Bennett Developments (FNQ) Pty Ltd v Steward
[2020] QDC 235
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- Bennett Developments (FNQ) Pty Ltd v Steward[2020] QDC 235
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Bennett Developments (FNQ) Pty Ltd v Steward[2020] QDC 235
Bennett Developments (FNQ) Pty Ltd v Steward[2020] QDC 235
DISTRICT COURT OF QUEENSLAND
CITATION: | Bennett Developments v Steward [2020] QDC 235 |
PARTIES: | BENNETT DEVELOPMENTS (FNQ) PTY LTD (appellant) v SHARON STEWARD (respondent) |
FILE NO: | Appeal no. 185 of 2019 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Cairns |
DELIVERED ON: | 18 September 2020 |
DELIVERED AT: | Cairns |
HEARING DATE: | 6 December 2019, 10 March, 9 July 2020 |
JUDGE: | Morzone QC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - category 2 offence under s 32 of the Work Health and Safety Act 2011 (Qld) – sentence of fine of $250,000 with no conviction recorded and costs order of $1596.15 - Was the plea entered according to law and therefore a nullity that vitiates the whole sentence - is the sentence manifestly excessive per se or because the learned magistrate erred - whether too much weight on the penalty range disclosed by a national scheme as opposed to the sentencing regime for Queensland under the Penalties and Sentences Act – whether failed to properly consider the considerations of s 48 of the Penalties and Sentences Act to set the amount of the fine and appellant’s capacity to pay – whether took into account irrelevant considerations as to the State Penalties and Enforcement Registry approach to payment arrangements - whether the defendant should be resentenced – appeal dismissed. Legislation Justices Act 1886 (Qld) s 145, 148, 222 Penalties and Sentences Act 1999 (Qld) ss 9, 12, 13, 41, 42, 43, 44, 48 State Penalties Enforcement Act 1999 (Qld) s 34 Work Health and Safety Act 2011 (Qld) s 32 Cases Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Allesch v Maunz (2000) 203 CLR 172 Commissioner of Police Service v Spencer [2014] 2 Qd R 2 Coulton v Holcombe (1986) 162 CLR 1 Dwyer v Calco Timbers (2008) 234 CLR 124 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 60 Lovell v Lovell (1950) 81 CLR 513 Lowe v The Queen (1984) 154 CLR 606 Norbis v Norbis (1986) 161 CLR 513 R v Lomass (1981) 5 A Crim R 230 R v McIntosh [1923] SR Qd 278 R v Morse (1979) 23 SASR 98 Reynolds v Orora Packaging Australia Pty Ltd [2019] QDC 31 Sharon Steward v Mac Plant Pty Ltd and Mac Farms Pty Ltd [2018] QDC 20 Suttor v Gundowda Pty Limited (1950) 81 CLR 418 Warren v Coombes (1979) 142 CLR 531 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 Williamson v VH & MG Imports Pty Ltd [2017] QDC 56 |
COUNSEL: | P J Feeney for the Appellant P B Waltham for the Respondent |
SOLICITORS: | Bernie Carman & Associates for the Appellant Office of the Work Health and Safety Prosecutor for the Respondent |
- [1]On Friday 1 April 2016, the deceased painting contractor fell 3.2 metres to his death through a void, to the floor, in a house construction site under the control of the appellant building company. The incident occurred when he was alone in circumstances where a make-shift pallet barrier proved an inadequate fall protection barrier pending the planned installation of scaffolding in three days.
- [2]The appellant appeals the sentence imposed by the Magistrates Court on the 15th of November 2018, when the defendant was sentenced for a category 2 offence under s 32 of the Work Health and Safety Act 2011 (Qld) to a fine of $250,000 with no conviction recorded. The defendant was ordered to pay costs of $1596.15.
- [3]The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). On 18 October 2019, I allowed the appellant’s application for leave to extend time to file the notice of appeal. The apellant had shown sufficient reason for the delay and demonstrated that it would be in the interests of justice to grant the extension of time sought, having regard to the issues raised in the appeal and in the absence of any prejudice on the part of the respondent.
- [4]The determinative issues in the appeal are:
- Was the plea defective and thereby nullified the proceeding?
- Is the sentence manifestly excessive per se or because the learned magistrate erred by:
- (a)Giving too much weight to the penalty range disclosed by a national scheme as opposed to the sentencing regime for Queensland under the Penalties and Sentences Act?
- (b)Failing to properly consider the considerations of s 48 of the Penalties and Sentences Act to set the amount of the fine and appellant’s capacity to pay?
- (c)Taking into account irrelevant considerations as to the State Penalties and Enforcement Registry approach to payment arrangements?
- If so, whether the defendant should be resentenced on appeal or returned to the magistrate to resentence according to law?
- [5]Pursuant to section 222 the appeal proceeded by way of rehearing on the original evidence. This court is required to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.[1] The court’s power is 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,[2] and thereby resulting in a manifestly excessive sentence.
- [6]I have concluded that the sentence was not nullified or vitiated by the procedure of accepting the plea through the legal representatives, or manifestly excessive. Therefore, I dismiss the appeal.
Was the plea defective and thereby nullified the proceeding?
- [7]The appellant contends that its plea was not entered according to law and therefore nullified the proceeding.
- [8]Where a point is not taken in the trial court and evidence could have been adduced preventing the point from succeeding, or the point requires a further trial, it cannot be taken afterwards.[3] Otherwise, appellate courts generally tolerate new points. Since the respondent took the opportunity to address the point without any need for fresh evidence, I allowed the new ground to be included in the appeal.
- [9]Section 145(1) of the Justices Act 1886 (Qld) provides that when the defendant is present at the hearing, the substance of the complaint shall be stated to the defendant and the defendant shall be asked how s/he pleads.
- [10]The matter was set for 9 October 2018 for the sole purpose of sentence. The defendant was represented by solicitors and counsel. The hearing proceeded on the basis of an agreed statement of facts being admissions of fact pursuant to s 148A of the Justices Act 1886 (Qld). At the commencement of the hearing, the prosecutor sought and received leave to amend the summons, and invited the court to take the defendant’s plea as follows:
MR WALTHAM: Your Honour, at this stage, it’s probably appropriate for your Honour to take the defendant’s formal plea ---
BENCH: All right. Yes.
MR WALTHAM: --- in relation to the matter.
BENCH: Thank you. Yes, Mr Murdock, you hold instructions on behalf of the defendant company?
MR MURDOCK: Yes, your Honour.
BENCH: Yes, what plea do your clients enter in respect of this matter?
MR MURDOCK: Guilty, you Honour.
BENCH: Yes, thank you. Yes, I’ll record that plea of guilty.
- [11]The proceeding then continued providing each party an opportunity to adduce evidence and make oral submissions supplementing written submissions.
- [12]The written submissions prepared by counsel on behalf of the defendant of 8 October 2018, and tendered as Exhibit 10 at the hearing, expressly affirmed the defendant’s plea in paragraph 1 as follows:
“Bennett Developments (FNQ) Pty Ltd pleads guilty to a charge that it, being a person who held a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (“the Act”), failed to comply with the duty so far as is reasonably practicable contrary to s 32 of the Act and the failure expose an individual to a risk of death or serious injury.”
- [13]The plea procedure was irregular to the extent that the compliant was not stated to the defendant’s officers who were present at the hearing, and its effect will depend on the particular circumstances of this case having regard to any misunderstanding leading to a wrongful conviction, procedural unfairness or resultant injustice.[4]
- [14]In this matter, it seems to me that the non-compliance with s 145 was a mere irregularity which was remedied by way of the plea was effectively entered through counsel for the defendant. The defendant was represented by experienced counsel and solicitors and everyone was in attendance on the appointed day for the particular purpose of sentence. They were plainly cognisant of the complaint by their instructions regarding the amended complaint, agreed facts and extensive written and oral submissions relied upon by their representatives for the sentence. It seems to me that the defendant’s officers actively acquiesced in the procedure adopted. So much is clear from the record below. There was no resultant injustice. The parties were not labouring under any misunderstanding, the conviction was appropriate, and they were afforded procedural fairness.
- [15]In my view, the plea is not a nullity and does not vitiate the sentence.
Manifestly Excessive Sentence
- [16]This court ought not interfere with a sentence unless it is manifestly excessive, that is, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”.[5]
- [17]Even if the appellate court finds that the sentence was at the extreme end of a permissible range, or has a different opinion about the way in which the discretion should be exercised, these are not sufficient justifications for review; it must be shown that the discretion miscarried resulting in a manifestly excessive sentence.[6] In that context, it may be vitiated by an error of principle, where there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.[7]
- [18]
"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
- [19]
“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.”
- [20]The decisions distinguished cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
- [21]The appellant argues that the learned magistrate erred by:
- (a)Giving too much weight on a penalty range disclosed by a national scheme as opposed to the sentencing regime for Queensland under the Penalties and Sentences Act;
- (b)Failing to properly consider the considerations of s 48 of the Penalties and Sentences Act to set the amount of the fine and appellant’s capacity to pay; and
- (c)Taking into account irrelevant considerations as to the State Penalties and Enforcement Registry approach to payment arrangements.
Did the learned magistrate give too much weight to some nationally disclosed range as opposed to the sentencing regime for Queensland?
- [22]The learned magistrate proceeded in apparent acceptance of the submissions advanced by the prosecution, and acquiesced by the defence, that the penalty range may be framed under a national scheme.
- [23]Support for the national scheme comparative approach can be found in Williamson v VH & MG Imports Pty Ltd [2017] QDC 56. The approach was more recently considered in Reynolds v Orora Packaging Australia Pty Ltd [2019] QDC 31, which I prefer for the reasons explained by McGill SC DCJ as follows (footnotes omitted):
[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, relevantly the Penalties and Sentences Act 1992. 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.
[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.
[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.
[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.”
- [24]It seems to me that comparative cases under the nationally harmonised workplace health and safety legislation are an appropriate consideration to ascertain a penalty range as a benchmark against which the appropriateness of the sentence can be gauged. However, that must not usurp, overwhelm or divert the proper exercise of the sentence discretion in accordance with the sentencing guidelines and principles prescribed in the relevant State’s jurisdiction. Here, the Penalties and Sentences Act 1999 (Qld).
- [25]The learned magistrate gave careful and methodical reasons in his sentencing remarks. He did so with the benefit of written and oral submission, which included comprehensive arguments by reference to nationally sourced comparatives and the relevant sentencing considerations for Queensland in the Penalties and Sentences Act 1999 (Qld).
- [26]After categorising the nature of the category 2 offending and maximum penalties in the context of the harmonised workplace health and safety legalisation, he provided a detailed undisputed summary of the facts and later highlighted the aggravating features and matters relevant to personal and general deterrence. The learned magistrate then referred to the victim impact statement, the defendant’s plea of guilty, and remorse. His Honour provided a detailed analysis of the comparative cases noting particularly SafeWork (New South Wales) v Romanous Constructions [2016] NSWDC 048, and Williamson v VH & MG Imports Pty Ltd [2017] QDC 56, to identify a broad penalty range of $150,000 to $250,000. His Honour then set assessed the nature and seriousness of the offending in accordance with the matters identified by Basten JA in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [34]. In that regard, he found that the potential consequences of the risk were catastrophic and turned out to be so. As to the availability steps to lessen, minimise or remove the risk, his Honour remarked that the steps taken to remove the risk “fell far short of the minimum standards”, and the necessary steps were “little more than mildly inconvenience but certainly not burdensome. It would have been quite easy for the appellant to erect proper edge protection.” His Honour was “mindful” of the sentencing principles in s 9 of the Penalties and Sentences Act 1999 (Qld). After “taking all those matters into account” he imposed the fine of $250,000 together with costs. After considering s 12 of the Act, his Honour decided not to record a conviction.
- [27]It seems to me that whilst comparatives under the national scheme were an appropriate consideration, the learned sentencing magistrate, at the parties’ urging, gave significant weight to the comparative range to set a tariff for this nature and seriousness of this category 2 offending. However, his reasons bear out his approach to the case within the framework of the guidelines and principles referred prescribed in Queensland by the Penalties and Sentences Act 1999 (Qld). In doing so, the learned magistrate did not allow his considerations of comparative cases in the national scheme to distract from or overwhelm his considerations of the sentencing guidelines and principles referred as prescribed in Queensland by the Penalties and Sentences Act 1999 (Qld).
- [28]I am satisfied that the learned magistrate did not act on a wrong principle by using the comparative cases in exercising the sentencing discretion under the Queensland legislative regime. This ground of appeal fails.
Did the leaned magistrate fail to properly consider the matters in s 48 of the Penalties and Sentences Act to quantify the fine and the capacity of the appellant to pay?
- [29]The appellant argues that the learned magistrate did not apply or have sufficient regard to s 48 (1) of the Penalties and Sentences Act 1999 (Qld) by adhering to a penalty range underwritten by interstate comparative cases.
- [30]Whilst an established penalty range provides a benchmark against which the appropriateness the sentence can be gauged, the amount and terms of payment of a fine, must nevertheless be determined with due regard to the appellant’s financial circumstances and any burden a fine may have on it.[10]
- [31]Section 48 relevantly provides:
“48 Exercise of power to fine
(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—
- (a)the financial circumstances of the offender; and
- (b)the nature of the burden that payment of the fine will be on the offender.
- (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). …”
- [32]The appellant asserted in its written submission that:
“63 The defendant has made modest profits over the last three years, $105583 in 2017/2018, $110,512 in 2016/2017 and $42,902 in 2015/2016 (see financial statements, Tab 11 of defendant’s Mitigation Documents Bundle). A substantial fine would place pressure on the ongoing viability of the business. The financial circumstances of a defendant are a matter to be taken into account in imposing a fine, see s 48(1) of the Penalties and Sentences Act 1992.”
- [33]This is evidenced by the financial statements (exhibit 21) which can be distilled as follows:
| 2017/18 | 2016/17 | 2015/16 |
Gross profit | $1,248,025 | $1,002,365 | $619,630 |
Director salaries | $140,802 | $124,310 | $69,000 |
Profit before distribution | $105,583 | $110,512 | $42,902 |
- [34]It is not quantitatively clear from the financial records before the court what was meant by the submission that “A substantial fine would place pressure on the ongoing viability of the business”. This submission and financial evidence was intended to support its contention that the appropriate penalty was $175,000. When the learned magistrate fairly telegraphed the prospective range, the appellant’s counsel did not submit that the company had no capacity to meet $250,000, nor that payment arrangements over time would be too crushing for the appellant to make up the extra $75,000.
- [35]True it is that the learned magistrate did not expressly refer to that provision in his sentencing remarks.
- [36]However, I am satisfied that his Honour did have in mind the financial circumstances of the appellant company, its capacity to pay and the nature of the burden of paying the fine. The learned magistrate had the benefit of written and oral submissions, and the financial evidence when exploring the potential range with the appellant’s counsel. The learned magistrate during the course of the sentencing remarks acknowledged that financial records of the appellant revealed “modest annual profits”,[11] he expressly referred to the evidence of financial records saying – “there is some evidence before me in exhibit 21 the company is operating with slim margins and it does not have any significant cash holdings”,[12] and saying – “The prosecutor urges the Court to sentence towards the top end of the range and contends that the State Penalties Enforcement Registry will not crush the company in the recovery of a significant fine. Both of these matters are revenant like all of those matters outlined earlier.”[13]
- [37]Accordingly, the learned magistrate referred the matter to the State Penalties and Enforcement Registry for payment arrangements.
- [38]I am not satisfied the learned magistrate failed to take into account the statutory considerations of imposing a fine. This ground will also fail.
Did the leaned magistrate take into account irrelevant considerations of how the State Penalties and Enforcement Registry could approach payment arrangements?
- [39]The appellant argues that the learned magistrate delegated the consideration of the defendant’s capacity and burden of paying the fine to then State Penalties and Enforcement Registry (SPER) by referring payment arrangements to that body.
- [40]For the reasons set out for ground two, I do not accept that the learned magistrate delegated the relevant consideration and opine that it was an appropriate mechanism to assure compliance with payment by referring to the statutory body powered to do so.
- [41]Pursuant to s 51 of the Penalties and Sentences Act 1992 (Qld), since the learned magistrate did not make an instalment order under s 50(a), his Honour made the referral to the State Penalties and Enforcement Registry under s 34 of the State Penalties Enforcement Act 1999 (Qld). That Act provides an enforcement regime for, inter alia, court ordered fines. The objects of the Act include: maintaining the integrity of fines as a viable sentencing or punitive option for offenders; maintaining confidence in the justice system by enhancing the way fines and other money penalties may be enforced; and reducing the cost to the State of enforcing fines and other money penalties. In fulfilment of these requirements, SPER will register the particulars subject of the referral and will assume statutory responsibility for the collection of the unpaid amount of the fine, including any costs. This may include SPER giving notice of payments by instalments and enforcement proceedings in default.
- [42]It seems to me that this was an appropriate case to refer the fine to SPER for collection, and in doing so the learned magistrate did not allow erroneous or irrelevant considerations to guide or affect him. This ground also fails.
Is the sentence manifestly excessive because it is otherwise too heavy and lies outside the permissible range?
- [43]The relevant factors to which the court must have regard are in the Penalties and Sentences Act 1992 (Qld) in s 9 for the sentencing guidelines, s 12 for recoding of a conviction, s 13 to for the plea of guilty, and ss 41 to 44 relating to fines.
- [44]The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld) is to punish an offender to an extent or in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in the offending and to protect the community.
- [45]The gravity of the offending can also be gleaned by the relative minimum and maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrence. This particular offence falls into category 2 which is punishable up to a maximum of 15,000 penalty units, which equates to a maximum fine of up to $1.5 million calculated uniformly across the various commonwealth jurisdictions. This can be contrasted with a category 1 offence which attracts a maximum of 30,000 penalty units, and a category 3 offence with a maximum of 5,000 penalty units.
- [46]It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending to assess its nature and seriousness and the degree of culpability of the offender.
- [47]
- (a)the potential consequences of the risk;
- (b)the probability of the risk;
- (c)the availability of steps to lessen, minimise or remove the risk;
- (d)whether those steps are complex and burdensome or mildly inconvenient; and
- (e)the particular offence in the context of the penalties imposed by the Act.
- [48]The potential consequences of the risk were obvious. The appellant was responsible for the construction of a two story house and engaged a painting contractor to paint the internal and external area. There was a void between the first and ground level of the house. It was 1.1 metres by 1.92 metres and was 3.2 metres above the ground level and open on one side. The absence of an adequate fall protection barrier on the open side was likely to result in potential catastrophic and fatal injuries being suffered by a worker.
- [49]The probability of the risk was a high risk of falling in the absence of an adequate fall protection barrier. A make-shift pallet barrier proved an inadequate fall protection barrier pending the planned installation of scaffolding in 3 days. It was inadequately held in position in a rudimentary way – propped by one or more buckets of rubble or water and possibly by nails, partly draped with yellow hazard taped with “VP” stencilled on the ends. It was makeshift, temporary and wholly inadequate for the purpose of a fall protection barrier.
- [50]Steps to lessen, minimise or remove the risk were available in the form of scaffolding, which was subsequently put in place after the incident for the completion of the work. The available steps were relatively not complex or unduly burdensome and instead were mildly inconvenient.
- [51]The appellant is wholly to blame for the offence. It had possession of the construction, failed to provide and construct an adequate fall protection barrier in a timely way, and ought to have supervised any subcontractors and related workers in the meantime. Having failed in its obligations, the victim suffered fatal injuries.
- [52]The aggravating features are pregnant in the offending conduct itself. The appellant’s safety plan was mainly generic without appropriate discrimination and attention to the construction of the subject house. This coupled with ad hoc instructions and the inadequate barrier reflects the poor and laissez faire attitude of the appellant in a very high-risk health and safety application attended by potentially catastrophic and fatal consequences. Such matters are prevalently known contributors to offending of this type.
- [53]In mitigation, the appellant relies upon significant reformation of employing scaffolding as effective fall protection barriers, utilising check lists and site registers, and revision of safety plan and procedures. The appellant has no previous relevant offending of this kind or at all. It enjoys a good reputation in the construction industry under the stewardship of its directors who are related as father and son. The character of the company and its directors are highly regarded by peers, workers, the regulator and community alike. So much is clear from the references in evidence.
- [54]Whist providing guarded assistance at the commencement of investigations with some criticism by the prosecution about the effect of their in statutory declarations, they did provide constructive co-operation. Its plea of guilty has also saved further personal trauma, inconvenience and delay for the victim’s grieving family and witnesses, and has saved the community significant costs of trial.
- [55]The nature of the penalty, in the form of a fine, requires consideration of the financial circumstances of the appellant company, its capacity to pay and the nature of the burden of paying the fine. I have remarked about these matters above.
- [56]Manifest excess may be revealed by a consideration of all of the matters that are relevant to fixing the sentence, particularly the nature of the offending and the sentences imposed in the most closely comparable cases. Whilst not the function of this court to reconcile all comparatives, the appellant has identified some which provide a benchmark against which the appropriateness the sentence can be gauged. I agree with the assessment of the range of a fine from $150,000 to $250,000 for offending of this type, and in my view having regard to all the particular circumstances of this case with due regard to the financial capacity and burden on the appellant, the fine ought fall in the higher end of that range.
- [57]Whilst the learned magistrate imposed a harsh sentence in the amount of $250,000 at the highest of that refined fine range, I am not satisfied upon the facts, it is unreasonable or plainly unjust or is too heavy and lies outside the permissible range. On my review the sentence is not manifestly excessive, and this general ground also fails.
Conclusion
- [58]For these reasons, in my respectful view, the trial magistrate did not err in exercising the sentencing discretion, and the result imposed was not manifestly excessive in all of the circumstances of the case, the offence and the offender.
- [59]Having reached that conclusion, it is unnecessary for this court to disturb the sentence, and the appeal will be dismissed.
Judge DP Morzone QC
Footnotes
[1] Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255, [47].
[2] Allesch v Maunz (2000) 203 CLR 172, [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84, [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255, [47]; contrast Forrest v Commissioner of Police [2017] QCA 132, 5.
[3] Suttor v Gundowda Pty Limited (1950) 81 CLR 418 at 438; Coulton v Holcombe (1986) 162 CLR 1, 8-9; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [51].
[4] Commissioner of Police Service v Spencer [2014] 2 Qd R 2 at [48], [49]-[58].
[5] R v Morse (1979) 23 SASR 98; R v Lomass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen (1984) 154 CLR 606.
[6] Lovell v Lovell (1950) 81 CLR 513 at 519 per Latham CJ, 533-534 per Kitto J; see also Gronow v Gronow (1979) 144 CLR at 519, 525, 534 and 537.
[7] House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519.
[8] (1936) 55 CLR 499, 504 and 505.
[9] Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority).
[10] Penalties and Sentences Act 1999 (Qld) s 48.
[11] Decision T5/5.
[12] Decision T6/35-38.
[13] Decision T6/40-44.
[14] Sharon Steward v Mac Plant Pty Ltd and Mac Farms Pty Ltd [2018] QDC 20.
[15] Referring to New South Wales Court of Criminal Appeal in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96.