Stratton Creek Pty Ltd v Morrison

[2005] WASC 84

STRATTON CREEK PTY LTD -v- MORRISON [2005] WASC 84

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 84
Case No:	SJA:1018/2005	Heard:	29 APRIL 2005
Coram:	SIMMONDS J	Delivered:	10/05/05
No of pages:	31	Judgment Part:	1 of 1
Result:	Appeal against conviction dismissed Appeal against sentence allowed
Category:	B
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Parties:	STRATTON CREEK PTY LTD CRAIG ALEXANDER MORRISON
Catchwords:	Criminal law Appeal against sentence and conviction Conviction and fine imposed on endorsed plea of guilty in absence of appellant Whether fine excessive Whether Chief Magistrate should have accepted plea of guilty Occupational safety and health Demolition work comprising the removal of asbestos cement roofing Failure to obtain licence for class 3 demolition work Removal of less than 200 square metres of asbestos cement roofing before work stopped Whether breach of Occupational Safety and Health Regulations 1996 (WA) reg 3.117(3)
Legislation:	Justices Act 1902 (WA), s 135 Occupational Safety and Health Act 1984 (WA) Occupational Safety and Health Regulations 1996 (WA), reg 3.117(3) Sentencing Act 1995 (WA), s 14
Case References:	Beckwith v The Queen (1976) 12 ALR 333 Garner v Galliene (1985) 9 ACLR 808 Green v Steineck, unreported; SCt of WA; Library No 950485; 14 September 1995 Harvey v Robinson [1999] WASCA 120 JAG Demolition Pty Ltd v Partridge [2002] WASCA 272 Lamb v Clews (1988) 10 MVR 465 Liberti v The Queen (1991) 55 A Crim R 120 Lim v Bateman [2001] WASCA 307 Maxwell v The Queen (1996) 184 CLR 50 Murphy v Morrison, unreported; SCt of WA; Library No 960089; 15 February 1996 Parkinson v Prout [2003] WASCA 320 Price v Davies [2001] WASCA 81 Rice v Henley (1914) 19 CLR 19 Rowlands v Caporn [2001] WASCA 66 Superfine Homes Pty Ltd v Shepherd, unreported; SCt of WA; Library No 990088; 2 March 1999 Waugh v Kippen (1986) 160 CLR 156 Abbott Laboratories v Corbridge Group Pty Ltd (2002) 52 IPR 432 John Nominees Pty Ltd v Dixon [2003] WASCA 51 Ostrowski v Palmer (2004) 206 ALR 422 R v Olbrich (1999) 199 CLR 270

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : STRATTON CREEK PTY LTD -v- MORRISON [2005] WASC 84 CORAM : SIMMONDS J HEARD : 29 APRIL 2005 DELIVERED : 10 MAY 2005 FILE NO/S : SJA 1018 of 2005 MATTER : Justices Act 1902 BETWEEN : STRATTON CREEK PTY LTD

Appellant

AND

CRAIG ALEXANDER MORRISON
Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MR S A HEATH CSM

File No : PE 5663 of 2005

(Page 2)

Catchwords:

Criminal law - Appeal against sentence and conviction - Conviction and fine imposed on endorsed plea of guilty in absence of appellant - Whether fine excessive - Whether Chief Magistrate should have accepted plea of guilty

Occupational safety and health - Demolition work comprising the removal of asbestos cement roofing - Failure to obtain licence for class 3 demolition work - Removal of less than 200 square metres of asbestos cement roofing before work stopped - Whether breach of Occupational Safety and Health Regulations 1996 (WA)reg 3.117(3)

Legislation:

Justices Act 1902 (WA), s 135

Occupational Safety and Health Act 1984 (WA)
Occupational Safety and Health Regulations 1996 (WA), reg 3.117(3)
Sentencing Act 1995 (WA), s 14

Result:

Appeal against conviction dismissed

Appeal against sentence allowed

Category: B

Representation:

Counsel:

Appellant : Mr K J Bradford
Respondent : Mr N C Monahan

Solicitors:

Appellant : Srdarov Richards Burton
Respondent : Worksafe

(Page 3)

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

Beckwith v The Queen (1976) 12 ALR 333
Garner v Galliene (1985) 9 ACLR 808
Green v Steineck, unreported; SCt of WA; Library No 950485; 14 September 1995
Harvey v Robinson [1999] WASCA 120
JAG Demolition Pty Ltd v Partridge [2002] WASCA 272
Lamb v Clews (1988) 10 MVR 465
Liberti v The Queen (1991) 55 A Crim R 120
Lim v Bateman [2001] WASCA 307
Maxwell v The Queen (1996) 184 CLR 50
Murphy v Morrison, unreported; SCt of WA; Library No 960089; 15 February 1996
Parkinson v Prout [2003] WASCA 320
Price v Davies [2001] WASCA 81
Rice v Henley (1914) 19 CLR 19
Rowlands v Caporn [2001] WASCA 66
Superfine Homes Pty Ltd v Shepherd, unreported; SCt of WA; Library No 990088; 2 March 1999
Waugh v Kippen (1986) 160 CLR 156

Case(s) also cited:

Abbott Laboratories v Corbridge Group Pty Ltd (2002) 52 IPR 432
John Nominees Pty Ltd v Dixon [2003] WASCA 51
Ostrowski v Palmer (2004) 206 ALR 422
R v Olbrich (1999) 199 CLR 270


(Page 4)

SIMMONDS J:

Introduction

1 This is an appeal by leave against the imposition by the Chief Stipendiary Magistrate of a substantial fine for breach of requirements under occupational safety and health law applicable when asbestos cement (or AC) roofing (or roof sheeting) is removed from buildings or structures. Only persons licensed for the purpose can do work comprising the removal of more than a stipulated quantity of that material. The appellant was not licensed when it carried the work out that resulted in its conviction and sentence.

2 The appellant, which had endorsed a plea of guilty on the complaint, was sentenced in its absence, as is expressly provided for in the Court of Petty Sessions by the Justices Act 1902 (WA). The appellant says that in the circumstances the Chief Magistrate should not have so proceeded, and that, on the material that would have been before him had the appellant been present, the fine would have been significantly lower.

3 At an initial hearing before me, when it became evident there was material before the Court which the respondent had not had a sufficient opportunity to properly digest, the hearing was adjourned. At that initial hearing, the grounds of appeal were amended with leave and without objection from the respondent. The amended grounds particularised further respects in which the Chief Magistrate had erred in proceeding as he did, and added an appeal against conviction on the basis that the Chief Magistrate should not have accepted the appellant's plea of guilty.

4 I set out below more detail as to the factual background to this matter, followed by a review of the grounds of appeal, and a consideration of each. Before I do any of this, however, I need to comment further on the way this matter came before me.

The getting up of this appeal

5 Leave to appeal in this case was granted by Miller J, ex parte as allowed under Justices Act, s 184, on 9 March 2005. Miller J had before him the affidavit of Thomas Dudley Houston, sworn 4 March 2005. Mr Houston describes himself in it as a "working director" of what is now the appellant, Stratton Creek Pty Ltd, a company in the roofing industry which had over the period 1990 to 2000 done a considerable amount of removal of asbestos cement sheeting (AB 6). In accordance with the order of 9 March 2005, the appellant duly served on the respondent a copy

(Page 5)

of the affidavit, together with a copy of the application for leave and the order for leave. This affidavit is the bulk of the material in the appeal book for this appeal, which was filed with the Court in accordance with the order granting leave to appeal. I will have occasion to make extensive further reference to this affidavit in these reasons.

6 For now, I note that the respondent, the complainant before the Chief Magistrate, a Mr Craig Alexander Morrison, who is a person authorised by the Commissioner of WorkSafe Western Australia, duly was notified of the grant of the leave to appeal and of the date of the hearing before me. However, the respondent was not served with the appeal book until 19 April 2005, two days before the hearing. Practice Direction 1 of 2002 required such service no later than 15 April 2005. In addition, the appellant did not provide the respondent with a copy of its submissions (no list of authorities was included) until 20 April 2005, the day before the original date for the hearing of the appeal, 21 April 2005. Practice Direction 5 of 1997 as amended required such provision no later than 17 April 2005 unless sufficient cause, such as urgency, existed for later provision. I was told that, owing to the illness of counsel originally briefed in the matter, there was a late change of counsel. New counsel considered significant changes in the way the matter was to be approached needed to be made, and this resulted in the late arrival of the papers.

7 As will become evident, at the heart of this appeal is the matter of the absence of evidence before the learned Chief Magistrate that resulted from the appellant not being present at the hearing, through Mr Houston or otherwise. Had there been the evidence before the Chief Magistrate it would have resulted in a significantly lower fine being imposed. The evidence relied upon appears for the most part in Mr Houston's affidavit sworn 4 March 2005, above. A further affidavit of Mr Houston was sworn on 20 April 2005, and served on the respondent towards the end of business hours on that day, the day before this matter was listed to come up before me. This further material qualified and supplemented the earlier affidavit served on the respondent and also contained in the appeal book. This further affidavit appears to be in part a response to affidavits filed and served on the appellant on behalf of the respondent, which were themselves replies to material in Mr Houston's original affidavit. I return to all of these affidavits below. The further affidavit of Mr Houston was also, as counsel for the appellant indicated to me on 21 April, part of the new development of the case consequent on his becoming involved.

8 In the circumstances, counsel for the respondent who appeared before me on 21 April 2005 objected to my proceeding to hear and

(Page 6)

determine the matter then, although she wished to have the matters of leave to let in any additional evidence in the 4 March 2005 and 20 April 2005 affidavits of Mr Houston, and her objections to the admissibility of matter in them, heard then. Counsel for the appellant indicated, as I understood him, that he was prepared to proceed on that basis, but urged the possibility that further consultations with his client and possible further affidavit material from the respondent might result in the request for leave to adduce at least some of the matter in Mr Houston's affidavits being discontinued. I concluded on balance that the hearing should be adjourned, to return before me on 29 April 2005, without hearing any objections to the affidavits.

9 Counsel for the appellant then applied for leave to amend the grounds of appeal to better reflect the case as he proposed to argue it, and counsel for the respondent indicated she had no objection to the amendments, subject to particulars of the new grounds being supplied, as they were. I also made programming orders for the appellant to file and serve on the respondent revised submissions and a list of authorities, together with any additional affidavit or affidavits by 10.00 am on 22 April 2005, noting counsel for the appellant's undertaking to counsel for the respondent that he would provide all of this material by e-mail within that time frame. I further ordered the respondent to provide the respondent's corresponding papers by 10.00 am, 28 April 2005, the day before the new hearing date.

Factual background

10 In the event there was a not insignificant body of affidavit material, including material not in the appeal book, that was before me for the purposes of the adjourned hearing. That body comprised not only the affidavits made available to me prior to the original date for the hearing in this matter, but also a further affidavit submitted thereafter.

11 The affidavits made available prior to the original date for the hearing comprised the Houston affidavits sworn 4 March 2005 and 20 April 2005 and the affidavits submitted for the respondent, Mr Morrison, all sworn 20 April 2005, being his, and two from inspectors for WorkSafe, one of Travis Norman Matthews, and one of Peter David Reilly.

12 The affidavit made available after the original date for the hearing was a further one of Mr Morrison, sworn 27 April 2005.

(Page 7)

13 The Justices Act s 196, says a court shall determine an appeal such as this on the material that was before the Chief Magistrate, as well as such further evidence, oral or by affidavit, as the court "thinks fit" to receive. No notice of motion for leave to adduce this evidence was lodged by either side at any time as required by O 65A r 5. However, in the event there was no objection by either party to my receiving these affidavits, and I note that, at least in relation to material relevant to sentencing which could properly have been before the sentencing officer, the courts consider that such material should be readily received: see Rowlands v Caporn [2001] WASCA 66, per Roberts-Smith J, at [27]. In the circumstances, I considered it was fit for me to receive the admissible evidence in all of the affidavit material to which I have referred, even although much of it was not before the Chief Magistrate, particularly where the basis for the appeal was that the Chief Magistrate had erred in not adjourning to a later date at which material of that sort could have been adduced.

14 The complaint in this case was dated 25 November 2004 and was of a breach, between 3 and 6 May 2004, of reg 3.117(3) of the Occupational Safety and Health Regulations 1996 (WA) made under the Occupational Safety and Health Act 1984 (WA). Reg 3.117(3) says that a person must not do "class 3 demolition work" unless that person has a licence to do "class 1 or class 3 demolition work", and the work is done in accordance with the conditions of the licence, if any. Regulation 3.114 defines "class 3" in relation to demolition work, and "demolition", and I return to those definitions below. While it was in dispute before me whether the work the subject of the complaint was "class 3 demolition work", it was admitted that the appellant had neither a class 1 nor a class 3 licence while it was doing the work. The penalty for contravention of reg 3.117(3) was at the time $25,000 for a first offence: reg 1.16.

15 At the hearing before the learned Chief Magistrate on 14 January 2005, he noted the absence of the defendant, and also noted that the complaint bore an endorsed plea of guilty. A copy of the complaint form on which the endorsement appeared is annexed to the affidavit of the respondent, Mr Morrison, sworn 20 April 2005 (CAM 4), and shows the endorsement as dated 6 January 2005, that is one and a half months after the complaint's date. It also shows that the endorser has ticked on the form the box "I will be attending court".

16 The Chief Magistrate, having noted the endorsed plea, said that "obviously" the appellant's representative had seen the "queue", presumably of those whose cases were to be heard, "and decided to leave,

(Page 8)

or have changed their mind, but in any event we have the endorsed plea". This would appear to indicate he had noted that the box indicating the endorser's intention to attend had been ticked. In any event, with the concurrence of the prosecutor he went on to hear the matter.

17 The prosecutor said that "from 3 May 2004 to 6 May 2004" the "defendant carried out" class 3 demolition work "when it removed approximately 1400 metres square of asbestos cement roof sheeting from a building at New Town Toyota … in East Victoria Park". Those details, as to dates and quantity removed, did not appear anywhere in the complaint. Nor did they appear in the statement "Particulars of Complaint" annexed to the complaint appearing in the Morrison affidavit sworn 20 April 2005 and which the affidavit of Mr Houston sworn 4 March 2005 deposes to receiving.

18 However, those "Particulars" comprised a statement headed "Class 3 demolition work" under which appeared:

"Work comprising the removal of more than 200 metres square of asbestos cement from a building at Newton [sic] Toyota Welshpool Road, corner of Swansea Street in Victoria Park."

19 I note in passing that the Toyota business appears in some of the material for this matter as "New Town Toyota", which I understand to be the correct name, but nothing turns on this difference.

20 The language of the statement of the prosecution to the Chief Magistrate, at least as to the dates and the quantity "removed" between them, appears to come from the paragraph numbered "2" in another document, headed "Statement of Facts", which, in his affidavit sworn 27 April 2005, Mr Morrison deposes he sent with the complaint and the "Particulars" to the appellant, as indicated in the covering letter to the appellant dated 2 December 2004 (CAM 1). Counsel for the appellant put to me that the appellant never received the "Statement", and I note again that the Houston affidavit of 4 March 2005 refers only to the complaint and the "Particulars". However, I note that Mr Morrison's 27 April affidavit deposes to a system "since about 2004" of mailing out statements of facts with complaints. His letter dated 2 December 2004, which the appellant does not deny receiving, refers to "a copy of the statement of facts" as "enclosed" with the letter.

21 In the event, I am relieved of the need to determine whether or not that enclosure was in fact received with the letter, because of the parties' acceptance at the hearing before me that the "Statement", and the related

(Page 9)

submission of the prosecutor to the Chief Magistrate, to the extent they stated the quantity of asbestos cement sheeting actually removed during the period to which the complaint related, 3 to 6 May 2004, were incorrect. In fact, it was agreed, 199 square metres of asbestos sheeting was the correct quantity. I return to this correction later in my reasons.

22 The importance of the quantity of asbestos cement emerges when the definition in the Regulations of "class 3", "in relation to demolition work", is considered. Under reg 3.114, the definition is as follows:

"'class 3', in relation to demolition work, means work comprising the removal of -

(a) more than 200 m2 of brittle or fragile roofing material; or

(b) more than 200 m2 of asbestos cement roofing,

from a building or structure."

23 The "Particulars" then were stated in terms of the quantity in the definition at (b), while the "Statement" referred to the quantity "removed".

24 The prosecutor went on to describe to the Chief Magistrate the purpose of the requirement for a licence to do work of this sort as being to assure the WorkSafe Commissioner that the person granted the licence will carry out the work in a manner that is "safe and proper". This was said to be for the protection not only of employees but also members of the public, and "in this case it's not possible to know at this time whether someone has been injured because of the nature of asbestos and the injury that that may cause". (AB 38)

25 The prosecutor also told the Chief Magistrate that the defendant had a previous conviction under the Act s 19(1), for breach of the general duty to provide a working environment in which employees are not exposed to hazards. No date or other details for this offence were provided.

26 Further, the prosecutor told the Chief Magistrate, the defendant had on 9 July 2002 received a prohibition notice "in relation to not having the correct licence to undertake demolition work". It seems that the terms of the notice were not before the Chief Magistrate, but they were before me, as an annexure, TDH 1 (at AB 12), to Mr Houston's 4 March 2005 affidavit. The notice appears to be one for the purposes of the Act s 49, and refers to the issuer of the notice having formed the opinion that "there may occur an activity which will involve a risk of imminent and serious

(Page 10)

injury to a person". This was because of demolition work having been carried out for which a "class 3 demolition licence" is required, as well as for which all the persons involved in the work had to be "trained". The notice said this was a "contravention" of reg "3.118(b)" of the Regulations, in that as an employer the defendant had failed to ensure that class 3 demolition work was being done by a person who had been issued with a licence to do "class 1, 2 or class 3 demolition work". The reference to "3.118(b)" may have been an error, as that paragraph refers to "class 2 demolition work". Another provision in reg 3.118, reg 3.118(c), may have been meant. Regulation 3.118(c) refers to a form of "class 3 demolition work" for which a "class 1, class 2 or class 3 demolition licence" is required.

27 I will say more about the contents of this prohibition notice later in my reasons. I note in passing that counsel did not address me on reconciling reg 3.118(c) and reg 3.117(3) in relation to the suitability of a class 2 licence for class 3 demolition work. I also note that the requirement for a class 3 demolition work licence had been introduced in 2001 after, as Mr Houston, in his 4 March 2005 affidavit, deposed, the appellant had last done work comprising the removal of asbestos cement sheets (AB 6 – AB 7, and Government Gazette 30 March 2001, p 1776, inserting reg 3.116, to which I return below).

28 The prosecutor had referred the Chief Magistrate to the maximum penalty of $25,000 for the breach of reg 3.117 (3) complained of. The prosecutor submitted that a penalty "at the higher end of the scale" was called for, as the offence was "fairly serious", given the nature of the injury that "could have been caused", the fact the defendant was in "the business of undertaking demolition previously" and "the likelihood they were well aware of the need to obtain a licence", apparently by reason of having received the prohibition notice.

29 The Chief Magistrate, after confirming with the prosecutor that the prior s 19 offence was the only relevant record, said:

"In the absence of any explanation for the -- for the conduct, clearly there's -- was engaged in a commercial venture. There is, as I say, no explanation as to why the appropriate licences weren't obtained and clearly it involved work where the dangers associated with asbestos products is well known. There will be a fine of $10,000; costs of $348.45." (AB 39)

30 That was the sum of his remarks on passing sentence.
(Page 11)

Grounds of appeal

31 The grounds as amended are four:

"A. The learned Magistrate erred in dealing with the matter in the absence of a representative of the Applicant and as such was not able to consider relevant mitigating circumstances before determining the fine.

B. The fine was manifestly excessive in the circumstances.

C. The Learned Magistrate erred in law and in fact by taking into consideration extraneous, inaccurate and irrelevant matters during sentencing.


[Particulars:]

By taking into consideration para 2 of the Statement of Material Facts read out to the Magistrate.

By taking into consideration the prohibition notice of 9 July 2002.

By taking into consideration the previous offence where no date had been provided and which did not relate to an offence of this nature.

By inferring unsafety and danger as an element of the offence where such had not been established.

By taking into account evidence that the appellant was well aware of the need to obtain a licence when such was not the case.

By failing to consider the degree of criminality by failing to comply with the need to obtain a licence.


D. The Learned Magistrate should not have accepted the Appellant's guilty plea because:

1. The Appellant was issued with an Improvement Notice (141656) with which it had complied; and

(Page 12)

2. By failing to consider the degree of criminality by failing to comply with the need to obtain a licence."

32 The grounds A and B were the ones for which Miller J gave leave to appeal, and the grounds C and D were added by the leave I gave.

33 I deal with ground D, as to conviction, first. Then I consider ground A, which concerns the fundamental basis for the appeal against sentence, the absence of the appellant. This is followed by the detailed respects in which the Chief Magistrate is said to have sentenced in error, ground C. I then consider whether in all of the circumstances the sentence he imposed was excessive, ground B. I conclude by setting out my conclusion and orders in this appeal.

Ground D: The Chief Magistrate erred in accepting the appellant's guilty plea

34 Justices Act s 186(2), makes it plain that an appeal against conviction is possible notwithstanding that the defendant pleaded guilty or made an admission as to the truth of the matter. The court's concern in such cases, it has been suggested, is to determine whether, if the plea is left undisturbed, there will be a miscarriage of justice: Brown, "Criminal Law Western Australia", at [11,175.6]. This will emerge where the plea was equivocal, showing it was not a true admission of guilt: Maxwell v The Queen (1996) 184 CLR 501, at 511, per Dawson and McHugh JJ. However, injustice may appear even where the plea is unequivocal, as when it appears from the proceedings before the Magistrate, including submissions as to sentence, that the plea was made on a fundamental misapprehension as to the nature of the offences, such as that they did not allow for a reasonable mistake the appellant had made which would have been a defence: Lim v Bateman [2001] WASCA 307. Further, injustice may appear even where the circumstances that point to an injustice could not have been apparent to the Magistrate: Price v Davies [2001] WASCA 81, per Roberts-Smith J, at [57].

35 In considering whether the appeal should be allowed in such cases, the courts on appeal, as in the case of an attempt to change a plea of guilty at trial, act with "circumspection", and this is "on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence": Liberti v The Queen (1991) 55 A Crim R 120, per Kirby P, Grove and Newman JJ concurring, at 122, as quoted in Lim (supra), at

(Page 13)

[43] per McKechnie J. One situation in which the court would stay its hand would be where it was not convinced the arguable defence otherwise appearing was not "the subject of recent invention": see Lamb v Clews (1988) 10 MVR 465, at 472 - 473, per Franklyn J.

36 The matter of how much asbestos cement sheeting had been removed during the period to which the complaint related, between 3 and 6 May 2004, was stated in the Houston affidavit of 20 April 2005. In par 7 he deposed that when the WorkSafe inspector visited the work site on 6 May 2004 "the Appellant had not yet completed 200 square metres of AC sheeting removal". This is inconsistent with the amount stated in par "2" of the "Statement of facts". As I have already indicated, however, before me the respondent agreed that the appellant's account, taken as an admission to the removal of 199 square metres of asbestos cement sheeting, was correct as to the quantity actually removed during the period. This makes it unnecessary for me to determine whether other material before me, such as the information notice referred to in ground D, showed a different amount, less than "approximately 1400 metres square", was the correct amount.

37 On the basis that the agreed quantity of 199 metres square would have emerged at the hearing before the Chief Magistrate, it was put to me that he would have invited the appellant to change its plea of guilty. This would have been because, on its proper construction, there could have been no contravention of reg 3.117(3), as there had not been a removal of more than 200 square metres of asbestos cement sheeting. The alternative construction, pressed on me by the respondent, is that "class 3 demolition work" is pre-planned and controlled work whose execution will comprise the removal of more than 200 square metres either of brittle or fragile roofing material or more than 200 square metres of asbestos cement roofing. This alternative construction seems to me to be the preferable one, by reference to the statutory context, and the purpose of the regulation of class 3 work.

38 I begin by noting the definition of "demolition" in reg 3.114, which is:

"'Demolition' means the complete or partial dismantling of a building or structure by pre-planned and controlled methods or procedures".

39 I also note that the definition in reg 3.114 "class 3, in relation to demolition work" is expressed as "means work comprising the removal"

(Page 14)

of the stipulated amount of material. The appellant submitted that, on the ordinary and natural meaning of "means" and "comprising", this produced the result that the removal had to have been reached, or been made up of, the stipulated amount before "class 3" demolition work was involved. It could not apply simply when the first sheeting was removed, or even earlier, when the site was prepared for the removal. Whether or not this meaning produced an apparently unjust, unreasonable or even absurd result, it was a meaning that had to be followed: Rice v Henley (1914) 19 CLR 19, at 22, per Isaacs J.

40 However, I do not see "means" and "comprises" as applied to "demolition" work producing any such singular result. It seems to me that the definition of "class 3" is capable of being read as "demolition" work which is a project ("pre-planned", "controlled") for work that will be made up of the removal of the stipulated quantity of fragile or brittle roofing material or asbestos cement roofing. That possible meaning emerges as the preferable meaning, in my view, when account is taken of the use of "class 3" in the Regulations, and the purpose for such use.

41 There is a notification regime for two different ways in which class 3 work will be done, in reg 3.119, to which I will return, and in reg 3.120, which on the natural reading of them seem to me to recognise that class 3 demolition work is to be viewed as a pre-planned and controlled whole. Both regulations provide that a person who "wishes to do class 1, class 2 or class 3 demolition work" is to notify the Commission "at least 5 days before the work is intended to begin". I also note that the reg 3.120(2) notification requirement requires the notifier to include a "work plan".

42 The licensing regime in reg 3.117(3) would also seem to take the work comprising the relevant sort of removal as a planned and controlled whole. This is apparent not least in relation to the requirement in reg 3.117(3) that a licence holder do the work "in accordance with the conditions of the licence". It seems unlikely that the conditions only become relevant when the removal passes the 200 square metre level, as opposed to when the execution of the project begins.

43 Finally, I also note a further regime for class 3 work, controlling who is entitled to enter or remain "in an area of a workplace where … class 3 demolition work being done by the person has commenced": reg 3.127(2).

44 The purpose of special regulation of work comprising the removal of more than 200 square metres of the relevant material on its face would

(Page 15)

seem to be protection of those in the vicinity of work that will be of that scale. Demolition work that is not class 1, class 2 or class 3 demolition work is still subject to some, but lesser regulation: see reg 3.123. I agree with the submissions put to me for the respondent that it would not further this purpose to distinguish, for a project that will comprise work of the larger scale, between the work done before and the work done after that scale is reached as the project unfolds. It seems to me that the reading contended for by the respondent is open on the language of the Regulations, and would further that purpose, and on that account is to be preferred over the construction contended for by the appellant: Interpretation Act 1984 (WA), s 18.

45 For the appellant, it was noted that the definitions in reg 3.114 of "class 1" and "class 2" in relation to demolition work refer at a number of points separately to work "comprising" the "total" or "partial" demolition of buildings or structures of certain sorts. As well, the definition of "demolition" includes "partial" dismantling. From this, it seems I was being invited to conclude that, because "class 3" in relation to demolition work has no such references, there is no question of that definition being engaged until the relevant sort of removal has taken place. I disagree. The contexts are different. The term "demolition" is defined to include "partial" as well as the "complete" dismantlements, without regard to what as a consequence is, or is not "removed". Class 1 and class 2 demolition work appears to be defined in relation to risks arising otherwise than by reason of the amount of any particular material to be removed in the demolition. One sort of class 1 demolition work is the exception, and the exception seems to me to be telling against the appellant's argument. The exceptional sort of class 1 work is "work involving the removal of an area of brittle or fragile roofing material or asbestos cement roofing material in excess of 200 m2 from a building or structure if any part of the area to be removed is 10 metres or more above the lowest ground level of the building or structure" (reg 3.114, "class 1", (i), emphasis added). Such work would seem to me also to be "class 3" demolition work, and to explain why a class 1 licence as well as a class 3 licence satisfies reg 3.117(3).

46 The appellant also referred me to the approach to the construction of legislation creating penal liability. Pearce, D C and Geddes R S, "Statutory Interpretation in Australia", 5th ed, at [9.9], indicate that the "most frequently quoted" modern statement of the approach is that of Gibbs J in Beckwith v The Queen (1976) 12 ALR 333, at 339:

(Page 16)

"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences … The rule is perhaps one of last resort."

47 However, apart from noting the qualified nature of the statement of that approach, I also note that in legislation with mixed purposes, as the Regulations have, both to create penal liability and to protect the safety of those in the workplace, it is necessary to consider the "dominant purpose" of the legislation. If that purpose is of the protective sort I have indicated, then "the strict construction" approach should not be adopted where it would have the effect of depriving the worker of the protection intended to be afforded: Pearce & Geddes (supra), at [9.6] and Waugh v Kippen (1986) 160 CLR 156. Waugh itself was a case on occupational safety and health legislation.

48 I would consider the dominant purpose of the Regulations to be the protective one I have described. I therefore do not consider the penal character of the legislation here causes me to prefer the alternative construction contended for by the appellant.

49 Of course on this alternative construction it would still be necessary to show that the demolition would comprise the removal of greater than 200 square metres of the relevant substance. For this purpose I note Mr Houston's 4 March 2004 affidavit includes as an annexure a record of his interview with a Mr John Reilly, an inspector for WorkSafe, on 14 June 2004. In that record, Mr Houston says, in answer to the question "what was the size of the roof area where roof cladding was being removed and replaced", "1460 square meters"; and he further says, in answer to the question "to your knowledge, what was the roof cladding material", "A/C sheeting". In any event, the parties before me appeared to agree that the amount of asbestos cement sheeting proposed to be removed from the time the work was embarked upon was indeed approximately 1400 square metres. This relieves me of the need to determine whether or not reg 3.117(3) is engaged in cases of contractors who begin the planned and controlled removal of roofing unaware that it comprises the relevant quantity of material of the relevant sort.

50 I am therefore of the view that ground D should be not be upheld.

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51 There is, however, another relevance to the matter of the quantity of asbestos cement material removed in this case, to which I return below in relation to the sentencing ground C.

Ground A: the Chief Magistrate erred in dealing with the matter in the absence of a representative of the offender

52 I begin with the relevant law. A most useful review of the general principles governing the review of sentencing decisions like that of the Chief Magistrate in this case is set out by Hasluck J in Parkinson v Prout [2003] WASCA 320, where his Honour was dealing with an appeal under the Justices Act, s 184 against a sentence imposed in the absence of an offender who had endorsed a plea of guilty on the complaint. His Honour said this, at [11] - [14]:

"I begin by noting that by s 184 of the Justices Act an appeal lies to the Supreme Court by leave. Section 196 provides that the Court shall determine the appeal on the material before the Court below. However, there is power to receive further evidence as the Court thinks fit, especially with a view to clarifying what plea in mitigation or version of events the appellant wished to put before the Court below in regard to a sentencing issue: Rowlands v Capehorn [sic] [2001] WASCA 66.

By s 199, the Court may dismiss the appeal, or set aside, quash or vary the decision or remit the case for hearing. The Court is not required to set aside or quash if the facts or evidence in substance support the decision. If the Court considers that no substantial miscarriage has occurred, it may dismiss the appeal, notwithstanding that a point raised in the appeal has been decided in favour of the appellant.

It is well recognised that an appellate court may not substitute its own opinion for that of the sentencing judicial officer merely because it would have exercised its discretion in a different manner. It must appear that some error has been made in exercising the discretion, such as acting upon a wrong principle, mistaking the facts or allowing extraneous or irrelevant matters to affect the decision made: Lowndes v The Queen (1999) 195 CLR 665.

Alternatively, it must be demonstrated that the end result is so inappropriate or excessive that there must have been an error in

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principle even though it cannot be precisely identified: House v The King (1936) 55 CLR 499; R v Tait (1979) 46 FLR 386."

53 Later I will have occasion to return to his Honour's reasons in this case. For now, I note that of importance to the present ground of the appeal before me is Justices Act s 135(1), which provides that where the defendant has by written notification notified the Clerk of Petty Sessions that he wishes to plead guilty, then "the justices shall, subject to subsection (1a) [a qualification not applicable here], proceed to hear and determine the complaint as though the defendant were present and pleaded guilty thereto".

54 On a plea of guilty, the Chief Magistrate could then proceed to determine the sentence for the offender. The sentencing principles to guide his deliberations are of course those in Sentencing Act 1985 (WA), s 6. They are that the sentence be proportional to the seriousness of the offence, taking account of the statutory penalty, the circumstances of the offending including the vulnerability of the victim, any aggravating factors and any mitigating factors. Further, where a fine is decided upon, then s 53 of the Sentencing Act says the court must, as far as practicable, take into account the means of the offender and the extent to which payment of a fine will burden an offender, although, by s 53(2), a court may fine an offender even although it has been unable to find out about those two matters.

55 The Sentencing Act s 14(1), requires the presence of an offender in court for sentencing, except, under s 14(2), where a court imposes a fine. However, s 14(4) says:

"Despite subsection (2) or any other law that does not require an offender to be present when a sentence is imposed, a court may require an offender to appear personally to be sentenced."

56 Further, s 15 provides that a court when sentencing an offender may inform itself in any way it thinks fit, and s 16(1) permits it to adjourn the sentencing to obtain information about the offence or for any reason the court thinks proper.

57 The factors to be considered in determining the amount of a fine appear to me to be those set out in Harvey v Robinson [1999] WASCA 120, McKechnie J, at [7], a listing which commended itself to Barker J in his decision in JAG Demolition Pty Ltd v Partridge [2002] WASCA 272, at [53]. There is no need for a Magistrate to enumerate the requirements of s 6 of the Sentencing Act or "to allude in any systematic way to the

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types of factors that McKechnie J identified in Harvey v Robinson", provided that the reviewing court can be satisfied that the Magistrate "did regard the substance of the matters" in s 6 and "did generally regard the factors" identified by McKechnie J as relevant: JAG Demolition, at [54].

58 McKechnie J said this in Harvey (supra) at [7], as quoted in JAG Demolition (supra):

"Therefore, a proper approach is to assess the offence first to determine whether a fine is the sentencing option which best meets the circumstances of the case. Once that has been determined, attention should focus on the amount of the fine. The factors to be considered include:

(1) the nature and prevalence of the offence;

(2) the disapproval of the community for the criminal behaviour, usually referred to as punishment;

(3) the need for deterrence, both general and particular;

(4) the antecedents of the offender; and

(5) where the crime is economic or commercial, the need to ensure that a fine is not simply a risk tax to be paid if caught."

59 I note that all of the provisions of the Sentencing Act to which I have referred, but not Justices Act s 135, were referred to by Hasluck J in Parkinson (supra), who after that review said this at [20] – [21]:

"I pause to observe that when all these provisions are considered in combination, they strongly suggest that, even in the case of a fine, a court is required to proceed with due deliberation and be slow to impose a sentence in the absence of the offender if there is a lack of information as to the circumstances giving rise to the offence or as to the antecedents of the offender. In White v Taylor [1999] WASCA 104 McKechnie J observed at par 9 that Magistrates, despite their no doubt busy court list, must nevertheless keep some proportionality in relation to the offence and the penalty. He was conscious that there was less need for detailed reasons as to the imposition of a particular amount by way of fine. However, his Honour was clearly conscious of those decided cases which

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indicate that reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226 at 248.

I note in passing that in the busy legal system an early plea of guilty is generally rewarded as an acknowledgement that such a plea has a beneficial effect in an overcrowded criminal justice system and usually reflects a degree of remorse or acceptance of responsibility: Radebe v The Queen (2001) 162 FLR 313. I note in passing that by s 8(2) of the Sentencing Act a plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, the greater the mitigation. The reasons of the learned Magistrate in the present case, such as they are, do not suggest that the plea of guilty in the present case was characterised as a mitigating factor. The reasons do not suggest that the learned Magistrate gave weight to any other mitigating factors or took steps to obtain further information before imposing a substantial fine either by way of an adjournment or by any other means."

60 I do not consider these views, which commend themselves to me for the purposes of this case, are affected by s 135 of the Justices Act. That provision seems to be one which s 14(4) of the Sentencing Act expressly qualifies. Section 135 was enacted and came into force in its present form in all material respects before the enactment and coming into force of s 14(4), and thus I have no basis to conclude that the latter's reference to "any other law that does not require an offender to be present when the sentence is imposed" should be seen as modified by the former. Nor do I see that reference as inapt to cover s 135's reference to how a Magistrate "shall" proceed.

61 The original written submissions for the respondent referred me to a decision on Justices Act s 136A, which permits the court to set aside a decision of justices made in default of appearance: Green v Steineck, unreported; SCt of WA; Library No 950485; 14 September 1995, per Parker J, at 9. I was also referred to a decision to which his Honour referred in that case, Garner v Galliene (1985) 9 ACLR 808, at 819 per Nicholson J, on "somewhat equivalent" (Steineck at 10) Victorian legislation. This was in support of the proposition that a court should not exercise a discretion to grant a rehearing lightly.

62 Those decisions do not it seems to me bear strongly on the decision I have to make. Although the first concerned failure to appear on a

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complaint on which a plea of guilty was endorsed, while the second was a conscious decision not to attend the hearing, they were both concerned with attempts to have the decisions set aside under such a provision, rather than to seek other forms of review. Both indicated that the Court would require a showing of special circumstances to permit the accused to have the decision set aside in such a case. The reference to Galliene in Steineck indicates to me that different considerations would be relevant to a case such as this one, involving the exercise of the right to seek such other form of review, here under the leave to appeal under Justices Act s 184. I would find suitable considerations for this case in the passage from Parkinson (supra) at [20] and [21] which I quoted in full.

63 I consider the learned Chief Magistrate, faced with the absence of the offender, and considering the imposition of a substantial fine, erred in not addressing his mind to the matter of the possible exercise of his discretion under s 14 of the Sentencing Act to consider whether or not to adjourn the case to obtain further information at least as to the basis on which the offender had pleaded guilty in this case. While I consider that the sentencing remarks, brief as they were, show the Chief Magistrate gave substantial regard to the factors listed in Harvey (supra), I also consider that those remarks indicate the Chief Magistrate concluded the absence of an explanation to explain why the offender had done the work the prosecution had referred to without the required licence, notwithstanding the commercial experience of the offender and the evident dangers of the work, left him little choice but to impose the fine he did. In the penultimate section of these reasons I will explain why I see that fine as having been a substantial one, as I believe the Chief Magistrate himself recognised, when he appeared to echo the prosecutor's reference to the "dangers" of the work as the basis for his submission that the offence was "fairly serious".

64 I recognise that it would be inconsistent with the provisions to which I have referred, as well as the nature of the load imposed on busy courts of petty sessions, to require that a Magistrate defer sentencing in all cases. However, it also seems to me that a burden falls on a Magistrate to attempt to find out why an offender is not before the court to put their version of the events establishing guilt and to put other matters to the court to inform the exercise of sentencing discretion, at least where there is an early plea of guilty, the offender has indicated a wish to be present, and the Magistrate is giving consideration to a fine that would mark a serious form of the offence.

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65 Here before hearing from the prosecutor the Chief Magistrate considered some possible explanations for the absence of a representative of the offender. But he did not consider he needed to give the matter further consideration at that point, and did not return to it after hearing from the prosecutor.

66 Further, for reasons which will appear when I discuss ground B below, I consider the fine imposed, in view of the matters the appellant likely would have put to the Chief Magistrate, was such that the appeal could not be dismissed on the basis of Justices Act, s 199(1)(b). That provision, as I have indicated from Parkinson (supra), permits such dismissal if the court considers no substantial miscarriage of injustice has occurred.

67 For these reasons I would uphold ground A, and I would quash the sentence imposed. I have considered whether I should remit the matter of sentencing the appellant to the Chief Magistrate, as Hasluck J did in Parkinson, or should re-sentence the appellant myself, as Barker J did in JAG Demolition (supra). I have before me, with the parties' admissions to which I have referred and other matter to which I will refer, a sufficient basis for a re-sentencing myself. The appellant indicated, and the respondent did not disagree, that I should proceed in that way. I shall do so.

68 This conclusion does not make it unnecessary to consider the other grounds of appeal going to sentence, which of course were fully argued before me. As to the ground of appeal going to errors of law or fact the Chief Magistrate is said to have made, it raises issues of potential relevance to re-sentencing. As to the ground going to the magnitude of the sentence the Chief Magistrate imposed, that magnitude is important to my reasons on the present ground A, as I have indicated, as well as requiring me to consider the range for the sound exercise of sentencing discretion.

Ground C: The Chief Magistrate erred in law and in fact in taking into account certain matters

69 I have already referred to the standard for review on this account, from Parkinson (supra), at [13]: the Court here is concerned to see whether the Magistrate acted upon a wrong principle, mistaking the facts or allowing extraneous or irrelevant matters to affect the decision made. This is subject to the application of Justices Act s 199(1)(b), for cases where the court considers no substantial miscarriage of justice has occurred.

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70 Further, I need to note in relation to this ground that I am considering a number of the particularised matters against material which was before me but not before the Chief Magistrate.

71 The first error particularised for this ground is that the Chief Magistrate erred in taking into account what I have described at a number of points in these reasons as paragraph "2" of the "Statement of facts" which formed the basis for the prosecution's statement of the facts to the Chief Magistrate. I have already indicated that the paragraph, understood as a statement that 1400 square metres of asbestos cement sheeting had been removed during the period to which complaint related, 3 to 6 May 2004, should be seen to be incorrect, and that the correct quantity should be seen to be 199 square metres.

72 On this basis, the respondent submitted that the prosecutor, had the appellant been present to put this position, and had the prosecutor agreed that position as the respondent now did, would have put to the Chief Magistrate that a contravention of reg 3.117(3) was dependent upon what the demolition work would have comprised, not what quantity had in fact been removed, and that in any event the Chief Magistrate so proceeded.

73 However, I do not consider that the Chief Magistrate did so proceed. Further, as I have indicated, the nature of the injury that could have been caused by the removal of the larger quantity appears to have been significant to the Chief Magistrate. It seems to me that the Chief Magistrate was considering the danger arising out of the removal of such a quantity of asbestos, rather than the danger represented by what had been proposed to be done. I am of that view because of the submission put by the prosecutor to the Chief Magistrate, one apparently reflected in his reasons, that "in this case it's not possible to know at this time whether someone has been injured because of the nature of asbestos and the injury it may cause" (AB 38).

74 Therefore I conclude that the learned Chief Magistrate did not sentence on the correct basis in respect of the quantity of asbestos sheeting removed. He was sentencing on the basis that approximately 1,400 square metres of asbestos cement sheeting had been removed over the period 3 to 6 May 2004 where the correct basis was 199 square metres.

75 However, I am of the view that it would have been proper for the Chief Magistrate to take account of the risks created by the work that had been proposed to be done for the purposes of evaluating the seriousness of

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the offence in this case, and to have done so without proof of the risks of the removal of asbestos cement sheeting. That the Chief Magistrate erred in this latter respect was put as the fourth particular of error under this ground of appeal. I am not of the view that the Chief Magistrate considered the prosecution had submitted that any injury had in fact been caused, a matter the prosecutor had specifically disavowed just before (AB 38) her submission I have just quoted. This position was because of what the prosecutor appears to be referring to as the well-known difficulties in assessing early the progress of any injurious effects of exposure to asbestos. I consider that the risks of such injury to those in the vicinity of class 3 demolition work are what underlie the licensing requirement for such work, and do not have to be proved by the prosecution.

76 I have considered whether it should be of any significance that the work had not progressed far before it had been stopped by the regulator's intervention. It seems to me that the principal concern in assessing the seriousness of this offence is the risk posed by the project rather than the work the offender managed to do under it. However, it may also be taken into account that the offender had not progressed very far into the project, as here, before work was halted by the intervention of the regulator. This is at least where the offender was not acting in defiance of the licensing requirement.

77 While I do not consider the Chief Magistrate erred in taking account of the risks from asbestos cement removal, it seems to me that he erred in treating the risks actually created by the work done as those from the removal of 1,400 square metres, as opposed to 199 square metres, of material.

78 Of course, because of the way the matter had been put to him, he did not separately consider the risks posed by the project, which comprised the removal of approximately 1,400 square metres of asbestos cement roofing.

79 There is a further matter relating to risks, however. It is that of the efforts made by the appellant to address those risks, to which I return below. The Chief Magistrate did not have the evidence relevant to those efforts that was before me. That evidence qualifies, if it does not remove, the risks, of both sorts, as will become apparent.

80 The second error particularised is that the Chief Magistrate erred in taking account of the prohibition notice of 9 July 2002. The appellant

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made reference to JAG Demolition (supra), where (at [56]) Barker J accepted that a number of matters concerning prior non-conforming conduct by the offender in relation to the licensing system in that case, requiring a permit for taking down a building from the local authority for the area where the building was located, should not have been considered by the Magistrate in that case. However, in that case it was clear that the offender was aware of the requirements of the system of licensing, having been reminded of them in a letter about one month before the day in question, and having evinced to officers of the complainant on the day in question an intention to proceed without a licence and leave it to them to prosecute ([61] and [67]). Furthermore, Barker J indicated that the warning in the letter was relevant to the sentencing process (at [61]): what was irrelevant was the belief by the complainant that the offender had offended on previous occasions for which, however, no charges had been laid (at [60]).

81 Here it seems to me that the Chief Magistrate did not treat the prohibition notice as other than a warning to the appellant about the need for a licence, a warning which it was likely the appellant as a commercial demolition contractor would read. This is in view of the submission of the prosecutor referring to "the likelihood that the defendant was well aware of the need to obtain a licence" (AB 39), in the context of the prosecutor's earlier reference to the prohibition notice "in relation to not having the correct licence to undertake demolition work" (AB 38).

82 Therefore I do not consider it would be an error to take account of the fact that a prohibition notice had been sent to the appellant which the appellant had indicated had been received. Nor would it be an error to take account of the fact that the appellant was a commercial demolition contractor which could reasonably be expected to take account of such notices.

83 Furthermore, in view of the prosecutor's reference to "likelihood" I do not consider the Chief Magistrate sentenced on the basis the appellant had in fact taken account of the letter and proceeded to act as it did in defiance of the licensing requirement. Nor was there evidence before me other than the prohibition notice itself that the appellant had acted in defiance of the licensing requirement. To the contrary there is evidence, to which I will return, that the appellant had taken certain steps to address the safety risks of the work, and that the appellant considered as a result it was acting within the law. And Mr Houston in his affidavit of 4 March 2005, deposes that he had not read the prohibition notice and was unaware of the licensing requirement (AB 8 and AB 9).

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84 Had the appellant been shown to have acted in defiance of the regulations, the offence would have been a more serious one, as Barker J appears to indicate in JAG Demolition (supra). However, the offence is a more serious one in the presence of a prior prohibition notice which it was reasonable to expect a commercial demolition contractor would read that it would have been without such a notice.

85 This conclusion also disposes of the fifth particularised error, that the sentencing had proceeded on the basis that the "appellant was well aware of the need to obtain a licence when such was not the case". However, it is again important to note that there was evidence before me that it had taken steps which it believed would satisfy the requirements of the law in relation to the work in question, to which I return below.

86 The third error particularised was that the Chief Magistrate had taken into account the previous offence, under Occupational Safety and Health Act s 19(1), when no date had been provided for it, and when it was not an offence of the same nature. Before me it was agreed that the date of the offence should be taken to be 9 March 1998, as the respondent's submissions indicated. And it was agreed that such an offence had indeed been committed.

87 The circumstances of the offence and the penalty imposed for it were not before the Chief Magistrate in any form, however, although as I will explain the circumstances, but not the penalty, were before me. The s 19(1) offence is committed when the employer does not "so far as practicable provide and maintain a working environment in which the employees of the employer … are not exposed to hazards", with a list of specific inclusions. It will be seen then that the statutory offence is concerned with issues of exposure to hazards in the workplace, as might be said of the reg 3.117(3) offence.

88 The two offences are not the same, however. Mr Houston in his 4 March 2005 affidavit deposes that the circumstances of the s 19 offence involved another director of the appellant using a ladder to carry out some work for which he should have used a safety harness (AB 10 and AB 11). I did not have before me, however, the penalty imposed. This is not a case of a second offence, and the Chief Magistrate did not proceed on any other basis. At the same time, in view of the common concerns underlying the two offences, it does not seem to me to be inappropriate to take account of the commission of the s 19(1) offence in sentencing for the reg 3.117(3) one, although only to a limited extent, in view of the age and different circumstances of the statutory offence.

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89 The sixth error particularised was that the Chief Magistrate had failed to consider the degree of criminality represented by the failure to obtain a licence. Before me, this was explained in terms of what the appellant had done for the class 3 demolition work prior to commencing it, to address the requirements of the law in relation to it, thereby meeting most, if not all, of the concerns that underlay the licensing requirement.

90 For this purpose my attention was drawn to the 4 March 2005 affidavit of Mr Houston in which he deposed that he and two employees of the appellant, prior to undertaking the work, had completed a course in "AC removal" with a "nationally recognised training provider" (AB 8 and AB 13, TDH 2). In this connection, I note in the prohibition notice of 9 July 2002 the reference to the need for, not only "the demolition contractor to hold a class 3 demolition licence", but also "all persons involved in the work to be trained", and the direction later in the notice that the appellant ensure that the appropriate licence be obtained, followed by the requirement it ensure "all persons involved in the demolition work have been trained in safe methods of demolition work by a training organisation registered under the Australian national training authority framework notice to be faxed as arranged with Mr Houston" (AB 12, TDH 1).

91 My attention was also drawn to Mr Houston's 4 March affidavit where he deposed to the appellant, prior to undertaking the work, having obtained a permit "to remove controlled waste", namely "AC Asbestos 27 tonne" (AB 8 and AB 14, TJD 3). I note that the permit is in what appears to be a business name for the appellant, and for the period 7 May 2004 to 21 May 2004, which I presume is to allow for the removal of the asbestos from the work site.

92 I further note Mr Houston's 4 March 2005 affidavit deposes that the removal of the AC sheeting was commenced and all of the sheets removed by those who had completed the training as I have indicated and "in accordance with all safety requirements". I have also noted, however, the improvement notice 141655 annexed to Mr Reilly's affidavit sworn 20 April 2005 (PJR 3), which refers to his formation of the opinion on 6 May 2004 that the appellant was acting in breach of reg 5.50 in that the asbestos cement sheeting removed had not been coated with PVA or wetted prior to removal. The appellant responded by drawing my attention to the risks associated with wetting sheeting prior to its removal if it made the sheeting slippery, risks which were expressly recognised as qualifying the need to wet the sheeting by the safety standard to which reg 5.50 referred. Nor is there any indication that the appellant did not

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comply with the improvement notice. I conclude from this that the appellant was at least making bona fide efforts to meet the relevant safety standards for the work, although its level of success in that regard is another matter.

93 It was put to me for the appellant that in those circumstances compliance with the licensing requirement was merely technical, by which I understood it to be suggested that all of the significant aims of the licensing requirement had in fact been shown to be addressed. I do not agree that I can so conclude. The licensing provision itself says that the Commissioner "may" grant a licence if the Commissioner is "satisfied that the applicant is able to do that class of demolition work in a safe and proper manner": reg 3.116(2). The prohibition notice itself is some indication that training on its own might not be sufficient, and there was no evidence that the training received here, or the Department of Environmental Protection permit, would have been accepted by the Commissioner as sufficient reassurance that the applicant would be able to do the work in a safe and proper manner. Further, licensure might entail the imposition of conditions on how the work is to be done going beyond any of the matters which the training, or the Department of Environmental Protection requirements, addressed: see reg 3.116(3).

94 However, having said that, it also seems to me that the appellant has been shown to have sought to address the matter of doing the work in a safe and proper manner, and has not been shown to have been acting in defiance of the licensing requirement. This, in my view, significantly qualifies the seriousness of the offence with which the appellant has been charged, and was appropriate to be considered in any sentencing of the offender in this case. Of course, as I said more generally at the outset of the consideration of ground C, because the appellant was not before the Chief Magistrate, his Worship was not in a position to consider that qualification.

Ground B: The sentence imposed was manifestly excessive

95 I have already referred to the standard for review on this account, from Parkinson(supra) at [14].

96 The sentence imposed in this case is one significantly above the highest for contraventions of reg 3.117 ($2,500) to which counsel for appellant or respondent was able to refer me. However, I note that neither counsel was able to refer me to the facts of that other case, and it was conceded there is no tariff for offences of this kind. I was directed to the decision of Scott J in Superfine Homes Pty Ltd v Shepherd, unreported;

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SCt of WA; Library No 990088; 2 March 1999 at 7- 9, where his Honour reviewed decisions reviewing penalties imposed for the offence of failure to take steps to provide a workplace free of hazards to employees like that in s 19 of the Occupational Safety and Health Act. This was undertaken to enable him to identify from the decisions a "range of sentences that have been imposed for similar breaches as an indication of the appropriate sentencing range" (at 7).

97 I also note Murphy v Morrison, unreported; SCt of WA; Library No 960089; 15 February 1996, per Parker J, where his Honour considered an appeal against fines imposed under the Occupational Safety and Health Act. He concluded (at 8) that:

"Those decisions do indicate that at least in cases where there is a serious risk of danger to the safety of workers, in particular in circumstances which indicate a blatant disregard for safety, that penalties in the range of $5,000, $6,000 and $7,500 [the first and the third had been imposed in his case, as well as another of $500, where the maximum penalty in each case was $25,000, as here] are not inappropriate. However, penalties much lower than that, and below $1,000, have been upheld in circumstances where there has been no blatant disregard for the considerations of safety which are central to the purposes of the Act."

98 In Murphy, Parker J did not find any of the penalties imposed considered individually to be excessive, where the circumstances appeared to him to indicate a "conscious or blatant disregard for the safety requirements of the Act" (at 8). However, he considered their totality, of $13,000, was excessive, and reduced the penalty for one offence in such a way as to reduce the total to $10,500, as it was a case where the offender had not "previously offended in this way" (at 10). He did this despite his conclusion that the plea of guilty in that case was not indicative of remorse, but rather was a "matter of commercial judgment" (at 10).

99 Superfine Homes (supra)was a case more like this one if not on all fours with it, where there was no suggestion that any employee had been injured as a result of the offending, there were no previous convictions, and the offender had since the prosecution shown itself to be careful to comply with the Act. However,the offender had previously received a prohibition notice in respect of the dangerous conditions in question. In that case, a fine of $25,000, 25 per cent of the maximum for the offence of $100,000, was characterised as "beyond and well beyond the appropriate sentencing range" (at 9), and reduced to $7,500.

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100 I also note JAG Demolition (supra), where as I have indicated Barker J found there was a deliberate defiance of the relevant licensing requirements. The maximum penalty in that case was, as here, $25,000 (at [8]). Barker J found the sentence imposed, of $9,000 in that case, was "excessive" (at [68]), and re-sentenced the offender to a fine of $5,000, together with costs as previously awarded by the Magistrate in that case (at [69]).

101 Having regard to these decisions, the fine here seems to me manifestly excessive where the offender, a first offender albeit with a prior related offence some time previously, and who had received a prohibition notice some two years earlier which should have alerted it to the licensing requirement, had acted to address the risks of asbestos removal before the work commenced, and had returned an early plea of guilty, which in the circumstances of this case should be taken to indicate a measure of remorse indicative of a commitment not to re-offend in this way.

102 In that last respect, I note the fact deposed to in Mr Houston's 4 March 2005 affidavit (AB 9) that the offender had taken steps, shortly after it had been told on 6 May 2004, that it could not continue the work because it lacked the appropriate licence, to inquire into how the matter might be addressed. The appellant had then acted on the advice that the appellant could do the work under the licence of another demolition contractor, and had given WorkSafe the relevant reg 3.119 notification. While evidence of this sort might not play a role where defiance or blatant disregard of the legislation has been established (see Murphy (supra), at 7 - 8), it is in my view capable of playing a role to show neither characterisation applies.

Conclusion and sentence

103 I have determined that, while the conviction should stand, the sentence of the Chief Magistrate in this case should be quashed, and that I should re-sentence the appellant.

104 For the purposes of the re-sentencing I have noted the factors which I addressed in relation to ground C above. Weighing all of those, I consider that in re-sentencing the appellant a fine of $1,500, with costs in the amount ordered by the learned Chief Magistrate, would be an appropriate exercise of my sentencing discretion. This amount particularly recognises the points of similarity between this case and Superfine Homes (supra), while also particularly allowing for the efforts the appellant had made to

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address the issues of safety and proper execution of the work in this case before the work commenced.