FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy Union v Williams
[2009] FCAFC 171
PECUNIARY PENALTIES - imposing penalties for multiple breaches on basis that there was single course of conduct – determination of appropriate penalties
Building and Construction Industry Improvement Act 2005 (Cth) ss 43, 69
House v The King (1936) 55 CLR 499 applied
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 applied
Royer v Western Australia [2009] WASCA 139 considered
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and ROBERT MATES v ANDREW WILLIAMS
VID 452 of 2009
MOORE, MIDDLETON, GORDON JJ
7 DECEMBER 2009
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY GENERAL DIVISION |
VID 452 of 2009 |
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ON APPEAL FROM THE FEDERAL COURT |
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CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Appellant
ROBERT MATES Second Appellant
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AND: |
ANDREW WILLIAMS Respondent
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JUDGES: |
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DATE OF ORDER: |
7 DECEMBER 2009 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. Orders 1 to 5 of the order of Jessup J of 28 May 2009 be set aside.
3. On or before 7 January 2010, the first appellant shall pay to the District Registrar of the Victorian Registry of the Court a fine in the sum of $35,000 or by such further time and by such instalments as the District Registrar may allow.
4. On or before 7 January 2010, the second appellant shall pay to the District Registrar of the Victorian Registry of the Court a fine in the sum of $7,500 or by such further time and by such instalments as the District Registrar may allow.
5. In the event that there is default in payment of either of the fines, the District Registrar of the Victorian Registry shall apply to the Court for directions concerning enforcement.
6. The respondent pay the appellants' costs of the appeal, to be taxed in default of agreement.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY GENERAL DIVISION |
VID 452 of 2009 |
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ON APPEAL FROM THE FEDERAL COURT |
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BETWEEN: |
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Appellant
ROBERT MATES Second Appellant
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AND: |
ANDREW WILLIAMS Respondent
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JUDGES: |
MOORE, MIDDLETON, GORDON JJ |
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DATE: |
7 DECEMBER 2009 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
THE COURT:
1 On 31 July 2006 the second appellant, Mr Mates, held a meeting of workers at a building site in Melbourne. He made statements to procure a stoppage of work by the workers. This was done to induce the builder to employ an occupational health and safety representative on the site. As he left the site, Mr Mates told the site manager that if there was not a representative on site the following day "we'll go through all this again". Mr Mates was an organiser employed by the first appellant, the Construction, Forestry, Mining and Energy Union.
2 Proceedings brought against Mr Mates and the Union (by an Australian Building and Construction Inspector appointed under the Building and Construction Industry Improvement Act 2005 (Cth) (“the Act”)) included an allegation that they had contravened s 43 of the Act and were successful in relation to that allegation. Section 43 makes it an offence to engage in certain coercive conduct including organising action or threatening to organise action to coerce a person to employ a person as a building worker.
3 The primary judge published reasons on 13 March 2009 concerning liability ([2009] FCA 223 ("the liability judgment")). Penalties were imposed on 28 May 2009 when further reasons were published ([2009] FCA 548 ("the penalty judgment")). The contravening coercive conduct of Mr Mates was:
1. procuring a stoppage of work (what he said at the meeting); and
2. threatening to procure a stoppage of work (what he said leaving the site).
By reason of s 69 of the Act, Mr Mates' conduct was taken to be conduct of the Union.
4 The penalty orders were:
1. A penalty of $55,000.00 be imposed on Construction, Forestry, Mining and Energy Union for procuring a stoppage of work on the construction site at 372 Darebin Rd, Alphington, Victoria, on 31 July 2006 with intent to coerce the builder, Kane Constructions Pty Ltd, to employ a person as a building employee, or to engage a person as a building contractor, in contravention of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth).
2. A penalty of $45,000.00 be imposed on Construction, Forestry, Mining and Energy Union for threatening to procure a stoppage of work on the construction site at 372 Darebin Rd, Alphington, Victoria, on 31 July 2006 with intent to coerce the builder, Kane Constructions Pty Ltd, to employ a person as a building employee, or to engage a person as a building contractor, in contravention of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth).
3. A penalty of $8,250.00 be imposed on Robert Mates for procuring a stoppage of work on the construction site at 372 Darebin Rd, Alphington, Victoria, on 31 July 2006 with intent to coerce the builder, Kane Constructions Pty Ltd, to employ a person as a building employee, or to engage a person as a building contractor, in contravention of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth).
4. A penalty of $6,750.00 be imposed on Robert Mates for threatening to procure a stoppage of work on the construction site at 372 Darebin Rd, Alphington, Victoria, on 31 July 2006 with intent to coerce the builder, Kane Constructions Pty Ltd, to employ a person as a building employee, or to engage a person as a building contractor, in contravention of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth).
5. The penalties referred to in orders 1, 2, 3 and 4 above be paid to the Consolidated Revenue Fund on or before 30 June 2009.
6. The respondents pay one-half of the applicant’s costs of the proceeding.
These orders reflected the primary judge's conclusion that Mr Mates' conduct at the meeting, as imputed to the Union, should attract a penalty of $55,000 payable by the Union and his conduct after the meeting, as imputed to the Union, should attract a penalty of $45,000 payable by the Union.
5 In determining these penalties, the primary judge undertook a number of analytical steps. One involved considering the significance of the fact that the threat was made by Mr Mates not long after he had procured the stoppage at the meeting, his conduct involved the same actors, occurred at the same place and involved the same subject matter. His Honour dealt with this question in the following passage from the penalty judgment:
[10] The next submission by counsel for the respondents concerned the inter-relationship between the two contraventions (the stoppage and the threat) which have been found in the case of each of the respondents. It was submitted that the second contravention in each case should not be separately penalised, on the basis that what was involved here was a single “course of conduct”, relying in this respect upon the discussion of the subject in the joint reasons of Stone and Buchanan JJ in Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383, 396-401, [41]-[58]. In the course of those reasons, their Honours said (at 396-397 [41]):
The appellant argued, however, that ‘Mr Barry engaged in one multifaceted course of applying duress to bring about the signing of the AWA’ so far as Ms Thompson was concerned. The argument relied upon observations of Gleeson CJ in Johnson v The Queen (2004) 78 ALJR 616; 205 ALR 346 at [4]-[5] (‘Johnson’) where the Chief Justice cited with approval observations of Wells J in Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92-3 which included the following:
Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.
Although, factually, Mr Mates was in a sense engaged in a single course of conduct on 31 July 2006, that conduct had two elements which s 43 recognises as separate and which were, qualitatively, distinct in the impact they may be presumed to have had on Kane [the builder]. That is to say, Mr Mates sought to coerce Kane in two ways. By procuring stoppage of work he placed immediate pressure upon Kane and, necessarily, demonstrated his capacity and preparedness to do so. By threatening to procure later stoppages, he asserted, in effect, control over when work would resume on the site, and in what circumstances. In its coercive effect, the threat should be viewed as additional to, and not merely as a continuation of, the conduct involved in procuring the stoppage as such.
The appellants submitted that the primary judge erred in his approach to this question.
6 Another analytical step taken later by his Honour was to assess an appropriate penalty for each contravention and assess whether they should be adjusted applying the totality principle. In para [30] of the penalty judgment, his Honour concluded:
All of the considerations to which I have referred in my reasons above lead me to the view that penalties of $75,000.00 and $60,000.00 would be appropriate for the Union’s contraventions of s 43 constituted by the stoppage and the threat, respectively. I do, however, consider that a total penalty of $135,000.00 would be disproportionate in the light of the close relation between the contraventions in point of time, context and purpose. Applying the totality principle, I do not believe that a total penalty of more than $100,000.00 should be imposed. To give effect to that principle, I propose to impose penalties on the Union of $55,000.00 and $45,000.00 respectively.
NATURE OF APPEAL
7 This is a sentencing appeal. The appellants raised two grounds of appeal. First, that the primary judge erred in his consideration of whether the conduct of Mr Mates of inducing the stoppage and making the threat was one course of conduct and should be penalised on that basis. Secondly, that the penalties were manifestly excessive. The respondent submits that there was no appellable error and the appellants fail, at the threshold, to establish error justifying appellate intervention given that both matters involve the exercise of sentencing discretion.
8 A sentencing appeal is to be approached in the manner described in House v The King (1936) 55 CLR 499 at 504-505. That is, if specific error is found, as for example, if the sentencing judge took into account irrelevant considerations or failed to take into account relevant considerations, the sentencing discretion has miscarried and it is for this Court to re-sentence. The appeal court exercises the sentencing discretion afresh. Any issue of whether the sentence passed by the trial judge was manifestly excessive does not arise. The ground of the sentence being manifestly excessive is a separate and distinct ground of appellate review engaged only where no specific error is demonstrated. As was said in House v The King at 505:
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
(Emphasis added).
GROUND 1 – ONE COURSE OF CONDUCT
9 It is necessary to consider, with some care, the approach taken by the primary judge in [10] of his penalty judgment: see [5] above. In paragraph [10] his Honour sought to encapsulate, in a summary form, findings he had earlier made in the liability judgment about the conduct of Mr Mates and then identify its consequences. It is necessary to set out, in a little more detail, the actual findings made in the liability judgment and also identify one important matter that was not the subject of a finding.
10 In the liability judgment, his Honour made certain findings about what occurred at the meeting. As is apparent from the following passages from that judgment, his Honour accepted the evidence of Mr Mates about what course the meeting took and also the evidence of a worker who had been present at the meeting, Mr Rand. In the liability judgment his Honour said:
[39] The workers on site duly met with Mr Mates in the shed. Mr Mates gave evidence of the course of the meeting. He said that there were about 7 or 8 workers present. When asked in chief what he said to the workers, Mr Mates said:
I spoke to the blokes about my concerns in regards to the safety on the job. I spoke to the blokes in regards to my thoughts about Leonard’s ability to do the job, his competence, and I spoke to the blokes in regards to the state of the job with the mud and with the general amenities as well.
Mr Mates told the workers that the amenities “were of an appalling nature. They were dirty, they were muddy, they were unclean.” As to safety, Mr Mates told the workers that he had “reservations regarding the way the site was being run”, being, as Mr Mates put it, “water and mud”. He told them that Mr Leonard had confirmed to him that he (Leonard) “was not in control of that building site in regards to the safety aspect of it”. He said that “there was a general concurrence that there [were] issues on the job”, and that the general feeling was that the site was “a pigsty”. When asked in chief what he said or did from that point at the meeting, Mr Mates said:
Well, part of my role as an organiser – as a union organiser was to basically ask them to consider relocation until I could get Kane’s to be proactive – a bit more proactive in regard to the safety on the job. …. I asked them to ring their bosses and – ring their bosses and ask the bosses to consider relocation because of the state of the job.
Mr Mates said that if the workers had been “happy with the job”, they would have expressed that to him, and would have had no reason to ring their bosses. However, according to Mr Mates, most of the workers went out to make a phone call.
…
[42] Mr Rand was one of the workers in the meeting addressed by Mr Mates on 31 July 2006. He had only the broadest of recollections as to what occurred on that day. He recalled someone from the Union coming to the site; he recalled that the workers were told to stay in the sheds (although he introduced the fact that it was raining on and off, which to an extent explained why work was not being performed); he recalled being addressed by the person from the Union; and he recalled that this person informed the workers at the meeting something “along the lines of we were to sit in the smoko sheds for a while … while some things were sorted out”, namely “things that were raised with the builder on the Friday [that] hadn’t been sorted out or something”. When he was pressed to recall further particulars of what the person from the Union had said, Mr Rand said: “I can’t remember whether it was him that said it or it’s just because I have spoken to other blokes since then that the facilities on site …”; at which point Mr Rand paused, and when pressed to continue, he said: “… and [sic – an?] OH&S rep on site.” Under cross-examination, Mr Rand agreed that the workers were not “actually told the site was closed”; that they were not told to leave the site; and that the person from the Union did not say that he was shutting the job. Mr Rand said that he rang Peter Deanrea from Barra Steel, for whom he was working at the time, and explained to him that there was not any work going on at the site. He said there was something going on between the union and the builder. He asked Mr Deanrea what he wanted him to do. There was no further work for Mr Rand, so he went home.
…
[78] I accept both the evidence of Mr Mates (as set out in par 39 above) and that of Mr Rand (as set out in par 42 above) as to the course of the meeting. However, I do not accept that Mr Mates went no further than to outline to the workers the poor state of the conditions on site, and the safety problems which that potentially involved, and left it to them to decide what to do about it. I commence with my earlier findings, first, that it was the absence of an occupational health and safety labourer-cum-peggy that was Mr Mates’ principal concern on 28 July 2006 and, I consider, his principal reason to return to the site on 31 July, and secondly, that Mr Mates had already (on 31 July) told Mr Leonard that he was there to shut down the job. There is some corroboration of the first of these points in the evidence of Mr Dawson that Mr Leonard had told him by telephone that Mr Mates was back on site and had asked him (Leonard) whether a labourer had been put in place. From there, I accept Mr Mates’ own evidence that he addressed the meeting in terms which were strongly critical of the condition of the site. I also accept his evidence that he told the meeting that Mr Leonard was not in control of the safety aspects of the site. These were, in my view, statements naturally calculated to induce a sense of reserve in a reasonable worker about continuing to work on the site. I then take account of the evidence of Mr Rand, general though it was, that Mr Mates expressed a concern about something raised on the Friday which had not been sorted out by the builder. The sense of this is that the builder (Kane) was in default in some way. I also note that Mr Rand did recall some point being made about an occupational health and safety representative on site. Finally, Mr Mates himself gave evidence that he asked the workers to ring their bosses and to consider relocation because of the state of the job.
[79] In the light of the evidence to which I have referred, it would be naïve not to recognise that the burden of Mr Mates’ message to the workers in the meeting on 31 July 2006 was that they should perform no further work on the site that day. No doubt he had his own good reasons for conveying that message. I accept also that it was not a direction. It was, however, a recommendation with the authority of a union organiser. Neither would it have appeared to the workers to be any spur-of-the-moment thing: Mr Mates’ reference to something having been raised with the builder on the Friday, and not sorted out, would have given an element of considered seriousness to what he was recommending. I accept also that the workers generally agreed with Mr Mates’ assessment of the situation on site, but he himself added an opinion about Mr Leonard’s ability to control matters of safety on site which would not otherwise have been known to the workers. That Mr Mates would have felt able to make a comment about such a subject could only have added further authority to what he said.
[80] For the above reasons, I accept the applicant’s allegation that, on 31 July 2006, Mr Mates organised a stoppage of work on the site. I also accept the alternative, and effectively indistinguishable, formulation relied on by the applicant, namely, that Mr Mates “took … steps to procure” such a stoppage.
11 Later in the liability judgment when his Honour was considering whether Mr Mates had engaged in unlawful industrial action within the meaning of s 38 he addressed again what Mr Mates had done at the meeting and its effect. His Honour said:
[97] As I have found, immediately before the meeting of workers on the site on 31 July 2006, Mr Mates told Mr Leonard that he intended to shut the job down. I also accept that Mr Mates went into the meeting with the intention of prevailing upon the workers to bring about that very result by stopping working on the site. Had Mr Mates directed the workers to stop work, or announced that the job was shut down, he would thereby, in my view, have imposed a ban, limitation or restriction (and thus engaged in such). However, Mr Mates did neither of these things. He gave no direction. His own evidence was that he asked the workers to “ring their bosses and ask the bosses to consider relocation because of the state of the job”. There is no direct evidence to contradict this, and the evidence of Mr De Riva supports it. Mr Rand’s evidence is not inconsistent with it. However confident Mr Mates may have been that, by these means, he would achieve his object of closing down the site, the fact is that he did so by a recommendation which, if carried out, would have involved the workers themselves doing no more than asking their employers to consider relocation. I could not accept that Mr Mates’ words amounted to the imposition of a ban, limitation or restriction on the performance of work in the sense I have explained it above.
12 It is also necessary to set out his Honour's findings in relation to the conversation between Mr Mates and Mr Leonard (the site manager) which constituted the threat. They are in the following passage:
[81] There are two things which weaken the position from which the respondents invite the court to reject Mr Leonard’s evidence that, at the conclusion of Mr Mates’ visit to the site on 31 July 2006, he told Mr Leonard that “we’ll go through all this again”, or similar. First, there is the tender of Mr Leonard’s statement, in which such a statement by Mr Mates is referred to, by the respondents themselves. Secondly, there is the respondents’ omission to cross-examine Mr Leonard on his oral evidence (unassisted at the time by any reference to his statement) to the same effect. I am satisfied that Mr Mates did use words generally along the lines alleged by the applicant, namely, that if there were not an occupational health and safety representative on site the following day, “we’ll go through all this again”.
[82] The “all this” to which Mr Mates referred was, of course, holding a meeting with the workers, persuading them to ring their employers with a view to having their own labour withdrawn from the site and the fact of such withdrawal. In context, Mr Mates’ words were, in my view, a threat that, in the absence of a labourer on the site, he would procure those outcomes; Gietzelt v Craig-Williams Pty Ltd (No 1) (1959) 1 FLR 456, 459. It was a threat capable – subject to the existence of an intent to coerce – of amounting to a contravention of s 43 of the BCII Act.
13 We will return to discuss these passages shortly.
AUTHORITIES
14 It is convenient at this stage to review the authorities concerning how and why a court might address, during the sentencing process, whether acts of the accused or the defendant which have resulted in a conviction of a number of offences, were part of the one course of conduct.
15 As Lord Diplock said in Director of Public Prosecutions v Merriman [1973] AC 584 at 607, "[w]here a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise", they should be regarded as one activity or one offence.
16 What then is the position in Australia? One starting point is the judgment of the Full Court in Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383. The critical passage in the joint judgment of Stone and Buchanan JJ is set out in the quotation from the primary judge's reasons in the penalty judgment at [5] above. Mornington concerned contraventions of ss 400(5) and 792 of the Workplace Relations Act 1996 (Cth). The former section dealt with the application of duress in relation to Australian Workplace Agreements and the latter injuring a person in employment for a prohibited reason. The primary judge, Heerey J, found that the appellant had breached each section in relation to three employees, six breaches under each section for a fourth employee and one breach under the latter section of the fifth employee. Ten penalties, each of $17,000, were imposed. That resulted, in part, from an agreement between the parties that in instances where there had been a breach of both sections, a penalty should only be imposed for the breach of s 400(5). Of importance in the appeal was the primary judge's approach in relation to the breaches concerning the fourth employee. All breaches occurred in July 2006. The appellant argued both at the trial and on appeal that the contraventions in relation to, in particular, the fourth employee were part of a course of conduct and should be penalised as one offence. In the quoted passage from the joint judgment set out earlier, Buchanan and Stone JJ contemplated that in the sentencing process this question of whether there was a course of conduct to be penalised as one offence even if embodying multiple breaches, was a question separate from, and it appears anterior to, whether the overall penalty should be adjusted applying the totality principle.
17 This issue was also separately addressed by Owen JA, Buss JA and Miller JA in Royer v Western Australia [2009] WASCA 139. In Western Australia, the "one course of conduct” is described as the “one transaction principle". Owen JA explained its operation in the following passage:
[21] … Over the years [the one transaction principle] has been, and continues to be, formulated in different ways. The variety of the available formulations does little to provide definitive guidance to sentencing officers having to apply the ‘rule’ to the factual circumstances of an individual case. That having been said, there is universal recognition in the authorities on two points. First, the ‘rule’ is not a rule at all. It is one of many sentencing principles the object of which is to guide a judicial officer in the proper exercise of the sentencing discretion. Secondly, even if offences are properly to be characterised as arising from the one transaction, a judge is not obliged to apply concurrent terms if to do so would result in an effective term that fails to reflect the degree of criminality involved: see, for example, Amoore [14].
[22] … At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.
…
[24] Because of the wide variety of circumstances in which the principle can arise it is not always easy to reconcile the way it has been applied in individual cases. But what can be detected in each case is an examination of the closeness of the interrelationship and the danger of double jeopardy in so far as punishment (not criminal liability) is concerned. In this respect, I think it is worth repeating what Wells J said in Attorney-General v Tichy (1982) 30 SASR 84, 92-93:
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.
[25] … There will be instances in which it is obvious that the interrelationship of multiple offences is so intimate that they can only be said to arise from a single course of criminal conduct. In those instances injustice can only be avoided by imposing concurrent terms. Not to do so would inevitably result in the offender being punished more than once for the same criminality.
18 His Honour later said, in relation to the operation of this principle and the totality principle:
[28] The sentencing discretion does not fall to be exercised in a vacuum. Discretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 [15] (McHugh J). Sentences are imposed for a specific offence (or offences) committed by an individual offender. But the sentencing process operates in a general policy framework to which both the common law and statute have contributed. Within the confines of the policy framework and the dictates of the common law and statute sentencing is essentially a matter of judgment to be exercised according to the facts of an individual case. The notion of melding the specific and the general was recognised by McHugh J in AB [14]:
Many, probably the large bulk of, sentences reflect compromises between conflicting objectives of sentencing. One objective is to impose a sentence that reflects adequate punishment for the culpability of the convicted person, having regard to the community’s view concerning the need for retribution, denunciation, deterrence, community protection and sometimes vindication. Another objective is to impose a sentence, with or without conditions, that will further the public interest by encouraging and not discouraging the convicted person to renounce criminal activity and to re-establish himself or herself as a law-abiding citizen. Still another objective is that the sentence should reflect an allowance for those circumstances, personal to the convicted person, which call for mitigation. These objectives and others have to be achieved within a conceptual framework that requires that there should be parity between sentences, that the sentence should be proportional to the circumstances of the crime and that, where more than one sentence is involved, the total sentence should not exceed what is appropriate for the overall criminality of the convicted person.
…
[30] Against that general background how is the one transaction principle to be understood and applied? Save for the instances in which the interrelationship between multiple offences is so close that injustice can only be avoided by concurrency of terms, the answer will usually emerge from considerations of proportionality to or with the criminality of the offender’s conduct viewed in its entirety. Looked at in this way, the one transaction principle and the totality principle are closely connected. A sentencing judge is obliged to impose an effective term that she or he judges to be appropriate for the overall criminality of the offender’s conduct. Even where, on a strict and literal understanding of the one transaction principle, it might be said that the concurrency of terms can be justified, the need for proportionality might demand cumulative or partly cumulative terms.
[31] A relatively recent illustration of the connection between the two notions is to be found in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616. The particulars to the ground of appeal contended that the court below had erred both in ‘failing to order total concurrence in circumstances where the same actus reus gave rise to separate offences, thus misconstruing and/or misapplying the “one transaction” rule of sentencing’ and in ‘imposing an overall effective sentence which infringed the totality principle of sentencing’. The main import of Johnson is that it resolved the doubt as to whether, when the totality principle required adjustment to the length of multiple sentences, it was to be achieved by lowering individual terms or by using a combination of accumulation and concurrency. The Court indicated that either method could be employed. But in the context of this appeal Johnson is important for two other reasons. First, Gleeson CJ adopted the passage from Tichy that I have set out. Secondly, Gummow, Callinan and Heydon JJ repeated a passage from Pearce [40] which stresses the importance of proportionality in the context of sentencing for interrelated offences …
(Original emphasis.)
19 The approach of the other two appeal judges was similar. Buss JA (at [128] - [132]) viewed the sentencing process as involving two or three stages. First, to decide on the appropriate sentence for each offence, then decide whether the sentences should be cumulative, partly concurrent or wholly concurrent and then review the net effective sentence by reference to the totality principle. His Honour viewed the "one transaction rule" as operating at the second stage. The matter was addressed by Miller JA at [232] - [234].
ANALYSIS
20 We return to consider the approach adopted by the primary judge in [10] of the penalty judgment. The first thing to be noted is that his Honour said the conduct of Mr Mates had two elements which were qualitatively distinct in the impact "they may be presumed to have had" on the builder. In assessing the criminality of the conduct of Mr Mates it is not to the point, in our respectful opinion, to call in aid presumed effect. Criminality, in relation to the conduct in question, flows from what Mr Mates intended to achieve and the unlawful means he adopted to achieve it. On the findings made by the primary judge (which were not challenged in the appeal) Mr Mates procured a stoppage but did so by indirect means which did not involve recommending, directing or expressly requesting that the workforce stop work at all, let alone for any specified period. The effect of what Mr Mates said at the meeting was, in his Honour's own words (at [78] of the liability judgment), "to induce a sense of reserve in a reasonable worker about continuing to work on the site". This does not suggest that Mr Mates' conduct was intended to procure a stoppage of any specified duration or achieved that effect. Rather it was intended to procure the departure of the workforce from the site until circumstances had altered which, as Mr Mates was asserting, would occur if an occupational health and safety labourer–cum-peggy was employed on site.
21 It is true that at [79] of the liability judgment his Honour said "[it] would be naive not to recognize that the burden of Mr Mates message to the workforce in the meeting on 31 July 2006 was that they should perform no further work on the site that day". However that was not a finding (arising by way of inference from findings as to what was actually said), as we read his Honour's reasons, that what was said by Mr Mates was intended to procure a stoppage of a particular or precise duration. The findings about what was said sustain an inference that Mr Mates was inducing the workforce to stop work until an occupational health and safety labourer–cum-peggy was employed. Indeed no finding was made by his Honour that the workforce who had been affected by Mr Mates' comment decided to leave only for the remainder of the day following the meeting. Importantly, the pleaded case of the respondent was that that the employees ceased work on 31 July 2006 and the "stoppage continued the next day (1 August 2006)" (see [12] of the statement of claim).
22 It must be accepted that a finding was made (and not challenged in this appeal) that Mr Mates said, as he left the site, that if there was not an occupational health and safety representative on site the following day (after the meeting of 31 July 2006) that "we'll go through all this again". His Honour found that the reference to "all this" was holding another meeting with the same consequences as the meeting that had just been held.
23 His Honour viewed the facts as he had found them as revealing conduct which was qualitatively different. One aspect (what was said at the meeting) was to procure a stoppage and the other aspect (the comment constituting a threat made when Mr Mates was leaving) as threatening to procure later stoppages. No finding his Honour made in the liability judgment justified the reference to later stoppages in the plural. More fundamentally, however, this bifurcation of the conduct introduces a measure of artificiality which led to the rejection of the submission that there was a single course of conduct attracting the operation of the principle, if we could so describe it, discussed by Buchanan and Stone JJ in Mornington. On the facts as found, what occurred was that Mr Mates said things at the meeting which both resulted in and induced a stoppage designed to achieve a particular objective (a person's employment) and then indicated that that state of affairs would continue unless his demands were met (the employment of the person).
24 The threat was not qualitatively different in the sense that it involved Mr Mates asserting control over when work would resume on the site and in what circumstances. Rather by inducing the stoppage, Mr Mates had already asserted control over when work would occur on the site and when and why it would resume. It was obvious from his conduct, apart from the comments held to be a threat, that Mr Mates' position was that work would resume when the builder had employed the employee as he had been demanding.
25 The respondent chose to proceed against both Mr Mates and the Union on the basis that Mr Mates' conduct involved separate contraventions of s 43 and, on the evidence, was able to establish that it had. However, when assessing the criminality of Mr Mates coercive conduct for the purposes of imposing penalties it was, in truth, a continuum of acts intended to induce the builder to employ the labourer with duties relating to occupational health and safety. In our opinion, the primary judge erred in the way he approached the question of whether there was a single course of conduct. The conduct of Mr Mates in both inducing the stoppage and in making the threat was a course of criminal conduct which should be treated as one act of contravening conduct even though, strictly, it resulted in a finding that there had been two contraventions of s 43. A similar approach was followed by Cooper J in Hamberger v Construction, Forestry, Mining and Energy Union [2002] FCA 585 in relation to conduct on two days almost a month apart.
26 The trial judge did not take into account the fact that the two contraventions were properly seen as a single course of conduct. As a result, the sentencing discretion miscarried and the sentences imposed at trial must be set aside.
27 This Court must re-sentence the appellants exercising the sentencing discretion afresh. As explained earlier (see [8] above), specific error being shown, it is not necessary to examine whether the sentences passed at first instance could be classified as manifestly excessive.
RESENTENCING THE APPELLANTS
28 As has been said many times, sentencing is one of the most, if not the most, difficult tasks that judicial officers perform: Weininger v The Queen (2003) 212 CLR 629 at [24] per Gleeson CJ, McHugh, Gummow and Hayne JJ and [50] per Kirby J; Ryan v The Queen (2001) 206 CLR 267 at [129] per Kirby J and [133] per Hayne J; Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ. The task is complex. It is not mechanical or mathematical: see Markarian v The Queen (2005) 228 CLR 357 at [39] and [43] per Gleeson CJ, Gummow, Hayne and Callinan JJ, [56] and [65] per McHugh J and [133] per Kirby J; Wong v The Queen (2001) 207 CLR 584 at [74]-[76] per Gaudron, Gummow and Hayne JJ; AB v The Queen (1999) 198 CLR 111 at [15]-[16] per McHugh J and [115] per Hayne J; Pearce v The Queen (1998) 194 CLR 610 at [39] and [46] per McHugh, Hayne and Callinan JJ.
29 In the present context, the task of the Court was as described by the trial judge in the penalty judgment (at [3]) – "to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations": Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at [91] per Buchanan J. The offences are to be punished having regard to the fact that it is one course of conduct: see [15]ff above.
30 In our view, the principles identified in the passages in Johnson v The Queen (2004) 78 ALJR 616 (Johnson) and Attorney-General v Tichy referred to by Owen JA in [31] in Royer which we set out earlier (at [17]) are applicable to the imposition of fines. The manner in which they are applied will vary from case to case. So, for example, adopting the language in Johnson, the Court may lower individual fines or accumulate fines. The list is not exhaustive.
31 In the present case, it is appropriate to take the single course of conduct into account by imposing separate fines for the two offences which when aggregated would represent a single penalty appropriate to punish the single course of conduct concerned. Fixing an amount of fines that when taken together represent a single penalty appropriate to punish the one course of continuing conduct begins from the premise that the maximum penalty for all of the contravening conduct that comprises a single transaction, but constitutes two separate offences, is to be treated, in effect, as $110,000 for the Union and $22,000 for Mr Mates: cf Mornington at [18] (per Gyles J) and at [47]-[49] (per Stone and Buchanan JJ).
32 In fixing the amount of the financial penalty that is to be imposed, it is also necessary to take into account both the nature of the conduct and the circumstances in which that conduct was committed. Neither the convictions nor the trial judge’s sentencing facts were challenged on appeal. The relevant sentencing facts are summarised earlier in paras [9] – [13]. In our view, the single course of conduct was not an especially serious instance of conduct contravening the Act.
33 Principles of deterrence (both specific and general) must also be taken into account. In relation to specific deterrence, the prior history of the Union and Mr Mates (see [11] of the penalty judgment) is relevant.
34 Having regard to the conclusions concerning the one course of conduct, the question of the totality of the sentence (if any arises at all where there is no element of cumulation of punishment) does so as a final check of whether the punishment imposed (considered as a whole) is a proper reflection of the contravening conduct: Mill v The Queen (1988) 166 CLR 59 at 62-63 and Mornington at [42] (per Stone and Buchanan JJ).
35 In all the circumstances, we consider that the appropriate sentence to be passed in relation to the Union is to order payment of a fine of $25,000 in relation to Count 1 and $10,000 in relation to Count 2, a total of $35,000, and in relation to Mr Mates, to order payment of a fine of $5,000 in relation to Count 1 and $2,500 in relation to Count 2, a total of $7,500. A period of 30 days from the date of publication of these reasons should be allowed to each appellant for payment of those fines. We will make orders accordingly.
36 We will also order that the respondent pay the appellants’ costs of the appeal, to be taxed in default of agreement.
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I certify that the preceding thirty six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Middleton and Gordon. |
Associate:
Dated: 7 December 2009
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Counsel for the Appellants: |
Borenstein SC and Dowling |
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Counsel for the Respondent: |
McDonald SC and Dalton |
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Solicitor for the Appellants: |
Slater and Gordon |
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Solicitor for the Respondent: |
Freehills |
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Date of Hearing: |
16 November 2009 |
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Date of Judgment: |
7 December 2009 |
