Zelbarry International Pty Limited v Inspector Madeleine Christensen [2004] NSWIRComm 320
Even if there was some error in the sentencing judge's construction of s12 of the Occupational Health and Safety Act 2000, the judge sufficiently took into account the higher maximum penalty for Harnischfaeger and imposed a sentence within the appropriate range. The appellant did not demonstrate that its penalty was...
Source-derived case information.
- Jurisdiction
- Australia
- Judgment Date
- 11 October 2004
- Procedural Posture
- Application for Leave to Appeal and Appeal Against a Decision of Justice Haylen in Matter No. IRC 4833 of 2003 / Appeal
- Outcome
- Appeal dismissed.
- Legal Topics
- ['appeal Against Penalty' 'maximum Penalty' 'prior Record' 'construction of S12' 'parity' 'manifestly Excessive Penalty' 'costs']
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Procedural Posture
Application for Leave to Appeal and Appeal Against a Decision of Justice Haylen in Matter No. IRC 4833 of 2003 / Appeal
Legal Issues
- 1 ['Whether the sentencing judge erred in the construction of s12 of the Occupational Health and Safety Act 2000.' 'Whether the penalty imposed on the appellant warranted appellate intervention as manifestly excessive or out of proportion with the penalty imposed on the co-offender.' 'Whether the sentencing judge adequately assessed the comparative culpabilities of the respective defendants.']
Ratio Decidendi
Even if there was some error in the sentencing judge's construction of s12 of the Occupational Health and Safety Act 2000, the judge sufficiently took into account the higher maximum penalty for Harnischfaeger and imposed a sentence within the appropriate range. The appellant did not demonstrate that its penalty was manifestly excessive or out of proportion with the co-offender's penalty, and the sentencing judge, considered as a whole, identified the principal features relevant to culpability and reached an appropriate assessment.
Court Disposition
Appeal dismissed.
Orders
- ['The appeal is dismissed.' 'No order as to costs.']
Full Case Text
Judgment text and source record
14 paragraphs
Industrial Relations Commission of New South Wales in Court Session
CITATION : Zelbarry International Pty Limited v Inspector Madeleine Christensen [2004] NSWIRComm 320 APPLICANT: Zelbarry International Pty Limited PARTIES : RESPONDENT: Inspector Madeleine Christensen FILE NUMBER: IRC3458 of 2004 CORAM: Walton J Vice-President; Boland J; Backman J CATCHWORDS : Appeal - Maximum penalty - Prior record - Construction of s12 - No need to resolve - Penalty within range - No error re party - Appeal dismissed - No order costs. HEARING DATES: 10/11/2004 EXTEMPORE JUDGMENT DATE : 10/11/2004
APPLICANT: Mr R Bromwich of Counsel
SOLICITOR: Ms N Vujat Emery & Partners Solicitors
LEGAL REPRESENTATIVES: RESPONDENT: Mr M Cahill of Counsel
SOLICITOR: Mr P J Thompson Moray & Agnew
JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Walton J, Vice-President Boland J Backman J 11 October 2004 Matter No. IRC 3458 of 2004 ZELBARRY INTERNATIONAL PTY LIMITED v INSPECTOR MADELEINE CHRISTENSEN
Application by Zelbarry International Pty Limited for leave to appeal and appeal against a decision of Justice Haylen on 26 May, 2004 in Matter No. IRC 4833 of 2003
JUDGMENT OF THE COURT (Ex tempore) [2004] NSWIRComm 320
1 Whilst we consider that there is some merit in the challenge brought by the appellant (which was joined in by the respondent) to the construction of s12 of the Occupational Health and Safety Act 2000 by the sentencing judge (and for that matter the discussion of principle by his Honour), we do not consider it is necessary to finally resolve that issue in this appeal. We consider that (even if accompanied by some error) Haylen J ultimately sufficiently took into account the higher maximum penalty pursuant to s12 of the Act for the defendant Harnischfaeger and gave a sentence which was within the appropriate range of penalty for that defendant in the circumstances of the matter.
2 Further, we do not consider that the appellant has demonstrated that the penalty imposed upon it was such as to warrant appellate intervention on the basis that it was manifestly excessive or out of proportion (having regard to the principle of parity to the extent relevant) with the penalty imposed upon the co-offender.
3 We accept the appellant's submission that there was some lack of clarity in his Honour's judgment as to the assessment of the comparative culpabilities of the respective defendants, however, we are of the view that, when considered as a whole, his Honour did identify the principal features going to culpability and reached an appropriate assessment at the end of the day.
4 In the result, we have determined that the appeal should be dismissed and order accordingly. We make no order as to costs.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.