Coggins v NQ Roofing Group Pty Ltd (No.2) [2012] ICQ 1

CITATION: Dean Allan Coggins AND NQ Roofing Group Pty Ltd (C/2011/28) - Decision (No 2) <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 - s. 164(3) - appeal against decision of industrial magistrate Dean Allan Coggins AND NQ Roofing Group Pty Ltd (C/2011/28) (No. 2) PRESIDENT HALL 3 February 2012 DECISION [1] On 20 January 2010, a Complaint was made before a Justice of the Peace that, on 3 June 2009, NQ Roofing Group Pty Ltd (the Corporation) had contravened the Workplace Health and Safety Act 1995 (the Act), by failing to discharge the workplace health and safety obligation imposed upon the Corporation by s. 28 of the Act. By a decision delivered on 15 June 2011, the Industrial Magistrate at Cairns found NQ Roofing Group Pty Ltd to be not guilty. The Corporation was discharged. There was a successful Appeal to this Court. The decision of the Court of 18 October 2011 is now reported (Dean Allan Coggins v NQ Roofing Group Pty Ltd1). Save for paragraph [12] it is unnecessary to republish the decision here. Paragraph [12] is in the following terms: "[12] I allow the Appeal and set aside the Orders of the Industrial Magistrate. It will be necessary to take submissions on sentence. As a matter of prudence, I shall also hear any submissions about the alternative defence referred to at paragraph [58] of the Industrial Magistrate's reasons for decision.". In the event, it was accepted by both parties to the Appeal that the alternative "defence", viz., that the grievous bodily harm suffered by the contractor (Mr Moore) was not caused by NQ Roofing Group Pty Ltd, was a "defence" which was not open on the evidence. The only issue argued when the Appeal was recalled, was the quantum of the fine. It is conceded by the Appellant that a conviction should not be recorded. [2] The maximum fine for breach of s. 24 of the Act is 1000 penalty units, multiplied by 5 in the case of a corporation, see s. 181B(3) of the Penalties and Sentences Act 1992. At the time of the offence the value of a penalty unit was $100, see s. 5(1)(b) of the Penalties and Sentences Act 1992. It follows that NQ Roofing Group Pty Ltd faces a maximum fine of $500,000. [3] Perhaps predictably, Counsel for the Appellant focuses on the decision of this Court in Waltham v Transfield Services (Australia) Pty Ltd2 at 182: "However, in the case of lower level grievous bodily harm injuries, there is a cluster of cases with similar elements of blame and similar mitigating features, which fall in a range of $30,000 to $40,000, compare Brian Marfleet v Lindsay Meyers Pty Ltd (2006) 183 QGIG 240. The cases constituting the cluster are usually said to be Rigby Hughes v Hessey Pty Ltd (2005) 180 QGIG 294 [sic, 924] ($30,000), Lowe v BBC Hardware Limited (2006) 182 QGIG 204, Marfleet v Lindsay Meyers Pty Ltd (2006) 183 QGIG 240 ($35,000). Prior to the last increase in the maximum fine available there was a comparable cluster consisting of Newman v JBL Applicators Pty Ltd (2003) 172 QGIG 1096 ($27,500), Geraty v Friendly Sofa Designs Pty Ltd (2003) 173 QGIG 10 ($25,000), Neilands v CMC Cairns Ltd (2001) 168 QGIG 132 ($22,500) and Wesche v NQ Blasting and Coating Pty Ltd (2003) 174 QGIG 1223 ($25,000). Without seeking to subordinate the complexity of discretionary judgement to arithmetic, if each of the four fines last mentioned is adjusted in the same way as the maximum penalty, the fine would fall within the range of $30,000 to $40,000.". And Dean Allan Coggins v Far Northern Hardware Pty Ltd3: "[7] I quite accept the submission of Counsel for the Appellant that it is the effect of the 2009 amendment of s. 5 of the Penalties and Sentences Act 1992 that the sentencing range, which was $0 to $375,000 when the cluster of cases developed, is now $0 to $500,000. It is apparent from the Explanatory Note to the Penalties and Sentences and Other Acts Amendment Bill 2008 that the purpose of the amendment was to update fines to recognise movements in the Consumer Price Index since 1995. However, the cluster emerged well into the history of the earlier statutory range and I should be reluctant to recast the range on an arithmetical basis. The proposition that the top of the range is now a little low is, however, entirely unexceptional.". 1 Dean Allan Coggins AND NQ Roofing Group Pty Ltd (C/2011/28) - Decision <http://www.qirc.qld.gov.au> 2 Waltham v Transfield Services (Australia) Pty Ltd (2007) 184 QGIG 179 at 182 3 Dean Allan Coggins AND Far Northern Hardware Pty Ltd (C/2010/63) - Decision <http://www.qirc.qld.gov.au> -- 1 of 2 -- 2 The Appellant's submission is: "5.4 Accordingly if this Honourable Court were to have regard to the range of sentences previously imposed for offences of a like nature, the time which has elapsed since 'Waltham v Transfield' and the increase in the upper monetary limit, the prosecution submits a fine in the range of $50,000.00 to $60,000 is appropriate.". [4] This case does not involve lower level grievous bodily harm injuries. The injured contractor is now a paraplegic. The mitigating factors are not similar to the cases in the "cluster". There was neither a prompt plea of guilty nor cooperation with authorities. Whilst NQ Roofing Group Pty Ltd had the right to defend the Complaint, the mitigating factors present in other cases were not present here. [5] I hasten to add that there were mitigating factors. NQ Roofing Group Pty Ltd has been in business since 1988 and has not previously been convicted of an offence against the Act. The Corporation is otherwise regarded as a good corporate citizen and references to that effect have been handed to the Court. The injured contractor was visited in hospital and his wife was offered assistance. Inevitably, once the proceedings began in earnest, prudence required the maintenance of distance from witnesses and contact diminished. That was entirely proper. Any criticism of the injured contractor on the Appeal to this Court arose out of the reasoning of the Industrial Magistrate which, of course, Counsel for the Respondent sought to defend. The Principals of NQ Roofing Group Pty Ltd travelled from Cairns to Brisbane to defend the sentence hearing. I accept that they have treated the matter seriously. I accept also that the Corporation has revisited the Corporation's workplace health and safety policies. [6] Weighing heavily against the mitigating factors is the objective gravity of the offence. Although NQ Roofing Group Pty Ltd had developed control measures to prevent or minimise risks, the Corporation had not implemented the measures and had not developed a monitoring system to ensure implementation. Doubtless, NQ Roofing Group Pty Ltd was let down by the contractor. Prosecutions of small businesses under the Act are not infrequently prosecutions of businesses which have been let down, see e.g. Rigby Hughes v Hessey Pty Ltd4. [7] In my view, this falls above the top of the range. [8] Useful though notions of range may be, it is important that a judicial discretion is not so trammelled by set rules as to be fettered, compare Stollznow v Calvert5 at 752 (adopting a statement of Walsh J in Witten v Lombard Australia Ltd6 at 411). Here there are factors which point to the imposition of a lower fine. [9] NQ Roofing Group Pty Ltd employs fifteen workers and contracts with six to eight roofing crews of three to four personnel. Now that reconstruction work in the aftermath of cyclone Yasi has ceased, the Corporation is struggling in a depressed market. NQ Roofing Group Pty Ltd's tax figures have been disclosed to the Court, as has the basis of the Corporation's financial support. It is apparent that a fine at the lower end of the range will be a burden to the Corporation, compare s. 48(1) of the Penalties and Sentences Act 1992. [10] I find NQ Roofing Group Pty Ltd to be guilty. I do not record a conviction. I impose a fine of $40,000. As to professional and investigative costs, I order that NQ Roofing Group Pty Ltd pay $2,375 by way of professional and filing costs and $1,864.24 for investigative costs. [11] Counsel are confident that the Orders at [10] above may be enforced under the State Penalties Enforcement Act 1999. As a matter of prudence, I reserve leave to the Parties to seek any further necessary ancillary orders. Dated 3 February 2012. D.R. HALL, President. Released: 3 February 2012 Appearances: Mr S.P. Sapsford and with him Mr G. Lee of Legal and Prosecution Services Unit, Department of Justice and Attorney-General, instructed for the Appellant. Mr R.P. Devlin SC, instructed by Mr D. McKinstry of Williams Graham Carmen Solicitors, for the Respondent. 4 Rigby Hughes v Hessey Pty Ltd (2005) 180 QGIG 924 5 Stollznow v Calvert [1980] 2 NSWR 749 6 Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) NSW 405 -- 2 of 2 --