Bradley Cummins v Multiplex Constructions Pty Ltd
[2021] ACTIC 1
•12 November 2021
INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Bradley Cummins v Multiplex Constructions Pty Ltd |
Citation: | [2021] ACTIC 1 |
Hearing Date: | 10 November 2021 |
DecisionDate: | 12 November 2021 |
Before: | Chief Industrial Magistrate Walker |
Decision: | See [69] – [71] |
Catchwords: | INDUSTRIAL LAW – INDUSTRIAL SAFETY, HEALTH AND WELFARE – Sentence – failing to comply with a health and safety duty – exposure to risk of death or serious injury or illness – financial capacity of corporation |
Legislation Cited: | Work, Health and Safety Act 2011 (ACT) Crimes (Sentencing) Act2005 (ACT) |
Cases Cited: | Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Dixon v R [2020] NSWCCA 123 Green v R (2011) 244 CLR 642 Murray v IA [2020] ACTSC 288 Nash v Silver City Drilling (NSW) Pty Ltd; Attorney-General for NSW v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling Pty Ltd v R [2012] VSCA 82 R v ACT Roofing Ltd [2004] VSCA 215 R v Commercial and Industrial Construction Group Pty Ltd [2006] VSCA 181 R v Dib [2003] NSWCCA 117 Reilly v Devcon Australia Pty Ltd [2008] WASC 84 SafeWork NSW v DIC Australia Pty Ltd [2021] NSWDC 143 Safe Work NSW v J & CG Constructions Pty Ltd [2020] NSWDC 614 SafeWork NSW v Lendlease Building Pty Limited [2018] NSWDC 99 Safe Work NSW v Onsite Rental Group Operations Pty Ltd [2021] NSWDC 338 Saipani v R ACTCA [2021] 5 Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 |
Texts Cited: | Australian Law Reform Commission, Final Report on Corporate Criminal Responsibility (ALRC Report No 136, April 2020) |
Parties: | Bradley Cummins, WorkSafe ACT (Informant) Multiplex Constructions Pty Ltd (Offender) |
Representation: | Counsel Dr K Weston-Scheuber (Informant) Mr G Livermore QC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Informant) Minter Ellison (Offender) | |
File Number(s): | CC 40514 of 2018 |
CHIEF INDUSTRIAL MAGISTRATE WALKER:
Background
The offender, Multiplex Constructions Proprietary Limited (‘Multiplex’), pleaded guilty on 14 October 2021 to one count of failing to comply with a health and safety duty, a category two offence pursuant to section 32 of the Work, Health and Safety Act 2011 (ACT) (‘WHS Act’).
The maximum penalty for this offence for a body corporate is a fine of up to $1,500,000.
For the purpose of sentencing, I had available to me the following:
(a)An agreed statement of facts as tendered on 14 October 2021;
(b)Defence written submissions dated 29 October 2021;
(c)Prosecution written submissions dated 5 November 2021;
(d)Defence written submissions in reply dated 8 November 2021;
(e)Prosecution bundle of authorities, referred to as ‘comparable cases’;
(f)Defence bundle of authorities, also referred to as ‘comparable cases’;
(g)RAR Cranes ‘WHS Management Plan – UC Public Hospital’;
(h)RAR Cranes Safe Work Method Statement (‘SWMS’);
(i)RAR Cranes Site Specific Risk Assessment (‘SSRA’);
(j)Affidavit of Mr Don Aroney, Executive Director of Operations Multiplex Global, sworn on 1 November 2021;
(k)Multiplex Global Consolidated Organisation Chart; and
(l)A screenshot of the CICA simulator
The prosecution had also sought to tender a number of victim impact statements completed by members of Mr Herman Holtz’s family. For reasons already canvassed in court in these sentencing proceedings, those statements were not admissible for the purpose of these proceedings.
The offence occurred on 4 August 2016 at the University of Canberra Hospital construction site. An information was laid in respect to the offending on 18 April 2018. The matter was first mentioned in court on 17 May 2018. An issue arose as to the jurisdiction of this Court, which I dealt with on 29 November 2018. On that date there was consent to concurrent hearings in respect to a number of co-accused.
The matter proceeded on the basis that there would be a hearing in respect to this offender and a number of co-offenders. The matter was due to commence on 18 October 2021. For various reasons that did not proceed. Prior to commencement, following negotiation as to the particulars, the offender pleaded guilty to a re-particularised category two offence on 14 October 2021. The matter proceeded by way of written submissions, supplemented by oral submissions received on 10 November 2021.
Mr Watts, a co-offender, pleaded guilty to a category one offence and was sentenced in the Supreme Court of the ACT on 20 April 2020. He was sentenced to imprisonment for a period of four months, which was fully suspended upon entering into a good behaviour order for a period of 12 months. I will comment further on his matter in due course. A further co-offender, RAR Cranes Pty Ltd (‘RAR’), is to be sentenced in January 2022 by this Court.
The Facts
An extensive set of agreed facts was filed in this matter which addressed the broader circumstances of the incident on 4 August 2016 that culminated in the death of Mr Holtz. It also included a detailed explanation of the workings of a particular crane type, a 2016 Terex MAC-25-4 non-slew articulated crane (a ‘pick and carry’ or ‘franna’ crane). For present purposes, it is sufficient that I refer to it as the crane.
In short, Multiplex was the project and site manager for the University of Canberra Hospital project. RAR was a specialist sub-contractor providing cranes and drivers for the project. As noted in the statement of facts at [9], ‘as part of the arrangement, RAR prepared and implemented a work health and safety management plan specific to the provision of all crainage services and operations at the site’.
That safety plan required RAR to complete a site-specific risk assessment (‘SSRA’) prior to each lifting operation. It was also a requirement within RAR’s safe work method statement number one (‘SWMS’) that the site-specific risk assessment would be completed by the crane crew prior to setting up the crane, to confirm that the crane set up was in a suitable area and suitable conditions. RAR workers were required to sign up to this obligation, including an acknowledgement that they had had the content explained to them, understood the requirements, had the necessary qualifications to undertake the activity, had been consulted in relation to the content, and would comply with the SWMS or stop work immediately, alerting their supervisor if they were not trained adequately to undertake the task. The RAR crane operator and dog man were required to sign an SSRA.
The form also included a requirement for signature by what is described as the foreman. It is agreed that this is a reference to a Multiplex employee in this context, commonly a site supervisor. That signature falls under the heading ‘do not commence work until you are satisfied the job is safe’.
On the day, Multiplex wanted a generator weighing 10,300 kilograms moved to provide power to the site the following day.
The crane had been used to move the generator twice before, on 4 June 2016 and 18 July 2016. On each of these occasions the SSRA was completed and signed by Mr Nolan, a Multiplex site supervisor.
The crane was on site on the relevant day doing other work and consideration was given to it being used to move the generator. At about 2:00 pm, the driver told Mr Bain, also a Multiplex site supervisor, that the crane was not suitable for the job. This was conveyed to Mr de Bono, a senior site supervisor for Multiplex. Mr Van Der Kley was tasked by his employer, RAR, to inspect the jobsite and factors that may influence the operation. Mr Van Der Kley had been involved in the earlier lift on 18 July 2016.
Mr Van Der Kley, Mr de Bono and Mr Drummond, yet another Multiplex site supervisor, discussed the issue on site, with Mr Van Der Kley’s initial recommendation to use a different crane.
What follows is taken directly from the agreed facts:
[48] Subsequently Mr Van Der Kley inspected the generator and walked the intended travel path to ensure that the crane was suitable to carry out the lift. When interviewed after the incident, Mr Van Der Kley said that after he walked the proposed route to make sure that it was suitable for the crane, he was “relatively happy” with where the generator was going to be placed as the area was relatively flat compared to where the crane would be carrying the load from. He noted that the crane had previously been used to place the same generator, and that the crane had previously been used to carry the generator on the same route. He further said that, in relation to the multiple inclines, declines and pitches in the travel path, it is “hard to determine, by walking, if it was going to exceed the crane’s safe working load”. He further said that “it’s very hard to determine just by standing on the ground what kind of angle it is and what kind of incline you’re looking at without actually being in a machine that’s fitted with the computers and inclined metre and that which can determine what it is capable of. So in a way it’s up to the crane, the crane will let you know what it’s capable of, and therefore then it’s up to the driver to say that the crane is no longer capable of moving this load”. Mr Van Der Kley asked Mr Drummond to arrange for an excavator to drag the generator a small distance from its current position away from the edge of an excavation, to a position where it could be more safely and easily lifted by the crane. Mr Drummond arranged for this to be done by a 20 tonne excavator.
[49] Mr Van Der Kley contacted the RAR office and made arrangements for the crane to attend to do the job. Mr Watts was tasked by RAR to do the job. He and Mr Kelly had done four jobs with the crane that day. Their arrival at the site was delayed by the need to return to the RAR yard to collect the “super lift” counterweight and heavier duty chains and because they initially travelled to an incorrect address, before arriving at the site later than would otherwise have been the case.
…
[51] At about 4:52 pm, Mr Watts arrived at the site in the crane, followed by a small truck driven by Mr Kelly. The truck contained the counterweight and “super lift” counterweight.
[52] Mr Watts did not carry out a full risk assessment of the lift prior to commencing it as he was required to do by RAR’s systems and procedures. RAR’s requirements of its crane operators, as set out in the Terex operators manual supplied to RAR, included the operator to determine the side slope of the site, using the LMI by driving the unladen crane across the path of travel, assessing the terrain to be travelled and assessing any risks along the path of travel. In the operating manual supplied to RAR, the manufacturer Terex warns that the crane must not operate on a slope greater than 5°. Had this process been followed, Mr Watts would have identified that the intended travel path was outside the safe operating limits of the crane and included an unavoidable side slope of 6.59° and other terrain angles of up to 10.27°. The slope angle was in excess of the safe operating limits of the crane. The known weight of the load as understood by Mr Watts was in excess of the maximum safe lifting capacity of the crane for a short time at the initiation of the lift, based on the cranes lifting charts, due to the extension of the boom, but was not at risk of tipping over as it was not in fact overloaded during the initial lift based on the LMI system. The proposed lift was therefore outside the safe lifting capacity of the crane according to the cranes lifting charts which was contrary to RAR’s safe work method statement number one with which its employees were required to comply. It was also outside the safe lifting capacity of the crane at 6:21 pm and from 6:38 pm to 6:41 pm.
[53] The Site Specific Risk Assessment & Toolbox Talk Form, which would have recorded and evidenced the fact that Mr Watts had properly considered the matters listed in the form, was not filled out for this lift prior to the commencement of the lift, as required. Completing this form would have required Mr Watts to confirm in writing that he was satisfied that the lift was within the safe working load of the crane, and to consider the hazards and risks of carrying out the lift. Mr Watts has stated that he understood, having observed other RAR workers, that the form would be completed after the job had been completed.
The gravamen of this offence in respect to Multiplex is that no site supervisor or foreman required completion of the SSRA prior to commencement of the job. The only explanation offered by the offender in respect to this omission is that it was an ‘oversight’.
Arrangements for the lift proceeded. Present in the vicinity of the crane when the load was rigged for lifting were Mr Watts, Mr Kelly, Mr Drummond (notably the site supervisor), Mr Brown and Mr Holtz.
I do not intend to repeat the facts relating to what followed in any detail, other than noting that they are agreed and form the basis of the conviction of Mr Watts for a category one offence, to which he pleaded guilty and has been sentenced.
As each site may have its own specific risks, an SSRA was required before any high risk or inherently hazardous work was undertaken on the basis of the philosophy; ‘that lift, that project, that day’. To this extent, the fact that there had been two previous SSRAs completed is largely irrelevant as to the assessment of the safety arrangements for the task undertaken on that day. It is however relevant to the assessment of safety arrangements more generally.
The offender submits and the prosecutor concedes that any causal connection between this breach of duty by Multiplex and the death of Mr Holtz is speculative. This of course does not undermine the plea, as the offence relates to the risk created by the breach rather than its consequence. The significance of the consequence is, however, addressed below.
Sentencing Considerations
Assessing Objective Seriousness
In assessing the objective seriousness of this offending, I have regard to the objects of the WHS Act detailed at s 3(1)(a), that the legislation aims to protect the health, safety and welfare of workers and others through the elimination or minimisation of risks from work, and at s 3(2) that in furthering this end, regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work.
It is the extent of the offender’s failure to ensure that the worker was not exposed to risk that is the criteria for assessing the seriousness of the breach, rather than the consequence of any breach (Orbit Drilling Pty Ltd v R [2012] VSCA 82 at [62]). By failing to check and sign off on the SSRA, Multiplex removed a level of protection which it had put in place to address the use of inherently dangerous machinery on its site. That failure increased the risk of harm to workers and others on the site.
That noted, the realisation of a potential risk is relevant to assessing the offender’s culpability for the breach in a number of ways. Here it was a possible consequence of the breach that the crane would be operated unsafely. That it was so operated confirms that the risk did in fact exist. The consequence goes some way to establishing the likelihood of the risk materialising; it was a real not merely a remote possibility which materialised on the first occasion that the Multiplex safety measure was not implemented. If the crane was not operated within its parameters for those particular site conditions, one of the factors the SSRA compliance sought to address, the likelihood of the risk eventuating was high.
The death of a worker also evidences the gravity of the breach as it evidences the harm that may flow as a result, at least in part, of Multiplex’s breach (SafeWork NSW v DIC Australia Pty Ltd [2021] NSWDC 143).
The degree of foreseeability of a risk is relevant in assessing culpability. This breach related to the use of heavy machinery, in an environment which had caused at least Mr Van Der Kley to have some initial concern about the suitability of the crane, at night, when the route to be taken had clearly not been assessed by the crane driver. The risk of serious injury or fatality in the absence of a proper risk assessment should have been within Multiplex’s contemplation and was therefore foreseeable. Multiplex was well aware of the risks associated with not ensuring the correct crane was used for the task; it retained RAR for its specialist skill and Multiplex site supervisors had been involved in similar processes earlier in the project and had required RAR employees to satisfy Multiplex that the proper risk assessment had been undertaken before commencing the task.
It is entirely reasonable for Multiplex to rely on RAR employees to carry out the specialist assessments they were trained and retained for, consistent with the approach in Reilly v Devcon Australia Pty Ltd [2008] WASC 84 and R v ACT Roofing Ltd [2004] VSCA 215.
It follows that Multiplex is thus not liable for any breach of duty flowing from not exercising those skills safely. However, the obligation to apply safety measures, such as the cross-checking process in place here, is a separate obligation which does not depend on the specialist skill being exercised by the sub-contractor but rather on the safety system instituted by the principal.
There is a distinction between situations in which a person has a clear safety duty as a worker/PCBU on site and where the corresponding duty of a principal is ill-defined, in which the principal may be less culpable (see Safe Work NSW v J & CG Constructions Pty Ltd [2020] NSWDC 614) and this case, in which the role of the principal was entirely clear. The work was not to proceed until the SSRA was completed. Multiplex was obliged to confirm that this had been done and done by the operator of the crane.
This was a good safety measure put in place by a corporation with an extensive safety system. However, even the best system is only effective if complied with and on this occasion, it was not.
This breach was a single instance rather than a systemic failure, described by the offender as an oversight. There were in fact good safety systems in place; the breach arose as a result of failure to adhere to that system, which may render it less serious (see R v Commercial and Industrial Construction Group Pty Ltd [2006] VSCA 181).
However, I do not accept, as the offender submits, that the lack of a system will necessarily be more serious than failure to comply with an existing system; that may well depend on the circumstances. Flagrant or uncorrected disregard for an existing system may be highly culpable. In this situation, I accept that an oversight in complying with an otherwise effective system is, however, less serious than a flagrant breach.
Avoidance of the breach was not difficult. Multiplex controlled the site and had the authority to require that the SSRA be completed before the lift began. This renders the breach more serious (see Safe Work NSW v Onsite Rental Group Operations Pty Ltd [2021] NSWDC 338).
The offence was committed by an employee of mid-level seniority, a site supervisor, which renders it more serious than if it were committed by a junior or lower-level employee.
The prosecution submit that the offending was aggravated in that Mr Holtz was a vulnerable employee. I reject this submission. His position (and that of others) in close proximity to the crane saw him placed in a vulnerable situation, but that risk was not heightened by any personal characteristics of Mr Holtz.
I conclude that this offence is far from a worst-case but neither is it a trivial breach.
Subjective Factors
The affidavit of Mr Don Aroney, Executive Director of Operations, Multiplex Global, sworn on 1 November 2021, describes the nature of the corporation at [43], ‘Multiplex does not directly perform any installation of the permanent works and only provides project management services including supervising and coordinating of the subcontracted works’. That is, its whole raison d’etre is to bring together specialist trades to meet the project requirements and to supervise them in doing so.
Mr Aroney records that Multiplex commenced operations in Australia in 1962, nearly six decades ago. It employees over 1,200 people in Australia and 2,600 globally. It oversees a sub-contractor workforce of 12,000 in Australia and 26,000 globally.
It is a large and apparently successful corporation. It has no history of industrial work safety breaches. It is clear that it invests heavily, both philosophically and financially, in safety for its employees and the wider construction industry.
In response to Mr Holtz’s death, Multiplex provided significant counselling, financial and legal support to Mr Holtz’s family.
It has been very proactive and indeed innovative in analysing the use of this type of crane, developing a web-based simulator to enhance learning and operations, and then gifting this to the relevant industry body and Canberra Institute of Technology, along with numerous other practical measures relating to crane industry training and competence. By all objective measures, Multiplex is a good corporate citizen.
Multiplex fully co-operated with WorkSafe ACT and the AFP in their investigation, giving ready site access and making employees available for interview in a timely manner.
Section 33 Considerations
The Court is required to consider factors detailed in s 33 of the Crimes (Sentencing) Act2005 (ACT). A number are applicable to this offence and this offender.
I have addressed s 33(1)(a) as to the nature and circumstances of the offence previously.
S 33(1)(i) requires a consideration of the degree of responsibility of the offender for the commission of the offence. Multiplex is entirely responsible for its part in failing to require that the SSRA was complied with. The fact that RAR and Mr Watts also bear responsibility does not derogate from Multiplex’s contiguous duty.
S 33(1)(j) requires the Court to consider any plea of guilty. A plea was entered to one of two charges originally brought. The more serious category one charge was dismissed when the prosecution offered no evidence in respect to it. A plea of guilty was indicated to the category two charge on the basis of particulars formulated by the defendant, rather than those originally alleged by the prosecution. There is no doubt that there has been inordinate delay in bringing this prosecution to conclusion. However, in light of how the matter has resolved, that cannot be attributed to the offender.
I note that s 35 of the Crimes (Sentencing) Act2005 (ACT), which directs particular considerations on the entry of a guilty plea, only applies where the court is considering a sentence of imprisonment which does not arise in this case. Nonetheless, those considerations detailed at s 35(2) largely reflect the approach adopted in relation to pleas generally in courts in the ACT.
It is significant that the offender was subject to prosecution for a category one offence for over two years before that charge was dismissed on the basis of the prosecution offering no evidence. This might be considered an unfair detriment to an offender given the impacts of pending prosecution, financial, legal, and otherwise. Further, as the offender notes, its not guilty stance was vindicated by the dismissal of one charge and the significant amendment of that which did proceed.
The law also recognises that the full discount for a plea entered after a negotiated settlement with reduced charges is consistent with a presumption of innocence in respect to the charge(s) which did not proceed (see Dixon v R [2020] NSWCCA 123, in which Hoeben CJ cited with approval R v Dib [2003] NSWCCA 117).
S 33(1)(m) requires the Court to take into account an offender’s character and antecedents, which in this case are positive.
S 33(1)(v) requires a consideration of the reason or reasons why the offender committed the offence. I have addressed the significance of the admitted ‘oversight’ above.
S 33 (1)(u) is a matter not raised by either party but which I consider relevant, that is whether the offender was in a position of trust or authority when the offence was committed. Multiplex was in a position of authority as principal contractor to require compliance with WHS practices, even where Mr Watts’ employer may have failed to do so.
S 33(1)(w) requires a consideration of an offender’s remorse. Multiplex’s extensive remedial actions are practical demonstrations of remorse which I accept as genuine.
S 33(1)(za) requires the Court to consider current sentencing practice. I have had regard to applicable principles of sentencing for this category of offence. I have also considered the penalties applied in similar cases, in accordance with the principle expressed in R v Pham [2015] HCA 39 at [29], whilst noting that none of the examples provided nor otherwise available for consideration are identical to this one. The Court is guided but not bound by the range of penalties previously imposed.
S 36 further requires the Court to consider whether any further discount should be applied having regard to any assistance or cooperation provided by the offender to authorities. As noted, Multiplex cooperated with investigation of possible offences by it and others on its worksite. That cooperation was helpful, but not to the extent that it would warrant any further discount noting that it occurred in the context of an industrial death and Work Safe ACT’s compulsive powers in the event of non-cooperation (see in particular Part 9 of the WHS Act).
Parity
The principles of parity must be considered as Multiplex is charged with a crime arising out of the same set of circumstances as Mr Watts and RAR (see Green v R (2011) 244 CLR 642; Murray v IA [2020] ACTSC 288; Saipani v R ACTCA [2021] 5). However, the exact nature of RAR’s offending is not yet before me, nor are any submissions relating to those circumstances. In respect to Mr Watts, he is convicted of a more serious offence to which a different sentencing regime operates for corporations as opposed to natural persons, imprisonment not being available in respect to corporations. Additionally, financial penalties are set at a far greater maximum for corporations that individuals to recognise the often vastly different financial resources. Thus parity cannot be applied practically in these proceedings.
I have regard also to the purposes of sentencing detailed at s 7 of the Crimes (Sentencing) Act 2005 (ACT). A just and appropriate punishment in this case will reflect the level of criminal culpability and the objects of the WHS Act.
Both general and specific deterrence are relevant. General deterrence is a primary consideration, related as it is to protection of the community at large but especially workers. Sentencing of industrial safety crimes serves to send a message to industry about the importance the community places on industrial safety. Specific deterrence has a role even in respect to an offender who has not previously offended and who is considered a low risk of future offending, such as Multiplex. The need is to ensure ongoing vigilance in high-risk workplaces (see Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [173]-[184]). Clearly accountability and denunciation are important considerations.
It is appropriate to record a conviction and impose a financial penalty in this case.
I was referred to a number of cases described as ‘comparable’. The range in those cases is significant.
In SafeWork NSW v DIC Australia Pty Ltd [2021] NSWDC 143, as in this case, a specialist sub-contractor was working on DIC’s site in a potentially dangerous environment and was required to complete pre-task paperwork which DIC was supposed to sign off on. The paperwork was not fully completed and there was no sign off. However, DIC had particular knowledge of the working environment the deceased worker was working in and thus a greater obligation to alert the worker to safety risks and take preventative measures. In contrast to Multiplex, DIC was a small company with only 10 employees. It had been operating since 1949 but was in financial difficulty. It had no prior convictions. After a 25 percent plea discount, it was fined $450,000.
The offender urged me to find a close comparison in SafeWork NSW v Lendlease Building Pty Limited [2018] NSWDC 99. In this case, Lendlease was fined $60,000 (reduced by 25 percent from $80,000 for an early guilty plea). The offence related to failing to take reasonably practicable measures to prevent foreseeable injury in that there were no physical barriers or delineated safe work zones where a forklift was being used by an unlicensed driver employed by the offender’s subcontractor. This was a huge work site with many workers and extensive safety policies and requirements. The offender had not engaged with a particular aspect of work being carried out by a sub-contractor, which lead to serious injury to another worker unlike this situation where Multiplex was actively involved on site with the task being performed. The judge accepted that Lendlease had little knowledge about the particular risk and its culpability was low.
Lendlease had past convictions, but not for about 20 years. It was a very large operator. The judge was particularly influenced in setting the level of financial penalty by the fact that the offender had made payments in excess of $300,000 to ‘top up’ the injured workers compensation payments and undertook to keep paying the top up until he was able to return to work. The sentence was moderated on the basis that the promise would be observed. Factually it was quite different to this case.
The prosecutor in this matter invited the Court to consider the fact that in NSW costs are routinely awarded in favour of the prosecution on top of a fine and may be quite substantial, suggesting that lower fines should be seen in the context of the costs awarded. I reject this submission. The costs regime is one designed to compensate for specific loss and is unrelated to the sentencing discretion in setting the level of financial penalty.
The issue of an offender’s capacity to pay a fine is a relevant consideration, not only requiring the court to have regard to where there is limited capacity but also in terms of the significance of the financial penalty to effect both specific and general deterrence.
As to specific deterrence, I note the comments of the NSW Court of Criminal Appeal in Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [79], that ‘questions of specific deterrence should take into account the size and scope of the operations of the defendant: a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation’. I reject the offender’s submission that this was merely an observation as to the differing nature of offenders.
The same principle was recognised by the Australian Law Reform Commission in its Final Report on Corporate Criminal Responsibility, April 2020, at paragraph 8.31. See also Nash v Silver City Drilling (NSW) Pty Ltd; Attorney-General for NSW v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [59].
The correct approach is not that an affluent offender is to be fined at a higher rate, but rather that the very substantial reduction that is often applied having regard to a smaller corporation or individual’s capacity to pay is not a consideration when sentencing a corporation with substantial assets, for whom a lesser fine is unlikely to have any significant deterrent effect. On the information available to me, I conclude that Multiplex is such an offender.
Orders
I record a conviction.
I afford a discount of 25 percent to reflect the early guilty plea.
I impose a fine of $150,000.
| I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the reasons for sentence of her Honour Chief Industrial Magistrate Walker Associate: S Corish Date: 12 November 2021 |
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