Use of Comparative Sentences in Prosecutions under the Work Health and Safety Act 2011 (Qld)
The important factor in the sentencing process that is the subject of this paper is ensuring consistency in sentencing between like cases. This paper aims to comment on the case law applicable to the use of comparative sentences in the sentencing process under the Work Health and Safety Act 2011 (Qld). The paper will identify the case law relating to use of comparative sentences generally, the divergent authority in what may properly be considered comparative sentences for WHS Act prosecutions, and the availability of Queensland comparative sentences under the WHS Act. It will finish with commentary on the possible rectification of the issues identified.
The sentencing process is a complex function of the Court. It involves a difficult balancing exercise, where the Court must take into account all of the circumstances of the offence, and the offender, to reach a single sentence for an offence. In R v MacNeil-Brown,  this process was described as follows –
It is the judge who must make the necessary findings of fact. It is the judge who has the obligation to determine what weight should be given to the facts so found. The sentencing judge has to form a view as to the gravity of the offence and the part played by the offender. The judge has to determine not only what happened but how and why it happened. The judge has to determine the culpability of the offender. The judge has to find and articulate whether or not there are factors of aggravation. The judge must make a finding as to the harm suffered by the victim. The judge must consider the personal factors relevant to the offender and make findings as to factors of mitigation. The judge must consider the weight of each of those factors. Often the judge must form a view as to how burdensome the sentence might be for the particular offender in the light of factors, such as the prisoner’s health, family issues and employment. The judge must give consideration to all of the above matters, and sometimes more, in the context of what is required to achieve the sentencing goals of general deterrence, denunciation, specific deterrence, rehabilitation and just punishment. Appropriate consideration of all of the above factors is required before the determination by the judge of a just sentence. The ultimate sentence to be imposed involves the exercise of a judicial discretion, which is the result of an “intuitive synthesis” of all the relevant facts, circumstances and sentencing principles. The exercise of that discretion is the function of the judge and the judge alone.
Not only that, the Court must seek consistency in its sentencing. To do so, it necessarily has to understand what sentences have been given previously in relation to like offences, and the reasons why such sentences were given. The High Court in Barbaro v R (2014) 305 ALR 323 at   held that –
“…in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. And as each of Buchanan JA and Kellam JA rightly observed in MacNeil-Brown, the synthesis of the “raw material” which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel.” [footnotes removed, underlining added]
Consideration of the appropriate principles to be applied as part of the sentencing process must necessarily commence with a consideration of the relevant legislation governing the sentencing process. It is important to recognise at this point that each jurisdiction in Australia has its own sentencing legislation, and they are not all the same.
In Queensland, and in particular with regard to considering the sentencing process relevant to the Work Health and Safety Act 2011 (Qld) (the WHS Act), the applicable legislation is the Penalties and Sentences Act 1992 (Qld) (the P&S Act). The P&S Act requires the same considerations as, or is at least congruent with, the statement made in R v MacNeil-Brown above through application of the sentencing guidelines contained in s9. In addition, pursuant to s15, both the prosecution and the defendant are entitled to make a submission stating the sentence, or range of sentences, the party considers appropriate for the Court to impose in a particular case.
Accordingly, it can be clearly seen that, in Queensland at least, both the prosecution and the defendant are able to place before the Court their idea as to what would be an appropriate penalty, or range within which an appropriate penalty might lie, for a breach of any particular provision of the WHS Act. Properly, any such submission should be supported by relevant information properly placed before the Court.
The WHS Act is part of a nationally harmonized (although not completely uniform) legislative scheme. A model form of legislation was released in 2009 by SafeWork Australia, and each of the Commonwealth, New South Wales, Queensland, Australian Capital Territory and Norther Territory jurisdictions commenced substantively similar versions thereof on 1 January 2012. South Australia and Tasmania commenced versions on 1 January 2013, while Western Australia has indicated an intention to introduce a Bill into Parliament in late 2019. Victoria has indicated it does not intend at this time to adopt any form of the model legislation.
It was on the basis of the WHS Act forming part of a nationally harmonized regime that submissions were made in Williamson v VH & MG Imports Pty Ltd  QDC 56 that sentences ordered in jurisdictions outside Queensland could and should be considered as comparatives for consideration in sentences under the WHS Act in Queensland. The matter involved a prosecution for breach of s32 of the WHS Act for failing to comply with a health and safety duty under s19 of the Act. The defendant company manufactured and assembled camper trailers. During development of a prototype product in 2012, a portion of a strut explosively detached, resulting in the death of a worker.
At first instance, the magistrate considered the circumstances of the case, identified the maximum penalty and the impact of the loss of the worker’s life on his family, and the need for the penalty to reflect the seriousness of the offence. The magistrate did not consider that, on the facts, the company had been cavalier in its attitude to employee safety, noting it has undertaken a safety audit shortly prior to the incident which had not identified any issues. Ultimately, the magistrate ordered a fine of $90,000 be imposed.
The prosecution appealed on the basis the sentence was manifestly inadequate. The matter came before Dearden DCJ in November 2016. His Honour noted that, at the time of the Magistrate’s decision, the prosecution was unable to provide the Court with guidance on an appropriate penalty range as a result of the decision in Barbaro v R. His Honour noted that the prosecution did tender “a range of comparatives which provided a useful overview of penalties imposed in similar cases” and had made submissions on those cases. His Honour made a finding that the magistrate had erred by failing to take into account the gravity and seriousness of the breach, such that the role of the appellate court was invoked, within the well understood terms of House v The King  55 CLR 499.
It was at this point His Honour went on to consider the impact of the fact the WHS Act was part of the harmonised national work health and safety legislative scheme for Australia. At , His Honour stated –
“It is submitted on behalf of the appellant that sentencing in respect of the harmonised work safety laws in Queensland is analogous to the sentencing of federal offences by state courts. The High Court has recently indicated in R v Pham  HCA 39 that a sentencing judge “must have regard to current sentencing practices throughout the Commonwealth.” It is further submitted by the appellant that “consistency in sentences imposed under the harmonised scheme”, which currently applies in New South Wales, Queensland, South Australia, Tasmania, the Northern Territory and the Australian Capital Territory, should permit sentencing courts to “have regard to decisions in harmonised jurisdictions” which will result in “like cases [being] treated in a like manner.”[footnotes removed]
His Honour went on to state at , having been guided by s3(1)(a), (e) and (h) of the WHS Act, that he had “no hesitation in accepting” the prosecution’s submission. At , His Honour stated the court should look to relevant decisions in harmonised interstate jurisdictions for guidance on appropriate penalties, noting there is no single correct sentence but the “fundamental” requirement to “a fair system of justice” is sentencing be undertaken with as much consistency as possible. His Honour went on to consider a range of New South Wales decisions, and identified that in His Honour’s opinion the fine would be in the order of $250,000, although an appropriate range could be $200,000 to $400,000. Ultimately, though, his Honour considered that as a result of the particular circumstances, the lengthy delays in the appeal process, the issues involved as a result of the impact of Barbaro v R, and that this was the first appeal under the harmonized laws, the penalty should be substantially ameliorated to $125,000.
Accordingly, the practice then adopted by Work Health and Safety Queensland (WHSQ) in prosecuting such matters from that time on was to include comparative sentencing decisions from other jurisdictions. The impact of this conduct was the general increase in fines, certainly in relation to s32 and s33 breaches of the WHS Act. The appropriateness of reference to sentencing decisions from other jurisdictions has, however, been put into question by the more recent decision in Reynolds v Orora Packaging Australia Pty Ltd  QDC 31.
Orora Packaging involved an appeal of a decision of the Magistrates Court in Holland Park on 21 June 2018. The company pleaded guilty to a breach of s47 of the WHS Act, being a failure to consult with workers. The company operated a plant manufacturing corrugated cardboard products. A worker was injured while trying to remove tape and paper stuck inside a machine as a result of a roller turning while the worker reached inside. The worker was acting in an appropriate manner, and an audit of the machine had not identified the issue with the roller moving. However, it was known to the maintenance workers that the roller could move, and they were therefore aware of the need to avoid the situation the worker was placed in. The prosecution’s case was that the company owed a duty to consult relevant workers about the risks, which had not occurred. The magistrate imposed a fine of $9,000. The prosecution appealed on the basis the fine was inadequate.
Relevant to this paper, the prosecution again submitted that, on the basis the WHS Act was part of the nationally harmonised work health and safety laws, the decisions of other jurisdictions were relevant, relying on the VH & MG Imports decision. At , McGill SC DCJ respectfully disagreed with the approach of Dearden DCJ, identifying that the High Court in Pham (on which Dearden DCJ relied) had recognised that in sentencing for federal offences, state sentencing legislation may have differing impacts, but to the extent that the federal sentencing legislation applied, decisions of all jurisdictions were relevant as comparatives.
His Honour went on at  to identify the two distinguishing features of Pham to cases under the WHS Act – first, there was not the unifying sentencing legislation (in Pham, being the Crimes Act 1914 (Cth)); and second there was not the appropriateness of offenders under the singular laws of the Commonwealth being dealt with throughout the Commonwealth. McGill SC DCJ then stated at  that while High Court cases should be considered by courts when dealing with general sentencing principles, those principles should be treated as applying subject to the Queensland legislation. Ultimately, His Honour dismissed the appeal.
In the circumstances, we are left with alternate precedents on the proper use of sentencing decisions from jurisdictions other than Queensland when considering comparatives in any particular matter. In my respectful opinion, the approach adopted by McGill SC DCJ in Orora Packaging is to be preferred to the approach endorsed by Dearden DCJ in VH & MG Imports. In the absence of recognition of the difference in sentencing principles between each jurisdictions’ sentencing regime, the results can not be truly comparative.
One final matter then is the comparatives that are able to be placed before Magistrates Courts in Queensland. In Orora Packaging, McGill SC DCJ also highlighted the final issue relevant to this paper – the Queensland comparatives that could be used. At , it was noted that a summary of a decision of Brisbane magistrate, from the WHSQ website, was placed before the magistrate. It is not clear whether this was by the prosecution (either in support of or attached to some schedule) or by the defendant. His Honour was clear, having noted that it was not a transcript that was provided –
The magistrate should have disregarded the Queensland decision, as it was not properly before her; it is not appropriate to use something like a press release as a means of putting before a magistrate information about an earlier decision of a court on which a party relies.
This point identifies one particular issue with comparative sentences in Queensland. But for s31 offences, all prosecutions proceed summarily in the Magistrates Court. As a result, decisions are very rarely published publicly. Typically, a schedule of comparative offences is provided by the prosecution, with a defendant forced to identify any other matters by use of the WHSQ website summaries.
In R v Hammond  2 QdR 195, the Court (Thomas, Dowsett and White JJ) stated –
… schedules can be of assistance in giving an overview of the range of sentences imposed, against certain basic factors such as age of the offender, previous relevant convictions, whether a weapon was used and so on. But to appreciate if any particular case is of assistance it is necessary to have regard to the full judgment. Sometimes factors which the compiler of the schedule may not have considered particularly relevant may have been omitted from the schedule but which, when appreciated, cause the sentence to be understood differently.
(underlining added, footnotes removed)
Accordingly, in Queensland, a defendant is at a distinct disadvantage in being able to truly consider and make submissions on comparative sentences. It is assumed that WHSQ, in developing the summaries it publishes, does so from the Court transcript. But they still remain a public official’s interpretation of what was important for the purposes of what McGill SC DCJ termed a “press release”. If the summary is not prepared from a transcript, then with respect this may in fact be worse.
The issue has also been noted by some Magistrates in written reasons for decision delivered in matters in which the author has been briefed. With respect, it leaves the magistrate in an invidious position.
It is noted that, in the Final Report of the Review of the model Work Health and Safety laws issued December 2018 to Safework Australia, the author (Marie Boland) considered sentencing practices. In Ms Boland’s view, consistency of sentencing across the jurisdictions was crucial in meeting the objects of the model legislation. Accordingly, Recommendation 25 was for SafeWork Australia to work with relevant experts to develop sentencing guidelines for use in all jurisdictions.
In response, in June 2019 SafeWork Australia issued a Consultation Regulation Impact Statement, seeking comments on various recommendations by 5 August 2019. However, this did not include seeking comment on sentencing guidelines but indicated it was being treated by Safework as something for it to review. It does not appear that any guidelines will be available and in force any time soon.
The Work Health and Safety Prosecutor was appointed in March 2019. The WHSQ website provides that the information relevant to the guidelines for prosecutions under the WHS Act will need to be updated or replaced. No comment is made as to practical approaches for comparatives, although the summaries of cases are available in a de-identified form. It is advised that prosecutions will be based upon application of the Director of Public Prosecution Guidelines, a document which also is stated as being under review at the same time. The DPP Guidelines merely identify that the most recent authorities are to be provided.
Accordingly, the time would appear suitable for the newly appointed Prosecutor to change the approach, and to provide copies of the sentencing remarks for the comparative cases on which it intends to rely, along with copies of any other relevant comparative sentence, as part of a prosecution brief. A similar process was undertaken in mines safety and health prosecutions in the period around 2010, in recognition that defendants simply had no access to such decisions otherwise, although this appears to have ceased. It is also incumbent upon Defendants, and their representatives, to seek the prosecution to provide such transcripts at the earliest time. The level of information available as part of the summaries in no way appears sufficient for copies of transcripts to be ordered. Should they be refused, consideration may be needed as to whether the issue should be brought to the attention of the Court, as it would certainly appear that WHSQ is best placed to maintain the library of such transcripts.
Ultimately, the Work Health and Safety Prosecutor, as well as all other regulatory prosecutions branches within the various Queensland government departments, has an obligation to provide the Court with the necessary information for just sentences to be imposed.
 R v MacNeil-Brown (2008) 20 VR 677 at  per Kellam JA
 Per French CJ, Hayne, Kiefel and Bell JJ
 Markarian v The Queen (2005) 228 CLR 357 at 371 per Gleeson CJ, Gummow, Hayne and Callinan JJ at 
 plus professional costs of $2,500 plus filing fees of $83.70.
 (supra), overruled by amendment of s15 of the P&S Act, effective 5 May 2016
 His Honour did not make any comment on the appropriateness or otherwise of the form of the comparatives tendered, but I infer from the fact it was an “overview” that a schedule was tendered.
 citing Wong v The Queen (2001) 207 CLR 584 and Hili v The Queen (2010) 242 CLR 520
 evidenced by the summaries published by WHSQ
 This provision has a maximum penalty of $20,000.
 It is noted in New South Wales a large number of similar matters are electively run in the District Court, while in South Australia such matters are run in the Industrial Court which publishes its decision.
 as at 21 August 2019
 See DHG v State of Queensland  2 QdR 201