Plastic Fabrications Pty Ltd v The Crown - [1999] TASSC 95

[1999] TASSC 95

CITATION: Plastic Fabrications Pty Ltd v The Crown [1999] TASSC 95

PARTIES:  PLASTIC FABRICATIONS PTY LTD
  v
  THE CROWN

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 30/1999
DELIVERED ON:  13 September 1999
DELIVERED AT:  Hobart
HEARING DATES:  8 September 1999
JUDGMENT OF:  Underwood J

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal against sentence - Grounds for interference - General principles - Indicative sentence given at "contest mention hearing" - Sentence imposed at variance with indicative sentence - Not an error of law.
Justices Act1959 (Tas), s107(4).
R v Warfield (1994) 34 NSWLR 200, referred to.

Aust Dig Criminal Law [1003]

Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Review of sentence - Principles applicable - Indicative sentence given at "contest mention hearing" - Sentence imposed at variance with indicative sentence - Not an error of law.

R v Warfield (1994) 34 NSWLR 200, referred to.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  D R Wallace
             Respondent:  L Lodge
Solicitors:
             Applicant:  Wallace Wilkinson & Webster
             Respondent:  Director of Public Prosecutions

Judgment Number: [1999] TASSC 95
Number of Paragraphs: 20

Serial No 95/1999
File No LCA 30/1999

PLASTIC FABRICATIONS PTY LTD v THE CROWN

REASONS FOR JUDGMENT UNDERWOOD J

13 September 1999

The issues

On 25 March 1999, the applicant company pleaded guilty to a breach of the Workplace Health and Safety Act 1995, s9(1)(a)(ii), which provides:

"(1) An employer must, in respect of each employee employed by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular, must ¾
(a) provide and maintain so far as is reasonably practicable ¾
(i)…
(ii)safe systems of work;"

The learned magistrate ordered a fine of $8,000. The applicant now seeks a review of that order, pursuant to the Justices Act 1959, s107, upon the grounds that:

"1The sentence imposed by the Learned Magistrate was manifestly excessive in all the circumstances including, but not limited to, the fact that prior to entering a plea of guilty to the charge the Applicant had received a 'sentence indication' from the Learned Magistrate which led the Applicant to reasonably anticipate that it could expect to receive a penalty within the range of having no conviction recorded to one which falls at the very bottom end of the scale.
2The Learned Magistrate erred in law in determining the monetary penalty of $8,000.00 was an appropriate fine without having any information relating to or making enquiries as to either the capacity of the Applicant to pay the penalty or the financial effect of such a penalty upon the Applicant."

The relevant facts

The following facts were put to the learned magistrate after the applicant had pleaded guilty. The applicant has been in the business of fabricating plastic products since it was incorporated 25…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [1999] TASSC 95
Decision Date: 13 September 1999

CaseChat Overview and Summary

Plastic Fabrications Pty Ltd, a company engaged in the fabrication of plastic products, sought a review of a fine imposed upon it by a magistrate for breaching the Workplace Health and Safety Act 1995. The company argued that the $8,000 fine was manifestly excessive, especially as the fine imposed was significantly higher than an indicative sentence provided at a preliminary hearing. The company also contended that the magistrate erred in law by imposing the fine without considering the company's capacity to pay the penalty. The Supreme Court of Tasmania was tasked with determining whether the fine was an error of law, fact, or law and fact, or if the magistrate acted without jurisdiction.

The court examined the grounds for review, starting with the disparity between the indicative sentence and the final sentence. The court held that although a sentence indication is not legally binding, the significant variance between the indicative sentence and the final sentence warranted consideration. The court found that the $8,000 fine was disproportionate to the gravity of the wrongful conduct, and that a more appropriate penalty would have been a few hundred dollars at most. The court also noted that the company had no prior convictions and had discontinued the practice that led to the incident, making the imposition of a high fine unjust.

The court further considered whether it was an error for the magistrate to impose the fine without assessing the company's capacity to pay. The court held that there was no obligation on the magistrate to make such inquiries, given that the company was represented by experienced counsel and was a successful corporation. The court found that ground 2 of the appeal was not made out.

The court quashed the $8,000 fine and, in its place, ordered that a conviction be recorded and the applicant be discharged. The court did not consider it appropriate to require the company to give an undertaking with respect to the future, as the relevant conduct had been abandoned by the time of the sentencing hearing and was unlikely to be repeated. The court held that the appropriate course of action was to record a conviction and order the discharge of the applicant.

Orders