Citation: Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35
Court: Court of Criminal Appeal
Date: 26 February 2019
Judges: Beazley P, Fullerton J, McCallum J
Background
Ceerose Pty Ltd was the principal contractor on a building refurbishment project in Camperdown. It engaged a steel works subcontractor to manufacture and install three one-tonne steel and glass skylights, and a separate company to conduct all crane lifting operations. On 13 April 2013, after the skylights had been lifted into position approximately 11 metres above ground, the crane left the site and workers were permitted to return to the area beneath the structure. One of the skylights fell, striking and killing a labourer who had been directed to work in the fall zone by Ceerose.
Ceerose pleaded guilty to a Category 2 offence under the Work Health and Safety Act 2011 (NSW), which applies where a duty holder exposes workers to a risk of death or serious injury. The maximum penalty for a corporation committing a Category 2 offence is $1,500,000. The District Court imposed a fine of $300,000, reflecting a starting point of $400,000 discounted by 25 per cent for Ceerose's early guilty plea.
The Attorney General appealed the sentence as manifestly inadequate. The appeal was heard on the same day as a related appeal against the sentence imposed on DSF Constructions Pty Ltd, the steel works subcontractor, arising from the same fatality.
Legal Issues
- Whether the penalty imposed was manifestly inadequate (Ground 1)
- Whether the primary judge failed to have regard to the maximum penalty of $1,500,000 and the significant increase in maximum penalties under the new legislative scheme (Ground 2)
- Whether the primary judge erred in assessing the objective seriousness of the offence (Ground 3)
- Whether the primary judge gave adequate weight to Ceerose's prior conviction for an occupational health and safety offence (Grounds 4 and 5)
- Whether, even if error were established, the Court should exercise its residual discretion not to intervene given the Attorney General's delay in bringing the appeal
Decision
Grounds 2 and 4/5: No specific error established (Fullerton J, Beazley P and McCallum J agreeing)
Although the primary judge did not expressly refer to the maximum penalty or the legislative increase, the majority found it could not be said he failed to have regard to those matters. Similarly, despite brevity in dealing with Ceerose's prior conviction, the sentencing judge took it into account as both an aggravating factor and relevant to specific deterrence. No specific error was established on either ground.
Ground 3: Objective seriousness (majority finding, McCallum J dissenting)
Fullerton J, with Beazley P agreeing, held that the objective seriousness of the offending was significantly greater than the primary judge's mid-range finding. The risk of serious injury or death to workers was plainly foreseeable, the consequences of that risk materialising were obvious, and the measures available to eliminate the risk were simple to implement. The absence of an exclusion zone after the crane departed was a straightforward precaution that Ceerose, as the entity responsible for worker supervision and safety, could readily have taken.
McCallum J dissented on this ground. Her Honour considered that Ceerose had been sentenced on the basis that it had no actual knowledge the skylight had not been secured, and that on that factual premise the primary judge's mid-range finding was not open to challenge. Her Honour also noted that the prosecution had proceeded on different and inconsistent agreed facts as between the two defendants, which complicated the sentencing exercise.
Ground 1: Manifest inadequacy and residual discretion (majority, McCallum J dissenting)
Fullerton J and Beazley P, having found the objective seriousness to be understated, held the penalty was manifestly inadequate. The Court declined to exercise its residual discretion to dismiss the appeal despite the Attorney General's egregious and largely unexplained delay in bringing the proceedings. The majority considered that the delay, while a significant factor, was not sufficient to override the need to correct what it found to be a substantial error in sentencing. McCallum J, having found no error in the objective seriousness assessment, concluded the sentence was not manifestly inadequate and would not have intervened.
Orders Made
- The appeal is allowed
- The monetary penalty imposed by the District Court is quashed
- In substitution, Ceerose Pty Ltd is ordered to pay a penalty of $600,000
- The remaining orders of the District Court are confirmed
Key Takeaways
- A sentencing court's failure to expressly mention the maximum penalty or the increase in maximum penalties under the Work Health and Safety Act 2011 does not automatically establish legal error, provided the record supports an inference that those matters were considered.
- The objective seriousness of a WHS offence is substantially informed by the foreseeability of harm, the severity of potential consequences, and the simplicity of available preventive measures. Where all three factors point strongly in the same direction, a mid-range finding may be vulnerable to appellate challenge.
- Brevity in addressing an offender's prior conviction does not constitute error where the sentencing judge demonstrably took that conviction into account as both an aggravating factor and a specific deterrence consideration.
- An Attorney General's egregious and poorly explained delay in bringing a sentencing appeal is a powerful consideration favouring the exercise of residual discretion to dismiss, though the Court of Criminal Appeal here declined to exercise that discretion given the magnitude of the sentencing error found by the majority.
- Inconsistent agreed facts tendered by the prosecution against two defendants sentenced for offences arising from the same incident can significantly complicate the sentencing exercise and affect the comparative assessment of objective seriousness.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Occupational Health and Safety Act 2000 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33
- Safe Work NSW v Ceerose Pty Ltd [2017] NSWDC 313
- SafeWork NSW v DSF Constructions Pty Ltd [2016] NSWDC 183
- Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- R v Walker [2005] NSWCCA 109
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 47
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49