Citation: Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36
Court: Court of Criminal Appeal, NSW
Date: 27 February 2019
Judge(s): Hoeben CJ at CL, Schmidt J, Adamson J
Background
The appellant was a manufacturing company whose contract worker suffered serious injuries to her right hand in April 2015 while operating an unguarded press at the appellant's workplace. A maintenance setter had failed to reinstall two separate interlocking guards after completing work on the press, and the operator had not been trained to perform a pre-operation safety check. The result was that three fingers were crushed, two fingertips were later lost, and a middle finger was amputated.
The appellant pleaded guilty to a category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW), which carries a maximum penalty of $1.5 million for a corporation. The sentencing judge in the District Court found the offence fell into the mid-range of objective seriousness and imposed a fine of $240,000 before applying a 25% guilty plea discount, resulting in a final fine of $180,000.
The appellant sought leave to appeal that sentence, arguing the offence should have been assessed as low-range rather than mid-range, that mitigating factors had not been given sufficient weight, and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in placing the offence in the mid-range of objective seriousness, rather than the low range, given the existing safety systems the appellant had in place
- Whether the sentencing judge gave proper weight to the mitigating circumstances, including the appellant's safety record, its cooperation, its guilty plea, and its subjective circumstances
- Whether the fine of $180,000 was manifestly excessive, having regard to comparator cases decided under the Act and its predecessor legislation
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds.
On the first ground, the court rejected the argument that the existence of partial safety systems reduced the objective seriousness of the offending to the low range. The agreed facts showed a foreseeable and foreseen risk of serious injury that actually materialised. The risk had been foreseen by the appellant because it had created systems to address it, yet those systems had multiple gaps. Critically, there was no documentation requirement for the setter to confirm guards had been reinstalled, and the operator had not been trained in the pre-operation test. The sentencing judge's mid-range assessment was open on those facts and disclosed no error.
On the second ground, the court found that the sentencing judge had properly taken mitigating matters into account. Those matters included the appellant's otherwise good safety record, its assistance to the injured worker, its cooperation with the investigation, and its guilty plea. The court found no failure to give adequate weight to these factors in the overall exercise of the sentencing discretion.
On the third ground, the court addressed the appellant's argument that comparator decisions, particularly under the predecessor Occupational Health and Safety Act 2000 (NSW) and early decisions under the current Act, indicated the fine was excessive. The court applied the principles from DPP v Dalgliesh [2017] HCA 41, confirming that where a legislature increases maximum penalties, sentencing courts must give effect to that legislative judgment. The $180,000 fine imposed on the appellant was well below even the upper range for mid-range category 2 offences identified in comparable decisions, making a finding of manifest excess unavailable.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that an appellant's partial safety systems do not automatically reduce the objective seriousness of a WHS offence where those systems contained identifiable gaps through which a foreseeable risk materialised.
- Where a legislature increases maximum penalties, sentencing courts are required to give effect to that legislative intent rather than simply importing sentencing ranges developed under predecessor legislation with lower maxima. This principle, drawn from DPP v Dalgliesh, was applied to category 2 offences under the Work Health and Safety Act 2011 (NSW).
- A fine of $180,000, representing a post-discount penalty for a mid-range category 2 corporate offence carrying a $1.5 million maximum, was not manifestly excessive where the risk was both foreseeable and foreseen, and where serious injury actually occurred.
- No error is established in a sentencing judge's instinctive synthesis of objective and subjective factors merely because an appellant contends that mitigating circumstances deserved greater weight, absent an identifiable error of principle.
- In dismissing the appeal, the court noted the fine was far below the upper range for mid-range s 32 offences discussed in Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266, reinforcing that developing sentencing practice under the Act must reflect the legislature's assessment of the gravity of WHS offending.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 14, 16, 18, 19, 28, 31–34
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Occupational Health and Safety Act 2000 (NSW), ss 8, 12
- Fines Act 1996 (NSW), s 6
Cases:
- Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41
- Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266
- Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Nash v Glennies Creek Coal Management Pty Ltd (2015) 91 NSWLR 368
- Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610
- Dyno Nobel Asia Pacific Pty Ltd v Environment Protection Authority [2017] NSWCCA 302
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- R v Pham (2015) 256 CLR 550
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520