Steward v Mac Plant Pty Ltd[2018] QDC 20

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On 4 September 2015, a Dutch seasonal worker on a banana farm at Tully suffered minor injuries when he was thrown from the operator’s seat of a tractor when it left a gravel farm road and ran into a drain. The tractor was not fitted with a seat belt.

2. [2]
   On 17 August 2017 the respondents were convicted on their own pleas of guilty in the Magistrates Court at Tully of offences against the Work Health and Safety Act 2011 (the Act) and the Work Health and Safety Regulation 2011 (the Regulation) arising from these events.

3. [3]
   This is an appeal by a representative of Workplace Health and Safety (Queensland) pursuant to s 222 of the Justices Act 1886 on the basis that the sentences imposed were manifestly inadequate.

4. [4]
   The respondents are the owners and operators of a large business in Far North Queensland involving the growing, harvesting and packing of bananas. They operate six farms which employ up to 550 workers^[1].

5. [5]
   The particular farm the subject of these complaints employs some 120 to 130 workers, of whom about half are seasonal workers – typically backpackers^[2].

6. [6]
   The second respondent, Mac Farms Pty Ltd, is responsible for the management of the farms, including the management of its workers, notwithstanding that it is not the employer of those workers. The first respondent, Mac Plant Pty Ltd, supplies plant to the second respondent, including the tractor the subject of these complaints^[3].

7. [7]
   The first respondent was charged under s 33 of the Act (which had a maximum penalty of $500,000) with failing to comply with a health and safety duty under s 25(2) of the Act, so far as reasonably practicable. It pleaded guilty and was fined $2,000 with court costs of $89.40. No conviction was recorded.

8. [8]
   The second respondent, a person with management or control of powered mobile plant at a workplace, was charged under s 215(2) of the Regulation (which had a maximum penalty of $30,000) with failing to ensure, so far as is reasonably practicable, that a suitable combination of operator protective devices for the plant was provided, maintained and used. It pleaded guilty and was fined $1,000 with professional costs of $1,000 plus costs of $89.40. No conviction was recorded.

9. [9]
   The complaint against the first respondent is that on 4 September 2015 it failed to comply with its health and safety duty under s 25(2) of the Act, so far as reasonably practicable, contrary to s 33 of the Act. The particulars of the breach were, in summary:

1. Between 22 June 2012 and 4 September 2015, the first respondent supplied the tractor to the second respondent.

2. The tractor was not without risk to the health and safety of workers because it was fitted with a Roll-Over Protective Structure (ROPS) but not fitted with a seat belt in combination with a ROPS.

3. The first respondent failed to:

1. (a)
   Adequately assess the hazard of supplying mobile plant without a suitable combination of operator protective devices;

2. (b)
   Evaluate safe work requirements relating to mobile plant to manage the risk of the operator being ejected from the plant;

3. (c)
   Ensure that all tractors supplied to the second respondent were fitted with a suitable combination of operator protective devices by ensuring that seat belts were fitted to tractors with ROPS;

4. (d)
   Provide sufficient systems regarding inspection of mobile plant; and

5. (e)
   Provide a safe system of work for the supply of plant and tractors.

10. [10]
    The complaint against the second respondent is that on 4 September 2015 it failed to ensure, so far as is reasonably practicable, that a suitable combination of operator protective devices for the plant was provided, maintained and used, contrary to s 215(2) of the Regulation. The particulars of the breach were, in summary:

1. On 4 September 2015, the second respondent had management and/or control of powered mobile plant used by workers at the workplace, including the tractor;

2. The second respondent failed to ensure, as far as is reasonably practicable, that the tractor was without risk to the health and safety of workers operating it;

3. The tractor was fitted with a ROPS and not fitted with a seat belt in combination with a ROPS;

4. The second respondent failed to:

1. (a)
   Adequately assess the hazard of workers at the workplace using the tractor without a suitable combination of operator protective devices;

2. (b)
   Evaluate safe work requirements relating to mobile plant to manage the risk of the operator being ejected from the plant;

3. (c)
   Ensure that all mobile plant supplied for use at the workplace was fitted with a suitable combination of operator protective devices by ensuring that seat belts were fitted, maintained and used on tractors with ROPS;

4. (d)
   Provide sufficient systems regarding inspection of mobile plant; and

5. (e)
   Provide a safe system of work for the supply of plant and tractors.

Grounds of Appeal

11. [11]
    The appellant appeals against the orders of the learned Magistrate on the basis that they were manifestly inadequate and relies upon the following grounds of appeal:

a. The Magistrate erred in applying features of mitigation irrelevant to the charges, in particular the circumstances of the occurrence of an incident giving rise to injury;

b. No, or insufficient, weight was given to the gravamen and circumstances of the offences as articulated in the statement of agreed facts tendered before the Magistrate;

c. The Magistrate applied excessive weight in mitigation to measures put in place by the respondents or each of them subsequent to the offences;

d. The Magistrate applied excessive weight in mitigation to factors occurring subsequent to the offences;

e. The Magistrate erred in apportioning penalty on a global basis between distinct defendants and charges.

12. [12]
    The respondents concede that the sentences are manifestly inadequate, the appeal should be allowed, the sentences imposed by the learned Magistrate should be set aside and the respondents resentenced by this court. However, they do not concede that the Magistrate erred in the ways contended above.

13. [13]
    Notwithstanding that concession, the court must exercise its discretion to determine the issue.

14. [14]
    For the reasons which follow, the appeal should be allowed, the sentences set aside and the respondents resentenced.

Nature of the Appeal

15. [15]
    The Justices Act 1886 s 222 confers a right to appeal to this court from an order made in a summary way on a complaint of an offence or breach of duty, subject to the limitation in subsection (2)(c) that, if a defendant pleads guilty, “a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.”

16. [16]
    The appeal is a re-hearing on the evidence before the Magistrates Court, subject to the power of this court to give leave to adduce fresh, additional or substituted evidence on special grounds: s 223. The powers of the judge on hearing the appeal are expressed in s 225 in terms which do not distinguish between an appeal against sentence by a defendant and an appeal against sentence by a complainant.

17. [17]
    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^[4].

18. [18]
    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.”^[5]

19. [19]
    The rehearing requires this court to conduct a real review of the evidence before it, and make up its own mind about the case.^[6]

20. [20]
    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.^[7]

21. [21]
    The High Court in Kentwell v R^[8]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.”

Circumstances of the offences

22. [22]
    The circumstances of the offences are set out in a statement of agreed facts tendered before the Magistrate, which are summarised below.

23. [23]
    Between 22 June 2012 and 4 September 2015, the first respondent supplied a Kubota tractor to the second respondent. It was used by the second respondent’s employees regularly during this period without incident.

24. [24]
    As a supplier of plant, the first respondent had a duty to ensure, so far as is reasonably practicable, the tractor was without risk to the health and safety of persons who used it for a purpose for which it was designed or manufactured. It was both reasonable and practicable that the tractor was fitted with the relevant combination of operator protective devices, namely a ROPS in combination with a seat belt.

25. [25]
    The second respondent engaged workers to use the tractor, without the “…suitable combination of operator protective devices” referred to in section 215(2) of the Regulation.

26. [26]
    The tractor presented a risk to the health and safety of workers because it was fitted with a ROPS but not a seat belt (as required by s 25(2) of the Act and s 215(2) of the Regulation). A ROPS is a roll bar or roll cage designed to create a protective zone around the operator when a rollover occurs. When used in combination with a seat belt, a ROPS will prevent the operator from being thrown and crushed by an overturning tractor or equipment attached to it. A ROPS alone will not provide full protection to the operator on a rollover.

27. [27]
    The photograph of the tractor shows that it did not have a cab and that the ROPS simply comprised a bar (in the shape of an upside down “U”), with a small canopy attached to it, over the tractor seat.

28. [28]
    On 4 September 2015, a seasonal backpacker from the Netherlands suffered minor injuries when he was thrown from the operator’s seat of the tractor when it left a gravel farm road and ran into a drain parallel to the road (the incident). The injuries are not described.

29. [29]
    The appellant submits that “This incident, while triggering an investigation, was not relevant to the charges brought against either corporate defendant.^[9]”

30. [30]
    The worker had been spoken to by management on at least one occasion about operating tractors at an unsuitable speed and without due care. The statement of agreed facts records that “The investigation found that [the worker] may have been operating the tractor too fast and without proper lookout”, the worker “acknowledged that the accident arose because he was driving too fast and lost control” and “he did indicate that even if the tractor had been fitted with a seat belt he was unlikely to have used it”.

31. [31]
    After the incident, the second respondent promptly notified Workplace Health and Safety Queensland and an investigation ensued. Both respondents were cooperative and readily admitted that the tractor was supplied and used without a seat belt, albeit without incident, for a considerable period of time before the incident. They responded rapidly by fitting seat belts to all tractors fitted with ROPS, and used by the group of companies, within three days after the incident.

32. [32]
    Since the incident, the respondents have taken the following steps: given managers and directors more direction about improving safety culture; trained managers and supervisors for one day in their responsibilities under the Act; increased the level of work health and safety consultation and communication with staff; ensured the safety management team attends each farm every week to run toolbox talks and safety interactions and to check on maintenance and monitor hazards; established near miss and hazard reporting; conducted safety alerts; focussed on the importance of wearing seat belts and travelling at suitable speeds; amended purchasing policy to ensure all replacement seats are sourced with seat belts; amended all work instructions to ensure seat belts are used correctly as all vehicles were fitted with seat belts post incident; and implemented weekly tractor checks and safety checklists to include a particular section for safety equipment, seat belts and flashing lights.

33. [33]
    The respondents participated in records of interview and made full admissions.

34. [34]
    The respondents have no prior relevant history, and are well known in the community and industry as good corporate citizens.

Statutory regime

35. [35]
    The Work Health and Safety Act 2011 (Qld) is part of a national scheme of uniform legislation concerned with furthering safety^[10]. It imposes wide duties in relation to ensuring safety, as well as penal provisions for breach of such duties.

36. [36]
    By virtue of section 5(1)(d) of the Penalties and Sentences Act 1992 (Qld), the value of a penalty unit for offences under the Act is fixed at $100 to ensure consistency with penalties imposed in other jurisdictions.

37. [37]
    The statutory purpose of Act is set out in s 3, which provides, relevantly:

3 Object

1. (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 specified types of substances or plant, and

…

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

…

2. (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 specified types of substances or plant as is reasonably practicable.

38. [38]
    This statutory scheme, consistently with the statutory purposes specified in s 3, imposes onerous duties upon a wide class of persons, including employers, those conducting businesses or undertakings of various kinds, and officers, workers and other persons at workplaces, to ensure health and safety. Those duties appear in Part 2 "Health and safety duties". Principles that apply to such duties are specified in Subdivision 1 of Division 1 of that Part.

39. [39]
    For understanding the duties imposed by this statutory scheme, s 17 provides that 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.

40. [40]
    “Reasonably practicable”, in relation to a duty to ensure health and safety, is defined in s 18 as 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.

41. [41]
    The primary duty of care imposed on persons conducting businesses or undertakings for workers engaged in the business and others is specified in s 19(2) to be "that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking". That obligation is explained in s 19(3), which includes the provision and maintenance of safe plant.

42. [42]
    There are further duties imposed on those who conduct businesses or undertakings in Division 3 of Part 2. Of relevance here, s 25(2) imposes a duty on a person who conducts a business or undertaking that supplies plant that is to be used at a workplace to ensure, so far as is reasonably practicable, that the plant is without risks to the health and safety of persons who use it.

43. [43]
    Part 2, Div 5 of the Work Safety Act specifies three categories of offences which may be committed by a person who has breached a health and safety duty.

44. [44]
    Category 1 is the most serious offence. It requires that the offender engage in conduct which, without reasonable excuse, exposes a person to a risk of death or serious injury or illness, as to which risk, the offender is reckless: s 31. The maximum penalty for a Category 1 offence committed by a body corporate is 30,000 penalty units or $3,000,000.

45. [45]
    A Category 2 offence requires that the failure to comply with a health and safety duty exposes an individual to a risk of death or serious injury or illness: s 32. The maximum penalty for an offence committed by a body corporate is 15,000 penalty units or $1,500,000.

46. [46]
    Here, the first respondent was charged with a Category 3 offence, pursuant to s 33, which states:

33 Failure to comply with health and safety duty—category 3

A person commits a category 3 offence if—

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

2. (b)
   the person fails to comply with that duty.

Maximum penalty—

1. (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—500 penalty units; or

2. (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—1,000 penalty units; or

3. (c)
   for an offence committed by a body corporate—5,000 penalty units.

47. [47]
    The maximum penalty for a category 3 offence committed by a body corporate is a fine of $500,000.

48. [48]
    The maximum penalty for s 215 of the Regulation is 60 penalty units or, for a body corporate^[11], $30,000.

49. [49]
    Proceedings for an offence against the Act, other than a category 1 offence or an offence against part 2A, must be taken in a summary way under the Justices Act 1886: s 230(1AA).

50. [50]
    In sentencing a person for an offence under the Act, in addition to any penalty that may be imposed, the court has power to make other orders, including adverse publicity orders, orders for restoration, work health and safety project orders, court-ordered undertakings, injunctions and training orders: see Part 13, Division 2 of the Act.

51. [51]
    The sentencing exercise was governed by Part 2 of the Penalties and Sentences Act 1992 (Qld) (PSA) and the sentencing guidelines in s 9 which provide, relevantly:

9 Sentencing guidelines

1. (1)
   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).

2. (2)
   In sentencing an offender, a court must have regard to—

…

2. (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—

1. (i)
   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

9. (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

9. (r)
   any other relevant circumstance.

52. [52]
    Section 11 provides that in determining the offender’s character, a court may consider—

1. (a)
   the number, seriousness, date, relevance and nature of any previous convictions of the offender; and

2. (b)
   any significant contributions made to the community by the offender; and

3. (c)
   such other matters as the court considers are relevant.

53. [53]
    The Magistrate was required to take into account the plea of guilty and was entitled to impose a lesser penalty than would otherwise have been imposed, pursuant to s 13 PSA.

54. [54]
    Part 4 PSA deals with the imposition of fines. Section 48 states:

48 Exercise of power to fine

1. (1)
   If a court decides to fine an offender, then, in determining the amount of the fine and the way in which it is to be paid, the court must, as far as practicable, take into account—

1. (a)
   the financial circumstances of the offender; and

3. (b)
   the nature of the burden that payment of the fine will be on the offender

2. (2)
   The court may fine the offender even though it has been unable to find out about the matters mentioned in subsection (1)(a) and (b).

The contentions below

55. [55]
    Before the Magistrate, the appellant submitted that the appropriate fine for the first respondent would be between $20,000 and $25,000 and for the second respondent, between $5,000 and $7,000.

56. [56]
    The respondents submitted that the circumstances of the case warranted fines at the lower end of the range and that fines significantly lower than those proposed by the appellant should be imposed.

57. [57]
    The Magistrate fined the first respondent $2,000 and the second respondent, $1,000.

58. [58]
    The appellant submits that, in addition to the sentences being manifestly inadequate, there are identifiable errors in the Magistrate’s decision which are considered below.

Ground (a) The Magistrate erred in applying features of mitigation irrelevant to the charges, in particular the circumstances of the occurrence of an incident giving rise to injury

Conduct of the worker and the incident giving rise to the injury

59. [59]
    The first matter relied upon relates to the conduct of the worker and the incident giving rise to the injury.

60. [60]
    In the Magistrate’s Court, both parties submitted that the respondents’ conduct did not, in all likelihood, cause the injury, and that the worker’s conduct in driving without due care and his concession that even if it had been fitted, he would probably not have worn the seat belt anyway, were relevant. Her Honour distinguished the cases provided to her on this basis^[12].  She regarded that as a distinguishing feature and a significant mitigating factor.

61. [61]
    The Magistrate’s decision includes the following statements:

“the worker received minor injuries but it is not alleged that these minor injuries had anything to do with whether or not there was a seat belt and I do accept that.  I find that the injury is to the worker and the accident had nothing to do with whether or not there was a seat belt.^[13]…

… the accident was the fault of the worker given that the worker accepts he was driving too fast and in fact both defendant – the defendant had previously warned him not to drive too fast in a tractor and, further, that the worker failed to exercise due care and attention … and further the worker did say that even if there had been a seat belt, he would not have been wearing the seat belt.

In those circumstances, this offence does differ as has been indicated during the sentencing and has – as was agreed by Mr Murray for the prosecution in this matter, in that the – whether or not there was a seat belt had really no contribution to the accident or to the injuries suffered by the worker.

…while as I say the accident brought these matters to the attention of Workplace Health and Safety, the lack of seat belt is not alleged to have contributed to the accident or injuries.  As I have said this is a major point of distinction with the comparative cases.”

62. [62]
    It is clear that the learned Magistrate placed significant weight on the actual, rather than the potential, consequence of the risk, the operator’s error, the injuries he in fact suffered, and that he expressed an unwillingness to wear a seat belt, even if one had been fitted.

63. [63]
    The appellant now submits that any misuse of the tractor by the worker and any expression of unwillingness by him to wear a seat belt if one had been fitted, are not relevant to sentence and are not a mitigating feature of the offences. It further submits that those matters may, hypothetically, give rise to other work health safety issues which the second respondent would need to address in terms of supervision and instruction of its farm workers.

64. [64]
    In support of that submission, it relied upon Short v Lockshire Pty Ltd 165 QGIG 521 (20 November 2000) where the President, in considering the predecessor legislation, said:

“His Worship was wrong to take into account the contribution made by Mr Humphreys to his own misfortune.  It is a purpose of the Act to ensure that employers protect employees against their own folly.  The folly of the employee cannot be relevant to penalty.  With respect, His Worship erred also in giving undue weight to Mr Cosgrove’s remorse, distress at the incident, cooperation with the officers of Workplace Health and Safety and improved safety measures.  Too much may not be made of mitigating factors less the objective gravity of the offence is diminished and the purpose of the Act restated.”

65. [65]
    The respondents submitted that the Magistrate did not discount the fines on the basis of the conduct of the worker, but considered the conduct of the worker in distinguishing the authorities put before the Court and in considering the issues of the “objective gravity” of the incident and the “blameworthiness” of the respondents.

66. [66]
    The New South Wales Court of Criminal Appeal recently considered the relevant sentencing principles under the equivalent New South Wales legislation. In Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd (16 May 2017)^[14]the defendant pleaded guilty to a category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW) (maximum penalty $1,500,000) for an incident that caused life threatening injuries, including quadriplegia, at a drilling rig in a coal mine.  The Court allowed the appeal and increased the fine imposed by the District Court from $112,000 to $212,500. 

67. [67]
    In the absence of any other relevant appellate court decisions it is useful to set out the court’s reasons.

68. [68]
    In assessing the objective seriousness of an offence under the equivalent New South Wales legislation, Basten JA (with whom Hoeben CJ and Walton J agreed) stated:

[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.” [footnote omitted] 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.

…

[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 [fn: Work Safety Act s 18]. …

[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.

…

[45] Further, the question of objective seriousness must be assessed within the gradation of category 1, category 2 and category 3 offences.

…

[53] The legitimate purposes of intervention in the present case are twofold. The first purpose is to identify the proper approach to considering the objective seriousness of offences under the Work Safety Act. It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.

[54] Secondly, it is important to emphasise that the proportionality of the sentence should depend upon an assessment of the particular offence in the context of the penalties imposed by the Act. As noted above, the Act provides a gradation rising from category 3 through to category 1, in order of seriousness. In addressing a category 2 offence, attention must be paid to the nature of the conduct which could have led to the employer being charged with a category 1 offence (namely reckless disregard as to the risk to the individual of death or serious injury), combined with a lack of reasonable excuse for engaging in such conduct. Serious derelictions of duty, which do not reach that standard, will constitute the high end of objective seriousness for category 2 offences. That factor is to be considered in the context of a category 2 offence which must, to qualify as such, involve conduct which exposes the individual to a risk of death or at least serious injury or illness.

[55] By contrast, a category 3 offence may involve a dereliction of duty, varying from the casual to the deliberate, but in circumstances where no individual is exposed to a risk of serious injury or illness.

[56] Once the nature of the gradation is borne in mind, the relevance of the maximum penalties may be appreciated.

[emphasis added]

69. [69]
    An intermediate appellate court should not depart from an interpretation placed on uniform national legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong^[15].  The principles enunciated in Nash are applicable here.

70. [70]
    The approach taken by the learned Magistrate on this issue is contrary to the principles enunciated in Nash, that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but the potential risk arising from the failure to take reasonably practicable steps to avoid the injury occurring.  To that extent, the worker’s conduct and the injuries sustained by him were irrelevant considerations.

71. [71]
    By asking herself the wrong question, and by allowing these erroneous or irrelevant matters to guide her, the learned Magistrate erred in law. This ground of appeal is made out.

Impact of the TR4 virus

72. [72]
    The second matter relied upon related to the Magistrate’s consideration of the impact of the TR4 virus.

73. [73]
    The Magistrate’s decision contained the following statements^[16]:

“I take into account it was a simple matter of oversight not putting the seat belt on the tractor which probably would have cost between one and $200, not more.

That oversight occurred in circumstances where the farm was at risk of the virus TR4, otherwise known as Panama virus which devastated the farm next door which has now been razed to the ground, but at the time the Panama virus had been discovered before this offence occurred in 2015 on the farm next door.   And at the time the defendants had to engage in protective measures to save their farm being lost by improving the property with fencing, vermin-proofing and [indistinct] which was very expensive and did not increase the profitability, but rather was just put in with a view to try to save the farm from the TR4.

And it would appear and I can accept that the focus of the defendants at the time would have been on the TR4 as a major issue given that the livelihood and future of the farm was at issue.  … Since then TR4 or the Panama virus has invaded the defendant’s property … which has resulted in some loss to the defendants because they had to demolish some part of the farm.

They have had limitations imposed on movement of their soil and have had to impose other measures to try to protect the rest of the farm. … I take into account it was simply a matter of oversight as I have said and in those circumstances I think there are particular mitigating circumstances which is the TR4 which has hit this farm.

And I also consider that the offence in itself is at the lower end of the scale.  So while the maximum penalties for these offences are particularly in relation to the section 33 offence, and I do take into account are significant, there are significant mitigating circumstances as well as the facts put this at the lower end of the spectrum.  This is a very unusual circumstance, in my view.”

74. [74]
    The learned Magistrate’s sentencing remarks and decision (for both respondents) comprised only 2 pages, almost half of which was taken up with above passage. The existence of the TR4 virus was the most significant mitigating factor in her reasoning^[17].

75. [75]
    However, it was not a mitigating factor raised or relied upon (at least initially) by the respondents. It did not appear in the statement of agreed facts, or in the respondents’ written submissions on mitigation in the Magistrates Court or in the respondents’ initial oral submissions in the Magistrates Court.

76. [76]
    It was a matter raised by the learned Magistrate, on her own initiative. During submissions, Her Honour raised the issue of the TR4 virus, invited the respondents’ solicitor to seek instructions about it, said she would hear from him in mitigation on that issue, and adjourned the matter for 10 minutes to enable instructions to be taken^[18].

77. [77]
    In response to that invitation from the bench, the respondents’ solicitor took instructions and then made further oral submissions:

MR HEATH:  … So this is – these are the factors that I ask Your Honour to respectfully take into account in considering the penalty.  The focus they had in 2015 in preventing the infiltration of TR4 onto the property and the work they had to do then in an effort to do that, which unfortunately proved to be unsuccessful, as they’re now suffering the consequences of the TR4 infection on that property.  So taking those factors into account, your Honour, this is certainly a matter I think sits at the bottom of the range for the imposition of penalty.

…

BENCH: I can simply say that I’m the Tully Magistrate so I hear about TR4 all the time.

78. [78]
    The respondents submitted on appeal that “It was not submitted in the present case that the defendants were in a parlous financial position. What was submitted was that their farm was at risk because of the impact of the TR4 virus, and this was a distraction from the core business of the defendants. This is the manner in which Her Honour considered that issue.”^[19]They submitted the Magistrate was entitled to have regard to this issue as “any other relevant circumstance” for the purposes of s 9(2)(r).

79. [79]
    Reading the transcript of the submissions and the decision together, the learned Magistrate appears to have taken into account the impact of the TR4 virus in two ways: first, in the circumstances in which the offence occurred because the respondents were focussed on it at the time of the incident, and second, as a factor in mitigation because it caused the respondents to incur expenses in undertaking protective measures.

80. [80]
    The first point overlooks the fact that the complaint particularises that the tractor was supplied on 22 June 2012 without a seat belt and continued to be used without a seat belt until 4 September 2015 when the incident occurred. Any preoccupation the respondents may have had with the TR4 virus in 2015 does not explain why they failed to fit a seat belt in the preceding years.

81. [81]
    On the second point, the learned Magistrate’s findings about the TR4 virus were based on her own knowledge of the TR4 virus and the brief oral submissions by the respondents’ solicitor. There was no evidence about those issues or their financial impact on the respondents.^[20]

82. [82]
    The respondents’ capacity to pay a fine is relevant under s 48 of the PSA.

83. [83]
    There was also no evidence before the court of the respondents’ financial circumstances, either individually or as part of the same group of companies, nor of the nature of the burden that payment of the fine would have on them.

84. [84]
    The respondents’ solicitor did not make submissions about the respondents’ capacity to pay a fine or adverse financial impact.

85. [85]
    Further, it was uncontroversial that the respondents were part of a large farming enterprise employing up to 550 workers across 6 farms, and that the ultimate owners had chosen (no doubt for commercial reasons) to structure their operations in such as way as to have different entities carrying out different parts of the farming enterprise. This was not a small, unsophisticated, operation.

86. [86]
    The impact of the TR4 virus was a matter that the Magistrate was entitled to have regard to as a relevant circumstance. However to give significant weight to its adverse financial impact on the respondents, and to its timing, as matters in mitigation in the circumstances outlined above, was in my view, an error.

87. [87]
    This ground of appeal is made out.

Ground (b) No, or insufficient, weight was given to the gravamen and circumstances of the offences as articulated in the statement of agreed facts

88. [88]
    The Magistrate described the contravention as “a simple matter of oversight” and “simply a matter of oversight”^[21]. 

89. [89]
    There was no proper assessment of the objective gravity of the offence applying the principles enunciated in Nash relevant to this legislation. This ground of appeal is made out.

Grounds (c) and (d) The Magistrate applied excessive weight in mitigation to measures put in place by the defendants, or factors occurring, after the offences

90. [90]
    There are two aspects to this. The first is the consequences of the TR4 virus, that is, the loss the respondents suffered because some of their crop had to be demolished. I have already found that the Magistrate gave this factor excessive weight.

91. [91]
    The second is the weight afforded to the steps taken by the respondents to remedy the breach. The Magistrate found that^[22]:

“… they have acted properly and appropriately and immediately ensuring seat belts are installed on all tractors.  They have been very cooperative with authorities.  They speedily redressed the problem and have no prior convictions. … They were very proactive in relation to their health and safety issue and have otherwise excellent safety proceedings.  … there are significant mitigating circumstances as well as the facts put this at the lower end of the spectrum.”

92. [92]
    Care must be taken in giving the respondents credit for doing something which should have been done in any event^[23].  The legislation is not directed at ex post facto measures.  It requires positive preventative steps to be taken to ensure workers are afforded safe working environments.

93. [93]
    As the President of the Industrial Court said in Lang v Amalgamated Food and Poultry Pty Ltd 167 QGIG 245:

“Too much, however, may not be made of mitigation lest the purpose of the Act be frustrated.  Given the objective gravity of the offence, ex post facto measures and excellent systems which failed because of inadequate policing, are no justification for taking the challenged sentence outside the range otherwise thought to be appropriate to an offence of this objective nature.”

94. [94]
    It was appropriate to take into account those steps taken by the respondents after the incident to remedy the breach and implement better systems. However, I consider these factors post-incident were given excessive weight by the learned Magistrate in the sentencing process, which led to error.

95. [95]
    This ground is made out.

Ground (e) The Magistrate erred in apportioning penalty on a global basis between distinct defendants and charges.

96. [96]
    Each respondent was charged with a separate offence. The first respondent was prosecuted as a supplier of plant. The second respondent was prosecuted as the operator of the banana farm and the person directing or influencing workers.

97. [97]
    The appellant submits that although separate fines were imposed, the tenor of the decision is that the respondents were dealt with jointly, not severally, the Magistrate may have treated the two companies as a singular undertaking and taken into account the total penalty imposed on both because they were part of the same group of companies.

98. [98]
    The appellant further submits that even if the business, globally, is part of a group of companies controlled by the same family, if the choice is made to incorporate multiple entities to conduct particular functions of the business, duties under the legislation must be met by each within its control. I accept that submission.

99. [99]
    The learned Magistrate discussed the appropriate approach to penalty as between the two respondents first with the prosecutor:

Mr MCMURRAY: So there are two matters to consider, and I would also ask your Honour to consider this: the two breaches arise out of the same incident.  Mac Farms is the entity which supervises the workers on the site; Mac Plant is the entity that supplied the tractor.

BENCH: So what are you asking me to do Mr McMurray?  Are you asking me to give two fines, but basically consider one global fine, and then apportion it between the two companies?

MR MCMURRAY: Well that’s open to Your Honour, but they’re really separate – one’s under the regulation –

BENCH: Yes.

MR MCMURRAY: And one comes – falls under the Act, which is slightly more serious.

BENCH: So I see you indicated I – I had a look in relation to penalty, one was - okay.  So –

MR MCMURRAY: So in relation to Mac Farm’s penalty, I have posited it’s a lot less than –

BENCH: Yes.

MR MCMURRAY: ---the matter involving section 33 under the Act.^[24]

100. [100]
     Following that exchange, the respondents’ solicitor made the following submission:

“Yes, so, Your Honour, what I say is the appropriate approach is to reach a global figure and then apportion between them.  The proportionality of the fines should be – there is – Mac Farms, I say, should bear the lesser degree, because there’s no evidence that – of failure to supervise having been any consequence of this – for this particular injury and this incident.  Mac Plant is the entity that supplied the tractor without the seatbelt, so it should bear, proportionally, the higher degree of the fine. But the numbers that I consider should be apportioned is something well below the $20,000.  It’s the bottom of my learned friend’s range.  I think it should be something about – approximately half of that, perhaps apportioned between the two entities, reflecting the particular circumstances of this case.”^[25]

101. [101]
     On appeal, the respondents, in my view appropriately, abandoned that submission. They said that the Magistrate’s reasoning did not establish that she considered the fines on a global basis and that neither the transcript of argument nor the reasons support the proposition advanced by the appellant that Her Honour treated the two companies jointly rather than severally.

102. [102]
     The Magistrate delivered her decision immediately after hearing the submissions. In it she said: “What has happened in effect is that two defendants operated a banana farm.^[26]”  She went on to impose separate fines against each respondent.

103. [103]
     To the extent it was submitted by the respondents below that the appropriate approach was to “reach a global figure and then apportion between them”, that was an error of law. The Magistrate misdirected herself by applying the wrong test or asking herself the wrong question. The respondents were co-offenders charged with different offences. The correct approach was to consider the relevant factors with respect to each respondent for the offence it had been charged with. There being no evidence about the connection between them save that they were part of a larger group of companies (which included other entities), it was wrong to apportion a global fine across both entities.

104. [104]
     It follows that this ground is made out.

Discussion of penalty

105. [105]
     The assessment of the objective seriousness of the offence is to be carried out in accordance with s 9 of the PSA, in particular, having regard to any aggravating and mitigating circumstances, and having regard to the principles enunciated in Nash v Silver City under the equivalent Work Health and Safety legislation. 

106. [106]
     The elements of a category 3 offence are that the person has a health and safety duty and the person fails to comply with that duty.

107. [107]
     It is not an element of a category 3 (in contrast to a category 2 offence) offence that the failure to comply with a health and safety duty exposes an individual to a risk of death or serious injury or illness.

108. [108]
     Nonetheless, a duty imposed on a person to ensure health and safety requires the person to eliminate risks to health and safety, so far as is reasonably practicable: ss 17 and 18.

109. [109]
     At the date of the hearing, there were no decisions of the Queensland Court of Appeal or of this court considering these offences. There is one decision of this court on appeal from a sentence of a Magistrate under a different offence provision of the Act^[27], which is discussed below.

110. [110]
     There is no sentencing pattern established in relation to the offences the subject of this appeal, either in Queensland or interstate. It follows that the question of the appropriate penalty both at first instance and on appeal is one to be considered in terms of the particular seriousness of the offence in the light of the subjective or mitigating factors which the respondents are entitled to have brought into account in their favour in the assessment of the relevant penalty.

111. [111]
     The learned Magistrate was provided with three schedules containing summaries of other decisions:

1. Annexure A contained a summary of six Magistrates Court cases involving breaches under the Regulation between 2014 and 2017 in which the fines imposed ranged from $1,000 to $3,000, save for one matter of $15,000 (where the defendant had previous relevant convictions).  They all involved different facts and different offence provisions to the subject case;

2. Annexure B contained a summary of three Magistrates Court cases, two involved no seat belts and one involved s 33. Both seat belt cases were charged as category 2 offences under s 32 (which has a higher maximum penalty), presumably because the workers suffered more serious injuries:

1. (a)
   Ag-White Pty Ltd (18 September 2014) involved a Korean worker with limited English who suffered injuries after being thrown from a tractor when he was not wearing the fitted seat belt on a banana farm at Tully and run over. The defendant was fined $35,000 (2.3% of the maximum penalty) and no conviction was recorded;

2. (b)
   Archerfield Cart Hire Pty Ltd (25 July 2017) involved a 15 year old girl who suffered significant injuries requiring surgery after being thrown from a motorised go kart not fitted with a seat belt.  There is no requirement to fit seat belts on motorised go karts in Queensland but the defendant was charged with breach of duty under s 32. The defendant (which had a relevant previous conviction) was fined $100,000 (6% of the maximum penalty) and a conviction was recorded; and

3. (c)
   Framemaster (Qld) Pty Ltd (22 February 2016) was a decision under s 33 of the Act involving a business manufacturing housing frames, trusses and beams. A worker’s arm was amputated while operating machinery.  The worker was not properly inducted in use of the machinery and had observed other staff bypass the safety system to do maintenance while the machine was operating.  The defendant was fined $50,000 (10% of the maximum penalty) and no conviction was recorded.

4. (d)
   The respondents also referred the Magistrate to another (unnamed) decision of Magistrate John Smith under s 32 of the Act involving a worker operating a combined tractor harvester on a macadamia nut farm whose hand became stuck in an auger, resulting in amputation.  The fine imposed was $35,000 (2.3% of the maximum penalty, assuming the defendant was a body corporate).

All of the Magistrates Court cases on s 32 were decided before the District Court decision in Williamson (discussed below), which set a significantly higher penalty.

3. Annexure C contained a summary of 3 interstate Magistrates Court decisions involving s 33 of the Act.  The fines imposed ranged from $7,000 to $37,500 (1.4% to 7.5% of the maximum penalty).  It is impossible to reconcile the range based on the summaries of facts provided.  They all involved different facts to the subject case.

112. [112]
     It would be wrong to treat the cases referred to in the schedules as fixing quantitative boundaries within which future sentences were required to be passed.^[28]

113. [113]
     With respect to the proper use to be made of previous sentences, Fraser JA said in R v Goodwin; Exparte Attorney-General (Qld) [2014] QCA 345:

[5] … 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…

114. [114]
     None of the cases provided to the Magistrate were truly “comparable” to the present, nor are the penalties imposed in them binding. For reasons which are not apparent the penalties imposed in those cases (mainly for offences under s 32) have been very low, both relative to the maximum penalty for the offence and relative to the penalties imposed in New South Wales for the same offence.

115. [115]
     The Magistrate was not referred to any District Court decisions (in Queensland or interstate) nor to any decisions of an intermediate appellate court.

116. [116]
     There is only one decision of this court to date on an appeal against sentence under the Act. It concerns a category 2 offence under s 32: Williamson v VH & MG Imports Pty Ltd [2017] QDC 56 (17 March 2017).

117. [117]
     In Williamson, Dearden DCJ allowed an appeal against a decision of a Magistrate under s 32 of the Act and increased the fine from $90,000 to $125,000.  It concerned a “small to medium business enterprise” that manufactured camper trailers. A worker died after a gas strut exploded and the cylinder penetrated his skull. The court found that the sentence was manifestly inadequate, that the Magistrate erred in failing to properly take into account the gravity and seriousness of the breach, and failed to give sufficient weight to principles of general deterrence and denunciation. 

118. [118]
     With respect to sentences imposed by interstate courts on the same offence, His Honour said:

“[70] It is submitted on behalf of the appellant that sentencing in respect of the harmonised work safety laws in Queensland is analogous to the sentencing of federal offences by state courts. The High Court has recently indicated in R v Pham [2015] HCA 39 that a sentencing judge “must have regard to current sentencing practices throughout the Commonwealth.” It is further submitted by the appellant that “consistency in sentences imposed under the harmonised scheme”, which currently applies in New South Wales, Queensland, South Australia, Tasmania, the Northern Territory and the Australian Capital Territory, should permit sentencing courts to “have regard to decisions in harmonised jurisdictions” which will result in “like cases [being] treated in a like manner.” [footnotes omitted]

…

[72] I have no hesitation in accepting the submission that those objects are facilitated by an application of the analogy of sentencing for federal offences in State courts. …

[73] It follows that in exercising the sentencing discretion afresh, this court should look to relevant decisions in harmonised interstate jurisdictions for guidance on the appropriate penalty. It is accepted, of course, that there is no single “correct” sentence in any given matter, but it is fundamental to a fair system of justice, that sentencing be undertaken with as much consistency as possible.”

119. [119]
     I respectfully agree with those observations.

120. [120]
     Having considered a number of sentences imposed by the New South Wales District Court, His Honour then said:

“[76] In exercising the discretion of this appellate court afresh on appeal, it is my view that a sentence, taking into account both the similarities and distinctions with the comparatives identified above, should be a fine in the order of $250,000, although an appropriate range could extend from $200,000 up to $400,000, depending on the circumstances of the case. The sentence actually imposed in this matter under appeal (a fine of $90,000) is, as I have indicated above, clearly manifestly inadequate.

[77] However, in the particular circumstances of the respondent company, the lengthy delays that have occurred in bringing this matter to finalisation, the issues involved with the Barbaro decision and its legislative over-ruling, and given that this is the first appeal to address the issue of the harmonised national work health and safety laws, it is appropriate to substantially ameliorate the penalty that would otherwise be appropriate. Accordingly, I consider the penalty on re-sentence should be a fine of $125,000.”

121. [121]
     Turning to New South Wales, there is one decision of the District Court involving a defective seat belt. It was charged as category 2 offence under s 32, (which has a higher maximum penalty of $1,500,000) rather than a category 3 offence under s 33. In SafeWork (NSW) v Gregory Paul Dunn [2016] NSWDC 212 Judge Scotting imposed a fine of $160,000 (just over 50% of the maximum fine for an individual of $300,000) under s 32 where the owner supplied a tractor with a slasher with the ROPS was folded down (ie not deployed) and the buckle for the seat belt removed.  The operator was killed when the tractor rolled over.  The court found that even the deployment of the ROPS would not have provided any protection in the absence of the ability to fasten the seat belt and that the offender should not have required the worker to operate the tractor because it was obviously unsafe to do so.  This finding is analogous to the subject case, even though the injuries was different.

122. [122]
     I now consider the principles enunciated Nash v Silver City^[29]in the circumstances of this appeal.

The potential consequences of the risk

123. [123]
     The risk to be assessed is not the risk of the consequence, to the extent that the worker was in fact injured, but the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring.

124. [124]
     Here, the risk to be assessed was the risk of injury to workers of injury from being thrown from the tractor because the tractor was fitted with a ROPS but not a seat belt. Although the injuries in fact suffered by the worker in this case were minor, the gravity of the risk arising from the failure to install a seat belt was very serious. What is relevant are the potential injuries, whether or not they are likely to materialise. The risk had the potential to cause death or serious injury. In the event of a roll over the existence of the ROPS would not have provided any protection, without a seat belt. The offenders should not have supplied the tractor or required the worker to operate it because it was obviously and plainly unsafe to do so.

125. [125]
     In that sense, there is a strict statutory obligation under s 33 and s 215, and the respondents failed to comply with it.

The probability of the risk

126. [126]
     The likelihood of the risk occurring was obvious, identifiable and foreseeable. Tractor rollovers are a particularly frequent and often deadly type of injury incident on farms.^[30]A ROPS alone, without a seat belt, will not protect an operator on a rollover.

The availability of steps to lessen, minimise or remove the risk

127. [127]
     The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.

128. [128]
     Here, the respondents knew or ought reasonably to have known about the risk and that there was a simple, readily available and not costly way of eliminating or minimising the risk: to install a seat belt.

Whether those steps are complex and burdensome or only mildly inconvenient

129. [129]
     The cost associated with that step would have been trivial or minor, relative to the magnitude of the potential risk. This is demonstrated by the speed and ease with which the first respondent installed seat belts on all its other tractors within days after the incident.

The particular offence in the context of the penalties imposed by the Act

130. [130]
     The proportionality of the sentence should depend upon an assessment of the particular offence in the context of the penalties imposed by the Act. Here, the first respondent was charged with the least serious of the three categories of offences, category 3. The Court of Criminal Appeal in Nash v Silver City stated “a category 3 offence may involve a dereliction of duty, varying from the casual to the deliberate, but in circumstances where no individual is exposed to a risk of serious injury or illness”.  

131. [131]
     On the facts of this case, it was clearly open to the prosecution to charge the first respondent with a category 2 offence under s 32 because the offence involved conduct which did expose the individual to a risk of death or at least serious injury (notwithstanding that the injuries in fact suffered were minor). They elected not to do so.

132. [132]
     The statement of agreed facts stated that “the investigation found that [the worker] may have been operating the tractor too fast and without proper lookout”, he “acknowledged that the accident arose because he was driving too fast and lost control” and “indicate[d] that even if the tractor had been fitted with a seat belt he was unlikely to use it”.

133. [133]
     However, the fact that the worker suffered only minor injuries was more a matter of good fortune than anything else. The first respondent demonstrated a level of disregard for proper procedures which exacerbated its culpability. It could have taken the simple and cheap step of installing a seat belt at any time, so as not to place an operator’s life at risk.

134. [134]
     The learned Magistrate failed to give proper weight to the maximum penalty. The maximum penalty available for an offence reflects the public expression by parliament of the seriousness of the offence. The maximum penalty for a category 3 offence (a fine of $500,000) is an important, though not determinative guidepost.

135. [135]
     Having regard to all of the above matters, in reassessing the objective seriousness, the conduct of the first respondent and its dereliction of duty fell in the middle of the range of objective seriousness for a category 3 offence.

136. [136]
     It follows that the appellant has demonstrated that the learned Magistrate erred in the respects identified and in each case she imposed a sentence which was manifestly inadequate. Each involved a vitiating error for the purposes of House v R (1936) 55 CLR 499.

137. [137]
     Having determined that the sentence is manifestly inadequate, I am required to determine the sentence according to law.

138. [138]
     For the reasons explained above, a proper assessment of the conduct of the first respondent warrants the conclusion that the offence was in the mid-range for severity with respect to a category 3 offence. Accordingly, it required a significantly larger fine than that imposed by the Magistrate.

139. [139]
     With respect to the relevance of the size of a corporate defendant in imposition of a fine under the Act, the NSW Court of Criminal Appeal in Nash said^[31]:

“Two factors would indicate that, objectively speaking, the fine should not be at or above the half-way point of the range available. The factors are related. First, the fine will apply to corporate employers of wide-ranging size and ability to absorb a fine. That which would hardly be noticed in the balance sheet of a large corporation may push a smaller corporation to the verge of insolvency, or over. Secondly, it is possible to be satisfied in the case of a small corporation that changes in management practice may diminish significantly the need for individual deterrence. That may not be so powerful a factor with a large corporation which will rely upon general systems and the quality and diligence of its supervisory officers.”

140. [140]
     The penalty imposed in relation to these offences must provide for general deterrence. Employers, suppliers and managers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached. The court has a duty to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace.

141. [141]
     The prospects of the respondents reoffending are low, even though risks are inherent in their operations, and I consider that the need for specific deterrence is comparatively low. However, “just” punishment and general deterrence, are called for.

142. [142]
     Finally, it is necessary to take into account the following facts in mitigation of penalty:

1. they entered early pleas of guilty;

2. they cooperated fully with the investigating authority;

3. they acted speedily to remedy the problem by having existing tractors retro-fitted with seat belts;

4. they had no previous convictions;

5. they were otherwise of good character;

6. there is evidence of rehabilitation and systemic change across the companies.

143. [143]
     Having regard to s 48 of the PSA in imposing a fine, there was no evidence that the offenders had a limited capacity to pay a fine, so this issue does not arise.

144. [144]
     With respect to the first respondent, the maximum penalty for a category 3 offence is $500,000. Doing the best I can to weigh all the relevant considerations set out above, in circumstances where there are no comparable decisions, in my view an appropriate undiscounted penalty is $100,000. The first respondent is entitled to a significant discount or amelioration in recognition of the mitigating factors outlined above, the fact that this is a complainant’s appeal, and in light of the low penalty range submitted by the complainant/appellant.

145. [145]
     Accordingly, I fine the first respondent $35,000.

146. [146]
     With respect to the second respondent, the maximum penalty is $30,000. An appropriate undiscounted penalty is $15,000. It is also entitled to a significant discount or amelioration for the same reasons.

147. [147]
     Accordingly, I fine the second respondent $10,000.

148. [148]
     The appellant does not seek the recording of convictions.

149. [149]
     Having regard to the factors in s 12 of the PSA (to the extent they are relevant to a body corporate), and to s 11, particularly the respondents’ lack of prior convictions and that it was accepted that the respondents were good corporate citizens, I decline to record convictions.

150. [150]
     The appellant does not seek an order for costs.

Order

151. [151]
     Accordingly, in each case the appeal is allowed, the sentence imposed in the Magistrates Court is set aside, and in lieu thereof, each respondent is convicted, and resentenced as follows:

152. [152]
     First Respondent: is fined $35,000.

153. [153]
     Second Respondent is fined $10,000.

154. [154]
     I make no order as to costs.