54 I accept that the financial situation of the defendant, at least when compared to many cases which come before the Court, is quite unusual. I accept that it has occurred independently of these proceedings or the defendant's culpability under the Act. That is, I accept that the situation of the defendant has arisen from commercial decisions taken bona fide by those controlling it on the basis that the steps were considered to be in the defendant's interests. Nevertheless, to impose a penalty entirely out of step with the objective circumstances of the offence, by having regard as the crucial consideration to the evidence before the Court as to the defendant's financial circumstances, would, I consider, be inconsistent with the role of the Court and would, in particular, represent a failure to impose a sentence with appropriate regard to the importance of deterrence in the sentencing process. In this case general deterrence has particular relevance.
55 It is clear from what has been said that I consider it is inappropriate to provide the benefit of s 10 of the Crimes (Sentencing Procedure) Act and indeed to do in this matter would be contrary to recent authorities which bind me on that issue: see, for example, WorkCover Authority of New South Wales v Profab Industries Pty Limited (2000) 49 NSWLR 700 and the subsequent Full Bench decisions which have applied that judgment: McCarthy v Sell & Parker Pty Limited (2000) 102 IR 355 and Riley v Australian Grader Hire Pty Limited [2001] NSWIRComm 31. An important feature of those judgments was the reference to the important public purposes which sentencing under this statute serves. However, to ensure a just outcome in the proceedings before the Court I have taken into account all of the circumstances as to the current operating situation of the defendant and its financial situation. Notwithstanding the submissions of the prosecution, I accept those of counsel for the defendant that the defendant at present has no assets, which represents a change in its circumstances. Although it had been essentially a service company it would have been able to pay any fine imposed.
56 The Court obviously would hesitate before it would impose a fine which could be described, as counsel for the defendant did, as "vacuous". However what the Court must do is to take all relevant circumstances into account. In that regard, as well as giving weight to the finding earlier made as to the bona fide commercial decisions which led to the present situation, I should also have regard to the acknowledgment by the defendant that the existence of these proceedings was not the only factor which led to the defendant being kept in existence. Other considerations included that it had "a place in the market" and that situation is to be seen as having commercial benefit to its associated companies and those controlling them.
57 Taking all those considerations into account I consider that it is appropriate for the Court to impose a fine of significance to reflect the objective circumstances of the offence as found but with regard to all the objective and subjective circumstances to which I shall now return briefly.
58 Reference should be made to one aspect of the issue of deterrence. I consider that this is one of the exceptional circumstances referred to in Capral Aluminium and Walco Hoist where the Court may conclude that it is unlikely that the defendant will be an employer in the foreseeable future so that the question of deterrence becomes essentially one of general deterrence. However, I also accept the submission of counsel for the prosecutor that in assessing the significance of general deterrence it is relevant to note that the particular "sting" in that respect will be on the associated companies and particularly the company operating the factory and the relevant machinery. I proceed on that basis.
59 It is also relevant to have regard to the maximum penalty for this offence which is $550,000 and also to give effect to the intention of the legislature that the existing sentencing patterns are to move in a sharply upward manner manifested in the most recent significant increases in penalties under the Act.
60 The defendant is clearly entitled to great benefit from the various subjective factors which it has relied upon and, without seeking to limit the matters earlier referred to in seeking to summarise the submissions of counsel for the defendant, these include the fact that the defendant is and was a safety conscious employer; a good industrial citizen; it has shown significant contrition not only by word but also by deed. Also relevant are the steps taken after the offence to remedy the defect in safety manifested, the co-operation with the authorities and the previous good record, which I accept is to be seen in the context that it operates in an industry which by its nature is one of some significance in terms of hazardousness. It is also appropriate, as earlier indicated, to assess the means of the defendant and I have had regard to that evidence and also to have regard to the nature of the defendant, its size both now and at the time of the incident.
61 Of particular importance in terms of contrition is that there has been tangible confirmation of the contrition by the support and assistance rendered to the injured Mr Bonniface by way of rehabilitation and assisting him back to work and recovery. This is a matter which has been referred to in earlier judgments; for example, the judgment in the State Rail Authority case at [48]. It is a matter to be taken into account in favour of the defendant. I consider that the appropriate approach in applying the guideline judgment in R v Thomson; R v Houlton in these proceedings is to adopt the approach referred to in paragraph [160(ii)] of that judgment; that is, where other matters associated with the plea of guilty are regarded as appropriate to be quantified in a particular case, a single combined quantification may be appropriate.
62 I consider that the appropriate quantification should be in the order of one third. Having regard to all the circumstances earlier referred to, the gravity of the offence, the subjective circumstances which I have held that the defendant is entitled to rely upon and the discount for the early plea of guilty and the associated matters, and having due regard to the particular circumstances of the defendant, I consider that the appropriate penalty that should be imposed is $50,000.