Tasmanian Access Systems Pty Ltd v Sears - [2012] TASSC 2

[2012] TASSC 2

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmanian Access Systems Pty Ltd v Sears [2012] TASSC 2

PARTIES:  TASMANIAN ACCESS SYSTEMS PTY LTD
  v
  SEARS, Fredrick Kingsley

FILE NO/S:  585/2011
DELIVERED ON:  8 February 2012
DELIVERED AT:  Hobart
HEARING DATE:  30 January 2012
JUDGMENT OF:  Evans J

CATCHWORDS:

Criminal Law – Sentence – Relevant factors – Irrelevant factors – Error to give weight to a death that was not a consequence of the offence and a statement from the widow of that deceased.

Inkson v R (1996) 6 Tas R 1; Lambie v State of Tasmania (2007) 16 Tas R 151; Josefski v R [2010] NSWCCA 41, discussed.

Director of Public Prosecutions v DJK [2003] VSCA 109; Comcare v Commonwealth of Australia [2009] FCA 700; Comcare v John Holland Pty Ltd [2009] FCA 1196, referred to.
Aust Dig Criminal Law [3292]

REPRESENTATION:

Counsel:
             Applicant:  D J Gunson SC
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Gunson Williams
             Respondent:  Director of Public Prosecutions

Judgment Number: [2012] TASSC 2
Number of paragraphs: 42

Serial No 2/2012
File No 585/2011

TASMANIAN ACCESS SYSTEMS PTY LTD v FREDRICK KINGSLEY SEARS

REASONS FOR JUDGMENT EVANS J

8 February 2012

By a notice to review Tasmanian Access Systems Pty Ltd ("Access Systems"), appeals against a fine of $50,000 imposed on it by Magistrate Mollard upon its conviction following its plea of guilty to a charge that on or about 3 August 2009, it failed to ensure, so far as was reasonably practicable, that an employee, Christopher Wagg, was, whilst at work, safe from injury and risks to health, and in particular failed to maintain plant in a safe condition in breach of the Workplace Health and Safety Act 1995, s9(1).

The charge arose from deficiencies in a mobile elevated working platform, an "EWP" hired out by Access Systems. On 3 August 2009 Christopher Wagg, in the course of his employment with Access Systems, delivered the EWP to the site of the zinc works at Risdon Road, Lutana, for use by a subcontractor of Nyrstar Tasmania Pty Ltd. Before Mr Wagg had left that site, an employee of the subcontractor complained to him about problems with the operation of the EWP. Thereupon Mr Wagg took control of the EWP and began to operate it. When he did so it moved in a rapid, erratic and uncontrolled way, and Mr Wagg was fatally crushed between it and an overhead structure. Following this accident the condition of the EWP was assessed by Workplace Standards Tasmania and found to be deficient. This resulted in Access Systems being charged with the offence which is the basis for the fine that is the subject of this appeal.

The following are the grounds of appeal:

"1The fine of $50,000-00 imposed upon the applicant by the learned Magistrate was manifestly excessive in all of the circumstances of the applicant's offending and in particular that the learned Magistrate failed to take into account or adequately take into account the following matters…

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: [2012] TASSC 2
Decision Date: 8 February 2012

CaseChat Overview and Summary

In the case of Tasmanian Access Systems Pty Ltd v Sears, the respondent, Sears, was convicted of various criminal offences related to the use of a forklift at a workplace. The dispute before the court centred on the appropriate sentencing to be imposed on Sears following his conviction. The matter was heard in the Supreme Court of Tasmania. The primary focus of the court was to determine whether the sentencing magistrate had erred in the sentencing process by considering factors that were either irrelevant or not directly connected to the offence.

The central legal issue before the court was whether the sentencing magistrate had committed an error by giving undue weight to certain factors that were not directly relevant to the offence. Specifically, the court needed to assess whether the magistrate erred in considering the death of an individual who was not a direct consequence of the offence, as well as a statement made by the widow of the deceased. The court had to consider the appropriate criteria and principles that should guide the sentencing process, and whether the magistrate had properly applied these in arriving at the sentence.

The court found that the sentencing magistrate had indeed erred in considering the death of the individual and the statement from the widow as relevant factors. The court held that these factors were not pertinent to the offence and should not have influenced the sentence. The court emphasised that the sentencing process must focus on the nature of the offence, the culpability of the offender, and the need for deterrence and rehabilitation. By giving weight to irrelevant factors, the magistrate had potentially influenced the sentence in a way that was not justified by the offence itself. Consequently, the court determined that the sentence imposed on Sears was inappropriate and required reconsideration.

In light of the findings, the court ordered a re-sentencing hearing to be conducted. The court directed that the re-sentencing process should be carried out by a different magistrate, ensuring that only relevant factors were considered in determining the appropriate sentence for Sears. This decision underscores the importance of adhering to proper sentencing principles and the necessity of avoiding the inclusion of irrelevant factors in the sentencing process.

Orders