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Reynolds v Orora Packaging Australia Pty Ltd[2019] QDC 31

Reynolds v Orora Packaging Australia Pty Ltd[2019] QDC 31

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

Reynolds v Orora Packaging Australia Pty Ltd [2019] QDC 31

PARTIES:

STEVEN JOHN REYNOLDS
(appellant)

v

ORORA PACKAGING AUSTRALIA PTY LTD
(respondent)

FILE NO/S:

Appeal 2628/2018; Holl-Mag 6803/2017

DIVISION:

 

PROCEEDING:

Criminal Appeal

ORIGINATING COURT:

Magistrates Court, Holland Park

DELIVERED ON:

21 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2019

JUDGE:

McGill SC, DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – Complainant’s appeal against sentence – whether error by magistrate in sentencing process shown – whether sentence shown to be inadequate – appeal dismissed.

CRIMINAL LAW – Sentence – fine – determination of fine as percentage of maximum, then discount for mitigating factors – impermissible two-stage sentencing process – error of law – sentence not inadequate – appeal dismissed.

Work Health and Safety Act 2011 s 47.

Allesch v Maunz (2000) 203 CLR 172 – cited.

Barbaro v R (2014) 253 CLR 58 – considered.

CMB v Attorney-General (NSW) (2015) 256 CLR 346 – cited.

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 – cited.

Commissioner of Police v Al Shakarji [2013] QCA 319 – cited.

Director of Public Prosecutions v Dalgliesh (2017) 91 ALJR 1063 – considered.

Fox v Percy (2003) 214 CLR 118 – cited.

House v R (1936) 55 CLR 499 – applied.

Lacey v Attorney-General (2011) 242 CLR 573 – cited.

Markarian v R (2005) 228 CLR 357 – considered.

McDonald v Queensland Police Service [2017] QCA 255 – cited.

Nash v Silver City Drilling (NSW) Pty Ltd (2017) 93 NSWLR 338 – considered.

R v Balfe [1998] QCA 14 – cited.

R v BCX [2015] QCA 188 – cited.

R v Boubaris [2014] QCA 199 – applied.

R v D [1996] 1 Qd R 363 – applied.

R v de Simoni (1981) 147 CLR 383 – applied.

R v Dwyer [2008] QCA 117 – cited.

R v Forrester [2008] QCA 12 – applied.

R v GV [2006] QCA 394 – cited.

R v Henderson, ex parte Attorney-General [2013] QCA 63 – cited.

R v Hopper, Ex-parte Attorney-General [2015] 2 Qd R 56 – cited.

R v Law [1996] 2 Qd R 63 – cited.

R v Lawley [2007] QCA 243 – cited.

R v MacDonald [2014] QCA 9 – cited.

R v NJ [2008] QCA 331 – cited.

R v Peterson [2019] QCA 43 – cited.

R v Pham (2015) 256 CLR 550 – considered.

R v Schenk, Ex-parte Attorney-General [2016] QCA 131 – cited.

R v Thompson (2000) 49 NSWLR 383 – cited.

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 – cited.

Rowe v Kemper [2009] 1 Qd R 247 – cited.

Shambayati v Commissioner of Police [2013] QCA 57 – cited.

Steward v Mac Plant Pty Ltd [2018] QDC 20 – considered.

Walker v Davlyn Homes Pty Ltd [2003] QCA 565 – cited.

White v Commissioner of Police [2014] QCA 121 – cited. 

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

Wong v R (2001) 207 CLR 584 – applied.

Young v White [2016] QDC 159 – followed.

COUNSEL:

P Matthews for the appellant

R Morton for the respondent

SOLICITORS:

Prosecution Services of Workplace Health and Safety Qld for the appellant

BT Lawyers for the respondent

  1. [1]
    On 21 June 2018 the respondent pleaded guilty in the Magistrates Court at Holland Park to one charge alleging an offence under the Work Health and Safety Act 2011, s 47, in that it failed in its duty to consult workers about a matter relating to work, health or safety.  The magistrate imposed a fine of $9,000, and did not record a conviction.  The complainant has appealed to this Court under the Justices Act 1886, s 222, on the ground that the sentence imposed was inadequate.

Background

  1. [2]
    The respondent operates a plant manufacturing corrugated cardboard products, in which there is at least one machine which produces corrugated cardboard using a particular system. There was on the machine a facility for a roll of paper to be fed into it to be used in this process. On a particular occasion, an operator of the machine turned it off for the purpose of replacing the roll of paper which had become exhausted. He then discovered that some double-sided tape and paper were stuck to a pressure roller. While he was attempting to remove the tape and paper from the roller it turned, which caused another part of the machine to move suddenly, resulting in injury to the operator’s right hand. It was accepted that it was proper for the operator in the course of his duties to be attempting to remove the tape and paper which were contaminating the pressure roller.
  1. [3]
    The injury was fairly severe, involving five tendons being severed. He subsequently underwent surgery, and has to some extent recovered, though there were said to be some continuing adverse consequences from the injury in the use of the hand. It was alleged that the operator had also been traumatised by the incident. He has returned to work with the respondent, albeit in a different position. His pay was continued at its normal rate throughout the period of his incapacity.
  1. [4]
    A couple of years before this incident, the respondent obtained a risk assessment for this machine from an independent expert, who failed to identify this particular problem. It was however known to maintenance workers at the plant, who were conscious of the need to avoid a situation like this occurring when the machine was shut down, but the operators had never been told of this risk. The complainant’s case was that the effect of s 47 was that the respondent had a duty to consult relevant workers such as the injured operator about this particular risk, as a matter relating to work, health or safety.
  1. [5]
    For the purposes of this appeal I assume that the respondent was guilty of the offence charged. In the course of the hearing it initially seemed to me somewhat curious that the respondent would be charged with failing to consult when the essence of the offending conduct relied on was a failure to provide relevant information to workers about a risk if the machinery was merely turned off.[1]The obligation, however, is to consult in accordance with the relevant provisions of the Act and regulations, and s 48(1) provides a process of consultation which includes the provision of relevant information to the relevant workers. 

Approach to the appeal

  1. [6]
    The appeal is under the Justices Act 1886, s 222, and is by way of rehearing on the evidence given before the magistrate: s 223.  On an appeal by way of rehearing, it is necessary for me to consider the evidence and make up my own mind, particularly in relation to matters involving the drawing of inferences from primary facts, having due regard (where there has been a trial) to the advantages that the magistrate had in seeing and hearing the witnesses, and in being aware of the atmosphere of the trial generally.[2]In the proceeding before me, the onus is on the appellant to show that there was some error in the decision under appeal.[3]As this is an appeal against sentence, the principles in House v R (1936) 55 CLR 499 at 504 – 5 apply: it must appear that some error has been made in the exercise of the sentencing discretion.[4] 
  1. [7]
    I considered the approach to an appeal against sentence by a complainant in Young v White [2016] QDC 159.  I concluded that before a judge would increase a sentence on appeal, it was necessary for the appellant to show that the sentence the subject of the appeal was the result of some legal, factual or discretionary error, then to show that an appropriate sentence in the circumstances was one which was more severe than the sentence in fact imposed, and finally to show that the discretion to vary the sentence initially imposed ought to be exercised in favour of the appellant.  These principles were derived essentially from the decisions of the High Court in Lacey v Attorney-General (2011) 242 CLR 573 at [8]-[35], and CMB v Attorney-General (NSW) (2015) 256 CLR 346, as applied by the Court of Appeal in R v Hopper, Ex-parte Attorney-General [2015] 2 Qd R 56 and R v Schenk, Ex-parte Attorney-General [2016] QCA 131.  My decision has subsequently been applied in this court.[5] 

The offence

  1. [8]
    The Work, Health and Safety Act 2011 (“the 2011 Act”) s 47(1) provides:

“The person conducting a business or undertaking must, so far as is reasonably practicable, consult, as required under this division and any regulation, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work, health or safety.”

  1. [9]
    Section 48 provides what is required for such consultation, which includes providing the workers with relevant information. The essence of the wrongdoing alleged in the present case was the failure to provide relevant information, specifically to warn workers of the risk of something like this happening even if the machine was turned off. It is therefore I suspect a somewhat unusual example of the sort of behaviour which might amount to an offence under s 47, though I was told that this was the only prosecution that has ever been brought under that section.

Submissions of the appellant

  1. [10]
    It was said in submissions for the appellant that the relevant conduct could have constituted an offence under a different section for which a higher penalty is imposed, but it is a matter for the complainant to choose which charge to lay, and a matter for the defendant to decide whether or not to plead guilty to the charge as laid; once a defendant choses to plead guilty to the particular charge laid, the sentencing court proceeds on the basis that the defendant committed that offence, and it would not be proper to sentence on the basis that the defendant was actually guilty of some other, more serious offence.[6]
  1. [11]
    In the present case, the management who would ordinarily be involved in performing duties on employers under the Act, such as the duty under s 47, were unaware of this feature of the equipment, although the maintenance workers were aware that it could behave in this fashion. In view of the plea of guilty, and because this is an appeal only against sentence, it is unnecessary for me to deal with the interesting and sometimes very complex question of who can constitute the mind of a company for any particular purpose, a matter which is the subject of a specific provision in the 2011 Act: s 244. For present purposes its only relevance is that this is not a case where the management of the respondent knew about the particular hazard but consciously refrained from performing the obligation under s 47. The fact that an offence is one of strict liability does not mean that it is irrelevant for the purpose of assessing the criminality of the conduct involved to consider whether the offence was committed deliberately by the defendant.
  1. [12]
    It was submitted that the 2011 Act is part of a national scheme of uniform legislation imposing duties in relation to safety, and penal provisions for breach of duty. I accept that that is so, and that may make the decisions of courts in other states on legislation in the same terms relevant when determining questions of statutory construction, but most offences under the 2011 Act are dealt with as summary offences under the ordinary provisions of the law,[7]relevantly the Penalties and Sentences Act 1992.[8]That Act is most definitely not uniform with the sentencing legislation in other states.  Accordingly, decisions of other states in relation to sentencing practices will not necessarily be of much assistance to Queensland Courts.   
  1. [13]
    To the extent that this is inconsistent with the approach in Williamson v VH & MG Imports Pty Ltd [2017] QDC 56, I respectfully disagree with the approach in that matter.  The decision referred to in that case, R v Pham (2015) 256 CLR 550, recognised that differences in state legislation made applicable in the sentencing of federal offences were matters properly taken into account in sentencing and could explain differences between sentencing practices in different states.  The court held that, to the extent that sentencing was governed by provisions of the Crimes Act 1914 (Cth), those provisions apply uniformly throughout Australia, and it was only to the extent that provisions of state legislation were applicable that differences attributed to those different provisions were appropriate.  That there was an established level of severity of sentence for a particular offence in Victoria which was lower than the level of sentences for the same offence in some other states did not justify imposing a lower sentence for the offence just because the sentence was being imposed in Victoria. 
  1. [14]
    There are two distinguishing features about the situation in Pham which do not apply in the case of this legislation, although it is uniform throughout Australia.  First, there is not the unifying operation of provisions of a Commonwealth Act such as the Crimes Act 1914, and second, there is not the particular appropriateness of offenders against laws of the Commonwealth being dealt with largely the same throughout the Commonwealth, identified in the reasons of the majority in Pham at [24].  Of course, to the extent that decisions in other states turn on general sentencing principles which are equally applicable in Queensland, regard should be had to them; but where they turn on the particular statutory provisions of the sentencing legislation in that state, care needs to be taken to ensure that the legislation in Queensland is sufficiently similar to the legislation in the other state to make decisions applying the provisions of interstate laws applicable in Queensland.
  1. [15]
    Courts should have regard to the decisions of the High Court of Australia when dealing with sentencing where those decisions turn on ordinary sentencing principles, rather than turning on the specific terms of the legislation of a particular state. Those principles should be treated as applying to Queensland subject to the express provisions of the Queensland Act. Accordingly in my view it is not appropriate to apply unquestioningly decisions in other states on offences under the local equivalent of the 2011 Act which are affected by the terms of the local sentencing statutes.
  1. [16]
    One example of the difference in sentencing legislation from state to state is the extent to which the legislation has departed from the general principle laid down by the High Court, that sentencing is not a two-stage process, but rather involves the determination of a sentence having regard at one time to all material considerations, in a single process. Some state legislation has departed from this general principle. In Queensland, where a sentence is reduced by the application of the Penalties and Sentences Act 1992 s 13A, the court must state the sentence that would have been imposed had the considerations covered by that section not applied, as well as the sentence actually imposed.[9]In New South Wales, the legislation contains specific provisions standardising discounts for a plea of guilty, expressed by the statute in percentage terms.[10]This necessarily requires the court to determine the sentence appropriate in a hypothetical case where there had not been a plea of guilty, and then apply the mathematical calculation required by the statute.  By contrast, in Queensland a court, though required to take into account a plea of guilty,[11]has a discretion as to how and (within limits) to what extent it is taken into account.
  1. [17]
    The appellant submitted that the magistrate had not made a proper assessment of the objective gravity of the offence. In this context, reference was made to the severity of the injury suffered by the worker. Strictly speaking, criminality is concerned with an assessment of the conduct of the defendant, rather than the consequences of the offending; it is concerned with the extent to which, as an example of an offence under the section, this can be seen as more or less seriously wrongful conduct.
  1. [18]
    The distinction may be illustrated by the example of a charge of dangerous operation of a motor vehicle causing grievous bodily harm.[12]The criminality of the offending, that is the character of the dangerous driving, depends on what it was that the defendant was actually doing which made the driving dangerous, which can range from momentary inattention through to deliberate reckless behaviour over an extended period of time by someone who ought not to be driving at all.[13]The consequences of the offending, the injury to the victim and any other relevant consequences, are also a relevant factor.[14]In some cases a victim of grievous bodily harm will, with medical treatment, recover fairly quickly without any lasting adverse effects; on the other hand, the consequences of suffering grievous bodily harm can be permanent and very severe.  There is no necessary correlation between the dangerousness of the driving and the seriousness of the consequences to the victim.  Both matters are relevant.
  1. [19]
    In this case, the magistrate noted that the independent professional risk assessment in 2014 had not identified the particular issue which led to the injury. That in my opinion was relevant to the criminality of the offending, as showing that this was not part of any conscious disregard of the health and safety of persons operating that machine. The magistrate noted that the injury to the operator was severe, and that his life had been permanently affected, with continuing restriction in the use of his hand. The magistrate stated the sentencing court must establish the objective seriousness of the offence and assess the nature of the risk involved, from the failure to consult as required, and the potential consequences of the risk, and its probability. There is nothing in the reasons for sentence to suggest that the magistrate did not have regard to the criminality involved in the offending; on the contrary she seems to have had a clear understanding of the nature and consequences of the offending.
  1. [20]
    The appellant’s submission, that there was a lack of a reasonable approach to safety, on the basis that communication of a known and relatively simple issue to workers in order that they were armed to make decisions in the course of their work which might affect their safety was not done, fails to have regard to the fact that, although the issue may have been known to maintenance workers, it was not one to which management of the defendant were alive. Further, doing an independent risk assessment on the machine showed that the interest of workers and their health and safety were not being neglected by the management of the defendant.
  1. [21]
    That the offence was not a manifestation of a general attitude of disregard of the well-being of workers on the part of the defendant was supported by the fact that after the incident the respondent co-operated fully with the investigation, conducted its own investigation, implemented further safety measures including a national alert to staff and further training, and even modified the machine so as to provide an emergency release mechanism for the particular part of the machine which caused the injury in this case. As well, the magistrate noted that the respondent had supported the injured worker appropriately through his rehabilitation, and continued to pay him at the pre-injury rate. Overall, there is nothing in my consideration of the level of criminality presented in these circumstances which would suggest to me that the magistrate failed to have proper regard to it as a relevant matter when determining the sentence. The same applies to the seriousness of the consequences to the injured worker.
  1. [22]
    Although the matter was not particularly developed in argument, I note that the decision in Nash v Silver City Drilling (NSW) Pty Ltd (2017) 93 NSWLR 338 included some discussion as to how the objective seriousness of the offence was to be assessed.  That analysis was by reference to the particular offence then before the court, an offence against s 32 based on a breach of s 19 of the New South Wales Act.  Basten JA at [41] said that broadly speaking the degree of culpability of the respondent may properly be assessed by reference to the risk against which steps falling within the definition of what is reasonably practicable are to be taken.  This was said just after he had said that the objective seriousness of the offence was to be assessed in accordance with Part III of the Crimes (Sentencing Procedure) Act 1999 (NSW); reference was also made to s 21A, which has no Queensland analogy. 
  1. [23]
    It is not at all clear whether the idea of assessing culpability of the respondent by reference to the risk against which the respondent failed to do what was reasonably practicable, was based on that Act, but in any case that is at most an approach relevant to the assessment of the objective seriousness of an offence under that or an analogous provision in Queensland. The offence to which the respondent pleaded guilty was not under an analogous provision of the Queensland Act. Further his Honour went on to say at [42] that culpability will turn upon an overall evaluation of various factors, which may pull in different directions, and subsequently “that assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known”. These statements are inconsistent with the notion that the only factor of any importance in relation to assessing the objective seriousness of the offence is the magnitude of the risk which the defendant failed to take reasonably practicable steps to guard against. I note that his Honour also regarded the injury which was suffered as a result of the materialisation of the risk as being a relevant factor, in that case an important aggravating factor because of the seriousness of the injury, but distinguished between the risk and the injury which was the materialisation of the risk: [43].
  1. [24]
    It was further submitted that the magistrate did not have sufficient regard to the importance of deterrence. There had been no previous convictions of the respondent, and in circumstances where there was no reason to think that the offence involved deliberate disregard of the well-being of workers, no basis for a conclusion that there was any particular need for individual deterrence of this defendant. The behaviour of the defendant after the injury, and the early indication of a willingness to plead guilty, suggest that there was no such need.[15] 
  1. [25]
    With regard to general deterrence, the magistrate did not overlook this feature, as shown by the following references:
  1. (a)
    To the need for the court to impose a sentence that acts as a general deterrent and promotes compliance with health and safety duties at work.
  1. (b)
    To guidance from the authorities in Nash v Silver City Drilling (NSW) Pty Ltd (supra) and Steward (supra), both of which refer to the significance of general deterrence in this area.[16]

This ground is not made out.

  1. [26]
    The magistrate was also referred to two decisions on prosecutions for different offences, which nevertheless had the same maximum penalty. One was a decision of a South Australian industrial magistrate: Boland v Trainee and Apprentice Placement Services Inc [2016] SAIRC 14.  The other was a decision of a Brisbane magistrate on 28 November 2017, but what was put before the court was not a transcript of the sentencing remarks on that occasion, but a document from the departmental website referring to the decision, in the nature of a press release.  The magistrate said in her sentencing remarks that she noted both of those decisions.  The magistrate should have disregarded the Queensland decision, as it was not properly before her; it is not appropriate to use something like a press release as a means of putting before a magistrate information about an earlier decision of a court on which a party relies.
  1. [27]
    This is not a mere theoretical objection. The document does not identify what were found to be the circumstances of the offence in that case, and does not necessarily refer to all the circumstances relevant to assessing criminality, or all applicable mitigating circumstances. It does not distinguish between departmental submissions or interpretation and what was actually said by the magistrate. As such it was useless. It was improper for the appellant to have sought to rely on it before the magistrate, but given the very limited information about the relevant circumstances that it contained, I cannot believe that it had any real effect on the decision of the magistrate in the present case, so it may be treated as harmless. The fact that these two decisions involved different circumstances and a different offence, so that really the only common feature was the maximum penalty, means that they were matters upon which no real reliance should have been placed anyway.
  1. [28]
    The fact that they were relied on really was of a piece with much of the submissions made to me, which turned on an excessively mathematical approach to the quantification of the fine. At one point the mathematical relationship between the fines imposed for various other offences and the maximum penalties for the particular offences was referred to. It has been said authoritatively several times that sentencing is not a mathematical exercise, and there is no particular reason why the mathematical relationship between the particular fine imposed and the maximum fine available in one or indeed half a dozen other cases should carry any particular significance, especially when those cases involved different offences with different elements, different features of objective seriousness, and different mitigating circumstances.[17] 
  1. [29]
    Indeed, at one stage the submissions criticised a comment by the magistrate in the course of the hearing that “it would be highly unusual on a plea of guilty for a company to be fined 40 per cent of the maximum penalty if they have no previous [convictions], even given the facts. It’s not the worst injury that’s been before the court” (p 5). This was criticised on the basis that the second respondent in Steward (supra) was on appeal fined the sum of $10,000 compared with the maximum penalty of $30,000, notwithstanding that that company had no previous convictions. 
  1. [30]
    In Steward there were two offenders.  The complainant’s appeal had been allowed in respect of both respondents, and her Honour resentenced in terms which do not obviously distinguish between either the criminality or the mitigating circumstances of the two respondents.  The other offender was charged with a more serious offence, with a much higher maximum penalty, $500,000, under a different section, and that offender was fined $35,000, 7 per cent of the maximum.  That just serves to demonstrate that this sort of mathematical analysis is essentially useless.  The maximum penalty is certainly a relevant factor, but there is no authority supporting an approach to sentencing which involves drawing some mathematical relationship between the maximum penalty and a comparison between the circumstances in the present case and the circumstances of a case sufficiently serious to justify the maximum penalty.  Such an exercise would necessarily be quite artificial.  There is in my opinion no validity in such criticism of the magistrate’s decision.
  1. [31]
    Counsel for the appellant complained about the fact that the magistrate had referred in the sentencing remarks to the existence of a significant delay in commencing the prosecution. There was no issue about the prosecution having been commenced out of time. There was a period of about 18 months between when the incident was investigated and when the prosecution was commenced. The magistrate did not indicate that the sentence had been reduced because of this factor. There are authorities dealing with the circumstances under which delay in commencing a prosecution may be relevant.[18]They are generally relevant in cases where the delay was much greater than this.  It could be said that for much of that period of 18 months the respondent was in a state of uncertainty as to whether it was going to be prosecuted, but in my opinion that would not be a factor which would produce any significant effect on a sentence, and there is nothing to indicate that it has done so in the present case.  I do not think there is any substance in that matter.

“Two-Stage” sentencing

  1. [32]
    That deals with the matters specifically complained of in written or oral submissions by the appellant. There is however one matter in the sentencing remarks of the magistrate which concerns me. The magistrate said, accurately,:

“I note that the fine imposed on appeal in the matter of Mac Plant was set in two-stages.  The appropriate [undiscounted] amount was set at 20 per cent of the available maximum, which was then reduced to one third of that amount.  After I have weighed all the relevant considerations set out in the authorities discussed in this decision, I reached the conclusion that the appropriate, undiscounted amount is $15,000.  I find that Orora is entitled to a significant discount or amelioration to properly reflect the mitigating factors outlined.”

The magistrate then imposed a fine of $9,000.

  1. [33]
    This is an example therefore of a “two-stage” sentencing process, where the magistrate first derived a sentence taking into account some of the relevant factors, but not all of them, in particular not factors in mitigation, or perhaps not all of them, and then applied a further discount. There is compelling authority that that is not the correct approach to the sentencing process. In Wong v R (2001) 207 CLR 584 three of the four judges constituting the majority said in a joint judgment, at [74]:

“…the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be increments to, or decrements from, a predetermined range of sentences.  That kind of approach, usually referred to as a “twostage approach” to sentencing, not only is apt to give rise to error, it is an approach that departs from principle.  It should not be adopted.

[75] It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong.  We say “may be” quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an “instinctive synthesis.””

  1. [34]
    Their Honours went on to note that an analysis of the authorities in Australia conducted by the then Chief Justice in R v Thompson (2000) 49 NSWLR 383 at [396]-[411], showed that the weight of authority in intermediate appellate courts of Australia was clearly against adopting two-stage sentencing and favours the instinctive synthesis approach.  They added in paragraph [76] that the two-stage approach is wrong in principle.  In Markarian v R (2005) 228 CLR 357 a joint judgment of four of the six judges of the court cited at [37] a longer passage from Wong v R which included the parts that I have quoted.  Their Honours said at [39]:

“Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison.  That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden.

There may be occasions when some indulgence in an arithmetical process will better serve these ends.  This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.”

  1. [35]
    In Barbaro v R (2014) 253 CLR 58 four members of the court in a joint judgment said at [34}: “Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction.  A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features.  The sentence cannot, and should not, be broken down into some set of component parts.” Their Honours then cited the statement from Wong quoted earlier.    In Director of Public Prosecutions v Dalgliesh (2017) 91 ALJR 1063 the joint judgment of three of the five justices constituting the court at [5] quoted a passage from Wong including: “The task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all”.  They said that the statement was referred to with evident approval in the passage to which I have referred in Markarian.
  1. [36]
    This approach has been applied in the Queensland Court of Appeal, for example in holding that it was wrong in principle to treat a sentence to which s 9(4) of the Act applied as a two-stage process, with the question of whether exceptional circumstances existing being determined prior to determining the sentence to be imposed.[19]Burns J with whom the other members of the court agreed said in R v BCX [2015] QCA 188 at [35]:

“Viewed in this way, a finding whether exceptional circumstances exist is but one part of the overall process of “instinctive synthesis” discussed by McHugh J in Markarian v The Queen whereby each of the factors relevant to the sentence are identified and then weighed before a value judgment is made as to a sentence which is, in all of the circumstances of the case, appropriate.”

  1. [37]
    There are situations where it may be appropriate to express a sentence in a two-stage process, where it is sought to identify how a particular factor has been taken into account, or to make it clear that the sentence is by reference to a notional sentence which for some reason it is not appropriate to pass.[20]Another example where it may be appropriate is if a plea of guilty is being taken into account in an unusual way, for example, by reducing the head sentence rather than by allowing early parole.[21]In such a case, it may useful to identify how a particular factor has been taken into account, in the interests of transparency, and to avoid the risk that otherwise an appeal court may draw the conclusion that the factor was not taken into account.  But that is not what the magistrate has done in this case; the approach seems to have been to fix a fine which took into account the circumstances of the offending and presumably any aggravating factors, but no mitigating factors, and then applied a discount to take into account the mitigating factors.  Such an approach appears to me to be clearly contrary to the principle referred to in Wong and the later High Court decisions.
  1. [38]
    It is hardly the fault of the magistrate that she fell into this error. The same approach was adopted in Steward, apparently because an approach of that nature had been adopted in Nash.  That approach may have been adopted in Nash because of the terms of the New South Wales sentencing legislation, which may encourage these matters to be stated in percentage terms, and may have been thought to have superseded the principle in Wong.  But there is no equivalent legislation in Queensland, and in my opinion it was an error to adopt that approach in this situation.  The fact that the 2011 Act is part of a consistent set of state legislation does not provide a justification for uniformity of approach in this respect.  When imposing a fine as a penalty for an offence under the 2011 Act, it must be done in accordance with ordinary sentencing principles, including that the correct approach is to derive a sentence having regard at the one time to all relevant factors.
  1. [39]
    It follows that in my opinion the magistrate in this respect made an error of law. This means that the first hurdle to a successful appeal has been crossed. The second hurdle however is to show that as a result the sentence imposed was too low. I have referred to the circumstances of the offending and the various factors, and do not propose to repeat them at this stage. Having regard to all of those factors, and bearing in mind that there is no history of sentencing for this offence which can provide some form of historical guidance, in my independent judgment I am not persuaded that the sentence in fact imposed was too low. There is no cross appeal by the respondent, so it is unnecessary for me to consider whether the sentence in fact imposed was too high. In those circumstances, the appropriate course is simply to dismiss the appeal.

Footnotes

[1]  I gather there was something which could be done to render the relevant part of the machine safe when it was turned off.

[2] Fox v Percy (2003) 214 CLR 118 at [22] – [25]; Rowe v Kemper [2009] 1 Qd R 247 at [3] – [5]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7]; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2017] QCA 255 at [47].

[3] Allesch v Maunz (2000) 203 CLR 172 at [23]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [16]; Walker v Davlyn Homes Pty Ltd [2003] QCA 565 at [9]; Shambayati v Commissioner of Police [2013] QCA 57 at [23]; White v Commissioner of Police [2014] QCA 121 at [8]; McDonald v Queensland Police Service [2017] QCA 255 at [47].

[4] R v Lawley [2007] QCA 243 at [18]. 

[5] Steward v Mac Plant Pty Ltd [2018] QDC 20. 

[6] R v de Simoni (1981) 147 CLR 383 at 389; R v D [1996] 1 Qd R 363 at 403-4; R v Forrester [2008] QCA 12; R v Boubaris [2014] QCA 199 at [34], [35].  If it emerges that the facts relied on do not support the commission of the offence, the court should set aside the plea of guilty: R v GV [2006] QCA 394 at [31] – [40]. 

[7]  The 2011 Act s 230(1AA).

[8]  Additional orders can be made under Division 2 of Part 13 of the 2011 Act, but none were in this case.

[9]  It may be that this can be reconciled with principle on the basis that the court, as well as determining the actual sentence taking into account all relevant considerations including those under s 13A, also has to determine a hypothetical sentence taking into account all relevant considerations apart from those arising under s 13A.

[10] Crimes (Sentencing Procedure) Act 1999 (NSW) Part 3 Division 1A, especially s 25D. 

[11] Penalty and Sentences Act 1992 s 13.

[12]  Under the Criminal Code s 328A. 

[13] R v MacDonald [2014] QCA 9 at [17]; R v Boubaris [2014] QCA 199 at [36].  Or the use of a vehicle as a weapon: R v Henderson, ex parte Attorney-General [2013] QCA 63 at [54].  The distinction between the quality of the driving and the consequences was drawn at [53]. 

[14] R v Balfe [1998] QCA 14. 

[15] Nash at [59].

[16] Nash at [47]; Steward at [140].

[17]  For guidance as to the correct significance of a maximum penalty, and an illustration of an incorrect use of it, see Markarian v R (2005) 228 CLR 357 at [30]-[33].

[18]  See for example R v Law [1996] 2 Qd R 63; R v NJ [2008] QCA 331. 

[19]  For another example, see R v Dwyer [2008] QCA 117 at [37]. 

[20]  For example, if an offender is entitled to credit for some other term of imprisonment which has been served but which is not declarable for the purposes of the offence for which he is being sentenced, or where an offender has, since committing the offence, being diagnosed with a terminal disease.  A statutory example appears in s 13A referred to above.

[21]  See for example R v Peterson [2019] QCA 43. 

Close

Editorial Notes

  • Published Case Name:

    Reynolds v Orora Packaging Australia Pty Ltd

  • Shortened Case Name:

    Reynolds v Orora Packaging Australia Pty Ltd

  • MNC:

    [2019] QDC 31

  • Court:

    QDC

  • Judge(s):

    McGill DCJ

  • Date:

    21 Mar 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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