Guerinoni Nominees Pty Ltd v Cullen - [2022] WASC 337

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   GUERINONI NOMINEES PTY LTD -v- CULLEN [2022] WASC 337
CORAM:   ARCHER J
HEARD:   20 SEPTEMBER 2022
DELIVERED          :   14 OCTOBER 2022
FILE NO/S:   SJA 1084 of 2021
BETWEEN:   GUERINONI NOMINEES PTY LTD
Appellant
AND
CRAIG CULLEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J ANDRETICH
File Number            :   KR 516/2019

Catchwords:

Criminal law - Appeal against sentence - Failure to maintain safe work environment - Whether the magistrate made factual errors - Whether fine of $230,000 was manifestly excessive

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	S Vandongen SC
Respondent	:	J F Bennett

Solicitors:

Appellant	:	Fourlion Legal
Respondent	:	State Solicitor's Office

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

Al Hussein v Commissioner for Consumer Protection [2014] WASC 296
Ausdrill v Hanekom [2009] WASC 307
Ayton v City of Armadale [2020] WASCA 39.
BHP Billiton Iron Ore Pty Ltd v Capon [2014] WASC 267 (S)
Caruso v Shire of Augusta - Margaret River [2016] WASC 379
CJH v the State of Western Australia [2013] WASCA 139; (2013) 230 A Crim R 1
Crocker v Vinicombe [2019] WASC 416; (2019) 279 A Crim R 529
Director of the Public Prosecutions of the State of Victoria v Dalgliesh (A Pseudonym) [2017] HCA 41; (2017) 262 CLR 428
Gaskell v The State of Western Australia [2018] WASCA 8
H v Western Australia [2006] WASCA 53
Harding v The State of Western Australia [2015] WASCA 27
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586
Jacomb v The State of Western Australia [2021] WASCA 81
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Mippy v the State of Western Australia [2012] WASCA 254
Ninyette v Holmes [2015] WASC 287
Peat Resources of Australia Pty Ltd v Rodney William Brown Chief Executive Officer City of Cockburn [2002] WASCA
R v Australian Char Pty Ltd [1999] 3 VR 834; (1995) 79 A Crim R 427
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Reilly v Tobiassen [2008] WASC 92
Resource Recovery Solutions Pty Ltd v Ayton [2021] WASC 443
Resource Recovery Solutions Pty Ltd v Ayton [No 2] [2022] WASC 142
RO v R [2019] NSWCCA 183
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scherini v Cleveland Freightlines Pty Ltd [2018] WASC 5
Sgroi v R (1989) 40 A Crim R 197, 201
Strahan v Brennan [2014] WASC 190
Technip Oceania Pty Ltd v Commonwealth Director of Public Prosecutions [2021] WASCA 139
The State of Western Australia v Zhuang [2021] WASCA 56
Trinder v Anderson (Unreported, WASC, Library No 960216, 24 April 1996)
Wilson v The State of Western Australia [2010] WASCA 82

TABLE OF CONTENTS

Introduction

Background

The charge

The trial

Reasons for conviction

Sentencing

The appeal

Grounds of appeal

Issues

Appeals from magistrates' decisions

Principles relating to sentencing appeals

If, despite error, no substantial miscarriage of justice

Ground 3 - Mr Aston ignored his training as he felt compelled

Was it open to the magistrate to make the findings?

The evidence

Conclusion - not open to the magistrate to make the finding

Should the appeal nevertheless be dismissed?

The finding was material

Would I impose a fine no lower?

Conclusion on 'no substantial miscarriage' submission

Conclusion on ground 3

Ground 1

Did the Isolation Failures causally contribute to the injuries?

If I am wrong about the content of the Isolation Failures

Conclusion on ground 1

Ground 2

Did the Supervision Failure causally contribute to the injuries?

It would have seen him engaging in unsafe work practices

It would have seen the build-up of material

Was this erroneous finding material to the sentence imposed?

Conclusion on ground 2

Ground 4 - manifestly excessive?

A sentence must correspond to the seriousness of the offence

Imposing a fine

Relevant principles in sentencing employers for failing to ensure safety

Determining whether a sentence is manifestly excessive

The relevant considerations

Maximum penalty

Seriousness of the offence

Comparable cases

Personal circumstances

Conclusion on ground 4

Conclusion

ARCHER J:

Introduction

On 16 June 2016, a Mr Aston was working at his employer's crushing and screening plant in Kununurra. Mr Aston noticed that a rock had become caught in the rubber around a pulley on a conveyer belt. While the conveyer was running, Mr Aston stood on the conveyer support substructure and used a spanner to knock the rock out. Mr Aston's arms were pulled into the nip point of the pulley, causing serious injury to his arms.
His employer, Guerinoni Nominees Pty Ltd (Guerinoni), was charged with an offence under s 9(1) and s 9A(2) of the Mines Safety and Inspection Act 1994 (WA) (MSI Act). The offence was that Guerinoni, being an employer at a mine, failed so far as was practicable to provide and maintain a working environment in which its employee, Mr Aston, was not exposed to hazards, and by that contravention caused serious harm to Mr Aston.
Guerinoni was convicted of the offence and fined $230,000. Guerinoni appeals against the sentence.
Guerinoni raises four grounds of appeal. Three assert that the learned magistrate made an error of fact. The fourth asserts that the sentence was manifestly excessive.
For the reasons that follow, I would allow the appeal.

Background

Much of the facts were agreed.[1] Unless otherwise indicated, the following was agreed.
[1] See the Reasons for Decision of Her Honour Magistrate J Andretich given 15 July 2021 (Reasons) [50] - [67] and [149].
The accident occurred at Guerinoni's plant in Kununurra (Plant).
At the Plant, alluvial material is crushed and screened (sifting and sorting by size). This produces sand, shingle and crushed rocks of various sizes. The demand for these products varies, so the Plant is run only when needed.
To be processed, the alluvial material is loaded into a hopper at the Plant, which then uses conveyors to move the material through a crushing and screening process. This produces stockpiles of material of different sizes. The Plant's processes were summarised in the agreed facts as follows:[2]
1.A frontend loader collects the raw material, goes up a [ramp] and drops the material into the main feed hopper[.]
2.The hopper discharges onto a small conveyor which in turn discharges onto the main feed conveyor which runs to a separator screen.
3.Materials greater than 20mm are then separated out and fed to another conveyor leading to the primary crusher. [Those] materials less than 20mm are separated out by screens into 7mm and 10mm round stone and river sand that is washed in a screener.
4.Crushed materials then exit the primary crusher and go up a conveyor to the screening area.
5.Crushed materials that are greater than 20mm drop onto the first return conveyor and up the second return conveyor to the secondary crusher. Once crushed, materials drop onto the conveyor leading to the screener which separates out materials as 20mm [crushed] rock, 10mm crushed rock, 7mm crushed rock and cracker dust.
[2] Reasons [62].
The injured man, Mr Aston, was pulled into a nip point on the secondary conveyor. The function of the secondary conveyor is to transport crushed material returned from the screener to the return belt for secondary screening. The secondary conveyor is powered by a self-contained drive pulley on the head end. As the head pulley rotates, it drives the tail end pulley and the belt in a clockwise direction. The conveyor is operated through a control box located next to it.
Mr Aston was employed by Guerinoni to work from mid-2012 until after the June 2016 incident.
Mr Aston worked at the Plant from July 2012 to 'approximately October/November 2012'.[3] During this period, he worked with a Mr Zunker. Mr Zunker trained him to operate the Plant.
[3] Reasons [157.1].
In December 2012, inspectors from the Department of Mines inspected the Plant. The inspectors identified two areas that needed guarding. They also recommended that there should be a further review of the guarding of nip points that were readily accessible. Guards were installed on the two specified areas, but a further review was not conducted.[4]
[4] Reasons [175] - [178], [182] and [277] - [278].
In 2013, 2014 and 2015, Mr Aston worked for Guerinoni almost entirely at locations other than the Plant. In the period from March 2014 to November 2015, Mr Aston worked at the Plant for two or three stints, each stint lasting a few weeks or a month'.[5] Her Honour found that, by that time, Mr Zunker was no longer employed by Guerinoni,[6] and Mr Aston worked alone.[7]
[5] Reasons [157.2]. See also Reasons [15.2] and the chronology in Reasons [149].
[6] Reasons [149] chronology row dated 'Somewhere in the period 2014 to 2015' and [155].
[7] Reasons [242].
Apart from those stints, Mr Aston did not work at the Plant until the middle of May 2016. At that time, he returned to work at the Plant, and remained there until the date of the incident on 16 June 2016. He worked there alone.[8]
[8] Reasons [157.3] and [242].
Her Honour found that Mr Aston had not been supervised at the Plant since November 2012.[9]
[9] Reasons [160.3]. See also Reasons [23] and [160.16], [185], [242] and [245].
Mr Aston was present on two occasions when the secondary conveyor belt at the Plant was changed. The first was in 2012, when it was changed by Mr Zunker. The second was in 2015 or 2016, when it was changed by a Mr De Groot. On each occasion, Mr Aston did not take notes on how to change the belt as Mr Zunker and Mr De Groot had done it before and knew what they were doing.
The accident occurred on 16 June 2016. On that date, Mr Aston was working by himself at the Plant. The magistrate's findings as to the circumstances of the accident were helpfully summarised by Guerinoni as follows:[10]
…Mr Aston … was in the process of shutting down the plant in order to get ready for a big clean. As he was doing this, Mr Aston went to turn off the switches that were near to the tail end pulley when he noticed a sharp rock that was stuck in the rubber around the pulley. Mr Aston then grabbed a spanner because he thought he could just poke the rock out, because sharp rocks sooner or later put holes in the conveyor belt. In order to gain access to the area in which the rock was stuck Mr Aston stood on the frame below the tail end pulley. As he tried to knock the rock out of the pulley, his arms were pulled in and they got stuck, which then caused his injuries.[11]
[10]Appellant's Written Submissions filed 19 April 2022 (Appellant's Submissions) [31]. See also Appellant's Submissions [8] - [9] and [11] - [12].
[11] Reasons [163] - [168].
Mr Aston managed to pull himself free of the nip point and seek help from another employee who was loading product. However, Mr Aston sustained serious injuries to his arms. Fortunately, it appears that he has made a full recovery.

The charge

The charge alleged that Guerinoni, being an employer at a mine, failed so far as was practicable to provide and maintain a working environment in which its employee, Mr Aston, was not exposed to hazards, and by that contravention caused serious harm to Mr Aston. The prosecution alleged that it was practicable for Guerinoni to have:[12]
5(a)Installed physical guarding over the nip points of the secondary conveyor and tail end pulley to prevent a person's body or clothing coming into contact with the nip point while the secondary conveyor and tail pulley was operating, and which could not be removed without a tool;
5(b)Implemented isolation procedures for the plant, trained employees and enforced compliance with those insolation procedures to ensure that the plant was not operating while any employee could be exposed to the hazard;
5(c)Ensured that there was supervision of employees working at the plant as was necessary to enable them to perform their work safely and in accordance with any safe work procedures.
[12] Particulars of Prosecution Notice signed 23 May 2019 (Particulars).
I will refer to these alleged practicable measures as the 'Guarding Measure', 'Isolation Measure', and 'Supervision Measure' respectively.

The trial

Guerinoni pleaded not guilty to the charge. The critical issue[13] in dispute was whether Guerinoni had failed, so far as was practicable, to provide and maintain a working environment in which its employee, Mr Aston, was not exposed to hazards.
[13] Guerinoni also disputed that Mr Aston suffered serious harm, but does not challenge in this appeal the magistrate's finding that he did.
The manner in which the trial was conducted (by counsel not appearing in this appeal) increased the difficulty of her Honour's task and, consequently, the risk of error. In particular, the evidence led at trial was not confined to the alleged practicable measures and relevant matters of background.
The trial concluded on 17 December 2020. The learned magistrate reserved her decision.

Reasons for conviction

On 15 July 2021, the learned magistrate delivered her decision, finding Guerinoni guilty (Reasons). The Reasons were lengthy, reflecting her Honour's efforts to cover a large volume of material.
Her Honour found that Guerinoni had failed to implement each of the alleged practicable measures, and found that each was practicable. Her Honour also found that each failure causally contributed to Mr Aston's injuries.[14]
[14] As discussed later, the respondent conceded that her Honour made a causal finding in relation to each of the alleged practicable measures.
In the Reasons, her Honour accepted that Mr Aston knew that he should not have tried to dislodge the rock while the Plant was still running. She relevantly found:
1.Mr Aston knew that he should turn the Plant off before 'he went near it' and before attempting maintenance.[15]
2.This was 'second nature' to him; it was 'entrenched' in his mind.[16]
3.Specifically, he knew that he should not put his hand into the tail end pulley while it was running.[17]
4.Mr Aston's training had warned him against removing a rock from the secondary conveyor and tail end pulley while it was in operation.[18]
[15] Reasons [20] and [24]. See also [160.18].
[16] Reasons [24] and [26].
[17] Reasons [130.2] and [130.5].
[18] Reasons [162].
However, the learned magistrate found that Mr Aston did not do what he knew he should do, and what he had been trained to do, because he felt compelled to 'do his best at work'. Her Honour found, in effect, that he felt compelled because he 'did not want to involve anyone else because he knew of the pressures the Accused was under given the staffing emergency at the Tanami Mine'.[19]
[19] Reasons [162].
In paragraphs 160-162 of the Reasons, her Honour set out her findings as to the immediate circumstances surrounding the accident (citations omitted):
Immediate circumstances surrounding the incident
160I find that the Accused created a working environment in which the immediate circumstances surrounding the incident impacted significantly on the deliberate decision by the Complainant to attempt to remove a rock from a moving part of the Plant with a spanner. I find that factors which are relevant to that working environment and consequential deliberate decision by the Complainant are that the Complainant:
160.1had worked alongside Tony Zunker for approximately three to four months in 2012 but during this period had never been left for any extended period of time, nothing like days, only 'minimal' to run the Plant alone [sic] and had left any interaction with supervisors to Tony Zunker;
160.2was not assessed as being competent to run the Plant prior to recommencing work at the Plant in 2014/2015 and prior to recommencing work at the Plant in 2016[;]
160.3had not been supervised at the Plant since November 2012 (approximately 3½ years);
160.4was aware that both Paul Hutton and Mark De Groot had been deployed to the Tanami Mine to avert an employment issue;
160.5was aware of the importance of the Tanami Mine project as he described it as a 'big job';
160.6was unsure who his supervisor was;
160.7thought that he would only bother Steven or Callum if he had an 'extravagant' problem like changing the conveyor belt but not for 'trivial stuff';
160.8had been taught and was aware that if he turned the Plant off the material would build up and the Plant may not start again;
160.9was aware that if the rock remained in the lagging around the drum the conveyor belt would be damaged and require replacing;
160.10was aware the conveyor belt required two men to change it which meant that one man had to come from the workshop in town to assist;
160.11had never changed the conveyor belt himself on the prior two occasions it had been changed by Tony Zunker and Mark De Groot;
160.12knew that the workers who had assisted in the changing of the secondary conveyor belt were Tony Zunker, who had left the employ of the Accused, and Mark De Groot, who was working at the Tanami Mine;
160.13Tony Zunker climbed up onto the framework below the secondary conveyor and tail end pulley [to] grease the tail end pulley;
160.14had climbed up onto the framework below the secondary conveyor and tail end pulley every morning in order to grease the grease points;
160.15on two or three previous occasions had successfully engaged in the unsafe practice of knocking rocks from the lagging whilst the Plant was running using a [crowbar] whilst standing on the framework below the secondary conveyor and tail end pulley but honestly said that Tony Zunker had not done this;
160.16had been left to his own devices without supervision when he worked at the Plant from 2014/2015 onwards but specifically in 2016 in the weeks leading up to the incident.
160.17had a clear view of a rock lodged in the tail end pulley lagging from metres away;
160.18'(W)anted to do his best at work' and 'cared about the rock' in the lagging both things which were in the back of his mind, despite knowing he should not go near the Plant when it was running;
160.19had in the back of his mind that the rock could wear through the conveyor belt.
161.Susan Modra described three quarters of the workforce being absent from the yard when a big contract was on.
162.I find that the Accused allowed a working environment to develop in which the Complainant felt compelled to 'do his best at work' which I am satisfied meant he did not want to involve anyone else because he knew of the pressures the Accused was under given the staffing emergency at the Tanami Mine. He attempted to remove the rock from the secondary conveyor and tail end pulley despite his training warning him to the contrary.
Her Honour's conclusions on causation were as follows:[20]
[20] Reasons [292] - [293].
Causation
292.I find for the following reasons that the accused made a significant contribution to the injury sustained by the Complainant:
292.1The Accused allowed an environment to be created and to exist whereby the Complainant felt compelled to do a 'good job' by attempting to remove the rock from the lagging around the tail end pulley;
292.2The Accused effectively lost interest in the Plant when the focus of its business shifted such that it stopped supervising at the Plant as it had done so in 2012 whereby it:
292.2.1failed to satisfy itself that the Complainant was still competent when he returned on each occasion to work at the Plant;
292.2.2allowed the Complainant to work alone at the Plant without supervision;
292.2.3failed to supervise the Complainant which created an environment where the Complainant was not complying with safety practices;
292.2.4did not notice that the secondary conveyor belt and tail end pulley had become accessible to the Complainant;
292.2.5failed to undertake risk assessments of hazards at the Plant on an ongoing basis;
292.2.6responded to an issue at the Tanami Mine by directing staff to that region thus creating a position whereby the Complainant was not sure who to report to;
292.2.7failed to recognise that the secondary conveyor and tail end pulley needed guarding; and
292.2.8directed its attention as to training in isolation and other procedures to gaining contracts at tender rather than at the Plant.
292.3The Accused had some written procedures in place, primarily to satisfy external contractors for the purpose of winning tenders, but those written procedures were of no utility when the Accused:
292.3.1.failed to satisfy itself that the Complainant was across those procedures and was competent before he recommenced work at the Plant on the occasions he did;
292.3.2did not ensure that those procedures and systems were being maintained at the Plant on a day to day basis[;]
292.3.3failed to supervise the Complainant; and
292.3.4failed to ensure that the Complainant had a clear direct supervisor in and around the time of the Incident.
293.I find there is a substantial connection between the failure of the Accused as outlined in these reasons and the injury sustained by the Complainant such that the Accused made a significant contribution to the injury sustained by the Complainant.

Sentencing

A sentencing hearing took place on 13 August 2021. The learned magistrate reserved her decision.
On 18 October 2021, her Honour fined Guerinoni $230,000, giving oral reasons.

The appeal

Guerinoni does not seek to challenge her Honour's finding in relation to particular 5(a) (namely, that it was reasonably practicable for Guerinoni to have installed guarding around the nip point at the secondary conveyor and tail end pulley).[21] Guerinoni further accepts that, had there been a guard that prevented a person's body coming into contact with the nip point, serious harm would not have been caused to Mr Aston.
[21] Reasons [288].
Guerinoni accepts that it failed to implement other practicable measures, but submits that they did not causally contribute to the harm Mr Aston suffered.

Grounds of appeal

In its written submissions, the appellant sought leave to amend its grounds of appeal. This was not opposed by the respondent,[22] and leave was granted. The amended grounds of appeal are:[23]
[22] Respondent's Outline of Submissions filed 24 June 2022 (Respondent's Submissions) [6].
[23] Appellant's Submissions [14].
Ground 1
The Magistrate erred in fact in finding that the appellant's failure, on 16 June 2016, to implement 'isolation procedures for the plant, training employees and [enforcing] compliance with those isolation procedures to ensure that the plant was not operating while any employee could be exposed to the hazard', as alleged in particular 5(b) of the prosecution notice, caused serious harm to Mr Aston.

Ground 2
The Magistrate erred in fact in finding that the appellant's failure, on 16 June 2016, to ensure that there was supervision of employees working at the plant, in accordance with particular 5(c) of the prosecution notice (as amended), caused serious harm to Mr Aston.
Ground 3
The Magistrate erred in fact in finding that the appellant effectively lost interest in the plant and allowed a working environment to develop in which Mr Aston felt compelled to 'do his best at work', which then [led] to him attempting to remove the rock from the secondary conveyor and tail end pulley despite his training warning him to the contrary.
Ground 4
The Magistrate erred in imposing a sentence that was manifestly excessive.

Issues

Ground 1 raises a single issue: did the failure to implement the Isolation Measure causally contribute to the injuries? The respondent accepts that this finding was material to the sentence imposed.
Ground 2 raises the following issues:
1.did the failure to implement the Supervision Measure causally contribute to the injuries?
2.if not, was this erroneous finding material to the sentence imposed?
Ground 3 raises the following issues:
1.did Guerinoni effectively lose interest in the Plant and allow a working environment to develop in which Mr Aston felt compelled to 'do his best at work'?
2.did Mr Aston feel compelled to do his best at work in the sense found by the magistrate? (Namely, that Mr Aston felt compelled because he 'did not want to involve anyone else because he knew of the pressures the accused was under given the staffing emergency at the Tanami Mine', and this led him to act contrary to his training).
If I find an error in any of grounds 1-3, a further issue will arise as to whether I am satisfied that no substantial miscarriage of justice has occurred such that I may dismiss the appeal in any event.
Ground 4 raises a single issue: was the sentence imposed manifestly excessive?

Appeals from magistrates' decisions[24]

[24] This section reproduces or draws on my reasons in other judgments.

Section 8(1) of the Criminal Appeals Act 2004 (WA) permits an appeal against a sentence imposed in the Magistrates Court to be made 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.
Leave to appeal is required for each ground of appeal.[25]
[25] Criminal Appeals Act s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[26] This means that the ground is required to have a real, rational and logical prospect of succeeding.[27]
[26] Criminal Appeals Act s 9(2).
[27] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[28] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[29]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[28] Strahan v Brennan [2014] WASC 190 [89] - [90].
[29] Strahan [90].
These observations may have less weight when, as here, a magistrate has reserved their decision after a hearing and delivered it at a later date. Nevertheless, a magistrate in such a case must still manage a large volume of cases daily and is still faced with the requirement to conduct cases efficiently and with a degree of informality. It remains inappropriate to scrutinise their reasons with a fine‑tooth comb and it is still to be expected that some infelicity of language is likely to occur from time to time, even with reserved decisions.

Principles relating to sentencing appeals

Part 2 of the Criminal Appeals Act sets out the framework for appeals from courts of summary jurisdiction. The framework in part 2 differs slightly from the framework in part 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under part 3 cannot automatically be applied to appeals under part 2.[30] There are, however, core principles that apply to appeals against sentence under both part 2 and part 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court made an express or implied error.[31]

If, despite error, no substantial miscarriage of justice

[30] Ninyette v Holmes [2015] WASC 287 [56(3)]. And see Technip Oceania Pty Ltd v Commonwealth Director of Public Prosecutions [2021] WASCA 139 [117].

[31] Wilson v The State of Western Australia [2010] WASCA 82 [2]; Ninyette [59] - [65]; Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)].

By s 14(2) of the Criminal Appeals Act, even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[32]
[32] Criminal Appeals Act s 14(2).
Different views have been expressed as to the scope and operation of s 14(2) where an express error is found in the sentencing process. Fiannaca J provided a useful summary in Crocker v Vinicombe.[33] In my view, the proper approach to the determination of whether, despite an express error in the sentencing process, no substantial miscarriage of justice has occurred is as follows.[34]
[33] Crocker v Vinicombe [2019] WASC 416; (2019) 279 A Crim R 529 [42] ‑ [60].
[34] Criminal Appeals Act s 14; Ninyette [65]; Crocker [42] ‑ [60]. See also, in the context of part 3 appeals, the cases cited in the next footnote.
The first question is whether the appellate court can exclude the possibility that the error affected the sentence. That is, the first question is not whether the sentence was within the range of a sound exercise of the sentencing discretion. Rather, the first question is whether the error could not have made a difference.[35] An example of an error that could not have made a difference is where a legislative amendment altered the order in which a court was required to set the parole period and non-parole period of a term of imprisonment, and the court mistakenly set them in the order required by the previous legislative provision.[36]
[35] See Crocker [42] - [60]. See also, in the context of part 3 appeals, Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42] (French CJ, Hayne, Bell and Keane JJ) (errors that do not affect the exercise of the sentencer's discretion do not vitiate the exercise of the sentencer's discretion), Harding v The State of Western Australia [2015] WASCA 27 [73] (Mazza JA) (an express error which is not material to the exercise of the sentencing discretion, that is, one that did not affect or was incapable of affecting the sentence imposed, is not an error of the type described in House v The King [1936] HCA 40; (1936) 55 CLR 499) and Jacomb v The State of Western Australia [2021] WASCA 81 [94] (if there is a House v The King error, the court does not assess whether the error influenced the outcome).
[36] This was the example given in Kentwell [42] (French CJ, Hayne, Bell and Keane JJ).
It will rarely be the case that an error could not have made a difference. For that reason, the answer to the first question will usually be no. If, however, the answer to the first question is yes, the appeal will be dismissed.[37]
[37] It is not yet settled whether this is because the error was not material, such that the jurisdiction to allow the appeal was not enlivened, or because no substantial miscarriage of justice had occurred. It is unnecessary to resolve this issue for the purposes of this appeal.
If the answer to the first question is no, the appellate court should consider the sentence it would impose if it was to exercise the sentencing discretion afresh. If the appellate court would impose the same sentence, then no substantial miscarriage of justice has occurred, and the court may dismiss the appeal.
If the appellate court would impose a lesser sentence,[38] then the appeal should be allowed, and the court may proceed to re-sentence the appellant.
[38] It is unnecessary to consider what the court can and should do if it decides a greater sentence should have been imposed. As to this, see Kentwell [43] (French CJ, Hayne, Bell and Keane JJ and RO v R [2019] NSWCCA 183 [84] - [89] (Beech-Jones J).

Ground 3 - Mr Aston ignored his training as he felt compelled

It is convenient to begin with ground 3. This is because, as will be seen, I consider it to be readily established.
Ground 3 alleges that:[39]
The Magistrate erred in fact in finding that the appellant effectively lost interest in the plant and allowed a working environment to develop in which Mr Aston felt compelled to 'do his best at work', which then [led] to him attempting to remove the rock from the secondary conveyor and tail end pulley despite his training warning him to the contrary.
[39] Appellant's Submissions [14].
The magistrate found that Guerinoni lost interest in the Plant and that this had a significant impact on the working environment from 2014 leading up to the accident in 2016. In particular, her Honour found that, due to its loss of interest in the Plant, Guerinoni stopped supervising at the Plant.[40]
[40] Reasons [13] - [14] and [292.2]. See also Sentencing transcript pages 4 - 5.
Her Honour further found:[41]
162.… that the Accused allowed a working environment to develop in which the Complainant felt compelled to 'do his best at work' which I am satisfied meant he did not want to involve anyone else because he knew of the pressures the Accused was under given the staffing emergency at the Tanami Mine. He attempted to remove the rock from the secondary conveyor and tail end pulley despite his training warning him to the contrary.
[41] Reasons [162].
On several other occasions in the Reasons, her Honour referred to Mr Aston feeling compelled:[42]
36.… the working environment that the Accused allowed to develop, culminated in the immediate circumstances surrounding the incident … In the absence of the immediate circumstances surrounding the incident the Complainant may not have felt compelled to do a "good job" by attempting to remove the rock from the tail end pulley without involving others.
…
286.… I have addressed the position the Accused put the Complainant in at the time of the incident which in my view created a perfect storm in which the Complainant felt compelled to act contrary to his better judgement.
…
292.1.The Accused allowed an environment to be created and to exist whereby the Complainant felt compelled to do a "good job" by attempting to remove the rock from the lagging around the tail end pulley
[42] Reasons [36], [286] and [292.1].
Ground 3 alleges a single error of fact. However, the challenged finding is a conclusion based on several factual findings.
Guerinoni submits that two of the findings were not open on the evidence. First, that it 'effectively lost interest in the Plant'.[43] Second, that Mr Aston attempted to remove the rock without turning off the Plant because he did not want to involve anyone else because he knew of the pressures Guerinoni was under.[44]
[43] Appellant's Submissions [47] - [50].
[44] Appellant's Submissions [52].
The respondent submits it was open to the magistrate to make the findings.

Was it open to the magistrate to make the findings?

As to the first finding, even if it was not open to find that Guerinoni lost interest in the Plant, the finding was not significant. There was no supervision and the workplace was unsafe. Whether this was due to Guerinoni's level of interest in the Plant was not material.
The second finding is significant. The magistrate found that Mr Aston did not do what he knew he should do, and what he had been trained to do, because he felt compelled to 'do his best at work'. The magistrate found, in effect, that he felt compelled to act as he did because he 'did not want to involve anyone else because he knew of the pressures the Accused was under given the staffing emergency at the Tanami Mine'.[45] I will refer to this finding as 'the Compulsion Finding'.
[45] Reasons [162].
There was no direct evidence to support the Compulsion Finding. Guerinoni submits that the evidence did not permit such an inference to be drawn.[46]
[46] Appellant's Submissions [54] - [55].
Guerinoni submits:[47]
It was not reasonably open to the Magistrate to find that the appellant allowed a working environment to develop in which Mr Aston felt compelled to 'do his best at work', and therefore did not want to involve anyone else because he knew of the pressures the appellant was under at the time, and that this was why he attempted to remove the rock from the secondary conveyer and tail end pulley. Mr Aston made a spur of the moment decision to try to remove the rock with a spanner that was nearby, despite knowing that he should turn of[f] the plant first. His actions had nothing to do with the appellant losing interest in the working environment at the plant, or any change in the appellant's business focus, or any change in the level of supervision that was being provided at the plant.
[47] Appellant's Submissions [56]. See also [43].
The respondent submits that:[48]
[t]he Magistrate was well justified in finding that the immediate circumstances surrounding the incident, and particularly the void in supervision, impacted significantly on Mr Aston's decision to use a spanner to address a rock blockage while the conveyor belt was running, and indeed on the ease with which he could access the pulley in the first place.
[48] Respondent's Submissions [7(b)].
In its written submissions, the respondent referred to various parts of her Honour's Reasons in which her Honour set out her views that the immediate working environment influenced Mr Aston's decision to act as he did.[49] However, the respondent did not identify any evidence from which it could be inferred that Mr Aston felt compelled to act as he did because he 'did not want to involve anyone else because he knew of the pressures the accused was under'.
[49] Respondent's Submissions [17] referring, for example, to Reasons [36].
The respondent referred to her Honour's Reasons in paragraph 160,[50] set out earlier. The matters listed by her Honour are not capable of sustaining the conclusion that Mr Aston felt compelled to act as he did because he 'did not want to involve anyone else because he knew of the pressures the accused was under'. At most, Mr Aston was aware that two men (Mr Hutton and Mr De Groot) had been deployed to the Tanami Mine to avert an employment issue, and was aware of the importance of the Tanami Mine project.
[50] Respondent's Submissions [17] footnote 14. The respondent also cited the transcript of 13 August 2021 page 65, in which her Honour referred to findings she had made.
The respondent submits that it was entirely open for her Honour to construe Mr Aston's conduct as a foreseeable product of his working environment. It notes her Honour's words that he was placed in an untenable position.[51] The respondent then postulates:[52]
In that context, it is apparent that the Magistrate respectfully and pragmatically characterised what Mr Aston described as a desire to 'do his best at work' as his stoic, self-effacing way of explaining why, in the absence of supervision, he tried to solve the blockage by himself to avoid damage to the conveyor belt, instead of turning off the Plant (which would lead to the build-up of material) and going to the trouble of calling in other workers to assist in changing the belt. He knew that there were limitations on the availability of other workers, particularly those experienced in changing the belt.[53] The appellant's seizing upon her Honour's use of the word 'compelled' in describing Mr Aston's evidence is semantic and reveals an eye overly attuned to ostensible error.

The evidence

[51] Respondent's Submissions [18] citing Sentencing Transcript page 7.

[52] Respondent's Submissions [19].

[53]Citing Reasons [142], [160] - [162] and [168].

There was no direct evidence to support the Compulsion Finding. Mr Aston did not give evidence that he felt compelled to act as he did because he 'did not want to involve anyone else because he knew of the pressures the accused was under'.
Mr Aston was aware that Mr Hutton and Mr De Groot had been deployed to the Tanami Mine to avert an employment issue, and was aware of the importance of the Tanami Mine project. However, there is no evidence that he acted as he did because he was aware that Guerinoni was under pressure. Indeed, there is no evidence that he knew that Guerinoni was under pressure.
The evidence that Mr Aston wanted to do his best at work came from his evidence during re-examination. The relevant exchange was:[54]
Travis, you were asked questions relating to the action that you took, to clear - clear the rock. For example, where you were standing and what your thoughts were. And I think you said - you agreed that, in hindsight, you would not have and should not have - and it was - attempted to do what you did?- - - Of course.
And you said it in - but it - in terms of in your mind and being conscious of - you said, "It must have been in the back of my mind". What was in your mind when you were doing what you did?- - -I'm doing my - doing my job and for some reason caring about a - a rock that could wear through a conveyor, for some stupid reason. That's what was in my mind. I try and - and do my best at work, which didn't work that time. That's what was in my mind. Yes.
It was suggested that you could have just turned off the conveyor. Can you explain this: if you were to turn [off] the conveyor, how do you do that? Is that all switches, or one?- - -Well, you could - you could turn off one, but then everything else would keep running, and you would just get piles of rocks. So, yes. It's a bit of - - -
Can you explain that further, what, if?- - -If you turn [off] that one - the short conveyor after the screen, it's going to stop. So everything coming of the screen is going to just pile up on that belt. Which is not ideal, because then- - -
Okay?- - - - - - it may well not start again, and then you've got another job to do.
[54] See Trial Transcript page 123.

Mr Aston gave evidence as to the circumstances of the accident.[55] He described seeing the rock. The following exchange occurred:[56]
Did you contemplate turning it off, or did you think about turning it off before you did this?- - -No, it was just a - just a stupid decision; spur of the moment. Maybe I was looking forward to lunch, I don't know. But, it was just a stupid, young person, thing to do. And, yes. No, I can't remember if I thought about it or not.
[55] Trial Transcript pages 76 - 77.
[56] Trial Transcript page 85.
Mr Aston agreed that it was not necessary for the machine to be running in order to remove the rock. He agreed there were a number of options available to him. These included asking 'the office' for help. He agreed he could have done that. He agreed that he had always been given help whenever he asked for it from the office. He agreed that the rock did not need to be removed with any urgency.[57]
[57] Trial Transcript pages 95 - 96.
During the hearing of the appeal, counsel for the respondent conceded that there was no direct evidence to support the Compulsion Finding. Counsel also accepted that there was no direct evidence that Mr Aston even knew that Guerinoni was under pressure.[58] Counsel submitted, however, that those findings could be inferred from the evidence. He sought, and I gave, leave to file after the hearing of the appeal a list of transcript references from which the inference could be drawn.
[58] ts 45 - 46 and 52.
The respondent duly filed a list of transcript references.[59] The list referred to evidence from Mr Aston to the effect that:
1.he did not report to people about, or seek advice for, trivial things;
2.at the time of the accident, Mr Hutton, the person to whom he ordinarily reported, was not there and he was not sure who he should be reporting to in Mr Hutton's absence;
3.Mr Hutton was at the Tanami Mine job, which was a big job;
4.when rocks get stuck in the rubber, 'sooner rather than later' they put holes [in the conveyor belt].[60]
[59] Email from State Solicitor's Office 23 September 2022.
[60] Trial Transcript page 77.
The list also referred to evidence from Mr Aston that two people were needed to change a conveyor belt and that he would ordinarily make arrangements to change a belt in advance.
The respondent's list also referred to evidence that, at the time of the incident, approximately three quarters of the workforce were being utilised in locations other than the Plant.
None of these matters support an inference that Mr Aston felt compelled to act as he did because he was aware of pressures Guerinoni was under.

Conclusion - not open to the magistrate to make the finding

I consider that the evidence was insufficient to support an inference that Mr Aston felt compelled to act as he did because he 'did not want to involve anyone else because he knew of the pressures the accused was under'.
There was no evidence from which it could be inferred that Mr Aston knew Guerinoni was under pressure.
Mr Aston's evidence as to wanting to do his best at work was said in the context that he was worrying about a rock that could wear through the belt. He said there was no urgency. He said he was always able to get help when he needed it. He said his decision to knock off the rock without first turning off the Plant was simply a spur of the moment decision. It was not open to her Honour to infer that Mr Aston ignored his training because he wanted to do his best at work. Undoubtedly, he wanted to do his best at work. However, this is not why he failed to turn off the Plant. It is simply why he wanted to remove the rock.
It was not open to her Honour to make the Compulsion Finding challenged in ground 3.

Should the appeal nevertheless be dismissed?

The finding was material

The Compulsion Finding was a significant factor in her Honour's reasons for convicting Guerinoni of the charge. Mr Aston was aware that it was highly dangerous to try to remove the rock without turning off the Plant.[61] He knew that he should turn the Plant off before 'he went near it' and before attempting maintenance.[62] This was 'second nature' to him; it was 'entrenched' in his mind.[63] Specifically, he knew that he should not put his hand into the tail end pulley while it was running.[64] Mr Aston's training had warned him against removing a rock from the secondary conveyor and tail end pulley while it was in operation.[65]
[61] Trial Transcript page 97.
[62] Reasons [20] and [24]. See also [160.18].
[63] Reasons [24] and [26].
[64] Reasons [130.2] and [130.5].
[65] Reasons [162].
The direct cause of the accident was Mr Aston's failure to follow his training, which was second nature to him and entrenched in his mind, and turn off the machine before trying to remove the rock. In saying this, it should not be thought that the accident was Mr Aston's fault, or that Guerinoni was not at fault. Guerinoni was required to make allowances for the fact that employees sometimes act without due care and contrary to their training. Guerinoni utterly failed in this regard (and others). However, her Honour did not find Guerinoni responsible because it had failed to make allowances. Rather, her Honour found that the reason Mr Aston failed to follow his training was because he 'did not want to involve anyone else because he knew of the pressures the accused was under'.[66] That is, her Honour found that he made a decision to not follow his training, to not do what was second nature to him and entrenched in his mind, because he 'did not want to involve anyone else because he knew of the pressures the accused was under'.
[66] See Reasons [12] - [14], [35] - [36] and [160] - [162]. See also [292.1].
In her sentencing remarks, her Honour listed a number of aggravating factors. Included in the list was that Guerinoni had allowed the working environment to develop in which the complainant felt compelled to do a good job because he had no direct supervisor.[67] On several other occasions in her Honour's sentencing remarks, her Honour said that Mr Aston was:
1.compelled to do a good job by attempting to remove the rock from the lagging around the tail-end pulley;[68]
2.compelled to do a good job because of the lack of direct supervisor, lack of supervision and because of all of the other failures of the offender that I (the learned magistrate) have outlined;[69]
3.compelled to do a good job thereby ignoring his better judgment;[70]
4.compelled to act against his better judgment.[71]
[67] Sentencing transcript page 7.
[68] Sentencing transcript page 4 - 5.
[69] Sentencing transcript page 7.
[70] Sentencing transcript page 9.
[71] Sentencing transcript page 14.
In these references, her Honour did not say that Mr Aston was compelled to act as he did because he 'did not want to involve anyone else because he knew of the pressures the accused was under'. Nevertheless, in repeatedly using the phrase 'compelled to do a good job' (or 'compelled to act') in her sentencing remarks, I would infer that her Honour was using the phrase in the same sense as she had used it in her Reasons.
In my view, having regard to her Honour's sentencing remarks as a whole, it is plain that the Compulsion Finding was significant to her Honour's assessment of the appropriate penalty for the offence.[72]
[72] And see ts 85.
The respondent accepted that, if it was not open to her Honour to make the Compulsion Finding, the ground would be made out. It did, however, maintain its submission that I could nevertheless dismiss the appeal on the basis that no substantial miscarriage of justice had occurred. The respondent contended that I could be satisfied of that because, if I was to exercise the sentencing discretion afresh, I would not impose a lesser sentence.[73]

Would I impose a fine no lower?

[73] ts 53.

In dealing with ground 4, the manifest excess ground, the respondent submits that the sentence imposed by the magistrate 'was at the higher end of the range of available sentences, but was not manifestly beyond that range'.[74] In my view, this submission is difficult to reconcile with the respondent's submission that I should dismiss ground 3 on the basis that I could be satisfied that I would not impose a lesser sentence.
[74] Respondent's Submissions [103]. See also ts 66.
Putting that aside, I am not satisfied I would not impose a lower sentence. In my consideration of ground 4, I discuss the various factors that are relevant to the assessment of the appropriate penalty in this case. Having regard to those factors, if I was to exercise the sentencing discretion afresh, I would impose a fine significantly less than the fine imposed of $230,000.

Conclusion on 'no substantial miscarriage' submission

Accordingly, I am not satisfied that, despite the error, there was nevertheless no substantial miscarriage of justice.

Conclusion on ground 3

For these reasons, I would give leave to appeal on ground 3, allow the appeal on this ground, set aside the fine imposed, and re-sentence the offender.
I will, however, deal with ground 4, which contains my reasons for concluding I would impose a fine significantly less than the fine imposed by the learned magistrate. I will also deal with grounds 1 and 2 in case I am wrong in relation to ground 3. I will begin with ground 1.

Ground 1

During the appeal, senior counsel for Guerinoni clarified the meaning of ground 1.[75] As clarified, ground 1 alleges that:
The Magistrate erred in fact in finding that Guerinoni's failure to implement 'isolation procedures for the plant, training employees and [enforcing] compliance with those isolation procedures to ensure that the plant was not operating while any employee could be exposed to the hazard', as alleged in particular 5(b) of the prosecution notice, caused, on 16 June 2016, serious harm to Mr Aston.
[75] ts 14 - 15.
It will be recalled that I refer to particular 5(b) as 'the Isolation Measure'.
The prosecution case was run on the basis that the Isolation Measure was directed to ensuring the Plant was de-energised (i.e. disconnected from the power supply) so that it would not move unexpectedly while it was being worked on. The prosecution said that isolation requires more than just turning the Plant off, and that isolation requires tags and locks to be used to ensure that someone does not cause the Plant to become re-energised, not appreciating that the Plant is being worked on by someone else.[76] That is, the prosecution's case incorporated isolation procedures relating to both de-energisation and preventing re-energisation. I will refer to these as the 'de-energising' component and 're-energisation prevention' component respectively.
[76] Trial Transcript pages 17 - 18.
The magistrate accepted that Guerinoni's employees, including Mr Aston, clearly understood the de-energising component. Her Honour found that they clearly understood that the Plant ought to be turned off before attempting maintenance. Her Honour found that this was of second nature to Mr Aston and was 'entrenched' in his mind. While not entirely clear, it seems from these findings that her Honour did not find any failings in relation to the implementation, training and enforcement of the de-energising component.
However, her Honour found that processes addressing the other component, re-energisation prevention, were not second nature to Mr Aston.[77] The magistrate was critical of Guerinoni's failure to properly instruct Mr Aston in re-energisation prevention processes and in failing to supervise him to ensure that he was implementing such procedures.[78] I will refer to the failures in relation to re-energisation prevention processes collectively as the 'Isolation Failures'.
[77] Reasons [24], [26], [248] and [259].
[78] Her Honour was also critical of Guerinoni's failure to provide Mr Aston with personal locks as part of re-energisation prevention.
Her Honour said, in effect, that the Isolation Failures created an unsafe work environment[79] and meant that it was even more important that dangerous machinery be guarded.[80]
[79] Reasons [24] - [27]. See also [251] and [261]
[80] Reasons [262].
Guerinoni submits that the magistrate's finding that the Isolation Failures causally contributed to the injuries was erroneous.[81] The respondent accepts that the magistrate made this finding.[82] However, the respondent submits that the Isolation Failures did causally contribute to Mr Aston's injuries. I will discuss this contention in the next section.
[81] Appellant's Submissions [23].
[82] Respondent's Submissions [34(c)] and [37]. See also ts 59, 70 and 79 - 80.
The parties agreed that it was not entirely clear the extent to which her Honour took the finding into account in sentencing.[83] However, the respondent conceded that her Honour had taken it into account to some extent.[84]
[83] Appellant's Submissions [23] and ts 60 (respondent's counsel). See also the respondent's submissions in relation to its 'no substantial miscarriage' submission at ts 60 - 61 and ts 68 - 69.
[84] ts 60. See also the respondent's submissions in relation to its 'no substantial miscarriage' submission at ts 60 - 61 and ts 68 - 69.
The respondent submits, however, that, if the Isolation Failures did not causally contribute and the error is established, I should nevertheless find that the error did not cause a substantial miscarriage of justice. Again, the respondent contends that I could be satisfied of that because, if I was to exercise the sentencing discretion afresh, I would not impose a lesser sentence.[85] For the same reasons as I gave in relation to ground 3, I do not accept this.
[85] ts 60 - 61. See also ts 68 - 69.
The only issue remaining, therefore, is whether the Isolation Failures causally contributed to the injuries. After dealing with this issue, I will also briefly address what would flow if I am wrong about her Honour's criticisms being limited to re-energisation prevention processes.

Did the Isolation Failures causally contribute to the injuries?

Guerinoni accepts that the failure to turn off the Plant was a cause of the accident. However, it points out that the same cannot be said of the failure to add locks and tags to ensure that de-energised Plant is not accidentally re-energised while it is being worked on. The accident did not occur because the Plant was accidentally re-energised. It was never de-energised.
The respondent submits that the Isolation Failures did causally contribute to the injuries.[86] He submits that:[87]
Mr Aston's injuries were caused by a failure to ensure that the Plant had been de-energised. De-energisation is a component of any isolation procedure. Had Mr Aston de-energised the Plant prior to trying to knock the rock from the nip point of the conveyer belt at the tail end pulley, he would not have been injured.
[86] Respondent's Submissions [37].
[87] Respondent's Submissions [38].
In my view, this submission is not material to the Isolation Failures found by her Honour. As I read her Honour's reasons, the Isolation Failures found by her Honour were that Guerinoni had failed to properly instruct and enforce isolation procedures other than the instruction that he must turn off the Plant before attempting maintenance.[88] That is, the Isolation Failures found by her Honour were that Guerinoni had failed to properly instruct and enforce isolation procedures that addressed re-energisation prevention.
[88] See Reasons [24] - [27] and [248] - [262]
Mr Aston's injuries were not caused because Guerinoni had failed to train Mr Aston to turn off the machine. The magistrate accepted that Mr Aston had been trained to do that, and it was entrenched in his mind.
The respondent also submits:[89]
As her Honour found, Mr Aston's decision to ignore the instruction to not go near the Plant when it was running must be taken in the context of the surrounding circumstances.
[89] Respondent's Submissions [42].
Her Honour made this finding at paragraph 260 of the Reasons. The 'surrounding circumstances' were those set out in paragraphs 160-162 of the Reasons.[90] The respondent submits that this finding was, in essence, that the general absence of supervision and related matters was such that Mr Aston's conduct was a product of his inadequate working environment.[91]
[90] Respondent's Submissions [42] footnote 42.
[91] Respondent's Submissions [42].
Again, the respondent's submission does not appear to be material to the Isolation Failures found by her Honour. It was not suggested that her Honour found that Mr Aston ignored his training in relation to de-energising because he had not been trained in the procedures addressing accidental re-energisation or because re-energisation prevention procedures had not been enforced.
Further, the cited paragraphs of the Reasons do not appear to bear upon the Isolation Failures found by her Honour. The respondent submitted that paragraph 160.2 encompassed ensuring that Mr Aston was trained in and was actually isolating machines. In my view, the cited paragraphs are not directed to failings to train in, and enforce, procedures addressing accidental re-energisation. Rather, they are directed to her Honour's views as to why Mr Aston did not follow his entrenched training to de-energise the machine.
It is possible that, if an employee is trained only in relation to one component of a comprehensive procedure, the employee may be more likely to ignore that single component than if he or she had been trained on the entire procedure. A more comprehensive procedure with multiple steps, check-lists and more comprehensive training may make it less likely that an employee will choose to depart from training on the spur of the moment. However, it was not suggested that this was the way in which the prosecution ran this case, or that her Honour had made such a finding. In particular, her Honour found that Mr Aston departed from his training and acted as he did because he felt compelled to do so because of the pressures Guerinoni was under.
The respondent further submits that:[92]
had the appellant implemented an isolation procedure as legally required, trained its employees in that procedure, and enforced compliance with that procedure, the Plant would have been fully isolated when Mr Aston went near its moving parts. Self-evidently, this had a significant and substantial connection to Mr Aston's injuries.
[92] Respondent's Submissions [48].
In my view, it is not self-evident.
The accident was not caused by a failure to implement a procedure that addressed the risk that de-energised Plant could be accidentally re-energised while it was being worked on. The accident did not occur because the Plant was accidentally re-energised. It was never de-energised.
Accordingly, her Honour erred in finding the Isolation Failures causally contributed to the injuries.

If I am wrong about the content of the Isolation Failures

As I have said, I consider that the learned magistrate did not make any adverse finding in relation to the implementation, training and enforcement of de-energising processes. It is clear that her Honour found that a de-energising process had been implemented and that Mr Aston had been fully trained in it such that it was entrenched in his mind. It also appears that her Honour was not critical of any failure to enforce that component of isolation processes. However, her Honour did not say this expressly.
The respondent submits that her Honour found that, despite the de-energisation process, Guerinoni had allowed Mr Aston's working environment to degrade to a position where the practice could not be assumed to be consistently implemented by him.[93] During the hearing of the appeal, the respondent conceded her Honour did not expressly say this, but submitted it could be inferred from the Reasons. The respondent said that paragraph 220 of the Reasons was 'an example of where her Honour makes a finding to that effect'.[94] In that paragraph, her Honour said:
I find that the "on the job training" that the Complainant received through Tony Zunker was totally inadequate. I direct no criticism towards Tony Zunker in this regard but rather the Accused who chose to allow its employees to pass on procedures and work practices by word [of] mouth, to identify hazards and to manage risks, including identifying only those maintenance tasks that they recognised and in doing so created a working environment which developed in an ad hoc manner allowing unsafe work practices to develop from employee to employee.
[93] Respondent's Submissions [42] - [43].
[94] ts 78.

The respondent did not refer to any other paragraphs in support of its proposition.
I doubt that paragraph 220 reflected a finding that Guerinoni had allowed Mr Aston's working environment to degrade to a position where the practice of turning off the machine could not be assumed to be consistently implemented by him. Nor do her Honour's Reasons as a whole appear to suggest that her Honour made a positive finding that there had been a failure to enforce the de-energisation component. Nevertheless, I accept it is possible that her Honour did.
Guerinoni submits that, while the failure to turn off the Plant was a cause of the accident, that failure was not caused by a failure to implement a procedure of turning off the Plant or a failure to train in, or enforce, such a procedure. There was a clear procedure which Mr Aston had entrenched in his mind and was second nature. Guerinoni submits that there is no reason to infer that any further training would have stopped him from acting contrary to his training as he did on the day of the accident.
I accept this. However, if the isolation failures found by her Honour included a failure to enforce a de-energising process, it is relevant that there were two or three occasions prior to the accident when Mr Aston had knocked rocks from the tail end pulley while the Plant was running. (There was no evidence that the person who trained him, Mr Zunker, had ever done this).[95]
[95] Reasons [160.15].
Nevertheless, I doubt that this evidence would be sufficient to sustain an inference that enforcement of a procedure already entrenched in Mr Aston's mind would have stopped him from acting contrary to his training as he did on the day of the accident.

Conclusion on ground 1

For these reasons, I would give leave to appeal on ground 1 and allow the appeal on this ground.

Ground 2

As with ground 1, senior counsel for Guerinoni clarified the meaning of ground 2.[96] As clarified, ground 2 alleges that:
The Magistrate erred in fact in finding that the appellant's failure to ensure that there was supervision of employees working at the plant, in accordance with particular 5(c) of the prosecution notice (as amended), caused, on 16 June 2016, serious harm to Mr Aston.
[96] ts 14 - 15.
It will be recalled that I refer to particular 5(c) as 'the Supervision Measure'.
The Supervision Measure alleged that the appellant had failed to ensure 'that there was supervision of employees working at the plant as was necessary to enable them to perform their work safely and in accordance with any safe work procedures'.[97]
[97] Appellant's Submissions [25].
Further particulars were provided by way of clarification. It is common ground that the prosecution case in relation to the Supervision Measure was that Guerinoni should have ensured (but did not) that a competent person inspected the workplace at and around the Plant at least once during each working day to ensure that it was safe for persons working there, including by supervising Mr Aston's work.[98]
[98] Appellant's Submissions [28] and ts 79.
The magistrate found that this level of supervision was necessary. Her Honour said this required the supervisor to observe workers performing work tasks to assess, through observation, the manner in which employees were implementing and maintaining systems.[99] Guerinoni did not do this. Her Honour found that this failure (Supervision Failure) was a significant or substantial cause of the injuries.
[99] Reasons [21] and [223]. See also [192].
Guerinoni submits that it was not open to the magistrate to make this finding. The respondent accepts that her Honour made this finding,[100] but submits that the finding was correct.[101]
[100] Respondent's Submissions [34(c)] and ts 70 - 71 and ts 79 - 80 (cp Respondent's Submissions [53] and [58]).
[101] Respondent's Submissions [7(a)].
The respondent further submits that, in any event, the magistrate did not give any significance to the finding in sentencing.[102]
[102] Respondent's Submissions [34(d)] and [62].
Finally, the respondent submits that, even if her Honour did give weight to this finding in sentencing, there was nevertheless no miscarriage of justice.[103] Again, the respondent contends that I could be satisfied of that because, if I was to exercise the sentencing discretion afresh, I would not impose a lesser sentence.[104] For the same reasons as I gave in relation to the previous grounds, I do not accept this.
[103] Respondent's Submissions [62].
[104] ts 60 - 61. See also ts 68 - 69.
Accordingly, two questions remain:
1.Did the Supervision Failure causally contribute to the injuries?
2.If the answer to question 1 is 'no', was this erroneous finding material to the sentence imposed?

Did the Supervision Failure causally contribute to the injuries?

Her Honour found that the Supervision Failure causally contributed in two ways. First, her Honour considered that, had Guerinoni supervised Mr Aston, it would have seen him engaging in unsafe work practices. Second, her Honour considered that, had Guerinoni supervised Mr Aston, it would have seen the build-up of material which gave him easier access to the conveyor belt.
I will deal with each in turn.

It would have seen him engaging in unsafe work practices

Guerinoni submits that there are two reasons why it was not open to the magistrate to find that, had Guerinoni supervised Mr Aston, it would have seen him engaging in unsafe work practices.
First, Guerinoni submits that, because there was no evidence that Mr Aston regularly engaged in unsafe work practices, a competent supervisor would not have observed any unsafe practices occurring.[105]
[105] Appellant's Submissions [34] ‑ [35].
Second, Guerinoni submits that (reference omitted):[106]
[i]t is also extremely unlikely that Mr Aston, while being observed by a competent person present at the workplace for the purpose of supervising his work practices, would have acted contrary to what was 'second nature' to him and what was 'already entrenched in [his] mind', namely, to turn off [the] plant before working on it. This is particularly so in circumstances in which the Magistrate found that Mr Aston 'wanted to do his best at work'. It is most unlikely that Mr Aston would have believed that he would have been demonstrating that he was wanting 'to do his best at work' to a competent person who was observing his work practices, by attempting to knock out a rock from a conveyor belt while it was still moving.
[106] Appellant's Submissions [36].
It is unnecessary to deal with Guerinoni's first reason. This is because the respondent concedes that, if Mr Aston knew he was being watched, he would not have done something he knew was contrary to the proper process.[107]
[107] ts 83.
I agree it is highly unlikely. Accordingly, I consider that her Honour erred in concluding that, had Guerinoni supervised Mr Aston, it would have seen him engaging in unsafe work practices.

It would have seen the build-up of material

The second way in which her Honour found that the Supervision Failure causally contributed was that her Honour considered that, had Guerinoni supervised Mr Aston, it would have seen the build-up of material which gave him easier access to the conveyor belt.
Guerinoni submits that this finding went beyond the scope of the prosecution's case in relation to supervision.[108]

What was the scope of the prosecution case in relation to supervision?

[108] ts 9 - 13. The respondent's submissions are at ts 46 - 49. Ultimately, the respondent submitted that 'not a great deal rises and falls' on this point.

While the particulars are poorly worded in several respects, they are plainly directed to supervision of employees, not inspection of workplaces.
The Supervision Measure alleged:[109]
It was practicable for the Accused to have [e]nsured that there was supervision of employees working at the plant as was necessary to enable them to perform their work safety and in accordance with any safe work procedures.
[109] Particulars 5(c).
The prosecution provided the following 'further particulars' of this measure, after first repeating the Supervision Measure contained in the prosecution notice:[110]
The workplace at and around the plant was required to be inspected at least once during each working day by a competent person to ensure that the workplace was safe for persons working there.
At the time of any workplace inspection it was practicable to supervise Mr Aston's work.
The workplace was not inspected by a competent person each day while Mr Aston was working in the weeks prior to 16 June 2016, and Mr Aston's usual supervisor was absent.
Supervision requires observation of an employee performing work tasks and mentoring employees about the Accused's safety procedures.
The following written procedures were available to the Accused: "Guerinoni & Son OHS Induction Manual"; "Guerinoni & Son Plant Safety Procedure"; and "Guerinoni & Son OHS and Environment Quality Management System".
The Accused could have accessed the Department of Mines and Petroleum, Resources Safety, Guideline "Effective safety and health supervision in Western Australia mining operations" (2014).
It was necessary for the Accused to have ensured supervision was sufficient to enforce compliance with its requirement to ensure that [the] plant was not operating while any employee was exposed to the hazard - the procedure that employees were expected to turn off unguarded conveyors before attempting to access them.
[110] Further Particulars of Alleged Practicable Measure 5(c) filed 16 October 2020.
The first paragraph is a statement of the obligation to inspect workplaces.
The second paragraph alleges that, at the obligatory workplace inspections, it was practicable to supervise Mr Aston's work. That is, it relies on the obligatory workplace inspections to explain why it was practicable to supervise Mr Aston's work.
The third paragraph asserts, in effect, that Mr Aston was not supervised.
The fourth paragraph sets out what supervision requires in terms of observing an employee performing work tasks and mentoring employees about safety procedures.
The fifth and sixth paragraphs simply refer to available materials.
The last paragraph is directed to the need to supervise to ensure that employees turned off unguarded conveyors before attempting to access them.
I am persuaded that, taking the alleged Supervision Measure and the further particulars as a whole, the alleged failure to have ensured supervision was not directed to, and did not extend to, noticing hazards in the workplace.
This is sufficient to dispose of this point. However, I make the following observations.
The build-up of material appears to have made it possible for a person standing on the ground to put their hands into the nip point on the secondary conveyor. However, it is doubtful that this actually increased the risk.[111] In evidence was a photograph of the inspector demonstrating how the nip point could be reached from the ground given the amount of material that had built up. He is standing on tiptoes, with his arms held upwards at about 45 degrees above horizontal. His hands reach over the flange and then down to reach the nip point where the belt meets the drum.[112] It does not look like a comfortable position.
[111] Although see ts 33.
[112] Exhibit 8 pages 139 and 122.
This is not how Mr Aston accessed the nip point when the accident occurred. Mr Aston gave evidence that he accessed the belt by standing on the frame below the tail end pulley on the inside of the beam on the top ridge that forms the base of the beam. One foot was on the beam on the flange and the other on the flange coming off the beam. Having regard to the photographs that show the secondary conveyor, this looks like it would not be physically challenging, and would give comfortable access to, and vision of, the conveyor belt. Accordingly, I consider it far more likely that a supervisor assessing the risk posed by the nip point would assume that an employee would climb up on the beam and flange rather than trying to stretch up on their tiptoes from the ground.
It may be thought that, had Guerinoni supervised Mr Aston as he worked on the Plant, it would have seen that there were parts of the Plant that could be stood on to reach the secondary conveyor belt and may have realised that the nip point on the secondary conveyor was accessible and needed to be guarded. However, even if her Honour had made this finding, it would have been outside the scope of the particularised Supervision Measure.

Was this erroneous finding material to the sentence imposed?

Guerinoni submits that the magistrate's finding that the appellant failed to supervise was clearly material to the exercise of the magistrate's sentencing discretion.
The respondent submits that her Honour relied on the fact of the Supervision Failure in all the circumstances, rather than their characterisation as being causative or otherwise of Mr Aston's injuries.[113] He submits (citation omitted):[114]
At no point in her Honour's sentencing remarks did she ascribe any significance to the proposition that the appellant's failure to have specifically taken the supervision measure caused Mr Aston's injuries.
[113] Respondent's Submissions [34(d)].
[114] Respondent's Submissions [62].
I do not accept this. Her Honour found that Mr Aston failed to follow his training (and was injured) because he felt compelled. In her sentencing remarks, her Honour said that he felt compelled 'because of the lack of direct supervisor, lack of supervision and because of all of the other failures of the offender that I have outlined'.[115] In my view, her Honour gave significant weight in sentencing to her finding that the Supervision Failure contributed causally to the injuries.

Conclusion on ground 2

[115] Sentencing Transcript page 7. See also Sentencing Transcript pages 7 and 9.

For these reasons, I would give leave to appeal on ground 2 and allow the appeal on this ground.

Ground 4[116] - manifestly excessive?

[116] The legal principles set out in the discussion of this ground are reproduced or drawn from what I have written in other decisions.

Ground 4 alleges that the magistrate erred in imposing a sentence that was manifestly excessive. This is an assertion of implied error. To succeed, the appellant must demonstrate that the sentence is unreasonable or plainly unjust.[117]

A sentence must correspond to the seriousness of the offence

[117] Gaskell [127(1)] (Mazza and Beech JJA).

A sentence imposed on an offender must be commensurate with the seriousness of the offence.[118] The seriousness of an offence must be determined by taking into account:[119]
(a)the statutory penalty for the offence; and
(b)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and
(c)any aggravating factors; and
(d)any mitigating factors.

Imposing a fine

[118] Sentencing Act 1995 (WA) s 6(1).

[119] Sentencing Act s 6(2).

If a court decides to fine an offender, the court must, as far as is practicable,[120] take into account the means of the offender and the extent to which payment of the fine will burden the offender. This is subject to the requirement that a sentence imposed on an offender must be commensurate with the seriousness of the offence.[121] This means that:[122]
whilst a court must take into account the means of an offender in considering the amount of any fine that exercise should not result in a fine which is not commensurate with the seriousness of the offence. In some cases it may be necessary to impose a fine that is difficult for an offender to pay or even beyond the means of an offender, if a fine of any lesser amount would not be commensurate with the seriousness of the offence. This assumes that no other disposition is reasonably open.
However, the seriousness of an offence will rarely dictate the precise amount of an appropriate fine. There will usually be a range of fines that will be open to be imposed. It is in this context that the means of the offender and the extent of any burden on the offender will come into play. Where an offender is of very limited means and the burden of a fine would be very onerous, those factors will justify the imposition of a fine towards the lower end of the range that would be appropriate for an offence of the seriousness being dealt with by the court.
[120] A court may fine an offender even though it has been unable to find out about these matters - Sentencing Act s 53(2).
[121] Sentencing Act s 53(1). See also Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586 [25] ‑ [26].
[122] Hussaini [25] - [26].
In having regard to the burden that a fine may impose on an offender, the court should not overlook the fact that a fine is a punishment and is intended to be a burden on the offender, to give effect to appropriate sentencing principles of punishment and general and personal deterrence.[123]
[123] Al Hussein v Commissioner for Consumer Protection [2014] WASC 296 [16].
In Sgroi v R,[124] Malcolm CJ, with whom Rowland J agreed said:
The question whether the amount of a fine is within the range of a sound discretionary judgment is to be determined in the same manner as the same question when asked with respect to a sentence of imprisonment, save that in the case of a fine considerations of the offender's financial means [or] capacity are relevant in determining the amount of a fine which will constitute punishment proportionate to the gravity of the offence in the light of the circumstances under which it was committed, the antecedents of the offender and, where appropriate the objective of general deterrence.
[124] Sgroi v R (1989) 40 A Crim R 197, 201 (Malcolm CJ).
Where an offence arises out of a commercial operation, there is a need to ensure that the fine is not treated merely as an 'operating expense'.[125]

Relevant principles in sentencing employers for failing to ensure safety

[125] Peat Resources of Australia Pty Ltd v Rodney William Brown Chief Executive Officer City of Cockburn [2002] WASCA 342 [41] (Pullin J).

In Ayton v City of Armadale,[126] the Court of Appeal allowed an appeal against a sentence imposed for an offence of contravening s 21(2) and s 21A of the Occupational Safety and Health Act 1984 (WA) (OSH Act).
[126] Ayton v City of Armadale [2020] WASCA 39.
Sentencing principles applicable to the OSH Act are also applicable to the MSI Act.[127] Similarly to s 9(1) of the MSI Act, s 21(2) of the OSH Act imposes a duty on employers to ensure the safety of their workers, so far as is practicable. As with s 9(1) of the MSI Act, the 'statutory duty imposed upon an employer by s 21(2) … is intended to protect the safety and health of a person from the hazards of work being undertaken by or on behalf of their employer'.[128]
[127] See BHP Billiton Iron Ore Pty Ltd v Capon [2014] WASC 267 (S).
[128] Ayton [51].
As with an offence against s 9(1) of the MSI Act, the maximum penalty for an offence under s 21(2) of the OSH Act for a first offender is $400,000.
The Court in Ayton found that the sentence imposed by the magistrate, of $30,000, was manifestly inadequate. In so finding, the Court discussed the principles to be applied in determining the appropriate penalty. Expressed in list form, the principles set out by the Court are as follows:[129]
[129] Ayton [52] - [53], [57] - [58] and [70].
1.The primary factor in determining the appropriate penalty is the objective seriousness of the offence.
2.To a substantial extent, the seriousness of a breach must be assessed by reference to the foreseeable potential consequences and the measure of disregard concerning the safety of persons to whom the employer has a duty to protect in all of the circumstances of the case.
3.The following factors are relevant to the assessment of seriousness:
a.the severity of the potential injury or harm;
b.the degree of risk of such potential injury or harm occurring;
c.the ease with which mitigating steps could have been taken;
d.the offender's state of knowledge about these matters;
e.what the respondent's responsible officers knew or ought to have known;
f.whether an obvious risk of harm was actually realised;
4.As the maximum penalty of $400,000 applies only to an offender which had not committed any offence against any provision of the Act, an offender's good record will be of little weight.
5.Particularly in cases involving a serious breach of the Act, personal mitigating factors, such as a plea of guilty, cooperation with the investigation and subsequent measures taken to improve safety must play a subsidiary role, as against the gravity of the offence, in determining the appropriate penalty.
6.General deterrence with the aim of protecting the public from the risk of serious injury resulting from obvious and easily remedied hazards is the paramount sentencing consideration.

In addition, 'experience has shown that even careful and conscientious employees may from time to time act inadvertently or without due regard for their own safety'.[130]

Determining whether a sentence is manifestly excessive

[130] Reilly v Tobiassen [2008] WASC 92 [19], citing R v Australian Char Pty Ltd [1999] 3 VR 834; (1995) 79 A Crim R 427, 422.

In determining whether or not a sentence is manifestly excessive, the sentence should be examined having regard to the maximum penalty for the offence, sentences imposed in other cases for similar offences, the gravity of the criminal conduct on the scale of seriousness of offences of that type, and the personal circumstances of the offender.[131]
[131] Gaskell [127(2)] (Mazza and Beech JJA).
If there are no directly comparable cases, the court is not precluded from deciding that an individual sentence is manifestly excessive. It just means that there are no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentences are only ever one indicator in the assessment.[132]

The relevant considerations

Maximum penalty

[132] See, in the context of manifest inadequacy and the totality principle, The State of Western Australia v Zhuang [2021] WASCA 56 [112] - [113].

The offence of which Guerinoni was convicted was that, being an employer at a mine, it had failed so far as was practicable to provide and maintain a working environment in which its employee, Mr Aston, was not exposed to hazards, and by that contravention caused serious harm to Mr Aston. For a corporate offender, the maximum penalty for a first offence not committed in circumstances of gross negligence is $400,000.[133] Higher maximums apply to subsequent offences or where gross negligence is involved.[134]
[133] Mines Safety and Inspection Act 1994 (WA) s 4A(3)(b)(i) and s 9A(2).
[134] A corporate offender committing a first offence in circumstances of gross negligence is liable to a fine of $500,000. The same maximum applies to a corporate offender committing a subsequent offence not in circumstances of gross negligence. See Mines Safety and Inspection Act s 4A and s 9A.
In Ayton, the Court said (citations omitted):[135]
The maximum penalty serves as an indication of the relative seriousness of the offence. It is one of the many factors that bear on the ultimate determination of the sentence for an offence. The maximum penalty, taken and balanced with all the other relevant factors, provides a yardstick against which to measure an appropriate sentence.
Attention should be directed to where the facts of the particular offence and offender lie on the spectrum that extends from the least serious instances of the offence to the worst category, being those offences so grave as to warrant the maximum prescribed penalty.

Percentage of maximum penalty

[135] Ayton [61] - [62].

The sentence imposed can be measured against the maximum penalty by considering the percentage of the maximum it represents.[136]
[136] See, as examples, Ayton [64] and Trinder v Anderson (Unreported, WASC, Library No 960216, 24 April 1996) 9. See also Scherini v Cleveland Freightlines Pty Ltd [2018] WASC 5 [129], [187] and [191] (primarily in the context of comparing outcomes in other cases - see [120] - [124] and [171] - [187]).
The fine of $230,000 was 57.5% of the maximum.

Seriousness of the offence

Guerinoni accepts the offence was a serious offence.[137] It further accepts that the potential consequence of exposure to the hazard of the nip point was 'self-evidently, serious harm and potentially even death.'[138]
[137] Appellant's Submissions [61].
[138] Appellant's Submissions [65].
However, it submits that the prospect of this harm occurring were low and were not obvious because:[139]
a)Mr Aston was a trade qualified, competent and reliable employee, and he was the only person at the relevant time who had access to the tail end pulley.
b)Mr Aston knew that he should not work on machinery [while] it was still running (this was second nature to him and was entrenched in his mind).[140]
c)There was very little need for [Mr] Aston to be anywhere near the tail end pulley while it was operating - Mr Aston only knocked out rocks with a crowbar on 2 or 3 occasions, and he was infrequently involved with tracking the belt.[141]
d)The tail end pulley was elevated, which provided some isolation.
[139] Appellant's Submissions [65].
[140] There was also no prospect, on the evidence, of anyone accidently re-energising the Plant in circumstances in which Mr Aston was working on the Plant.
[141] The greasing of the tail end pulley only took place when the Plant was turned off.
I accept that the risk was low. I do not accept that the risk was not obvious. It was obvious that there was a person working at the Plant who was close to a machine that moved, and that had an unguarded nip point.
Guerinoni further submits that it did not simply disregard the safety of Mr Aston.[142] I accept this. However, it plainly could have done much more.
[142] Appellant's Submissions [66].
Guerinoni relied entirely on Mr Aston following his training to turn off the Plant before going near its moving parts. It made no allowance for the fact that 'even careful and conscientious employees may from time to time act inadvertently or without due regard for their own safety'.[143]
[143] Reilly [19], citing Australian Char, 422.
Guerinoni asserts that it did not anticipate that Mr Aston would deliberately disregard that training.[144] It should have.
[144] Appellant's Submissions [66].
Guerinoni did not supervise Mr Aston. It should have. Guerinoni submits that the deficiencies in the supervision of Mr Aston that were found by the magistrate related to a relatively short period of time, from about mid-May to mid-June 2016, consistently with the particulars (5(c)(iii)).[145] This is not what the magistrate found. Her Honour found that there was no supervision of Mr Aston after 2012.[146]
[145] Appellant's Submissions [67].
[146] Reasons [160.3]. See also Reasons [23], [160.16], [185], [242] and [245].
Guerinoni did not appreciate that the nip points at the tail end pulley should have been guarded. It should have. Had it appreciated that and guarded the nip point, the accident would not have occurred. Guerinoni submits that, although the specific nip points at the tail end pulley were not guarded at the time Mr Aston was injured, other areas had been guarded. It submits that it did not actually appreciate that the nip points at the tail end pulley should have been guarded as it failed to appreciate the existence of a risk that Mr Aston might be exposed to the hazard of the nip points at the tail end pulley. It submits that this was an error of judgment and did not constitute reckless disregard for Mr Aston's safety.[147]
[147] Appellant's Submissions [67] - [68].
Her Honour did find that Guerinoni had failed to identify the risk (and, implicitly, the need to guard it). However, her Honour found that Guerinoni would have identified the risk if it had conducted the recommended review.[148] Given that, I do not consider that Guerinoni's failure to appreciate the risk was due to an error in judgment.
[148] Reasons [289]. See also [292.2.7].
Guerinoni failed to guard a nip point on machinery. While low, the risk was obvious. There was a risk that serious harm or death could result. Guerinoni did not appreciate the risk because it failed to conduct the recommended review. Guerinoni did not allow for the possibility that Mr Aston would act without due care for himself and contrary to his training. As a result, Mr Aston was seriously injured.
The failings relating to supervision and isolation procedures did not causally contribute to the accident. Nevertheless, they did contribute to the unsafe work environment that existed on the date of the accident.
In my view, the offence was undoubtedly serious.

Comparable cases

The authorities establish the following principles in relation to the consideration of comparable cases.
First, it has been repeatedly stated that comparable cases do not dictate the sentencing range for an offence. The position was recently reiterated by the Court of Appeal in The State of Western Australia v Zhuang:[149]
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
[149] The State of Western Australia v Zhuang [2021] WASCA 56 [109].
The consistency in sentencing that is sought is consistency in the application of the relevant legal principles.[150]
[150] Director of the Public Prosecutions of the State of Victoria v Dalgliesh (A Pseudonym) [2017] HCA 41; (2017) 262 CLR 428 [49] (Kiefel CJ, Bell and Keane JJ).
Sentences imposed in other cases are not binding precedents. The duty of the sentencer is to impose a sentence that is appropriate in all of the circumstances.[151]
[151] Dalgliesh [83] (Gageler and Gordon JJ).
Second, a small number of cases cannot establish the range of sentences customarily imposed.[152]
[152] Zhuang [161].
Third, comparable cases come from appellate decisions, not from sentences passed at first instance.[153]
[153] Zhuang [111].
Fourth, where an appeal alleging manifest excess is dismissed, the penalty upheld does not stand as an upper limit or benchmark for offending of a similar seriousness to those cases.[154] The same can be said in relation to a substituted sentence where an appeal is allowed. Such a case will establish that the sentence overturned was too much for the offending in that case. However, it will not establish that the substituted sentence is the upper limit.[155] It establishes that the substituted sentence was within the range of available sentences.
[154] Caruso v Shire of Augusta - Margaret River [2016] WASC 379 [183].
[155] CJH v the State of Western Australia [2013] WASCA 139; (2013) 230 A Crim R 1 [45] (Buss JA, as his Honour then was).
Fifth, where a court is satisfied that the outcome in a comparable case was manifestly excessive or inadequate, it need not have regard to that case in considering whether the sentence under appeal was manifestly excessive or inadequate.[156]

Other cases

[156] Dalgliesh [50] - [52] (Kiefel CJ, Bell and Keane JJ), quoting R v Pham [2015] HCA 39; (2015) 256 CLR 550, 560 [29] (French CJ, Keane and Nettle JJ).

There have been a limited number of cases in which sentences imposed for offences against s 9(1) and s 9A(2) of the MSI Act have been considered on appeal. It was common ground that the circumstances in which such an offence can be committed are highly variable, making it impossible to identify any tariff or discernible range of sentences.[157]
[157] Appellant's Submissions [69] - [70], Respondent's Submissions [91].
The appellant submitted that there had been no cases decided on appeal that could be described as comparable to this case, but noted that the re-sentencing exercise foreshadowed in Resource Recovery Solutions Pty Ltd v Ayton[158] had not yet taken place.[159]
[158] Resource Recovery Solutions Pty Ltd v Ayton [2021] WASC 443.
[159] Appellant's Submissions [69] and footnote 39.
By the time of the hearing, the re-sentencing exercise had occurred.

Resource Recovery Solutions Pty Ltd v Ayton [No 2]

In Resource Recovery Solutions Pty Ltd v Ayton, Smith J allowed an appeal against conviction of an offence of gross negligence pursuant to s 18A of the OSH Act, setting aside that conviction, and substituting a conviction on the general duty charge under s 19A(2) of that Act.
In Resource Recovery Solutions Pty Ltd v Ayton [No 2],[160] Smith J sentenced the offender (RRS) for the substituted offence, fining it $230,000.
[160] Resource Recovery Solutions Pty Ltd v Ayton [No 2] [2022] WASC 142.
RRS, like Guerinoni, did not plead guilty.
The respondent in this case conceded that RRS' offence was a much more serious offence than Guerinoni's offence.[161]
[161] ts 63. See also ts 65.
Like this case, Resource Recovery involved a worker being injured by getting caught in a nip point of moving machinery. However, there were some additional aggravating features not present here. In particular:[162]
1.The employees (sorters) consistently placed their own hands into powerful machinery with dangerous moving parts. They did not know a safe way to do the job, because it was not obvious to them, and a safe system had not effectively been provided.
2.RRS did not provide the sorters with adequate information, instruction, training or supervision to prevent the workers from placing their hands in moving belts, even though it was apparent that a significant risk existed.
3.The sorters were vulnerable workers because they were essentially unskilled, unsophisticated, and had a limited understanding of English.
4.There was a known high risk of serious injury or harm to health. There had been a similar incident less than a year earlier. After that incident, RRS still did not implement an adequate 'blockage procedure'.[163]
5.The worker injured in the incident the subject of the offence lost his arm.
[162] Resource Recovery Solutions Pty Ltd v Ayton [No 2] [58] - [62], [65] and [74].
[163] Two months prior to the incident, another worker suffered a right‑hand index finger and thumb fracture and laceration. However, it was not clear whether that injury was a result of a worker placing their hand in a moving part of any machinery: Resource Recovery Solutions Pty Ltd v Ayton [No 2] [61].
Further, while not a distinguishing feature from this case, two improvement notices had been issued to RRS in relation to the risk.
Her Honour concluded that the offence fell within the higher end of the scale.

Ayton v City of Armadale

Unlike Resource Recovery and the present case, Ayton was not a case in which a person was injured by getting caught in moving machinery. In Ayton, a member of the public was seriously injured when he was struck by a reversing front-end loader being driven by an employee of the respondent (Mr Woodenberg).
Nevertheless, the offence involved an employer's failure to ensure its workers' safety so far as was practicable.
The aggravating factors in Ayton included the following.
1.WorkSafe had previously issued two improvement notices directing the respondent (City) to 'ensure that the movement of vehicles and plant at the workplace is managed in a way that minimises the risk of injury to pedestrians and persons operating vehicles'.[164]
2.A directive was issued to staff, and a job safety analysis (JSA) was produced in which the hazard was identified, however most of the relevant staff were unaware of the directive or the JSA, and they were not being enforced or practised at the workplace.[165]
3.There were two previous occasions on which front-end loaders had reversed into vehicles being driven by employees.[166]
4.The physical, financial, and psychological effects of the injuries in Ayton were substantial and ongoing.[167]
5.Those endangered by the City's failures included members of the public, who would not have been fully aware of, or trained about, the potential hazards that might exist at the workplace.[168]
[164] Ayton [27].
[165] Ayton [27].
[166] Ayton [28].
[167] Ayton [29].
[168] Ayton [56].
Consistently with the first three factors, the Court in Ayton found that the risk was both obvious and known to the City and that the City knew of steps it could and should take to avoid the risk. It said that, in the circumstances, the City's failure to take reasonably practicable steps to avoid those risks reflected a substantial measure of disregard towards the safety of members of the public who used the waste facility.[169]
[169] Ayton [54].
Guerinoni submits that none of those factors was present in this case. It acknowledges that there was evidence that Guerinoni was previously required to ensure that all accessible nip points were adequately guarded, but notes that that requirement was not specifically concerned with the tail end pulley.[170] The improvement notices in Ayton were not specifically concerned with the risk of reversing the particular vehicle (or type of vehicle) involved in the accident, or even the risk of reversing vehicles in general. However, the directive issued in Ayton prohibited any operation of vehicles in public areas, other than specific vehicles. The JSA identified, in relation to the front-end loader, the risk of collision with people in the area.
[170] Appellant's Submissions [74].
In my view, the first two of the aggravating factors in Ayton are not materially more aggravating than Guerinoni's failure to conduct the recommended review. The City had sought to put processes in place and had conducted a JSA. It failed in the next steps. Guerinoni did not even do the recommended review.
Further, the magistrate in this case found that there were various other failings relating to supervision and isolation procedures. While these did not causally contribute to the accident, they did contribute to the unsafe work environment that existed on the date of the accident.
Guerinoni acknowledges that the City had pleaded guilty, and concedes that the Court may have allowed a 30% discount for that.[171] This would suggest that the Court considered that a fine of just over $157,000 would have been appropriate, before taking into account the plea.
[171] Appellant's Submissions [75].
At first instance, the magistrate had found the City to be remorseful.[172] In the appeal to a single judge, Kenneth Martin J appeared to accept this.[173] The Court of Appeal did not expressly refer to remorse, and the magistrate's finding of remorse did not appear to have been challenged on appeal. However, the Court of Appeal said (reference omitted):[174]
The respondent's submissions in the courts below and in this court seek to downplay its culpability in this offence by pointing to Mr Woodenberg's failures, as supervisor of the facility, to himself follow the directives and other safety procedures that the respondent had in place. Having regard to all of the circumstances of this case, this was not a matter of any substantial mitigation. This submission in truth seeks to deflect attention from the fact that the duty cast by s 21(2) of the OSH is on the respondent who, after all, acts through its officers and employees. The evidence did not reveal that Mr Woodenberg had, only on the day of the incident, failed to comply with the safety procedures adopted by the respondent. To the contrary, the respondent admitted, in substance, to an ongoing and serious failure of supervision and enforcement of its own procedures at the facility and, in particular, to a failure to address any inadequacies in Mr Woodenberg's compliance with those procedures. This ongoing failure increased the risk of serious injury or death and the objective seriousness of the offending. Moreover, it reduced the mitigation that flowed from the respondent's otherwise good safety record.
[172] Ayton [34(c)].
[173] Ayton [41].
[174] Ayton [59].
In both Ayton and this case, the employer was found to have failed to properly supervise and enforce safety procedures in an ongoing and serious way.

Ausdrill v Hanekom

Senior counsel for Guerinoni also referred to Ausdrill v Hanekom.[175] In that case, his Honour Le Miere J found that a penalty of $240,000 was manifestly excessive. His Honour re-sentenced the offender to a fine of $130,000.
[175] Ausdrill v Hanekom [2009] WASC 307.
The appellant had pleaded guilty under the fast track system. At the time of the decision in Ausdrill, it was well-established that the discount given for a fast-track plea of guilty usually fell somewhere between 20%–35%, depending on the circumstances.[176] Assuming that Le Miere J discounted the sentence by 20%-35%, his Honour considered that a fine of $162,500-$200,000 would have been appropriate, before taking into account the plea.
[176] See Mippy v the State of Western Australia [2012] WASCA 254 [24], citing H v Western Australia[2006] WASCA 53 [9].
In some respects, the circumstances of the offence in Ausdrill were more serious than the circumstances in this case. In other respects, the circumstances were less serious.
The worker in Ausdrill died when the truck he was driving collided with drill rods protruding over the back of a Bit Truck. The drill rods pierced the front windscreen of the worker's truck and struck him at head height.
The appellant in Ausdrill was aware of the risk of injury or harm to the health of employees from the overhanging drill rods. There were available and feasible steps to avoid or mitigate the risk which were not taken before the accident. The potential risk of harm from the breach was one of serious injury or death.[177]
[177] Ausdrill [40].
On the other hand, the appellant did not disregard the risk of injury or harm. It took steps to avoid the hazard, although these steps were inadequate.[178]
[178] Ausdrill [41].
The accident did not arise from a one-off or unanticipated event. However, the long drill rods were only infrequently left on the Bit Truck overnight.[179]
[179] Ausdrill [41].
Le Miere J concluded that the offence was in the middle of the range of seriousness for offences of that nature.[180]
[180] Ausdrill [41].
The mitigating factors were identified by Le Miere J as follows:[181]
The appellant pleaded guilty at the first opportunity. The appellant has no prior convictions. The appellant has a relatively good safety record before and after this accident. Since the accident the appellant has taken measures to ensure that a similar accident will not occur again. The appellant has demonstrated that it is a good corporate citizen.

Personal circumstances

[181] Ausdrill [42].

Guerinoni was a first offender, despite trading since 1980. That said, it was because Guerinoni was a first offender that the maximum penalty was 'only' $400,000. Had it been a subsequent offence, the maximum would have been higher.
The learned magistrate found 'little or no remorse for the offending'.[182]
[182] Sentencing Transcript page 9. See also pages 10 - 11.
The magistrate accepted that Guerinoni had a history of seeking to assist indigenous people and was a good corporate citizen.
The magistrate accepted that Guerinoni had taken a number of steps to address safety at its workplaces since the incident. The magistrate accepted that the pandemic had a significant financial impact on Guerinoni.

Conclusion on ground 4

To prove the allegation of manifest excess, Guerinoni must establish that it was not open to the magistrate to impose the fine. It is not for me to substitute the fine I would have imposed had I been sentencing the appellant for this offence.
There were a number of significant aggravating factors in this case.
In particular, Guerinoni's failure to appreciate the risk was not because the risk was not obvious. Had Guerinoni conducted the recommended review of nip points, it would have discovered the risk. In addition, the likely harm if a worker did get caught in the nip point was serious injury and possibly death. In my view, the magistrate rightly characterised the breach as serious.
Further, it would have been easy to guard the nip point.
While there are a number of mitigating factors, they are of less weight in determining the appropriate penalty than the gravity of the offence. The gravity is the primary factor.
Further, general deterrence is the paramount sentencing consideration.
The fine was undoubtedly substantial. It equated to 57.5% of the maximum penalty.
It was significantly more than the other cases to which my attention was drawn, with the exception of the recent decision of Smith J in Resource Recovery. In that case, Smith J imposed a fine on RRS of $230,000, the same amount as the magistrate in this case. RRS' offence was, in my view, more serious than Guerinoni's offence. That said, the fine imposed by Smith J did not fix the upper limit of an appropriate fine for an offence of that seriousness. It simply established that the fine was within the range.
The respondent in this case conceded that the seriousness of Guerinoni's offence was lower than the seriousness of RRS' offence.
The respondent did not seek to contend that Guerinoni's offence was more serious than the offence in Ayton.[183] In my view, the circumstances of Ayton do not permit a meaningful comparison to be drawn to Guerinoni's offence. All I would say is that, similarly to the respondent, I would not describe Guerinoni's offence as more serious than the offence in Ayton.
[183] See ts 63 - 65.
The respondent did not address Ausdrill. As with Ayton, I consider that the circumstances do not permit a meaningful comparison to be drawn. Again, I would not describe Guerinoni's offence as more serious than the offence in Ausdrill. However, I would be unlikely to conclude that Guerinoni's offence fell no higher than the middle of the range.
I am satisfied that the upper end of the range of appropriate sentences for Guerinoni's offence was substantially below the fine imposed by the magistrate. I am satisfied it was not open to the magistrate to impose the fine.
I would grant leave to appeal on this ground, and allow the appeal on this ground.

Conclusion

For the reasons I have given, I would grant leave to appeal, allow the appeal and set aside the fine imposed by the learned magistrate.
The parties were provided with copies of the above reasons prior to a hearing on 14 October 2022. At the commencement of that hearing, I made the orders I had foreshadowed and then heard from the parties as to the re-sentencing exercise. I re-sentenced Guerinoni to a fine of $150,000, giving brief oral reasons. I also ordered that the respondent pay Guerinoni's costs to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KH
Associate to the Honourable Justice Archer
14 OCTOBER 2022