflection of the range of the penalties available for what are otherwise found to be serious breaches of the legislation in circumstances where the defendant was all but bankrupt. All three judgments involved early pleas of guilty which justified discounts of twenty-five per cent. In comparison her Honour Justice Schmidt found the plea of guilty warranted a discount of ten per cent in circumstances where it had been entered at a relatively late stage of the proceedings. None of the judgments involve two 17 year old boys operating a forklift and working unsupervised. None of them involve two 17 year old boys being required to carry out work which they were not in any way trained to do, nor did they involve a heavy and unwieldy load. Her Honour's findings set out at [20], [24] and [33] of her judgment mark this as a particularly serious offence. 28 The charges to which the pleas were entered were that the appellant failed to ensure the health and safety at work of its employees, and that persons not in its employment, were not exposed to risks to their health and safety arising from the conduct of its undertaking. The particulars referred to the failure by the appellant to provide or maintain a system of work for the use and operation of a forklift truck in the course of transporting a load of metal products that was safe and without risks to health. A further failure was not ensuring that the persons operating the forklift truck were qualified, supervised and had adequate instruction and training. It is this formulation of the charge that explains why the agreed statement of facts referred to Mr Gardiner not having appropriate certification to permit him to use the forklift, and in so doing, to raise the tines of the forklift approximately five feet above the ground in order to avoid a motor vehicle which was parked and unattended upon the driveway, causing the load to become unstable, wobble and ultimately fall. 29 As the Full Bench recently stated in Inspector Mason v Wild Geese Building and Maintenance Group Pty Ltd, adequate regard has to be paid to the evidence as to the objective features of the offence. Their Honours observed at [41]: 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. See also 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 Limited (2000) 95 IR 383; WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163. In the enthusiastic presentation of the case on appeal, Mr Tisdale was not guided by this approach. The submissions on appeal frequently promoted subjective factors as controlling the sentencing exercise. In the present case, the system of work, the foreseeability of the risk, the serious nature of the risk together with considerations of general and specific deterrence did not allow for a lower level of penalty. 30 Considering the nature of the two offences, the members of this Court note the seriousness of the offence and the particulars to which the appellant has pleaded guilty and the findings of fact made by her Honour which were not called into question on the appeal. As has already been observed, the facts and circumstances of this case are significantly different from the three judgments so heavily relied upon by the appellant as demonstrating the severity of the fines imposed by her Honour. In oral argument, Mr Tisdale accepted that there were many more judgments dealing with the use of forklifts and that no survey had been conducted of those cases in an attempt to construct a useful range of penalties which might be of some relevance to the consideration of the Court, although it, too, would need to be treated with great care. Undoubtedly, those three cases were chosen because they were thought to demonstrate a significantly lower penalty regime. That conclusion only follows if it is proper to ignore the fact that there were two offences here rather than one. The two offences are properly subject to considerations of totality: thus, the total criminality of the offence may be established. The 10 per cent discount allowed for the plea of guilty entered at a time when the prosecution case had closed might be regarded as somewhat generous but on appeal, this Court would not alter that level of discount. A further discount was properly allowed for the other subjective factors identified by her Honour. 31 The appellant, in particular, contended that her Honour had failed to give adequate attention to the means of the appellant in applying s 6 of the Fines Act. We disagree. The relevant principles in relation to the application of s 6 of the Fines Act have been considered in a number of judgments in this jurisdiction. Most recently, the Full Bench stated in Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 156 at [21]: Her Honour also appeared to take into account the respondents' capacities to pay fines, notwithstanding that there was no evidence placed before her to enable any assessment of their respective financial means. Section 6 of the Fines Act 1996 NSW requires a court, in the exercise of its discretion to fix the amount of any fine, to give consideration to the defendant's means to pay the fine. In doing so, the section requires the court 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. Plainly, s 6 provides the court with an obligation to consider the defendant's means in a practical and commonsense way. Nevertheless, the consideration must not be, in proceedings under the Occupational Health and Safety Act, ritualistic or token, so that where a defendant relies on the provisions of s 6 of the Fines Act in such proceedings to temper the amount of any fine to be imposed, the defendant bears the onus of placing appropriate evidence before the court to enable it to give proper consideration to the exercise of its sentencing discretion. See also WorkCover Authority of New South Wales (Inspector Robert Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363 at [35]. 32 While the Court has always had regard to the financial means of a defendant when considering the question of penalty, it has been noted that the purpose of a fine is primarily to punish the offender although the level of that fine, to an extent, will depend upon the financial circumstances and resources of the offender (Department of Mineral Resources (NSW) v A M Hoipo & Sons (2000) 99 IR 137 at [50]). That requirement needs to be placed in the context of what was said by a Full Bench of the Court in Manpac Industries Pty Ltd v WorkCover Authority (Inspector Glass) (2001) 106 IR 435, where the Full Court stated: ... s 6 of the Fines Act 1996 (NSW) provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process ... However, given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209 - 210, Wright J, President observed: Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence ... 33 In our view, her Honour's approach was entirely consistent with the above principles. The records which are contained in the appeal book include a valuation report dated 30 June 2002 for property owned by the appellant in the amount of $3,350,000, as well as profit and loss statements, balance sheets and a statement of the appellant's financial position as at 31 December 2003. Although the records do not include banking records or income tax returns (which no doubt would have shed further light on the appellant's financial position) they nevertheless disclose that as at 31 December 2003 the appellant had a surplus of assets to meet liabilities in an amount of $830,790. It would appear that her Honour had in mind this evidence when her Honour found that the appellant had a limited capacity to pay a fine and decided to take this evidence into account to reduce the penalty. In accordance with longstanding authority cited above, the recognition of the financial circumstances of the appellant does not automatically result in a low level penalty or one that ultimately does not reflect the objective seriousness of the offences. 34 In addition, it is to be noted that in the course of submissions on appeal, Mr Tisdale conceded that the successful application to pay the fine by instalments addressed the financial circumstances of the appellant company. 35 The appellant also regarded the two charges as being unnecessary and flowing from the mere accident of Mr Stevenson being employed by another company operated by Mr Tisdale. There was no evidence, however, addressed to the purpose of such an approach nor of the details of the arrangements between the companies that might have led to the approach adopted by the Full Bench in Haynes v CI & D Manufacturing & anor (No 2) (1995) 60 IR 455 (and adopted in the Barradine Sawmilling case: but now, as to totality, that approach has been overruled by the Full Bench in WorkCover Authority (NSW) (Inspector Green) v Big River Timbers Pty Ltd and anor (2006) 156 IR 341. Her Honour, therefore, was left to consider two offences affected by the application of the principle of totality which itself has resulted in a much reduced penalty being imposed. The appellant has been unable to demonstrate any error that would warrant appellate intervention. There were two charges brought against the appellant and we can see no error made by her Honour in the application of the principle of totality - it was an approach we would be comfortable in adopting. The fines imposed by her Honour, in our view, were within the range of appropriate sentences in all the circumstances, once weight was given to the objective seriousness of the offences which must be reflected in the penalty imposed. ORDERS 36 For the reasons given, we make the following order: The appeal is dismissed. ------------------------------------------------ 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.