Tasmanian Access Systems Pty Ltd v Sears
[2012] TASSC 2
•8 February 2012
[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 when determining that penalty –
(i) the overall circumstances giving rise to the offence;
(ii) the matters advanced in mitigation on behalf of the applicant;
(iii)the fact that the applicant had no prior convictions for offences contrary to the provisions of the Workplace Health and Safety Act;
(iv)the fact, not disputed by the prosecution, that the applicant had relied upon its employee, Gerard Sullivan, to discharge its statutory obligations when at all material times Mr Sullivan was a registered plant inspector who was well qualified to discharge those functions without supervision.
2That the learned Magistrate erred when he placed undue emphasis on the death of Mr Wagg when it was not alleged by the prosecution that the actions giving rise to those matters, the subject of the complaint, were in fact responsible for Mr Wagg's death.
3That the learned Magistrate erred in law and in fact in giving undue emphasis to the victim impact statement that had been provided by the widow of Mr Wagg and which was read in the course of the prosecutor's sentencing submissions."
The charge contained particulars of eight deficiencies in the manner in which Access Systems had maintained the EWP. Of crucial importance to the outcome of this appeal is the fact that it was not part of the prosecution's case that Mr Wagg's death was caused by Access Systems' failure to ensure that, whilst at work, Mr Wagg was safe from injury and risks to his health, or any of the particularised deficiencies in its maintenance of the EWP. The link between Mr Wagg's death and the prosecution is the fact that his accident prompted Workplace Standards Tasmania to inspect the EWP. The link is not that Mr Wagg's death was a consequence of any failure on the part of Access Systems.
Against this background I turn first to grounds 2 and 3 of the appeal. They contend that the sentencing magistrate placed undue emphasis on the death of Mr Wagg and a victim impact statement provided by his widow. With regard to these two matters, his Honour said the following in the course of his comments when passing sentence on 17 June 2011:
"It is accepted by defence that [Mr Wagg's] death is a relevant fact, according to the principle in Inkson v R (1996) 6 Tas R 1. I refer, in particular, to the passage of Underwood J, as he then was, judgment at page 13 to which I was referred.
The weight to be given to Mr Wagg's death was
Sorry.
Mr Wagg's death was unforeseen and the weight is to be assessed accordingly and it is not suggested that the offence caused it.
This is because the particulars of the charge cannot be shown to have caused or contributed to the behaviour of the machine under the operation of … Mr Wagg … There is no explanation for the rapid, erratic and uncontrollable movements of the machine because post accident, this could not be re-created.
...
I've been provided with Mr Wagg's widow's victim impact statement. It is a document which informs me of the details of the impact upon her and upon their daughter of her husband's death. I found it to be extremely emotional in its impact. The sentiments are impossible to disregard - not that one should try. I propose to weight this statement in a way very similar to the fact of Mr Wagg's death itself.
As to that, for the reasons already given, this is a case where – to quote his Honour, the weight is in the 'less weight category'."
Inkson v R (1996) 6 Tas R 1
In the course of the sentencing hearing on 26 May 2011, counsel for the prosecution and counsel for Access Systems had both made reference to the reasons for judgement of Underwood J (as he then was) in Inkson. Counsel for Access Systems had directed his Honour's attention to a paragraph at page 13 of that judgment. This is the paragraph to which his Honour referred in his comments when passing sentence. That paragraph is as follows:
"This overlong excursion into this issue leads me to conclude that in Tasmania at least, it has long been held that the consequences of a criminal act are relevant in the sentencing process regardless of whether they were foreseen or ought to have been foreseen. They are relevant to the issue of deterrence and denunciation. However, what weight such consequences have in the sentencing process will depend on the facts of each case. Obviously, an unforeseen consequence will have less weight than a foreseen consequence and, a consequence that was neither foreseen nor ought to have been foreseen, will have even less weight."
After referring his Honour to the above paragraph, counsel for Access Systems had submitted to his Honour that there was a clear distinction between the facts of Inkson and those of the subject case, as it was agreed that Mr Wagg's death was not caused as a result of any defects in the EWP. In his comments when sentencing Access Systems, his Honour said that that it was accepted by defence that Mr Wagg's death was a relevant factor, according to the principle in Inkson. I do not read what was said to his Honour by counsel for Access Systems as amounting to such an acceptance.
The tender of Mrs Wagg's statement
In the course of the sentencing hearing, counsel for the prosecution tendered a statement from Janine Wagg, the widow of Christopher Wagg. It was described as a victim impact statement. The admission of this statement was initially opposed by counsel for Access Systems. When explaining the basis on which the statement was tendered, counsel for the prosecution referred to the following authorities.
The decision in Director of Public Prosecutions v DJK [2003] VSCA 109 at [17] where Vincent JA said of victim impact statements:
"17 … I repeat comments that I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.
18 This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation. As the sentencing judge in the present case has pointed out, the damage has been profound. That, in the experience of this Court, is by no means surprising. The possibility that very substantial harm can be sustained by child victims of sexual abuse underlies, in part, the legislative enactment of substantial maximum penalties for the commission of the offences encompassed by counts 4 and 5."
Counsel for the prosecution characterised these passages as "referring to … the therapeutic benefit of victim impact statements and their use".
The decision in Comcare v Commonwealth of Australia [2009] FCA 700 at [47] where North J quoted from the above paragraphs of the judgment of Vincent JA and observed that Vincent JA's explanation of the value of victim impact statements was equally applicable to evidence given by those affected by the failure of employers to comply with their occupational health and safety obligations.
The decision in Comcare v John Holland Pty Ltd [2009] FCA 1196 where Collier J said at [3] referable to his receipt of a victim impact statement in proceedings that involved the contravention of occupational health and safety legislation:
"… this material would be of some assistance in understanding the background to these proceedings; …"
and went on to say:
"the Court will not rely upon such material to increase or decrease the penalty which might otherwise be imposed in this matter by reference to the material; and
the reception of this material does not mean that the Court will punish the respondent with a higher or lower penalty because of the particular value placed on the life of [the deceased] by his family."
Having cited the above passages to the sentencing magistrate, counsel for the prosecution said:
"I accept that [Collier J] used the material in a very limited fashion and really, only for those general therapeutic principles that were enunciated by North J in Comcare v Commonwealth and I don’t put it any higher than that."
Following this concession by counsel for the prosecution, counsel for Access Systems said to the sentencing magistrate:
"… if the evidence is received solely on the basis which my friend seems to be putting it, namely that it has a therapeutic basis, and is not intended to increase or decrease any penalty that might otherwise be thought to be reasonable – in other words, to follow the methodology adopted by North J in Comcare v Commonwealth in which it subsequently seemed to have been adopted by Collier J, then I have no difficulties with your Honour receiving it."
Thereupon his Honour said:
"Well if that's the base upon which its agreed that I should receive it, then that would be it, of course."
In the passage quoted from his Honour's comments when passing sentence in [5] above, his Honour said he would weight Mrs Wagg's statement in a way very similar to the fact of Mr Wagg's death, that weight being in the less weight category. Insofar as this statement means that his Honour gave some weight, albeit less weight, to each of these matters, several problems arise.
Mr Wagg's death
His Honour's statement that the weight to be given to the death of Mr Wagg was in the less weight category, relates back to the passage counsel for Access Systems drew to his Honour's attention during the sentencing hearing from page 13 of the judgment of Underwood J in Inkson.
For relevant purposes the issue that was the subject of the decision in Inkson was whether a consequence of a criminal act, in that case a death, was a relevant consideration in the exercise of the sentencing discretion, regardless of whether it was foreseen or ought to have been foreseen. The premise that underpinned that issue was that the death was a consequence of the criminal act, albeit that it was neither foreseen, nor reasonably foreseeable. As to a consequence of a criminal act that was neither foreseen, nor reasonably foreseeable, at page 13, Underwood J concluded that it was relevant, albeit that the weight to be given to an unforeseen consequence would be far less than that given to a foreseen consequence. The other members of the court, Crawford J (as he then was) and Zeeman J expressed different views. At pages 23 – 24 Crawford J concluded that there was no satisfactory line of authority on the question of culpability for consequences that were neither foreseen nor foreseeable. At page 32 Zeeman J concluded that culpability only attached to those consequences which should reasonably have been foreseen by the offender.
In the subject case, the prosecution acknowledged that Mr Wagg's death was not a consequence of the failure of Access Systems to maintain the EWP in a safe condition. That being so, the judgment of Underwood J in Inkson had no application. It is only if Mr Wagg's death had been a consequence of the conduct of Access Systems that there would have been any occasion to address the culpability of Access Systems for that death on the basis that it was a consequence that was neither foreseen, nor reasonably foreseeable.
Even if Mr Wagg's death had been such a consequence, the prevailing authority at the time of the sentencing hearing was to the contrary of the judgment of Underwood J in Inkson. His Honour, agreed with by Blow J and Tennent J, so held in Lambie v State of Tasmania (2007) 16 Tas R 151 at [29]. His Honour there said that the preponderance of authority now indicates that this Court should adopt the proposition that a court should not treat an unintended, unforeseen, and not reasonably foreseeable, consequence as relevant to the issue of sentence. The decision of the Court of Criminal Appeal in New South Wales in Josefski v R [2010] NSWCCA 41 is to the same effect. See James J at [3] and [4], and the decision of Howie J, agreed with by Davies J, at [39].
For these reasons I am of the view that the learned sentencing magistrate erred in giving any weight, albeit weight in the less weight category, to the death of Mr Wagg when sentencing Access Systems. Counsel for the respondent did not submit otherwise.
Mrs Wagg's statement
There is no legislative authority for the admission of a victim impact statement on a sentencing hearing of the nature in question. The Sentencing Act 1997, s81A, has no application as Access Systems was not convicted of an indictable offence, and even if it had been, Mr Wagg's death was not a direct consequence of the offence. Nonetheless, Mrs Wagg's statement was admitted into evidence on the sentencing hearing with the agreement of counsel for Access Systems. The terms of that agreement are set out in the passages detailed in [12] and [13] above, they being that there was a therapeutic basis for its admission, but that it would not increase or decrease any penalty that might otherwise be thought to be reasonable.
In the passage quoted from his Honour's comments when passing sentence in [5] above, his Honour said that he found Mrs Wagg's statement to be extremely emotional in its impact, that the sentiments expressed were impossible to disregard and that the weight that he gave to it was in the less weight category. I am unable to construe that which his Honour said in a way that means other than that his Honour went beyond the agreed basis upon which this statement was admitted, that is, that there were therapeutic reasons for its admission, but that it was not to be a basis for increasing or decreasing the penalty. In addressing the statement in the manner in which he did, I am satisfied that his Honour erred. Counsel for the respondent did not submitted otherwise.
Manifest excess
It follows from my findings in relation to grounds 2 and 3, that Access Systems was wrongly sentenced on the basis that the evidence of the death of Mr Wagg and the statement of Mrs Wagg was of material relevance to the fine that was imposed. That the relevance of this evidence was described as being in the less weight category does not negate the error. It would accordingly be futile to address ground 1 which contends that the fine was manifestly excessive. To determine whether a penalty imposed on the basis of erroneous evidence, or in this case, immaterial evidence, was manifestly excessive is to determine a hypothetical question.
Outcome
For the reasons given I am satisfied that grounds 2 and 3 have been made out, and that the fine of $50,000 should be quashed. Both counsel on the appeal requested that in these circumstances I re-sentence Access Systems rather than remit the matter to be dealt with in the Court of Petty Sessions. I have had the benefit of the submissions of both counsel with regard to the re-sentencing.
Re-sentencing
At the time of the offence Access Systems conducted a scaffold hiring business from premises at Derwent Park, and an equipment hiring business from premises at Austin's Ferry. Tony Whitford was the managing director of Access Systems, and in the words of its counsel, he was its alter ego. Mr Whitford and his wife had purchased the business in 1994. Gerard Sullivan was Mr Whitford's brother-in-law. He had been employed by Access Systems since 1999. He was the head of its maintenance workshop and responsible for operating the equipment hire aspect of the business. This included repairs, mechanical maintenance and inspections. He was highly qualified and was a registered plant inspector for equipment that included mobile elevating work platforms. Christopher Wagg commenced employment with the business in 2003. He was an assistant to Mr Sullivan. He was a diesel fitter and also serviced and maintained plant. Mr Sullivan and Mr Wagg were the only employees of the business who worked from its Austin's Ferry site.
At about midday on the day in question Mr Wagg was requested to deliver an EWP to the zinc works, as an EWP that Access Systems had provided to that site was not functioning properly. Another EWP was available. It had been manufactured in 1997 and had been acquired in the interests of Access Systems in 2006. With a view to delivering it to the site of the zinc works, Mr Wagg inspected this unit and replaced its riser joystick, which had been jamming. He then loaded the unit onto the back of a flat tray truck and drove it to the site.
After delivering the unit to the site, Mr Wagg went to examine the other EWP at the site in order to ascertain why it was not functioning properly.
Nathan Graham, an employee of the subcontractor for whose use Mr Wagg had delivered the second EWP to the site, drove it to the position on site where it was to be used. This position was a restricted space. As Mr Graham manoeuvred the EWP its movements were very jolty and erratic. He was not able to release the control joystick or release his foot from the dead man's pedal. When he tried to use the emergency stop button it would not work. Mr Wagg, who was still at the site, was called for and Mr Graham told him of the problems he was having. Mr Wagg took over the control of the EWP and opened its control panel to check inside. Mr Graham telephoned his supervisor to complain about the condition of the unit and, as he did so, Mr Wagg manoeuvred the unit. It thereupon moved in a rapid, erratic and uncontrolled way and Mr Wagg was fatally crushed between it and an overhead structure.
As a consequence of this accident, the EWP was examined by Workplace Standards Tasmania. The deficiencies that were then found, which are the subject of the charge against Access Systems, are as follows.
There was no key in the controls located on the base of the EWP. These controls are described as emergency controls that enabled the upper controls, those in the basket, to be isolated and overridden in order to retrieve the EWP from an elevated position. The only key that was available was that in the upper controls. That key also operated the lower controls.
The emergency stop button in the controls in the basket was not functioning properly. Mr Graham had been unable to make it work when he was in the basket. An examination revealed significant rust on the internal shaft of the button and elsewhere. This and other factors made it necessary to use considerable force to operate the button. A test established that the force required to operate the button was in excess of 122 newtons, whilst only 32 newtons of force was required to operate a new button. Corrosion associated with the button appeared to be caused by long-term contact with moisture rather than short-term acidic contact.
The manufacturer's specifications and the relevant Australian Standard required that the chassis of the EWP be clearly marked to indicate its direction of travel when the controls were operated, irrespective of the position of the control box. There were no such indicators.
The hour usage meter on the EWP was not functioning, and the glass front of the meter was broken.
Australian Standards required periodic inspections of units of the nature of the EWP in question, and in particular required a major inspection after ten years in which all critical components were inspected. At the time of the accident the unit in question had been in operation for 12 years. It had not been given the required ten year inspection and service.
The EWP's safety check and routine maintenance log book contained few entries, and no entries in relation to a number of checks and faults that were known to have occurred.
The EWP's out of level alarm had been sealed over with heavy duty tape and muffled. This alarm alerts an operator that the chassis is not on a level base, which could mean that the elevation of the basket is in an unsafe position.
The warning horn on the EWP was inoperable. This horn alerts personnel that the unit is operating in close proximity to them and can be used by the operator to attract the attention of personnel on the ground or in adjacent areas.
Whilst it was not part of the prosecution's case that Mr Wagg's death was a consequence of any of these breaches, it goes without saying that as a consequence of a number of them, an operator or a bystander could have been injured or killed. Clearly this is so in relation to the defective emergency stop button, the absence of directional markings, the muffled out of level alarm and the inoperable warning horn. Similarly, an operator or bystander could have been injured or killed as a consequence of a defect that would have been revealed by the requisite ten year service.
The gravity, likelihood and foreseeability of the potential consequences of Access Systems' breaches are highly relevant to its culpability and the penalty that should be imposed. See Workcover Authority of NSW (Insp Tyler) v The Roads and Traffic Authority [1999] NSWIR Comm 391, Kavanagh J [70], Hudson v Australian Food Group Pty Ltd (2006) 15 Tas R 322, Tennent J at [75], and page 9 of her Honour's comments when re-sentencing that offender on 8 September 2006. I am satisfied that in this case there was a real risk that some of the breaches established against Access Systems could have resulted in serious injury or death, and that this risk was not remote. It is also pertinent that a number of the unit's deficiencies were obvious and would have been evident prior to the date of the offence. It must have been apparent for some time that the emergency stop button was not functioning properly, that there were no directional markings on the chassis, and that the out of level alarm was muffled.
In mitigation of Access Systems' culpability, its counsel, whilst acknowledging that its duties could not be delegated, placed considerable emphasis on the qualifications and experience of Gerard Sullivan, the employee who was primarily responsible for operating the equipment hire aspect of the business and maintaining servicing and inspecting the equipment that was hired out. In this context I also note that the evidence is that Mr Wagg, the other employee who bore some responsibility for these matters, was experienced and well regarded. It is also germane that Access Systems had no prior convictions and there was no evidence of any occurrences that should have drawn Mr Sullivan's superior's attention to deficiencies in the manner in which equipment was being inspected, serviced and maintained. On the other hand, there was no evidence of Access Systems' monitoring or auditing this aspect of its operations.
Whilst the competence, training, qualifications and experience of any employees an employer entrusts with responsibility for matters of safety is plainly relevant, it is to be expected that they have the necessary qualities. Accordingly, if the responsible employees lack the requisite qualities, that may be a significant aggravating factor when sentencing, whilst the fact that they have the requisite qualities is likely to be a matter of only modest mitigatory import. In my view the qualities of Mr Sullivan (and Mr Wagg) are of only modest mitigatory significance.
A predecessor to the Workplace Health and Safety Act was the Industrial Safety, Health, and Welfare Act 1977. When enacted, that Act, s46, provided for a maximum penalty of $5,000 for a contravention of any of its provisions. In 1991, that amount was increased to $50,000, that is 500 penalty units. At that time the value of a penalty unit was $100. When the Workplace Health and Safety Act was enacted in 1995, the maximum penalty for the subject offence, a breach of s9(1) by a corporation, was $150,000, that is, 1,500 penalty units. In 2007, the value of a penalty unit was increased to $120. In result, when the subject offence was committed, the maximum fine was $180,000.
To my mind, this series of legislative increases in the maximum penalty for offences of the nature in question evidences an increase in public concern, as reflected by the representatives of the public, in relation to matters involving workplace health and safety; and an intent that such offences be penalised more heavily than they have been in the past. A somewhat similar view was expressed about legislative changes in a quite different context by Cox CJ in Shipton v R [2003] TASSC 23, [9] and [10].
In substitution for the fine that I have quashed, Access Systems is fined $40,000.
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