Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Brandie v Hogan [2012] NSWIRComm 138
• Hearing dates: 14 November 2012
• Decision date: 07 December 2012
• Jurisdiction: Industrial Court of NSW
• Before: Walton J, Vice-President

Decision

1. The defendant is convicted of the offence as charged.

2. The defendant is fined the sum of $32,000 with a moiety to the prosecutor.

3. The Court further orders that the defendant shall pay the costs of the prosecutor for these proceedings in the amount of $18,000.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 8(2) of the Occupational Health and Safety Act 2000 - defendant employer operated go-kart business - go-karts rented to members of the public to ride on a track at defendant's workplace - risk of injury to persons operating go-karts as a result of loose or baggy clothing becoming caught in moving parts of go-karts - patron of business wearing hijab - loose material of the garment not restrained - material became entangled in left rear axle of go-kart - patron strangled - fatality - plea of guilty - sentencing - objective factors - maximum penalty - Australian Standards relevant to assessment of objective seriousness of offence, not aggravation - defendant did not conform with guidelines set out therein - risk foreseeable - simple remedial steps available - general deterrence - specific deterrence minimal - defendant's level of control of business considered - limited "hands on" role in business at time of incident - defendant's responsibility to ensure safety at workplace could not be delegated to employees - offence serious - subjective factors - remorse and contrition - co-operation with the prosecutor - discount for plea - early plea - consideration of financial means of defendant - no claim for impecuniosity - no basis for reduction in penalty on financial grounds - reduction in penalty by virtue of mitigating factor and subjective factors - penalty imposed - moiety - costs
• Legislation Cited: Fines Act 1996; Occupational Health and Safety Act 2000
• Cases Cited: Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99; Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29; Ferguson v Nelmac Pty Limited (1999) 92 IR 188; Graincorp Operations Limited v Inspector Mason [2006] NSWIRComm 304; (2006) 157 IR 103; Inspector Dall v Ullrich [2012] NSWIRComm 87; Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153; Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125; Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors [2002] NSWIRComm 64; (2002) 113 IR 78; Inspector Lai v Rexma Pty Ltd and Another [2008] NSWIRComm 78; (2008) 172 IR 210; Inspector Middleton v Cafe C Pty Ltd [2012] NSWIRComm 131; Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464; Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190; (2001) 106 IR 435; Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61; (2005) 147 IR 117; Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163; R v Reader (Brian Henry) (1988) 10 Cr App R(S) 210; R v Rushby (1997) 1 NSWLR 594; Rahme v R (1989) 43 A Crim R 81; Retsos v Regina [2006] NSWCCA 85; WorkCover Authority (NSW) (Inspector Jones) v Challita [2006] NSWIRComm 207; (2006) 153 IR 409; WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363; WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 277; (2000) 95 IR 383
• Category: Sentence
• Parties: Inspector Philip Brandie (Prosecutor); Michael John Hogan (Defendant)
• Representation: R Reitano of counsel (Prosecutor); W Barry of counsel (Defendant); WorkCover Authority of NSW (Prosecutor)
• File Number(s): IRC 1933 of 2011

Judgment

1 These proceedings involve a prosecution instituted by Inspector Philip Brandie ("the prosecutor") against Michael John Hogan ("the defendant"). Inspector Brandie is an inspector of the WorkCover Authority of New South Wales and is empowered by s 106(1)(c) of the Occupational Health and Safety Act 2000 ("the Act") to institute proceedings.

2 At the date specified in the charge (8 April 2010), the defendant operated a business known as "Port Stephens Go Kart Hire" ("the business") in partnership with his wife, Judith A Hogan located at 776 Marsh Road, Bobs Farm in the State of New South Wales ("the premises"). The business has since been sold by the defendant.

3 The business involved the hiring of go-karts to members of the general public to be driven on a specially designed track at the premises. The defendant operated approximately nine "Wild Thing" go-karts at the premises, which had been purchased in or around 1998 from a go-kart supplier in Melbourne known as "Drew Price Engineering".

4 The defendant employed his son, Mark Hogan, as the manager and track attendant. Mark Hogan had been employed at the track since August 2007. His duties included supervising and assisting patrons, marshalling the customers, maintaining the go-karts, marshalling the riders on the track, receiving fares and undertaking mechanical tasks (such as inspecting, refuelling and changing the tyres of the go-karts). Occasionally, Mark Hogan was required to supervise up to three employees at the track. He was required to report to the defendant in the course of his employment.

5 Relevantly, two Australian Standards - namely, AS 3533.1 - 2009 Amusement rides and devices, Part 1: Design and construction ("AS Part 1") and AS 3533.2 - 2009 Amusement rides and devices, Part 2: Operation and maintenance ("AS Part 2") - applied to the defendant's business. The clauses of those Standards, which bear, relevantly, upon the defendant's operations, will be referred to throughout the course of the following discussion and are set out in the document entitled "Prosecutor's Statement of Facts" annexed to this judgment. That document (which the defendant agreed was a true statement of facts) was in evidence before the Court and forms part of the factual matrix upon which this judgment is delivered.

6 This prosecution arose following a fatal incident at the premises on 8 April 2010 which occurred when a member of the public (not in the employ of the defendant), Mariam Dadoun, was riding a go-kart operated by the defendant ("the incident").

7 At about 1.00pm on the date of the incident, Mrs Dadoun had arrived at the premises with her husband, Stephen Awwad, her brother, Adam Dadoun (aged 14 years), and her two children (aged 4 and 6 years).

8 Mrs Dadoun was, at that time, wearing a hijab. The hijab was a one piece garment covering Mrs Dadoun's scalp, enclosing her cheeks and joining under her chin. The garment also covered her shoulders and arms to a point midway between her hips and knees where it hung down. It was not tucked in or restrained. The hijab was worn over a full length neck-to-ankle black dress. Mrs Dadoun also wore long, ankle length pants beneath her dress.

9 The relevance of Mrs Dadoun's attire should be presently noted. The hijab she wore during her ride on the go-kart was flowing and unrestrained. By cl 4.3.3(b) of AS Part 2, go-kart riders were required to "not wear loose fitting clothing or accessories that could become entangled in any part of the kart". Further, cl 3.2(i) of AS Part 2 advised that patrons with such clothing or accessories or those with unrestrained hair were "not permitted to participate where there is a risk of entanglement". The wearing of a loose garment whilst riding the go-kart represented a risk to safety: the risk that the garment may become caught in the moving parts of the go-kart and, as a result, cause physical injury to the wearer.

10 Having parked in the car park at the premises, Mrs Dadoun and her family made their way to the main office area which was, initially, unattended. After a short time, Mark Hogan approached Adam Dadoun and said to him "Look, I've got people on the track, I can't serve you, wait 'til they're finished".

11 Whilst the family waited in the office area, Adam Dadoun noticed a sign on the wall which instructed that the wearing of unenclosed footwear by patrons riding go-karts at the premises was prohibited. Mr Awwad was not wearing enclosed footwear and so, having taken note of the sign, he and Adam Dadoun returned to the family's car in order for Mr Awwad to change into appropriate shoes.

12 It is relevant to note, at this juncture, that, pursuant to cl 2.2.13 of AS Part 2, the defendant was required to provide and prominently position "signs for the control of patrons, the safe use of a device or the operating restrictions for a device". The information to be displayed on such signage included, amongst other things, "advice about the safe operation of the device, e.g. loose articles" (cl 2.2.13(f) of AS Part 2). Whilst, as noted, signage was provided in the office area portraying information about the appropriate footwear to be worn by patrons on the track, there was no other signage on display at the premises. In particular, there was no signage which contained information relating to loose articles of clothing, or the hazards associated with the wearing of loose or baggy clothing or accessories by go-kart riders.

13 When Mr Awwad and Adam Dadoun had returned from the car park to the office area, the patrons who had been riding go-karts on the track when Mrs Dadoun and her family arrived had finished their ride and were leaving. Mark Hogan had also returned to the office area at that time. Mr Awwad then paid Mark Hogan for four 15 minute go-kart rides on the track. His intention was that Mrs Dadoun and Adam Dadoun would ride for 15 minutes while he watched on with his children, and then he and Adam Dadoun would ride for another 15 minutes while Mrs Dadoun watched on with the children.

14 Having paid for their rides, the family left the office area of the premises. Adam Dadoun collected two hairnets and two helmets from a helmet rack. He put his hair net and helmet on. Mrs Dadoun wore her hair net and helmet, which she had donned with the assistance of either Adam Dadoun or Mr Awwad, over the top of her hijab. Mrs Dadoun and Adam Dadoun then walked on to the track and selected the go-karts they wanted to ride in. They sat in their chosen go-karts, which Mark Hogan refuelled by using a jerry can. Mark Hogan then went to the back of Mrs Dadoun's go-kart and started its engine.

15 It might be noted at this juncture that it was a requirement of cl 4.3.3 of AS Part 2 that the "operator" of an amusement activity or device (defined in cl 1.3 as "[t]he person having overall control of an amusement device") should, prior to allowing any patron to operate any go-kart, carry out a "detailed check of each patron". The purpose of the check was to determine, amongst other things, whether patrons were wearing any "loose or baggy clothing". If a patron was wearing such clothing, the operator was required to instruct the patron to "effectively secure, contain and generally confine" the clothing "so that there is no reasonable possibility that the ... clothing may come loose during the ride" or, in the alternative, prohibit the patron from riding the go-kart whilst wearing such attire.

16 Mark Hogan did not, at any point prior to Mrs Dadoun and Adam Dadoun commencing to operate their respective go-karts, speak to Mrs Dadoun, Adam Dadoun or Mr Awwad about the rules of the track or about the kind of clothing that should or should not be worn whilst riding go-karts on the track. Furthermore, he did not inspect their clothing or attire in the manner specified by cl 4.3.3 of AS Part 2, nor had he instructed Mrs Dadoun to confine her hijab or prohibited her from operating the go-kart whilst wearing the unrestrained garment. It is not evident that, in fact, Mark Hogan gave Mrs Dadoun, Mr Awwad or Adam Dadoun any instructions at all about riding the go-karts.

17 After Mark Hogan had completed refuelling the go-karts, Mrs Dadoun and Adam Dadoun began to drive around the track. Mrs Dadoun moved very slowly, and appeared unable to steer the go-kart around the corners. Mrs Dadoun completed three laps of the track. Scott Taylor, a patron who had arrived at the track with his family shortly after Mrs Dadoun and her family, observed Mrs Dadoun's clothing "flapping around" as she circuited the track for a period of "at least ten minutes" prior to the incident. Mr Taylor's wife, Sharon Taylor, also observed Mrs Dadoun's clothing "vibrating or flapping in the wind as she drove past" just prior to the incident.

18 Adam Dadoun crashed his go-kart in to one of the barriers on the side of the track causing a loud noise. Mark Hogan walked across the track to pull that go-kart away from the barrier and repositioned it on the track.

19 At about the same time, Mrs Dadoun's go-kart became stuck in one of the corners of the track. Neither she nor her go-kart were moving. Mark Hogan walked towards Mrs Dadoun's go-kart, switching off the engine when he arrived. He then pulled at Mrs Dadoun's hijab, the lower hem of which had become entangled in the go-kart causing the section of the garment enveloping her head, cheeks and neck to tighten and compress around her neck and throat. Mr Awwad then arrived and saw that Mrs Dadoun was being strangled. He attempted to pull the hijab away from her neck. He removed her helmet and screamed out her name. Mr Taylor called emergency services.

20 Photographic evidence taken after the incident showed that Mrs Dadoun's hijab had become caught in, and wound around, the rear left side drive axle of the go-kart she was driving.

21 Mrs Dadoun was conveyed to the John Hunter Hospital at Newcastle. She was pronounced dead approximately twenty minutes later. The final post mortem examination report identified the cause of death as a neck compression injury. Mrs Dadoun was 26 years of age at the date of her death.

22 On the date of the incident, the track was attended by police. Inspector Brandie also attended the track to conduct inspections on that day and, subsequently, on 9 and 13 April 2010. On 14 April 2010, Inspector Brandie issued the defendant with a Prohibition Notice to prevent the operation of the go-kart vehicles whilst the drive sprockets, drive chains and rear axles remained unguarded.

23 On 5 May 2010, Graeme Lawrie, a Mechanical Examiner with the New South Wales Police, examined the go-kart involved in the incident. It was opined by Mr Lawrie that the guarding fitted to the go-kart was inadequate for use in a public amenity as it provided little to no protection from rotating components. In particular, the left and right rear axles, drive chain and disc/pad assembly of the go-karts in use at the premises, including the go-kart which had been driven by Mrs Dadoun, were unguarded at the time of the incident. It was agreed that, at the time of the incident, the go-karts in use at the premises had not been provided by the defendant with guarding pursuant to cl 5.6.2(a) of AS Part 1, in that the guarding was not adequate to, amongst other things "prevent the entanglement of hair" (nor, presumably, the entanglement of the unrestrained material of a hijab).

24 The defendant subsequently complied with the Notice issued by Inspector Brandie by fitting guarding in the form of black rigid PVC-type material to the vicinity of the rear left axle and drive sprocket assembly chains of all of the go-karts in use at the premises.

25 It was the evidence of the defendant that, immediately following the incident, he ceased to operate the business. As noted earlier, the business was, in fact, sold by the defendant soon after.

26 The defendant was charged in his capacity as an employer. The charge was laid under s 8(2) of the Act.

27 The risk specified in the charge was the risk to persons operating go-karts at the premises (not in the employ of the defendant), and in particular Mrs Dadoun, of physical injury as a result of loose or baggy clothing becoming caught in the moving parts of go-karts.

28 The charged particularised various failures of the defendant. In addition to the failures of the defendant already mentioned - that is, the failure to check the clothing of patrons and to instruct patrons not to wear loose or baggy clothing (and to prohibit those who did so from operating a go-kart) and the failure to properly guard the go-karts - the charge also alleged that the defendant had failed to have a supervisor present at the premises at all times to supervise the track. Although cl 4.3.9 of AS Part 2 provided that a supervisor "shall be in a position at all times to supervise the entire track" and that "[n]o other duties shall be performed by supervisors while the karts are travelling other than ensuring the safe operation of the facility", it is evident that Mark Hogan was the only employee working at the premises on the day of the incident. As a result, he was working in the multiple roles of track supervisor and track attendant, tending to the ticketing area in the main office and also undertaking maintenance work on the go-karts at the premises including the changing of a wheel.

29 It was also alleged that the defendant failed to provide a formal training programme to employees. Clause 3.1(2) of AS Part 2 and items G1 and G2 of Appendix G of AS Part 2 provided that a formal training program should be established and followed which included instruction in relation to the dangers presented by loose items carried or worn by patrons. The charge also particularised a failure of the defendant to undertake a risk assessment which identified the risk and the means by which it could be controlled.

30 The defendant pleaded guilty to the charge as laid.

31 Mr W Barry of counsel, appearing on behalf of the defendant, did not seek to gainsay the contentions of Mr R Reitano of counsel, on behalf of the prosecutor, as to those factors which made the offence in this matter objectively very serious.

32 Those factors, which are derived from a summary of the oral submissions of Mr Reitano, are as follows:

(1) The relevant risk, as particularised in the charge, was the risk of loose or baggy clothing becoming caught in the moving parts of go-karts and, as a result, causing physical injury to persons operating the go-karts.

(2) Having regard to the foreseeability of the risk, the availability of simple remedial measures, and the consequences which ultimately flowed from the presence of the risk, the offence must be considered to be very serious.

(3) The Australian Standards which applied to the defendant's business illustrated or highlighted the risk occasioned in this matter and set out a range of measures which could have been implemented to control or eliminate the risk. The risk was, in those circumstances, obvious and foreseeable.

(4) There were cheap, quick and easy measures available to the defendant prior to the incident which would have eliminated the risk. The acts and omissions specified in the charge (which were derived from the Australian Standards applicable to the defendant's business) go to those measures or controls that the defendant failed to put in place. Those failures included the failure to check that persons operating the go-karts were not wearing loose or baggy clothing and, if they were, to instruct them not to do so (or to prohibit them from operating a go-kart if they attempted or continued to do so); a failure to guard all moving parts of the go-karts; a failure to supervise; a failure to implement a formal training programme; and, a failure to undertake a risk assessment.

(5) Nothing was done at the premises on the day of the incident, it was submitted, which would have been consistent with any of the controls that the Australian Standards and the particulars of the charge referred to.

(6) On the day of the incident, no check of Mrs Dadoun's clothing was undertaken. No instructions in relation to the operation of the go-karts and the rules relating to the track were given to Mrs Dadoun, Adam Dadoun or Mr Awwad. No sign was provided instructing that go-kart riders should not wear loose fitting clothing. (This failure was significant, it was submitted, given that Adam Dadoun and Mr Awwad were alerted by the sign in the office area instructing riders not to wear open shoes. Had there been a sign containing information about loose fitting clothing, it is likely that it would also have been noticed and acted upon by the family.) Mark Hogan was performing more tasks on the day of the incident than just supervising the track - he was also, amongst other things, changing the wheel of another go-kart whilst Mrs Dadoun's ride was in progress. There was, therefore, no dedicated supervisor on duty at the premises on the day of the incident.

(7) Had any single one of the measures identified in the Australian Standards (and set out in the charge) been in place at the premises, the risk could have been eliminated.

(8) The risk manifested in the tragic death of a young mother.

33 I accept those submissions. However, some further observations should be made regarding the objective seriousness of this offence as follows:

(1) I recently discussed the principles applicable to a consideration of the objective seriousness of an offence in Inspector Middleton v Cafe C Pty Ltd [2012] NSWIRComm 131 at [46] and [50]. It is unnecessary to repeat those principles here. I would, however, draw attention to the following principles. First, the objective seriousness of an offence is the primary factor to consider in sentencing under occupational health and safety legislation (see, for example, Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29, WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 277; (2000) 95 IR 383 and Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163). Secondly, the existence of a reasonably foreseeable risk and the availability of simple and straightforward remedial measures which would have avoided or minimised the risk are factors which increase the objective seriousness of an offence. In addition, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety (see the discussion of the relevant principles in Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 (commencing at [181]) ("Cross City Tunnel")).

(2) The risk in this matter could have been avoided by the taking of the particularised measures which were entirely within the control of the defendant. The defendant had no systems in place prior to the incident which were directed to the elimination or avoidance of the relevant risk.

(3) The prosecutor relied upon the relevant clauses in the Australian Standards applicable to the defendant's business in submitting that the risk was foreseeable and that there were a range of easily identifiable, simple remedial measures available to the defendant prior to the incident which would have obviated the risk. Those submissions, as I have noted, may be accepted. (I have additionally referred to the relevant provisions of the Standards and their applicability to this matter earlier in this judgment.) However, it must be emphasised that the Australian Standards have only been taken into account in relation to the objective seriousness of the offence in the manner discussed by a Full Bench of this Court in Graincorp Operations Limited v Inspector Mason [2006] NSWIRComm 304; (2006) 157 IR 103 at [25]. In particular, the fact that the defendant's operations did not conform to the guidelines set out in AS Part 1 and AS Part 2 is not a factor which has the effect of aggravating the offence. However, the information contained in AS Part 1 and AS Part 2 is relevant to an assessment of the objective seriousness of the offence. Whilst the defendant submitted that, at the time of the incident, he was unaware of the existence of the relevant Australian Standards, his counsel, nonetheless, properly accepted that, as the operator of the business, it was his responsibility to be aware of and conform with those Standards as applicable.

(4) The maximum penalty for the offence is also a matter which goes to the question of objective seriousness (see Cross City Tunnel at [192(i)]). The maximum penalty for the offence, the defendant being a personal defendant and a first offender, is $55,000.

(5) Deterrence should be a further consideration relevant to sentencing in this matter (Cross City Tunnel at [192(iii)]). So much was submitted by the prosecutor. It is necessary to ensure that the penalty properly reflects the need for general deterrence so as to draw attention to those operating in the amusement industry, and other like enterprises which provide amenities and like experiences to the general public, to the appropriateness of implementing a system which obviates the risk of injury from loose or baggy clothing becoming caught in the moving parts of amusement devices.

(6) Specific deterrence is of much less significance. It was accepted by the prosecutor that the defendant ceased to operate the business immediately following the incident and sold it soon after. It was also accepted that, on the evidence, the defendant no longer operates, or is involved in any way in the operation of, any other amusement device or activity. In accordance with the principles stated in Capral Aluminium (at [75] - [77]) and Cross City Tunnel (at [193]), accepting that, in the circumstances, the likelihood of the defendant re-offending is low, there will be only a minor element for specific deterrence in the penalty.

(7) There is one final factor requiring consideration, namely, the level of control of the defendant over the business. It was the evidence of the defendant that he and his wife had decided to start the business, in their "semi-retirement", in approximately 2000. (Whilst the defendant and his wife owned the business in partnership, the defendant's wife was a nominal partner only.) The defendant intended to build the business and, eventually, upon his retirement, hand it over to his son, Mark Hogan, and one of his daughters. The defendant reported that, as time went on, his practical involvement in the business became less and Mark Hogan, who lived on the property on which the premises was located, had begun to take over the day-to-day business tasks. The defendant deposed that, at the date of the incident, his practical involvement in the business was limited to attending the premises each morning, "opening up and feeding the dogs and leaving usually after about 1 hour". He was not present at the premises at the time of the incident. The defendant also deposed that: "I believed my son was competent to run the day to day operations of the business". It was further submitted, by counsel for the defendant, that the defendant had suffered from prostate cancer in 2010 and that it "may have been that he took his eye off the ball in relation to the management of the business. Certainly he was not paying sufficient attention that he should have been in relation to the actual day to day operations of the business".

(8) I accept that the defendant's "hands on" involvement in the business at the time of the incident was minimal. I have taken that matter into account. However, it should be emphasised that there is also no evidence before the Court which suggests that the defendant had instructed his son to operate the business in a manner consistent with the applicable Australian Standards (in fact, as noted, the defendant admitted he had no knowledge of those Standards prior to the incident), or, more generally, in a way which ensured the safety of its staff and the general public which attended the premises vis-a-vis the wearing of clothing (in the manner contemplated by those Standards). Indeed, the evidence demonstrated the contrary was the case. In any event, the defendant's responsibility was, as the owner and operator of the business, to ensure safety at his workplace. This was a pro-active duty. It was not a responsibility which could be delegated to his employees. So much was accepted, in my view appropriately, by the defendant's counsel.

34 Counsel for the prosecutor contended that the offence was objectively very serious, falling within the high range. Having regard to the objective factors mentioned, the offence must be treated as of such seriousness to warrant the imposition of a significant penalty.

35 Nonetheless, the defendant made a number of submissions in relation to the subjective factors in this matter which should result in a discount in penalty.

36 Demonstrations of remorse and contrition by defendants is a factor which may be taken into account in mitigation of penalty: Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 at (107) - (108); Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 at [111]; WorkCover Authority (NSW) (Inspector Jones) v Challita [2006] NSWIRComm 207; (2006) 153 IR 409 at [39]; McDonalds at [454] and Inspector Lai v Rexma Pty Ltd and Another [2008] NSWIRComm 78; (2008) 172 IR 210 at [53].

37 I accept the submission of counsel for the defendant that he has expressed and demonstrated contrition and remorse over the incident through his plea of guilty and the statements made to that effect in his affidavit.

38 A related consideration is the co-operation by the defendant with the WorkCover Authority of New South Wales: WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363 at [30]; Challita at [39] and Rexma at [53]. I accept the submission of the defendant that he co-operated with the WorkCover Authority in its investigation and should, accordingly, be entitled to a discount in that respect. (He also complied with the Prohibition Notice issued by Inspector Brandie on behalf of the WorkCover Authority.)

39 The next consideration is the discount which should be afforded the defendant for the entry of a plea of guilty.

40 It was submitted by the defendant that a plea was entered at the first available opportunity. At the first mention of the matter before the Industrial Registrar, the matter was adjourned for a period of approximately three months to allow the defendant to read the prosecution brief and so that both the defendant and the prosecutor could await the result of a Coroner's Inquest into the incident. A plea was entered on the next occasion on which the matter came before the Court for mention. It was accepted by the prosecutor that the defendant had entered his plea at a very early stage in proceedings and that there was, therefore, no reason why he should not be entitled to the full discount for the utilitarian value of the plea.

41 I discussed the principles applicable to an assessment of the appropriate discount for the utilitarian value of a guilty plea in Inspector Dall v Ullrich [2012] NSWIRComm 87 at [77], as follows:

The determination of where, within the range of 10 - 25 per cent, a discount should fall in a particular case is a matter for the discretion of the sentencing judge, based on a consideration of the utilitarian value of a plea to the efficiency and effectiveness of the criminal justice system : R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [3], [115] and [153]. In Thomson, Spigelman CJ (as he then was) held, at [154], that there are two circumstances which will generally affect the appropriate level of discount in a particular case: the primary consideration is the time at which a plea is entered; the other consideration is the extent of the utilitarian benefit, for example, in the avoidance of a lengthy trial. (I note that the judgment of the Full Bench in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [2002] NSWIRComm 108; (2002) 115 IR 78 at [37] required that, after the judgment in R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300, the principles in Thomson were to be applied in sentencing offenders under the Act).

42 It must be concluded that the defendant's plea, entered at the second mention of the matter, was an early plea. The utilitarian value of the plea to the "efficiency and effectiveness" of the justice system was substantial. The defendant shall receive a discount of 25 per cent for his plea of guilty.

43 One further matter which requires some discussion is the financial position of the defendant. It was expressly submitted by counsel for the defendant that he did not rely on impecuniosity. No claim under the Fines Act 1996 was made on his behalf. However, it was submitted that the Court would have regard, in fixing penalty, to the fact that the business had been sold by the defendant soon after the incident.  Furthermore, the defendant was no longer involved in any other business of the kind and was a self-funded retiree.

44 As noted, there is no suggestion of impecuniosity. Further, no financial material was placed in evidence before the Court. I accept that the defendant is in retirement and no longer owns the business, but those facts alone do not properly disclose the financial position of the defendant. They are, therefore, not factors which should result in a discount in penalty. I would add that, in any event, the nature and seriousness of the offence is the primary determinant of penalty; subjective features ought not result in a reduction in penalty that fails to recognise the seriousness of the offence (Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors [2002] NSWIRComm 64; (2002) 113 IR 78 at [113]. See also Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190; (2001) 106 IR 435, R v Rushby (1997) 1 NSWLR 594, Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153, Ferguson v Nelmac Pty Limited (1999) 92 IR 188 and Cross City Tunnel at [187] and [287]). This is a serious offence and the penalty must reflect that conclusion.

45 Nonetheless, the sentence imposed must reflect general sentencing principles. The Court should refrain, in the ordinary course, from imposing a crushing or oppressive penalty having regard to the circumstances of the offender (Retsos v Regina [2006] NSWCCA 85; R v Reader (Brian Henry) (1988) 10 Cr App R(S) 210 (at 214); Karabelas at [16] and Rahme v R (1989) 43 A Crim R 81 (at 86)).

Conclusion

46 As earlier noted, the Court must ensure that mitigating and subjective factors do not produce a sentence which fails to sufficiently take into account the objective seriousness of the offence.

47 Here, a young mother was killed as a result of the unrestrained fabric of the hijab she wore becoming entangled in the exposed moving parts of the go-kart she was riding and, ultimately, strangling her. The objective seriousness of the offence is well manifested by the charge and the particulars thereof, and the various factors discussed in this judgment which dictate a conclusion that the offence, as I have earlier observed, is a serious one. Nonetheless, I have reduced the penalty which may have otherwise been imposed upon the defendant because of the mitigating factor, bearing upon objective seriousness, and subjective features of the offence.

48 The defendant is convicted of the offence as charged and shall receive a penalty of $32,000 with a moiety to the prosecutor. The defendant shall pay the costs of the prosecutor for these proceedings which are agreed in the amount of $18,000.

Orders

49 In all the circumstances, the Court makes the following orders:

1. The defendant is convicted of the offence as charged.

2. The defendant is fined the sum of $32,000 with a moiety to the prosecutor.

3. The Court further orders that the defendant shall pay the costs of the prosecutor for these proceedings in the amount of $18,000.

**********

Annexure

Decision last updated: 10 December 2012