Ayton v City of Armadale - [2018] WASC 393

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   AYTON -v- CITY OF ARMADALE [2018] WASC 393
CORAM:   KENNETH MARTIN J
HEARD:   24 OCTOBER 2018
DELIVERED          :   24 OCTOBER 2018
PUBLISHED           :   14 DECEMBER 2018
FILE NO/S:   SJA 1067 of 2018
BETWEEN:   LEONA YVONNE AYTON
Appellant
AND
CITY OF ARMADALE
Respondent

ON APPEAL FROM:
For File No:   SJA 1067 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M LEMMON
File Number             :   AR 9210 of 2017

Catchwords:

Occupational safety and health - Prosecution - Local authority - Single judge appeal - Appeal against sentence alleged leniency - Sentencing considerations - Discretion of sentencing magistrate - No errors of principle by magistrate

Legislation:

Occupational Safety and Health Act 1984 (WA)
Criminal Appeals Act 2004 (WA)

Result:

Leave refused on ground 1 and ground 2
Leave granted on ground 3, but appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms C J Thatcher & Mr N T L John
Respondent	:	Mr M Zilko SC & Mr G C Northmore

Solicitors:

Appellant	:	State Solicitor's Office
Respondent	:	Gilchrist Connell

Case(s) referred to in decision(s):

BHP Billiton Iron Ore Pty Ltd v Capon [2014] WASC 267 (S)
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Goddard v City of Stirling [2009] WASC 28
Scherini v Cleveland Freightliners Pty Ltd [2018] WASC 5

KENNETH MARTIN J:

(This judgment was delivered extemporaneously on 24 October 2018 and has been edited from the transcript.)

Introduction

This is a prosecution appeal against sentence pursuant to the Criminal Appeals Act 2004 (WA) and pursuant to s 8(1) which says:
An appeal may be made under this Division on one or more of these grounds -
(a)that the court of summary jurisdiction -
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
Historically, a plea hearing had been convened before Magistrate Lemmon in the Magistrates Court sitting at Armadale on 5 April 2018 -at which his Honour was then dealing with two charges against the City of Armadale ('the City'). Only one of those charges is the subject of the prosecution's present application seeking leave to appeal heard today, namely, AR 9210 of 2017. This was the charge against the City that it, as an employer, had failed to ensure the safety or health of a person who was not an employee or was not adversely affected as a result of work undertaken and thereby caused serious harm pursuant to s 21(2) of the Occupational Safety and Health Act 1984 (WA).
The City had entered a plea of guilty to that charge, in fact, pleading guilty to both charges then raised against it, heard that day before the learned magistrate.
His Honour ultimately imposed a fine of $30,000 in respect of the offence that is presently the subject of today's application for leave to appeal. It is uncontroversial that the maximum penalty (then) for the offence was $400,000, given that this was the City's first offence against this legislation. I do note that maximum penalty has since increased to $2 million: see Occupational Safety and Health Act s 3A(3)(b)(i), as it was amended by Occupational Safety and Health Amendment Act 2018 s 4, taking effect from 7 September 2018.
As I have said, his Honour at the same time had also dealt with a second charge against the City. That charge alleged that the City failed to comply with a prohibition notice that had been issued to it pursuant to s 49(5) of the Occupational Safety and Health Act. The charge had arisen out of a notice which had been issued by a WorkSafe inspector on Monday, 11 August 2014. That was the day following the incident that gave rise to the first charge. The notice had prohibited any activity by the City in respect of front-end loaders vis-à-vis the members of the public. A week later the prohibition notice was observed to have been breached.
Contextually, I mention the other charge, and the fine of $17,000 that was also imposed on it concerning the plea of guilty by the City to a breach of the prohibition notice. I do so because the learned magistrate at the sentencing hearing was then contemporaneously dealing with pleas of guilty made by the City to both charges within his oral sentencing remarks. That dual feature as regards the City needs to be appreciated, even though today I am only concerned with a challenge to the sentencing disposition on one of the offences.
The sentencing hearing before Magistrate Lemmon on 5 April 2018 essentially took all day. Respective counsel all spoke that day to their extensive written materials provided to the learned magistrate which were relied upon. The learned magistrate then reserved his decision towards penalties for consideration.
Two weeks later, that is, on 19 April 2018, his Honour delivered his sentencing remarks and dispositive penalties on all charges. The learned magistrate's verbal reasons of 19 April 2018 were duly transcribed and are before me today. But, essentially, they are extempore and delivered after extensive pleas in mitigation made by counsel for the City of Armadale. There was also a third charge dealt with that day. That was a plea of guilty by counsel for the City's waste facility supervisor, a Mr David Druid-Sutton, for his alleged personal supervisory culpability arising out of the same underlying incident that founded the substantive charge against the City. Mr Druid-Sutton also pleaded guilty to that personal charge and this third charge was dealt with in the sentencing remarks as well.
The learned magistrate's ultimate penalty as imposed on the primary charge was the fine of $30,000 against the City upon that first charge -of the City failing to ensure a safe workplace. That penalty is the sole subject of today's single judge appeal by the prosecutor, a Ms Ayton, of 16 May 2018.
By way of further background, the underlying incident which saw the City charged with this statutory offence had occurred on Sunday, 10 August 2014. On that Sunday, a member of the public, a Mr Kyle Booth, had been injured at the green waste area - within a waste facility that was operated by the City. Mr Booth had been struck in very unfortunate and regrettable circumstances by a reversing front-end loader of the City operating in that green waste area. The impact had caused Mr Booth a severe injury - by damage to his legs and to other internal organs. That incident caused Mr Booth to be hospitalised and to require significant medical treatment thereafter.
However, there was no victim impact statement by Mr Booth tendered to the learned magistrate at the sentencing hearing. That is unusual in such matters where there is a serious personal injury. The sentencing hearing had proceeded on the basis Mr Booth had sustained a very serious personal injury in the incident of 10 August 2014, but no more details than that. Nothing was said about any civil proceedings by Mr Booth arising out of the incident. Clearly, however, Mr Booth had survived the incident
As I previously mentioned, the prosecution had proceeded on the basis of two pleas of guilty entered by the City to two charges for breaches against the Occupational Safety and Health Act. This was accompanied by the separate individual charge brought against the City's immediate supervisor of the waste facility, Mr Druid-Sutton.
Mr Druid-Sutton had been independently represented by separate counsel at the hearing before Magistrate Lemmon. His plea of guilty and sentencing disposition was also the subject of his Honour's penalty assessment and a fine delivered in his reserved remarks, at that same time.
The sentencing hearing had proceeded on the basis of an agreed statement of material facts, which had obviously been negotiated over by the respective legal representatives on all sides. It is an extensive document. A similarly structured agreed statement of facts (with some differences) was also agreed as between the prosecutor and the representatives of Mr Druid‑Sutton for the purposes of the sentencing exercise as well.
I will incorporate by reference but not repeat all of what was the agreed statement of material facts settled upon as between the prosecutor and the City before the learned magistrate. They are some 63 paragraphs in overall length. They also contain a plan of the relevant waste treatment facility operated by the City.
In terms of this 2014 incident, I particularly highlight par 20 and then pars 26 - 28 of these underlying agreed facts in these terms.
20.The Operators manual for the Volvo Loaders which were in use at the Facility included the hazard of blind spots when reversing and basic work procedures to follow when operating them.
...
26.Prior to August 2014 the Directive and JSAs the City had previously put in place to manage the separation of pedestrians and vehicles from the front-end loaders at the Green Waste Area were not being enforced or practised by the Facility Supervisor, Mr Woodenberg. In August 2014 there were no barriers in use and spotters were not being used in the Green Waste Area. Facility staff employed in August 2014 had not been trained about either the use of spotters or physical barriers. Loader operators generally tried to operate the loaders when members of the public were not present however this was not always possible.
27.However, no City officer or employee, above Mr Woodenberg, was aware of that, as it was never noticed by, nor raised with, Mr Druid-Sutton by anyone during his visits to the Facility, nor identified during internal routine safety audits, since WorkSafe had issued their Improvement notices in 2005. There had never been a prior incident of a loader colliding with anything or anyone at the Green Waste Area in its 15 years of operation.
28.If the City, through its senior officers had become aware that loaders were being operated in close proximity to members of the public, immediate steps would have been taken to redress that omission.
I also now incorporate by reference into these reasons, without repeating the verbatim transcript, the reserved sentencing remarks delivered by Magistrate Lemmon on 19 April 2018. That was, as I indicated, after he had, effectively, adjourned for two weeks - to consider what was then across the three charges he was dealing with, a voluminous amount of material both in writing and augmented by the extensive verbal submissions made on 5 April 2018.

Grounds of appeal

The grounds of appeal which have been lodged by, effectively, a person initiating prosecutions under the Occupational Safety and Health Act, seeks to advance three grounds of challenge against the $30,000 fine penalty disposition of the learned magistrate upon the primary charge.

Ground 1

The first ground of appeal in respect of which leave is sought is that the learned magistrate erred in fact by the finding that the respondent's offending, as regards the injury to Mr Booth on 10 April 2014, fell into a mid to low level range upon the scale of seriousness.
All grounds of this proposed appeal require leave. To reach that end, they must display some arguable merit. For reasons I will soon explain, I am not in the end persuaded to give leave in respect of ground 1 as a standalone ground of arguable merit. This is because the assertion that there was an error of fact made by the learned magistrate's overall gradation of the offence is, in my view, wholly unarguable and unsustainable as an asserted error of fact.
In my view, his Honour's comment in his sentencing remarks that this offending fell in a 'low to mid range' upon the scale of seriousness was clearly an evaluation or a gradation by him of the multiple overall elements both of fact and law - rendered at the end of his reasons. This, in the end, was a characterisation of many diverse factors by way of a conclusion. It was not a purely factual characterisation.
So the conceptual basis of ground 1 is misconceived at the beginning. Hence, I would not give leave for it to be pursued any further.
However, the prosecutor's general submission about the seriousness of this charge will still be heard as a general submission as a part of its ground 3, as I will explain. Indeed, that was essentially the position as was seen embodied in the written submissions of the prosecutor on this leave application to this court:
45.Rather than address each ground of appeal independently, it is convenient to deal with grounds 1 and 2 in the course of dealing with ground 3, because the Appellant's submission is that the Magistrate's discrete error in characterising the role of Mr Woodenberg (ground 2) was one aspect of his Honour's misidentification of the seriousness of the Respondent's offending (ground 1), which itself contributed to the inadequacy of the fine imposed (ground 3).

Ground 2

Ground 2 is expressed in terms that the learned magistrate erred in fact and law in finding that the respondent's culpability for charge 1 was reduced due to the conduct of the manager, Mr Woodenberg, and that he was a very difficult employee to manage.
Again, I would not give leave to appeal on ground 2 - on the basis that I assess it to be of no arguable end merit, once the remarks of the learned magistrate concerning Mr Woodenberg are viewed in proper context, within the overall scheme of the extempore reasons dealing with three charges on that occasion. As seen what the learned magistrate had said (see page 7 of his Honour's transcribed reasons of 19 April 2018) was:
The only conclusion that I can reach from these events in the immediate aftermath of Mr Booth's accident on 10 August is that, at least as of August 2014, Mr Woodenberg was a very poor manager with little or no regard for the safety of the working area that he was responsible for supervising. I'm not sure that I - it would be accurate to describe Mr Woodenberg as a rogue employee.
His Honour had continued:
What I would say is that clearly at the time of the accident in August 2014, Mr Woodenberg was a very difficult employee to manage.
I accept that to some limited degree that reduces the culpability of both accused.
Upon ground 2, I repeat again that his Honour had also been dealing with the guilty plea by Mr Druid-Sutton. Hence, his Honour needed to evaluate that offence as well. Mr Druid-Sutton was the immediate supervisor of Mr Woodenberg at the City.
His Honour had continued in his remarks:
I say to some limited degree because it seems to me that Mr Woodenberg's deficiencies as a manager must have been obvious for some time in the lead-up to the accident in August 2014. Mr Druid‑Sutton and, by extension, the city, should have been alerted to the fact that at least, as far as safety was concerned, Mr Woodenberg's supervision of the facility needed to be supervised and monitored very closely.
This is especially so in light of the earlier instances at the facility that I've referred to.
...
I don't accept that the August 2014 accident involving Mr Booth was a complete aberration. Whilst responding to those incidents had to its - to those earlier incidents that I referred to had its challenges, largely because of Mr Woodenberg's deficiencies, that response was clearly flawed.
Having said all that, I don't accept, however, the prosecution's submission that the occurrence of the earlier incidents elevates the case so that I [sic] should be regarded as being at the higher end of the scale of seriousness.
At page 8 of the transcript his Honour also said:
I will come back to this at the end
and added:
and I say - make these remarks in relation to the level of culpability in relation to the offence under section 49, subsection (5).
I would interpolate that his Honour was referring then to the second charge in relation to the breach of the prohibition notice as was issued by a WorkSafe inspector. That, of course, is not relevant today, other than contextually. But his Honour's remark about 'culpability' at that point was explicitly directed, as I would see it, to the second of the two offences concerning the City that he was dealing with from a penalty and sentencing perspective.
His Honour continued:
The day following the serious incident on 10 August 2014, the City was given a prohibition notice.
I must say a little bit more about two earlier incidents referred to in these remarks. They were also the subject of what were the wholly agreed facts as submitted on all sides. There is no suggestion at all of any misunderstanding of any of these agreed facts by the learned magistrate.
A so‑called first incident referred to was an event that had happened other than within the green waste area, in April 2006. In October 2005 a WorkSafe officer had attended the City's waste management facility and issued two Improvement Notices concerning the movement of vehicles. There is no suggestion that those Improvement Notices were disregarded or ignored by the City. In fact, there is positive evidence that action was taken upon them by Mr Druid‑Sutton at the time, ie, roughly eight (8) years before the incident the subject of today's application. The real question is the inadequacy of Mr Druid-Sutton's actions in 2005.
The so-called first incident of April 2006 had concerned a front-end loader that was then reversing, then impacting with, a vehicle of a City employee. That had happened in 2006 in the general tipping area and some relatively minor injuries had then been occasioned to the employee of the City: scrapings or cuts to the arm and wrist of that employee. No WorkSafe charges arose from this 2006 incident.
Following that incident there was then an inquiry undertaken personally by the City about that incident by Mr Druid‑Sutton and others. So, there is no suggestion that the 2006 incident was ignored or not taken seriously by the City at the time.
There were no further incidents concerning the City's waste facility until July 2012, when there was a second incident.
This time a front-end loader had reversed into a truck that was owned or operated by an employee of the City. That had happened in 2012, proximate location-wise to some recycling bins in the general tipping area (but again not in the green waste area). This time there was some property damage - only to the impacted truck.
Again, it is a matter of record that although previous incidents of 2006 and 2012 had occurred, there had been no prosecutions in respect of them by WorkSafe in their aftermath. They were raised only by the prosecutor at the sentencing hearings, I would assume in an attempt to portray the waste facility of the City in a 'bad light' - from an occupational health and safety perspective. The learned magistrate was clearly cognisant of those two earlier incidents. There is no suggestion they were overlooked - for what they were worth.
But when the charges arising from the 2014 incident concerning Mr Booth came before the learned magistrate upon the pleas of guilty at the sentencing hearing, and when his Honour came to deliver his sentencing disposition at 19 April 2018, the City was then to be assessed, perfectly correctly, as a party who had no prior recorded infringements against it whatsoever for any violations of the Occupational Safety and Health Act.
That was a feature well worthy of a positive remark by the learned magistrate, in my view, given the long period that the waste facility had operated, by providing this service to the Armadale locality and given the thousands of ratepayers that visited and used this essential service each year. The City's 'clean record' displayed an impressive work safety history in terms of the long time over which the City had been the operator of this waste facility. The City's record was worthy of a positive recognition, given also the multiple essential services the City performed in this locality as a statutory local government corporation with in excess of 230 current employees.

It was in such 'clean record' safety circumstances prosecution‑wise that his Honour's remarks were made about Mr Woodenberg. He was the day-to-day manager in this particular tip facility. Mr Woodenberg's immediate supervisor was Mr Druid‑Sutton, he being the subject of separate prosecution, and who as seen had pleaded guilty. Mr Druid‑Sutton was personally punished for the inadequacy of his overall supervision in terms of what went wrong on 10 August 2014 as regards Mr Booth and his injury.
I return to his Honour's concluding sentencing remarks. After he referred to s 49(5) of the Act, at page 5, he returned to this same point at pages 9 and 10. Then he concluded:
I have also had regard to the summaries of similar cases provided by the prosecution and supplemented by the document which I received as exhibit 2 at the sentencing hearing. In relation to the offences committed by the City and Mr Druid-Sutton involving the incident on 10 August 2014, taking into account the relative culpability of the accused and the factors of mitigation, I would place these two offences in the mid to lower level on the scale of seriousness.
The offence committed by the city in relation to the failure to comply with the prohibition notice is for the reasons that I have outlined, in my view, at the mid to higher end of the scale of seriousness.
For the now challenged 10 August 2014 offence penalty, his Honour imposed a fine against the City of Armadale of $30,000, plus costs. In respect of the offence by the City of Armadale for a violation of the prohibition notice, his Honour imposed a fine of $17,000. Against Mr Druid‑Sutton, he imposed a fine for his personal supervisory failure of $12,500. That all needs to be seen as the context of the aggregated sentencing remarks concerning the three charges.
Returning to ground of appeal 2, after what the learned magistrate (correctly) said about his end rejection of the attempted mitigatory submission concerning Mr Woodenberg being, in effect, a rogue employee of the City, his following remarks after rejecting that aspect of the City's mitigation submission were made. He said then:
I accept to some limited degree that that reduces the culpability of both accused.
However, his Honour immediately qualified that remark, saying:
I say to some limited degree because it seems to me that Mr Woodenburg's [sic] deficiencies as a manager must have been obvious for some time in the lead up to the accident …
Ground 2's essential grievance is the expressed concern that somehow or other his Honour strayed into error by the remarks made after his rejection of the 'rogue' employee submission. But assessed in overall context, in my view, the remarks demonstrate no arguable error at all -in terms of any failure(s) to properly appreciate what was Mr Woodenberg's role and his place in the overall culpability of the City.
It is significant, as I review the material on this ground, to note two further things. First, there was a City directive in place at 2014 that front-end loaders (of the very kind that caused this particular personal injury to Mr Booth on 10 August 2014) were not to be reversed in the proximity of members of the general public. Clearly, the directive was not followed and breached that day.
Further, had the City's directive been adhered to, then it is clear this particular incident would not have happened. That is axiomatically so, since there would have been no reversing of a front-end loader near Mr Booth to impact with him. So the related safety hazard here, in terms of safety and proper hazard mitigation by the City for it to appreciate and to deal with a foreseeable hazard, had been recognised and positively actioned by the City by its directive. The hazard was not treated in some cavalier fashion, or just ignored by the City. The relevant fact is that the City had earlier recognised and addressed this particular front‑end loader reversing hazard quite properly and as from at least 2006, under the City's systemic directive. The directive was, in fact, completely appropriate to eliminate this risk hazard in its entirety, if it had been observed.
Second, the real problem underlying this incident and the ensuing injury to Mr Booth in terms of what manifested in August 2014, was that the day-to-day person who was in charge of the green waste area, Mr Woodenberg, turned out to be the relevant reversing vehicle operator on the day, injuring Mr Booth. That is, Mr Woodenberg was the driver of the front‑end loader which was being operated in violation of the directive of the City that this not occur when members of the general public were in the vicinity.
That aberrant conduct by Mr Woodenberg as the operator/driver of the reversing front-end loader on the day is the context in which one needs to assess his Honour's sentencing remarks about Mr Woodenberg being a difficult employee to manage. The whole of the evidence was clear enough that although there might have been some down the line City employee communication difficulties about this directive being not known generally to facility staff who ranked below Mr Woodenberg (in terms of whether they had a full appreciation of the directive) - it is clear that, given Mr Woodenberg's position and longevity of service with the City, that he did know of the directive of the City (ie, no reversing of front-end loaders around the general public). Mr Woodenberg certainly knew and, as such, he ought surely to have been obeying that directive himself as someone in his senior position. Yet Mr Woodenberg did not obey it on 10 August 2014. That breach of the City directive is how the unfortunate impact injury to Mr Booth eventuated.
The impact injury to Mr Booth was the fault of Mr Woodenberg, who knowingly breached the City's directive by reversing the front-end loader he was operating when he should not have been doing that around Mr Booth. There was also, of course, fault in the person who immediately supervised Mr Woodenberg at the City. For that supervisory failure, Mr Druid‑Sutton was brought to account. He accepted responsibility, pleaded guilty and was fined in terms of his personal management deficiency over the incident.
There is no present challenge about any of that. It is contextually relevant overall to the incident.
Vicariously, the failure by the City to 'effectively enforce' its directive on the day is the real problem for it, on analysis here, vis-à-vis Mr Druid-Sutton and Mr Woodenberg. The City is ultimately responsible because, at the end of the day, it is at the top of the employment hierarchy. The buck stops with the City and it must itself carry an end responsibility, as it accepted, for what went wrong on the day leading to Mr Booth's injury by reason of the deficiencies of its employees at the waste facility. The question is what to make of that fault by the City in the overall context here?
None of that was lost, with respect, upon the learned sentencing magistrate. He displayed by his reasons full appreciation of all the relevant issues put to him on three charges - under extensive written submissions and by extensive verbal submissions for counsel on all sides. His reasons, which he took two weeks to reflect over after the hearing of 5 April 2018, before delivering his penalty decisions on 19 April 2018, are with respect, meticulous in terms of their analysis of all the relevant facts and their analysis of the law. Taken in proper context, the present grievance underlying ground 2 is unarguable and so there will be no grant of leave for it to be pursued further.

Ground 3

Ground 3 is the last of the proposed appeal grounds. It, effectively, contends for implied error, labelling the $30,000 fine imposed by the learned magistrate against the City upon the first charge as 'manifestly inadequate'.
Particulars to ground 3 were provided by the prosecution before this matter went to its outcome. They were attachment A to the Appeal Notice. Relevantly, they allege error by the learned magistrate erring about the:
a.Need for personal deterrence in light of the previous incidents at the Respondents "Facility" involving mobile plant in 2006 and 2012 and the procedures developed in 2005 and 2008;
b.Number of occasions mobile plant was operated in proximity to members of the public at the "Facility" as demonstrated by the agreed facts and the closed circuit television footage from August 2014;
c.Need for general deterrence in light of both the number of occasions and the seriousness of incidents involving mobile plant and pedestrians;
d.Need for general deterrence to ensure penalties make offending unprofitable for corporate offenders and satisfies the deterrent objective of the legislation;
e.Seriousness of the offending; and
f.Standards of sentencing customarily observed in respect of offences of a similar nature.
On my assessment, ground 3 is the only potentially arguable ground. I therefore give leave to appeal on that ground. It is of such a character that it draws in all the elements of preceding grounds 1 and 2, as regards his Honour's alleged (mis)characterisation of the offence overall as at the mid to low range of seriousness in terms of the City's end of chain of responsibility and, likewise, by error upon where Mr Woodenberg's personal culpability sat within the overall scheme of the City's end responsibility.
In the end, the question today is whether a $30,000 fine against the City on this charge should be viewed by an appellate court as an unreasonable or plainly unjust disposition: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325. I do not, as I explain.
As articulated by EM Heenan J in Goddard v City of Stirling (Goddard) [2009] WASC 28 [12]:
It is well-established that if there is such a manifest disproportion between a penalty imposed and any penalty which might reasonably be regarded as being imposed in the circumstances, then that disproportion of itself constitutes error and may also connote some undisclosed or unmentioned error in the course of reasoning ...
As was first articulated by Malcolm CJ in Chan v The Queen (1989) 38 A Crim R 337, 342 as regards assessing whether a sentence was excessive, then applied to assessing whether a sentence was inadequate by Fiannaca J in Scherini v Cleveland Freightliners Pty Ltd [2018] WASC 5 [114], it is necessary to review the impugned end sentence having regard to:
(a)the maximum penalty prescribed for the offence;
(b)the standards of sentencing customarily observed in relation to the offence;
(c)the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question; and
(d)the personal circumstances and antecedents of the offender.
As already stated, the maximum penalty for this offence was $400,000 at the time. His Honour clearly appreciated that maximum penalty.
As regards standards of sentencing customarily observed in relation to an occupational safety and health offence, in BHP Billiton Iron Ore Pty Ltd v Capon [2014] WASC 267(S) [7], McKechnie J articulated what was then a convenient and helpful, but still non‑exhaustive, list of principles or guidelines to be taken into account for offences under the Occupational Safety and Health Act. They were:
1.A sentence imposed on an offender must be commensurate with the seriousness of the offence.
2.The seriousness of an offence must be determined by taking into account:
a)the statutory penalty for the offence; and
b)the circumstances of the commission of the offence; including thevulnerability of any victim of the offence; and
c)any aggravating factors; and
d)any mitigating factors.
3.Because of the infinite possibility as to the circumstances of a breach of duty, there is no tariff for offences, but an appropriate level of consistency with other fines should be maintained.
4.The legislation should have a deterrent effect requiring employers to take appropriate steps to provide a safe working environment.
5.The legislation is designed to bring home the consequences of failing to comply with necessary and prudent occupational health and safety requirements in the workplace.
6.Whether a fine should be imposed for principles of general deterrence.
7.Whether there is a need for personal deterrence.
8.Whether the offending employer has pleaded guilty and at what stage in the proceedings.
9.The absence of a plea of guilty does not aggravate the offence.
10.Whether the event demonstrates a course of conduct or whether it is a single event where safety instructions are overlooked.
11.Whether safety instructions were overlooked because of a failure to supervise over time.
12.The nature of the risk and the serious harm that might flow from a breach of the employer's duty.
13.The severity or the lack of care or other criminal conduct.
14.Whether there was a knowing acceptance of danger for commercial reasons or convenience.
15.Whether the employer has taken measures following the event to prevent a recurrence.
16.The employer's general safety record.
17.The employer's 'good character' sometimes demonstrated by its actions as a corporate citizen.
Bearing all that in mind, it is always to be remembered, first, that when it comes to an occupational safety and health prosecution and penalty disposition that there is no general tariff to be applied for any particular offence. The bespoken circumstances surrounding every offence always need to be individually weighed and assessed by the sentencing judicial officer. But that is clearly what happened here with the learned sentencing magistrate. Apart from a recurrent chant by counsel for the prosecutor to me today about his Honour's alleged failure to recognise how more 'serious' these particular circumstances were argued to be, there was really nothing else of substantive substance suggestive of error underlying the ground 3 submission, other than an end grievance about the end fine just being too low. This was unconvincing.
I revisit what the learned magistrate actually did, I can see no error in terms of his allowing a discount for the City's early plea of guilty (and which I note had been entered as early as 13 February 2018) and for the clean record of the City. Also the particular underlying circumstances of this charge were not that of a private operator recklessly sacrificing occupational safety or health to pursue profit. On the contrary, the circumstances were that of a public authority that is a local government corporation as a fourth arm of government, funded by the local ratepayers of Armadale, providing what was on any view a heavily used and necessary service to the Armadale general public - an essential waste disposal service that attracted thousands of public users each year.
It was, I consider, also fully open and appropriate for his Honour to recognise that this public facility had been operated by the City over many years. In terms of any prior historical injury to a member of the general public, there was no prior history at all. The City had no occupational safety and health convictions against it across its whole operating history. I can detect no suggestion that his Honour was not fully cognisant in recording these penalty dispositions of the important social policy and objectives of the occupational health and safety legislation. Those policy objectives are significant, but they were not overlooked here.
I detect no fault at any level in terms of the learned magistrate recognising and acknowledging what was the first offender/clean record status of the City - weighed into the overall multiple mitigation factors present here. Suggestions to the contrary made today carry no intellectual persuasion.
As seen, his Honour also identified more factors. He came to a final fine disposition after assembling appropriate and legally correct mitigation factors. He was exercising a discretion in this regard having correctly informed himself of the relevant principles.
The ground 3 grievance seems, at the end of the day, to distil down to a level of seriousness characterisation argument and challenging his Honour's observation as to where this particular offence sat in terms of a scale at between mid to low as a matter of range. It was difficult to grapple with what was a lack of any empirical basis underlying ground 3, other than over where the learned magistrate had ended as his conclusion about the level of a fine, given the maximum penalty of $400,000. The sentencing disposition at first instance was discretionary and carries prima facie respect - especially absent any express error being identified.
The agreed facts indicated plainly that if any sense of a problem had been earlier detected at a higher supervisory level in the City above Mr Woodenberg, that action would have been taken by the City. There was a systemic failure. There was a failure to avoid the injury result to Mr Booth by way of enforcement of what was otherwise a proper hazard avoidance directive of the City of not letting front-end loaders operate in reverse near members of the general public. In the end, a human violation of that directive by Mr Woodenberg was the cause of the incident. But the City did not know of, acquiesce in or ratify this misconduct. If it had known it would have acted to address any problem. The injury to Mr Booth happened and the City carries an ultimate responsibility, as it accepts. But there was no characterisation error.
Some further CCTV footage in the way of the 10 August 2014 incident indicated that a reversing front-end loader issue around the general public had also been occurring in the days before the incident of 10 August 2014. But details about who was the driver on those occasions of the front-end loader were missing. It may or may not have been Mr Woodenberg, again.
Here it fell upon the learned magistrate in all the circumstances of three charges arising from and then after the incident to impose a just penalty. The ground 3 question is whether as an appeal court viewing all the same material over again, can I find implied error merely because it is said the $30,000 was too low? I cannot accept this argument.
In this appeal exercise, I have had the benefit of extensive written submissions from the State Solicitor's Office representing the applicant prosecutor under 20-plus pages of written submissions, plus reference to multiple authorities. Then I held as well the written submissions of the respondent of over 19 pages, with even more case authorities. And I have heard verbal submissions from counsel today.
I repeat that there is no tariff for occupational health and safety offences. I would need to be satisfied on ground 3 that there is, on the case authorities concerning an implied error, something manifestly inadequate about the level of a $30,000 fine. I am not.
A sentencing appeal exercise is not to be approached on a basis of this appeal court becoming or substituting itself, in effect, as a fresh sentencing magistrate to assess de novo what I might have imposed as an appropriate fine here. Intuitively, looking broadly at the same materials, I ask myself in the context of an alleged implicit sentencing error what I may have imposed holding the same information. I find, to the extent that I have needed to, once I factor in a 30% discount for the City's early plea of guilty and the City's first offender and perfectly clean occupational safety and health record over many years, its remorse and a lack of any suggestion of an underlying culture of ignoring safety improvement notices, or of poor workplace safety policy messages emanating from the decision makers at the City of Armadale to its employees and personnel that safety was not important (in fact, I got quite the opposite impression as I looked at all the materials) - the City had assembled here what were highly pertinent mitigatory factors that all needed to be weighed in the sentencing dispositions.

For this charge, I would broadly assess in context that a $30,000 fine was not outside the range of an appropriate sentencing disposition, taking all demonstrated mitigatory matters into account in a bespoke context.
Consequently, although I would grant leave, I would then dismiss an appeal on ground 3.
In those circumstances, the appeal fails completely on all grounds and must be dismissed, with costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AC
RESEARCH ASSOCIATE/ORDERLY TO KENNETH MARTIN & CORBOY JJ
14 DECEMBER 2018