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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Reynolds v Tailored Adventures Pty Ltd  QDC 150
STEVEN JOHN REYNOLDS
TAILORED ADVENTURES PTY LTD
Magistrates Court at Beaudesert
21 August 2019
District Court at Beenleigh
21 June 2019
APPEAL FROM MAGISTRATE – BREACH OF HEALTH AND SAFETY DUTY – s 222 Justices Act 1886 – Failure to take into account relevant matters – Inadequacy of penalties
Justices Act 1886 (Qld), s 222, s 225
Work Health and Safety Act 2011 (Qld), s 8, s 19, s 21, s 32, s 275(3)
Work Health and Safety Act 2011 (NSW)
Penalties and Sentences Act 1992 (Qld), s 9
AG (NSW) v Ceerose Pty Ltd  NSWCCA 35
AG (NSW) v DSF Constructions Pty Ltd  NSWCCA 33
AG (NSW) v MacMahon Mining Services Pty Ltd  NSWCCA 8
Bulga Underground Operations v Nash  NSWCCA 37
Capral Aluminium Limited v WorkCover Authority of New South Wales  NSWIRComm 71
Gartner v Brennan  WASC 89
Hammond v Ralley  QDC 263
Hickey v Chief Executive Officer of Customs; Hickey v Commissioner of Police  QDC 27
Hurley v Commissioner of Queensland Police Service  QDC 297
R v Carr  NSWCCA 434
R v Doraho  QCA 29
R v Goodwin; ex parte Attorney-General  QCA 345
R v KB; R v JL; R v RJB  NSWCCA 190
R v Nikolovska  NSWCCA 169
Reynolds v Orora Packaging Australia Pty Ltd  QDC 31
Steward v Mac Plant Pty Ltd & Mac Farms Pty Ltd  QDC 20
Steward v Mac Plant Pty Ltd and Mac Farms  QDC 20
Waltham Transfield Services (Australia) Pty Ltd  ICQ 11
M Drysdale for the appellant
S Farrell for the respondent
Office of the Work Health and Safety Prosecutor for the appellant
Barry.Nilsson for the respondent
- On 19 February 2019, the respondent pleaded guilty in the Beaudesert Magistrates Court to the following offence:
“That on the 24th day of July 2001 at Mt Tamborine in the Magistrates Courts district of Beaudesert appointed under the Justices Act 1886, TAILORED ADVENTURES PTY LTD (ACN 164 083 309) being a person who held a health and safety duty under s 21 Work Health and Safety Act 2011, failed to comply with the duty contrary to s 32 of the said Act and the failure exposed individuals to a risk of serious injury.”
- The complaint and summons set out a number of particulars.
- The learned magistrate convicted the respondent and fined it $40,000. Professional costs were set at $1,800 and court costs at $95.80 were also ordered. A referral was made to the State Penalties and Enforcement Registry. A conviction was not recorded.
- By way of an amended notice of appeal to a District Court judge, filed 17 April 2019, the appellant raises the following grounds of appeal:
- The sentence imposed by the learned magistrate was manifestly inadequate as:
- (a)Insufficient weight was given to evidence of what is “reasonably practicable” within the meaning of s 18 of the Work Health and Safety Act 2011;
- (b)Insufficient regard was given to relevant codes of practice pursuant to s 275(3) of the Work Health and Safety Act 2011;
- (c)There was a failure to properly apply the provisions of the Work Health and Safety Act 2011 and the Penalties and Sentences Act 1992 (Qld);
- (d)The sentence is inconsistent with sentences imposed for similar offences under the Work Health and Safety Act 2011 and the Harmonised Work Health and Safety laws throughout Australia.
- The appellant seeks that the appeal be allowed, and that the order of the magistrate be set aside, and the matter be heard and determined according to law by this Court.
Material placed before the magistrate
- Exhibit 1 before the learned magistrate was an agreed statement of facts. Relevantly it stated the following:
- The respondent traded as a business called “Treetop Challenge”, which operated zip line courses at Thunderbird Park, located at the corner of Cedar Creek Falls Road, on Tamborine Mountain. That was a workplace pursuant to s 8 Work Health and Safety Act 2011 “(the Act)”.
- The respondent held a duty under s 21 of the Act to ensure, so far as reasonably practicable, the health and safety of any person is not put at risk from fixtures, fittings or plant under its management or control.
- The injured person, Mariah Louise Spencer and her partner, Patrick Carlos, pre-booked a zip line “Canyon Flyer” course at Mount Tamborine through the respondent. On Sunday 24 July 2016, Ms Spencer and Mr Carlos attended Thunderbird Park and signed relevant paperwork.
- Two guides in the employ of the respondent assisted Ms Spencer, Mr Carlos and a family of two adults and two children into their harnesses and instructed the group about how the course worked. At approximately 1.10pm the group were placed in a four-wheel drive vehicle and driven to the top of the mountain to commence the course. The first three zip lines were completed by the group without incident.
- Before embarking on the fourth zip line, the guides advised the group that zip line 4 was different in that it had a magnetic braking system (ZipSTOP unit) which allowed riders to travel fast and it would stop them.
- There was a platform that allowed riders to run on to the zip line. The guide Williams went first, followed by the family of four. Ms Spencer asked if she could go as fast as she could, and the guide Irwin encouraged her to do so, hooking Spencer up to the line, where she travelled along the zip line in the “cannonball position”.
- When Spencer was almost at the end of the line, the reduction line snapped, Spencer kept travelling at speed, colliding with the guide Williams who fell to the right on the platform and Spencer continued through, subsequently making contact with a tree. Spencer rebounded approximately 5 metres.
- The guide Williams came out on a zip line and collected Spencer and took her to the platform, helped her get down and clipped her to the line that would allow her to sit down, until an extender was attached to her line and she was helped to lie down. Irwin contacted the reception by “walkie talkie”.
- Paramedics took approximately 45-60 minutes to arrive as they had to use the zip lines to access the platform. Spencer was transported by ambulance to the Gold Coast University Hospital.
- Spencer sustained multiple pelvic fractures including minimally displaced fractures of the right superior and inferior rami, minimally displaced fracture of the left pubic body extending into symphysis, and fracture of the right sacrum extending into the S1, S2 and S3 segments. Spencer underwent surgery to insert 2 x 8.5cm screws into the right sacral ala and was released from hospital on 28 July 2016 (four days after the incident).
- The agreed statement of facts then set out the results of the investigation. Relevantly, the following was stated:
- Zip line 4’s braking system was controlled by the ZipSTOP unit (model ZSIR 150-20). The unit is designed to slow the rider through its internal magnetic braking system. According to the ZipSTOP Installation, Operation and Maintenance Manual clause 5.1, the ZipSTOP brake assembly was “a control braking force device designed specifically for use in a zip line industry as a primary or emergency arrest device (EAD) at the end of zip line runs”.
- The ZipSTOP unit:
- (a)Was fixed to the tree underneath the attachment point for the overheard cable;
- (b)Had a tab that exits the front of the unit that operates the internal magnetic braking system, this tab attached to the reduction line via a ‘quick link’ which is supported by a support pulley and sling connected to the overheard wire;
- (c)The reduction line attached via a redirection pulley to the overheard line and ended at the brake trolley that is attached to the zip line (the travelling line).
- The braking system is activated when the rider’s line contacts the brake trolley. The reduction line is activated pulling the tab out of the ZipSTOP unit, activating the internal magnetic braking components. The reduction rope broke in a concentrated section which ran through the reduction pulley. It exhibited a high degree of visible wear. This was caused by repeated application of the braking forces, and possible wear against other obstructions.
- The ZipSTOP unit and brake trolley (stop) was purchased by the company on 13 October 2015; no other components including pulleys, ropes and winches were purchased with the unit.
- The ZipSTOP Installation, Operation and Maintenance Manual was provided to the defendant with the unit.
- Clause 9.4 of the manual provided recommendations for ropes to be used as the reduction line, including “spectra-spectra (brand name Dyneema) is one of the recommended ways of obtaining a line of sufficient strength while minimising size and diameter… it is recommended that a 4.5-6mm line of sufficient strength (greater than 13kN braking strength) be used to minimise inertia, drag, and sagging in the reduction lines. Spectra is known for very high strength and very good abrasion, water and UV resistance. The spectra line must always be jacketed with some version of an abrasion resistant temperature tolerant nylon to avoid possible degradation of the line due to friction”.
- The respondent purchased a 6mm Dyneema single braid nylon rope from a local supplier for use as a reduction line, but the respondent failed to install an abrasion resistant jacket as required by the manual before its installation on the ride.
- The zip line and ZipSTOP unit were installed by workers in the employ of the respondent, including the sole director’s son, Stephen Taylor (a qualified rigger).
- The respondent engaged the services of an engineering firm who inspected the course on two occasions, once with the ZipSTOP unit in place but not in use and the second when it was in use. The engineering firm states that the ZipSTOP unit and braking line was not included in the inspection, it was for the platforms only. The respondent states that its belief was that the engineering firm would consider all aspects of the zip lines.
- The ZipSTOP unit was:
- (i)Found to be appropriate for the type of zip line;
- (ii)Tested according to manufacturer’s testing requirements and was found to be operating as the manufacturer intended.
- There were no documented procedures regarding testing and inspection of the zip line course.
- Workers were told to visually inspect the line from where they could, however these checks were not documented.
- The zip line and components were inspected on a quarterly basis by a worker who was a qualified rigger that could climb up to where the rope was to perform a closer inspection.
- The zip line’s last quarterly inspection was in March 2016, four months prior to the incident.
- The agreed statement of facts concluded by stating the following:
- (a)The respondent cooperated with investigations;
- (b)Entered an early plea of guilty;
- (c)Has no previous convictions for any offence under the Act or its predecessor the Workplace Health and Safety Act 1995.
- Exhibit 2 before the learned magistrate was the appellant’s outline of submissions. Exhibit 3 was a series of photographs. Exhibit 4 was a schedule of comparable prosecutions under s 32 of the Act. Exhibit 5 was a victim impact statement from Ms Spencer. Exhibit 6 was the respondent’s submissions in mitigation of penalty. Exhibit 7 was an affidavit of Maxwell Wilson Taylor, the sole director of the respondent. Exhibit 8 was a WorkCover Queensland summary of a prosecution against a company relied on by the respondent in the court below.
- As part of Exhibit 2, the following documents were tendered before the learned magistrate:
- Managing Risks of Plant in the Workplace Code of Practice 2013.
- How to Manage Work, Health and Safety Risks Code of Practice 2011.
- ZipSTOP installation, operation and maintenance manual.
- Australian Standard for Amusement Rides and Devices Part 2: Operation and Maintenance.
Submissions before the magistrate
- The nature of the respondent’s breach was highlighted by the appellant in its outline between -. Relevantly, the following was emphasised:
- The hazard that gave rise to the risk was the inadequate system of inspections and maintenance of the zip line, its braking system and associated componentry that resulted in the unacceptable wear in the reduction line being unnoticed;
- The risk was the risk of death or serious injury to persons as a result of failure of components to the zip line and its braking system;
- This risk fructified when the reduction line failed while Ms Spencer was travelling on the zip line at speed causing her to collide with a tree, resulting in the injuries particularised in the complaint and detailed in the agreed statement of facts;
- The essence of the respondent’s breach is that it failed to ensure persons are not put at risk by failing to;
- (a)Implement an adequate inspection regime to identify hazards, in particular, the unacceptable wear in the reduction line;
- (b)Follow the manufacturer’s instructions regarding the use of rope jacketed with an abrasion resistant temperature tolerant nylon to avoid the hazard of degradation of the line due to friction;
- (c)The gravity of the respondent’s breach was magnified due to the nature of the activity being undertaken on the zip line, that is, persons (both workers and members of the public, including children, suspended at height from the zip line, secured by a harness, travelling at speed with no control over their movement).
- The respondent failed to ensure risks associated with the zip line were identified through the implementation of an appropriate maintenance, inspection and testing regime to an equivalent or higher standard to those provided in the codes of practice, Australian Standard and Installation, Operation and Maintenance Manual.
- The respondent failed to ensure that the brake system structural requirements were to an equivalent or higher standard to those detailed in the relevant Australian standard, and in the relevant installation, operation and maintenance manual, as well as ensuring that the manufacturer’s recommendations were followed in regard to ensuring the rope used as the reduction line was ‘jacketed with an abrasion resistant temperature tolerated nylon to avoid degradation of the line due to friction’ and to provide adequate consultation, information, training, instruction and supervision to workers to manage risks associated with the hazards of the zip line, in particular ensuring any verbal directions to check the zip line were being completed.
- The appellant provided examples of reasonably practicable steps that the respondent could have taken to minimise risks to health and safety to persons while at the work place, which included:
- Adequate daily inspections of the zip lines components critical to the operation of the zip line and its braking system, in particular, the reduction line;
- Inspections carried out by competent personnel and such inspections being documented;
- Implement safe systems of work to identify hazards relating to plant in accordance with the relevant codes of practice and Australian standard;
- Investigate the cause of defects, in particular in the reduction line;
- Follow the ZipSTOP manufacturer’s installation, operation, inspection and maintenance procedures as set out in the manual.
- The appellant accepted that the respondent had turned its mind to daily inspection and maintenance by verbally directing workers to conduct a visual inspection from where they could, as detailed in  of the agreed facts. However it was submitted that “due to the nature of this activity and the likelihood and the severity of the risks that could eventuate from those hazards informal systems to ensure identifications of hazards is insufficient.”
- Specific submissions on sentence were made by the appellant, which are contained in the outline between -. It was noted that the maximum penalty for an offence committed by a corporation under s 32 of the Act was $1,500,000. It was noted that maximum penalty covers a large range of offending, from a breach that did not result in any injury, to a breach that had resulted in multiple people being seriously injured or killed. In addition to the sentencing principles set out in s 9 Penalties and Sentences Act 1992, the appellant submitted the following matters were relevant on sentence:
- General and specific deterrence;
- The maximum penalty prescribed;
- The nature of the offence;
- The extent the offender was to blame for the offence; and
- The injury caused.
- In particular concerning the nature of the offence, the following was submitted:
- (i)The hazard was obvious and easily managed but was not identified by the respondent;
- (ii)The risk posed by the hazard was serious injury or death;
- (iii)The injury sustained by the member of the public was serious, and has resulted in some permanent impairment;
- (iv)There was no adequate system to inspect the plant to identify that hazard, so as to manage the risks posed to workers and members of the public, including children;
- (v)The respondent failed at the first step of the risk management process, that is to identify the hazard. Without identification of the hazard the risk was not managed;
- (vi)The manufacturer’s manual provided with the ZipSTOP device clearly identified the hazard of wear in the reduction line, and advised daily inspections were required to identify any wear;
- (vii)While it was accepted that there was not a complete absence of consideration of safety, the measures implemented by the respondent to identify hazards and the risks that are posed to persons was inadequate.
- The appellant submitted that the appropriate range of penalty was between $75,000 to $100,000. In particular four comparable cases were referred to the magistrate.
- The appellant specifically acknowledged that the respondent entered an early plea of guilty, and did not have any previous convictions, as set out in the agreed statement of facts.
- Further oral submissions were made by the appellant, which essentially followed the written submissions. The prosecutor submitted the following at r 1-5, l 5:
“The post incident steps taken by the defendant, while commendable, do not take away the fact that the defendant failed in their duty to identify this hazard and manage this risk. This is a proactive duty. It is society’s expectation that persons in control of plant, in particular amusement devices, have more than an informal approach to safety. The hazard of an unacceptable wear in the reduction line was readily foreseeable and was alerted to by the manual for the ZipSTOP unit. Members of the public are entitled to assume that duty holders who provide the use of amusement devices for entertainment purposes have implanted the highest level of risk management that is reasonably practical.”
- In the respondent’s written submissions, reference was made to the observation of Hall P in Waltham v Transfield Services (Australia) Pty Ltd  ICQ 11:
“Those who fall short of discharging the statutory obligation e.g. the obligation in s. 28(3), will include at one end of the spectrum cautious and earnest persons whose best endeavours have failed, at the other end, persons whose conduct has vacillated between the cavalier and the callous. Considerations of deterrence and denunciation… will propel a sentencing industrial magistrate to the imposition of quite different fines where blameworthiness differs.”
- The submissions observed that the respondent is a family business, consisting of husband and wife, and their sons. The respondent operates zip lines at a tourist attraction on Mount Tamborine and had done so without serious incident apart from the incident in question. The zip line was constructed in late 2015 and early 2016. Because of the gradient, a decision was made to install an automatic braking system, and the respondent after research decided that the American company, ZipSTOP, manufactured an appropriate appliance, and that was purchased brand new on 13 October 2015. The submissions between - made the following points:
- In the incident in question the braking rope snapped when the sixth rider of the day descended the zip line. As a result Ms Spencer did not decelerate sufficiently, and collided with the guide, and then collided with the tree on which the destination platform was suspended;
- The reduction line had been purchased new. It had only been in use for some four months. The ZipSTOP Manual specified the rope to be used, which included that purchased by the respondent. The manual also specified that a friction resistant sheet be applied to the rope, and by oversight, that requirement was not detected by the respondent. Consequently the rope was not compliant with the manufacturer’s specification;
- Where the challenge for the respondent in establishing the zip line attraction was the lack of standards for them to follow. The zip line was the first of its kind in south-east Queensland, and there were no published code of practice or guidelines specifically addressing zip line design, installation and maintenance;
- The respondent’s director, Mr Maxwell Taylor, sought out comparable useful standards prior to establishing the ride, and before its opening extensive testing was performed on the ride. In March 2016 an engineer was engaged to inspect the zip line course. The engineer did not specifically consider the ZipSTOP system or its set up, and that omission from his report was not detected by the respondent;
- The injuries sustained by Ms Spencer occurred not as a consequence of a wilful disregard for her safety, or the wanton absence of consideration of matters of safety, but the failure of the respondent’s honest endeavour to establish a safe system. Precautions had been put in place, and inspections undertaken, but they failed to prevent the failure of the rope, which had operated without issue for four months prior to the incident. The circumstances of the case do not fall at the cavalier or callous end of the spectrum of blameworthiness; the offence was the product of an honest oversight rather than the wilful disregard of a recognised hazard.
- The director of the respondent and his wife were distressed by the incident involving harm to Ms Spencer, and were remorseful. In particular following the incident specific remedial measures were taken. They include:
- The zip line in question was immediately decommissioned and rebuilt, with a slower ride profile. The ZipSTOP system was removed and a manual brake installed so the guides could more easily visually inspect the zip line components for wear and tear;
- In December 2018, new automatic brakes were purchased from a new manufacturer. This new system incorporates a redundant brake so that there is no possibility of failure. This is a world class leading system;
- Two specialist engineers came out from the United States of America to install the new braking components. The total cost for the new system will exceed $200,000;
- As the new brakes are incompatible with the current cabling, that is being replaced in order to ensure world class leading compliance;
- A comprehensive safety audit of the entire operation has been commissioned from an independent engineering firm at a further cost of $10,000;
- The respondent significantly amended its administrative systems. Equipment inspection cycles are now more precisely programmed and recorded through the use of a new software management system. Inspection and maintenance logs have been added to it since the incident. Modules addressing internal staff training have also been added. In October 2018 an equipment register was perfected, which tracks individual equipment items on the park. The software system is accessible by all staff at the park;
- Staff training has been improved, with emphasis on safety considerations and equipment maintenance. A senior manager is required to spend at least one day each week training staff in rescue and safety procedures. That training is logged and can be tracked to ensure ongoing recency.
- It was submitted that apart from the incident the respondent had an unblemished record. It employed over 100 staff since June 2013 and no employee had been injured in the course of their employment, and no WorkCover claim had been lodged in that time.
- It was submitted that the Treetop Challenge operated by the respondent was recognised as the best in adventure tourism through the Queensland Tourism Awards in 2017.
- It was submitted that the respondent cooperated fully with the investigation of the incident, and entered an early plea of guilty.
- The respondent in its written submissions referred to the comparable decisions relied on by the appellant and sought to distinguish them. It submitted that the appropriate range of penalty was between $15,000 to $25,000.
- The written submissions were expanded upon by counsel for the respondent in the court below.
The magistrate’s reasons
- The magistrate gave the following reasons:
“Look, I have had the opportunity to consider everything that has been placed before me. This is – I have a number of comparators and I will agree with Mr Farrell, who said that some of those are not, perhaps, altogether helpful in this particular instance. Certainly, there is no argument here that the defendant – the company has been very co-operative with this investigation. There has been a great degree of remorse shown by the operators. In respect of this particular incident – now, I have had the opportunity of going through the affidavit that’s been placed before the court by Mr Taylor setting out what steps had been taken by the installation of this particular zip line – the one that has brought the matter before the court today. And also what steps were taken immediately after the incident.
And certainly I would accept the submission where you consider that. And also the agreed outline of facts when you consider what is contained in there. I do not intend to go over and regurgitate everything contained in these documents. But when you consider the agreed outline of facts – that this is not an occasion where the operators were operating in a manner that was frivolous or deliberately reckless. Certainly, there had been steps taken to identify the risks. And there had been steps taken to minimise any risk. Now, the one – having said that, of course, the one matter which I did find of interest is a statement that is shown on page four of the complainant’s outline of submissions at the top, when referring to – as expressed by Lord Justice Clerk in Mitchell v North British Rubber Company:
‘When considering an item of plant that had operated absent guardian for a period of time prior to an incident occurring – ’
He said that:
‘Long immunity from accident may be due to good fortune or unusual skill and care on the part of the operatives or other causes and are quite compatible with a machine being dangerous all along. No encouragement should be given to the view that it is only after an accident has happened that a dangerous part of a machine should be fixed.’
Well, the one matter that is very much of concern here, of course, was that the – for reasons that had been explained and I’ll accept that that has been placed before the court – this is not a deliberate thing. It is something that has come about more by way of an oversight. It is the absence of the covering of the rope. Now, I also have, of course, before me information that the defendant or the operators had taken steps to have this particular line inspected by engineers and had expected that they would have inspected this part of machinery as well. I have taken note of that when considering what penalty should be imposed.
Now, to my mind, that is the most serious part of the breach. The other matter, of course, which I cannot overlook is that the injuries sustained are significant injuries. Now, Mr Farrell, in submissions, made reference to a number of persons being placed at risk in some of the cases mentioned – a particular one involved a grandstand – where my understanding is that is with this particular [indistinct] or ride, there’s really one person that’s being placed at risk where it’s being operated and so, realistically, the expectation would be that all steps would be taken to ensure that the [indistinct] person’s safety.
Now, the matters I have taken into account in considering penalty. I have also taken into account – of course, this matter is being dealt with by way of a plea of guilty and could be said to be – with the ways these matters operate – to be an early plea of guilty. As I have said from the outset I do accept that there is a great deal of remorse being shown here. There have been a number of steps taken, it would appear, with full intention of ensuring that something like this will not happen again and I do not intend to go over all those as I have a great deal of material here outlining just what has occurred and what steps have been taken. I refer, particularly, to the affidavit from Mr Taylor and none of it appears to be in any form of contest.
Now having now, having considered all of those matters and the comparators and, of course, the maximum penalty is a fine of up to one and a half million dollars or one million, five hundred thousand dollars. So the penalty provisions are very significant. I have – the complainant has suggested – have regard to the matters that have been outlined, a penalty in the range of $75,000 to $100,000 would be appropriate in all the circumstances, having regard to the matters that I have taken into account. Whereas Mr Farrell, on the other hand, having referred me to two cases that his matter relied on, has submitted that a penalty more in the range of $20,000 would be appropriate.
Now, I’ve taken note of all of those matters and, in my view, this matter is more serious than the two cases that Mr Farrell has been relying on. It’s more serious particularly for the reasons that I have taken the time just to refer to as regards the state of the rope, the injuries received and the – I – didn’t overlook that the manner of inspection that’s been placed before me was visual inspection and there’s no records of any inspection maintained. Of course, that is of concern. I understand now that, from what I have read, unless I misread it, that steps have been taken to correct that and to certainly ensure that that doesn’t happen again. But that, to my mind, would be in an inadequate way of dealing with this matter and, certainly was a risk matter as well.
And in all the circumstances, the defendant company will be convicted and fined $40,000 which will be – sorry. In order to pay those costs – these costs are agreed, as I understand it.”
Submissions of the Appellant
- At  of the appellant’s outline, the following was submitted:
“The graverman [sic] of the appellant’s complaint is that in the exercise of the sentencing discretion, the acting magistrate failed to appreciate or understand the nature of the matters of fact that constituted the breach of duty by the respondent. As a consequence the acting magistrate failed to evaluate the seriousness of the offending conduct and the extent of the respondent’s culpability for the incident, and thereby fell into error.”
- At , the appellant:
“Respectfully submitted that the reasons for the acting magistrate’s decision failed to demonstrate an appreciation of the nature and extent of how far the respondent’s conduct fell short of the obligations imposed upon it.”
- The appellant made the additional specific complaints:
- The acting magistrate erred in making no express reference to the codes of practice pursuant to s 275(3) of the Act, the respondent’s non-compliance with the codes of practice, and the acting magistrate failed to undertake any evidentiary evaluation of what the respondent knew or ought to have known for the purpose of determining what was reasonably practicable;
- The acting magistrate erred in failing to have regard in particular to the Managing Risks of Plant in the Workplace – Code of Practice 2011 which provides evidence of reasonable steps the duty holder could take;
- The acting magistrate failed to have any proper regard to the particularised failures set out in the complaint, specifically in respect to paras (8)(a)(i) and (8)(a)(ii). Consequently the acting magistrate failed to properly characterise the objective seriousness of the respondent’s conduct and breach of its duty;
- The acting magistrate was obliged to give consideration to the Penalties and Sentences Act 1992, and he appeared to have placed no regard to, nor given any consideration to the relevance or importance of general deterrence, or the denunciation of the respondent’s conduct, in exercising his sentencing discretion;
- The acting magistrate failed to provide any, or any adequate, reasons as to why the fine imposed, $40,000, was the appropriate penalty;
- The acting magistrate failed to have regard to the sentencing guidelines in s 9 Penalties and Sentences Act 1992.
- In the course of oral submissions, counsel for the appellant submitted that the learned magistrate simply failed to appreciate the full nature of the prosecution case, and the seriousness of the respondent’s offending. While there was evidence before the magistrate that staff members of the respondent were requested to visually inspect the lines each day, there was no evidence of any requirement that staff particularly look at the reduction line in accordance with the ZipSTOP installation, operation and maintenance manual, which required lines to be carefully inspected prior to use each day, as reduction lines would be subject to wear and abrasion. The manual also stated that the reduction line needed to be jacketed with some version of abrasion resistant temperature tolerant nylon to avoid possible degradation of the line due to friction.
- While it was conceded that the learned magistrate did not have to set out everything he had considered, it was submitted that the brief sentencing remarks were insufficient in all the circumstances. In particular it was submitted as follows:
“And that’s the vice in this – in these reasons, in my submission, that you can’t determine – from these and from reading these you can’t glean an appreciation by the magistrate of the objective seriousness of the offence and the nature of the offence. And the fact that it had been going on for so long because of the – sorry I withdraw that.”
- It was submitted that an even plainer error was the failure of the magistrate to consider and have regard to the guidelines in s 9 Penalties and Sentences Act 1992. Reference was made to the decision of Fantin DCJ in Steward v Mac Plant Pty Ltd & Mac Farms Pty Ltd  QDC 20. Reference was also made to Capral Aluminium Limited v WorkCover Authority of New South Wales  NSWIRComm 71.
- In respect of the seriousness of the offending, counsel for the appellant made the following submission:
“… for those reasons, the discretion is enlivened and having regard to the objective seriousness of it and having regard to the fact that it is a one and a half million dollar maximum penalty the defendant suffered – sorry, the victim suffered fairly severe injuries. It was not – it was not the case, as the magistrate says, that only one person could be injured although it is true that only one person at a time could be injured but it’s – it was a risk that was there for … any number of people could have been riding down that particular line one after the other. And particularly in circumstances where – in the cases I’ve – in the booklet referred to this also were general and specific deterrence and specifically is even more of a relevant consideration in circumstances where the failure to comply, the breach, is not easy for a person such as the victim in this case to detect. So that they’d been left to the mercy of the operators without any opportunity of really detecting this. And in those circumstances, there’s a greater need for general and specific deterrence. That’s a matter that ought to have been considered by the magistrate. The specific requirement for both – and that’s also in the denouncement part also, that – that is part of the general deterrence that is also not considered by the magistrate but is referred to in the submissions. And it wasn’t specifically addressed and specifically these were matters that – that it isn’t coming for the first time today. These are matters that were specifically set out in the complainant’s case and outline of submission that were before the magistrate.”
The respondent’s submissions
- The respondent submitted that a proper reading of the learned magistrate’s decision demonstrated, expressly or by necessary implication that he had turned his mind amongst other things to the following:
- the respondent’s non-compliance with the Manufacturer’s Manual in failing to install the abrasion resistant jacket on the rope;
- the inadequacy of the respondent’s inspection regime;
- the failure to assess the risks arising from the inspection regime;
- the magnitude of the risk involved;
- the degree of departure from the posited duty (i.e. blameworthiness);
- the harm done to the injured person;
- the maximum penalty available;
- the application of the provided comparatives to the facts before him;
- the respondent’s early guilty plea and remorse.
- In respect of the appellant’s complaint that there was a lack of express reference to “reasonably practicable control measures” set out in para 9 of the complaint, it was submitted that the “fatal problem” for the appellant was that each of those could be sensibly distilled to the “acts or omissions” constituting the offence identified by the learned magistrate, namely:
- (a)the failure to install the device in accordance with the manufacturer’s requirements; and
- (b)the failure to implement a documented system of inspection and maintenance.
It is observed that had the respondent not failed in either of those respects, there would not have been any relevant breach of the Act.
- In respect of the relevance of the Codes of Practice, it is submitted they are not the source of the duty that was breached. The relevant duty was the failure to minimise the risks so far as reasonably practicable, and the Codes of Practice were merely an evidentiary aid that a court may have regard to for the purpose of identifying what was known about the relevant risk, and the availability of reasonably practicable control measures.
- It is submitted that it was unnecessary for the magistrate to refer specifically to each of the detailed Codes of Practice, the Australian Standard and the ZipSTOP Manual. In particular, this was submitted:
“Accordingly, whilst he did not specifically refer to the codes of practice in his reasons, the learned magistrate was implicitly cognisant of the obligations arising thereunder. For example, he clearly considered the failure to install the friction jacket (installation in accordance with the manufacturer’s instructions) and the requirement to maintain a proper (and documented) inspection and maintenance regime. That neither code was expressly mentioned does not mean, therefore, that the quality of the breach was not apprehended by the court.”
Express references in the magistrate’s reasons to the maximum penalty, the matter in relation to blameworthiness, the harm suffered by the victim, and assistance in the investigation of matters of mitigation contradict the appellant’s submission that the magistrate failed to have regard to the sentencing guidelines in the Penalties and Sentences Act 1992. Similarly it was submitted that there was no basis to conclude that the learned magistrate did not appreciate the requirements of the Act.
- It was conceded that there was no express reference to the principle of general deterrence, but of itself that did not lead to the conclusion that it was not considered, especially where the penalty imposed was reasonable having regard to the comparable cases provided to the magistrate.
- The respondent sought to distinguish the four comparable cases relied on by the appellant, as set out between - of the submissions. In the course of oral submissions on the appeal, counsel for the respondent made the following submission:
“There are, of course, two features to the Crown’s case which was acknowledged by my learned friend. The covering of the rope or the friction resistant sheaf and the issue of inspection and I believe maintenance. And certainly, the requirements in respect of both are clear as – on the face of the manual. But significantly and relevantly here, both of those matters were clearly referred to by the learned sentencing magistrate. It is a danger, in my submission, to elevate the requirements for reasons to a specific formula or incantation where the omission of express references to sentencing considerations in so many words, renders the reasons inherently defective. And it – in my respectful submission, that is where my learned friend’s submissions take matters.
It is certainly true that the reasons should express the basis upon which the penalty was imposed. But there is a limit to which that requirement can be torn apart in a forensic, sort of fashion.”
- It was observed by counsel for the respondent that in fact workers at the respondent’s business were instructed to visually inspect the lines every day from where they could. Those checks however were not documented. Counsel for the respondent submitted that the sentencing proceedings did not proceed on the basis that there was in fact a failure to conduct daily inspections.
- I have considered all of the exhibits, in particular the photographs in Exhibit 3, the Codes of Practice, the Australian Standard for Amusement Rides and Devices and the ZipSTOP Manual.
- In respect of the Australian Standard, s 3.2 relevantly states as follows:
“(h) The movement of patrons and attendance on or within the device is adequately controlled to prevent the risk of collision or injury;
(n) All maintenance, replacements, repairs and inspections are carried out in accordance with section 5.”
- Section 4.9 deals specifically with “Flying Foxes”, which was submitted was the closest description of the zip line in question.
- Section 5.1 relevantly states as follows:
“All maintenance, replacements, repairs and inspections of amusement rides and devices, including discrete systems and components within them, shall be carried out by competent persons and shall be –
(a) Wherever possible, in accordance with the designer or manufacturer’s instructions;
(b) Fully documented; and
(c) Recorded in the log with a device or recorded and kept elsewhere for future reference (see also clause 5.5).”
- 5.5 of the Australian Standard states that:
“A permanent record of an amusement ride or device containing sufficient details to form a comprehensive history of the amusement ride or device shall be kept as a log. The log shall be a record that provides a history of ownership, inspection and operation for the ride or device. The log shall be available for inspection by regulatory authorities in accordance with appendix L.”
- The ZipSTOP Manual has a number of specific warning notices. At page 4, the important safety notice is accompanied by a heading in bold that “zip lining is a dangerous activity”. The notice commences by stating that:
“Failure by the installer or operator to heed any and all instructions, warnings and cautions for the correct installation, operation, care and maintenance of a ZipSTOP may result in serious injury or death.”
- Page 5 of the Manual has a table of the safety symbols used throughout the Manual. In respect of the reduction line the Manual states the following:
- The reduction line is required to connect the ZipSTOP brake unit to the brake trolley and will transfer the braking force from the brake unit. The reduction line passes through the reduction pulleys and must meet minimum specification. (a list of reduction line options is provided);
- Failure to utilise a reduction line of specified strength and quality can compromise ZipSTOP brake operation, resulting in equipment damage, serious injury or death;
- Accompanied by the appropriate warning symbol, any reduction line selected for use or wear must be replaced from time to time. Lines must be carefully inspected prior to use each day, and failure to do so may result in serious injury or death;
- Accompanied by the appropriate warning symbol, failure to utilise a reduction line of specified strength and quality can compromise ZipSTOP brake operation, resulting in equipment damage, serious injury or death;
- Accompanied by the appropriate warning symbol, any reduction line selected for use or wear must be replaced from time to time. Lines must be carefully inspected prior to use each day, and failure to do so may result in serious injury or death;
- The specified reduction line is always to be used. Failure to utilise a reduction line of specified strength and quality can compromise ZipSTOP brake operation, resulting in equipment damage, serious injury or death;
- Accompanied by the appropriate warning symbol, the reduction line will be subject to wear and abrasion. Any reduction line selected for use will wear and must be replaced from time to time. Lines must be carefully inspected prior to use each day, and failure to do so may result in serious injury or death;
- Accompanied by the appropriate warning symbol, the integrity of the reduction line is paramount of user safety. Failure of the reduction line may result in serious injury or death to the rider.
- Section 15.4 of the Manual mandates a regime of daily inspections. It states that the following inspection should be conducted on a daily basis:
- Visually inspect the ZipSTOP brake unit for damage, corrosion, and loose fittings and fasteners.
- Inspect the ZipSTOP brake unit mountain bracket and pins for damage and ensure that it remains secured correctly.
- Fully extend the braking line from the ZipSTOP brake unit. Check the line condition for damage or discoloration. If worn or damaged, replace with a new braking line assembly.
- Check that the braking line extension and retraction is smooth and maintains good resistance to extension throughout its range.
- Inspect the ZipSTOP brake trolley for damage, wear, and loose fittings and fasteners.
- Check the brake trolley bump stops are secure and free from damage or wear.
- Check the brake trolley operates smoothly throughout its operating range and that it correctly resets to the start of the arrest zone.
- Inspect the reduction line and pulleys for freedom of movement. Inspect overall condition of line, and ensure it is in a safe and serviceable condition. Replace if necessary.
- Check that all reduction line knots and terminations are secure. Check that all quick links and carabiner gates are locked and secure.
- Inspect all reduction pulleys are secure and ensure they are free from damage. Check that pulley wheels operate smoothly and without excessive play.
- Check that the reduction line operation is smooth and line is free from wear, damage, tangles and snagging from foreign objects. (emphasis added)
Relevant sections of the Act
- Section 19 is headed “Primary duty of care”. Relevantly, it states as follows:
“(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
(a) workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.”
- Section 21 is headed “Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces”. It states as follows:
“(1) In this section, person with management or control of fixtures, fittings or plant at a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, at a workplace, but does not include—
(a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or
(b) a prescribed person.
(2) The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person.”
- Section 32 bears the title “Failure to comply with health and safety duty—Category 2”. It states as follows—
“A person commits a Category 2 offence if:
(a) the person has a health and safety duty; and
(b) the person fails to comply with that duty; and
(c) the failure exposes an individual to a risk of death or serious injury or illness.
(a) For an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking— 1,500 penalty units; or
(b) For an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking— 3,000 penalty units; or
(c) For an offence committed by a body corporate— 15,000 penalty units.”
- Exhibit 4 before the learned magistrate contains a number of summaries prepared by Work Cover Queensland of sentences imposed in the Magistrates Court. In the prosecution of Leucaena Chop Pty Ltd, a mechanical “chopper” used to chop leucaena plants was being used by a short term casual employee. The chopper became bogged and the worker phoned the owner of the farm to assist with retrieval using the owner’s tractor. After an unsuccessful attempt using a chain, the use of “snatch straps” was employed to pull the chopper from the mud. Three attempts were made to remove the chopper from the bog. On the third attempt, the tow hitch connection to the chopper failed, causing the “snatch strap” to recoil with the tow hitch attached. It fired through the rear window of the truck to cabin, striking the farm owner in the back of his seat, throwing him forward. He was airlifted to Rockhampton Base Hospital, stabilised and then flown to Royal Brisbane Hospital and placed in an induced come for an extended period. He sustained severe orthopaedic and non-orthopaedic injuries resulting in a significant loss of function. His injuries included:
- Head injury with multiple facial and scalp lacerations;
- Cervical spinal injuries;
- Chest wall injuries with rib fractures bilaterally;
- Intraabdominal injuries;
- Multiple pelvic fractures;
- Multiple lumbar spinal injuries and fractures;
- A severe degloving injury involving the soft tissues of the right buttock; and
- An injury to the right sciatic nerve.
- Those injuries resulted in a combined total of eleven months in hospital and thirty-one surgeries as at the date of sentence. It was unlikely that he would ever walk again without the aid of a walking frame.
- The defendant company had duties under s 19(2) of the Act, and pleaded guilty to breaching s 32 of the Act. On sentence, the magistrate took into account that the defendant company had not been prosecuted previously for any work health and safety breach, cooperated with the investigation and entered an early plea of guilty. The appropriate starting point of a fine was $160,000, which was reduce to $104,000 having regard to mitigating factors.
- On 25 July 2017, Archerfield Kart Hire Pty Ltd was fined $100,000 for an incident where a fifteen year old girl sustained cuts and abrasions requiring significant surgery after she failed to slow a cart approaching a turn in the track, and collided with a tyre wall, being thrown forward from the cart. A report prepared by Workplace Health and Safety Queensland identified the tyre barrier at the location of the incident was ineffective in controlling deceleration of the cart during impact, and that higher than average forces were applied to the driver. The risk of injury due to impact that parts of the cart during collision was not controlled.
- The magistrate took into account that the defendant had a previous conviction less than two years before the incident in question. There was an early plea of guilty, the magistrate considered that general and specific deterrence were most relevant.
- The defendant Timevale Pty Ltd, identified by the number E211926, held duties under s 21(2) of the Act, being a company conducting a business or undertaking which involved operation of an amusement theme park. A car in an octopus ride in which two adult patrons were passengers disconnected from a small hub causing the car to come to a stop on the ride floor with both occupants secure inside. The car skidded approximately six metres before coming to rest. One of the patrons sustained a minor cut to the forehead.
- Due to inadequacies and maintenance, a number of fatigue failures existed within the arms attaching the cars. Neither the rides maintenance regime, nor the maintenance manual provided by the manufacturer, identified hazards caused by fatigue in screw joints, nor that the risk could be addressed by utilising predetermined service intervals.
- The learned magistrate having regard to the objective assessment of the seriousness of the offence and the theoretical exposure to risk, did not consider there were aggravating features. She considered that the appropriate penalty having regard to specific and general deterrence was at the lower end of the fine range. The defendant had invested in excess of $600,000 to put in place new systems including restructuring the tentacle services department, recruiting an internationally experienced rides engineer manager and other steps identified in the exhibit. A fine of $25,000 was imposed.
- In respect of the defendant Robnjosh Pty Ltd, identified as E228435, that defendant had duties under s 19(2) of the Act. It provided facilities for speedway events and the storage of scrap metal to sell in the form of car chassis and other recyclable metals, including a grandstand constructed from modular steel scaffold components.
- On 21 May 2016, approximately 500 paying spectators were attending a speedway event. A member of the public and his three children accessed the grandstand to view the race. About one hour after the family entered the grandstand, the platform the family was sitting on collapsed, with its components, including 20 steel scaffolding planks and cross pieces. The family fell about three metres. The father sustained a fracture, dislocation of his left ankle and dislocation and fracture to his left wrist. A child sustained fractures to his forearm and wrist which required surgery and the insertion of three pins. Two young children sustained minor bruises and scratches.
- The magistrate accepted that the defendant had implemented some controls to manage the risk after identifying severe corrosion of the scaffolding components, but also found that the defendant’s response was “somewhat glib”. The magistrate took into account financial statements demonstrating that the defendant was operating at a loss. A fine of $60,000 was imposed.
Assessment of objective seriousness
- In the course of oral submissions before me counsel for the appellant submitted that the magistrate failed to appreciate the objective seriousness of the offending conduct and failed to have regard to the elements that constituted the matters of fact that gave rise to the offence. A folder containing a significant number of cases was handed up to me at the commencement of the hearing. One of the cases in the folder is Bulga Underground Operations v Nash  NSWCCA 37. At  in the judgment of the court, reference was made to the following passage in R v KB; R v JL; R v RJB  NSWCCA 190, in the judgment of Bathurst CJ (with whom Buddin and Harrison JJ agreed):
“ As Howie J pointed out in Mirza v R  NSWCCA 248 at  the level of objective seriousness of a particular offence is a matter on which minds might differ. It is an assessment which is classically within the role of the sentencing judge. In Mulato v R  NSWCCA 282 Spigelman CJ stated the position as follows (at ):
‘Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour’
In that case Spigelman CJ found that the characterisation adopted by the sentencing judge was open, although he expressed hesitation in so finding.
 In the same case, Simpson J set out the position as follows at :
‘The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this court only on the principles stated in House v The King  HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.’
 …that is not to say that appellate courts should not intervene once they have reached a concluded view that the sentencing judge was in error in his or her assessment of the objective seriousness of the offence. However, the approach in Mulato supra, emphasises the need for caution in reaching such a view and the importance of paying due regard to the opinion of the sentencing judge.”
- Another case in the folder is AG (NSW) v DSF Constructions Pty Ltd  NSW CCA 33. That appeal was heard on 11 April 2018 and judgment handed down on 26 February 2019. It is important to note that that case was one of three cases heard at the same time, by the same court: Beazley P, Fullerton J and McCallum J (as she then was). The other two cases are AG (NSW) v MacMahon Mining Services Pty Ltd  NSWCCA 8 and AG (NSW) v Ceerose Pty Ltd  NSWCCA 35. All three cases were appeals brought significantly out of time by the Attorney General for New South Wales against fines imposed for a variety of breaches of the Work Health and Safety Act 2011 (NSW). In fact, two of the cases arise out of the same facts: Ceerose Pty Ltd engaged DSF Constructions Pty Ltd to install steelworks including a skylight structure at a construction site in Camperdown. Ceerose Pty Ltd was the principal contractor on the site. The incident occurred on 13 April 2013 when a worker was fatally injured when a steel skylight structure, weighing approximately 1 tonne, fell onto him from a height of approximately 11 metres.
- In DSF Constructions Pty Ltd, Beazley P said the following:
“ The question, therefore, is whether having regard to the principle that the assessment of the objective seriousness of the offence is ‘quintessentially’ a matter for the trial judge, his Honour’s assessment that the offending conduct was in the mid-range disclosed an appealable error.
 To merely say that an offence is of low, mid-range or high objective seriousness can obscure that those assessments are multi-layered, multi-factorial and nuanced. There is no bright line between them. It is also relevant, as Basten JA stated in Nash v Silvercity Drilling that the offence charged was a Category 2 offence and not the most serious Category 1 offence.
 The objective seriousness of the offence must be assessed having regard to all of the facts…”
- In that case, Beazley P, with whom McCallum J agreed, considered that the sentencing judge did not err in finding that the objective seriousness of the offence was in the mid-range. Fullerton J dissented.
- In McMahon Mining Services Pty Ltd, supra, McCallum J, who dissented in the overall outcome of the appeal, said the following in her judgment:
“ The appellant submitted that, in sentencing for offences under Work Health and Safety legislation, the objective seriousness of the offence is the primary consideration, citing the decision of the Victorian Court of Appeal in Orbit Drilling Pty Ltd v R  VSCA 82; (2012) 35 VR 399 at . With respect, any statement of principle which pre-empts the primacy of one factor over other factors relevant to sentence sits uncomfortably with the principles stated in Bugmy considered above and with the principles concerning the proper approach to sentencing stated in Markarian v The Queen (2005) 228 CLR 357;  HCA 25 at  (McHugh J) affirmed more recently in Muldrock v The Queen (2011) 244 CLR 120;  HCA 39 at . I would nonetheless accept, having regard to the object of the Work Health and Safety Act, that the objective seriousness of the offending will always be an important consideration in the sentencing task in such matters.
 For that purpose, however, it is not necessary to pinpoint objective seriousness at an exact point along a hypothetical line, for the reasons I explained in Yeung v R  NSWCCA 52 at  –  (Hoeben CJ at CL and Simpson JA agreeing ). The task is to undertake an evaluative assessment of the gravity of the offending so as to inform the task of determining an appropriate, proportionate sentence.”
- Further at  of her judgment, McCallum J said this:
“There is no discrete requirement to pronounce a precise quantification of the objective seriousness of the offence which expressly puts subjective features out of account; to impose such a requirement would be an invitation down the path of two stage reasoning.”
- In Ceerose Pty Ltd, supra, Fullerton J, with whom Beazley P agreed, said the following:
“ As to the grounds of appeal generally, the respondent advanced two principle submissions: First, that all appeal grounds, and the Attorney General’s submissions in support of them, were fundamentally flawed by inviting this court to substitute its judgment for that of the sentencing judge under the guise of seeking to persuade the court that specific error is revealed in the sentencing reasons or manifest adequacy in the result. Secondly, by inviting the court to undertake an arithmetical analysis of the penalty imposed for what the sentencing judge found to be mid-range offending by reference to a dollar figure, that is half of the maximum penalty, was to invite an approach which was contrary to the instinctive synthesis of all factors bearing upon the appointment of an appropriate penalty fundamental to the exercise of the sentencing discretion (see Markarian v The Queen (2005) 228 CLR 357;  HCA 25 per McHugh J). The respondent submitted that para 5 of the Attorney General’s submissions in reply exemplify that flawed approach:
‘The middle of the range for a Category 2 offence committed by a body corporate liable to have a maximum penalty of $1,500,000 imposed on it, is $500,000 - $1,000,000. Yet the starting point chosen by his Honour was beneath this range. Notwithstanding the respondent’s concession and the sentencing judge’s conclusion, his Honour determined that a fine of $400,000 was appropriate before applying a 25% discount for the respondent’s guilty plea…’
 It was further submitted that the oral submissions advanced by Mr Agius SC on the hearing of the appeal also revealed a distinct tendency to suggest that an arithmetical approach to the determination of the appropriate sentence was an available approach.
 To the extent that that criticism is well founded, I accept it reveals a flawed approach. Ultimately, however, that was not determinative of the appeal as the Attorney General’s submissions in support of grounds 1 and 3 were well founded.”
- McCallum J, who dissented on the outcome of the appeal, said the following:
“ On that premise, I am not persuaded that the sentence was manifestly inadequate. As Fullerton J has noted, the Attorney General’s submissions tended to suggest an arithmetic approach, post positing a mid-range penalty (adopting a linear algorithm) for a mid-range offence. Although Mr Agius disavowed that approach at his oral submissions, it is the premise that underlies much of what was put. In the passage from the written submissions set out in Fullerton J’s judgment, the Attorney General identified ‘the middle of the range for a Category 2 offence committed by a body corporate’ to be ‘$500,000 - $1,000,000’ and complained ‘yet the starting point chosen by his Honour was beneath this range’.
 As explained by Mr Jordan SC in his careful oral submissions, that approach is simply wrong, first, because it assumes a linear algorithm and secondly because it ignores the fact that the judge’s starting point of $400,000 (before application of the discount for the plea) reflected a position reached according to his Honour’s instinctive synthesis of all relevant factors including not only the objective seriousness of the offence but the subjective case.”
- On this last point, similar comments were made by his Honour Judge McGill SC in Reynolds v Orora Packaging Australia Pty Ltd  QDC 31, where his Honour said this in respect of the prosecution before the magistrate in that case relying on a document from a departmental website:
“ … The document does not identify what were found to be the circumstances of the offence in that case, and does not necessarily refer to all the circumstances relevant to assessing criminality, or all applicable mitigating circumstances. It does not distinguish between departmental submissions or interpretation and what was actually said by the magistrate. As such it was useless. It was improper for the appellant to have sought to rely on it before the magistrate, but given the very limited information about the relevant circumstances that it contained, I cannot believe that it had any real effect on the decision of the magistrate in the present case, so it may be treated as harmless. The fact that these two decisions involved different circumstances and a different offence, so that really the only common feature was the maximum penalty, means that they were matters upon which no real reliance should have been placed anyway.
 The fact that they were relied on really was of a piece with much of the submissions made to me, which turned on an excessively mathematical approach to the quantification of the fine. At one point the mathematical relationship between the fines imposed for various other offences and the maximum penalties for the particular offences was referred to. It has been said authoritatively several times that sentencing is not a mathematical exercise, and there is no particular reason why the mathematical relationship between the particular fine imposed and the maximum fine available in one or indeed half a dozen other cases should carry any particular significance, especially when those cases involved different offences with different elements, different features of objective seriousness, and different mitigating circumstance.”
- Due respect should be given to decisions of the New South Wales Court of Criminal Appeal, and indeed other appellate courts around the country, especially where the Act is part of a national scheme of uniform legislation concerned with furthering work safety. However, as his Honour Judge McGill SC observed in Orora Packaging Australia Pty Ltd, supra, the New South Wales sentencing legislation is different from the Penalties and Sentences Act 1992 in Queensland.
- In respect of a New South Wales Approach his Honour Judge McGill SC said this in Orora Packaging Australia Pty Ltd, supra:
“ Although the matter was not particularly developed in argument, I note that the decision in Nash v Silver City Drilling (NSW) Pty Ltd (2017) 93 NSWLR 338 included some discussion as to how the objective seriousness of the offence was to be assessed. That analysis was by reference to the particular offence then before the court, an offence against s 32 based on a breach of s 19 of the New South Wales Act. Basten JA at  said that broadly speaking the degree of culpability of the respondent may properly be assessed by reference to the risk against which steps falling within the definition of what is reasonably practicable are to be taken. This was said just after he had said that the objective seriousness of the offence was to be assessed in accordance with Part III of the Crimes (Sentencing Procedure) Act 1999 (NSW); reference was also made to s 21A, which has no Queensland analogy.
 It is not at all clear whether the idea of assessing culpability of the respondent by reference to the risk against which the respondent failed to do what was reasonably practicable, was based on that Act, but in any case that is at most an approach relevant to the assessment of the objective seriousness of an offence under that or an analogous provision in Queensland. The offence to which the respondent pleaded guilty was not under an analogous provision of the Queensland Act. Further his Honour went on to say at  that culpability will turn upon an overall evaluation of various factors, which may pull in different directions, and subsequently “that assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known”. These statements are inconsistent with the notion that the only factor of any importance in relation to assessing the objective seriousness of the offence is the magnitude of the risk which the defendant failed to take reasonably practicable steps to guard against. I note that his Honour also regarded the injury which was suffered as a result of the materialisation of the risk as being a relevant factor, in that case an important aggravating factor because of the seriousness of the injury, but distinguished between the risk and the injury which was the materialisation of the risk: .” (emphasis added)
Failure to refer to deterrence and other sentencing principles
- In R v Carr  NSWCCA 434, Howie J said this at :
“The Court should be slow to attribute error to a sentencing judge simply on the basis that the judge has failed to refer to a matter during the course of giving remarks on sentence. This is particularly so where the judge is as senior and experienced as the sentencing judge in the present matter. But there are occasions when the matter is of such importance to the exercise of the sentencing discretion that a failure to mention it at all is indicative of error, particularly where it is a matter that has been addressed by at least one of the parties. Further in this particular case the structure of the sentence is, as Mr Byrne has conceded, not in accord with the dictates of Pearce v The Queen, and current sentencing practice.”
- This statement was referred to in R v Nikolovska  NSWCCA 169 where Kirby J, with whom Beazley JA and Johnson J agreed, said relevantly as follows:
“ The Crown also drew attention to the failure of the sentencing judge to make any reference to the importance of general deterrence. He referred to personal deterrence (ROS ), to the potential for harm occasioned by drugs (ROS ) and the need to protect the community (ROS , ). Yet, in the context of an offence where general deterrence was of the upmost importance, he failed to make any reference to it.
 Counsel for the respondent acknowledged that his Honour had made no express reference to general deterrence (ROS ). She drew attention to his Honour’s reference to a number of cases and the context of the protection of the community (ROS ) where, in each case, there was a discussion of general deterrence. Further, general deterrence was such a fundamental sentencing principle that his Honour, as an experienced judge, can be assumed to have it in mind. Counsel drew attention to R v Carr  NSWCCA 434; (2002) 135 ACrimR 171…
 Here, I believe his Honour’s failure, in his sentencing remarks, to refer to general deterrence was an oversight. It is a fundamental sentencing principle. I accept that his Honour, as an experienced judge, was certainly conscious of it.”
- In Hammond v Ralley  QDC 263, his Honour Judge Smith considered that the failure of the sentencing magistrate to refer to the maximum and minimum penalties and the failure to refer to the offender’s otherwise good character constituted errors in the sentence, which required his Honour on appeal to resentence the appellant.
- In Steward v Mac Plant Pty Ltd and Mac Farms  QDC 20, her Honour Judge Fantin said the following:
“ Appeals under s 222 of the Justices Act 1886 by a complainant against sentence are rare. The approach which has been adopted in this court on the hearing of such an appeal, is that its approach should be the same as the approach of the Court of Appeal to the hearing of an appeal against sentence by the Attorney General.
 For an appeal by way of rehearing ‘the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.’
 The rehearing requires this court to conduct a real review of the evidence before it, and make up its own mind about the case.
 This court ought not interfere with a sentence unless it is manifestly excessive or inadequate, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.
 The High Court in Kentwell v R held:
‘In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.’”
- In Orora Packaging Australia Pty Ltd, supra, His Honour Judge McGill SC said this:
“ The appeal is under the Justices Act 1886, s 222, and is by way of rehearing on the evidence given before the magistrate: s 223. On an appeal by way of rehearing, it is necessary for me to consider the evidence and make up my own mind, particularly in relation to matters involving the drawing of inferences from primary facts, having due regard (where there has been a trial) to the advantages that the magistrate had in seeing and hearing the witnesses, and in being aware of the atmosphere of the trial generally. In the proceeding before me, the onus is on the appellant to show that there was some error in the decision under appeal. As this is an appeal against sentence, the principles in House v R (1936) 55 CLR 499 at 504–5 apply: it must appear that some error has been made in the exercise of the sentencing discretion.
 I considered the approach to an appeal against sentence by a complainant in Young v White  QDC 159. I concluded that before a judge would increase a sentence on appeal, it was necessary for the appellant to show that the sentence the subject of the appeal was the result of some legal, factual or discretionary error, then to show that an appropriate sentence in the circumstances was one which was more severe than the sentence in fact imposed, and finally to show that the discretion to vary the sentence initially imposed ought to be exercised in favour of the appellant. These principles were derived essentially from the decisions of the High Court in Lacey v Attorney-General (2011) 242 CLR 573 at –, and CMB v Attorney-General (NSW) (2015) 256 CLR 346, as applied by the Court of Appeal in R v Hopper, Ex-parte Attorney-General  2 Qd R 56 and R v Schenk, Ex-parte Attorney-General  QCA 131. My decision has subsequently been applied in this court.”
- In Gartner v Brennan  WASC 89, Pritchard J said this at :
“ Many cases have confirmed that magistrates are expected to undertake the work of that busy Court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Consequently, appeal courts should not scrutinise the reasons for decision given by magistrates with an eye keenly attuned to the identification of error, and errors should not be inferred from mere infelicities of language. The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached. The adequacy of a magistrate’s reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made but findings to be inferred from the findings expressly made, and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced).” (references omitted).
- These observations apply equally in Queensland: see Hickey v Chief Executive Officer of Customs; Hickey v Commissioner of Police  QDC 27 at ; Hurley v Commissioner of Queensland Police Service  QDC 297 at .
- In the course of submissions on the hearing of the appeal, counsel for the respondent submitted the following:
“There are, of course, two features to the crown’s case which was acknowledged by my learned friend. The covering of the rope or the friction resistant sheet and the issue of inspection and, I believe, maintenance. And certainly, the requirements in respect of both are care as – on the face of the manual. But significantly and relevantly here, both of those matters were clearly referred to by the learned sentencing magistrate. It is a danger, in my submission to elevate the requirements for reasons to a specific formula or incantation where the omission of express references to sentencing considerations in so many words, renders the reasons inherently defective. And it – in my respectful submission, that is where my learned friend’s submissions take matters.”
- Counsel for the respondent specifically referred to R v Doraho  QCA 29, where Chesterman JA at - said that the failure of an experienced sentencing judge to specifically mention a plea of guilty did not lead to the conclusion that the sentencing judge had not in fact taken that into account.
- The appellant in his submissions to the learned magistrate, Exhibit 2, made the following submissions:
“30. The essence of the defendant’s breach is that it failed to ensure persons were not put at risk by failing to:
(a) Implement an adequate inspection regime to identify hazards, in particular, the unacceptable wear in the reduction lines;
(b) follow the manufactures instructions regarding the use of rope jacketed with an abrasion resistant temperature tolerant nylon to avoid the hazard of degradation of the line due to friction.
31. It is submitted that the gravity of the defendant’s breaches magnify due to the nature of the activity being undertaken on the zip line, that is, persons (both workers and members of the public, including children) suspended at height from the zip line, secured by a harness, travelling at speed with no control over their movement.
- The learned magistrate in his reasons specifically referred to the absence of the covering of the reduction rope, the significant injuries sustained by the unfortunate victim, and the inadequacy of the inspection regime that had been put in place by the defendant. The magistrate specially referred to the agreed outline of facts, and it was open for him to conclude that the failures by the respondent were not deliberate, but were the result of an oversight. In particular, the learned magistrate referred to the evidence before him that the respondent had engaged engineers to inspect the line and, mistakenly, expected that the engineers would have considered the braking system and reduction line.
- The learned magistrate rightly took into account the significant cooperation of the respondent with the investigation, and the significant efforts made by the respondent since the incident in question to ensure that the zip line, including the braking system, was properly inspected and maintained. In my view the learned magistrate properly had regard to the objective seriousness of the offence.
- The outline of submissions of the appellant before the magistrate at  highlighted the sentencing guidelines set out in s 9 Penalties and Sentences Act 1992, and specifically referred to both general and specific deterrence, as well as denunciation. It is well established that deterrence, both general and specific, are critical factors for a sentencing court to consider when sentencing an offender for offences under this Act.
- It is critically important for a sentencing magistrate or judge to indicate that they have had regard to the relevant sentencing principles. On a busy sentencing day the repetition of such principles for each separate case may appear like the recitation of a litany or “incantation”, but it is important that reasons for sentence reveal that all relevant matters have been taken into account.
- In my opinion the failure by the learned magistrate to specifically refer to the sentencing principles in s 9 Penalties and Sentences Act 1992, and in particular to refer to the principle of deterrence, is a material error. In my view, this failure was not merely an oversight, and cannot be discounted on that basis, as it was in R v Nikolovska, supra. As a consequence, I have to consider whether to exercise my own discretion in substitution for the sentence imposed by the learned magistrate.
- In Reynolds v Orora Packaging Australia Pty Ltd, supra, his Honour Judge McGill SC said this at :
“It follows that in my opinion the magistrate in this respect made an error of law. This means that the first hurdle to a successful appeal has been crossed. The second hurdle however is to show that as a result the sentence imposed was too low.”
- As was submitted by the appellant in the court below, the activity of traversing the zip line was obviously dangerous. The zip line was at considerable height from the ground, and both workers and members of the public, including children, would travel at speed with no control over their movement, relying totally on the safe system provided by the zip line, in particular the braking mechanism.
- The ZipSTOP manual could not have been clearer. Strict compliance with the manual would have prevented the injuries being caused to Ms Spencer. Those injuries were significant, and as Exhibit 5 in the court below demonstrated, she suffered severe physical pain, and endured emotional and financial loss as a result of the incident.
- It is important to note that the actions of the respondent prior to the incident established that efforts were made to ensure that the ride was safe. It cannot be said that they were recklessly indifferent to the safety of persons on the particular zip line. As Exhibit 7 in the court below established, the following steps were taken:
- (a)Before the course was open to the public, a month of testing was done with members of the maintenance team present during testing. That included testing of all the braking mechanisms on the course;
- (b)In March 2016 a civil engineer was engaged to conduct an engineering inspection of the zip line course before it opened. Annual engineering inspections were scheduled for the zip line. It was the understanding of Mr Taylor that the engineer would assess the suitability of the zip line course for safe use. It was his fault that he did not check the report of the engineer and confirm that he had specifically inspected the ZipSTOP braking mechanism;
- (c)Quarterly inspections were scheduled for inspection of the zip line by Stephen Taylor;
- (d)Staff were trained that on every day, before members of the public began the course, the line was to be visually inspected by staff;
- (e)786 customers had completed the zip line course without any incident;
- (f)As a result of the incident, substantial changes were made to the zip line course; and
- (g)Immediately following the incident, the zip line in question was completely pulled down and a new ride profile selected that was significantly slower with a manual braking system installed. That allowed guides to complete a complete visual inspection of braking components before the days operations commenced.
- Further efforts made to ensure safety of users were set out in Exhibit 7, especially from -.
- The maximum penalty for a corporate defendant is $1,500,000, which clearly indicates the seriousness which parliament regards a breach of a health and safety duty for a Category 2 offence. This maximum penalty applies for a Category 2 offence regardless of whether the duty breached is under s 19 or s 21 of the Act. Relevantly, his Honour Judge McGill said this in Reynolds v Orora Packaging Australia Pty Ltd, supra, at :
“The maximum penalty is certainly a relevant factor, but there is no authority supporting an approach to sentencing which involves drawing some mathematical relationship between the maximum penalty and a comparison between the circumstances in the present case and the circumstances of a case sufficiently serious to justify the maximum penalty. Such an exercise would necessarily be quite artificial. There is in my opinion no validity in such criticism of the magistrate’s decision.”
- Earlier in his judgment, his Honour accepted that the Act was part of a national scheme of uniform legislation imposing duties in relation to safety, but observed that the Penalties and Sentences Act 1992 was “most definitely not uniform with the sentencing legislation in other states. Accordingly, decisions of other states in relation to sentencing practices will not necessarily be of much assistance to Queensland Courts.”
- In respect of the comparable cases relied on by the appellant, I consider that Leucaena Chop Pty Ltd is a more serious case than the instant one. An appropriate towing connection point, together with anti-recoil safety straps, were not used in an attempt to tow a bogged piece of equipment on a farm. On a third attempt to remove the bogged equipment the tow hitch connection failed, causing a snatch strap to recoil firing in through the rear window of the tractor cabin striking the injured person in the back of his seat throwing him forward. The injuries he sustained were catastrophic. He spent a combined total of eleven months in hospital, and at the time of sentence had thirty-one surgeries. It was unlikely that he would be able to walk again without the aid of a walking frame.
- Archerfield Kart Hire Pty Ltd can be distinguished because the defendant had a previous conviction under the Act. It is unclear what the precise injuries sustained by the 15 year old victim were in that case; the details of the case provided to the magistrate simply states that “she sustained cuts and abrasions requiring significant surgery”.
- In RobnJosh Pty Ltd, the defendant provided facilities for speedway events and the storage of scrap metal, including a grandstand constructed from modular steel scaffold components. A man and his three children accessed the grandstand to view a speedway event. The platform collapsed, and the family fell about three metres. The father sustained a fractured dislocation to the left ankle and perilunate dislocation and scaphoid fracture to the left wrist. A child sustained a fracture to the forearm and wrist which required surgery. Two other children sustained minor bruises and scratches.
- The sentencing magistrate found that the defendant’s response was “somewhat glib”, after acknowledging that there was nothing blocking the entrance to the grandstand nor was there any signage telling them not to sit in the grandstand. A walk by inspection by one of the defendant’s workers occurred when there were people already in the stand, and nothing was said to remove them from the stand. A fine of $60,000 was imposed.
- Two other cases referred to by the respondent are Timevale Pty Ltd (E211926) and Don’t Stop The Party Pty Ltd (E225536).
- In Timevale, two adults were passengers in an octopus ride, contained in a “car” which rotated in a vertical motion. The car disconnected from the small hub allowing it and the passengers to move uncontrolled from the ride. The car came to a stop on the ride floor with both patrons inside. One patron sustained a minor laceration to the forehead.
- Due to inadequacies in maintenance, a number of fatigue failures existed within the arms attaching the cars. Investigation carried out by Workplace Health and Safety Queensland revealed that neither the ride’s maintenance regime, nor the maintenance manual provided by the manufacturer, identified hazards caused by fatigue in screw joints, nor that the risk could be addressed by utilising predetermined service intervals. Annual inspection of machinery services reports were provided by an external provider. They were visual and did not descend into analysis of the condition of screws. Following the incident the defendant invested in excess of $600,000 in restructuring the technical services department, recruiting an internationally experienced rides engineer manager, major ride refurbishment and other steps detailed in the summary of the case before the magistrate.
- After weighing up parity, totality, community values and especially remorse and contrition, and the active post incident behaviour of the defendant, the magistrate imposed a fine of $25,000.
- In Don’t Stop The Party Pty Ltd, a three-year-old child was in an inflatable castle when it dislodged and became airborne and tumbled due to what was described as a “freak gust” of wind. The castle travelled about 50 metres; the child received minor injuries. The child was not at risk of being thrown from the castle as it had mesh sides and a padded ceiling.
- The magistrate in that case acknowledged that the defendant through its sole director had undertaken research, including researching the relevant Australian standard, with respect to those types of inflatable devices. There was no operations manual included at the time of purchase but the director of the defendant developed one based on his interpretation of the relevant Australian standard. The magistrate considered that the degree of culpability was at the lower end of the scale and the injuries were of little if any significance in determining penalty. The defendant had no previous work health and safety breaches and cooperated with the investigation, and made extensive efforts after the incident, including engaging an expert to determine how many anchors were required on the inflatable castle. A fine of $15,000 was imposed.
- It is difficult to discern any appreciable range of penalties from the comparable cases relied on by the parties, as well as the sentences considered by the District Court in Steward v Mac Plant and Mac Farms, supra, and Reynolds v Orora Packaging Australia Pty Ltd, supra. I am not satisfied that the appropriate range was $75,000 to $100,000 in the circumstances of this case.
- Fraser JA in R v Goodwin; ex parte Attorney-General  QCA 345 at :
“…Comparable sentences assist in understanding how those factors should be treated, but they are not determinative of the outcome and they do not set a “range” of permissible sentences. Whether or not a sentence is manifestly inadequate or manifestly excessive is not to be decided by reference to a predetermined range of available sentences but by reference to all of the factors relevant to sentence. Because sentencing involves a case-by-case synthesis in which past sentences may be used only as guidelines and are not determinative, there can be no underlying range of available sentences for a particular case which may be narrowed or broadened over time by subsequent sentencing decisions…”
- The power of a judge on an appeal under s 222 Justices Act 1886 are set out in s 225 of that Act. A judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.
- In my view, the need for general deterrence should have been reflected in a greater penalty than that imposed by the magistrate. The considerable mitigating features in the favour of the respondent of course need to be reflected in the overall sentence. Weighing up the competing factors, I consider that the appropriate penalty in the circumstances was a fine of $60,000. Having regard to the fact that this is akin to a Crown appeal against sentence, the sentence should be moderated to a fine of $50,000.
- The appeal is allowed. The order of the magistrate is varied by imposing a fine of $50,000. That fine is to be referred to the State Penalties and Enforcement Registry. Otherwise the orders of the magistrate remain.
- I will hear the parties on any further orders arising from this decision.
 The agreed statement of facts at  includes a diagram showing the braking system and the reduction line and how they were attached.
 R1-4 to R1-6 of Exhibit 1 on the appeal.
 R1-8 to R1-13 of Exhibit 1 in the appeal hearing.
 Mitchell v North British Rubber Co Ltd  SC(J) 69. The judge in that case was Lord Justice Clerk Cooper.
 ZipSTOP Manual, p 15, [9.4].
 Appeal hearing, r 1-14, l 20.
 Respondent’s submissions, -.
 Respondent’s submissions, .
 Respondent’s submissions, .
 Appeal hearing, R 1-30 to 1-31.
 Appeal hearing R 1-33, l 40.
 This warning on p 38 of the Manual is accompanied by a diagram of how the braking system with the reduction line should be attached.
  NSWCCA 96.
 (2013) 249 CLR 571.
 (1998) 194 CLR 610.
 (2014) 252 CLR 601, .
 R1-30; R1-31.
 House v The King (1936) 55 CLR at 504-505.
 In  of the respondent’s outline.
- Published Case Name:
Reynolds v Tailored Adventures Pty Ltd
- Shortened Case Name:
Reynolds v Tailored Adventures Pty Ltd
 QDC 150
21 Aug 2019