Attorney General for the State of New South Wales v Ceerose Pty Ltd

BEAZLEY P: I have had the advantage of reading in draft the separate reasons of Fullerton J and McCallum J in this matter. As their Honours have explained, the prosecution in this matter arose out of a fatality that occurred on a building site in respect of which the respondent was the principal contractor.

The appeal to this Court, brought by the Attorney General against the inadequacy of the sentence imposed, was heard sequentially with the appeal against DSF Constructions Pty Ltd. I have formed the view that the appeal in that matter should be dismissed: Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33. However, for the reasons given by Fullerton J, I agree with her Honour that in the appeal in the present case, the primary judge erred in the penalty imposed on Ceerose.

FULLERTON J: This is an appeal brought by the Attorney General of New South Wales pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW), against a monetary penalty of $300,000 imposed by Kearns SC DCJ on 24 August 2016 after the respondent, Ceerose Pty Ltd (Ceerose), entered a plea of guilty to a Category 2 offence under the Work Health and Safety Act 2011 (NSW) (the WHS Act) for breach of the duty imposed by s 19(1) of that Act. A person commits a Category 2 offence where, in breach of the duty imposed by s 19 of the Act, a person is exposed to the risk of death or serious injury or illness. The maximum penalty for a corporation who commits a Category 2 offence is $1,500,000.

The plea of guilty, which was entered by the respondent upon service of an amended summons on 4 April 2016, attracted a 25 per cent discount. The respondent was also ordered to pay the Prosecutor’s costs in the agreed sum of $60,000.

The proceedings against the respondent were prosecuted at first instance by SafeWork NSW following its investigation into the death of Mr Linares-Lopez, a labourer engaged by the respondent through a labour hire company to work at a construction site at Camperdown where it was operating as the principal contractor. As part of the redevelopment of the site, DSF Constructions Pty Ltd (DSF) was contracted by the respondent to manufacture and install steelworks, including three steel and glass skylights, each weighing one tonne.

On 13 April 2013, the skylights were installed under DSF’s supervision. A crane operated by another company, engaged by the respondent, was used to lift the skylights and place them 11 metres above ground on timber roofing beams. The skylights were neither tethered to the roof beams nor otherwise braced to the steel structure supporting the roof.

After the crane which performed the lifting of the skylights had left the site one of the skylights fell striking and killing Mr Linares-Lopez who was working within the fall zone beneath the steel structure at the respondent's direction and under its control. There was no exclusion zone enforced within the fall zone after the skylights had been lifted into place.

Proceedings for breach of a differently particularised Category 2 offence but in respect of the same fatality were brought by SafeWork NSW against DSF. DSF also pleaded guilty. In DSF’s sentence proceedings, heard on the same day as the respondent's sentence proceedings, Kearns SC DCJ imposed a monetary penalty of $225,000, discounted by 25 per cent to account for their plea of guilty (SafeWork NSW v DSF Constructions Pty Ltd [2016] NSWDC 183).

The Attorney General appealed that decision to this Court on the following grounds:

The Attorney General’s appeal against the sentence imposed on DSF was heard immediately after the appeal in this matter (Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33). Beazley P (McCallum J agreeing) was not satisfied that any of the grounds of appeal had been made out. Beazley P was also of the opinion that even were the error the subject of the third ground of appeal made out, the Attorney General had failed to demonstrate that the residual discretion to dismiss the appeal should not be exercised in DSF’s favour. I disagreed.

I was satisfied the error the subject of the third ground of appeal was made out. I was also satisfied that despite the factors relied upon by DSF in mitigation, the monetary penalty imposed on DSF was manifestly inadequate for what I considered to be a Category 2 offence of very serious gravity, and that the first ground of appeal was made out for that reason. . In the course of my judgment I did not disagree with the reasons of Beazley P for finding no error of principle in the sentencing judge’s approach to the maximum statutory penalty the subject of the second ground of appeal. I was also of the opinion that the residual discretion in s 5D(1) of the Criminal Appeal Act should not be exercised in DSF’s favour and that it be re-sentenced to a monetary penalty of $450,000.

The first three grounds upon which the Attorney General appeals the penalty imposed on the respondent mirror the three grounds upon which the challenge was made to the penalty imposed on DSF, albeit expressed in slightly different language, namely:

The Attorney General mounts an additional challenge in the present appeal by the inclusion of a further ground of appeal in the filed notice of appeal:

The submissions filed by the Attorney General refer to five grounds of appeal. The first three are consistent with the filed grounds. The fourth and fifth grounds are expressed as follows:

I propose to treat Grounds 4 and 5 in the written submissions and Ground 4 in the filed notice of appeal as raising the same issue.

For the reasons which follow, I am satisfied that Grounds 1 and 3 of the present appeal have been made out. That is, I am satisfied that the monetary penalty of $300,000 imposed on the respondent was manifestly inadequate (Ground 1) and that the sentencing judge’s assessment of the objective seriousness of the respondent's offending as in the mid-range was an error (Ground 3).

In circumstances where the issue of whether the sentencing judge paid appropriate regard to the maximum penalty in the sentencing reasons under review on this appeal was not materially different from the way the same sentencing judge approached the issue in the related sentence proceedings of DSF, and I did not disagree with the reasoning of Beazley P in AG v DSF that no error had been demonstrated, I would reject the second ground of appeal.

The error the subject of Grounds 4/5 (as identified in the Attorney General’s written submissions), while not abandoned as a discrete error of sentencing principle, was also treated as support for the proposition that in the ultimate appointment of the penalty the sentencing judge must have failed to give appropriate consideration to the respondent’s previous conviction for a breach of s 8(2) of the Occupational Health and Safety Act 2000 (NSW) and that has contributed to the imposition of an inadequate penalty.

Although I am satisfied that the Attorney General has made good his challenge to the penalty imposed on the respondent as manifestly inadequate, it will still be necessary to address Grounds 4 and 5, albeit in a summary way.

Section 19(1) of the WHS Act provides:

The duty imposed by s 19(1) is qualified by reference to what is “reasonably practicable” to ensure the health and safety of workers; a concept which is defined in s 18:

Section 31 of the WHS Act provides:

Section 32 of the WHS Act provides:

Section 33 of the WHS Act provides:

The sentencing exercise was governed by Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The purposes of sentencing, identified in s 3A, are as follows:

By its plea of guilty to the amended summons as particularised the respondent admitted it failed to take reasonable measures to avoid the foreseeable risk of serious injury or death to workers on the construction site “from being struck by a falling object comprising a skylight frame falling from height within the building at the site.”

The particulars of the failure of duty were described in paragraph 7 of the amended summons as follows:

The matter proceeded before the sentencing judge on the basis of an agreed statement of facts. In addition, his Honour had regard to: four victim impact statements; various documents including an inspection report of Inspector Scott Rand dated 16 July 2013;` various photographs; Australian Standard AS 3828-1998 titled “Guidelines for the erection of building steelwork”; DSF Constructions’ Safe Work Method Statement (SWMS); Coopers Cranes’ SWMS; 1 Stop’s SWMS; Ceerose’s prior convictions record; the contract between DSF Constructions and Ceerose dated 21 February 2013 and schematic diagrams showing the layout of the steel structure. The affidavit of Roy Massoud, the Construction Manager of Ceerose, was read. Seventeen documents were exhibited to Mr Massoud’s affidavit comprising a large number of folio pages including architectural plans, structural shop drawings and Ceerose’s project safety management plan.

The agreed facts establish the following:

Additionally, it was agreed for sentencing purposes that prior to the erection of the steelwork, M&G Consulting had issued Ceerose with instructions as to the mechanism by which the skylight frames were to be connected to the existing structure. That mechanism comprised a thru-bolt connection. The instructions were emailed to Ceerose on 31 January 2013. They were provided by Ceerose to DSF by email on 6 February 2013. Further connection details were subsequently provided by M&G Consulting directly to DSF on 28 February 2013. The instructions were silent on the issue of temporary ties or bracing pending the permanent fixing of the skylight frames to the structure. It was also agreed that:

By its plea of guilty the respondent admitted to failing to maintain and enforce an exclusion zone beneath the steel structure, whether in the form of impassable barricades or adequate signage or lock out procedures, to ensure that workers were not in the area beneath the skylight frames until such time as they had been properly secured. Additionally, it was an agreed fact that the respondent did not provide adequate information to the workers, including Mr Linares-Lopez, that the exclusion zone imposed during the positioning of the skylight frames onto the roof beams remained in place despite the frames having been lifted into position.

Section 3.2.2 of Australian Standards 3828-1998 concerns “Control for the prevention of falling objects”. It provides as follows:

For the purpose of sentencing, the respondent accepted that it had primary responsibility for the safety of persons at the construction site.

The sentencing judge commenced his assessment of the gravity of the respondent's offending conduct by referring to the factors that inform the seriousness of Category 2 offences, namely foreseeability of the risk of serious injury or death; the foreseeability of the consequences of the risk of serious injury or death materialising and the availability of measures to eliminate the risk.

His Honour was satisfied that the foreseeability of the risk of injury to Mr Lopez was “plain” in circumstances where he was working under an operating crane. He rejected the respondent’s submission that the risk of death or serious injury was not reasonably foreseeable and, further, for the respondent to submit that the risk of serious injury or death was not reasonably foreseeable tended to traverse its plea of guilty. As his Honour noted, if the risk of injury were not reasonably foreseeable it was difficult to envisage what the respondent should have done to ensure Mr Linares-Lopez’s safety.

His Honour also found the foreseeability of the consequences of the risk of death or serious injury eventuating to be “obvious”, and that the maintenance of an exclusion zone beneath the steel structure on which the skylights rested to eliminate that risk was a simple measure.

His Honour rejected the respondent’s submission that the degree of foreseeability was diminished by the contractual relationship it had with DSF. While he accepted that the terms of the contract pursuant to which the respondent engaged DSF may have afforded it complete protection from civil liability, the contractual terms could not affect either the fact or extent of its statutory obligations under the WHS Act. This was the more so, his Honour found, in circumstances where Australian Standard 3828-1998 entitled “Guidelines for the Erection of Building Steelwork” provides, inter alia:

While the sentencing judge acknowledged the respondent’s submission that Mr Linares-Lopez was not exposed to a risk “for a long period of time in the sense of days”, he did not accept the respondent’s submission that the gravity of its offending was reduced for that reason. As he observed, the risk existed from at least 10:30am on 13 April 2013 until shortly before midday, as to which he remarked:

In further mitigation of its culpability, the respondent also submitted that other companies present on site on 13 April 2013 were more culpable than it, including those not the subject of prosecution. That submission was also rejected. The sentencing judge observed that in assessing culpability, consideration of the culpability of other companies cannot “reduce the culpability of the defendant in any sharing or proportionate way of an overall penalty” (Ching v Hy-Tec Industries Pty Ltd [2010] NSWIRComm 73 at [241]-[242] was cited as authority for that proposition). His Honour noted that while 1 Stop was one of the companies nominated by the respondent as “more culpable” than it, there was no evidence in the sentence proceedings to support a prosecution of 1 Stop”, although there was evidence as to 1 Stop’s obligations as a labour hire company in the prosecution of DSF; evidence which was not available to him in the respondent’s sentencing proceeding. From the limited information available as concerns 1 Stop’s culpability, his Honour observed:

His Honour noted that the respondent relied on its tender of a considerable amount of evidence to support its submission that the greater culpability lay with DSF, but noted that he was aware from the facts tendered in the DSF sentence proceedings (heard the same day) that the materials tendered were not the totality of the evidence informing a comparison of the relative culpability of the two corporate offenders.

His Honour went on to observe (at [37]-[38]):

Consistent with his Honour’s earlier finding that DSF’s contractual obligations to the respondent did not affect its obligations under the WHS Act, his Honour found, as to their relative culpability, that the respondent could not rely on DSF’s contractual obligations to diminish its culpability. At [40], his Honour determined that:

His Honour regarded the objective seriousness of the respondent’s Category 2 offence as increased by the fact that it was committed in a high-risk industry in which individuals and corporations must be vigilant in their adherence to their health and safety obligation under the WHS Act. In finding that general deterrence was also a relevant consideration, his Honour observed:

His Honour regarded specific deterrence as “a factor, [but] not as significant as it might be in other cases” as the respondent had taken comprehensive measures relating to work health and safety, both at a company-wide level and in respect of the building site at Camperdown. He also observed that the respondent had expended about $600,000 and committed about $120,000 to “safety personnel resources”. His Honour was satisfied that these measures revealed a dedication to workplace safety such that the respondent was unlikely to reoffend, and that if it does, it is not likely to be for the want of proper systems.

Notwithstanding those findings, he considered that specific deterrence remained a factor relevant to sentence given the respondent had been convicted in 2011 of an offence under an equivalent provision of the Occupational Health and Safety Act (“the 2011 incident”). His Honour also treated the 2011 incident as an aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act and, further, that as the injury to Mr Linares-Lopez was substantial, the statutory aggravating factor in s 21A(2)(g) was to be accounted for in the imposition of penalty.

In considering factors in mitigation under s 21A(1), his Honour noted that the implementation of safety systems by Ceerose and the fact that its record of incidents, “while not ideal … is relatively good especially for that industry”. He also accepted that the respondent had acknowledged responsibility for the incident and that it had expressed regret and remorse for Mr Linares-Lopez’s death. He accepted that the respondent was a corporate citizen of good character and standing, that it was a donor to a number of charities, and that it had co-operated with SafeWork in its investigations into the workplace incident.

Finally, his Honour observed that the respondent had agreed to pay the prosecutor’s costs in an agreed amount of $60,000, for which allowance should be made in the imposition of the monetary penalty. He concluded that a “substantial fine” was warranted.

In his concluding remarks, his Honour said (at [60]):

Section 5D(1) of the Criminal Appeal Act relevantly provides that the Attorney General may appeal to the Court of Criminal Appeal against the sentence pronounced by a sentencing court and that the Court of Criminal Appeal, in its discretion, may vary the sentence and impose such sentence as to it seems proper.

However, unless an error of principle is clearly demonstrated or, in the absence of specific error, there has been a demonstrated failure by a sentencing court to properly exercise the discretion which the law reposes in it, the Court's power to interfere with the sentence imposed at first instance is not engaged (see Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; at [61]-[63]).

In Dinsdale, Gleeson CJ and Hayne J said (at [6]):

Even if error is established, s 5D(1) provides that the Court may decline to intervene in the exercise of its discretion. It is for the Attorney General on this appeal to persuade the Court that even if error is made out, the sentence imposed on the respondent at first instance should be varied (see CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9).

It is well understood that the primary purpose of the Crown appeal is to lay down principles for the governance and guidance of sentencing courts (see Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49). However, as Beazley P noted in AG v DSF, in R v Darwich [2018] NSWCCA 46 at [10] White JA observed:

The Attorney General accepted that the sentencing judge correctly identified the evidence that informed his assessment of the objective seriousness of the respondent’s breach of its overriding statutory duty to the workers on the construction site, in particular the obvious foreseeability of the risk of serious injury or death when a worker is directed to work under an operating crane, and the equally as obvious foreseeable consequences of serious injury, including a fatal injury, in the event that the risk of an object falling from height materialises. The simple maintenance of a “NO GO zone” in the fall zone would have eliminated that risk altogether. In the Attorney General’s submission, for the sentencing judge to appoint the objective seriousness of the respondent's conduct in the mid-range referable to those findings was not a finding open to him.

It was further submitted that even if the finding of mid-range offending was open, the appointment of an undiscounted penalty of $400,000 was “too low in that range”. For those reasons, it was submitted that an error of sentencing principle has been exposed and the third ground of appeal has been made out.

In addition to the sentencing judge’s findings of fact and the high level of culpability they reflected being erroneously appointed as mid-range offending, the Attorney General also submitted that although the sentencing judge recognised the need for the penalty to sound in both general deterrence (given that the offence was committed in the high risk construction industry where fatalities often result from objects or workers falling from height on construction sites) and specific deterrence (in light of the respondent's previous conviction), in the totality of circumstances the penalty that was imposed was so far below the range of sentences that could justly be imposed that this Court should infer that the sentencing discretion miscarried and should exercise its power to interfere and resentence (see Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]; House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505) (Ground 1).

In the way in which Grounds 4 and 5 were approached in the Attorney General’s written submissions, two discrete appellate errors in the manner in which the sentencing judge dealt with the respondent’s prior conviction were identified: firstly, that the sentencing judge made only passing reference to the fact of the previous conviction and to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act. The passage in the sentencing reasons where reference was made to the previous conviction is as follows:

At [51] the sentencing judge noted that the previous conviction was a statutory aggravating factor and at [54] said:

The treatment of the previous conviction in that way was said to be contrary to the principled approach identified in R v Walker [2005] NSWCCA 109 where at [32], Johnson J, with whom Giles JA and Hoeben J (as his Honour then was) said:

Secondly, the Attorney General submitted that the sentencing judge should have taken into account the respondent's previous conviction after assessing the objective gravity of the offending in order to determine where within the boundaries set by the objective circumstances the penalty should be appointed. The failure to adhere to that approach was also said to be contrary to sentencing principle when an offender has an antecedent criminal history. Those principles were reviewed in Van der Baan v R [2012] NSWCCA 5 at [30]-[32] and at [45]:

Finally, the Attorney General submitted that where the sentencing judge made no reference to the maximum penalty of $1,500,000, and no reference to the maximum penalty for the equivalent offences under the former Occupational Health and Safety Act, this Court would infer that a discounted penalty that was 20 per cent of the statutory maximum was the result of the sentencing judge’s failure to take account of the maximum penalty and that the error the subject of the second ground of appeal is made out for that reason.

As to the grounds of appeal generally, the respondent advanced two principal submissions: First, that all appeal grounds, and the Attorney General’s submissions in support of them, were fundamentally flawed by inviting this Court to substitute its judgment for that of the sentencing judge under the guise of seeking to persuade the Court that specific error is revealed in the sentencing reasons or manifest inadequacy in the result. Secondly, by inviting the Court to undertake an arithmetical analysis of the penalty imposed for what the sentencing judge found to be mid-range offending by reference to a dollar figure that is half of the maximum penalty, was to invite an approach which was contrary to the instinctive synthesis of all factors bearing upon the appointment of an appropriate penalty fundamental to the exercise of the sentencing discretion (see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 per McHugh J). The respondent submitted that paragraph 5 of the Attorney General’s submissions in reply exemplify that flawed approach:

It was further submitted that the oral submissions advanced by Mr Agius SC on the hearing of the appeal also revealed a distinct tendency to suggest that an arithmetical approach to the determination of the appropriate sentence was an available approach.

To the extent that that criticism is well founded, I accept it reveals a flawed approach. Ultimately, however, that was not determinative of the appeal as the Attorney General’s submissions in support of Grounds 1 and 3 were well founded.

In the respondent's submission, what is said by the Attorney General to be the error of sentencing principle in Grounds 2 and 4/5 is, in substance, a complaint that the sentencing judge failed to give adequate weight to both the maximum penalty and the respondent's prior conviction in the appointment of penalty, a complaint that will not enliven the Court’s discretion under s 5D of the Criminal Appeal Act. Reference was made to the observations of Gageler J in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 where at [51]-[53] his Honour said:

In responding to the Attorney General's submission that the sentencing judge erred in his assessment of the objective seriousness of the respondent’s offending conduct, the respondent emphasised that the assessment of objective seriousness is a matter quintessentially for the sentencing judge and that there is a need for caution in an appellate court coming to the concluded view that the sentencing judge was in error in that assessment (see R v KB; R v JL; R v RJB [2011] NSWCCA 190 at [51]-[53]).

In the respondent's further submission, where his Honour’s reasons for concluding that the offending conduct fell in the mid-range of objective seriousness are set out in detail in his sentencing remarks at [27]-[42], and where the Attorney General does not point to any extraneous or irrelevant matters which infected his reasoning in finding mid-range offending or any mistake of fact or any matter which he failed to take into account, error in the first category of House v The King error is not made out.

As to the ground of appeal that alleges manifest inadequacy, the respondent submitted that the Attorney General had failed to establish that a substantial wrong has occurred in the imposition of the penalty. The respondent further submitted that the Attorney General has not demonstrated, by way of an analysis of comparable cases or by any other means, how the penalty imposed in this case for what was submitted to be an offence in the mid-range following an early plea of guilty was outside the available range of penalties for comparable offending.

The error the subject of Grounds 2 and 4/5 is only capable of invoking the first category of appellate intervention in the House v The King sense in circumstances where the asserted error is a failure to take into account considerations material to the exercise of the sentencing discretion.

As to Ground 2, in circumstances where the Attorney General made no submission that the sentencing judge’s approach to the maximum penalty in the respondent's sentence proceedings differed in any way from the way he approached the issue in the sentence proceedings involving DSF, consistent with the analysis applied to the same ground of appeal in AG v DSF appeal in Beazley P’s judgment at [55]-[66] (with which I agreed) the second ground of appeal is not made out. While his Honour did not refer to the maximum penalty in either proceeding, I note the Attorney General’s concession that the sentencing judge must have been aware of it given his previous OHS Act and WHS Act sentencing experience and, further, that during the prosecutor’s submissions on sentence reference was made to the maximum penalty of $1,500,000 and the increase in the maximum penalty following the passage of the WHS Act as matters that should be taken into account and reflected in the penalty to be imposed.

As to Grounds 4/5, it is clear from the sentencing reasons extracted below that his Honour made express reference to the previous conviction on more than one occasion, and that he took it into account both as relevant to the issue of specific deterrence and as a statutory aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act:

Later in his remarks he noted that although the respondent had a prior conviction, such that its record was “not ideal”, it was nevertheless “relatively good especially for that industry” (a clear reference to the property construction and development industry).

His Honour went on to say:

I accept the respondent's submission that having regard to the structure of the sentencing remarks it is clear that the sentencing judge commenced the process of appointing an appropriate penalty with a consideration of the gravity or objective seriousness of the offending conduct, before considering where, within the boundaries set by the objective circumstances, the penalty should be appointed with the respondent’s prior offending being pertinent to that task. That is entirely consistent with the principled approach in Van der Baan and R v Walker; ironically both cases the Attorney General relied upon as support for the proposition that specific error had been demonstrated.

Despite the brevity with which his Honour dealt with the respondent’s prior conviction, in the sense that he did not provide elaboration on the manner in which it was to be taken into account as an aggravating factor, I am not persuaded that specific error of the kind contended for by the Attorney General has been made out. In coming to that conclusion, what the High Court said in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [32] is apposite:

As the Attorney General has failed to make out Grounds 2 and 4/5, the question whether the sentencing judge failed to take adequate account of the applicable maximum penalty, the respondent's previous conviction and/or failed to reflect his assessment of the respondent’s level of culpability in the penalty imposed falls to be determined by reference to the residual category of House v The King error, namely:

As I was at pains to emphasise in AG v DSF, I am mindful of the collected jurisprudence covering the limited circumstances in which an assessment of objective seriousness by a sentencing judge might be disturbed on appellate review. Consistent with the findings of fact made by the sentencing judge in the AG v DSF sentence proceedings which supported the conclusion I reached on the appeal from that decision that his appointment of mid-range offending for DSF amounted to a sentencing error, and given the sentencing judge’s reasons for finding a greater level of culpability relative to DSF (not a finding under challenge on the present appeal), although still in the mid-range, it follows that I am satisfied the same error infected the sentence imposed on the respondent.

In my view, in light of the extreme seriousness of the foreseeable resultant harm to workers working within a steel structure and beneath an operating crane, and the minor inconvenience to the respondent as the entity responsible for the supervision and safety of the contracted labour force occasioned by taking the steps to avoid that risk materialising, it was not open to the sentencing judge to appoint the respondent's culpability in the mid-range. Given the factual findings made by the sentencing judge, in my view no conclusion was open other than that there was a demonstrated level of disregard for proper procedures on the construction site which so exacerbated the respondent's culpability as the principal contractor, that the offending was elevated, and significantly, above the mid-range. It was a sentencing error for the sentencing judge to conclude otherwise.

In Yeung v R [2018] NSWCCA 52, McCallum J (as her Honour then was) held at [19]-[30] (Hoeben CJ at CL and Simpson JA agreeing) that the appointment of objective seriousness referable to a notional point on a spectrum of culpability (although convenient as a shorthand descriptor) is not a necessary component of the sentencing task, and to express objective seriousness in that way is rarely definitive of that part of the sentencing exercise that requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender. That is accepted. However an evaluation of the gravity of the respondent's offending in this case, assessed in the context of all the evidence that informed that aspect of the sentencing exercise, including the substantial injury that resulted from the offence, namely Mr Linares-Lopez’s death (an aggravating circumstance in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act) so far exceeded mid-range offending for a Category 2 offence as to reveal an error of principle in the exercise of his sentencing discretion.

Even were a finding of mid-range offending open to the sentencing judge (which, for the reasons discussed, I am satisfied it was not) I am of the view that the penalty imposed was manifestly inadequate for a Category 2 offence where the sentencing judge assessed the foreseeability of the risk of serious injury or death as “plain” (by the respondent permitting workers to work under an operating crane) ([35] above), the foreseeability of the consequences of the risk of serious injury or death materialising as “obvious” ([36] above), and where the measures available to eliminate the risk were simple to implement.

As Basten JA emphasised at [53] in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96, in respect of a Category 2 offence:

His Honour went on to say (at [54]):

In AG v DSF, Beazley P observed at [85] that in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 (at [26]-[28]) the High Court examined the appellate task where it is alleged that the sentence is manifestly excessive or inadequate. Her Honour set out the extract from that judgment in full, it being at the heart of the issue on the appeal brought by the Attorney General against the penalty imposed on DSF. Although I reached a different conclusion to her Honour as to whether manifest inadequacy in the penalty imposed on DSF had been demonstrated, I confirmed my agreement with her Honour’s approach as a matter of principle. It is not necessary to restate those principles in full save as to emphasise that where the residual category of error in a discretionary judgment in the House v The King sense is under consideration, and the Court is considering whether it is open to infer that in some way there has been a failure properly to exercise a discretion reposed in a sentencing court, it is also common to speak of the sentence as falling outside “the available range of sentences”.

However, at [28] the High Court cautioned against an appellate court, in its reasons for disposing of a sentence appeal as within or outside an available range, as “apt to mislead”. The Court said:

In my view, the seriousness of the respondent’s dereliction of duty as the principal contractor to the workers on site under its control and direction constituted objective seriousness for a Category 2 offence at the high end. Were it not for the fact that the agreed facts did not attribute to the respondent knowledge or awareness that the skylights were untethered or unbraced in the area in which it directed the workers to resume work (circumstances which may well have led to the respondent being charged with a Category 1 offence), a penalty more closely approximating the maximum penalty would have been open even after appropriate weight was given to the matters in mitigation.

In the result, I am satisfied that the sentencing judge’s discretion miscarried in the ultimate appointment of a penalty that was markedly below a penalty commensurate with the gravity of the respondent's offending conduct, despite other factors that the respondent was entitled to rely upon in mitigation. In coming to that conclusion, I have also taken into account the maximum penalty of $1,500,000 as a relevant yardstick informing the appointment of an appropriate penalty for grave offending, particularly where a change in the maximum sentence in s 32 of the WHS Act is an indication that the legislature regarded the penalties provided in the OHS Act as inadequate. I have also taken into account that the respondent was convicted in 2011 for an offence under s 8(2) of the OHS Act where a monetary penalty of $90,000 against a maximum of $550,000 was imposed.

At the hearing of the appeal there was a deal of controversy as to whether, were the Court to find one or more of the grounds of appeal had been made out, including the ground that concerned manifest inadequacy, in exercise of the Court’s residual discretion under s 5D(1) of the Criminal Appeal Act it should not intervene and re-sentence the respondent.

The Attorney General has the burden of satisfying the Court that its intervention is warranted. In seeking to discharge that burden on this appeal, the Attorney General accepted that his delay in prosecuting the appeal is both material to the exercise of the discretion and that the reasons for the delay, addressed in the affidavit of Nichola Constant, Director of Employment Law and Industrial Relations at the Crown Solicitor’s Office, provide an explanation for the delay, but one which, as his counsel accepted, was less than adequate.

The chronology of relevant events between the date of sentence and the filing of the notice of appeal is set out by Beazley P in AG v DSF at [98]-[104]. The same chronology bears upon the exercise of the residual discretion in the present appeal.

Despite the delay in prosecuting the appeal, in the Attorney General’s submission this Court should intervene to increase the sentence imposed at first instance in order that adequate standards of punishment for offences under s 32 of the WHS Act are imposed, and that appropriate regard is given to the increase in maximum penalties for each of the three categories of offences under that s 32 of that Act, in particular, where there is a failure to comply with health and safety duties exposing workers to the risk of death or serious injury where death results.

The Attorney General submitted that this case is an appropriate vehicle for the Court to lay down principles of governance and guidance to sentencing courts when determining the level of objective seriousness of offending against s 32 of the WHS Act and the elements that inform a finding of objective seriousness in circumstances where death results. I consider that an opportunity presents in this case (as it did in AG v DSF) for that guidance. Both offenders were the first to be prosecuted under the WHS Act where death occurred in breach of statutorily imposed health and safety duties under that Act.

It was the Attorney General’s further submission that for this Court to find that the sentence was manifestly inadequate or infected by specific error and to simply pronounce its findings on that question without moving to re-sentence may result in an inadvertent validation of the sentencing judge’s approach to the issue of general deterrence, leading to the perception that objectively serious offending conduct under the WHS Act, including where the death of a worker results, may be dealt with relatively leniently despite the increase in the available maximum penalties under that Act.

The respondent submitted that the delay in prosecuting the appeal and the absence of any rational explanation for it raises a substantial doubt as to whether the penalty imposed by the sentencing judge is such an affront to the administration of justice as to justify this Court re-sentencing the respondent to an increased monetary penalty. The respondent submitted that although there is no time limit specified within which an appeal pursuant to s 5D(1) of the Criminal Appeal Act must be brought, there is a high public interest in the finality of criminal proceedings, and for the Court to intervene and re-sentence the respondent at this late date is likely to bring the due administration of justice into disrepute rather than to assist in maintaining public confidence in the criminal justice system.

It was further submitted that even were this Court to afford guidance to judges exercising the sentencing discretion under the WHS Act for a Category 2 offence where death results, that “should not come at too high a cost in terms of justice to the individual” (see Green v The Queen at [43]). The respondent submitted that it would be productive of a real injustice to the respondent were it to be re-sentenced to an increased penalty more than three years after sentence and six years after the conduct the subject of the sentencing proceedings. The Court was invited to infer that the respondent had the legitimate expectation that by pleading guilty in 2016 and cooperating in the investigation that preceded service of the amended summons (inclusive of promptly paying the fine imposed after sentence) it could “put this behind it and continue with its operations”.

The difficulty with that submission in this case is that while it might have been put on the respondent’s behalf that the criminal breach of its statutory duties under the WHS Act the subject of this appeal is “in the past”, the sentencing judge’s expectation that the comprehensive measures taken to address the deficiencies in the respondent’s work procedures on construction sites, satisfying him that the respondent was unlikely to reoffend, was both misplaced and short lived.

On 13 November 2017 following a plea of guilty the respondent was convicted of another Category 2 offence under s 32 of the WHS Act, in that case attracting a discounted monetary penalty of $300,000 (Safe Work NSW v Ceerose Pty Ltd [2017] NSWDC 313). That offence was committed on 14 May 2015 before the respondent was sentenced for the offending the subject of the present appeal but 13 months after the incident the subject of the sentence from which the appeal is bought.

In respect of the 2015 incident the respondent was the principal contractor at another site, this time at a site situated on the corner of Barr Street and Pyrmont Bridge Road, Camperdown, where an apartment complex was under construction. The respondent assumed control over that site from about August 2014, with control over an adjoining site for use as a car park assumed from February 2015.

As at February 2015 a sliding gate, which operated electronically on wheels mounted on a rolling track, provided access to the adjoining site. When it was not in use the gate was closed and padlocked. As a result of an identified risk of a brick wall collapsing onto a public footpath the respondent disconnected the power from that site on 21 March 2015. Thereafter the gate had to be manually opened and closed.

A labour hire company provided personnel to the respondent to undertake traffic control duties at both the construction site and the adjoining site. A German woman who was in Australia on a working visa and who had acquired qualifications in traffic management from the Roads and Maritime Services was contracted to the respondent. She was provided with access keys to the padlock to the gate which she was asked to monitor. When she first commenced working at the site and undertaking those duties (amongst others) the gate was easy to open and close but after some time it became more difficult to manoeuvre. It was agreed for sentencing purposes that she had not been adequately instructed as to the method of safely opening and closing the gate. In addition, on inspection of the gate after the incident there were identified deficiencies in its closing mechanism and the supporting posts upon which it rested. In particular, as the slider bolt was missing, the gap between the gate and support post meant the gate was able to extend beyond its intended position.

On the date of the incident the sliding gate dislodged from the track and fell, landing on the worker. She sustained numerous fractures to her pelvis and sacrum, and a wedge compression fracture of the T11 vertebrae in the thoracic spine.

Through the evidence of the construction manager who had a supervisory role in respect of all of the respondent’s construction work on projects (a witness who I note gave evidence in proceedings the subject of the present appeal), the respondent acknowledged its safety systems in relation to the gates were inadequate and that it failed to prevent the incident. It was also accepted that reasonably practical measures had not been taken to address the risk of serious injury in the event that the gate fell on the person who was manoeuvring it.

The sentencing judge also found no risk assessment or inspection of the gate was ever conducted after the power was disconnected and that the worker was not instructed on the correct method of manually operating the gate after that time. Furthermore, there was no assessment made of her physical capacity to undertake that task. The sentencing judge regarded the “crush risk” of serious injury as “obvious”; the likelihood of risk materialising as “moderate to high”, and the steps that could have been taken to address the risk as “simple and inexpensive”.

While I readily accept the obligation of the prosecuting authorities to act with due diligence in the discharge of their responsibilities, and that delay in the bringing of a Crown appeal is inimical to that objective, consistent with the approach I took to the question of the residual discretion in AG v DSF, I am satisfied that the residual discretion should not be exercised in the respondent's favour on this appeal.

The respondent did not tender any evidence on re-sentence.

I am conscious of the need not to sentence the respondent again for the offending the subject of most recent sentence proceedings before Scotting SC DCJ. However, having regard to what is now the third breach of the respondent’s duties as a principal contractor in the building and construction industry, the issue of specific deterrence looms large (indeed more acutely than it did in the sentencing proceedings before Kearns SC DCJ) as does the need for the sentence to reflect the importance of general deterrence in a high risk industry in which the respondent continues to operate.

I would allow a 25 per cent discount for the respondent's early plea of guilty.

The orders I propose are as follows

McCALLUM J: I have had the benefit of reading the judgment of Fullerton J in draft. I agree that grounds 2 and 4/5 are not made out, for the reasons her Honour has stated.

As to ground 3 (concerning the sentencing judge’s characterisation of the objective seriousness of the offence) and ground 1 (manifest inadequacy), I respectfully disagree with the conclusion her Honour has reached, for the following reasons.

It is uncontroversial that the task for this Court in respect of ground 3 is to determine whether the particular characterisation which the sentencing judge gave to the circumstances of the offence was open to his Honour.

Justice Fullerton’s conclusion on this issue is informed by the conclusion her Honour reached in her dissenting judgment in the related appeal in Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33. The difference between our respective conclusions in that case turns on a factual issue. Justice Fullerton understood the sentencing judge to have made a finding of fact which should have aggravated the seriousness of the offence. I did not understand his Honour to have made that finding. On the strength of her Honour’s understanding of the facts found, Fullerton J considered that error was established. Her Honour said at [118]:

In the present appeal, on the strength of that conclusion, and noting the unchallenged finding at first instance that Ceerose’s culpability was greater than that of DSF, her Honour has concluded that the same error infected the sentence imposed on Ceerose.

Since I do not share the view that the primary judge’s characterisation of objective seriousness in DSF entailed error, it follows that I could not logically agree with Fullerton J’s reasons for reaching the same conclusion in the present appeal.

In that circumstance, it is necessary for me to give independent consideration to the question raised by this ground. The sentencing judge’s task was complicated by the fact that, inexplicably, the prosecutor agreed upon different (inconsistent) factual premises for the sentencing of the two companies.

In the hearing against DSF, the agreed facts were that Ceerose had engaged engineers (M&G Consulting) to prepare all engineering specifications and design for the site, including design of the skylights, and that the engineering specifications and design prepared by M&G Consulting for the skylights did not include any design or requirement for temporary bracing or guys. In the hearing against Ceerose, the agreed facts were that M & G Consulting had issued specifications for connecting the skylights to the existing timber structure and that DSF was engaged by Ceerose to undertake the works in accordance with those instructions.

Further, in the DSF hearing, Mr Agusi (who was relevantly the thinking mind of DSF) accepted that he knew the skylights had not been fixed as at the day of the incident whereas in the hearing against Ceerose there was no suggestion that Ceerose had actual knowledge of that fact. At the hearing of the present appeal, Mr Agius SC accepted that Ceerose had not been told one way or the other as to whether or not the skylights had been secured in place.

The sentencing judge gave careful consideration to those matters, explaining his conclusion at [37]-[38] as follows:

It is clear from those remarks that the judge sentenced Ceerose on the basis that it did not have actual knowledge that the skylights were not fixed. His Honour was bound to take that course by the agreed facts presented by the prosecutor. The finding that Ceerose was nonetheless more culpable than DSF was based primarily on its overriding responsibility for safety on the site and its duty to the workers.

Against those findings, the judge evidently characterised Ceerose’s breach as a serious failure of oversight. His Honour said at [39]:

In reaching the conclusion that a finding of mid-range seriousness was not open, Fullerton J has placed emphasis on the extreme seriousness of the foreseeable harm to workers working within a steel structure that was not fixed and beneath an operating crane. Having regard to the way in which the case was put against Ceerose before the sentencing judge, the Attorney General’s submissions have not persuaded me that the conclusion of mid-range seriousness was not open.

On that premise, I am not persuaded that the sentence was manifestly inadequate. As Fullerton J has noted, the Attorney General’s submissions tended to suggest an arithmetic approach, positing a mid-range penalty (adopting a linear algorithm) for a mid-range offence. Although Mr Agius disavowed that approach in his oral submissions, it is the premise that underlies much of what was put. In the passage from the written submissions set out in Fullerton J’s judgment, the Attorney General identified “the middle of the range for a Category 2 offence committed by a body corporate” to be “$500,000-$1,000,000” and complained “yet the starting point chosen by his Honour was beneath this range”.

As explained by Mr Jordan SC in his careful oral submissions, that approach is simply wrong, first, because it assumes a linear algorithm and secondly because it ignores the fact that the judge’s starting point of $400,000 (before application of the discount for the plea) reflected a position reached according to his Honour’s instinctive synthesis of all relevant factors including not only the objective seriousness of the offence but the subjective case.

In all the circumstances, the Attorney General’s submissions have not persuaded me that the sentence was manifestly inadequate.

It is difficult to reach a meaningful conclusion as to the exercise of the residual discretion against the risk that I may be wrong, since the exercise of that discretion should have regard (among other things) to the nature of the error found, and I have found none. I would confine myself to the observation that the delay in bringing these appeals was egregious and was not well-explained. The decision appears to have been largely prompted by the decision of this Court in Nash, a decision which provides the very guidance asserted to be sought by these appeals. Further, the guidance sought was not well explained; as the differing judgments in the three cases reveal, the issues raised were largely factual. Had I been persuaded of error, those considerations would have been powerful factors in favour of exercising the residual discretion to dismiss the appeal. However, since I have not found error, this discussion is largely hypothetical.