R v Cordwell[2023] QCA 26

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  I agree, substantially for the extensive reasons given by Bond JA, that each application for leave to appeal should be refused.  However, I wish to add that in my view it was open to the sentencing judge to impose a fine in Mr Cordwell’s case, rather than to impose a term of imprisonment albeit a wholly suspended one.  That said, the sentence which was imposed does not show that there must have been some error by the judge in the application of the relevant statutory provisions and sentencing principles.
2. [2]
   BOND JA:  Cordwell Resources Pty Ltd (the Company) and its director Brian Cordwell (Mr Cordwell) were separately sentenced for offending contrary to the Work Health and Safety Act 2011 (Qld), consequent upon a workplace incident in which one of the Company’s employees was seriously injured.  Each applies for leave to appeal against sentence.  For the following reasons each application must be refused.

The workplace incident

3. [3]
   The Company was established as a sand mining company at Chevallum on the Sunshine Coast in 1994.  It carried on business as a manufacturer and supplier of ready-mix concrete aggregate sands, drainage aggregates, road base and landscape products.  It supplied 90 per cent of the products which it extracted to a related company which conducted a concrete operation at Yandina.
4. [4]
   The Company was one of a number of family-owned companies.  At all relevant times it had six directors all of whom were members of the Cordwell family.  Mr Cordwell was appointed as a director on 12 May 1998.  At the time of the events related below, he was aged 53.
5. [5]
   Mr Cordwell managed the Company’s workplace at the sand mine in Chevallum.  He was in charge of the operations of the workplace and part of his duties involved the allocation of work activities to the Company’s employees.  He described his involvement in relation to the Company in this way:

“Our family has been in a family-owned and operated business since 1965. Cordwell Resources Pty Ltd is the sand mining company established in 1994, of which I am a director. I play a vital role in tasks including but not limited to employee management, developing the site, maintenance, and environmental issues. I am responsible for decision making and necessary changes as well as daily operations. My comprehensive knowledge of the requirements for land, structure development at the workplace is extensive. The business and extended family rely on me as a critical asset and decision-maker for managing these developments and legislation.”

6. [6]
   At the workplace, there was in place a sand wash plant and a number of dams.  The wash plant was in operations five days a week.  The company engaged a number of workers in those operations.
7. [7]
   On the afternoon of Friday 15 March 2019, a suction line pipe to the sand wash plant broke, causing sand and water to spray out of the valve on the pipe.  The problem was reported to Mr Cordwell who gave approval for the wash plant to be shut down.  He advised one of his employees that the problem would be fixed first thing on Monday morning, 18 March 2019.
8. [8]
   At 6.30 am on Monday, 18 March 2019, Mr Cordwell was at the workplace along with the following company employees:

   1. (a)
      Richard Armstrong (aged 69);
   2. (b)
      Steel Adams (aged 20) and his brother Quinlen Adams (aged 19); and
   3. (c)
      Mr Cordwell’s son, Jonathan (aged 18).
9. [9]
   Mr Cordwell directed the manner by which the valve on the suction line pipe would be fixed.  The procedure which he directed to occur involved the following steps:

   1. (a)
      Mr Armstrong would drive a front-end loader;
   2. (b)
      Steel and Quinlen Adams would stand in the bucket of the front-end loader which would then be lifted to the appropriate height to enable them to fix the valve; and
   3. (c)
      meanwhile, Jonathan Cordwell would be operating an excavator which, using a chain, would lift the pipe as Steel and Quinlen Adams worked on the valve.
10. [10]
    Having received the requisite instructions, Steel Adams drove the front-end loader into place and Jonathan Cordwell drove the excavator into place, parking it about four or five metres away from the front-end loader.  Steel and Quinlen Adams got into the bucket of the front-end loader with appropriate tools.  Mr Armstrong then got into the front-end loader with the Adams brothers in its bucket and lifted the bucket to an approximate height of 4.5 metres.  He then drove the front-end loader closer to the wash plant to allow them to work on the valve.
11. [11]
    During this operation, Steel Adams gave hand signals to Mr Cordwell as to how to position the loader and the bucket height and Mr Cordwell, who was standing nearby, relayed those signals and directions to Mr Armstrong operating the front-end loader.
12. [12]
    Jonathan Cordwell then operated the excavator boom with a chain attached towards the bucket of the front-end loader.  Steel Adams hooked the chain onto the pipe of the wash plant to stop it falling when it was disconnected.
13. [13]
    Once this had occurred, Mr Cordwell left the immediate location where the repair works were happening.  Instructions from the Adams brothers in the bucket were then relayed to Mr Armstrong by Quinlen Adams, who stood up and lent over the bucket so that Mr Armstrong could see him.  The actual repairs occurred when Steel Adams knelt on the edge of the bucket using the requisite power tools.  Quinlen Adams held onto him to ensure that he did not fall forward out of the bucket.
14. [14]
    Work progressed until the bucket of the front-end loader tilted forward.  The evidence did not explain what caused that to occur.  The sequelae of the tilt were that Quinlen Adams jumped from the bucket onto a metal cross beam in the wash plant to stop from falling from the bucket to the ground below but Steel Adams went to stand up in the bucket and the top edge of the bucket caught the back of his head against the chain which had been wrapped around the pipe.  He could not move his head forward and he could feel the bucket pushing against it.
15. [15]
    Both Steel and Quinlen Adams called on Mr Armstrong, the bucket stopped tilting forward and it released Steel Adams’ head.  The bucket was lowered to the ground and Steel Adams got out of the bucket and his brother jumped down to his aid.  He had incurred two severe lacerations to his head measuring 60 millimetres and 100 millimetres respectively.  He was transported to hospital and treated.  His victim impact statement recorded that a plastic surgeon inserted about 116 stitches to his forehead and the back of his head during the surgery, that he has scarring which attracts attention and that he has required psychological counselling because of the incident.
16. [16]
    Two days after the incident a scaffold was erected at the wash plant and the valve was fixed.  The cost of the scaffolding was $4,400.

The statutory framework

17. [17]
    The Work Health and Safety Act creates relevant statutory duties in relation to workers and creates offences for breach of those duties. 
18. [18]
    Section 3 lists the main objects of the Act.  Relevantly it provides:

3. “(1)
   The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by—

1. (a)
   protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from particular types of substances or plant; and

…

5. (e)
   securing compliance with this Act through effective and appropriate compliance and enforcement measures; and

…

8. (h)
   maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in Queensland.

3. (2)
   In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from particular types of substances or plant as is reasonably practicable.”

19. [19]
    Section 19 imposes a “health and safety duty” on persons conducting a business or undertaking to exercise a duty of care in relation to the health and safety of their workers in these terms:

3. “(1)
   A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

1. (a)
   workers engaged, or caused to be engaged by the person; and

2. (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.

…

3. (3)
   Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—

1. (a)
   the provision and maintenance of a work environment without risks to health and safety; and

2. (b)
   the provision and maintenance of safe plant and structures; and

3. (c)
   the provision and maintenance of safe systems of work; and

4. (d)
   the safe use, handling and storage of plant, structures and substances…”

20. [20]
    The content of the “health and safety duty” finds elaboration at least in ss 17 and 18 in these terms:

“17 Management of risks

A duty imposed on a person to ensure health and safety requires the person—

1. (a)
   to eliminate risks to health and safety, so far as is reasonably practicable; and

2. (b)
   if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

18 What is reasonably practicable in ensuring health and safety

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

1. (a)
   the likelihood of the hazard or the risk concerned occurring; and

2. (b)
   the degree of harm that might result from the hazard or the risk; and

3. (c)
   what the person concerned knows, or ought reasonably to know, about—

1. (i)
   the hazard or the risk; and

2. (ii)
   ways of eliminating or minimising the risk; and

4. (d)
   the availability and suitability of ways to eliminate or minimise the risk; and

5. (e)
   after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”

21. [21]
    Section 27 imposes a “health and safety duty” on an officer of a person conducting a business or undertaking, to exercise due diligence to ensure that the person complies with its duty of care to the workers.  “Due diligence” is defined in s 27(5) in this way:

“(5) In this section, due diligence includes taking reasonable steps—

1. (a)
   to acquire and keep up-to-date knowledge of work health and safety matters; and

2. (b)
   to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and

3. (c)
   to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and

4. (d)
   to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and

5. (e)
   to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and

Example—

For paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include—

• reporting notifiable incidents
• consulting with workers
• ensuring compliance with notices issued under this Act
• ensuring the provision of training and instruction to workers about work health and safety
• ensuring that health and safety representatives receive their entitlements to training.

6. (f)
   to verify the provision and use of the resources and processes mentioned in paragraphs (c) to (e).”

22. [22]
    Part 2, Division 5 of the Work Health and Safety Act creates three categories of offences which can be committed in the context of breach of a health and safety duty.  The categories differ according to the seriousness of the conduct involved and, correspondingly, the levels of maximum penalties prescribed.
23. [23]
    Section 31 provides that a person commits a “category 1” offence where –

    1. (a)
       the person has a health and safety duty;

    1. (a)
       the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and
    2. (b)
       the person is reckless as to the risk to an individual of death or serious injury or illness.
24. [24]
    Category 1 is the most serious type of offence.  The elements of the offence are the three matters identified in the previous three subparagraphs.  The maximum penalty for the offence if committed by a natural person offending as an officer of a company carrying on a business is a fine of $600,000^[1] or five years imprisonment.  The maximum penalty for a category 1 offence committed by a company is a fine of $3,000,000.  It is notable that the offence focusses on conduct causing exposure to risk not conduct causing a particular outcome.  The offence is committed where a person who is the subject of the duty recklessly exposes an individual to whom the duty is owed to the risk of death or serious injury or illness, whether or not death or serious injury or illness actually results from that reckless exposure.
25. [25]
    Section 32 provides that a person commits a “category 2” offence where –

    1. (a)
       the person has a health and safety duty;
    2. (b)
       the person fails to comply with that duty; and

    3. (c)
       the failure exposes an individual to a risk of death or serious injury or illness.
26. [26]
    Category 2 is the next most serious type of offence.  The elements of the offence are the three matters identified in the previous three subparagraphs.  One notable difference is the absence of the element of recklessness.^[2]  Correspondingly, the levels of penalty are less severe.  The maximum penalty for a category 2 offence committed by a natural person offending as an officer of a company carrying on a business is a fine of $300,000.  The maximum penalty for a category 2 offence committed by a company is a fine of $1,500,000.  Again, the offence is focussed on conduct causing exposure to risk not conduct causing a particular outcome.
27. [27]
    Section 33 provides that a person commits a “category 3” offence where –

    1. (a)
       the person has a health and safety duty; and
    2. (b)
       the person fails to comply with that duty.
28. [28]
    Category 3 offences involve simple breaches of the health and safety duty.  The maximum penalty for a category 3 offence committed by a natural person offending as an officer of a company carrying on a business is a fine of $100,000.  The maximum penalty for a category 3 offence committed by a company is a fine of $500,000.

Conviction, sentence and application for leave to appeal

29. [29]
    The incident which occurred at the Company’s workplace was reported to Workplace Health and Safety Queensland (WHSQ) on the day it occurred.  The company and Mr Cordwell declined to participate in voluntary interviews with WHSQ.  However, the Company cooperated with the investigation by providing documents in response to notices issued requiring it so to do.  The documents so produced included:

    1. (a)
       A document entitled “work at heights risk assessment & access permit” dated 2 April 2016 signed by Mr Cordwell on 1 June 2016.

    1. (b)
       A document entitled “procedure for working at heights” dated 2 April 2017 which outlined the process for maintenance work performed at height including the blockage of pipes, small welding jobs and repair or maintenance of equipment.  It outlined that a safety harness was required as Personal Protective Equipment and that a cherry picker, scaffolding or tools must be used as required.

    2. (c)
       A document entitled “plant risk assessment form” for “front end loader” dated 23 February 2019 which identified the operation of the plant posed a hazard of being “crushed” and the control measure for this risk “no persons are to ride on the plant or attachments.”
    3. (d)
       A document entitled “hazard management procedure” dated 18 July 2016 which provided steps in hazard management being (1) identify hazards (2) assess risks (3) decide on control measures (4) implement control measures and (5) monitor and review.
30. [30]
    After an investigation, WHSQ caused Mr Cordwell and the Company to be charged with category 1 offences in August 2020.  The charges were committed for trial and indictment was presented on 20 May 2021.  It was later listed for sentence without ever having been listed for trial.
31. [31]
    On 8 October 2021, Mr Cordwell was convicted on his plea of guilty on the sole count of the indictment which he faced, namely:

“On or about the eighteenth day of March 2019 at Chevallum in the State of Queensland, BRIAN ANDREW CORDWELL had a health and safety duty under section 27 of the Work Health and Safety Act 2011 and, without reasonable excuse, engaged in conduct, namely failed to exercise due diligence to ensure Cordwell Resources Pty Ltd complied with its duty under section 19(1) of the said Act, that exposed an individual, to whom that duty was owed, to a risk of death or serious injury or illness, and was reckless as to the risk to an individual of death or serious injury or illness.”

32. [32]
    On 8 October 2021, the Company was also convicted on its own plea of guilty on the sole count of the indictment which it faced, namely:

“On or about the eighteenth day of March 2019 at Chevallum in the State of Queensland, CORDWELL RESOURCES PTY LTD had a health and safety duty under section 19(1) of the Work Health and Safety Act 2011 and, without reasonable excuse, engaged in conduct that exposed an individual, to whom that duty was owed, to a risk of death or serious injury or illness, and was reckless as to the risk to an individual of death or serious injury or illness.”

33. [33]
    Sentencing submissions proceeded on 21 September 2021.  The Crown submitted that the gravity of the offending was high and the respective failures to comply with the legislated work health and safety duties were gross.  The Crown submitted that the appropriate sentence in respect of Mr Cordwell was 12 to 15 months imprisonment with 4 to 5 months to be served in actual custody and the appropriate sentence in respect of the company was a fine in the range of $650,000 to $750,000.  For their part the appellants submitted that the appropriate sentences were fines in the vicinity of $40,000 to $60,000 for Mr Cordwell and $250,000 to $300,000 for the Company.  Alternatively, in respect of Mr Cordwell, the submission was advanced that if the Court concluded that a fine did not represent an adequate penalty a wholly suspended sentence of between 4 to 6 months was appropriate.
34. [34]
    On 8 October 2021, Mr Cordwell was convicted and sentenced to six months’ imprisonment suspended immediately for an operational period of 12 months and the company was convicted and sentenced to pay a fine of $500,000.
35. [35]
    His Honour identified the considerations which he brought to bear in imposing those sentences in these remarks:

“Accordingly then and in the relevant application of section 9(3) and the remaining provisions of section 9(2), and in order to address the purposes of sentencing as set out in section 9(1) of the Penalties and Sentences Act, the following competing considerations are to be balanced.

It is to be accepted that the offending conduct was serious. The risk presented to the young workers in the bucket of the wheel loader was high and whilst, as has been noted, there is necessity to have regard to the emotional and physical harm done, it is fortunate for all concerned that it was not more extensive.

An appropriate methodology to eliminate or minimise the obvious risks involved, might have been adopted in accordance with documented policies without any disproportionate or prohibitive cost or disruption. The reckless disregard of the risks involved was not only without reasonable excuse but undertaken as a matter of unacceptable expediency and with a degree of planning and with ample room for reflection, rather than upon the spur of the moment.

It is particularly necessary that there be sentences imposed for each defendant which not only serve to denounce such serious conduct but which also serve to deter repetition, including in respect of others with obligations pursuant to the Work Health and Safety Act. However, there is also the need to have regard and taken into account the cooperation and facilitation of the processes involved before the Court, as involved in the acceptance of guilt by guilty pleas and by provision of documentary materials in the course of the investigation of the matter. It is to be accepted that there is an element of sincere regret for what you did here, Brian Cordwell and for the outcome of that conduct.

That is also to be viewed in the context of the material placed before the Court as support for your standing in the community and past dedication, particularly to the sport or activity of motocross and what is observed as to your demonstration of many years of a particularly safety conscious approach to your involvement in that activity. Neither you nor the Company has any prior convictions under the Work Health and Safety Act or otherwise and it may be accepted that your offending, Brian Cordwell in particular, was uncharacteristic. Similarly it may be accepted that the corporate defendant has in the past been a positive contributor to the community as a donor, sponsor and in providing flood relief, particularly in relation to providing equipment and assistance.

In your case Mr Cordwell, account is to be taken of your more recent health difficulties and your current management of those in respect of the prospect of further strokes. But as I do not accept the prosecution contention that your sentence should include an actual custodial component, there is no need to dwell further on such considerations.

In each instance, it can be observed that those considerations in section 9(3), which are directed at future protection of any member of the community, or future risk of physical harm and the safety of any members of the community, to the limited extent that they may be engaged here, are addressed by a sentence having appropriate denunciatory and deterrent effect.

I have had regard to the guidance which may be obtained from the other cases to which reference has been made. Whilst this includes cases decided interstate and in respect of legislation which is now part of a national scheme, it is to be observed that there remains a need to be astute to the reflection of any different local sentencing laws and practices. However, the identified limitation in having particularly close regard to those decisions is in the differing circumstances, including different offences and instances where resultant harm involved a death.”

36. [36]
    In relation to the sentence imposed on Mr Cordwell the sentencing judge remarked that he thought it was particularly necessary not only to denounce the particular culpability of the extent of reckless disregard for the risks involved in what Mr Cordwell directed to be done in this instance, but also to achieve a sense of general deterrence in respect of the Court’s response.
37. [37]
    In relation to the sentence imposed on the Company, the sentencing judge remarked:

“As I have noted, the available maximum is a fine of $3 million. Pursuant to section 48 of the Penalties and Sentences Act, regard is required to the financial circumstances of the offender and the nature of the burden in the payment of the imposed fine as far as that is practicable. Here there has been some, but only broadly expressed, aspects of the company’s financial circumstances and resources placed before the Court. That includes some broadly expressed views of the company’s accountant. In instances such as this, where the only available penalty is a fine, the burden that is to be placed on the offender must also meet the purposes of denouncing the offending conduct and particularly the requirement of deterrent effect, which has been identified as important here. It was conceded that even a fine at the level contended by the prosecutor was within the capacity of the company. However, and just as I have determined that the prosecution submission as to the penalty for Brian Cordwell was pitched beyond an appropriate response, the sentence for the company is that it is fined the sum of $500,000.”

38. [38]
    Mr Cordwell seeks leave to advance three grounds of appeal as follows:

    1. (a)
       in determining the punishment for the offence the sentencing judge erred in taking into account his conduct in relation to an offence committed by another defendant (namely the Company);

    1. (b)
       the sentencing judge erred in taking into account and according significance to previous occasions when workers had undertaken work from the bucket of an excavator or wheel loader; and

    2. (c)
       the sentence imposed was manifestly excessive.
39. [39]
    The two grounds of appeal which the Company seeks leave to advance are the same as the second and third grounds sought to be advanced by Mr Cordwell.
40. [40]
    It is appropriate first to deal with the ground which is raised solely by Mr Cordwell.  Then it will be appropriate to deal with the grounds which are common between Mr Cordwell and the Company.

Appeal ground 1: Mr Cordwell only

41. [41]
    Mr Cordwell contended that the sentencing judge erred by taking into account his conduct in relation to an offence committed by the Company, effectively in addition to his own offending conduct.  Mr Cordwell submitted that he had only committed the offence to which he had pleaded guilty to and was entitled to have only it taken into account in the determination of penalty.
42. [42]
    The sentencing remarks which were said to justify this contention were:

    1. (a)
       from p 2 of the sentencing remarks:

“In your case Brian Andrew Cordwell, the gravamen of your offending is that you, without reasonable excuse, engaged in conduct that exposed individuals to whom a duty was owed, to a risk of death or serious injury and that you were reckless as to the risk to an individual of death or serious injury. The maximum penalty for the offence committed by you as an individual and as an officer of the company, is a fine of $600,00 of five years imprisonment.”

1. (b)
   from pp 4 and 5 of the sentencing remarks:

“In terms then of particularising the offences, against the company in the first instance, it is in these terms: The company held a duty pursuant to section 19(1) of the Work Health and Safety Act, to ensure so far as us reasonably practicable the health and safety of workers it engaged and whose activities in carrying out work are influenced or directed by it while the workers are at work in the business. Secondly, without reasonable excuse, the company engaged in conduct, namely, directing or permitting workers, [Steel] and Quinlan Adams, to stand on the bucket of an operational wheel loader as an elevated work platform to perform repair work at height at the workplace. Thirdly, the conduct engaged in by the company exposed those workers, to whom it owed a health and safety duty, to a risk of death or serious injury. And fourthly, that the Company was reckless as to the risk of death or serious injury to those workers because it was aware of the risk of death or serious injury arising from the workers’ use of the wheel loader as an elevated work platform and regardless of that known risk, directed or permitted the workers to perform the work in that manner.

As I have noted, that offence is effectively committed by your conduct Brian Cordwell, and in addition, it is particularised that Brian Andrew Cordwell held a duty as a director of Cordwell Resources Pty Ltd pursuant to section 27 of the Work Health and Safety Act, to exercise due diligence to ensure that the Company complies with its duty pursuant to section 19(1) of the Work Health and Safety Act. And that, without reasonable excuse, you engaged in conduct, namely directing or permitting those workers to stand on the bucket of an operational wheel loader as an elevated work platform to perform repair work at height at the workplace, with the consequences as I have already noted, of the exposure to the risk of death or serious harm and the necessary element of recklessness in relation to disregard of that risk.”

43. [43]
    There is no merit in this proposed appeal ground.  A company may only engage in conduct by the conduct of a natural person.  The sentencing remarks were merely making that point in an unremarkable way.  Mr Cordwell’s failure to exercise due diligence was not in the indirect sense identified in the exemplars set out in s 27(5), but in the direct sense that he actually orchestrated the occurrence of events which exposed the workers to the relevant risk.  There was no sense in which anything other than his own offending conduct was taken into account by the sentencing judge.

Appeal ground 2: Mr Cordwell and the Company

44. [44]
    Sentencing had proceeded by reference to an agreed statement of facts.  Amongst other things that agreed statement had recorded:

“46. In the course of the investigation, evidence was obtained that:

1. (a)
   In September 2015 Cordwell Resources director Peter Cordwell had fallen 3 metres from an unsecured ladder after using it to access the valve or indicator on the sand wash plant at the workplace;

2. (b)
   In December 2018 Cordwell Resources implemented scaffolding at their concrete site at Yandina for workers to use to put up a new pipe between silos; and

3. (c)
   Steel Adams, Quinlen Adams and Jonathon Cordwell had performed work from the bucket of an excavator or a wheel loader on other occasions at the workplace.”

45. [45]
    The Crown’s written submissions before the sentencing judge had, amongst other things, drawn attention to the matters referred to at [46](a) and (b) of the statement of facts in these terms:

“The defendants, through their pleas of guilty, accept they knew of the risk to the safety of the workers but consciously disregarded that risk. The knowledge is evident from the existence of the [safety documents identified during the investigation and referred to at [29] above]. Additionally, there had been a previous fall from height incident at the workplace In September 2015, where a director fell 3 metres through use of an unsecured ladder. In December 2018, Cordwell Resources Implemented the use of scaffolding at another workplace, a concrete site at Yandina, for workers to put up a new pipe between the silos demonstrating they knew of the appropriate working platform for working at height.”

46. [46]
    The defendants’ written submissions before the sentencing judge relevantly pointed out that neither Mr Cordwell nor the Company had any prior Work Health and Safety convictions.  Further, the following submission was advanced at [8](c) (emphasis added):

“While there have been some incidents of concern in the workplace in the past, it is not the case that the defendants have engaged in conduct that reflects a 'culture of complacency' and/or a culture of inadequate attention to safety.  The defendants have a high regard for the safety of their workers and expend considerable resources on safety equipment, training and procedures.  The offending conduct is out of character.”

47. [47]
    In addition, during the sentencing hearing the defendants tendered a letter from Mr Cordwell which expressed remorse for his conduct.  Amongst other observations, the letter observed (emphasis added):

“I reflect on why we are here, as I constantly remember the accident that occurred on 18/03/2019. There is not a day that goes by that I am not reminded of it, that I am not thinking of and applying safety measures. I made a poor decision that I deeply regret every day, and I apologize for putting two employees under my supervision in harm’s way. I usually am extremely safety conscious within the workplace. An error in my judgment led these two employees to be involved in a truly terrible accident that affected their lives. It was a horrible experience for me personally to see them injured. A shortcut was taken, and a spur of the moment decision caused this accident. Something like this has never happened before, nor will it happen again. I deeply regret that the accident occurred, and I wish I could take it all back. I understand that I acted recklessly and that the activities involved this day had extremely high risks.

I take the time to prioritize safety measures in all operations and look for ways to improve the workplace. This has always been the way I operate.

…

Again, I regret putting the boys into a dangerous situation. I regret that Steel was injured, and this was totally uncharacteristic of me as one of my biggest concerns is safety, whether it be work or play.”

48. [48]
    During oral submissions before the sentencing judge counsel for the Crown:

    1. (a)
       clarified the purpose for reliance on the reference in paragraph [46](c) of the statement of facts to previous occasions in which the workers had worked from the bucket of an excavator or a wheel loader at the workplace by stating:

“Your Honour, that’s placed in the statement of facts to circumvent any submission which may be made that this was an isolated incident, that the defendants otherwise had a high regard for safety of its workers. That submission is not accepted.”

2. (b)
   recapitulated the point made in written submissions and quoted at [45] above;
3. (c)
   adverted to Mr Cordwell’s letter and to his expressions of regret, submitting (emphasis added):

“The expressions he uses in that letter seems to demonstrate a lack of understanding in relation to the seriousness of his conduct, references to it being an accident or an error in judgment as opposed to a deliberate decision he made to put these workers at risk knowing that they would be at risk through his conduct, and as indicated earlier in my submissions, it’s not accepted that there was otherwise safe – he was otherwise safety conscious. The investigation revealed, as detailed in the statement of facts, there were other incidences of plant being used inappropriately.”

49. [49]
    During oral submissions before the sentencing judge, Counsel for the defendants referred to the statement in Mr Cordwell’s letter recorded at the conclusion of the quote at [47] above and conceded that the Court would not conclude that it was uncharacteristic of Mr Cordwell “because of some of the discoveries that were made during the investigation”.  He referred specifically to paragraph [46](c) of the agreed statement of facts, characterising that evidence as an example of risky behaviour in the past.  He submitted that he had been instructed that any other occasions when those workers performed work from the bucket of an excavator or a wheel loader were few in number, not related to the same type of work as the offending conduct and were not at the same height as the offending conduct.  Counsel later recapitulated the submission made in writing and recorded at [46] above.  In the course of so doing he made further reference to the matters referred to paragraph [47](c) of the agreed statement of facts, describing them as “isolated incidences”, but specifically repeated the proposition that the defendants had a high regard for the safety of their employees and that the offending conduct was “out of character”.
50. [50]
    Three points may be made.  First, the last-mentioned submission on behalf of the defendants was a repetition of the very two points which counsel for the Crown had said were not accepted by the Crown.  Second, the repetition of the submission that the offending conduct was “out of character” for the defendants was a substantive withdrawal of the concession which he had previously made concerning Mr Cordwell’s letter.  Third, it would follow that the evidence identified at paragraph [46](c) of the agreed statement of facts was specifically relevant to the question whether to accept the submission by counsel for the defendants, which was not accepted by the Crown, that the defendants had a high regard for the safety of their employees and that the offending conduct was “out of character” for them.  Similarly, the evidence was relevant to the question whether to accept at face value the similar propositions advanced in Mr Cordwell’s letter.
51. [51]
    In his sentencing remarks the sentencing judge noted the contents of the documents referred to at [29] above and stated that they were “of some significance”.  He then observed that it was “of further significance” that in the course of the investigation it had been noted that there had been other occasions when those workers performed work from the bucket of an excavator or a wheel loader.  He made that observation by way of contract with the safety procedures recorded in the documents he had mentioned.  Later and notwithstanding those remarks he found that the offending of Mr Cordwell could be regarded as “uncharacteristic”.  It was apparent, therefore, that the sentencing judge had resolved the significance of the evidence in the manner suggested by counsel for the defendants.
52. [52]
    The applicants argued before this court that by treating the facts recorded in paragraph [46](c) as “of further significance” the sentencing judge must have taken irrelevant considerations into account.  The gravamen of the submission was that the sentencing judge must have taken into account the uncharged acts and used that material adversely to the applicants.
53. [53]
    I reject this submission.  As I have indicated, his Honour must have been prepared to regard the evidence as identifying isolated incidences which would not prevent his accepting the conclusion that the offending was “uncharacteristic”.  There is no justification to conclude that the sentencing judge took the material into account in any other way.  It follows that it could not be concluded that the sentencing judge used the evidence of previous apparent safety infractions adversely to the applicants.
54. [54]
    There is no merit in this proposed ground of appeal.

Appeal ground 3: Mr Cordwell and the Company

55. [55]
    The submission advanced on behalf of each of the applicants was that the sentences imposed were manifestly excessive.
56. [56]
    Consistency in sentencing is an important goal in sentencing, but the consistency which is sought is consistency in the application of the relevant legal principles.  Appellate intervention on the ground of manifest excessiveness is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.^[3]
57. [57]
    Examination of sentences which have been imposed in comparable cases may provide a relevant yardstick by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles but the requirement to have regard to the sentences imposed in comparable cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather the range of sentences imposed in the past may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle.^[4]
58. [58]
    What were the principles governing the exercise of the sentencing discretion in the present cases?
59. [59]
    Of course, the provisions of the Penalties and Sentences Act 1992 (Qld) apply.
60. [60]
    Section 9(1) of that Act provides:

“The only purposes for which sentences may be imposed on an offender are—

1. (a)
   to punish the offender to an extent or in a way that is just in all the circumstances; or

2. (b)
   to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or

3. (c)
   to deter the offender or other persons from committing the same or a similar offence; or

4. (d)
   to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or

5. (e)
   to protect the Queensland community from the offender; or

6. (f)
   a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).”

61. [61]
    The sentencing judge concluded that ss 9(2A) & (3) of the Penalties and Sentences Act applied to the offending as a result of the injuries to Steel Adams.  No challenge was advanced to this conclusion.  But although that meant that the s 9(2)(a) consideration (namely prison is a last resort and a sentence which allows the offender to stay in the community is preferable) did not apply, the remaining provisions of s 9(2) did apply.  Of those considerations, the following were significant:

3. “(b)
   the maximum and any minimum penalty prescribed for the offence; and

3. (c)
   the nature of the offence and how serious the offence was, including … any physical, mental or emotional harm done to a victim …; and

4. (d)
   the extent to which the offender is to blame for the offence; and

5. (e)
   any damage, injury or loss caused by the offender; and

6. (f)
   the offender’s character, age and intellectual capacity; and

7. (g)
   the presence of any aggravating or mitigating factor concerning the offender; and

…

8. (h)
   the prevalence of the offence; and

1. (i)
   how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences; and

…

8. (q)
   anything else prescribed by this Act to which the court must have regard; and

8. (r)
   any other relevant circumstance.”

62. [62]
    Because s 9(2A) was engaged, the sentencing judge was required to have regard primarily to the factors listed in s 9(3), namely:

2. “(a)
   the risk of physical harm to any members of the community if a custodial sentence were not imposed;

2. (b)
   the need to protect any members of the community from that risk;

3. (c)
   the personal circumstances of any victim of the offence;

4. (d)
   the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;

5. (e)
   the nature or extent of the violence used, or intended to be used, in the commission of the offence;

6. (f)
   any disregard by the offender for the interests of public safety;

7. (g)
   the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;

8. (h)
   the antecedents, age and character of the offender;

1. (i)
   any remorse or lack of remorse of the offender;

10. (j)
    any medical, psychiatric, prison or other relevant report in relation to the offender;

10. (k)
    anything else about the safety of members of the community that the sentencing court considers relevant.”

63. [63]
    Some features of the Work Health and Safety Act itself are of obvious significance to the offending in the present case.
64. [64]
    First, the relevant duties are imposed and offences created in the context of a national legislative scheme.  One goal of the Work Health and Safety Act is to provide for a balanced and nationally consistent framework.
65. [65]
    Second, the express goals stated in s 3 of the Work Health and Safety Act strongly suggest that general and specific deterrence are to be regarded as particularly relevant considerations.
66. [66]
    Third, the Work Health and Safety Act creates three categories of offences which can be committed by a person in the context of breach of a health and safety duty.  Regard must be had to the differentials between the applicable maximum sentences as indicative of the seriousness of the offending concerned.
67. [67]
    Fourth, the focus of category 1 and category 2 offences is on the exposure of individuals to a particular type of risk not on the causation of a particular type of outcome.  The offences are committed where the offender exposes an individual to the risk of death or serious injury or illness, whether or not death or serious injury or illness has actually resulted from that exposure.  For sentencing purposes, the objective seriousness of the risk to which the offender’s conduct has exposed the individual is significant.  The extent to which there has been a departure from what would have been reasonable conduct by the offender must also be significant.
68. [68]
    Fifth, further to the previous point, and as the sentencing judge specifically recognised, whilst the fact that harm has actually resulted is not an element of the offence, it cannot to be ignored.  Section 9(2)(c) of the Penalties and Sentences Act requires that consideration be given to the harm to any person arising from the offending.  The extent of actual harm would be an aggravating feature for sentencing purposes.
69. [69]
    Sixth, although Category 1 and Category 2 offending share the element that the offender must have engaged in conduct that exposed an individual to a risk of death or serious injury or illness, it is the element of recklessness as to that risk which elevates offending into Category 1 and which warrants exposing a natural person offender to the possibility of a term of imprisonment and a doubling of the maximum possible fine.
70. [70]
    Seventh, the assessment of culpability in any particular case is not straightforward and must be regarded as multi-factorial.  As Basten JA noted in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd in relation to a category 2 offence under the Work Health and Safety Act 2011 (NSW):^[5]

3. “[34]
   The sentencing judge commenced his consideration with the proposition that ‘[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.’ However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors.

…

3. [41]
   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.

…

3. [42]
   The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known.”

71. [71]
    As mentioned, Mr Cordwell pleaded guilty to a Category 1 offence, the maximum penalty for which was a fine of $600,000 or five years imprisonment, and he was sentenced to six months’ imprisonment suspended immediately for an operational period of 12 months.  His argument on appeal was that no proper exercise of the sentencing discretion could have resulted in the imposition of a term of imprisonment, albeit one wholly suspended.  He submitted that a custodial sentence should not have been imposed.  Rather it would be appropriate to impose a fine of the order of $50,000.
72. [72]
    Features said to justify the conclusion of manifest excess were:

    1. (a)
       his lack of any criminal history;
    2. (b)
       his lack of any previous convictions for offences under work health and safety legislation;
    3. (c)
       the finding that the offending was uncharacteristic of Mr Cordwell, and should be regarded as a reckless disregard of risk which occurred on one day over a very short period of time;
    4. (d)
       his expressions of personal remorse;
    5. (e)
       his expressions of resolve that nothing like this will ever happen again;
    6. (f)
       although Steel Adams injuries were not trivial or transitory, they were resolving;
    7. (g)
       the risk of harm to the community if a custodial sentence was not imposed was non-existent;
    8. (h)
       a suggested inconsistency between the sentence in this case and the sentences imposed in R v Brisbane Auto Recycling Pty Ltd [2020] QDC 113.
73. [73]
    I am unable to infer from any of those circumstances that there must have been some misapplication of principle by the sentencing judge.  To the contrary, I agree with the remarks which his Honour made and which I have quoted at [35] above.  The risk to which the workers were exposed was grave and could easily and at modest cost have been mitigated.  The degree of personal recklessness exhibited by Mr Cordwell was high and direct.  His moral culpability was high.  I accept that in the present case, neither rehabilitation, nor personal deterrence, nor community protection from the offender were particularly engaged.  Mr Cordwell was not a risk to the community and did not require rehabilitation and the risk of recurrence of offending by him was low.  However, particularly given the objects of the Work Health and Safety Act, just punishment, general deterrence and denunciation were obviously important considerations.  They were treated as such by the sentencing judge.  A modest wholly suspended sentence was within the bounds of a proper exercise of discretion in the present case.
74. [74]
    R v Brisbane Auto Recycling Pty Ltd was a first instance decision.  Two directors of an automobile recycling company were sentenced to 10 months imprisonment wholly suspended for an operational period of 20 months for category 1 offences.  A company employee had been crushed to death by a forklift which was being reversed by a co-employee.  The directors supervised work activities at the workplace and failed to have any safety systems in place.  They knew that that there was a risk of catastrophic outcome to their employees.  Steps taken after the incident revealed that the risk could have been minimised or removed at modest cost.  Moreover, their business had been operating without safety systems for over 16 months, so their offending was not a momentary or isolated breach.  Like Mr Cordwell, the two directors had cooperated with the administration of justice; were found to be clearly remorseful; had no prior offending and were found to be of good character.  On the other hand, unlike Mr Cordwell they were not mature and experienced businessmen.  They were young (aged 25 and 23); they had fled to Australia from Afghanistan as refugees when they were in their teens.  In Afghanistan they had been exposed to extreme violence.  Despite that they had become permanent residents in Australia and built up a successful business.  They were the sole source of support for their respective wives and children who were in Afghanistan awaiting process of spousal visa applications.  Their prospects of deportation would be increased if a sentence requiring actual custody was imposed.  In the circumstances the sentencing judge found it to appropriate to have regard to the fact that the burden of imprisonment would be greater for them than for someone who did not face that risk.  He regarded the fact that they might lose the opportunity of settling permanently in Australia as also relevant.  Further, and in distinction to the present case, the prosecution had accepted that the principles in s 9(2)(a) applied to the sentencing of the two directors.
75. [75]
    I accept the Crown’s submission that R v Brisbane Auto Recycling Pty Ltd is not of assistance in demonstrating the sentence imposed on Mr Cordwell to be manifestly excessive.
76. [76]
    In respect of the Company, the submission was that the fine of $500,000 was a manifestly excessive sentence for an offender which had operated as a person conducting a business for 27 years at the time of sentence and which had no previous convictions under the Act or its forerunner.  It was suggested that a fine in the range of $250,000 to $300,000 as contended for below would have been adequate to denounce the Company’s conduct and to provide a deterrent both to the Company and to others.  It was said that was so because a fine of $250,000 to $300,000 would put the Company under serious financial pressure.  Indeed, it would have exceeded the applicant's net profit for the financial year ended 30 June 2020.  Notably, the Company did not seek to support its argument that the sentence was manifestly excessive by reference to any comparable cases.
77. [77]
    I am unable to reach an inference from the circumstances to which the Company adverts that there must have been some misapplication of principle by the sentencing judge.  To the contrary, I agree with the remarks which his Honour made and which I have quoted at [37] above.
78. [78]
    For completeness, I note that although (as the Crown conceded below and also before this Court) there are few relevant comparable cases, I agree with the Crown’s submission that some support for the sentence can be found in R v Cleanaway Operations Pty Ltd, an unreported decision of the District Court of South Australia dated 19 April 2017.  In that case, a company was convicted of a category 2 offence under the Work Health and Safety Act 2011.  The company dealt with industrial waste.  During the course of testing a new product, inadequate safety procedures led to a fire, an explosive rush of air; and an employee being knocked over and covered with the undistilled product.  Fortunately, the employee was wearing adequate personal protective equipment and only suffered a sprained wrist.  The company was convicted and fined $650,000.
79. [79]
    There is no merit in this proposed ground of appeal.

Conclusion

80. [80]
    Application for leave to appeal should be refused, on each application.
81. [81]
    BODDICE J:  I agree with Bond JA.