Damday Pty Ltd v Work Health Authority - [2014] NTSC 7

Damday Pty Ltd v Work Health Authority [2014] NTSC 7
PARTIES:DAMDAY PTY LTD

v
WORK HEALTH AUTHORITY

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 26 of 13 (21245996)
DELIVERED:  11 March 2014
HEARING DATE:  13 September 2013
JUDGMENT OF:  SOUTHWOOD J
APPEAL FROM:  LOWNDES M
CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – fine for a regulatory offence – manifestly excessive – general deterrence – subjective factors – prior good character – statutory interpretation – s 55 Workplace Health and Safety Act (NT) – appeal dismissed
Workplace Health and Safety Act (NT) s 55

JKL v The Queen [2011] NTCCA 7; Kelly v The Queen (2000) 10 NTLR 39, followed
REPRESENTATION:
Counsel:
Appellant:J Adams
Respondent:  R Murphy
Solicitors:
Appellant:Pipers Barristers & Solicitors
Respondent:  Murphy & Associates
Judgment category classification:   B
Judgment ID Number:  Sou1403
Number of pages:  22

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Damday Pty Ltd v Work Health Authority [2014] NTSC 7

No. JA 26 of 13 (21245996)
BETWEEN:

DAMDAY PTY LTD

Appellant

AND:

WORK HEALTH AUTHORITY

Respondent

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 11 March 2014)
Introduction

On 5 April 2013, following a plea of guilty, the appellant was convicted by the Court of Summary Jurisdiction of an offence contrary to s 55 of the Workplace Health and Safety Act (NT), fined $120,000 and ordered to pay a victim assistance levy of $200. At the time of the offence, the maximum penalty for a corporation was a fine of $685,000.
The appellant has appealed against the sentence. The notice of appeal pleaded the following grounds of appeal.
1.The sentencing magistrate erred by imposing a sentence that was manifestly excessive in all the circumstances of the offender and the offence.
2.The sentencing magistrate erred by placing too much weight on general deterrence.
3.The sentencing magistrate erred by calculating the fine based on the 20 percent rule, thereby placing too much weight on the authorities that were placed before him, and little or too little weight on the circumstances of the offending in the Northern Territory.
4.The sentencing magistrate erred by characterising the appellant as having positive good character and neglecting to reflect that in the sentence.
5.The sentencing magistrate erred by failing to quantify, and then provide a proper discount for the plea of guilty, which was indicated at the earliest opportunity.
When the appeal was heard, the appellant abandoned ground 3 and was given leave to argue the following ground.
6.The sentencing magistrate erred by taking into account in sentencing the results of the offending when sentencing for a breach of s 55 of the Workplace Health and Safety Act.
Section 55 of the Act
The Workplace Health and Safety Act has been repealed, but was in force at the time the appellant committed the offence. Section 55 of the Act stated:
(1)An employer has a duty (the employer's general statutory duty of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NTSC 7
Decision Date: 11 March 2014

CaseChat Overview and Summary

Damday Pty Ltd appealed against its conviction and sentence imposed by the Northern Territory Magistrates Court for contravening a regulatory provision under the Workplace Health and Safety Act. The appellant conducted an air conditioning installation and maintenance service and its employees transported gas cylinders in their vehicles. The appellant was fined $100,000 for allowing employees to transport gas cylinders in this manner, which was found to be a breach of workplace health and safety regulations. The appellant argued that the penalty was manifestly excessive and should be reduced. The appeal was heard by the Northern Territory Supreme Court, which had to decide whether the penalty imposed was manifestly excessive and if there were any grounds to reduce the penalty.

The court considered whether the penalty was manifestly excessive and whether there were any mitigating factors that should be taken into account. The court noted that the appellant had a prior good character and had not been charged with an aggravated offence. However, the court found that the appellant's conduct was a serious breach of workplace health and safety regulations and that the penalty imposed was not manifestly excessive. The court also noted that the penalty was intended to have a general deterrent effect and that it was important to maintain the integrity of the regulatory framework.

The court dismissed the appeal and upheld the penalty imposed by the Northern Territory Magistrates Court. The court found that the penalty was not manifestly excessive and that there were no grounds to reduce the penalty. The court noted that the appellant's conduct was a serious breach of workplace health and safety regulations and that it was important to maintain the integrity of the regulatory framework. The court also noted that the penalty was intended to have a general deterrent effect and that it was important to ensure that penalties were sufficient to deter similar conduct in the future. The appeal was dismissed and the penalty imposed by the Northern Territory Magistrates Court was upheld.

Orders

Orders of the court

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Background

Background to the litigation

The appellant was not charged with an aggravated offence so that s 82 of the Workplace Health and Safety Act has no application in this appeal.The facts The facts of the offending are as follows. Since October 2007, the appellant has conducted an air conditioning installation and maintenance service from its premises at Berrimah. A significant proportion of the appellant’s business requires attendance at worksites throughout the greater Darwin area and the use of oxy acetylene equipment. As at December 2011, the appellant employed over 48 employees. Nine of those employees were refrigeration mechanics. The appellant supplied some of those mechanics with vehicles to be used in the course of their employment and allowed them to garage those vehicles at home overnight. In total there were five such vehicles, namely, four Toyota Hi-Ace vans and a Toyota utility. Each of the appellant’s Hi-Ace vans was fitted with an open steel cabinet that was used to store two D size gas cylinders each weighing 9.5 kilograms and having a height of 585 millimetres and diameter 175 millimetres. One of the cylinders contained oxygen and the other acetylene. The cylinders were stored standing up, side by side in the cabinet and held in place by a steel restraining bar. The steel cabinet was mounted on the inside of each van at the rear driver’s side of the vans. Each of the appellant’s Hi-Ace vans had a driver and passenger door, which allowed access to the front of the vehicle, a sliding door located on the rear passenger side of the vehicle and a rear door, both of which allowed access to the vehicle’s load space from the side and rear of the van respectively. The only ventilation for each of the vans consisted of the driver and passenger windows, which could be opened and closed either partially or fully, and the doors of the van which could be left open. It was normal practice for the appellant’s workers to pick up E size acetylene gas cylinders each weighing 21 kilograms with a height of 929 millimetres and a diameter 215 millimetres from the supplier and transport them to various job sites throughout Darwin. The vehicle normally used for this purpose was the appellant’s Toyota utility. On or about 7 December 2011 the appellant’s utility broke down and was off the road until after 15 December 2011. The appellant’s workers then began transporting E size acetylene tanks in the appellant’s vans by laying them down on the floor of the van. They were transported to and from jobsites in this manner and secured in each of the vans overnight. This practice continued until 15 December 2011. On the evening of Wednesday 14 December 2011, Patrick Bird, a refrigeration mechanic employed by the appellant, drove one of the appellant’s Hi-Ace vans home, parked it in his driveway and secured it for the night. Located in the load space of the van at this time were 7 pressurised gas cylinders. Located in the van’s open cabinet were two D size cylinders, one contained oxygen, and the other acetylene. Located on the floor of the van were two E sized cylinders, one contained acetylene and the other oxygen; two D size cylinders both of which contained nitrogen; and one 16 ounce cylinder containing MAPP gas.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This ground of appeal is not made out.Conclusion In the circumstances, the appeal is dismissed and I will hear the parties further as to costs.

Ratio Decidendi

Legal Principle Established

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