DPP v Telstar Investments Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 13 October 2022 |
| Neutral Citation | [2022] IECA 235 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 145CJA/2021 |
In the Matter of Section 2 of the Criminal Justice Act 1993
[2022] IECA 235
Edwards J.
McCarthy J.
Kennedy J.
Record Number: 145CJA/2021
THE COURT OF APPEAL
Sentencing – Failure to discharge the duties of an employer – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient
Facts: The respondent, Telstar Investments Ltd, pleaded guilty to the offence of failing to discharge the duties of an employer as required by ss. 8(1) and 8(2)(a) of the Safety, Health and Welfare at Work Act 2005 and contrary to s. 77(2)(a) of the 2005 Act. The respondent was fined €7,500. An offence of failing to conduct an asbestos risk assessment was taken into consideration by the sentencing court. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to the provisions of s. 2 of the Criminal Justice Act 1993, seeking a review of sentence on the following seven grounds: (1) the fine imposed on the respondent was unduly lenient having regard to the nature of the charges and the circumstances attending the commission of the offences; (2) the fine imposed did not adequately reflect that a commercial decision was made to clean up an area known to contain a hazardous material in order that the licensed premises which used the area could trade for profit; (3) the fine imposed did not adequately reflect that the respondent was made aware of the presence of asbestos before engaging in the works performed; (4) the fine imposed did not adequately reflect the nature of the serious health risks associated with asbestos; (5) the fine imposed did not adequately reflect the requirement for general deterrence; (6) undue weight was given to the mitigating factors; and (7) the sentence of €7,500 imposed on the respondent, as opposed to the sentence of €100,000 imposed on the main contractor, even allowing for their different roles, breached the principle of parity of treatment.
Held by the Court that the ultimate fine imposed failed to adequately reflect the gravity of the offending conduct or to properly take account of the principle of general deterrence. Moreover, the Court did not believe that the entire amount of the outlay in terms of the clean up ought to have been deducted in mitigation. The Court was, in the circumstances, satisfied that the ultimate fine was simply too low and that, in itself, was an error in principle. The Court held that breach of the safety regulations designed to protect employees and the public at large must be penalised and such future conduct of that sort ought to be deterred by an appropriate penalty. The Court held that the ultimate fine of €7,500.00 was inadequate in the circumstances to properly reflect that principle. The Court was satisfied that the sentence was unduly lenient as being a clear departure from the norm. The Court held that it would quash the sentence imposed in the court below and proceed to resentence the respondent.
The Court believe a headline sentence of a fine of €60,000.00 was appropriate on count 1. The Court took account of the mitigating factors, including the plea of guilty, the co-operation and the remorse which the Court accepted as genuine and reflected by the remedial works. The Court also took account of the absence of any prior convictions. The Court held that it would reduce the headline sentence accordingly to a fine of €40,000.00 to be paid within 4 months of the date of the judgment. The Court held that count 2 was to be taken into consideration.
Appeal allowed.
JUDGMENT of the Court delivered on the 13th day of October 2022 by Ms. Justice Isobel Kennedy.
This is an application brought by the Director of Public Prosecutions pursuant to the provisions of section 2 of the Criminal Justice Act 1993, seeking a review on grounds of undue leniency. The respondent pleaded guilty to the offence of failing to discharge the duties of an employer as required by sections 8(1) and 8(2)(a) of the Safety, Health and Welfare at Work Act, 2005 (hereinafter “the 2005 Act”) and contrary to section 77(2)(a) of the 2005 Act. The respondent was fined €7,500. An offence of failing to conduct an asbestos risk assessment was taken into consideration by the sentencing court.
In 2016, developers McAleer & Rushe, the co-accused in the initial proceedings, were carrying out a large-scale development project on Findlater House, Dublin, where the respondent operates three linked licensed premises. The nature of the works required the removal of ceiling tiles in an area used by the respondent. The three licensed premises fed into this area which was used by the respondent's staff for access and storage and by regular patrons as a shortcut between the three premises. The developers contracted a company to remove the ceiling tiles.
On the 23rd June 2016, as the sub-contractor's employees were removing the ceiling tiles, they came upon an asbestos sticker and informed the site foreman, Mr McAuliffe, another co-accused, of this finding. Mr Murray, a director of the respondent company was informed also. The foreman ceased work that day. Specialist asbestos contractors; MCE were contacted to render the area safe.
On the 24th June, Mr McAuliffe returned with specialist asbestos contractors to the site, they observed people removing ceiling tiles, operating from a platform on a forklift truck. They were unable to gain access to the site.
On the 28th June, MCE returned to erect safety shielding to close off the area and remove the asbestos. It transpired that the asbestos tiles had been removed by Mr Murray and his employees.
In a voluntary statement of the 22nd September 2016, Mr Murray said that he made the decision to remove the rest of the ceiling tiles. Mr Murray and two employees used a platform which was placed upon the teleporter arms of a forklift truck to gain access to the roof. They each wore disposable gloves, overalls and masks. Mr Murray operated the forklift and his two employees removed the remaining asbestos tiles. The tiles were placed into a wheelie bin which contained the pieces of ceiling that had already been removed by the contractors.
The Health and Safety Authority tested the area, and a prohibition notice was issued on the 28th of June. On foot of the prohibition notice, Mr Murray contracted his own qualified asbestos removal experts to clean and clear the area, the cost of which was €38,500.
Mr Murray, in his statement, said that after being notified by the developers of the potential of the presence of asbestos, he viewed the area himself and was dissatisfied with the condition in which the ceiling had been left. He stated that he feared that parts of the ceiling would fall on his staff or patrons and that he had previously been litigated against by a customer where a piece of plasterboard fell on her from a ceiling. Mr Murray also stated that the removal of the remaining pieces of asbestos tile took approximately 20 or 30 minutes and that they used protective masks and suits.
Mr Kinch, the company accountant gave evidence of the loss of trade for the 15 months prior to sentence due to the pandemic. He gave evidence of approximately €8.7 million in bank borrowings at the end of June 2020 and in cross-examination, confirmed that the value of the fixed assets of the respondent was €16,367,000.
McAleer & Rushe had carried out an asbestos survey for the majority of Findlater House, but this survey did not include the area in issue.
The respondent pleaded guilty and Mr Murray personally expressed his remorse. There are no previous convictions recorded.
At the sentencing hearing on the 19th July 2021, the respondent was fined €7,500 for breaches of the Safety, Health and Welfare at Work Act, 2005 and a further offence of failing to conduct an asbestos risk assessment was taken into consideration.
The Director seeks a review of sentence on the following seven grounds:
“1. That the fine imposed on the Respondent was unduly lenient having regard to the nature of the charges and the circumstances attending the commission of the offences.
2. That the fine imposed did not adequately reflect that a commercial decision was made to clean up an area known to contain a hazardous material in order that the licensed premises which used the area could trade for profit.
3. The fine imposed did not adequately reflect that the Respondent was made aware of the presence of asbestos before engaging in the works performed.
4. The fine imposed did not adequately reflect the nature of the serious health risks associated with asbestos.
5. That the fine imposed did not adequately reflect the requirement for general deterrence.
6. That where no headline fine was nominated and explicit reductions made, it is impossible, with any certainty, to identify what weight was given to what mitigating factors. However, it is submitted that undue weight was given to the mitigating factors. In particular:
6.1. The clean-up costs that were incurred by the Respondent were potentially recoverable from the main contractor. It is inappropriate that full mitigation be given for the costs of the clean up. It is accepted that mitigation can be given for the fact of the clean up.
6.2. The main contractor had arranged for the area to be cleaned prior to the specialist contractors engaged by the Respondent but this was not done as the Respondent engaged in the works it did.
6.3. While the Respondent operates in an industry which has had a particularly difficult time, the evidence did not disclose an inability to pay a higher fine.
6.4. Excess weight was given to the guilty plea entered by the Respondent given the nature and quality of the evidence available.
7. The...
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