Kent v Jomont Pty Ltd and Forth Farm Produce Pty Ltd

[2007] TASSC 68

[2007] TASSC 68

CITATION:Kent v Jomont Pty Ltd and Forth Farm Produce Pty Ltd [2007] TASSC 68

PARTIES:  KENT, Robert Bruce

v
JOMONT PTY LTD

KENT, Robert Bruce
v
FORTH FARM PRODUCE PTY LTD
T/A HARVEST MOON

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 194/2007

LCA 195/2007

DELIVERED ON:  29 August 2007
DELIVERED AT:  Hobart
HEARING DATE:  2 August 2007
JUDGMENT OF:  Tennent J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Other matters – Tasmania – Manifestly inadequate.

Workplace Health and Safety Act 1995 (Tas), s9.
Warner, Sentencing in Tasmania, 2nd ed (2002) [15.227-15.233].
House v The King (1936) 55 CLR 499; Lactos Pty Ltd v Kent [2003] TASSC 82; Hudson v Australian Food Group Pty Ltd [2006] TASSC 48; Parker v Tasmania Police [2005] TASSC 121; R v Meers & Moles 32/1998; R v Harland-White 23/1997 referred to.
Aust Dig Criminal Law [911]

REPRESENTATION:

Counsel:
             Appellant:  S J Bender
             Respondent:  D R Fairley
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Temple-Smith Partners

Judgment Number:  [2007] TASSC 68
Number of paragraphs:  19

Serial No 68/2007
File No  LCA 194/2007

LCA 195/2007

ROBERT BRUCE KENT v JOMONT PTY LTD
ROBERT BRUCE KENT v FORTH FARM PRODUCE PTY LTD
T/A HARVEST MOON

REASONS FOR JUDGMENT  TENNENT J

29 August 2007

1. The respondents in these proceedings, Forth Farm Produce Pty Ltd T/A Harvest Moon ("Company 1") and Jomont Pty Ltd ("Company 2"), were each convicted on their pleas of guilty before a magistrate in respect of breaches of the Workplace Health and Safety Act 1995 ("the Act"). The Director of Public Prosecutions, on behalf of the prosecuting authority, has sought a review of the penalties imposed on the basis that they are manifestly inadequate.

1. The facts which gave rise to the prosecutions were that as at 22 February 2006, one Damian Williams was employed by Company 2, a labour hire company.  It hired him out to Company 1, for whom he began working on 2 January 2006.  One evening Williams was working packing carrots.  Next to him was a processing line.  That was made up of an hydraulic bin tipper which tipped carrots into a hopper bin, which then fed them onto a conveyor belt to be taken to be manually sorted.  Williams noticed the level of carrots in the topper was getting low.  He began to operate the controls of the bin tipper to help other workers.  However, from where he was standing he could not see inside the carrot bin.  He leaned forward to look through a small gap between the bin tipper and carrot hopper to gauge the level in the bin.  As he did so, he placed his right hand into the cradle of the bin tipper.  His attention was focussed on the contents of the bin and not where his hand was.  As the bin tipper was being raised, his right hand index finger was crushed in the pinch point of the hydraulics.  The tip of his finger was amputated.

1. Company 2 was charged with breaches of the Act, s9(1)(a)(iii) and 9(1)(c). The particulars were as follows:

"Particulars

1(a)      At all material times, Jomont Pty Ltd ('the Defendant') was the employer within the meaning of the Workplace Health & Safety Act 1995 of Damien Wayne Williams ('Mr Williams').

(b)On or about 22^nd February 2006 while at work at Leith Road, Forth in Tasmania, Mr Williams suffered an injury, namely the crushing and amputation of the tip of his right hand index finger, when it was caught in an unguarded pinch point of a hydraulic bin tipper and its supporting structure he was operating.

(c)At the time and place aforesaid the Defendant failed in respect of Mr Williams to provide so far as was reasonably practicable plant in a safe condition, further particulars of such failure being set out below,

contrary to Section 9(1)(a)(iii) of the Workplace Health & Safety Act 1995

Further particulars

The Defendant failed to:

(i)   conduct any proper or adequate hazard or risk assessment of the hydraulic bin tipper before requiring or permitting Mr Williams to work on it;

(ii)  guard or provide a guard or otherwise to prevent physical access to the pinch point which arose between the bin tipper and its supporting structure when the bin tipper was in operation.

2(a)      At all material times, Jomont Pty Ltd ('the Defendant') was the employer within the meaning of the Workplace Health & Safety Act 1995 of Damien Wayne Williams ('Mr Williams').

(b)On or about 22^nd February 2006 while at work, at Leith Road, Forth in Tasmania, Mr Williams suffered an injury, namely the crushing and amputation of the tip of his right hand index finger, when it was caught in an unguarded pinch point of a hydraulic bin tipper and its supporting structure he was operating.

(c)At the time and place aforesaid the Defendant failed in respect of Mr Williams to provide information and instruction reasonably necessary to ensure Mr Williams was safe from injury and risks to health, namely the information and instruction to beware of the pinch point between the bin tipper and its supporting structure, not to allow any part of his body to become trapped in it and to keep entirely clear of the bin and its supporting structure while operating it,

contrary to Section 9(1)(c) of the Workplace Health & Safety Act 1995"

1. Company 1 was charged with a breach of the Act, s9(4), the particulars of which were as follows:

"Particulars

1On or about 22^nd February 2006 Forth Farm Produce Pty Ltd trading as Harvest Moon ('the Defendant') was an employer within the meaning of the Workplace Health & Safety Act 1995 and was exercising management and control over a workplace, namely a packing shed at Leith Road, Forth in Tasmania.

2At the time and place aforesaid Damien Wayne Williams ('Mr Williams') was a person at that workplace and suffered an injury, namely the crushing and amputation of the tip of his right index finger when it was caught in an unguarded pinch point of a hydraulic bin tipper and its supporting structure.

3The Defendant failed to ensure so far as was reasonably practicable that Mr Williams was safe from injury,

contrary to Section 9(4) of the Workplace Health & Safety Act 1995 in that it failed to:

(a)guard or to provide a guard or otherwise prevent physical access to the pinch point;

(b)ensure Mr Williams kept his hand well away from the pinch point;

(c)ensure Mr Williams' finger could not become trapped between the bin tipper and its supporting structure while it was being operated."

1. Company 1 was fined $3,500 and Company 2 was fined $2,000.  The maximum penalty in respect of each breach was $150,000.

Applicant's submissions

1. Counsel's submissions were brief.  He described the sentence imposed in respect of each respondent as excessively lenient.  He referred to a passage from a judgment delivered orally by Blow J in Graeme Maxwell Brown v Peta Cynthia Kelly, February 2001, adopted by me in Parker v Tasmania Police [2005] TASSC 121, where His Honour said:

   "The principles upon which the court will intervene on a review of a decision as to penalty are well known.  A magistrate has a very wide discretion.  This Court, as an appellate court, must not interfere with the exercise of that discretion except in a case of clear error.  The error can be implicit in the excessive leniency of the sentence imposed or order made.  It is not sufficient to show that a more severe sentence or less lenient course might have been the outcome if the matter had come before the appellate court as a court at first instance.  The Court needs to be satisfied that the sentence or order was manifestly wrong in its inadequacy so as to amount to or show a clear error in the sentencing process.  It is a duty of the appellate court to interfere where necessary to do so to avoid manifest inadequacy or inconsistency in sentencing standards when the error is of such gravity that it is essential for the administration of justice that the error be corrected.  The authorities as to all this are well known: House v R (1936) 55 CLR 499, Cranssen v R (1936) 55 CLR 509, Harris v R (1954) 90 CLR 652."

2. He submitted that in respect of Company 1, this was a second offence. The company had been dealt with for breaches of the Act, ss9(1)(a)(ii) and (iii), 9(1)(c) and 47 in November 2000 as a result of an employee falling into a potato washing machine which resulted in the crushing of his right arm. The company had then been fined $4,000. The fact that there was then this second breach demonstrated the first incident was not an aberration.

1. He submitted the potential for harm was high in the present case.  He also referred to the table of penalties attached to the judgement of Slicer J in Lactos Pty Ltd v Kent [2003] TASSC 82. While he did not submit that table ought to be determinative of penalty, he submitted that the penalties shown should be a guide to ensure consistency in sentencing.

1. As to Company 2, the submission was that the sentence was simply too lenient.  Counsel referred to the words of Wright J in R v Meers and Moles, a decision of the Court of Criminal Appeal, 32/1998, where his Honour discussed some of the consequences which can flow from over-lenient sentences.  His Honour was there, of course, dealing with a sentence for the crime of assault.  However, I accept the tenor of his words would apply equally to a sentence such as that being dealt with here.  Wright J said, quoting from an earlier decision in R v Marshall (70/1990 at 6):

   "In my opinion, recognition should also be given to a further principle which should guide this Court in considering whether or not to allow Crown appeals in cases of the present kind. In my view, allowing a plainly inadequate sentence to stand has a severely detrimental effect upon good order and public confidence in the criminal justice system. Such a process also has an insidious secondary result by adding to the general data base of sentences. An inadequate penalty encourages lighter and lighter sentences to be imposed as the years go by, particularly if resort is had to the so called 'tariff principle'. A weakly merciful or inappropriately lenient sentence saps public respect for the criminal justice system, and in addition, it has a demeaning effect upon the victim of crime. The criminal victim, already an individual much neglected by the legal system, is encouraged to foment discontent with the legal process, and in extreme cases, to take the law into his own hands and exact a personal vengeance. In my opinion, victims of crime are entitled to expect vindication from the sentence of the court. Their feelings of hurt and violation should not be aggravated by inadequate punishment, and the penalty imposed should not encourage them to seek their own retribution upon the offender."

Respondent's submissions

1. Counsel referred the Court to the summary of the principles applicable to Crown appeals in Professor Warner's text, Sentencing in Tasmania, 2nd ed, between pars15.227 and 15.233.  He also referred to R v Harland-White 23/1997 and the joint judgment of Crawford and Slicer JJ where, beginning at 3, they referred to authorities referable to a Crown appeal against sentence.  At 4, their Honours said:

"In Khan (1996) 86 A Crim R 552 AlIen J, with whom the other members of the New South Wales Court of Criminal Appeal agreed, said at 553 concerning the question whether the sentence imposed was manifestly inadequate:

'It is clear that notwithstanding the great reluctance with which an appellate court will interfere with a sentence imposed, where the appeal is by the Crown, it is the duty of this Court to interfere where it is necessary to avoid such a manifest inadequacy in sentence or inconsistency in sentencing standards that the error, which has occurred in the sentence being reviewed, is of such gravity that it is essential in the administration of justice that the error be corrected.

It is not necessary to identify any particular error of law made. The error can be implicit in the excessive leniency in the sentence imposed, excessive in the magnitude to which I have referred.'"

1. He submitted that in the present case the Crown had to demonstrate that the sentences imposed were so plainly unreasonable as to demonstrate error.  Further, even if the Court were satisfied there was error, it must be of sufficient magnitude to warrant interference by an appellate court.  Counsel referred to the factors considered in Hudson v Australian Food Group [2006] TASSC 48, also a prosecuting authority review of what was asserted to be a manifestly inadequate sentence. There the factors identified as relevant in a review of workplace safety penalties were the degree of culpability, the magnitude of the risk of injury and the need to give effect to the legislation.

1. In the present case, it was acknowledged that no risk assessment had been done to assess the risk of injury posed by the particular pinch point, that had one been done, the risk may have been identified, and that it was an easy matter to install a protective mesh grill which was in fact installed very quickly after the incident.  It was also acknowledged that Williams had not been trained in the operation of this machine.  The machine had, however, been operating safely for about 11 years, it was a simple machine to operate, and in part the accident was contributed to by the somewhat awkward way in which the worker positioned himself, which was probably not the way the machine was designed to be used.

1. Counsel submitted the working conditions were difficult, it was a seasonal business, the workforce was fluid and often consisted of casual employees of limited education whose first language was not English.  He submitted in all the circumstances the risk of injury, while foreseeable, was not in the words of the learned magistrate, "outstandingly so".  This finding was open to the learned magistrate, given he was told any risk was restricted by the dimensions of the pinch point and any injury beyond what this worker suffered was unlikely.  The injury in fact suffered was minor and the worker was back at work within a few days.  It was not the case where a whole joint or significant portion of the finger was lost.

1. The learned magistrate was given significant detail about the occupational health and safety responses of the respondents.  He accepted that their work in that area was extensive.  In particular, the response of Company 1 to the earlier conviction was to undertake a number of reviews in relation to policy and procedure.  It appointed a full time occupational health and safety officer with extensive experience in the area.  Counsel submitted that the company's effectiveness in this area was demonstrated by a reduction in its workers compensation premiums over the seven years since the earlier incident.  Ongoing risk assessments were conducted and a system of supervision of the workforce was in place.

1. By reference to the maximum penalty which could have been imposed by the learned magistrate in respect of each matter brought against each respondent, the penalties imposed could be said to be low.  That, however, does not establish there has been error such as to warrant intervention by an appellate court.  If the penalties summarised by Slicer J in the table attached to the decision in Lactos (supra) are looked at for any guidance, the penalties imposed could not be said to be demonstrably outside the range shown by that table.  There is no suggestion the learned magistrate failed to take into account any relevant matter or that he took into account something which was irrelevant.  He appears to have given careful and detailed consideration to the relevant factors. 

1. There can be no doubt that penalties for these types of offences are increasing, as courts recognise the need to ensure workplace health and safety is recognised as an important issue by employers and one which they should pay far more than lip service to or face the consequences.

1. In the present case Company 1 had a prior conviction in respect of an injury arising from an unguarded machine, and yet the learned magistrate imposed a lower penalty for the current breach.  At first blush that might be seen as a matter of concern.  However, with respect, the learned magistrate had a number of reasons why he could approach penalty in this way.  There had been an excellent response to the earlier accident in terms of occupational health and safety issues.  While the current risk had not been identified by the company, the nature of the risk and the likelihood of serious injury as a consequence were low.  The machine was a simple one which appears to have been used rather awkwardly, thus contributing to the risk.  The risk was immediately addressed by the installation of a mesh guard.  The company had an identifiable indicator of its good work in the area of worker safety by reference to its workers compensation premiums.

1. I accept the penalties imposed were at the low end of what might be perceived to be the scale of applicable penalties and that much higher penalties could legitimately have been imposed.  However, any error which might be apparent from this is not, in my view, of significant magnitude to warrant intervention by this Court.

1. The notices to review will be dismissed.