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  4. Ghost Gully Produce Pty Ltd v Guilfoyle - [2022] QDC 75

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Ghost Gully Produce Pty Ltd v Guilfoyle[2022] QDC 75

Ghost Gully Produce Pty Ltd v Guilfoyle[2022] QDC 75

DISTRICT COURT OF QUEENSLAND

CITATION:

Ghost Gully Produce Pty Ltd v Guilfoyle [2022] QDC 75

PARTIES:

In DC 29/2021

GHOST GULLY PRODUCE PTY LTD

ACN 104 732 890

(appellant)

v

AARON JOHN GUILFOYLE

(respondent)

In DC 38/2021

AARON JOHN GUILFOYLE

(appellant)

v

GHOST GULLY PRODUCE PTY LTD

ACN 104 732 890

(respondent)

FILE NO/S:

DC 29/2021

DC 38/2021

PROCEEDING:

Appeals pursuant to s 222 Justices Act 1886

ORIGINATING COURT:

Magistrates Court at Toowoomba

DELIVERED ON:

31 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2022

JUDGE:

Judge AJ Rafter SC

ORDERS:

In DC 29/2021:

  1. Appeal dismissed.
  2. The appellant is to pay the respondent’s costs fixed at $1800.

In DC 38/2021:

  1. Appeal allowed.
  2. Set aside the fine of $80,000 and instead order that the respondent be fined $100,000.
  3. Confirm the order that the conviction not be recorded.
  4. Direct that the Registrar give particulars of the fine to the State Penalties Enforcement Registry for registration pursuant to s 34(2A) State Penalties Enforcement Act 1999.

CATCHWORDS:

CRIMINAL LAW (QLD) – APPEALS – rehearing on the evidence before the Magistrates Court pursuant to s 222 Justices Act 1886 (Qld) – where the company was conducting a produce and farming business – where a worker, employed by a contractor, was performing scaffolding work on the roof of a shed – where powerlines were adjacent to the roof of the shed – where the worker suffered electric shock and serious burns injuries – where the company was charged with an offence under  s 40C Electrical Safety Act 2002 (Qld) – where the magistrate was satisfied that each element of the offence was established – where the company was found guilty of the offence – where the magistrate imposed a fine of $80,000 and ordered that a conviction not be recorded

CRIMINAL LAW (QLD) – APPEAL AGAINST CONVICTION – where the company has appealed against the finding of guilt – whether the magistrate erred in law in finding the company held the relevant electrical safety duty – whether, if such duty was held, the magistrate erred in finding that the company had breached its duty – whether the magistrate made findings that were not open

CRIMINAL LAW (QLD) – APPEAL AGAINST SENTENCE – where the Work Health and Safety Prosecutor has appealed against the sentence – whether the magistrate erred in failing to conclude that the offending by the company was more serious than that of the employer of the injured worker – whether the sentence imposed was manifestly inadequate

Electrical Safety Act 2002 (Qld) ss 4, 5, 10, 27, 27B, 28, 30, 40A, 40C, 122C, sch 2

Electrical Safety Regulation 2013 (Qld) s 68

Justices Act 1886 (Qld) ss 148A, 222, 223

Penalties and Sentences Act 1992 (Qld) ss 5, 9, 13, 48

State Penalties Enforcement Act (Qld) s 54

Work Health and Safety Act 2011 (Qld) s 32

Attorney-General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92

Barbaro v R (2014) 253 CLR 58

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors (No 2) [2006] QSC 40

Commissioner of Police v Antoniolli [2021] QCA 237

Commissioner of Police v Broederlow [2020] QCA 161

DL v R (2018) 265 CLR 215

Hili v R (2010) 242 CLR 520

Kentwell v R (2014) 252 CLR 601

McDonald v Queensland Police Service [2018] 2 Qd R 612

R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113

R v Cooper [2021] QCA 169

R v Hawke [2021] QCA 179

R v Maya & Kennedy [2012] QCA 123

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

Steward v Paradise Outdoor Building Company Pty Ltd, Magistrates Court at Mackay 7 June 2019

Steward v Paradise Outdoor Building Company Pty Ltd [2020] QDC 346

Williamson v VH & MG Imports [2017] QDC 56

Work Health and Safety Queensland v Golden Triangle Farming Pty Ltd, Magistrates Court at Cairns 23 November 2018

COUNSEL:

SL Kissick for the appellant in DC 29/2021 and the respondent in DC 38/2021

D Caruana for the respondent in DC 29/2021 and the appellant in DC 38/2021

SOLICITORS:

Ryans Solicitors & Attorneys for the appellant in DC 29/2021 and the respondent in DC 38/2021

Work Health and Safety Prosecutor for the respondent in DC 29/2021 and the appellant in DC 38/2021

Introduction

  1. [1]
    Ghost Gully Produce Pty Ltd (“Ghost Gully Produce”) was charged as follows:

“that on the 13th day of July 2018, at Gatton in the State of Queensland, Ghost Gully Produce Pty Ltd (ACN 104 732 890) being a person who has an electrical safety duty under section 30 of the Electrical Safety Act 2002, to ensure that its business or undertaking is conducted in a way that is electrically safe, failed to comply with that duty, which failure exposed individuals to a risk of death or serious injury, contrary to section 40C of the Electrical Safety Act 2002.”

  1. [2]
    The trial commenced in the Magistrates Court at Toowoomba on 15 February 2021. At the close of the prosecution case Ghost Gully Produce submitted that it had no case to answer. The magistrate reserved his decision. On 17 February 2021, the magistrate ruled that Ghost Gully Produce had a case to answer. The magistrate published written reasons (“no case decision”). The trial resumed on 9 August 2021. Ghost Gully Produce called one witness, following which the magistrate heard closing submissions and then reserved his decision.
  2. [3]
    On 2 September 2021, the magistrate found that Ghost Gully Produce was guilty of the offence and gave written reasons for his conclusions (“trial reasons”). On 30 September 2021, the magistrate imposed a fine of $80,000 and ordered that a conviction not be recorded. The magistrate gave written reasons for the imposition of penalty (“reasons for sentence”).
  3. [4]
    By notice of appeal filed 1 October 2021 Ghost Gully Produce appealed against the finding of guilt and the penalty imposed. However, Ghost Gully Produce accepts that there is no basis on which it could be argued that the penalty is excessive and consequently that aspect of the appeal has not been pressed.[1] By notice of appeal filed on 28 October 2021 the Work Health and Safety Prosecutor (WHSP) has appealed against the sentence on the ground that it is manifestly inadequate.

Nature of the appeal

  1. [5]
    An appeal to the District Court pursuant to s 222 Justices Act 1886 is by way of rehearing on the evidence before the Magistrates Court unless leave is given to adduce fresh, additional or substituted evidence.[2]
  2. [6]
    An appeal by way of rehearing involves the appellate court conducting a “real review” of the evidence given at the trial.
  3. [7]
    In Robinson Helicopter Company Inc v McDermott,[3] the High Court said:

“A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law.  If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.”

  1. [8]
    In McDonald v Queensland Police Service,[4] Bowskill J (as the Chief Justice then was) said that:

“It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.”

  1. [9]
    As explained by Holmes CJ in Commissioner of Police v Antoniolli,[5]

“An appellate court proceeding on an appeal by way of rehearing is obliged to give the judgment it considers should have been given in the first instance, allowing for the limitations of proceeding on the record, including its disadvantage in assessing the credibility of witnesses whom it has not seen give evidence. However, “incontrovertible facts or uncontested testimony” may show the conclusions drawn at first instance to be erroneous, even though based on credibility findings.”

Factual background

  1. [10]
    At the trial Ghost Gully Produce made a number of factual admissions:[6]
    1. (a)
      That on and around 13 July 2018, it was conducting a produce and farming business from premises at 2 Rangeview Drive, Gatton;
    2. (b)
      On 13 July 2018, Matthew Madden, was performing work for the business on the roof of a shed at the premises;
    3. (c)
      Powerlines, controlled by Energex were adjacent to the roof of the shed;
    4. (d)
      An annexure to the admissions depicted the true measurements of distances between various marked points of the shed and the powerlines;
    5. (e)
      The powerlines were uninsulated, 11,000-volt lines;
    6. (f)
      Whilst performing work on the shed, Mr Madden was holding a steel pole measuring approximately 6.5 metres in length;
    7. (g)
      The pole Mr Madden was holding came into contact with or very close to the powerlines;
    8. (h)
      As a result of the pole contacting or coming very close to the powerlines, Mr Madden suffered an electric shock; and
    9. (i)
      The electric shock caused Mr Madden to suffer serious burn injuries.
  2. [11]
    In September 2017, Ghost Gully Produce received a notice from Energex titled “Important Safety Advice”[7] which stated they had visited the property to inspect a potential safety issue. The notice stated that Energex had become aware that a structure on the property was under/adjacent to overhead powerlines and may be in breach of the applicable statutory clearance distances. The notice stated that Energex had a program that ensured statutory clearances are maintained between overhead powerlines and buildings or other structures. Energex advised that they may put in place precautionary measures in order to manage the immediate risk. The notice requested that:
  • Ghost Gully Produce not access the structure or carry out any work on it; and
  • prevent anybody else accessing the structure.
  1. [12]
    The notice stated that the mandatory exclusion zone for unauthorised persons is 3 metres from electric lines. A diagram illustrated that the powerline was 2.4 metres above the shed.
  2. [13]
    Energex placed temporary marker flags on the overhead lines.[8]
  3. [14]
    The prosecution called Matthew Madden, the injured worker employed by Oz Roof Rail Pty Ltd (Oz Roof Rail); Graham Nyman, principal electrical safety officer at the Office of Industrial Relations; and Christina Wicks, principal inspector Workplace Health and Safety Queensland.
  4. [15]
    Mr Madden commenced employment as a scaffolder for Oz Roof Rail in 2013. He had been given a competency certificate to install edge protection. The process of putting up edge protection involved scaffolding the perimeter of the roof to enable people to work safely. Mr Madden had no accreditation in relation to electrical work. Mr Madden was directed to meet the electrician, Jake (Jacob Mohr), on site at Ghost Gully Produce’s premises. Mr Madden was working with another scaffolder, Joshua Churchin.
  5. [16]
    Mr Madden was met onsite by a person with a beard, who he presumed worked for Ghost Gully Produce. There was a discussion between Mr Madden, Mr Mohr and the bearded person about how access could be gained to the roof. There was a cherry picker onsite which Mr Madden was told was available for use if necessary. However he explained that the cherry picker was a towable unit and they did not have a tow bar. It was agreed that Mr Madden could use the fixed ladder in order to access the roof of the shed. Mr Madden said that no one had mentioned the powerlines to him before he started working on the shed. Mr Madden explained the process of installing the edge protection. He said that in the process of doing so, Mr Churchin passed him a piece of steel which he pulled up and he believed it must have come into contact with the powerline.
  6. [17]
    Mr Nyman, principal electrical safety inspector with the Office of Industrial Relations went to the premises at 2 Rangeview Drive, Gatton on 16 July 2018.  He spoke to Gary Samuelsen who said that he and his wife Kym, owned the property. Mr Nyman asked Mr Samuelsen about the marker flags on the overhead powerlines and he told him that Energex had placed them there as the lines were too close to the shed. Mr Samuelsen said that they had received a notice from Energex which he said his wife could possibly locate. Mr Nyman arranged for Energex to take measurements of the distance between the powerlines and the shed.
  7. [18]
    Christina Wicks, principal inspector with Workplace Health and Safety was the lead investigator in relation to the matter. Ms Wicks conducted an ASIC search which revealed that Kym Cherie Samuelsen was the sole director of Ghost Gully Produce.[9] On 24 October 2018, Ms Wicks sent a notice requiring Ghost Gully Produce to provide information and documents pursuant to s 122C Electrical Safety Act 2002. [10] On 13 November 2018, Ms Samuelsen provided a written response to the notice. [11] The notice requested the dates of commencement and completion of construction of the shed with the solar panels on the roof that the workers from Oz Roof Rail were working on 13 July 2018. The response stated that the shed had been constructed prior to Ghost Gully Produce purchasing the property.
  8. [19]
    Ghost Gully Produce called the director, Kym Samuelsen to give evidence. Ms Samuelsen said that the Energex notice had been received in September 2017. Ms Samuelsen said that within three to six months, Energex placed temporary marker flags on the overhead lines.
  9. [20]
    Ms Samuelsen said that the solar panels were installed on the roof of the packing shed by Tindo Solar in June or July 2014.
  10. [21]
    There was a faulty part on the panels and Ghost Gully Produce contacted Tindo Solar in order to have the repairs carried out. Tindo Solar engaged an electrical company, Soltec Electrical and Air Conditioning, to carry out the repairs. On 5 June 2018 an electrician at Soltec, Jacob Mohr advised by email that Tindo Solar had approved the repairs under warranty and that the “goods” would be delivered in the next couple of weeks.
  11. [22]
    Ms Samuelsen said that she sent Mr Mohr a series of photographs including photographs of the overhead powerlines with the temporary marker flags attached. Mr Mohr attended the premises and carried out a visual inspection. Ms Samuelsen said that Mr Mohr delivered a cherry picker to the premises for the purpose of undertaking the repairs.
  12. [23]
    In cross-examination Ms Samuelsen said that the solar panels were used to produce electricity for use in the business. She said that the bearded man referred to by Mr Madden would have been Bruce, an employee of Ghost Gully Produce. Ms Samuelsen said that she did not specifically advise Mr Mohr of the powerlines close to the shed. Ms Samuelsen said she was aware of the Energex notice received in September 2017 and knew that in order to fix the solar panels someone would need to get onto the roof of the shed.

The relevant provisions of the Electrical Safety Act 2002

  1. [24]
    The purpose of the Act is contained in s 4 which provides:

“4Purpose

  1. (1)
    This Act is directed at eliminating the human cost to individuals, families and the community of death, injury and destruction that can be caused by electricity.
  1. (2)
    Accordingly, the purpose of this Act is to establish a legislative framework for—
  1. (a)
    preventing persons from being killed or injured by electricity; and
  1. (b)
    preventing property from being destroyed or damaged by electricity.”
  1. [25]
    The Act provides in s 5 that:

“5How purpose of Act is to be achieved

The purpose of this Act is to be achieved in the following ways—

  1. (a)
    imposing duties on persons who may affect the electrical safety of others by their acts or omissions.”
  1. [26]
    The provision creating the offence is s 40C which provides:

“40CFailure to comply with electrical safety duty—category 2

A person commits a category 2 offence if—

  1. (a)
    the person has an electrical safety duty; and
  1. (b)
    the person fails to comply with that duty; and
  1. (c)
    the failure exposes an individual to a risk of death or serious injury or illness.”
  1. [27]
    The term “electrical safety duty” is defined in s 40A to mean a duty imposed under division 2.
  2. [28]
    The charge alleged that Ghost Gully Produce had an electrical safety duty under s 30 which so far as is relevant provides:

“30Primary duty of care

  1. (1)
    A person conducting a business or undertaking must ensure the person’s business or undertaking is conducted in a way that is electrically safe.
  1. (2)
    Without limiting subsection (1), the duty includes—

…

  1. (c)
    if the person’s business or undertaking includes the performance of work, whether or not electrical work, involving contact with, or being near to, exposed parts, ensuring persons performing the work are electrically safe.”
  1. [29]
    The dictionary in schedule 2 defines “exposed part” as meaning “an exposed conductor or an exposed component of an item of electrical equipment.” The term “exposed” is defined as meaning:
    1. (a)
      bare; or
    2. (b)
      not effectively insulated; or
    3. (c)
      not effectively guarded by either a fixed barrier or an earthed metal shield.
  2. [30]
    The Act provides in s 27 that a duty cannot be transferred to another person. The Act also provides in s 27B that more than one person can concurrently have the same duty.
  3. [31]
    The terms “electrical risk”, “electrically safe” and “electrical safety” are defined in s  10 as follows:

“10Meanings of electrical risk, electrically safe and electrical safety

  1. (1)
    Electrical risk means—
  1. (a)
    in relation to a person, the risk to the person of death, shock or injury caused directly by electricity or originating from electricity; or
  1. (b)
    in relation to property, the risk to the property of—
  1. (i)
    damage caused by a cathodic protection system; or
  1. (ii)
    loss or damage caused directly by electricity or originating from electricity.
  1. (2)
    Electrically safe means—
  1. (a)
    for a person or property, that the person or property is free from electrical risk; and
  1. (b)
    for electrical equipment or an electrical installation, that all persons and property are free from electrical risk from the equipment or installation; and
  1. (c)
    for the way electrical equipment, an electrical installation or the works of an electricity entity are operated or used, that all persons and property are free from electrical risk from the operation or use of the equipment, installation or works; and
  1. (d)
    for the way electrical work is performed, that all persons are free from electrical risk from the performance of the work; and
  1. (e)
    for the way a business or undertaking is conducted, that all persons are free from electrical risk from the conduct of the business or undertaking; and
  1. (f)
    for the way electrical equipment or an electrical installation is installed or repaired, that all persons are free from electrical risk from the installing or repairing of the equipment or installation.
  1. (3)
    Electrical safety, for a person or property, means the person or property is electrically safe.
  1. (4)
    In this section—

free from electrical risk, for a person or property, means that—

  1. (a)
    electrical risk to the person or property has been eliminated, so far as is reasonably practicable; or
  1. (b)
    if it is not reasonably practicable to eliminate electrical risk to the person or property, the risk has been minimised so far as is reasonably practicable.”
  1. [32]
    The Act provides in s 28 for what is regarded as reasonably practicable in ensuring electrical safety:

“28What is reasonably practicable in ensuring electrical safety

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

  1. (a)
    the likelihood of the hazard or the risk concerned happening; and
  1. (b)
    the degree of harm that might result from the hazard or the risk; and
  1. (c)
    what the person concerned knows, or ought reasonably to know, about—
  1. (i)
    the hazard or the risk; and
  1. (ii)
    ways of eliminating or minimising the risk; and
  1. (d)
    the availability and suitability of ways to eliminate or minimise the risk; and
  1. (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.”

The particulars of the charge

  1. [33]
    The WHSP provided the following particulars:[12]

Element 1 – the defendant had an electrical safety duty

  1. On and around 13 July 2018, the defendant was conducting a produce business or undertaking from premises at 2 Rangeview Drive, Gatton.
  2. The defendant had a duty to ensure that their business or undertaking was conducted in a way that was electrically safe.
  3. The defendant’s duty to ensure the business or undertaking was conducted in a way that was electrically safe required the defendant to eliminate electrical risk to persons performing work for the business or undertaking as far as was reasonably practicable.
  4. Electrical risk is the risk to a person of death, shock or injury caused directly by electricity or originating from electricity.
  5. On 13 July 2018, Matthew Madden was performing work for the business or undertaking of the defendant on the roof of a shed at the premises at 2 Rangeview Drive, Gatton.

Element 2 – the defendant failed to comply with a health and safety duty

  1. Whilst performing the work on the shed, Madden was holding a steel pole, measuring over 6m in length.
  2. Some portions of roof of the shed were positioned within 3m of uninsulated high voltage electric lines.
  3. Madden had not been approved by the person in control of the electric line to do work that involved contact with or being near to the electric line. Madden had not consulted with the person in control of the electric line.
  4. Madden suffered serious burn injuries, caused by or originating from electricity, when the pole he was holding came into contact with or close to the electric lines.
  5. Performance of the work within 3m, and generally within close proximity, of the electric lines posed an electrical risk to Madden.
  6. The defendant failed to eliminate electrical risk to Madden as far as was reasonably practicable.
  7. Reasonably practicable steps the defendant could have taken which might have eliminated the risk to Madden and other workers include:
  1. (a)
    ensuring workers, including Madden, did not perform work whilst on the roof of the shed, or otherwise within close vicinity of the electrical lines; and/or
  1. (b)
    warning Madden, or ensuring Madden had been warned, as to the close proximity of the powerlines before Madden began to perform the work; and/or
  1. (c)
    in compliance with s 68 of the Electrical Safety Regulations 2013, ensuring that no person came within an unsafe distance of an overhead electrical line; and/or
  1. (d)
    informing Madden as to the location of the electric lines, in accordance with clauses 2.3 and 4.1.3. of the Electrical Safety Code of Practice 2010 – Working near overhead and underground electric lines; and/or
  1. (e)
    putting in place an exclusion zone, via barricades or markings, precluding workers such as Madden who were on the roof of the shed from coming within 3m of the electric lines.

Element 3 – The defendant’s failure exposed Matthew Madden to a risk of death or serious injury

  1. As a result of the defendant’s failure Matthew Madden suffered an electric shock from a high voltage electric line.
  2. He suffered serious burn injuries.
  3. Electric shock from high voltage electric lines can cause death or serious injury.

The magistrate’s reasons

  1. [34]
    The magistrate correctly stated that the WHSP was required to prove the following elements of the offence beyond reasonable doubt:[13]
  1. Ghost Gully Produce had an electrical safety duty;
  2. Ghost Gully failed to comply with that duty; and
  3. the failure exposed an individual to a risk of death or serious injury or illness.
  1. [35]
    The magistrate was satisfied that Ghost Gully Produce had an electrical safety duty for the reasons given in his Honour’s no case decision.[14]
  2. [36]
    In relation to the first element, the magistrate referred to the submission for Ghost Gully Produce that it did not owe a duty of care under s 30(1) of the Act because it was conducting a produce business and there was no suggestion that the business was being conducted in a way that was not electrically safe.[15]  The magistrate referred to the submission for Ghost Gully Produce that it was no more than a “consumer” utilising the services of a qualified person in relation to the electrical works.[16]  The magistrate also referred to the submission for Ghost Gully Produce that the interpretation of the Act advanced by the WHSP “would open the floodgates to prosecutions.”[17]
  3. [37]
    The magistrate rejected those arguments and concluded that:

“While the business or undertaking being undertaken by the defendant is farming of produce, as part of that enterprise the defendant has installed solar panels on the roof of a shed within their property.  This might not be the primary task of the enterprise which is presumably growing crops.  It may be as an adjunct to the primary task or it may be to reduce the input costs of electricity used as part of or associated with the production of produce, but in any event gaining access to the roof of the shed, for any purpose involves a hazard of being near to exposed parts.”[18]

  1. [38]
    The magistrate said that the real question was the second element, which is whether Ghost Gully Produce had failed to comply with its duty.[19]  The magistrate recognised that the duty was not absolute and involved a consideration of what was reasonably practicable as defined in s 28 of the Act.[20]
  2. [39]
    The magistrate referred to the argument for Ghost Gully Produce that, if it held an electrical safety duty, then the duty was satisfied by engaging suitably qualified people to carry out the work and relying on their expertise.[21]  The magistrate referred to the example given by Heydon J in Baiada Poultry Pty Ltd v The Queen:[22]

“[65] In some circumstances, the employment of independent contractors may be the only reasonably practicable way of ensuring and maintaining a safe working environment.  Assume that two householders want an electrician to lay an electrical wire underground going into their house.  Assume that they also want a plumber to repair pipes near that wire.  Assume that the householders are wholly inexperienced in electrical and plumbing work.  Assume that the electrician and the plumber are expert and experienced in their fields.  Assume that they know where the pipes are in relation to the wire.  Any attempt by the householders to deliver a speech about safety would be likely to prompt aggressive responses from the contractors.  The criteria of reason suggest that it would be more practicable for the householders to rely on the contractors to ensure safety.  To hold otherwise would demonstrate an extreme harshness in the legislation.  Very often those who engage independent contractors know much less about safety than the independent contractors do.”

  1. [40]
    In relation to the breach of the duty the magistrate’s conclusions were as follows:

“[58] I am also satisfied that this is an area that the defendant was able to influence the health and safety outcome.  It is not a case where the defendant could not be expected to contribute because identification of the risk involved an area of expert knowledge that could only be expected to be held by specialist contractor.  The danger posed by the close proximity of the unshielded high voltage powerlines is something that does not require particular expertise to comprehend. Nor does it require particular expertise to be able to easily and adequately pass on a warning about it to others. Also, as counsel for the prosecution notes in his supplementary written submission, the defendant was in a unique position – only it had received an explicit written warning from Energex.

[59] It is not something that merely having engaged suitably qualified trades to carry out the work (noting that this was a tiered subcontracting situation brought about by a warranty claim relating to a faulty solar power system), that the defendant could sit back and rely solely on the expertise of the contractors.  The defendant had been warned about the hazard, and it was reasonably practicable for the defendant to take steps to minimise the risk from the hazard.

[60] It is not to the point that qualified persons ought to have recognised the hazard themselves without the benefit of having received a warning, or that those contractors may be separately liable for their own inaction in not recognising the hazard. S 27B of the Act provides that more than one person can concurrently have the same duty and goes on to provide that “each person … must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter”. As I say, the defendant was in a position to influence the health and safety outcome – and it had low cost and reasonably practicable means at its disposal to do so.

[61] Accordingly, I am satisfied beyond reasonable doubt that in failing to warn of the hazard, or to take any step that was reasonably practicable to eliminate or minimise the electrical risk, the defendant has breached its electrical safety duty.”

  1. [41]
    The magistrate referred to the fact that it had been formally admitted that Mr Madden suffered serious burn injuries from the electric shock and therefore the third element was not in issue.[23]

Grounds of appeal

  1. [42]
    The grounds of appeal are:
    1. (a)
      the magistrate erred in law in finding that Ghost Gully Produce held the relevant electrical safety duty;
    2. (b)
      if such a duty was held by Ghost Gully Produce, the magistrate erred in finding that the prosecution had proved beyond reasonable doubt that it had not discharged its duty;
    3. (c)
      the magistrate made a finding beyond the evidence that Ghost Gully Produce did not pass on knowledge of the existence of the hazard to any contractor (specifically the electrician who was not called to give evidence); and
    4. (d)
      the magistrate made a finding that he was not entitled to make that Ghost Gully Produce was bound by comments relating to a ladder that had been made by an employee.
  2. [43]
    Ghost Gully Produce maintained the submission made before the Magistrates Court that merely being a consumer of electricity to support the operation of a business or undertaking cannot, without more, create a duty of care under s 30(1) Electrical Safety Act 2002. It submitted that the business involved the packaging of produce within the shed, which did not entail “conduct associated with the solar panels other than to use the power that they provided”.[24]
  3. [44]
    Ghost Gully Produce submitted that s 68 Electrical Safety Regulation 2013 which imposes a duty upon persons conducting a business or undertaking to ensure as far as is reasonably practicable that no person at the workplace comes within an unsafe distance of an overhead or underground electric line, illustrates that not all persons conducting a business or undertaking have the duty of care imposed by s 30(1) Electrical Safety Act 2002. It was submitted that the primary duty in s 30(1) is not so broad as to encompass a business having solar panels that support the power by which the work is undertaken.[25]
  4. [45]
    In relation to the breach of duty, it was submitted that there was “no special hidden hazard known only to the defendant.”[26] It was submitted that Ghost Gully Produce relied on qualified experts which was all they needed to do.[27]
  5. [46]
    Ghost Gully Produce criticised the following factual findings made by the magistrate:

“[49] I would think that once the existence of the hazard had been passed on by the defendant to any of the contractors actually performing the work, that practical steps could have been taken by them in consultation with Energex to minimise or eliminate the risk. Such steps could conceivably include, de-energising the powerline while the work was carried out, or insulating that part of the powerline that was within the exclusion zone. There may well be other practical steps that could have been taken. However, the first point is that the hazard needed to be identified by the contractors in the first place. It apparently was not identified by any of them, and accordingly no further steps were taken.

…

[56] No warning was passed on by the defendant, either in the lead up to the work being undertaken, or on the day by the staff member of the defendant present. To the contrary, the evidence is that on being asked if there was any reason why the ladder could not be used, Mr Madden was told, no there wasn’t. The proximity of the powerlines was not mentioned.”

  1. [47]
    The prosecution did not call Mr Mohr, the electrician, to give evidence. Whilst Ghost Gully Produce accepted that the Energex notice had not been brought to Mr Mohr’s attention, Ms Samuelsen had sent photographs of the site to him.[28] It was submitted that it was wrong to assume that because Mr Mohr had not warned Mr Madden about the hazard, that Mr Mohr was not aware of it. It was submitted that “It cannot be assumed automatically that it was a fault of the defendant.”[29]
  2. [48]
    Ghost Gully Produce submitted that it was not clear why the electrician did not insist on the cherry picker that had been brought on site being utilised.[30] It was submitted that the Ghost Gully Produce employee who pointed out the ladder did not speak with any authority on its behalf.[31]

Consideration

Electrical safety duty

  1. [49]
    Ghost Gully Produce contends that as a mere “consumer” of electricity it cannot be subject to any duty imposed by s 30(1) Electrical Safety Act. The submission cannot be accepted.
  2. [50]
    The duty imposed by s 30(1) is upon a person conducting a business to ensure that the business is conducted in a way that is electrically safe. Where the business includes the performance of work, whether or not electrical work, which involves contact with or being near to exposed parts, the duty involves ensuring that the persons performing the work are electrically safe.[32]
  3. [51]
    Ms Samuelsen agreed that the electricity produced by the solar panels was used in connection with the business.[33] The shed was part of Ghost Gully Produce’s premises and was used in connection with its business. The fact that Mr Madden was engaged in installing edge protection to enable the solar panels to be repaired did not mean that he was not engaged in the work of the business.
  4. [52]
    The powerlines were uninsulated 11,000 volt lines. Accordingly, they were an “exposed part”.[34] Mr Madden was working on the shed which was within three metres of the uninsulated powerlines and was therefore working near exposed parts.
  5. [53]
    The fact that other persons also held duties under s 30(1) is irrelevant because s 27B provides that more than one person can have the same duty.
  6. [54]
    The argument for Ghost Gully Produce that it cannot have a duty under s 30(1) because its core business did not involve electrical work cannot be accepted. The argument overlooks the fact that s 30(2)(b) provides for a duty where a person’s business or undertaking includes the performance of electrical work. The duty outlined in s 30(2)(c) applies where a person’s business or undertaking includes the performance of work, whether or not it is electrical work.
  7. [55]
    The fact that s 68 Electrical Safety Regulation 2013 imposes a duty in relation to overhead or underground electrical lines does not mean that Ghost Gully Produce did not have a duty under s 30(1). The offence created by s 40C contains additional elements including that the failure exposes an individual to a risk of death or serious injury or illness.
  8. [56]
    The magistrate was correct to conclude that the business of Ghost Gully Produce involved Mr Madden working near exposed parts. It therefore had a duty to ensure that persons performing the work were electrically safe.

Breach of duty

  1. [57]
    Ghost Gully Produce had a duty to eliminate the risk of electric shock to Mr Madden as far as was reasonably practicable.[35] The prosecution was required to prove that there were control measures available to Ghost Gully Produce that were reasonably practicable and might have eliminated the risk of electric shock to Mr Madden.
  2. [58]
    Mr Madden gave unchallenged evidence that he had asked the electrician, Jacob Mohr, and an employee of Ghost Gully Produce about the use of a fixed ladder to gain access to the roof of the shed. Mr Madden had not been warned about the powerlines. Ms Samuelsen accepted that, despite having received the notice from Energex, she did not specifically warn Mr Mohr of the low powerlines. Mr Madden explained that the cherry picker could not be used because they did not have a tow bar. In any event, the use of the cherry picker would not have eliminated the risk in the absence of a warning.
  3. [59]
    In considering what is reasonably practicable, in relation to a duty to ensure electrical safety, the following factors in s 28 Electrical Safety Act 2002 are relevant:
    1. (a)
      the likelihood of the hazard occurring was high having regard to the proximity of the powerlines to the shed;[36]
    2. (b)
      the degree of harm that could result from the hazard was significant;[37]
    3. (c)
      having received the Energex notice, Ghost Gully Produce was aware of the risk;[38]
    4. (d)
      the costs associated with eliminating the risk were minimal and involved simply warning Mr Madden of the presence of the low powerlines.[39]
  4. [60]
    The magistrate was correct to conclude that Ghost Gully Produce breached its electrical safety duty by failing to warn of the hazard.

Factual issues

  1. [61]
    Ghost Gully Produce submitted that as the electrician Jacob Mohr had not been called to give evidence, it was not open to the magistrate to find that he had not been warned of the existence of the hazard.
  2. [62]
    There is no substance in the submission. Ms Samuelsen, the sole director of Ghost Gully Produce, gave specific evidence that she had not told Mr Mohr of the existence of the hazard.[40]
  3. [63]
    Ms Samuelsen had sent photographs of the site to Mr Mohr and perhaps he should have appreciated the risk and passed that on to Mr Madden. However, that did not absolve Ghost Gully Produce of the obligation to take reasonably practicable steps to eliminate the risk.
  4. [64]
    Mr Madden said that he was not warned about the powerlines.
  5. [65]
    Ghost Gully Produce also argued that the magistrate erred by finding that it was bound by the conduct of its employee. The magistrate made no such finding. The magistrate found, consistently with Mr Madden’s evidence that no warning had been given to him by the employee of Ghost Gully Produce who was present on the day.[41]

Conclusion

  1. [66]
    In the circumstances, the appeal against conviction by Ghost Gully Produce should be dismissed. The appeal against sentence by Ghost Gully Produce was not pressed and should also be dismissed.

Costs

  1. [67]
    In the event that the appeal by Ghost Gully Produce was dismissed, the Work Health and Safety prosecutor sought costs in accordance with the Justices Regulation 2014 in the amount of $1800. Ghost Gully Produce made no submissions to the contrary. Accordingly, Ghost Gully Produce should pay costs fixed in the amount of $1800.

Appeal against sentence by the Work Health and Safety Prosecutor

  1. [68]
    The magistrate imposed a fine of $80,000 and ordered that a conviction not be recorded.
  2. [69]
    The WHSP has appealed against the penalty on the grounds that:
    1. (a)
      The magistrate erred in concluding that the culpability of Ghost Gully Produce was similar to that of Oz Roof Rail Pty Ltd;
    2. (b)
      The magistrate failed to have sufficient regard to the discount afforded to Oz Roof Rail Pty Ltd by virtue of its guilty plea and other cooperation; and
    3. (c)
      The magistrate erred in finding that the decision Williamson v VH & MG Imports Pty Ltd [2017] QDC 56 established a limit on the fine that could be imposed in Ghost Gully Produce’s case.
  3. [70]
    The maximum penalty for a contravention of s 40C Electrical Safety Act, a category 2 offence committed by a body corporate is 15,000 penalty units ($1.5 million).[42]
  4. [71]
    Ghost Gully Produce has no previous convictions.
  5. [72]
    In his reasons for sentence, the magistrate said:

“Here, there was a real risk that persons accessing the roof, particularly a person trying to raise up a long metal pole, would be at risk of the pole coming into contact with the nearby unshielded high voltage power lines. The consequences if that occurred could easily have been fatal, either by the electrocution alone, or by it causing the person to fall from the roof. There were steps available to lessen, minimise or remove the risk. These though relied on the risk being identified and acted upon – for example by arranging with Energex to de-energise the line before the work was carried out.”[43]

  1. [73]
    The magistrate took into account Ghost Gully Produce’s lack of previous convictions[44] and that formal admissions were made which reduced the length of the trial.[45] The magistrate also took into account that there had been a degree of cooperation with the investigators, although Ghost Gully Produce had given some incorrect answers in response to a notice of requirement to give information and provide documents issued by the Office of Industrial Relations.[46] Ghost Gully Produce had been asked to provide copies of all communication or documents received from Energex in relation to the overhead electric lines.[47] It was also asked whether any such communications and/or documents had been provided to the solar company Tindo Operations Co Pty Ltd, the electrician Jacob Mohr or Oz Roof Rail Pty Ltd.[48] Ghost Gully Produce answered “N/A” to each of those questions.[49]
  2. [74]
    The magistrate accepted that Ghost Gully Produce had limited capacity to pay a fine and that a significant penalty would have a real impact on the operations of the business.[50]
  3. [75]
    Mr Madden suffered serious injuries. The force of the electric shock threw him against a solar panel. He was taken by ambulance to the Royal Brisbane Hospital. He had severe burns to his feet. He underwent a surgical debridement and vacuum dressing. Over the next week he underwent three more surgeries including bilateral skin grafts on his feet.
  4. [76]
    Mr Madden was hospitalised for about six weeks. His mental health deteriorated. He was constantly sleep deprived because of the pain. He has been diagnosed with post traumatic stress disorder and a major depressive disorder. Mr Madden suffered physical, emotional, psychological and financial consequences.
  5. [77]
    The WHSP submits that the magistrate wrongly treated the culpability of Oz Roof Rail as comparable to Ghost Gully Produce. Oz Roof Rail failed to comply with its electrical duties involving the same hazard and exposed their employee, Mr Madden, to the risk of death or serious injury.
  6. [78]
    Oz Roof Rail pleaded guilty on 18 May 2021 and was fined $75,000. A conviction was not recorded. It had failed to comply with its duty to identify and eliminate or minimise the risk that the powerlines posed. Oz Roof Rail was a small family business with nine employees. It had no previous convictions. A submission that a significant fine would jeopardise the family’s finances was supported by evidence from Oz Roof Rail’s accountant.
  7. [79]
    At the sentence hearing for Ghost Gully Produce, there were competing submissions about whether it was more or less culpable than Oz Roof Rail.[51] The prosecution submitted that Ghost Gully Produce was more culpable because it had received the express warning from Energex and had taken the matter to trial. Ghost Gully Produce argued that Oz Roof Rail was more culpable because it actually employed the injured worker and ordinarily worked in the field and therefore ought to have been cognisant of the hazards.[52]
  8. [80]
    The magistrate concluded that:

“[32] To my mind considering the factors raised that are for and against, and the matters raised in mitigation, the two cases are closely balanced. I note and accept the issue of capacity, although this is not supported by material as it was in Oz Roof Rail Pty Ltd. I also note countervailing need for the penalty to act as a deterrent and to sufficiently compel attention to the need to comply with electrical safety duties.

[33] I am satisfied that this matter can be regarded as warranting a higher penalty on the basis that it did not resolve on a plea of guilty, even if the trial was run on a limited basis. Also, the ease of the steps readily available to the defendant to comply with its duty, but which it failed to take. The defendant was expressly warned of the hazard by Energex and requested to prevent access to the roof of the shed, but did nothing in response to this – it took no steps to prevent access.”

  1. [81]
    The WHSP submitted that the modest increase in the $80,000 fine imposed upon Ghost Gully Produce compared to the $75,000 fine imposed upon Oz Roof Rail fails to adequately reflect the significant aggravating factors in the present case.  On the other hand, Mr Kissick for Ghost Gully Produce submitted that the magistrate correctly used the penalty imposed on Oz Roof Rail as a guide and yardstick and imposed an appropriate penalty.[53]
  2. [82]
    The WHSP also submitted that the magistrate erred by concluding that the decision in Williamson v VH & MG Imports Pty Ltd[54] established an upper limit on the appropriate fine.  In that case, VH & MG Imports pleaded guilty to a breach of s 32 Work Health and Safety Act 2011 by failing to comply with a health and safety duty which exposed persons to a risk of death or serious injury.  The breach of duty led to the death of a worker.  The company had engaged workers to design and construct a boat frame to attach to a camper trailer in circumstances where no risk assessment had been undertaken, staff were inadequately supervised and they were not qualified to perform the task.  The magistrate imposed a fine of $90,000 with no conviction recorded.  The prosecution appealed against the sentence on the ground that it was manifestly inadequate and that it was well out of line with sentences imposed for similar breaches under the national work, health and safety laws throughout Australia.[55]  On appeal, it was held that the fine should have been in the vicinity of $250,000 but it was observed that “an appropriate range could extend from $200,000 up to $400,000, depending on the circumstances of the case.[56]  However, in the particular circumstances of the case, having regard to particular factors, the learned judge held that it was appropriate to “substantially ameliorate the penalty that would otherwise be appropriate.”[57]  As I have mentioned, the fine imposed on appeal was $125,000. 
  3. [83]
    In his reasons for sentence the magistrate said:

“The case of Williamson v VH & MG Imports Pty Ltd sets perhaps the upper limit, the case there being a prosecution appeal on sentence where the fine imposed at first instance of $90,000 was increased to $125,000.  The same maximum penalty applied, though the circumstances were more severe as the worker was killed as a result of the breach.”[58]

  1. [84]
    On the other hand, Mr Kissick for Ghost Gully Produce submitted that the magistrate’s expression that Williamson v VH & MG Imports Pty Ltd “sets perhaps the upper limit” indicates that his Honour did not regard that case as establishing any fixed upper monetary penalty. 
  2. [85]
    The WHSP also submits that quite apart from the specific errors relied upon, the fine of $80,000 is manifestly inadequate because it falls outside the appropriate range of penalty and fails to reflect the nature and seriousness of the offence. 

Consideration

  1. [86]
    The sentencing guidelines in s 9(1) Penalties and Sentences Act provide that the purposes of sentences include punishment of the offender;[59] to deter the offender and others from committing the same or similar offences;[60] and community denunciation.[61]
  2. [87]
    A court sentencing an offender must have regard to the applicable maximum penalty;[62] the nature and seriousness of the offence including any harm to a victim;[63] the extent to which the offender is to blame for the offence;[64] the offender’s character;[65] any aggravating or mitigating factors;[66] and the degree of assistance given by the offender to law enforcement agencies.[67]
  3. [88]
    In cases of this nature, an assessment of the objective gravity of the offending is often made by reference to the factors identified in Attorney-General for New South Wales v Silver City Drilling (NSW) Pty Ltd[68] which are: the probability of the event occurring; the potential consequences of the risk; the availability of steps to address the risk; and the complexity or otherwise of such steps.
  4. [89]
    In the present case, there was a real risk of fatal or serious injuries being caused through persons coming into contact with, or coming near to, a high voltage overhead powerline.  Having received notification from Energex, Ghost Gully Produce was aware of the risk and was asked to ensure that it prevented people from accessing the structure.  Without adequate control measures being taken to eliminate or minimise the risk, the likelihood of the electrical risk eventuating was readily apparent.  Unfortunately, the risk posed by the high voltage overhead powerline eventuated when the steel pole being held by Mr Madden came into contact with or very close to the powerline.  As a consequence, Mr Madden sustained serious injuries.  There were simple measures available to remove or minimise the risk such as warning the workers of the close proximity of the powerline.
  5. [90]
    Ghost Gully Produce’s culpability involved a failure to warn of or otherwise manage a risk that they knew existed.  On the other hand, Oz Roof Rails’ culpability involved failing to conduct a proper risk assessment or putting in place procedures to identify risks to their employees.
  6. [91]
    The fact that Oz Roof Rail also had duties does not diminish the culpability of Ghost Gully Produce.  The Act provides in s 27B(1) that more than one person can concurrently have the same duty.  Moreover, each duty holder is required to comply with that duty even if another person has the same duty.[69]
  7. [92]
    Ghost Gully Produce and Oz Roof Rail each had a primary duty of care to ensure that their business was conducted in a way that was electrically safe.[70] The magistrate sentencing Oz Roof Rail was required to take into account its plea of guilty[71] and could reduce the penalty that would otherwise have been imposed.[72] The magistrate sentencing Oz Roof Rail stated that the penalty was being reduced because of the plea of guilty.[73] The precise amount of the reduction in penalty was not stated.
  8. [93]
    The issue here is whether a fine of $80,000 adequately reflects Ghost Gully Produce’s culpability. The comparison made with the $75,000 fine imposed upon Oz Roof Rail is simply one aspect of the argument for the WHSP. Having regard to the fact that Ghost Gully Produce had actual knowledge that some parts of the roof of the shed were within three metres of the uninsulated high voltage electrical lines and had been asked specifically by Energex to ensure that they prevented anyone from accessing the structure, I consider that the fine is inadequate.
  9. [94]
    In my view, the magistrate also erred by regarding the comparable case of Williamson v VH & MG Imports where a fine of $90,000 was increased on appeal to $125,000 as setting an upper limit. As I have previously mentioned, the fine of $125,000 was substantially ameliorated because of the particular features of the case. The learned judge considered that had it not been for factors that included lengthy delay in finalising the matter the appropriate penalty was a $250,000 fine.[74]
  10. [95]
    The WHSP also relied on the penalties imposed in the following cases involving category 2 offences under the Act:
    1. (a)
      Work Health and Safety Queensland v Golden Triangle Farming Pty Ltd[75] where a fine of $200,000 was imposed upon a farming company in relation to an incident where a worker who was pruning an avocado tree from an elevated working platform came into close proximity of uninsulated high voltage overhead powerlines and was fatally electrocuted. On the day before and on the day of the fatal incident the worker had been reminded of the need to stay well clear of the powerlines at the end of the rows of avocado trees; and
    2. (b)
      Steward v Paradise Outdoor Building Company Pty Ltd[76] where following a trial, a fine of $250,000 was imposed on a billboard company in relation to an incident where a worker was standing on a ladder and engaged in changing canvas advertising on a billboard. The worker was holding an aluminium sail track which either came into contact with or into very close proximity of an overhead powerline. The worker received significant injuries. An appeal against the conviction was dismissed on 27 November 2020.[77] I was informed that an appeal to the Court of Appeal has been heard. It was not suggested that the issues in that appeal have any relevance for present purposes.
  11. [96]
    The range of penalties in other cases does not establish that it is the correct range or the upper and lower limits of the sentencing discretion.[78]
  12. [97]
    In R v Hawke,[79] Applegarth J explained:

“[94] Sentences which are found not to be manifestly excessive or manifestly inadequate, or which are re-sentenced on appeal if they are, create a pattern. The pattern provides guidance for comparable cases. The cases assist in ensuring reasonable predictability and, more importantly, equality before the law. Cases that are similar should receive a similar sentence, whereas cases that are different should receive different sentences.

[95]  The range of sentences disclosed by an analysis of comparable cases is not necessarily the correct range or determinative of the limits of the sentencing discretion. This court has deprecated the course of seeking to “grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence.””

  1. [98]
    In R v Cooper,[80] Sofronoff P said:

“[16] To succeed on such an application, it is not enough to show that the sentence imposed was different from, or even markedly different from, other examples of sentences in other cases. Rather, it is necessary to demonstrate that there must have been a misapplication of principle or that the sentence imposed is “unreasonable or plainly unjust”.

[17]  Sentencing judges are to be “allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”. Cases that are said to be comparable do not mark with precision the outer bounds of a sentencing judge’s discretion in imposing a sentence in another case. At best they stand as yardsticks.”

  1. [99]
    Where error is established, the appellate court is required to form its own view of the appropriate sentence and sentence afresh unless it concludes that in the exercise of its own independent sentencing discretion, no different sentence is warranted.[81]
  2. [100]
    I have concluded that the magistrate erred in his assessment of the objective gravity of the offending, and by regarding the penalty imposed in Williamson v VH & MG Imports Pty Ltd as setting an upper limit on the available fine.
  3. [101]
    The WHSP submitted to the magistrate that the appropriate fine was between $130,000 and $150,000. On appeal, it was submitted that having regard to the moderation often adopted in the disposition of prosecution appeals against penalty, a fine of $130,000 was appropriate. The WHSP did not challenge the exercise of the magistrate’s discretion to not record a conviction.
  4. [102]
    Although Ghost Gully Produce proceeded to trial, there were admissions made which shortened the length of the trial and it is appropriate to make some allowance for that factor.[82]
  5. [103]
    Ghost Gully Produce is a small family operated business and a significant penalty will have a real impact upon it. Where a court decides to impose a fine, it is required to take into account the offender’s financial circumstances.
  6. [104]
    The imposition of fines is governed by s 48 Penalties and Sentences Act which provides:

“48Exercise 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
  1. (b)
    the nature of the burden that payment of the fine will be on the offender.
  1. (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).”
  1. [105]
    In the present case, the only available penalty is a fine of up to $1.5 million. The fact that a corporate defendant has limited capacity to pay a fine does not preclude the imposition of an appropriate fine.[83]
  2. [106]
    The fine has been referred to the State Penalties Enforcement Registry, but the enforcement order has been suspended pending the determination of the appeal.[84]
  3. [107]
    Although the court may dismiss a prosecution appeal against sentence notwithstanding that an error has been identified, there is no basis for concluding that any injustice would result from Ghost Gully Produce being resentenced.[85]
  4. [108]
    Having regard to the circumstances of the offence, Ghost Gully Produce’s lack of previous convictions, its cooperation in the trial by making admissions, and the impact of a substantial fine, I have concluded that the appropriate fine is $100,000. 

Conclusion and orders

  1. [109]
    I have concluded that the appeal against conviction by Ghost Gully Produce must be dismissed. The WHSP sought costs fixed at $1800. There was no submission by Ghost Gully Produce to the contrary.
  2. [110]
    I have also concluded that the appeal against sentence by the WHSP should be allowed and a fine of $100,000 imposed instead of the $80,000 fine imposed by the magistrate. The WHSP did not challenge the order of the magistrate not to record a conviction.
  3. [111]
    Accordingly the following orders will be made:

In DC 29/2021:

  1. Appeal dismissed.
  2. The appellant is to pay the respondent’s costs fixed at $1800.

In DC 38/2021:

  1. Appeal allowed.
  2. Set aside the fine of $80,000 and instead order that the respondent be fined $100,000.
  3. Confirm the order that the conviction not be recorded.
  4. Direct that the Registrar give particulars of the fine to the State Penalties Enforcement Registry for registration pursuant to s 34(2A) State Penalties Enforcement Act 1999.

Footnotes

[1]  Outline of Submissions for Ghost Gully Produce filed 9 December 2021 at paras 54-55.

[2] Justices Act s 223(1).

[3]  (2016) 90 ALJR 679, 686-687 [43] (footnote references omitted).

[4]  [2018] 2 Qd R 612 at 627 [47] (footnote references omitted).

[5]  [2021] QCA 237 at [2] (footnote references omitted).

[6]Justices Act s 148A(2); (exhibit 2).

[7]  Exhibit 7.

[8]  Transcript of proceedings 15 February 2021 p 18 ll 10-15.

[9]  Exhibit 8. 

[10]  Notice pursuant to s 122C Electrical Safety Act 2002 (Exhibit 9A); schedule to s 122C notice (Exhibit 9B).

[11]  Exhibit 10.

[12]  Exhibit 1.

[13]  Trial reasons at [39].

[14]  Trial reasons at [40].

[15]  No case decision at [12].

[16]  No case decision at [14].

[17]  No case decision at [17].

[18]  No case decision at [28].

[19]  Trial reasons at [43].

[20]  Trial reasons at [44].

[21]  Trial reasons at [50].

[22]  (2012) 246 CLR 92 at 113 – 114 [65].

[23]  Trial reasons at [62].

[24]  Outline of Submissions for Ghost Gully Produce filed 9 December 2021 at para 29.

[25]  Outline of Submissions for Ghost Gully Produce filed 9 December 2021 at para 36.

[26]  Outline of Submissions for Ghost Gully Produce filed 9 December 2021 at para 50.

[27]  Outline of Submissions for Ghost Gully Produce filed 9 December 2021 at para 51.

[28]  Outline of Submissions for Ghost Gully Produce filed 9 December 2021 at para 38.

[29]  Outline of Submissions for Ghost Gully Produce filed 9 December 2021 at para 40.

[30]  Outline of Submissions for Ghost Gully Produce filed 9 December 2021 at para 41.

[31]  Outline of Submissions for Ghost Gully Produce filed 9 December 2021 at para 42.

[32] Electrical Safety Act 2002 s 30(1)(2)(c).

[33]  Transcript of proceedings 9 August 2021 p 5 ll 5-10.

[34]Electrical Safety Act 2002 schedule 2, definition of “exposed part”.

[35] Electrical Safety Act 2002 ss 10, 28.

[36] Electrical Safety Act 2002, s 28(a).

[37] Electrical Safety Act 2002, s 28(b).

[38]Electrical Safety Act 2002, s 28 (c)(i).

[39]Electrical Safety Act 2002, s 28(d).

[40]  Transcript of Proceedings 9 August 2021 p6 lines 1-20.

[41]  Trial reasons at [56].

[42]  The value of a penalty unit for the Electrical Safety Act is $100; Penalties and Sentences Act s 5(1)(d).

[43]  Reasons for sentence 30 September 2021 at [16].

[44]  Reasons for sentence at [20].

[45]  Reasons for sentence at [21].

[46]  Reasons for sentence at [22].

[47]  Exhibit 9B at para 3.

[48]  Exhibit 9B at para 4.

[49]  Exhibit 10.

[50]  Reasons for sentence at [24].

[51]  Reasons for sentence at [29].

[52]  Reasons for sentence at [31].

[53]  Written submissions in response to WHSP appeal against sentence filed 10 January 2022 at [12].

[54]  [2017] QDC 56.

[55]  [2017] QDC 56 at [2].

[56]  [2017] QDC 56 at [76].

[57]  [2017] QDC 56 at [77].

[58]  Reasons for sentence, 30 September 2021 at [26].

[59] Penalties and Sentences Act s 9(1)(a).

[60] Penalties and Sentences Act s 9(1)(c).

[61] Penalties and Sentences Act s 9(1)(d).

[62] Penalties and Sentences Act s 9(2)(b).

[63] Penalties and Sentences Act s 9(2)(c).

[64] Penalties and Sentences Act s 9(2)(d).

[65]Penalties and Sentences Act s 9(2)(f).

[66]Penalties and Sentences Act s 9(2)(g).

[67] Penalties and Sentences Act s 9(2)(i).

[68]  [2017] NSWCCA 96 at [34].

[69] Electrical Safety Act s 27B(2).

[70] Electrical Safety Act s 30(1).

[71]Penalties and Sentences Act s 13(1)

[72] Penalties and Sentences Act s 13(1)(b).

[73] Guilfoyle v Oz Roof Rail Pty Ltd, Magistrates Court at Toowoomba 18 May 2021 transcript p 2 ll 6-7.

[74]  [2017] QDC 56 at [76]-[77].

[75]  Magistrates Court at Cairns 23 November 2018.

[76]  Magistrates Court at Mackay 7 June 2019.

[77]Paradise Outdoor Building Company Pty Ltd v Steward [2020] QDC 346.

[78]Hili v R (2010) 242 CLR 520 at 537 [54]; Barbaro v R (2014) 253 CLR 58 at 74 [41].

[79]  [2021] QCA 179 (footnote references omitted).

[80]  [2021] QCA 169 (footnote references omitted).

[81] Kentwell v R (2014) 252 CLR 601 at 615 [35] (French CJ, Hayne, Bell and Keane JJ); DL v R (2018) 265 CLR 215 at 223–224 [9] (Bell, Keane, Nettle, Gordon and Edelman JJ).

[82] R v Maya & Kennedy [2012] QCA 123 at [27]-[35].

[83]R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 at [132] citing Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors (No 2) [2006] QSC 40 at [17]-[22].

[84] State Penalties Enforcement Act s 54(2).

[85] Commissioner of Police v Broederlow [2020] QCA 161 at [36].

Close

Editorial Notes

  • Published Case Name:

    Ghost Gully Produce Pty Ltd v Guilfoyle

  • Shortened Case Name:

    Ghost Gully Produce Pty Ltd v Guilfoyle

  • MNC:

    [2022] QDC 75

  • Court:

    QDC

  • Judge(s):

    Judge AJ Rafter SC

  • Date:

    31 Mar 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92
2 citations
Jump To
Cite 1 - (2012) 246 CLR 92
Cite 2 - (2012) 246 CLR 92
Barbaro v The Queen (2014) 253 CLR 58
2 citations
Jump To
Cite 1 - (2014) 253 CLR 58
Cite 2 - (2014) 253 CLR 58
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 40
2 citations
Jump To
Cite 1 - [2006] QSC 40
Cite 2 - [2006] QSC 40
Commissioner of Police v Antoniolli [2021] QCA 237
2 citations
Jump To
Cite 1 - [2021] QCA 237
Cite 2 - [2021] QCA 237
Commissioner of Police v Broederlow(2020) 5 QR 296; [2020] QCA 161
2 citations
Jump To
Cite 1 - [2020] QCA 161
Cite 2 - [2020] QCA 161
DL v The Queen (2018) 265 CLR 215
2 citations
Jump To
Cite 1 - (2018) 265 CLR 215
Cite 2 - (2018) 265 CLR 215
Hili v The Queen (2010) 242 CLR 520
2 citations
Jump To
Cite 1 - (2010) 242 CLR 520
Cite 2 - (2010) 242 CLR 520
Kentwell v The Queen (2014) 252 CLR 601
2 citations
Jump To
Cite 1 - (2014) 252 CLR 601
Cite 2 - (2014) 252 CLR 601
McDonald v Queensland Police Service[2018] 2 Qd R 612; [2017] QCA 255
2 citations
Jump To
Cite 1 - [2018] 2 Qd R 612
Cite 2 - [2018] 2 Qd R 612
Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
2 citations
Jump To
Cite 1 - [2017] NSWCCA 96
Cite 2 - [2017] NSWCCA 96
Paradise Outdoor Building Company Pty Ltd v Steward [2020] QDC 346
2 citations
Jump To
Cite 1 - [2020] QDC 346
Cite 2 - [2020] QDC 346
R v Cooper [2021] QCA 169
2 citations
Jump To
Cite 1 - [2021] QCA 169
Cite 2 - [2021] QCA 169
R v Hawke [2021] QCA 179
2 citations
Jump To
Cite 1 - [2021] QCA 179
Cite 2 - [2021] QCA 179
R v Maya [2012] QCA 123
2 citations
Jump To
Cite 1 - [2012] QCA 123
Cite 2 - [2012] QCA 123
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679
2 citations
Jump To
Cite 1 - (2016) 90 ALJR 679
Cite 2 - (2016) 90 ALJR 679
The Queen v Brisbane Auto Recycling Pty Ltd [2020] QDC 113
2 citations
Jump To
Cite 1 - [2020] QDC 113
Cite 2 - [2020] QDC 113
Williamson v VH & MG Imports Pty Ltd [2017] QDC 56
7 citations
Jump To
Cite 1 - [2017] QDC 56
Cite 2 - [2017] QDC 56
Cite 3 - [2017] QDC 56
Cite 4 - [2017] QDC 56
Cite 5 - [2017] QDC 56
Cite 6 - [2017] QDC 56
Cite 7 - [2017] QDC 56

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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