Citation: Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319
Court: NSW Court of Criminal Appeal
Date: 8 December 2020
Judges: Hoeben CJ at CL; Fagan J; Cavanagh J
Background
The respondent was a metal packaging manufacturer employing approximately 400 people across Australian and New Zealand sites. From around April 2016, it undertook construction of an enclosure room within its Milperra industrial premises to house a new printing machine. The respondent engaged a head contractor, which in turn engaged subcontractors, though the respondent's own engineering team directed the electrical installation work on site.
A subcontractor cut 25 penetrations in the ceiling panels of the enclosure room on 27 and 28 July 2016. None of those penetrations were covered, fenced, or otherwise protected after cutting, despite the subcontractor's own Safety Work Method Statement identifying that risk and specifying plywood covers and barriers as control measures. Senior personnel of the respondent were aware of the penetrations and discussed the hazard at daily toolbox meetings, but no one in a position of responsibility took or directed any practical protective step.
On the night of 1 August 2016, the respondent's employee Mr Glenn Wild was directed to work on the upper surface of the ceiling panels. Shortly after starting his shift, he fell through one of the larger penetrations to the concrete floor below and died in hospital six days later. The respondent pleaded guilty to a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW). The District Court imposed a fine of $75,000 (after a 25% plea discount). The Attorney General appealed on the ground of manifest inadequacy.
Legal Issues
- Whether the fine of $75,000 imposed by the District Court was manifestly inadequate for a Category 2 WHS offence resulting in a worker's death.
- What the appropriate penalty was upon resentencing, taking into account both objective seriousness and the respondent's subjective circumstances.
Decision
The respondent conceded, and the Court of Criminal Appeal agreed, that the penalty of $75,000 was manifestly inadequate. The maximum penalty for a corporation committing a Category 2 offence under the Work Health and Safety Act 2011 is $1.5 million. The concession was properly made, and the Court proceeded directly to resentence.
The Court found no specific error in the sentencing judge's identification of the relevant factors, including objective seriousness, general and specific deterrence, and the respondent's subjective circumstances. The problem was in the weight given to those factors and the resulting quantum. The Court described the respondent's level of negligence as of "a very high order," noting that senior personnel did not need a regulation to tell them that directing workers onto a surface with large unprotected openings created serious risk of death. That negligence made the offence objectively serious within its category.
The Court acknowledged several mitigating factors: the respondent's otherwise sound pre- and post-incident safety record, genuine remorse expressed at the highest executive levels, practical and ongoing support provided to Mr Wild's family, a low risk of re-offending, and full cooperation throughout proceedings including conceding the appeal. The Court also noted that the respondent's continued acknowledgment of the inadequacy of the original penalty in the appeal itself reinforced the genuineness of its acceptance of responsibility.
Weighing all of those factors, the Court determined that the original fine was inadequate by a factor of four. A starting point of $400,000, discounted by 25% for the early guilty plea, produced an appropriate penalty of $300,000.
Orders Made
- Appeal allowed.
- Orders (2) and (3) made by Strathdee DCJ on 20 December 2019 are set aside.
- The respondent is to pay a fine of $300,000.
Key Takeaways
- The Court of Criminal Appeal confirmed that a fine of $75,000 for a Category 2 WHS offence resulting in an employee's death was manifestly inadequate, falling short of an appropriate penalty by a factor of four against a statutory maximum of $1.5 million.
- Objective seriousness is the dominant sentencing consideration in WHS prosecutions of this kind; a very high degree of corporate negligence will substantially outweigh otherwise favourable subjective circumstances.
- Where senior personnel were present on site, aware of an unprotected fall hazard, and took no practical protective steps despite having readily available means to do so, the negligence will be treated as particularly grave even without a specific regulatory prompt.
- Genuine remorse, a strong prior safety record, post-incident support for the deceased's family, cooperation in proceedings, and a low risk of re-offending are all relevant mitigating factors, but none individually or collectively can reduce a penalty to a level disproportionate to the objective gravity of the offence.
- A respondent's concession on appeal that the original penalty was manifestly inadequate can itself be treated as evidence reinforcing the sincerity of corporate remorse and acceptance of responsibility.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D(1)
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2011 (NSW) (referred to in argument)
Cases cited: No specific cases were cited in the portions of the judgment provided.