Chandler v Quality Bakers Australia Ltd [2004] ICQ 1 (2004) 175 QGIG 572

572 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 February, 2004 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 – s. 164(3) – appeal against decision of industrial magistrate Mark Luke Chandler AND Quality Bakers Australia Ltd (No. C82 of 2003) PRESIDENT HALL 28 January 2004 DECISION On 20 December 2002 Mark Luke Chandler, a public officer within the meaning of s. 142A of the Justices Act 1886 and an inspector duly appointed under the Workplace Health and Safety Act 1995 made a complaint before a Justice of the Peace at Nambour that: “On the 3rd day of February 2002 at Maroochydore in the Magistrates Courts District of Maroochydore, QUALITY BAKERS AUSTRALIA LIMITED being a person on whom a workplace health and safety obligation prescribed by section 28 (2) of the Workplace Health and Safety Act 1995 is imposed, did fail to discharge the obligation contrary to section 24 of the Workplace Health and Safety Act 1995 in that, being an employer, the said QUALITY BAKERS AUSTRALIA LIMITED failed to ensure the workplace health and safety of others was not affected by the way QUALITY BAKERS AUSTRALIA LIMITED conducted its undertaking.”. -- 1 of 3 -- 13 February, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 573 The complaint was particularised as follows: “Other: Darryl Kenneth JOHNSON Workplace: Main Road and Commercial Road, Maroochydore The risk is the risk of death or injury, including the risk of injury, being fracture injuries to the right arm of Darryl Kenneth JOHNSON. The source of the risk emanates from operating plant, namely a conveyor belt and roller located between a pocket bread prover and pocket bread oven.”. A circumstance of aggravation was averred, viz. that as a consequence of the failure to discharge the obligation Darryl Kenneth Johnson sustained grievous bodily harm. The defendant pleaded guilty. No conviction was recorded. A fine of $15,000 was imposed. The defendant was ordered to pay $62.10 by way of court costs and administration costs in the sum of $794.50. This appeal concerns only the quantum of the fine. By its written submission the appellant summarises the events and the factual matters as follows: “9. At the time of the offence, Mr Johnson was a self-employed electrical fitter mechanic. Since 1998 he performed work at the Respondent’s premises. There was no written contract embodying this agreement and the work was done on a regular basis, often on a Sunday. 10. The Respondent operates a bread manufacturing and distribution business from its premises (Main and Commercial Roads, Maroochydore) and employs around 90 people. The undertaking includes all necessary production machinery and associated plant such as conveyors. 11. At about 5:30am on 3 February 2002, Mr Johnson was requested by a production staff employee of the Respondent (Mr Anthony Carmody) to make adjustments to the tracking of a conveyor belt located between the ‘pocket prover’ and ‘pocket oven’. Adjustment can be made to the tracking of the belt by a locating nut on a threaded rod near the pinch rollers underneath the conveyor. Adjustment is normally made at each side of the conveyor by use of a ring spanner. 12. The underside of the conveyor adjacent to the pinch rollers was not guarded. 13. Mr Carmody stood beside the conveyor while Mr Johnson made the necessary adjustment to one side. Mr Johnson then walked to the other side and commenced to make similar adjustment. He was not in Mr Carmody’s field of view. Mr Johnson’s right hand and arm became entrapped in the rollers. 14. Mr Johnson could not recall how his right upper limb became entrapped by the rollers and has said he does not remember making any adjustment to the locating nut. Mr Carmody heard Mr Johnson’s cries and immediately activated the emergency stop. 15. Mr Johnson, inter alia, broke both the radius and ulna. The injuries required surgery including placement of internal fixtures, more particular a plate and four screws. 16. His injuries amount in law to grievous bodily harm. 17. An invitation was extended to the Respondent to participate in a record of interview. Such invitation was declined.”. Save as to paragraph 17, I am content to adopt the summary. Paragraph 17 must be qualified by recognition that the significance of the failure to participate in the interview was debated (but not resolved) before the Industrial Magistrate, and by recognition that the agreed statement of facts handed to the Industrial Magistrate asserts that the defendant fully cooperated in the investigation. Before the Industrial Magistrate the defendant contended that the appropriate “range” was $18,000 to $22,000. The contention of the complainant was that the appropriate range was $25,000 to $30,000. There are real difficulties with applying notions of “tariffs” and “ranges” in prosecutions under the Workplace Health and Safety Act 1995. To begin with, the cases are not numerous. Not only (as always) do the facts differ from case to case: very often the facts are quite idiosyncratic. Additionally, because one is overwhelmingly dealing with corporate defendants and with fines, there is no opportunity to separate out a “head sentence” and the impact of mitigation. Suggested comparatives are inevitably ultimate outcomes in which mitigating factors have been taken into account and weighed against matters going to objective gravity. All of that said, it remains appropriate to have regard to fines imposed in other cases. To begin with, consistency in sentencing is an element of justice. Even where inconsistency in the facts makes consistency in sentence extraordinarily difficult to achieve, the quantum of fine imposed in other cases will serve as signposts and warnings and assist in ensuring that the sentencing process does not descend into capricious whimsy. Subject to all of those qualifications and accepting that one is painting with a broad brush, I am attracted to the range suggested by the defendant. It seems to me that that range is suggested by the decision in Lang v. Amalgamated Food and Poultry Pty Ltd (2001) 167 QGIG 245 and Bird v. Rotech Industries Pty Ltd (2003) 174 QGIG 1011. The decisions relied upon by the appellant, viz. Neilands v. O’Neill (2001) 168 QGIG 134, Garaty v. Friendly Sofa Designs Pty Ltd (2003) 173 QGIG 1027 and Master Ryane (Qld) Pty Ltd v. Thouard (2000) 165 QGIG 44 are cases involving objective gravity of quite a different calibre. In some cases the gravity arose from the conduct (e.g. Neilands, where safe equipment was made unsafe by the conscious and deliberate removal of the guard), in others from the seriousness of the injury (e.g. Master Ryane, a case involving death) or a combination of blameworthy conduct and serious injury (e.g. Garaty). Here, as noted, the Industrial Magistrate imposed a sentence beneath the bottom of the range suggested by the defendant. For myself, I would not have done that. Consistently with the decision in Newman v. Andgra Pty Ltd (2002) 171 QGIG 883, I would have imposed a fine in excess of $20,000. However, the sentencing discretion is vested in the Industrial Magistrate. It is not to the point that this Court disagrees with an Industrial Magistrate’s conclusion in a particular case. The fine of $20,000 imposed in Newman v. Andgra Pty Ltd, ibid., was not imposed in substitution for the fine imposed by the Industrial Magistrate because it was thought to be more appropriate. It was imposed because the fine of $3,000 imposed by the Industrial Magistrate having been set aside, it seemed to this Court that $20,000 was the appropriate fine to impose. This case is not like Newman v. Andgra Pty Ltd, op. cit. A fine of $3,000 in a case such as this would suggest that an Industrial Magistrate’s discretion had entirely miscarried. A fine of $15,000 does not. Additionally, it is plain from the Industrial Magistrate’s reasons that His Worship was much impressed by the absence of blameworthiness, the mitigating circumstances and the defendant’s character. One cannot, of course, give such weight to the absence of blameworthiness that the policy of the statute, which is to impose absolute liability, is subverted. The authorities emphasise that reliance upon an inadequate expert and inefficient auditors does not insulate an obligation holder against the imposition of substantial penalty. However, in this case the Industrial Magistrate expressly found that the defendant’s audit system was “a reasonable and proper safety audit”. Such a finding is singular, but entirely open to His Worship on the substantial bundle of materials placed before him by the defendant’s solicitor. Whilst I continue to urge caution in mitigating sentences drawn from fines imposed in earlier cases which have themselves been discounted for mitigation, it seems to me that the differences between the view adopted by the Industrial Magistrate and the view which I have adopted is a difference about weight and about the use of measuring casts. Differences of that type are within the latitude vested with the discretion in the sentencing tribunal, compare Williams v. Pioneer North Queensland Pty Ltd (2003) 173 QGIG 419. -- 2 of 3 -- 574 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 February, 2004 I dismiss the appeal. I reserve all questions of costs. Dated 28 January 2004. D.R. HALL, President. Released: 28 January 2004 Appearances: Mr P. Matthews, directly instructed by Division of Workplace Health and Safety, for the appellant. Mr R. King of Blake Dawson Waldron, for the respondent. -- 3 of 3 --