Williamson v VH & MG Imports Pty Ltd - [2017] QDC 56

DISTRICT COURT OF QUEENSLAND

CITATION:

Williamson v VH & MG Imports Pty Ltd [2017] QDC 56

PARTIES:

IAN WILLIAMSON
(appellant)

v

VH & MG IMPORTS PTY LTD
(respondent)

FILE NO/S:

2607/16

DIVISION:

Appellate

PROCEEDING:

Criminal Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

17 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

11 November 2016

JUDGE:

Dearden DCJ

ORDER:

1.   Appeal granted;

2.   Substitute fine of $125,000 for the fine imposed of $90,000 in the Magistrates Court; and

3.   Otherwise affirm sentence imposed in the Magistrates Court on 16 June, 2016.

CATCHWORDS:
LEGISLATION:
CASES:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was found to have breached s 32 of the Work Health and Safety Act 2011 (Qld) for failing to comply with a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (Qld) – where the respondent was fined ninety thousand dollars – where no conviction was recorded – where employee was exposed to an unacceptable risk of death or serious injury – where the risk of injury was avoidable – whether the learned acting magistrate fell into error – whether the fine was manifestly inadequate – whether a conviction should be recorded

Acts Interpretation Act 1954 (Qld), Schedule 1

Justices Act 1886 (Qld), ss 222, 225

Penalties and Sentences Act 1992 (Qld), ss 5, 9, 12, 15

Work Health and Safety Act 2011 (Qld), ss 3, 19, 32

Barbaro v R (2014) 253 CLR 58

Boland v Big Mars Pty Ltd [2016] SAIRC 11

Hay v Commissioner of Police [2016] QDC 358

House v The King [1936] 55 CLR 499

Kim v Commissioner of Police [2016] QDC 44

Safe Work New South Wales v Austral Hydroponics Pty Ltd [2015] NSWDC 295

SafeWork (NSW) v JSN Hanna Pty Ltd [2016] NSWDC 117

SafeWork (NSW) v Romanous Contractors [2016] NSWDC 48

Safe Work New South Wales v Waycon Bulk Pty Ltd [2015] NSWDC 254

Tierney v Commissioner of Police [2011] QCA 327

R v Briese; ex parte Attorney-General [1998] 1 Qd R 487

R v Karlsson [2015] QCA 158

R v Pham [2015] HCA 39

R v Samad [2012] QCA 63

Wong v The Queen (2001) 207 CLR 584

WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151

WorkCover Authority of NSW v Visy Paper Pty Ltd [2015] NSWDC 284

COUNSEL:

M R Byrne, QC with P Matthews for the appellant
R Devlin QC for the respondent

SOLICITORS:

Division of Work place Health and Safety for the appellant
K&L Gates solicitors for the respondent

Introduction

[1] The respondent company VH & MG Imports Pty Ltd was sentenced on 16 June 2016 to a fine of $90,000 with no conviction recorded for a breach of s 32 of the Work Health and Safety Act 2011 (Qld) for failing to comply with a health and safety duty under s 19(1) of the Work Health and Safety Act

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: [2017] QDC 56
Decision Date: 17 March 2017

CaseChat Overview and Summary

The respondent, VH & MG Imports Pty Ltd, was found guilty of breaching section 32 of the Work Health and Safety Act 2011 (Qld) by failing to comply with a health and safety duty under section 19(1) of the same Act. The breach occurred when an employee was exposed to an unacceptable risk of death or serious injury, a risk that was also avoidable. The respondent was fined $90,000, but no conviction was recorded. The respondent appealed against the sentence, arguing it was manifestly inadequate and that a conviction should have been recorded.

The appeal hinged on whether the learned acting magistrate fell into error in not imposing a conviction and in determining that the fine was not manifestly inadequate. The court considered the nature and extent of the breach, the degree of culpability, and the culpability of the respondent in the context of corporate offending. The court also examined the principles of deterrence and denunciation in assessing the adequacy of the penalty.

The court found that while the penalty was not manifestly excessive, it was inadequate. The severity of the breach, coupled with the fact that the risk to the employee was both serious and avoidable, warranted a higher penalty. Additionally, the court found that the absence of a conviction was an error as the breach constituted a serious criminal offence. The appeal was granted, and the fine was increased to $125,000. The court otherwise affirmed the sentence imposed in the Magistrates Court on 16 June 2016.

Orders

Orders of the court

1. Appeal granted;

2. Substitute fine of $125,000 for the fine imposed of $90,000 in the Magistrates Court; and

3. Otherwise affirm sentence imposed in the Magistrates Court on 16 June, 2016.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Williamson v VH & MG Imports Pty Ltd [2017] QDC 56
PARTIES:	IAN WILLIAMSON (appellant) v VH & MG IMPORTS PTY LTD (respondent)
FILE NO/S:	2607/16
DIVISION:	Appellate
PROCEEDING:	Criminal Appeal
ORIGINATING COURT:	Magistrates Court, Brisbane
DELIVERED ON:	17 March 2017
DELIVERED AT:	Brisbane
HEARING DATE:	11 November 2016
JUDGE:	Dearden DCJ
ORDER:	1. Appeal granted; 2. Substitute fine of $125,000 for the fine imposed of $90,000 in the Magistrates Court; and 3. Otherwise affirm sentence imposed in the Magistrates Court on 16 June, 2016.
CATCHWORDS: LEGISLATION: CASES:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was found to have breached s 32 of the Work Health and Safety Act 2011 (Qld) for failing to comply with a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (Qld) – where the respondent was fined ninety thousand dollars – where no conviction was recorded – where employee was exposed to an unacceptable risk of death or serious injury – where the risk of injury was avoidable – whether the learned acting magistrate fell into error – whether the fine was manifestly inadequate – whether a conviction should be recorded Acts Interpretation Act 1954 (Qld), Schedule 1 Justices Act 1886 (Qld), ss 222, 225 Penalties and Sentences Act 1992 (Qld), ss 5, 9, 12, 15 Work Health and Safety Act 2011 (Qld), ss 3, 19, 32 Barbaro v R (2014) 253 CLR 58 Boland v Big Mars Pty Ltd [2016] SAIRC 11 Hay v Commissioner of Police [2016] QDC 358 House v The King [1936] 55 CLR 499 Kim v Commissioner of Police [2016] QDC 44 Safe Work New South Wales v Austral Hydroponics Pty Ltd [2015] NSWDC 295 SafeWork (NSW) v JSN Hanna Pty Ltd [2016] NSWDC 117 SafeWork (NSW) v Romanous Contractors [2016] NSWDC 48 Safe Work New South Wales v Waycon Bulk Pty Ltd [2015] NSWDC 254 Tierney v Commissioner of Police [2011] QCA 327 R v Briese; ex parte Attorney-General [1998] 1 Qd R 487 R v Karlsson [2015] QCA 158 R v Pham [2015] HCA 39 R v Samad [2012] QCA 63 Wong v The Queen (2001) 207 CLR 584 WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 WorkCover Authority of NSW v Visy Paper Pty Ltd [2015] NSWDC 284
COUNSEL:	M R Byrne, QC with P Matthews for the appellant R Devlin QC for the respondent
SOLICITORS:	Division of Work place Health and Safety for the appellant K&L Gates solicitors for the respondent