Kirwin v Laing O'Rourke (BMC) Pty Ltd
[2010] WASC 194 (S)
•30 JULY 2010
KIRWIN -v- LAING O'ROURKE (BMC) PTY LTD [2010] WASC 194 (S)
Pending Appeal
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASC 194 (S) | |
| Case No: | SJA:1133/2009 | 18 MAY 2010 AND ON THE PAPERS | |
| Coram: | MURRAY J | 30/07/10 | |
| 22/10/10 | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Final orders made Fine imposed | ||
| A | |||
| PDF Version |
| Parties: | CHRISTOPHER KIRWIN LAING O'ROURKE (BMC) PTY LTD |
Catchwords: | Criminal law and procedure Regulatory offence Failure to maintain safe working environment Sentencing Principles discussed Otherwise turns on own facts |
Legislation: | Nil |
Case References: | Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194 Morrison v Competitive Foods Ltd t/as Hungry Jacks (Unreported, WASC, Library No 9118, 25 October 1991) Phillips v Carbone (No 2) (1992) 10 WAR 169 Reilly v Tobiassen [2008] WASC 92 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 22 OCTOBER 2010 FILE NO/S : SJA 1133 of 2009
- SJA 1134 of 2009
- Appellant
AND
LAING O'ROURKE (BMC) PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P G MALONE
File No : PE 50576 of 2008, PE 50577 of 2008
(Page 2)
Catchwords:
Criminal law and procedure - Regulatory offence - Failure to maintain safe working environment - Sentencing - Principles discussed - Otherwise turns on own facts
Legislation:
Nil
Result:
Final orders made
Fine imposed
Category: A
Representation:
Counsel:
Appellant : Ms D E Quinlan
Respondent : Mr M H Zilko SC & Mr P Mendelow
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194
Morrison v Competitive Foods Ltd t/as Hungry Jacks (Unreported, WASC, Library No 9118, 25 October 1991)
Phillips v Carbone (No 2) (1992) 10 WAR 169
Reilly v Tobiassen [2008] WASC 92
(Page 3)
- MURRAY J:
The proceedings
1 This is a supplementary judgment dealing substantively with a question of sentencing process. These reasons should be read with the principal reasons: Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194.
2 In that judgment, I allowed two appeals against acquittals of the respondent of offences against s 19A(2) and (3) of the Occupational Safety and Health Act 1984 (WA) (OSH Act). I indicated in my reasons that I thought it was appropriate, if that was the conclusion to which I came, that I should go on to pass sentence [88]. In doing that, I would exercise the power conferred upon the court by the Criminal Appeals Act 2004 (WA) s 14(1)(d).
3 I made programming orders for the exchange of submissions and the provision of any other material relevant to sentencing. I have received and read comprehensive written submissions. In addition, I receive into evidence two victim impact statements and an affidavit affirmed on 18 August by a Mr Lloyd, an officer of the respondent in a position of senior management in relation to health and safety matters. I have found all that material to be of value and I have had regard to it. I have not found it necessary to call the parties before me for further oral debate upon the issue of sentencing.
A global fine?
4 Of course, the respondent being a corporation, the penalty to be imposed will be a fine. In the principal reasons at [89], I set out the available maximum penalties under the relevant provisions of the OSH Act. For the first offence before the court, that relating to the harm caused to the employee Mr Dwyer, because the contravention of the Act caused him serious harm, the maximum penalty for this first offence is a fine of $400,000.
5 For the second offence before the court, which originally, prior to the amendment of the charge, related to the injuries suffered by the employee of the subcontractor, Mr Richards, the maximum penalty is a fine of $200,000 for a first offence, as again this was.
6 In the principal reasons at [90], I intimated that my view, subject to submissions to the contrary, was that a global fine covering both offences would be appropriate, having regard to the considerable overlap in the
(Page 4)
- facts relating to the culpability of the respondent and the circumstances of the commission of both offences.
7 Section 54 of the Sentencing Act 1995 (WA) provides that such a global fine may be imposed when two or more offences are founded on the same facts, or form part of a series of offences of the same or a similar kind. Both of those grounds for the imposition of a global fine exist in this case. However, s 54 provides that the global fine may not be more than the sum of the fines provided by the statutory penalties for each of the offences. In other words, in this case I am to work within the framework of a maximum penalty of $600,000.
8 Further, in the principal reasons at [90], I said that I had considered the possible application to the case of s 11(1) of the Sentencing Act. That subsection provides:
If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.
9 As I said at [90] of the principal reasons, my conclusion is that the evidence, particularly concerning the status of the respondent as an employer or principal, is not the same in relation to both charges. Nor was the evidence entirely the same in respect of each charge, insofar as it focused upon what occurred affecting Mr Dwyer in one case and Mr Richards in the other.
10 Since I wrote those reasons, my attention has been drawn to s 55A of the OSH Act which provides:
A person is not liable to be punished twice under this Act in respect of any act or omission.
- In this case it is unnecessary to consider whether the proper application of that section would prevent two convictions, or whether the effect of the section would be limited to preclude the imposition of two sentences.
11 This question was considered by EM Heenan J in Reilly v Tobiassen [2008] WASC 92 [7]. Relying on earlier decisions, his Honour said of s 55A:
The section contemplates that concurrent but distinct legal liabilities may be established in the event of one act or omission leading to the breach of more than one provision of the Act or the Regulations. In that event,
(Page 5)
- however, only one 'punishment' should be imposed. As I observed in [39] of my principal reasons, in such a situation the fact of conviction and the recording of a conviction is not in itself punishment; however, no additional penalty or sanction may be imposed in respect of the second or subsequent conviction arising from the same act or omission.
12 One of the cases upon which his Honour relied was Phillips v Carbone (No 2) (1992) 10 WAR 169. There the defendant drove a motor vehicle into a stationary vehicle, simultaneously injuring the two occupants. He was charged with two offences of dangerous driving causing bodily harm. He was convicted of one such offence, the magistrate holding that he should dismiss the second charge having regard to the application to the case of what was then s 16 of the Criminal Code (WA), which was, so far as presently material, worded identically to s 55A of the OSH Act.
13 On appeal, the Full Court held that two convictions should be recorded and two sentences passed. The relevant act in that case was held to be the act of driving the vehicle so as to cause bodily harm, a different act in respect of each person injured. On the facts as found, the defendant had simultaneously performed two separate acts of dangerous driving causing bodily harm to each of the two injured persons.
14 This is an easier case than that because I am satisfied that there were two relevant omissions. That which was the subject of the first charge was the failure as an employer to maintain a safe working environment, by which failure serious harm was caused to Mr Dwyer. The omission the subject of the second charge was the failure to maintain a safe working environment, but on this occasion by the respondent, in its character as the principal who had engaged the contractor, insofar as there was a failure to provide a safe working environment for any person employed or engaged by the contractor.
15 Although neither party made submissions to the contrary, in my opinion it is necessary to arrive at a clear view on this issue, which would potentially affect the question whether two judgments of conviction should be entered, and if they should, whether the respondent is potentially liable to the imposition of two separate fines, making it appropriate to consider in that case the question whether a global fine should be imposed, working within the expanded maximum penalty of a fine of $600,000, rather than one or other of the maximum fines of $400,000 and $200,000. As I say, in my view, no difficulty in that regard arises in this case.
(Page 6)
Principles of sentence
16 I turn then to the matters of fact which affect sentence. For the appellant particularly, I was provided with a discussion of a series of previous cases. Many of them concerned fines imposed before, by the enactment of the OSH Act s 3A, with effect from 1 January 2005, the available monetary penalties were substantially increased. One thing stands out. The diversity of fact situations held to constitute an omission to perform a relevant duty under s 19 by an employer, or person in the position of an employer, varies so greatly that it is difficult to apply the facts and sentence in one case to the facts and sentence in another. In those circumstances there is much force in the observation which has been made by judges from time to time, that no tariff in relation to cases involving contravention of the OSH Act has emerged.
17 In Reilly at [13] - [23], EM Heenan J usefully drew together and discussed a series of cases. His Honour distilled from them some general principles which were really the application of ordinary principles of sentencing in the context of the OSH legislation.
18 In relation to a case such as this, and contravention of the duties imposed on an employer by the Act, a useful starting point is the need to give effect to the policy expressed in the objects of the Act stated in s 5, the terms of which section I set out in the principal reasons at [37].
19 When the court is concerned, as in this case, with the need to secure the safety of persons at work, to provide a safe working environment and to reduce, eliminate or control hazards to which persons at work are exposed, it seems to me that the culpability of the offender, the seriousness of the offending behaviour, will be determined by having regard to what the particular factual circumstances of the case tell the court about -
(a) The nature of the hazard with which the case is concerned, whether it is regularly or only occasionally encountered, or whether it was indeed surprising that it should arise.
(b) Given that the employer has contravened s 19 of the OSH Act by failing to adopt all reasonably practicable measures to deal with the hazard, to what extent would it be possible to alleviate the hazard by the adoption of such measures? Regard should be had to their cost and availability and whether it was generally known in the relevant area of employment what measures should be taken to alleviate the hazard.
(Page 7)
- (c) Consideration would need to be given to the nature of the risk of serious harm posed by the hazard in question. If the risk was relatively remote, that would say something about the measures which ought reasonably to have been taken, unless of course, if the hazard was not dealt with, the risk of serious harm was high if the hazard did in fact occur.
(d) Consideration would need to be given to the offending employer's track record in relation to the provision of a safe working environment and to the question whether the particular contravention was of an isolated character or whether the employer simply failed to meet acceptable standards of safety in its ordinary business practices.
(e) In that regard, if the employer was indeed ignorant of what was required to meet the test of reasonably practicable measures to alleviate an apparent or foreseeable hazard, it would be relevant to enquire about what expert advice was sought.
20 It will be observed that all I have done in setting out these considerations is to focus attention upon matters which will, in all probability, have been relevant and have been considered by the court in determining whether a relevant breach of duty in terms of s 19 has been established, so as to result in the employer's conviction. Such matters will certainly not, because they have been considered in that way, lose their relevance for sentencing purposes. It will be appreciated also that the result of giving consideration to such matters may result in circumstances which aggravate the seriousness of the offence and circumstances which tend to mitigate its seriousness.
21 In setting a series of relevant considerations I do not mean to imply that ordinary principles of sentencing are to be disregarded, eg: pleas of guilty will attract a discount in sentence in the ordinary way.
22 Of course the court is looking to impose a penalty which is properly proportionate to the offender's culpability, not only having regard to matters concerned with the commission of the offence, but also having regard to matters personal to the offender. The purposes of punishment remain, under this legislation, those which are commonly expressed as the outcome of the sentencing process. But I remain of the view, which I expressed in Morrison v Competitive Foods Ltd t/as Hungry Jacks (Unreported, WASC, Library No 9118, 25 October 1991), page 15, that in
(Page 8)
- sentencing for breaches of this legislation, general deterrence is a consideration of particular importance.
23 The objects of the Act are to achieve, by the imposition of duties concerned with the creation of safe working environments, an acceptable standard of safety and the avoidance of serious injuries to workers.
Sentencing considerations
24 I turn then to pass sentence in the form of a global fine covering both offences and working within the available maximum penalty of a fine of $600,000. I will not repeat the detailed discussion of factual matters set out in the principal reasons. I will, however, summarise the considerations which seem to me to be material in deciding upon the penalty to be imposed.
25 The essential failure was the failure to appreciate that the dongas did not offer adequate shelter if, as was to be anticipated at the relevant time, a significant cyclone of the magnitude of George was encountered. This was a cyclone-prone area and Rail Village 1 might well be directly in the path of such a storm.
26 The respondent's breach of duty was substantial. It actually did nothing to ensure that the buildings in Rail Village 1, in which the procedure was that employees would shelter and wait out the cyclone, were of a standard adequate to ensure that they provided a safe refuge. The respondent simply relied upon an expectation that those directly involved in the construction of the village would do their job under the oversight of the local government to ensure that appropriate cyclone-resistant construction standards were applied. This was, in effect, an act of delegation of what was a non-delegable duty and, as has been seen, it failed to produce the required degree of safety.
27 It is accepted that a reasonable inspection of the dongas, if necessary, drawing upon expert engineering advice, would readily have exposed the difficulty. There was no suggestion that any substantial cost would be involved in carrying out that inspection or providing a remedy.
28 It is only necessary to read, as I have done, the victim impact statements lodged with the court by Mr Dwyer and Mr Richards, to have reinforced in the mind of the court the grave danger to employees which inadequate protection against the cyclone posed. I will not embarrass those individuals by including detail of the content of their statements in these published reasons, but it is clear that a high standard of care and
(Page 9)
- meticulous performance of the duty imposed by s 19 of the OSH Act was required, given the gravity of the harm which might result from failure to do so.
29 That, during the cyclone season, the hazard with which this case was concerned would materialise, was a distinct possibility. If adequate protection was not provided, the gravity of the harm which might be caused to employees was considerable. A high standard of compliance with the duty to establish and maintain a safe working environment was required.
30 On the other hand, the evidence of Mr Lloyd's affidavit shows that with respect to matters of the safety and health of its employees and those employed by its contractors, the respondent is, generally speaking, a good employer. Mr Lloyd appends references from clients which testify to that fact. These were first offences. Although measures have been taken to prevent the possibility of a recurrence of this breach, and that is consistent with the ordinarily good performance of the respondent, the nature of the breach was effectively systemic because it was a central plank in the safety procedure that the dongas provided the necessary safe refuge and the respondent failed to verify that that was the case.
31 I impose a global fine of $90,000. The calculations which interested persons will inevitably make will show that that represents a penalty of 15% of the maximum. The processes of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) will be available if any enforcement process is required.
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